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+*** START OF THE PROJECT GUTENBERG EBOOK 78802 ***
+
+
+
+
+THE EARLY COURTS
+
+OF
+
+PENNSYLVANIA
+
+
+BY
+
+WILLIAM H. LOYD
+
+OF THE PHILADELPHIA BAR; GOWEN FELLOW IN THE LAW
+SCHOOL OF THE UNIVERSITY OF PENNSYLVANIA
+
+
+BOSTON
+THE BOSTON BOOK
+1910
+
+
+
+
+COPYRIGHT, 1910
+BY THE UNIVERSITY OF PENNSYLVANIA
+
+
+_The Riverdale Press, Brookline, Boston, Mass._
+
+
+
+
+UNIVERSITY OF PENNSYLVANIA LAW SCHOOL SERIES
+
+NUMBER 2
+
+
+Each volume in this series has been made a publication of the School of
+Law of the University of Pennsylvania, by a vote of the Law Faculty.
+The authors are connected with the school as members of the teaching
+force, fellows, or graduate students.
+
+The object of the University is to promote the scientific study
+of legal problems--historical and practical, and to assist in the
+improvement of the law.
+
+
+
+
+“_Yes, you have shown us a representation of freedom. True. But you are
+content with it in a world that moves by computation some considerable
+sum upward of sixty thousand miles an hour._”
+
+                               DR. JULIUS VON KARSTEG TO HARRY RICHMOND
+
+
+
+
+PREFACE.
+
+
+This account of the early courts of Pennsylvania is the outcome of some
+lectures delivered as an auxiliary course in the Law School of the
+University of Pennsylvania. Their purpose was to describe briefly the
+establishment and development of the courts in the colonial period.
+That our ancestors should have expressed such profound admiration for
+the common law while deviating so widely from it in practice, must have
+puzzled many who have not learned to put a true value upon the flights
+of forensic oratory. History alone supplies the key, and colonial
+legal history has not received the attention it deserves. The absence
+of reports, the destruction of many records and the inaccessibility
+of those that have been preserved, have all contributed to discourage
+work in a field usually abandoned to the antiquarian. But as American
+law increases in importance, the story of its obscure beginnings will
+require careful consideration.
+
+The earliest emigrants, caring little for the common law except those
+principles associated with Magna Charta, stamped their peculiar notions
+upon our jurisprudence in a way that the second and more conservative
+generation of colonists was unable to eradicate. The Revolution, and
+the constitutional development that followed, concentrated attention
+on public rather than on private law, which in many of the States has
+been allowed to develop haphazard, along the lines of least resistance.
+Before it will be possible to classify and discuss American colonial
+law in a thorough and scientific manner, much preliminary work must be
+done in local fields, and, from material so collected, there may be
+derived finally a rational account of our legal institutions.
+
+It is in this spirit that the following study has been prepared. The
+original lectures were undertaken, at the suggestion of Dr. William
+Draper Lewis, Dean of the Law School, and material sought in the
+records without, at first, a sufficient realization of their lack
+of coherence. It was found that while some special topics had been
+carefully discussed, and while others were treated incidentally,
+in works having a different object in view, there was no concise
+statement of the origin and growth of the courts and their
+jurisdiction based directly on the statutes and archives of the
+commonwealth. Such a narrative, it was thought, might prove useful to
+those who have not found time to become acquainted with the scattered
+literature of the period described. The treatment is not exhaustive;
+that would be impossible in a volume of this size, but it is believed
+that the information contained will be found accurate, as it is based
+on a careful examination of the public records. While the labor
+involved was greater than anticipated, the result by no means does
+justice to a deeply interesting topic.
+
+                                         WILLIAM H. LOYD.
+
+  BIDDLE LAW LIBRARY, May 10, 1910.
+
+
+
+
+NOTE.
+
+
+The work cited as Charter and Laws of Pennsylvania contains the Duke
+of York’s Laws and the Acts of Assembly prior to 1700. The Statutes
+at Large of Pennsylvania, as published to date, begin at 1700 with
+Volume II and end at 1793 with Volume XIV. Compilations of the laws
+of the State by Dallas and Smith are also cited for acts in the last
+years of the eighteenth and early years of the nineteenth centuries.
+The regular series of Acts of Assembly which begin with 1800 are
+cited, according to local custom, as pamphlet laws abbreviated “P. L.”
+The records of the court at Upland were published by the Historical
+Society of Pennsylvania in 1860; the records of the court at New
+Castle by the Colonial Society of Pennsylvania in 1904. This society
+is about to publish the records of the courts of Chester County which,
+unfortunately, are not yet available for reference. For the convenience
+of the general reader, illustrations have been taken from published
+records, when practicable, rather than from manuscript sources. The
+dates are given just as they appear in the records without accounting
+for the discrepancies due to the reform of the calendar in 1752.
+
+
+
+
+CONTENTS.
+
+
+  CHAPTER I.
+
+  The Courts in the Seventeenth Century                    1
+
+
+  CHAPTER II.
+
+  The Courts in the Eighteenth Century Prior to
+  the Revolution                                          74
+
+
+  CHAPTER III.
+
+  The Courts from the Revolution to the Revision
+  of the Civil Code                                      122
+
+
+  CHAPTER IV.
+
+  Equity in Pennsylvania                                 159
+
+
+  CHAPTER V.
+
+  The Register’s Court and the Orphans’ Court            212
+
+
+  CHAPTER VI.
+
+  The Laying Out and Opening of Roads by Viewers         241
+
+
+
+
+THE EARLY COURTS
+OF
+PENNSYLVANIA.
+
+
+
+
+CHAPTER I.
+
+
+For more than two hundred years the courts of province and state have
+administered justice to the inhabitants of Pennsylvania. Created under
+the peculiar conditions surrounding the foundation of the colony,
+subjected to numerous legislative experiments, their organization and
+practice present many peculiarities that can only be understood by a
+reference to their history. This history has been sadly neglected owing
+partly to the paucity of material, and partly to lack of interest. The
+founders were more bent on developing the resources and organizing
+the administration of the great territory that had come under their
+control, than on preserving the records of their proceedings for the
+benefit of posterity, while their immediate descendants, living in
+an uncritical age and possessed with a passion for rhetoric to the
+exclusion of history, carelessly permitted the records of the preceding
+generation to be scattered or ruthlessly destroyed. Documents that
+would now be regarded as precious memorials of the past, and that would
+throw valuable light on our early institutions, were used to feed the
+fires in the old courthouse.[1] Fortunately, sufficient fragments have
+escaped and found their way into the collections of individuals and
+societies to enable us, with the aid of the state archives, to present,
+if not a picture, at least a sketch of the judicial organization and
+procedure in a period which the rapidity of our national development
+has made more remote in thought than in time.
+
+As the first organized settlements in the territory now included in
+the state of Pennsylvania were those of the Swedes and the Dutch, so
+the first courts of justice were established under their auspices.
+To give a complete account of their administration would involve a
+tedious narrative of the political vicissitudes of these unsuccessful
+colonies, which never developed to the point of establishing lasting
+institutions. In fact, throughout their stormy history the judicial and
+executive functions of the various governors and local officials are
+scarcely distinguishable.
+
+The first Swedish settlement was hardly more than a trading post, and,
+if a court in the proper sense of that word existed, it must have been
+established by the governor, John Printz, who arrived at the colony on
+the Delaware in 1643 with instructions to “decide all controversies
+according to the laws, customs and usages of Sweden” and in all other
+things to “adopt and follow all the laudable manners, customs and
+usages of the kingdom of Sweden,” the crown of which was then worn by
+Christina, the daughter of the great Gustavus Adolphus.
+
+Printz established the seat of government on the island of Tinicum,
+but he must have found his duties onerous, for he wrote several times
+to obtain the services of a learned and able man to administer justice
+and attend to the law business.[2] The territory, however, passed into
+the possession of the Dutch West India Company, and Swedish law ceased
+to be a factor in the development of Pennsylvania, although the Swedes
+were permitted to retain their own magistrates, under the supervision
+of the officials of their conquerors.[3]
+
+In 1655, a vice directorship of the “South River” was created, and Jean
+Paul Jacquet, a former agent of the company in Brazil, was appointed
+to the office.[4] Andries Hudde, who had for some years managed the
+earlier Dutch settlement on the Delaware, was named as secretary, a
+commissary was appointed, and these, with two others, formed a council
+for general administration, as well as a court for the trial of civil
+and criminal cases, with right of appeal in all important matters to
+the director and council in New Amsterdam. The minutes of this court
+from December, 1655, to March, 1657, have been preserved, and afford
+some interesting information upon the methods and procedure of the
+Dutch justices, as well as the social condition of the colonists.[5]
+Actions for the recovery of small debts are most frequent on the civil
+side, while on the criminal side, complaints for minor breaches of the
+peace are the principal matters disposed of. The striking features
+of these trials are the mild and paternal attitude of the court, the
+efforts made to obtain amicable adjustments of disputes, the merciful
+treatment of offenders, and the leniency to unfortunate debtors.
+
+       *       *       *       *       *
+
+The following case, taken from the minutes of the court, July 7, 1656,
+is interesting as an early attempt to apply the principles of set-off:--
+
+  "Jan Flaman appears before the council against the wife of Tobias
+  Willeborgh, and demands payment for a shirt lost by her, the
+  defendant, and for passage from the manhattans hither, viz.
+
+    for the shirt              14
+    for her passage & freight  16
+                               --
+                               30
+
+  The defendant says, that she lost on the voyage, being wrecked with
+  the bark, a chest containing four shirts, one coat of red duffel, one
+  underwaist coat, and a powder horn with copper mountings, valued by
+  her, the defendant at fl 28.
+
+    Paid to plaintiff in money  fl  4
+    From above                  fl 28
+                                   --
+                                   32
+
+  The defendant is told that the freight shall be set off against her
+  lost goods; in regard to the shirt, she is ordered to pay plaintiff
+  four guilders 15 stivers.”[6]
+
+A case heard on August 2, 1656, gives new and interesting grounds for a
+continuance:--
+
+  “Before the council appeared Jacob Crabbe against Robert Martyn
+  and complained that he Robert Martyn had shot and killed his,
+  the plaintiff’s pig. Defendant answers that fourteen days ago he
+  entreated the plaintiff to pen up his hogs as the same did great
+  damage to his corn. Plaintiff upon being asked what he wanted,
+  answers, ‘Payment for his pig.’ It was proposed to the parties,
+  that plaintiff shall take the pig, as it is still living, but
+  that if it should die, each one shall keep his action in the law
+  unprejudiced.”[7]
+
+Perhaps it may not be considered out of place to refer to a case tried
+September 13, 1655, in New Amsterdam as illustrating the pleasant side
+of judicial office in Knickerbocker days:--
+
+  “Jan Hackius Plf. v/s Jacob van Couwenhoven Deft. The Plf. demands
+  paymands of 1150 fl. on account of a promissory note, dated July 1,
+  1655, payable in beer and distilled liquors. Deft. says his beer is
+  ready. Plf. denies, that the beer is ready, and enquires if it be
+  allowable to mix strong with small beer, and says the beer is not fit
+  to be removed. Couwenhoven denies the same, and requests the Court
+  to be pleased to test the same after adjournment of the session and
+  then decide. Parties being heard, Jacob van Couwenhoven was ordered
+  to pay Plf. the residue according to contract and obligation; And
+  the beer having been tested after adjournment of the Court the same
+  was pronounced good. The Plf. was therefore ordered to receive the
+  same.”[8]
+
+Would Professor Wigmore call this autoptic profference?
+
+As in the other Dutch settlements the principal prosecuting officer of
+the district was the schout whose duties combined those of a sheriff
+and district attorney; he convened the justices’ courts and executed
+the orders of the states-general and officials of the company. Where
+local courts were established the justices were known as schepens.
+Their jurisdiction extended to the rendition of judgment for sums
+under one hundred guilders. In cases exceeding that amount the party
+aggrieved was allowed an appeal to the director general and council
+of the New Netherlands. The schepens also had authority to pronounce
+sentence in criminal cases subject to appeal.[9]
+
+In 1656 the Dutch India Company, being deeply in debt and compelled
+to obtain aid from the city of Amsterdam, transferred to that city a
+portion of their possessions on the Delaware. This colony was called
+New Amstel, special inducements were held out to emigrants, and a town
+government was established consisting of a schout, three burgomasters
+and five to seven schepens, a formidable body for the government of
+a village of less than five hundred inhabitants. Thenceforth the
+jurisdiction on the river was divided between the officials of the
+company and those of the city’s colony.[10]
+
+Laws and ordinances were sent from New Amsterdam to the Delaware and
+there proclaimed for the general government of that territory. With
+occasional modifications, they were the same as prevailed in the older
+settlements on the Hudson, the ordinances of the West India Company,
+the civil law, the enactments of the states-general, and the customs of
+Holland.
+
+In the matter of granting divorces the magistrates of the New
+Netherlands exercised a liberal policy in keeping with the doctrines
+of the Reformation, a policy that was not destined to survive the
+English Conquest.[11] Traces of this jurisdiction are found on the
+Delaware. Vice Director Beekman, writing to the director general under
+date of April 28, 1660, mentions a Finnish couple who lived together
+in constant strife: “The wife receives daily a severe drubbing, and is
+often expelled from the house as a dog. This treatment she suffered
+a number of years; not a word is said in blame of the wife, whereas
+he, on the contrary, is an adulterer; on all of which the priest, the
+neighbors, the sheriff and the commissaries appealed to me, at the
+solicitation of man and wife that a divorce might take place and the
+small property and stock be divided between them.”[12] He asks for
+orders but the reply is not given.
+
+In 1662, the Finnish priest Laers, or Laurentius, Carels, whose wife
+had eloped with Jacob Jough, married again before he had obtained
+letters of divorce from the council, performing the ceremony himself.
+He was condemned by the commissaries to pay a fine of two hundred
+guilders and his new marriage declared illegal, but was advised to
+apply to the director general for a divorce.[13]
+
+At the last period of the Dutch dominion (1673-4) three judicial
+districts were recognized, one for the inhabitants of the Whorekill,
+between Cape Henlopen and “Boomties” (Bombay) Hook, another for New
+Amstel, from Bombay Hook to Kristina Kill, and a third for Upland from
+Kristina Kill “unto the head of the river.”[14] Roughly speaking, the
+first of these districts corresponds to the lower counties of the state
+of Delaware, the second to New Castle County, in that state, and the
+third to so much of the southeastern part of Pennsylvania as was then
+settled, extending to the falls at Trenton.
+
+The humble and widely scattered settlers seldom had time or occasion
+to indulge in law suits involving questions or amounts beyond the
+limited jurisdiction of the schepens, but such disputes as did arise
+were the cause of endless discussion and much heartburning between the
+officers of the West India Company and those of the city of Amsterdam,
+whose complaints and recriminations distracted the governor at New
+Amsterdam. In justifying the action of the council in such a contest
+Peter Stuyvesant writes to the directors in Holland: “We might here
+remark upon and continue with the insults and slights, heaped on your
+Hon^{ble} Worships’ servants in their capacity as supreme judges of
+this province, but will desist for the present to keep ourselves above
+party spirit and avoid further displeasures.” Appeals heard and decided
+by the governor and council seem to have been carried to the directors
+in Holland, and occasionally reversed to the chagrin of Stuyvesant, who
+thus reproaches his employers in a letter dated July 21, 1661:--
+
+  “Your Noble Worships say in regard to the third and last point
+  concerning the appeal and the reversing of a sentence pronounced
+  against one Jan Gerritsen van Marcken, that we would have done better
+  not to meddle with this case. Honorable Worships! It surpasses
+  our conception to understand how to avoid such proceedings and
+  the reproaches following them, how to satisfy your Honors and the
+  parties to the suit without exposing ourselves to blame for refusing
+  a hearing and justice, as long as it is your Hon^{ble} Worships’
+  order, and pleasure, that appeals are to be brought before your
+  Honors’ humble servants and we declare with good conscience that in
+  this and the abovementioned case we have not aimed at nor intended
+  anything else, but what we in our humble opinion judged to be just,
+  equitable and our duty: God the Ominiscient is the witness for it:
+  we have no knowledge of it, that the Sheriff van Sweeringen was to
+  be forced here, to ask pardon of God and justice in addition to what
+  his opponent had demanded: we refer to the sentences regarding this
+  point.”[15]
+
+Dutch rule and Dutch laws, however, were not destined to endure on the
+Delaware. On the twelfth of March, 1664, Charles II of England granted
+to his brother, the Duke of York (afterwards James II), the territory
+comprising the New Netherlands.
+
+The charter to James is neither as elaborate nor as carefully drawn as
+that granted eighteen years later to Penn. The standing committee of
+the privy council for the foreign plantations had been but recently
+organized and the Crown lawyers were just beginning to realize that
+vast problems, legal and social, were connected with the administration
+of the colonial domain. It has been well said that in the colonial
+charter will be found the germ of American constitutional law, whether
+of the trading company or proprietary type, since it contained beside
+the grant of territory a scheme of political organization.[16] It is
+a significant fact that the charter of James contains no reference to
+a legislative assembly; the Duke is given “full and absolute power
+and authority” to “correct, punish, pardon, govern and rule” the
+inhabitants of the territories according to such laws, ordinances and
+directions as he should establish, not contrary to the laws of England,
+reserving to the Crown the right to hear and determine appeals from
+judgments or sentences there given.[17]
+
+With the history of the conquest of the New Netherlands we are not
+directly concerned; suffice it to say that Sir Robert Carr who was
+charged with the reducing of the Dutch possessions on the Delaware
+arrived at that river in the latter part of the year 1664, and without
+much bloodshed obtained the surrender of the colony. Carr established
+the seat of government at New Amstel, the name of which was now
+changed to New Castle, and under the terms of his agreement with the
+inhabitants, continued all the magistrates in their offices upon their
+taking the oath of allegiance.[18] The wise policy of enlisting the
+local authorities in support of the new government was continued, and
+Dutch and Swedish magistrates administered justice to their neighbors
+until long after the arrival of William Penn.
+
+The period of the Duke of York’s rule is of more importance in our
+judicial history than would at first be supposed. It was a formative
+period, and the law and practice as then developed had a marked
+influence upon the early legislation of the province of Pennsylvania.
+The establishment of English jurisprudence in the colonies on
+the Delaware was not the work of a day, but a gradual process,
+involving compromises with the established customs and practices of
+the inhabitants, the gradual transformation of the Dutch schouts
+and schepens into their English equivalents, the education of the
+magistracy in the rudiments of English court practice and the actual
+modification of many of the rules of the common law, both as to
+property and practice, to meet the necessities of the primitive social
+conditions in the New World.
+
+The legal conceptions of the new rulers found expression in a brief
+code promulgated at Hempstead, Long Island, in 1664, which, quaint
+and unsystematic as it may seem to us now, contained several notable
+departures from the common law well worth careful study by those
+interested in legal history.
+
+The principle seems to have been generally accepted in the American
+colonies that the elements of public and private law should be stated
+in a concise and permanent form. Whether originating with the people,
+as in the case of the “Body of Liberties” in Massachusetts, or with
+the proprietors, as in the case of the “Fundamental Constitutions”
+of the Carolinas, the tendency of early colonial law was toward
+codification.[19] And what could be more natural than that both
+adventurers and proprietors should dream of creating little Utopias by
+force of the statute book? New conditions, too, required new measures,
+the laymen who administered justice required brief and simple handbooks
+for their guidance, and the mixed population a homogeneous system in
+the place of their various ancestral customs. Such a code was the Duke
+of York’s Laws which is stated to have been “Collected out of the
+Severall Laws now in force in his Majesties American Colonyes and
+Plantations.” Prior to the conquest of the New Netherlands, Colonel
+Nicolls, the newly appointed governor, and Sir Robert Carr had been
+appointed members of a commission for the visitation of the New England
+colonies, a part of whose duties it was with diligence and care “to
+peruse the collection of the lawes published in those colonies during
+the late usurping Government, or at any tyme before or since; to the
+end that upon examination thereof you may discerne both the indecent
+expressions and material and important points and determinations in
+them, which are contrary to our dignity and to the lawes and customes
+of this realme and to the justice thereof; all which they have obliged
+themselves to cancele and repeale; and if the same bee not already
+done, you are in the first place to cause it to be done.”[20]
+
+The commissioners were also empowered to hear all complaints and
+appeals in matters military, criminal and civil, but it was left to
+their discretion whether they would first visit New England or reduce
+the Dutch to submission. Having carried out the latter project it
+became necessary at once to organize the captured territory. The
+greater part of Long Island was already occupied by settlers from New
+England and, having obtained copies of the laws of Massachusetts and
+New Haven, Nicolls[21] with the assistance of the secretary and some
+of the magistrates prepared a code which, as a comparison will show,
+drew much of its material from these sources with, in the governor’s
+words, “a relaxation of their severity in matters of conscience and
+religion.” The cruel laws against heretics and against “a pernicious
+sect commonly called Quakers”[22] were omitted, as well as many other
+provisions relating to the Puritan discipline. The “capital lawes”
+were transcribed from the Massachusetts code, which was avowedly based
+on the Old Testament, but the offense of witchcraft was omitted and
+while the clause making it a capital offense for children above sixteen
+years old to curse or smite their parents was retained, the succeeding
+clause, enabling a man having a stubborn or rebellious son to bring him
+to the magistrates to be put to death in accordance with Deuteronomy,
+xxi, 18, was rejected.
+
+As in its prototypes, the code is divided into titles arranged in
+alphabetical order but the classification is neither logical nor
+consistent, a failing noticeable in more modern and more pretentious
+legal productions. Much, however, that was adopted was both valuable
+and practical and, with additions from English and Dutch sources,
+was moulded into a form that perhaps met best the needs of civil
+administration in a newly organized proprietary province. Indeed we
+may recognize in this as well as other provincial codes a kindred
+spirit, which without attempting to exploit many theoretical views on
+jurisprudence, drew upon a common source for so much of English law
+and custom as could reasonably be applied to the social and economic
+conditions of frontier life.
+
+It is most difficult to determine how far the common law was viewed
+as a subsidiary system when not replaced by colonial statutes. The
+accepted theory that the colonists brought with them and adopted so
+much of the common law as was applicable to their condition[23] is not
+wholly borne out by the facts. As the colonies increased in wealth
+and population, as their commercial relations with the mother country
+became more complex, the doctrines of the common law were necessarily
+drawn upon to fill up the gaps in the early legislation, and, as
+friction with the home government increased, the popular party appealed
+more and more to the common law, particularly to Magna Charta, as the
+muniment of political liberty and birthright of Englishmen, an appeal
+which writers such as Blackstone sought to evade by applying to America
+the status of conquered territory.[24]
+
+Even more obscure is the question of the applicability of English
+statutes, but the principle was generally accepted that acts of
+parliament passed after the settlement of a colony were not in force
+there unless the words of the act expressly included the territory
+so occupied,[25] although in some instances local usage would seem
+to have given the force of law to a statute not so extended. The
+subject is difficult and intricate.[26] But at the early period now
+under discussion the tendency was to regard the elementary codes
+as approximately complete statements of the law. For matters not
+covered New England referred to the “Word of God” as contained in the
+Scriptures, while in the south the inclination was to claim a share in
+the laws of England, but in either case the application of these vague
+principles left in the local magistrates a very wide discretion which
+in the absence of professional criticism was checked and restrained
+only by legislative action or the influence of the governor and
+council.[27] In the Duke of York’s Laws the difficulty is met by the
+following clause:--
+
+  “In regard it is almost impossible to provide sufficient Lawes
+  in all Cases, or proper Punishments for all Crimes. The Court of
+  Sessions shall not take further Cognizance of any Case or Crimes,
+  whereof there is not provition made in some Lawes but to remit the
+  Case or Crime, with the due Examination and proof to the Next Court
+  of Assizes where matters of Equity shall be decided, or Punishment
+  awarded according to the discretion of the Bench and not contrary to
+  the known Laws of England.”[28]
+
+An analysis of the substantive provisions of this code, however
+interesting, is outside of the scope of this discussion. It is
+sufficient to note that New York, in passing from the status of a
+proprietary to that of a royal province, came more directly under
+home influences and, as in the case of Virginia, the more radical and
+experimental features of the early laws disappeared in the face of the
+constantly increasing influence of the common law, or what the colonial
+administrator understood as common law.
+
+As to remedial law it was, in the first place, provided that all
+actions of debt or trespass under the value of five pounds between
+neighbors should be put to the arbitration of two indifferent persons
+of the neighborhood to be nominated by the constable, or if either
+of the parties refused their arbitration, the justices of the peace
+should choose three other persons who were to meet at the cost of
+him who dissented from the first method, and their award should
+be conclusive.[29] The practice of referring complicated cases to
+arbitration prevailed in the New Netherlands and this provision
+has been regarded as a survival of the Dutch custom.[30] Voluntary
+submissions were well known at the common law, but the principle of
+compulsory reference was then and still is to a certain extent, looked
+upon askance as an attempt to take away the palladium of liberty--the
+right to a jury trial.[31] Arbitration, as we shall see, occupied
+a prominent place in Penn’s system of justice, was by far the most
+popular method of determining minor civil cases during the early period
+in Pennsylvania, and, though less used now, is still a part of the
+law. In 1677, the court at New Castle referred a dispute concerning
+the estate of a decedent to two arbitrators who were to examine the
+accounts and if possible decide the difference, otherwise to choose an
+umpire and report at the next court day.[32] In 1678 Hendrick Vanden
+Burgh petitioned the court complaining that he had bought a house and
+lot from one Vidette who had purchased from William Tom, deceased;
+that the lot was six feet less in breadth than the deed called for and
+praying that this be added from Tom’s adjoining lot which was about to
+be sold:--
+
+  “The court answer that whereas this business in the Lyfetyme of Jan
+  Vidette & M^r Tom was in question, and then decyded by M^r Moll, M^r
+  Hans Blocq & Capt^n Cregier as umpier and the Peticon^r now haueing
+  in possession soe mutch ground as then the arbitrato^{rs} allowed,
+  must therefore Rest himself Contented w^{th} y^e same.”[33]
+
+The courts were organized on a basis not dissimilar from that which
+already prevailed under the Dutch rule, with modifications suggested by
+the practice in the older English colonies. The principal court was the
+general court of assizes, held once a year in the autumn, presided over
+by the governor, and attended by the council, the mayor and aldermen of
+New York, and the justices of the various courts of sessions.[34] No
+express provision for its creation is to be found in the laws although
+it is there incidentally mentioned, and, while the subject is obscure,
+the court was in fact the successor of that held by the director and
+council of the New Netherlands. The limits of its jurisdiction were
+undefined, and it seems to have combined both legislative and judicial
+functions; indeed it was the closest approximation to a legislature
+that New York was destined to enjoy for some time. The court heard
+appeals from the sessions and complaints against local officials, tried
+the more important civil cases and all capital cases, except where a
+special commission of oyer and terminer was issued to the justices of a
+distant community in order to obtain a more speedy trial.
+
+The procedure on appeal was taken almost literally from the laws of
+Massachusetts relating to appeals to the court of assistants.[35] The
+appellant was required to give security for prosecuting an appeal and
+payment of damages. The grounds and reasons for appeal were to be filed
+with the clerk of the court. No justice that had sat or voted in the
+inferior court was permitted to vote in the court appealed to. Where
+the law and facts were found to agree with the former judgment it was
+not to be revoked, but the damages could be abated or increased as
+should be judged right.
+
+Courts of sessions were established in districts roughly corresponding
+to counties (in the neighborhood of New York called Ridings in
+imitation of the division of the English County of Yorkshire). These
+courts were held three times in the year, and were attended by the
+justices of the peace. The governor, if present, presided, or in his
+absence a member of the council or the senior justice. All actions
+involving from five to twenty pounds were triable at this court,
+from which there was no appeal “unless the debt appear to be above
+that summe of twenty pounds or where there is a dubiousness in the
+expression of the law.”[36] In addition the court was charged with the
+granting of letters of administration, the preservation of the peace,
+the trial of petty offenders, and the usual duties associated with the
+quarter sessions including the granting of liquor licenses, a duty
+still imposed on our quarter sessions to the discomfort of the judges.
+In this connection the law provided:--
+
+  “Every person Licenced to keep an Ordinary shall always be provided
+  of strong and wholesome Beer, of four bushels of malt, at the least
+  to a Hoggshead which he shall not Sell at above two pence the quart
+  under the penalty of twenty shillings, for the first Offence, forty
+  shillings for the Second, and loss of his Licence. It is permitted to
+  any to sell Beer out of the Doores at a peny the Ale quart or under.
+
+  “No Licenced Person shall suffer any to Drink excessively or at
+  unseasonable hours after Nine of the Clock at night in or about
+  any their houses upon penalty of two shillings six pence for every
+  Offence if Complaint and proofe be made thereof.
+
+  “No Licenced Person shall unreasonably exact upon his Guest for any
+  sort of entertainment, and no man shall be compelled to pay above
+  eight pence a Meale, with small beer only, unless the Guest shall
+  make other agreement with the person so lycenced.
+
+  “No Licence shall be granted by any two Justices in Sessions for
+  above the terme of one year, but every person so Licenced before the
+  expiration of the said Terme shall and are hereby enjoyned to repair
+  to the Sessions of that Jurisdiction for renewing their several
+  Licences for which they shall pay to the Clark of the Sessions two
+  Shillings Six pence, or else they shall forfeit five pounds as
+  unlicenced persons.”[37]
+
+Pure food agitation and rate regulation are thus foreshadowed, but not
+prohibition.
+
+In all actions the plaintiff was required to file his declaration eight
+days before hearing.[38] The defendant was permitted to take a copy
+thereof and file an answer. If judgment was entered for plaintiff it
+was endorsed on the declaration, if for the defendant on the answer. As
+in Massachusetts, no proceedings are to be reversed because of errors
+or mistakes “if the person and cause be rightly understood and intended
+by the court.”[39] Imprisonment in civil cases was restricted. No man
+was to be kept in prison for a debt or fine longer than the second day
+of the sessions after the arrest unless it was made to appear that he
+had some estate which he would not produce; if the debtor had no estate
+he could be required to satisfy the debt by service.
+
+In deference to the wishes of the New Englanders settled on Long
+Island provision was made for a town court consisting of the constable
+and overseers. The number of the latter was first fixed at eight
+but was subsequently reduced to four.[40] Their duties were chiefly
+administrative, but, in cases where the parties refused arbitration,
+the town court was to decide the case if less than five pounds was
+involved.[41] The town system, however, was not destined to thrive
+in the middle colonies, and penetrated to the Delaware only in an
+attenuated form.
+
+Last in the official scale was the constable, then, as now, the local
+peace officer. His badge of office was a staff six feet long with
+the king’s arms thereon, which was to be provided at the cost of the
+town,[42] but on the Delaware came out of the slender purse of the
+local Dogberry.[43] Among his other onerous duties he was required to
+whip or punish any one so ordered by authority, “unless they can get
+another person to do it.”
+
+A singular feature of the code was the section relating to jurors. It
+was provided that--
+
+  “No jury shall exceed the number of seaven nor be under six unless in
+  Special Causes upon Life and Death, the Justices shall thinke fitt to
+  Appoint twelve.”
+
+  “A verdict shall be so esteemed, when the major part of the Jury
+  is agreed, and the Minor shall be concluded by the Major without
+  allowance of any protest by any of them to the Contrary; Except in
+  case of Life and Death where the whole Jury is to be unanimos in
+  their Virdict.”[44]
+
+The source of this enactment, although not disclosed, will probably be
+found in a modified form in the Connecticut code of 1650[45] which left
+it to the magistrates--
+
+  “To impannell a jury of sixe or twelve, as they shall judge the
+  nature of the case shall require--and if foure of sixe, or eight
+  of twelve agree, the verdict shall be deemed to all intents and
+  purposes, sufficient and full.”
+
+In confirmation of this view the similar provision of 1665 in regard to
+the town courts may be recalled, where--
+
+  “The constable and overseers are to give their judgment by the Major
+  vote, where six with the constable, or seaven in his absence, are
+  competent and equivolent to a jury, and the constable upon equall
+  Division, is to have a casting voyce.”[46]
+
+In 1666, it was directed that in jury trials at the court of assizes
+the number of jurors should be twelve, but that at the courts of
+sessions the number set forth in the law should be sufficient.[47]
+
+This remarkable deviation from the English jury system was not destined
+to survive. In the records of the court at Upland, to which reference
+will be made hereafter, there is a case concerning title to real estate
+which was tried in 1681 before a jury of seven,[48] but in other cases
+in the same court juries of twelve were drawn, as was the practice also
+of the court at New Castle.[49]
+
+Penn in his laws agreed upon in England provided that all trials
+should be by twelve men, and this was made a fundamental law of the
+province.[50] At the first court held at Lewes for the county of Sussex
+by commission of William Penn the legality of a prior verdict by a jury
+of seven was questioned. The suit was by Hermanns Wiltbank against
+Cornelius Johnson and is stated to be “by way of scarifacous”[51] to
+show cause why the defendant should not give the plaintiff possession
+of certain land.
+
+  “According to An order of Court & verdict of a jurey of Seaven
+  men obtaind in this Court the 8th day of the 1 Mo. 1681. The said
+  Cornelis Johnson showeth cause by his plea delivered into the Court
+  in writing that he had obtained in this court a verdict of a Jurey of
+  twelve men for the said Land and premisses According to the Laws of
+  England; and that the verdict of seaven men was and is Contrary to
+  the knownen Laws of England.”[52]
+
+It was further alleged that Wiltbank had appealed from the former
+verdict against him and had failed to prosecute his appeal. The court
+with the consent of both parties referred the matter to the proprietor.
+At a subsequent court the plaintiff again brought up the matter,
+stating that the governor had confirmed his right to the land but had
+recommended that it should be left to the peacemakers to determine
+whether anything was due the defendant for his improvements. Failing to
+prove his declaration he was nonsuited but afterwards on the advice of
+the court the whole dispute was referred to arbitration.[53]
+
+The Duke of York’s Laws were not put into execution in the territories
+on the Delaware immediately upon their adoption. As already stated,
+the Dutch and Swedish magistrates were retained in office, but it was
+wisely resolved to carry the necessary changes into effect gradually.
+In 1668 Governor Lovelace issued directions to Deputy Governor John
+Carre to associate the schout and certain magistrates with himself as a
+council, and that--
+
+  “The Lawes of the Governmt Establisht by his Royall Highness be
+  shewed & frequently Communicated to the said Councellors & all
+  oth^{rs}. To the end that being therw^{th} acquainted the practice of
+  them may also in convenient tyme be established w^{ch} conduceth to
+  the Public Welfare & Common Justice.”[54]
+
+Under this plan the government was steadily brought into harmony with
+English ideas, the temporary check received in 1673, when the Dutch
+for a few brief months repossessed themselves of the New Netherlands,
+scarcely interrupting this process. At a council held at New York, May
+17, 1672, it was ordered:--
+
+  “That for y^e better Governm^t of ye Towne of New Castle for the
+  future, the said Towne shall be erected into a Corporacon by the name
+  of a Balywick, That is to say, it shall be Governed by a Bailey &
+  six Assistants, to bee at first nominated by the Governor and at y^e
+  expiracon of a yeare foure of the six to go out & foure others to be
+  chosen in their places, the Bailey to continue for a yeare, & then
+  two to be named to succeed, out of whom ye Governo^r will elect one;
+  Hee is to preside in all y^e co^{rts} of the Towne & have a double
+  vote. A constable is likewise annually to be chosen by y^e Bench.
+
+  “The Towne Court shall have power to try all causes of debt or damage
+  to the value of ten pounds without appeal.
+
+  “That y^e English Lawes according to the desire of the inhabitants,
+  bee establish^t both in ye Towne & all plantations upon Delaware
+  River.
+
+  “That the office of Schout be converted into a Sheriffalty & y^e High
+  Sheriffs power extend both in the corporacon & river & that he be
+  annually chosen by two being presented to the Govern^r, of whom he
+  will nominate & confirm one.”[55]
+
+Finally, on September 26, 1676, an ordinance was passed by Governor
+Andros and the council formally introducing the Duke of York’s Laws and
+establishing courts on the Delaware, the material portion of which is
+as follows:--
+
+  “Whereas upon a peticon of the Magistrates and officers of New Castle
+  and Delaware River, Goveno^r Lovelace did resolve & in part settle
+  the Establish Lawes of this Government and appoint some magistrates
+  under an English Denominacon accordingly, In the which their having
+  been an obstruction for reason of the late warres & Change of
+  Government; And findeing now an absolute necessity for y^e well being
+  of the Inhabitants, to make a speedy settlement, to be a generall
+  knowne rule unto them for the future, Vpon mature deliberation
+  and advise of my Councell, I have resolved, and by vertue of the
+  Authority derived unto mee, doe hereby in his Ma^{ties} Name Order as
+  followeth.
+
+  “1. That the booke of Lawes Establisht by his Royal Highnesse &
+  practiced in New Yorke, Long Island, and Dependencies bee likewise
+  in force, and practiced in this River and Precincts, Except the
+  Constables Courts, Country Rates & some-other things peculiar
+  to Long Island, and the Militia as now ordered to remaine in y^e
+  King, but that a constable in each place bee yearely chosen for the
+  Preservacon of his Ma^{ties} Peace with all other Power as directed
+  by y^e law.
+
+  “2. That there bee three Courts held in y^e several (parts of the
+  river) & bay as formerly. To witt one in the Townes (New Castle one
+  above at) Uplands another below at the Whorekil.
+
+  “3. That the said Courts consist of Justices of the Peace whereof
+  three to make a Coram, & to have the Power of a Court of Sessions
+  & decide all matters under twenty pounds without Appeale, in which
+  Court the oldest Justice to preside, unless otherwise agreed amongst
+  themselves above twenty pounds & for crime Extending to life Limbo or
+  Banishment, to admit appeal to the Court of Assizes.
+
+  “4. That all small matters under the value of five pounds may be
+  determined by the Court without a jury unless desired by the Partyes
+  as also matters of Equity.
+
+  “5. That the Court for New Castle bee held once a month, to begin
+  the first Tuesday in each Month And the Court for Uplands & the
+  Whorekill, Quarterly & to begin the Second Tuesday of the Month.
+
+  “6. That all necessary By lawes or orders (not repugnant to the Lawes
+  of the Government) made by the said Courts, bee of force & binding,
+  for the space of one whole yeare, in the severall places where
+  made They giveing an Account thereof to the Governo^r by the first
+  Convenience, And that noe fines be made or imposed but by order of
+  Court.
+
+  “7. That the severall Courts have power to regulate the Court and
+  Offic^{rs} Fees, not to exceed the Rates in the book of Lawes, nor to
+  bee under halfe the Value therein exprest.
+
+  “8. That there bee a high Sheriffe for the Towne of New Castle, the
+  River and Bay: And that the said high Sheriffe have power to make an
+  Under Sheriffe or Marshall being a fitt person, and for whom hee will
+  bee responsable, to be approved by the Court, But the Sheriffe, to
+  act as in England & according to the now practice on Long Island, to
+  act as a principall officer in the Execution of the Lawe, but not as
+  a Justice of the Peace or Magistrate.
+
+  “9. That there bee fitting books provided for the Records in which
+  all Judiciall Proceedings to be duely and fairely Entered, as
+  also all Publick Orders from the Governo^r And the names of the
+  Magistrates & Officers Authorized, with the time of their Admission:
+  the said Records to bee kept in English, To which all persons
+  concerned may have free Recourse at due or seasonable times.
+
+  “10. That a fitt person for Clarke when Vacant, be recommended by
+  each Court to the Governo^r for his Approbacon in whose hands the
+  said Reccords to be kept.
+
+  “11. That all writts, Warrants & Proceedings at Law shall be in his
+  Ma^{ties} Name. It having been practiced in y^e Government ever since
+  the first writing of the Law booke, And being his Royall Highness
+  Speciall pleasure & Order.”[56]
+
+The promulgation of the laws and the more definite instructions for the
+administration of justice must have given general satisfaction, for in
+their communications with the governor the justices seem to have been
+in doubt on many points, and a delay in forwarding copies of the laws
+seems to have given them considerable anxiety. In a letter of June 8,
+1677, the magistrates of New Castle write: “We likewise humbly desier
+that the sending of the Law booke may not be forgot, there being great
+occasions for the same.”[57]
+
+It may be interesting at this point to give a brief account of the most
+important civil suit fought out in the territory on the Delaware at
+this early date, involving the title to Tinicum Island. It was here,
+as we have seen, that the Swedish governor, John Printz, established
+the seat of government, building a block-house, church and private
+residence called Printzhof, the island having been granted to him
+in 1643 by Queen Christina “for a bouwery” as a reward for his
+services.[58] After the Dutch conquest his daughter, Jeuffro Armgart,
+wife of John Pappegoya, the successor of Printz as governor, was on
+her petition, permitted in 1656 “to take possession and cultivate the
+lands of her lord and father.”[59] Jeuffro Armgart as agent for her
+father sold the property on May 29, 1662, to Joost De LaGrange who paid
+one half of the purchase money and entered into possession. Trouble
+occurred at once over payment of the balance. In the latter part of
+1662 a bill of exchange given by LaGrange was protested, Jeuffro
+Armgart recovered judgment and an appeal was taken. Printz died in
+1663 and Jeuffro’s power to act for her sisters was disputed. In the
+meantime the English conquered the New Netherlands, LaGrange died and
+his widow married Andrew Carr who obtained a patent for the island from
+Governor Lovelace in 1669. While the Carrs were abroad, looking after
+an estate they had inherited, Jeuffro Armgart returned with powers
+of attorney from her sisters and brought suit for the balance of the
+purchase money at the court of New Castle. The case was adjourned or
+appealed to the court of assizes at New York, where it was tried on
+October twelfth, 1672.[60] Some of the papers were in “high” and some
+in “low” Dutch and the services of an interpreter were required. The
+defendants’ attorney, Mr. Ryder, protested that Captain John Carr’s
+letter of attorney from Andrew Carr was not sufficient to authorize him
+to defend the suit and moved for a continuance, which was refused. The
+case was sent to the jury, who brought in a verdict for the plaintiff
+for the full amount of her claim upon which judgment was entered. In
+the month of January following the governor and council issued an
+execution directed to Captain Edmund Cantwell, high sheriff at New
+Castle, who was directed to seize the land and goods of the Carrs,
+particularly Tinicum.[61] The latter island was to be appraised and
+if found of less value than the debt, the plaintiff was to be given
+possession and a further levy made on other property of the defendants.
+Jeuffro Armgart was accordingly restored to possession of the island
+which she sold to Justice Otto Ernest Cock. The new owner was, however,
+not to rest in quiet possession. Arnoldus De LaGrange, son of Joost,
+when of age returned to America and settled at New Castle where he
+subsequently became a justice of the peace. Shortly after his return he
+presented to Governor Andros a petition for equitable relief against
+the judgment of the court of assizes, setting forth his infancy at the
+time of the trial and other defects in the proceedings.[62] No answer
+to the petition is recorded but at the last session of the Upland court
+before the transfer of the territory to Penn held June 14, 1681, suit
+was brought by LaGrange against Cock which was postponed to the next
+court “by reason that there’s noe court w^{th}out Justice Otto whoe is
+a party.”[63] The case was finally tried at a court held at Chester 22,
+6 mo. 1683, where LaGrange was represented by Abraham Mann and Cock by
+John White as attorneys in the suit. The plaintiff declared as heir at
+law and the defense was that part of the purchase money had never been
+paid. The verdict of the jury as entered on the record is:--
+
+  “The jury finde for ye Plaint and alsoe give him his costs of suite
+  and fforty shillings damage; the Plaint paying to ye Deft Thirty &
+  seaven pounds & Tenne Shillings, according to an agreement between
+  ye Plaint and Deft produced & read in this court & alsoe delivering
+  ye Block House & pticuters in ye same agreemt mentioned. Judgmt is
+  thereupon awarded.”[64]
+
+Here we have an early, if not the first, example of a conditional
+verdict so popular afterwards in Pennsylvania when an equitable
+defense was raised in an action of ejectment. Execution issued on
+this judgment and LaGrange was put in possession. Less than a year
+afterward he sold the island to Christopher Taylor, the first register
+general, one of whose descendants left a will that gave rise, in the
+nineteenth century, to litigation as long and stubborn as that we have
+recounted.[65] The Printz mansion was destroyed by fire in 1822 but
+it is said that on the site ancient bricks of a foreign make and pale
+yellow color have been found which were once a part of this venerable
+structure.[66]
+
+It would seem from the above proceedings and from an order of Governor
+Andros of July 17, 1678,[67] that lands were regarded as liable for
+debts, contrary to the common law where the creditor’s only remedy was
+by writ of elegit under which one half of the rents could be taken.[68]
+Penn’s first legislation subjected lands to execution to a limited
+extent, but not until 1700 was the whole land made liable where no
+personal property could be found.[69]
+
+That land was subject to seizure for debts under the Dutch rule is
+indicated by the following extract from the minutes of Jacquet’s court,
+February 14, 1657:--
+
+  “Isack Allerton has had seized by the Court Messenger subject to the
+  decision of the Hon^{ble} Council, the immovable property belonging
+  to Peter Hermausen here on the river.”[70]
+
+From such records as have escaped destruction we are enabled to present
+a fair outline of the actual practice in these primitive tribunals,
+presided over by laymen and unembarrassed by the conflicting arguments
+of professional lawyers. An adequate notion of the crudity of the
+proceedings can be conveyed only by examples from the records which
+were kept in the most informal fashion. Sometimes the entries are
+limited to the names of the parties and the judgment, while in other
+instances there is a summary of pleadings and evidence. While the names
+of common law actions, such as debt, case and replevin, are used there
+is little to indicate that judges or parties had more than a very vague
+conception of their scope and distinctions. Thus, there is an entry of
+“an action of the Case for twoo peeces of marrish & y^e hay thereon
+mowed.”[71] Appeals to New York were frequent and were sometimes
+specially allowed by the governor, as would appear from the following
+example:--
+
+  “By the Governor
+
+  “Upon the request of Hans Pieterson, concerning several Judgm^{ts} of
+  the Courts of New Castle & Upland in Delaware in a case between the
+  sd Pieterson & D^o Lawrentius Carolus, concerning a certain Mare,
+  The Jureys tho’ composed in part of the same Persons, yet brought
+  in several Verdicts, the Courts having given different Judgm^{ts}
+  accordingly, & it not appearing by any Testimonies what Mare was in
+  Difference; I do therefore hereby Order, that the Execucons in s^d
+  Matter be Suspended, & a full Acco^t of all s^d Proceeding in both
+  Co^{ts} be forthwith sent me.
+
+  “Actum in New York this 28th day of July, 1677.
+
+                                         “E. ANDROS.
+
+  “To the Courts of New Castle and Upland & all Officers in Delaware
+  whom it may concern.”[72]
+
+Such appeals were heard at the general court of assizes in the city of
+New York, the minutes of which present a spirited picture of assembled
+worthies. One appeal from a judgment of the court at the Whorekill
+concerning the title to a tract of land was tried in 1680 before the
+following distinguished company: the governor, Sir Edmund Andros,
+five members of the council, the mayor and five aldermen of New York,
+the chief justice of Nantucket, the two commissaries of Albany, three
+justices from New Jersey, two from “Peniquid and parts eastward,”
+and a dozen more from Long Island and New York. The judgment of the
+lower court was affirmed at the cost of the appellant.[73] On another
+occasion (in 1681) a case was tried in which the defendant, one of the
+justices of the court at New Castle, was accused of misconduct in his
+office.
+
+  “M^r John Moll Justice of the Peace and President of the Court at
+  Newcastle being called to Answer to an Indictment Exhibitted against
+  him by one Abram Mann for severall Words and Expressions by him
+  said to be uttered and spoken in Court and at other Times, To which
+  the said John Moll pleaded not Guilty, and a jury being Impanelled
+  and Sworne with several Evidences they brought in their Verdict and
+  found him guilty of Speaking the Words mentioned in the first and
+  second Articles and of Denying Execution when demanded, menconed
+  in the fourth Article, and for the rest not Guilty, the which the
+  Court taking into Consideration Do adjudge the said Indictment to
+  be illegal and vexatious and that the said John Moll by what found
+  against him is not Guilty of any Crime or Breach of any known Law
+  Therefore do Acquitt the said John Moll from the same and Order the
+  said Abram Mann to Pay the Costs of Court. The said Mann moved for an
+  Appeale for England which is granted he giving sufficient Security to
+  the value of One Thousand Pounds to Prosecute the same and pay damage
+  to the Party if lost.”[74]
+
+It is interesting to note that the parties to this suit were afterwards
+prominent in Penn’s government. Justice Moll became a member of the
+first provincial council and was one of the committee that drew up the
+amended frame of government, or charter of 1683, while Abram Mann was a
+member of the assembly from New Castle in the sessions of 1684-5.
+
+It would not do to omit mention of the first state trial, if it may
+be so called, that was held on the Delaware. Near the close of 1669 a
+disturbance was created by one Marcus Jacobson, alias John Binckson,
+but better known as “Long Finne,” who pretended to be a son of
+Conningsmark, a Swedish general. Whether this so-called insurrection
+was a serious attempt to overthrow the government, or a mere riotous
+or seditious disturbance, it was treated with the utmost seriousness
+by Deputy Governor Carr as well as Governor Lovelace. An order for the
+Finne’s arrest was issued, and he was put in irons, while the other
+persons implicated were bound over for court. At a meeting of the
+council in New York on October 18, 1669, it was resolved:--
+
+  “Vpon serious & due Consideracon had of the Insurrection begann
+  by ye Long Finne at Delaware, who gave himself out to bee son of
+  Coningsmarke a Swedish Generall & y^e dangerous consequences thereof,
+  It is adjudged that y^e said Long Finne deserves to dye for the same.
+  Yet in regard that many others being concerned w^{th} him in that
+  Insurrection might be involved in the Premunire if the rigour of the
+  Law should be extended & amongst them divers simple and ignorant
+  People: It is thought fitt and Ordered, that the said Long Finne
+  shall be publickly & severely whipt & stigmatiz’d or branded in
+  the fface with the Letter (R) with an Inscription written in great
+  Letters & putt upon his Breast, That he received that Punishment for
+  Attempting Rebellion, after wh^{ch} that hee bee secured untill hee
+  can bee sent & sold to the Barbadoes or some other of those remote
+  Plantations.”[75]
+
+But after deciding upon his fate, it was determined to try him
+according to the forms of law and a special commission was issued to
+Mathias Nicolls and others to try him, whose instructions were to hold
+the court according to a prescribed form, which presents an excellent
+picture of the practice then followed in a criminal trial.
+
+  “The forme of holding the Co^{rt} at the Fort in Newcastle upon
+  Delaware River for the Tryall of the Long Finne &c. about the late
+  Insurrection, Decem. y^e 6th 1669.
+
+  “Vpon the meeting of the Court let a proclamation bee made by saying,
+  O yes, O yes, O yes, Silence is commanded in the Co^{rt} whilst his
+  Ma^{ties} Commissioners are sitting Vpon paine of imprisonment.
+
+  “Lett the Commission be read & the Commission^{rs} called vpon
+  afterwards, if any shall bee absent Let their names bee recorded.
+
+  “Then let the proclamacon bee made again by O yes, as before, after
+  which say: All manner of persons that have anything to doe at this
+  speciall Co^{rt} held by Commission from the Right Ho^{ble} Francis
+  Lovelace Esq. Governo^r Genr^l vnder his Royal Highness the Duke
+  of York of all his Territories in America draw neare to give yo^r
+  attendance, and if any one have any plaint to enter or suite to
+  prosecute let them come forth & they shall bee heard.
+
+  “After this let a jury of twelve good men bee empannelled.
+
+  “Then let the Long Finne prisoner in the Fort bee called for &
+  brought to the Barr.
+
+  “Vpon which the jury is to be called over & numbered one, two &c. &
+  if the prisoner have no exception against either of them let them bee
+  sworne as directed in the Booke of Laws for Tryall of Criminals, and
+  bid to look vpon the prisoner at the Barre.
+
+  “The forme of the oath is as followeth: You do swear by the
+  Everliving God that you will conscientiously try and deliver your
+  verdict between o^r Sovaraigne Lord the King, & the prisoner at the
+  Barre according to evidence & the lawes of the Country, so helpe you
+  God & the contents of this booke.
+
+  “Then let the prisoner bee again called vpon and bid to hold up his
+  right hand:
+
+  “Viz. John Binckson alias Marcus Coningsmark alias Coningsmarcus
+  alias Mathew Hincks....
+
+  “Then proceed with the indictment as follows:
+
+  “John Binckson, Thou standest here indicted by the name of John
+  Binckson alias Coningsmark alias Coningsmarcus alias Mathews Hinks,
+  alias, etc. for that having not the feare of God before thine eyes
+  but being instigated by the devill vpon or about the 28th day of
+  August in y^e 21st year of the Raigne of o^r Soveraigne Lord Charles
+  the 2d by the Grace of God of England Scotland, France and Ireland,
+  King, Defender of the Faith &c. Annoque Domini 1669, at Christina &
+  at severall other times & places before, thou didst most wickedly,
+  traitorously, feloniously & maliciously conspire and attempt to
+  invade by force of armes this Government setled vnder the allegiance
+  and protection of his Ma^{ties} & also didst most traitorously
+  solicit & entice divers & threaten others of his Ma^{ties} good
+  subjects to betray their allegiance to his Ma^{ties} the King of
+  England persuading them to revolt & adhere to a forraign prince,
+  that is to say, to the King of Sweden In prosecution whereof thou
+  didst appoint and cause to bee held Riotous, Routous & Vnlawfull
+  Assemblyes, breaking the Peace of o^r Sovereign Lord the King and the
+  laws of this Government in such cases provided John Binckson &c what
+  hast thou to say for thyself, Art thou guilty of the felony & treason
+  layd to thy charge or not guilty. If hee says not guilty, then ask
+  him By whom wilt thou be tryed. If hee say be God & his countrey,
+  say, God send the a good deliverance.
+
+  “Then call the witnesses and let them bee sworne either to their
+  testimony already given, in or to what they will then declare upon
+  their oaths.
+
+  “Vpon which the jury is to have their charge giving them directing
+  them to find the matter of Fact according to the Evidence and then
+  let them bee called over as they go out to consult upon their verdict
+  in which they must all agree.
+
+  “When the jury returns to deliver in their verdict to the Co^{rt}
+  let them bee called over againe & then ask^t: Gent^s, are you agreed
+  upon your verdict in this case in difference between o^r soveraign
+  Lord the King & the prisoner at the Barr. Upon their saying yes aske
+  who shall speak for you. Then the ... bring in their verdict & the
+  ... then read the verdict and say: Gentlemen, this is y^r verdict
+  upon which you are all agreed; upon their saying yes, call that the
+  prisoner bee taken from the barre & secured.”[76]
+
+As a matter of course the Finn was convicted and sentenced. The last we
+hear of him is in this minute of the council, January 25, 1669-70:--
+
+  “This day ye Long ffinne called Marcus Jacobsen was by warrt put on
+  board Mr. Cosseans Ship called y^e Fort Albany to be Transported &
+  sould at y^e Barbadoes according to y^e sentence of Court at Delaware
+  for his attempting rebellion. He had beene a prisoner in y^e State
+  house ever since y^e 20th day of Decemb^r last.”[77]
+
+We are fortunate in possessing portions of the records of the
+county courts during this period. That of Upland is particularly
+interesting as presenting a complete record of the first county
+court on Pennsylvania soil from the year 1676 to the announcement,
+in June, 1681, of the transfer of the government to William Penn. In
+the commissions issued by the governor six justices of the peace are
+named, any three or more of whom may hold court, the commissions to be
+in force for one year or until further order. It would be tedious to
+recite the manifold duties performed by the justices, whose functions
+included those now delegated to the county commissioners, directors of
+the poor and auditors as well as those pertaining strictly to their
+judicial office. They granted applications for taking up land, took
+acknowledgments of deeds, and exercised a general supervision over the
+churches, the repair of the highways, the maintenance of fences, the
+sale of the time of bound servants, and even recorded the earmarks of
+cattle.
+
+The expenses connected with the sittings of the courts were supposed to
+be met by the fees and fines imposed, but these were not always easily
+collected and the Upland justices record in one place that they are “in
+great want of some meanes to pay and defray their necessary charges of
+meat and drinke.”[78] The court at the Whorekill, the name of which had
+been changed to Deal, made this clever bargain:--
+
+  “It is agreed and Concluded upon by the Court and Alexander
+  Moulston as followeth; that from the first day of this moneth the
+  said Alexander Moulston shall have to his owne proper use all the
+  Amacements that doe from that day becom due to the court for one
+  whole yeare; and that the said Alix Moulston doe Ingage to find and
+  allow the Justices of this Court for the time being and there friends
+  and strangers with house roome and diett And one gallon of Rum and
+  wine for every Court during the said year.”[79]
+
+Actions for the recovery of debts, for assault and battery and slander
+predominate. It would seem that the judges sometimes found it necessary
+to appeal to their own tribunal, as the following case shows:--
+
+    “Justice Otto Ernest Coch Plt.      { In an action of slaunder
+    “Moens Petersen Staecket Deft.      {     & defamat.
+
+  “The p^{lt} Complaines that this deft. maliciously has defamed and
+  most highly slaundered him in his Honor & reputation by terming him
+  a hogh theef, desires that this deft (if hee or any others can) will
+  prove ye same, or otherwayes that hee may bee punisht according to
+  Lawe.
+
+  “The deft sayes and protests, that hee never Knew heard or sawe, that
+  this Plt was guilty of any such fact, and that hee to his knowledge
+  never sayed any such thing, but if that he hath sayed itt (as the
+  witness doe afirme:) that itt must haue been in his drink, hee humbly
+  desires forgivenesse, sence hee finds himselfe in a great fault;
+
+  “Hans Jurian, william orian & andries homman sworne in Co^{rt}
+  declare that they haue heard moens Peterss Staecket say in full
+  tearmes & substance, Mr. Otto is a hogh theef of ye one & andries
+  Boen of ye other syde & further say nott;
+
+  “The Court haueing heard ye Case doe order that ye deft: shall
+  publicqly in open Court declare that hee has wrongfully falsly &
+  malisiously slaundered & blamed this p^{lt} and doe further fyne him
+  for an Example to others to pay the sume of one thousand gilders
+  w^{th} the Costs;
+
+  “The deft. did willingly in open Court, declare as above & humbly
+  desires forgivenesse & prayes that ye fyne may bee remitted, Upon ye
+  Intercession of Justice Otto Ernest, the Co^{rt} did remit ye fyne
+  above^d.”[80]
+
+Judgments are entered sometimes in guilders and stivers and sometimes
+in pounds of tobacco, wheat or other products. In one case at Upland
+the court ordered the defendant to pay the plaintiff “twenty gilders in
+wheat and twenty six in pompkiens.”[81]
+
+A case, showing the primitive practice, from the commencement to the
+termination of a suit, is that of--
+
+  “James Sanderlins plt
+        ags^t
+
+  “John Edmunds of
+       maryland Def^t
+
+  “The plt demands by bill from this deft. ye sume of 1200 lb of good &
+  merchandable Tobbacco & Caske to bee paid in Great Chaptank River in
+  maryland on all demands after ye 10th of october 1675; as by the said
+  bill under ye hand and seale of the def^t bearing date ye 9th of June
+  1675; & produced in Court did more att Large appeare, the plt further
+  declaring & prooveing in Court that hee hath made severall Legall
+  demands of the s^d debt, and y^e the same was not paid to this day,
+  desiering that this Co^{rt} would be^e pleased to grant him Judgem^t
+  ag^{st} ye de^{ft} and to allow of his attachment Laid upon a
+  certaine great Boate or shiallop & appurtenances now att upland--That
+  the same might bee publicqly sould and the p^{lt} payed his Just due
+  w^{th} ye Costs;
+
+  “m^r walter wharton one of the witnesses to ye sd bill being sworne
+  in Court declared that hee was p^{rsent} and did see John Edmundsen
+  signe seale and deliver, the abovesaid bill of 1200 lb of Tobacco, to
+  James Sanderlins;
+
+  “The Court haueing Examined into ye businesse, and finding the
+  Case to bee Just, did order that Judgment bee Entered against the
+  deft: John Edmunds, for the paym^t of ye sd. 1200 lb of Tobacco,
+  or the True vallue thereof, and alloweing of ye Plts attachm^t doe
+  hereby order the vendu master, to sell the boate & appurtenances,
+  this Courtday to the most bidders, out of which hee to pay James
+  Sanderlins his debt w^{th} ye Costs, and the overplus to bee returned
+  to John Edmunds or his order;
+
+  “According to the aboves^d order of Co^{rt} was this day being ye
+  12th of Novembr, by publicq outcry sould unto m^r John Test, as ye
+  highest bidder the boate & appurtenances for ye sume of six hundred
+  and twenty fyve gilders; to bee paid in New Castle with merchandable
+  Tobbacco & Caske dutch w^{th} & tarr att 8 styvers pr lb or w^{th}
+  merchandable wheat at 5 gilders pr schipple att or before ye Laest
+  of march next Ensuing, as by the Conditions of sale upon ye fyle att
+  Large doth & may appeare;
+
+  “James Sanderlins bound himselfe as security for ye true payment of
+  ye aboves 625 gilders according to the conditions.”[82]
+
+As these proceedings occurred all on one day, the parties could not
+complain of the delays of the law. What would appear to be the first
+recorded action for negligence is entered as follows on the New Castle
+records:--
+
+  “Mounes Powell plt
+
+  “Hans Pietersen Deft
+
+  “The p^{lt} declares that this de^{ft} about one Jeare sence was the
+  occascon that he the plt lost the use of his boddy so that he was &
+  is not able to worke for his wife and family and therefore humbly
+  craves that the de^{ft} may be ordered to hire a servant for him
+  until he bee restored to health:--The court having heard the answer
+  of the deft and finding by the evidence sworne in court, as also by
+  the p^{lt} owne confession that itt was an accidental mischange, doe
+  order that the deft shall pay the curing to the doctors bill this
+  date and moreover Pay unto the p^{lt} in regard of his smart and
+  Payne w^{ch} the p^{lt} hath suffered the sume of one hundred and
+  fifty gilders and pay cost of sute.”[83]
+
+In another case in 1679 a mortgage is foreclosed:--
+
+  “John Moll P^{lt}
+
+  “Robberd Hutchinson Def^t
+
+  “The P^{lt} declares that one Daniel Linsy being his debtor the
+  sume of 847 lb of Tobacco & Caske did on y^e day of 167; mortgage
+  Trasport & make over unto this P^{lt} a Certain peece of Land Lying
+  in Appoquenemen Creeke, above y^e old Landing w^{ch} s^d mortgage
+  and Transp^{rt} was to bee void upon y^e payment of y^e s^d 847 lb
+  of tobbatt y^e time in y^e s^d deed Exprest, as by the s^d mortgage
+  bearing date as above more att Largedid appeare and that this deft
+  Robberd hutchinson, haueing sence bougt the s^d Land from y^e s^d
+  Linsey did promise to pay y^e P^{lt} his s^d debt w^{ch} being nott
+  performed, The P^{lt} is now forced to Commence his action in Lawe,
+  and humbly Craues this Co^{rts} order so that hee may haue y^e
+  forfeiture and benefitt of his afores^d mortgage and that hee may bee
+  put in peaceable Possession of the s^d Land according to s^d deed.
+  The Co^{rt} haueing Examined the premises doe Judge that according to
+  Lawe and the s^d deed the Land aboves^d is forfeited and belonging to
+  y^e P^{lt} and therefore do order that the P^{lt} bee put in Lawfull
+  Possession thereof.”[84]
+
+A case that perplexed the justices at Deal involved a gambling contract.
+
+  “Henry Bowman P^{lt}, James Welles and John Newall defts. The
+  P^{lt} declare that the defts did contract & agree w^{th} him to
+  Run A horse Race for three thousand pounds of Tobacco; and that he
+  the said P^{lt} ded wine; the deft pleaded that the Contract was
+  not confirmed, the cause being debated on both sides and severall
+  witnesses Examined the Cause was Referred to a Jurey; w^{ch} went out
+  and brought in there verdict; that they finde for the p^{lt} with
+  Cost of suit and one shill Damages; and the defts arest the Judgmt
+  of the Court & craved an Appeale to have the Cause to be Tryd at the
+  next Gennarall Court of Assisses at New York befor the Honorable
+  Governor and Councell; the vallow being under twenty pounds the Court
+  Could not agree weather it was appealeable or not; and soe refered
+  the same untill the next Court; there being sume thing dubous in the
+  Testament of the Wittnesses.”[85]
+
+A competent authority has remarked, “the whole method of practice
+was rather a dispensation of justice, as the idea of it existed in
+the heads and was tempered by the hearts of the judges, than the
+administration of any law written or unwritten.”[86] And yet when we
+remember that these men were all laymen, pioneers on the border of the
+wilderness, whose true business was to clear the forests and till the
+soil, and whose judicial office was a burdensome duty, performed at
+a considerable sacrifice of time and money in the interest of their
+little communities, that they were without books or forms and sometimes
+without blank books in which to write their records, we may wonder that
+they did so well.[87] The justices of these courts as members of the
+provincial council, as assemblymen, and as judges, played their part
+in the “Holy Experiment” heralded in the last entry in the Upland
+records. This entry, the last official act under the Duke of York’s
+administration, is a notice to the magistrates of the cession of the
+territory to William Penn and a direction that they should yield due
+obedience to the new proprietor. Here then it is that the histories of
+the commonwealths of Pennsylvania and Delaware begin, if commonwealths
+may be said to have a beginning.
+
+On March 4, 1681, the province of Pennsylvania was granted by King
+Charles II to William Penn, son of Vice Admiral Penn, to whom a
+considerable debt was then owing by the Crown.[88] It would be tempting
+at this point to turn aside and discuss the character and career of
+the remarkable man who founded the commonwealth of Pennsylvania. Much
+has been written about him and yet it is doubtful if he has received
+his real due from history. William Penn was an idealist, perhaps
+in some respects a visionary man, and yet many of his views were
+eminently sensible and fundamentally sound. The leader of an exclusive
+religious sect, the welcome guest at court, the friend alike of James
+II, of Algernon Sydney and of John Locke, a man of brilliant parts and
+attractive personality, yet modest, generous, tolerant and forgiving,
+the nobility of his character as revealed in his writings and conduct
+is worthy of our highest admiration, little as it was appreciated by
+those who, like Franklin, owed much of their prosperity to his “Holy
+Experiment,” but could not understand his motives. To his enlightened
+benevolence and faith in mankind, civilized and savage, was due the
+early prosperity and progress of the commonwealth. As a German writer
+has well observed, “Of all the colonies that ever existed none was
+ever founded on so philanthropic a plan, none was so deeply impressed
+with the character of its founder, none practised in a greater degree
+the principles of toleration, liberty and peace, and none rose and
+flourished more rapidly than Pennsylvania. She was the youngest of the
+British colonies established before the eighteenth century, but it was
+not long before she surpassed most of her elder sisters in population,
+agriculture and general prosperity.”[89]
+
+An analysis of the charter granted to Penn belongs rather to
+constitutional history than to our subject. The English government
+was daily becoming more impressed with the importance of the colonies
+in America, and in consequence the document was drawn with more care
+for the royal prerogative than the earlier charters. One of the most
+important of its provisions was that requiring a transcript of all
+laws made and published in the province to be transmitted within five
+years to the privy council, and if within six months such laws should
+be declared inconsistent with the king’s prerogative or sovereignty,
+the same should be declared void, otherwise to remain in full force.
+Penn was given full power to make laws, with the advice and consent of
+the freemen of the country or their deputies in assembly, to appoint
+judges, justices and other judicial officers, to pardon crimes,
+treason and willful and malicious murder excepted, and to “do all and
+every other thing and things which unto the complete establishment of
+justice, unto courts and tribunals, forms of judicature and manner of
+proceedings do belong,” and by judges appointed, to award process, hold
+pleas and determine all actions, suits and causes whatsoever, as well
+criminal as civil, personal, real and mixed. By three deeds the Duke
+of York conveyed to Penn the territory covered by the charter and the
+three lower counties.
+
+On April 10, 1681, Penn commissioned his cousin, William Markham, to
+be deputy governor, who arrived on the Delaware about the first of
+July following. His first act was to call a council and on November
+30th we find him holding court at Upland. Prior to this we have the
+first entry in the records of the Upland Court as part of the province
+of Pennsylvania.[90] Nine justices are recorded as present. The first
+cases tried were two cross actions of assault and battery in which all
+parties were convicted and fined.[91]
+
+Before sailing for America Penn drew up his famous “Frame of
+Government,” the original manuscript of which, with interlineations and
+notes in the handwriting of his friends, is preserved in the archives
+of the Historical Society of Pennsylvania.[92] Penn was a close student
+of political institutions and lived at a time when, in his own words,
+there was “nothing the wits of men are more busy and divided upon.”
+He like many of his coreligionists had suffered imprisonment for
+conscience sake. The account of his trial is a fair picture of the
+administration of justice in the principal criminal court of London
+during the Stuart period.[93] When we read those stirring pages we
+can understand the suspicion with which the courts were regarded by
+the colonists and their exaggerated faith in trial by jury. Fear of
+judicial oppression, in fact, had a marked influence on the development
+of our courts, was instrumental in checking the growth of chancery
+jurisdiction for several generations and was the primary cause of that
+jealousy of the judiciary which was long a feature of local politics.
+
+Penn, although he had grown up in a period of political unrest, was
+eminently practical in his ideas of government. He was a believer in
+men rather than in methods. In the preface to the Frame of Government
+he says:--
+
+  “But lastly when all is said, there is hardly one frame of government
+  in the world so ill designed by its first founders, that in good
+  hands would not do well enough; and story tells us, the best in ill
+  ones can do nothing that is great or good; witness the Jewish and
+  Roman states. Governments, like clocks, go from the motion men give
+  them, and as governments are made and moved by men, so by them they
+  are ruined too. Wherefore governments rather depend upon men, than
+  men upon governments. Let men be good, and the government cannot be
+  bad; if it be ill, they will cure it. But if men be bad, let the
+  government be never so good, they will endeavor to warp and spoil to
+  their turn.”[94]
+
+Under the system of government first established by Penn the executive
+powers were vested in the governor and provincial council, while the
+legislative powers were vested in the governor, provincial council and
+general assembly of the representatives of the freemen of the province.
+The provincial council was an elective body not only associated with
+the governor in the ordinary executive duties but also charged with
+the preparation of all new laws, which after publication,[95] were to
+be submitted to the general assembly for approval. Both council and
+assembly were designed on generous proportions but at the request of
+the colonists the membership in both bodies was greatly reduced.[96]
+The courts were to be erected by the governor and council, the latter
+body nominating a double number of candidates from whom the governor
+was to select a proper number for each office. This last provision did
+not work well in practice, as it was difficult to get enough men of the
+right sort to fill the commission of the peace, as the minutes of the
+council clearly show.
+
+It will be seen that the courts, as such, played but a subordinate part
+in the constitutional system. Indeed the conception of the judiciary
+as a coördinate branch of the government was as yet unrealized;
+balanced constitutions were the final products of the eighteenth
+century, the seventeenth was concerned with the fundamental rights,
+liberties and privileges of the subject. These rights, as applied in
+the administration of justice, were embodied in the “Laws agreed upon
+in England,” and published with the Frame of Government. It is therein
+declared--
+
+  “That in all courts all persons of all persuasions may freely
+  appear in their own way, and according to their own manner, and
+  there personally plead their own cause themselves, or if unable, by
+  their friends. And the first process shall be the exhibition of the
+  complaint in court, fourteen days before the trial; and that the
+  party complained against may be fitted for the same, he or she shall
+  be summoned no less than ten days before, and a copy of the complaint
+  delivered him or her, at his or her dwelling house. But before the
+  complaint of any person be received, he shall solemnly declare in
+  court, that he believes in his conscience his cause is just.
+
+  “That all pleadings, processes, and records in courts, shall be
+  short, and in English, and in an ordinary and plain character, that
+  they may be understood, and justice speedily administered.
+
+  “That all trials shall be by twelve men, and as near as may be peers,
+  or equals, and of the neighborhood, and men without just exception.
+  In cases of life, there shall be first twenty four returned by the
+  sheriff for a grand inquest, of whom twelve at least shall find
+  the complaint to be true; and then the twelve men or peers, to be
+  likewise returned by the sheriff shall have the final judgment. But
+  reasonable challenges shall be always admitted against the said
+  twelve men or any of them.
+
+  “That all fees in all cases shall be moderate, and settled by the
+  Provincial Council and General Assembly, and be hung up in a table
+  in every respective court; and whosoever shall be convicted of taking
+  more, shall pay two-fold, and be dismissed his employment, one moiety
+  of which shall go to the party wronged.”[97]
+
+These provisions were enacted into law at assemblies held December 10,
+1682,[98] and March 1, 1683.[99] Indeed the first and third paragraphs
+were at the latter session, included among the “fundamental laws” not
+to be altered without the consent of the governor and six-sevenths of
+the freemen of the province.[100] This early attempt to discriminate
+between the general body of law and certain laws which were regarded
+as “more essentially requisite” to the well being of the state is
+of interest to the student of constitutional law. It shows that
+at this early period the feeling was present that some laws, not
+necessarily political, ought to be marked out for a special sort of
+permanence; a feeling that has led to the development of the modern
+state constitution, absurdly complex and overloaded with non-political
+details.
+
+Notable, also, are the provisions for the commencement of actions by
+an informal complaint and for brevity and simplicity in the pleadings
+and court records, which although in keeping with the primitive local
+custom were as code provisions a radical departure from the common law,
+too radical, in fact, to withstand the growth of professional feeling
+in the eighteenth century. Penn’s more liberal contemporaries would not
+have thought of imposing upon a raw community the artificial system
+of England in its entirety, but few would have committed themselves
+to so radical a stand for permanent reform. As it happened lawyers
+soon emigrated to the province, bringing with them their cherished
+technicalities, and the old forms slowly but surely crept into use.
+Penn, indeed, was too much of a utilitarian to fully realize how deeply
+even the more cumbersome and fantastic features of the common law were
+rooted in the habits and customs of the people. We are reminded of his
+famous colloquy with Mr. Recorder Howell at his trial:--
+
+  Penn. “I desire you would let me know by what law it is you prosecute
+  me and upon what you ground your indictment.”
+
+  Recorder. “Upon the common law.”
+
+  Penn. “Where is that common law?”
+
+  Recorder. “You must not think that I am able to run up so many years
+  and over so many adjudged cases which we call common law to answer
+  your curiosity.”
+
+  Penn. “This answer I am sure is very short of my question for if it
+  be common, it should not be so hard to produce.”
+
+Penn, like Bentham, would seem to have the best of the argument, but a
+century and a half passed before New York broke the chains of tradition
+in the code of 1848.
+
+After a “prosperous passage of about two months,” Penn arrived before
+New Castle on the twenty-seventh of October, 1682, and demanded livery
+of seisin from the commissioners appointed by the Duke of York. The
+ceremony took place on October twenty-eighth and is thus reported by
+John Moll:--
+
+  “Whereupon by virtue of the power given unto us by the abovementioned
+  letters of attorney, we did give and surrender in the name of his
+  royal highness, unto him the said William Penn, Esq., actual and
+  peaceable possession of the fort of New Castle, by giving him the
+  key thereof, to lock upon himself alone the door, which being opened
+  by him again, we did deliver also unto him one turf, with a twig
+  upon it, a porringer with river water and soil, in part of all what
+  was specified in the said indenture or deed of enfeoffment from
+  his royal highness, and according to the true intent and meaning
+  thereof.”[101]
+
+One of his first acts, after taking possession, was to commission
+six justices of the peace for New Castle and to send out notices for
+the holding of a court.[102] At this court, which was attended by
+several of the council, as well as the justices, Penn delivered an
+address stating his purpose to call an assembly and recommending the
+magistrates, in the interim, to follow the laws of the Duke of York.
+Before the end of the year the province of Pennsylvania was divided
+into three counties, Philadelphia, Bucks, and Chester (which replaced
+Upland), and the lower territories into three also, New Castle, as
+before, while of the two counties into which the Whorekills had been
+divided, Deal became Sussex, and St. Jones, Kent. The county courts
+continued as already constituted, and for some time the boards of
+justices, therein assembled, exercised most of the functions of
+local government, such as the assessment of taxes, the erection of
+jails, the allotment of land to settlers and the abatement of public
+nuisances.[103] The number of justices in any county varied from time
+to time with the pressure of business, the willingness or ability of
+those chosen to perform their duties or the favor of the council.
+Sometimes a man of importance was commissioned as justice for the whole
+province.
+
+Under the Duke of York’s laws the attendance of the justices was
+enforced by a fine of ten pounds for every day’s absence, and there are
+entries of such fines in the records of the courts.[104] Under the Act
+of May 10, 1685, (ch. 176) the same policy was continued, but the fine
+reduced to thirty shillings. When possible the justices were assisted
+by the presence of the governor, members of the council or judges of
+the provincial court, after its establishment, all of whom were _ex
+officio_ of the commission of the peace. In the minutes of the court
+of Bucks County it is noted that on the 4th and 11th day, 1 mo., 1683,
+the governor, William Penn, was present and held an orphans’ court. The
+county courts with their vague and indefinite jurisdiction in civil and
+criminal causes and county affairs would seem to have been regarded
+with favor by Penn, who was averse to complicated procedure; hence at
+the first assembly held at Chester, December 7, 1682, there is little
+said of the courts, although in the “Great Body of Laws” then adopted
+will be found most important modifications of the common law both as to
+persons and property.[105]
+
+At the session, in March, 1683, it was enacted that in every precinct
+three persons should yearly be chosen as common peacemakers, to whom
+differences might be submitted for arbitration and whose findings
+should be as conclusive as those of the county court. In the minutes
+of the provincial council, 7th, 9 mo., 1683, will be found a case
+“referred to the peacemakers and in case of refusal to the County
+Court.”[106] Voluntary arbitration was then an accepted method
+of settling disputes in England, particularly in cases involving
+merchants’ accounts, enforced by bond conditioned to submit to the
+award, and arbitration, by rule of court, was adopted by Statute 9
+and 10 William III, ch. 15. We have also seen that from the earliest
+period the practice prevailed in New York and its dependencies. The
+office of peacemaker, however, seems to have survived only until 1692
+when the assembly decided that the law was not in practice. Arbitration
+was long a popular method of trying cases and beginning with the Act
+of January 12, 1705,[107] a law for reference by rule of court in the
+spirit of the statute of William III, there is a long series of acts
+perfecting this method of disposing of litigation. The early dockets of
+the supreme and common pleas courts are full of rules for references
+and voluntary submissions.
+
+At the session of 1683 it was enacted that the first process in every
+suit should be the exhibition of a complaint _fourteen_ days before
+trial, that the defendant should be summoned _ten_ days before trial
+and furnished with a copy of the complaint, which was required to be
+delivered to him at his dwelling house. The jurisdiction of the county
+courts was also more clearly defined.
+
+  “That all actions of debt, Accompt, or Slander, and all actions of
+  Trespass, shall be henceforth first tryed by there respective County
+  Court, where the Cause of action did arise.
+
+  “And if any person shall think himself aggrieved with the Judgement
+  of the County Court, That then, such person may Appeal to have the
+  same tryed before the Governour and Council; Provided always that
+  the same be above twelve lbs. And that the person appealing, do put
+  in good, and sufficient Security, to pay all Costs and Damages, if
+  hee shall be cast, as also to pay the Cost and Charges of the first
+  Suit.”[108]
+
+The legislative activity of Penn and the assembly during the early days
+of the colonization of Pennsylvania was such as to render it difficult
+to follow all the changes in procedure. No colony started with a more
+complete and original code, but much was necessarily experimental and
+was gradually modified under the influence of practical experience. The
+change in the dynasty and the political vicissitudes of the proprietor
+were also disturbing elements and an atmosphere of uncertainty
+surrounds much of the legislation prior to Penn’s second visit to
+America. In 1693, when Penn’s government was suspended and Governor
+Fletcher of New York in charge, an investigation showed the rolls of
+the laws in confusion and not passed under the great seal. There was
+no certain evidence either that they had been transmitted to the privy
+council for approval, although David Lloyd and John White stated that
+they knew that Penn had delivered some at least of the laws to the
+king in council.[109] In 1694 some of the laws were sent over, for on
+August first of that year Penn appeared before the committee on trade
+and plantations and objected to the act about recording deeds. On the
+third of August following the attorney-general gave his opinion on the
+acts and the committee agreed to approve of nineteen, to repeal two
+and to hold five until the general assembly had given them further
+consideration. From the titles, which alone are given in the journal of
+the board of trade, the acts referred to are apparently those passed
+in 1693 under Governor Fletcher and include one “about appeals to the
+Supream Court.”[110] On December 31, 1697, Penn laid some more laws
+before the commissioners of trade[111] but the minutes do not state
+what they were or what action was taken on them. However, this much
+is certain, that in their more general provisions these laws were
+recognized and to some extent observed, but the unsettled political
+conditions, brought about partly by the absence of the proprietor
+after 1684 and the English revolution of 1688, led to confirmations,
+reënactments and repetitions of statutes in varying phraseology, which
+must have caused confusion, particularly as the laws were not at this
+time allowed to be printed, manuscript copies being filed in the county
+courts with the president or clerk.[112] Hence, the text of acts
+passed before 1700 must be accepted with considerable reserve and it is
+difficult to determine just how far the more experimental features were
+enforced.
+
+The county courts were vested with criminal jurisdiction in all
+except such important crimes as treason, murder and manslaughter and,
+after 1693, burglary, rape and arson. At times, however, a special
+commission of oyer and terminer was issued to some of the justices
+to try a special offender or to clear the jail. The offenses for
+which indictments were most frequently found and trials had were for
+drunkenness, larceny, profanity, assault and battery and breach of
+the peace, offenses against morality, “selling rum to the Indians,”
+speaking disrespectfully of the magistrates and breaking the Sabbath.
+In the lower counties there are occasional arrests on suspicion of
+piracy and smuggling. The following entry in the Chester County court
+records carries a faint echo from Monmouth’s Rebellion:--
+
+  “Ordered that the sheriff take into his custody the body of David
+  Lewis upon suspicion of treason, as also the body of Robert Cloud for
+  concealing the same; for that he the said Robert Cloud being attested
+  before this court, declared that upon the 3d day of the weeke before
+  Christmas last at the house of George Foreham, the said David Lewis
+  did declare in his hearing that he was accused for being concerned
+  with the Duke of Monmouth in the West Country.”[113]
+
+On the civil side the practice at this period did not differ materially
+from that under the Duke of York, although there is a gradual
+improvement in the forms and methods of procedure and in the use
+of legal terms, as the courts acquired experience or became better
+informed as to their duties through the importation of law books into
+the province. Although without legal training, the justices lived in
+a time when a knowledge of the rudiments of the law and the ordinary
+forms of conveyancing were essential to a gentleman, or merchant of
+importance, and a copy of Dalton’s Justices with the acts of assembly
+would meet most of the requirements of a rustic community. Some at
+least of the justices were drawn from the same class as supplied the
+quarter sessions in the rural districts of England.
+
+A difficulty seems to have confronted them in properly upholding the
+dignity of the courts. A rule of the Philadelphia County court for
+1686, after reciting that many disorders had been committed in the
+courts of this county, partly through ignorance and partly through
+negligence of otherwise well-meaning persons, goes on to order--
+
+  “That plfs, dfts, and all other psons speake directly to the point in
+  question, & yt they put in their pleas in writing (this being a Court
+  of record) & that they forbeare reflections & recriminations either
+  on the Court, Juries or on one another; under penalty of a fine.”[114]
+
+Nor were the judges always free from fault themselves. Justice Luke
+Watson of Sussex County was in 1684 twice fined by his colleagues for
+“smoakin tobacco in the Court house,”[115] the first time fifty and
+the second time one hundred pounds of tobacco, an instance where the
+punishment certainly fitted the crime. Another justice was fined five
+shillings for swearing.[116] In the same county in 1687 one Thomas
+Jones refused to attend court when summoned and a constable and two
+justices were sent to fetch him, whom he roundly cursed. The record
+adds:--
+
+  “The said Jones being brought to the Court, the Court told him of his
+  misdemeanor, and told him he should suffer for it; he told the Court
+  he questioned their power, soe the Court ordered the Sheriff and
+  Constable to secure him and they carryed & dragged him to ye smith
+  shop where they put irons upon him, but he quickly got the Irons off
+  and escaped, he having before wounded several persons’ legs with his
+  spurs that strived with him, and when they was goeing to put him in
+  the Stocks, before that they put him in Irons, he kicked the Sheriff
+  on the mouth and was very unruly and abusive, and soone got out of
+  the Stocks.”[117]
+
+The grand jury of Philadelphia County in 1686 presented Justice James
+Claypoole “for endeavoring by an indirect way to preposess Judge Moore
+in a case yt was to be tryed before him in the provinciall court,
+being by us lookt upon to be of a dangerous Consequence,” and “for
+menacing and abusing ye jurors in ye triall of John Moon which was an
+infringement of ye rights and properties of ye people.”[118]
+
+In the trial of cases the procedure was characteristically simple. If
+the plaintiff failed to serve his process he was nonsuited; if the
+defendant failed to appear judgment was entered against him. If both
+parties were present the defendant was called on for his answer, which
+could set up any defense legal or equitable or claim a set-off.[119]
+The law required the pleadings to be short and in English. The parties
+would sometimes leave the case to the bench without a jury,[120]
+particularly in the lower counties, but if a jury was called, it
+consisted invariably of twelve men. After verdict judgment was entered
+and the practice survived for some time of entering judgments in
+kind--perhaps reaching a climax in an entry of judgment for “one
+thousand of six-penny nails, and three bottles of rum.”[121]
+
+As to process of execution, we know little except that the proceedings
+would seem rather summary. An order of council was made in 1686 “yt
+there should be tenn days Respite between judgm^t given in ye County
+Courts within this Province and Territoryes in all Civill Causes, and
+signing the execution thereoff, and that in the Prov^{ll} Court no
+Execution shall be served until eight days after judgm^t given.”[122]
+To this the assembly in 1687 made strenuous objection and urged that
+the order be revoked, whereupon the council decided to leave the matter
+to the discretion of the courts.[123] There are recorded several
+petitions to the council for relief against executions on judgments
+entered by default, and others for relief against vexatious and
+oppressive executions. In one of these a widow complains that judgment
+having been obtained against the estate of her deceased husband, the
+sheriff had levied on the plantation where she and her children dwelt,
+although there was sufficient property elsewhere to satisfy the debt.
+The council sent for the sheriff and told him that if there were other
+effects of the decedent he ought not to levy on the plantation where
+the widow and children lived.[124] In other cases relief seems to have
+been given on account of the poverty of the defendant, a practice that
+would pave the way for the debtor’s exemption law.[125]
+
+In criminal cases the sentences were usually limited to fines,
+whippings or the stocks. Sentences to terms of imprisonment were rare;
+the colony could ill afford to spare the labors of any individual,
+however depraved, and still less was it inclined to support him in
+idleness. Penn’s incarceration in Newgate had familiarized him with the
+evils of prison life and he expressly ordained that prisons should be
+workhouses.[126] Such prisons as were built at this time were neither
+particularly commodious nor strong. In 1688 the council found it
+necessary to reprimand the sheriff of Sussex for permitting a dangerous
+prisoner to be at large. The prisoner magnanimously sent word to the
+council that he would yield himself up rather than “ye sheriff should
+suffer.”[127] A similar reprimand was administered to the sheriff of
+Philadelphia for permitting two prisoners suspected of piracy to go at
+large, to which the sheriff replied, that they never went without his
+leave and a keeper, “w^{ch} hee thought might have been allowed in hott
+weather.”[128]
+
+By the Act of March 1, 1683,[129] the justices of the county courts
+were required to sit twice a year as an orphans’ court. The name as
+well as the original purpose of this court was derived from the court
+maintained by the corporation of London, which, by immemorial custom,
+had charge of the estates of orphans of freemen of the city. The
+practice and jurisdiction of the court, which will be discussed later,
+differed from that of its prototype but was not distinctly settled at
+this time, and we find the provincial council taking cognizance of
+matters that subsequently were assigned to this tribunal or to the
+register’s court, such as the appointment of administrators, and sale
+of land for debts.
+
+Prior to 1684 there existed in the province no tribunal having
+cognizance of appeals other than the provincial council, which, in some
+degree, supplied the place of the general court of assizes under the
+Duke of York’s Laws. As the colony grew, the ever increasing number
+of appeals took up more and more of the council’s time and made this
+duty exceedingly burdensome, not to speak of the inconvenience to the
+suitors in traveling to Philadelphia with their witnesses for a hearing
+_de novo_. To remedy this inconvenience the Act of May 3, 1684[130],
+was passed, which provided that there should be five provincial judges,
+appointed by the governor, any three of whom should form the provincial
+court and sit twice a year in Philadelphia, while two of them should
+every spring and fall go on circuit into every county and there hold
+court. The court was to hear and determine all appeals from inferior
+courts and all causes, criminal and civil both in law and equity not
+determinable in the county courts. In 1685 the number of judges was
+reduced to three, but the original number was restored by the Acts of
+1690 and 1693.[131] A commission was accordingly issued by Penn to five
+judges, of whom Nicholas Moore was named first, the commission to be
+in force for two years.[132] The law did not fix any definite period
+for service and the commissions were drawn for various periods. In one
+instance it is noted in the minutes of the council that the commission
+is to continue “only for this present court.”[133] Jealousies quickly
+arose as to the geographical apportionment of the judges and in 1687
+the assembly requested that at least one of the judges be named from
+the lower counties.[134] In 1690 the appointment of the judges caused
+a split in the council, the members from the lower counties objecting
+to the naming of but one judge from the territories and also demanding
+that, according to what they stated was the proprietor’s example, two
+commissions issue, one for the province and one for the counties, so
+that each would have a chief justice from its own district. Unable to
+prevail on their colleagues, the members from the lower counties held a
+separate meeting and drew up commissions to suit themselves.[135] The
+keeper of the great seal, however, refused to seal these commissions
+and at a regular meeting of the council, subsequently held, the action
+of these members was denounced as irregular and annulled. This was the
+first open manifestation of the dissatisfaction of the territories
+with the union with Pennsylvania, which continually increased until a
+separate government was obtained.
+
+The provincial court did not at once command or obtain the respect and
+influence due to the chief judicial tribunal of the colony. It was
+founded in the most trying times, when political dissensions among the
+leading colonists and war and revolution in England distracted the
+province. The terms of office were irregular, the compensation wholly
+inadequate and the journeys on circuit tedious and even dangerous.
+It is not to be wondered at that it was difficult to induce properly
+qualified men to accept a place on the bench and that nominees for that
+honor sought excuses to decline the office. No traces of the records
+and opinions of the court at this time have come down to us and they
+cannot have been bulky, for, when the council in 1688 sent for the
+records, they were informed by the clerk that “they were not recorded
+otherwise than in a quire of paper.”[136] The duties of the judges did
+not at first compel them to grapple with legal problems with a view to
+the value of their decisions as precedents. The correction of errors
+arising on issues of fact and the trial of the more serious crimes
+probably made up the bulk of the business. As time went on the court
+strengthened its position, and appeals to the council became less and
+less frequent, until in the early eighteenth century the two bodies,
+executive and judicial, assumed their normal functions.
+
+It is sad to relate that Nicholas Moore, the first chief justice of the
+provincial court, was impeached by the assembly within a year after the
+creation of the court. Moore was a physician as well as president of
+the Society of Free Traders and a large purchaser of land from Penn.
+Although not a Friend he immediately obtained a position of influence,
+was elected to the assembly and was speaker in 1684. While capable
+and energetic he lacked tact and discretion and assumed an arrogant
+tone which offended his fellow members of the assembly and gave still
+greater offense after his elevation to the bench. In the minutes of the
+assembly there are numerous instances of his interruptions and protests
+during the consideration of bills.[137] It was reported to the council,
+during the session of 1684, that the speaker had said: “The proposed
+laws were cursed laws” and “hang it Damn them all.”[138] The principal
+complaints against his conduct on the bench seem to have come from the
+lower counties. Ten formidable articles of impeachment were presented,
+among which were the following:--
+
+  “The said Nich. Moore, Judge, having that high Trust Lodged in him
+  for the Equall Distribution of justice, without respect of Persons,
+  the said Judge Sitting in Judgemt at New Castle, hath presumed to
+  cast out a person from being of a Jury, after ye said Person was
+  Lawfully attested to ye True Tryall of ye Cause, thereby rending
+  an Innocent & Lawful Person Infamous in the face of the County, by
+  rejecting his attestation after Lawfully Taken, and Depriving the
+  plantif of his just Right.
+
+  “The said Nich. Moore, Sitting in judgmt, did in ye towne of New
+  Castle, refuse a verdict brought in by a Lawfull Jury, and by
+  Divers threats & Menaces, and Threatening ye jury with ye same of
+  Perjury and crim of their Estates, forced ye said Jury to goe out so
+  often--until they had brought a Direct Contrary verdict to the first,
+  There, by preventing justice, and wounding the Libertyes of ye free
+  people of this Province and Territories in the Tenderest point of
+  their Privelege, and violently Usurping over ye Consciences of the
+  Jury.
+
+  “The said Nich. Moore assuming to himselfe an Unlimited and unlawful
+  Power, did, Sitting in Judgmt at ye aforesaid Towne of New Castle,
+  wherin two persons stood Charged in a Civil action, it being in
+  its own Nature only Trover & Convertion, and ye pretended Indictmt
+  raised it no higher, notwithstanding the said Moore did give the
+  judgmt of fellony, Comending the Defendant to be Publickly Whipt, &
+  Each to be fined to pay three fould, thereby Tyranizeing over the
+  persons, Estates and reputations of the people of this Province and
+  Territories, Contrary to Law and Reason.
+
+  “The said Nich. Moore, Sitting in judgmt at Chester, did in a most
+  Ambitious, Insulting, & Arbitrary way, reverse and Impeach the judgmt
+  of ye Justices of ye said County Court, and Publickly affronting
+  the members thereof, although the matter came not regularly
+  before the said Circular Court, thereby drawing the Magistrates
+  into the Contempt of ye people, and Weakening their hands in the
+  administration of justice.”[139]
+
+A committee of five was appointed to manage the impeachment, one of
+whom was Abraham Mann, whom we have previously seen engaged in the
+prosecution of Justice Moll before the court of assizes in New York.
+The council showed little disposition to further this impeachment
+but treated the accusers with due civility and fixed a time for the
+hearing. Moore, however, was by no means inclined to submit tamely to
+the proceedings, and in the house, of which he was still a member,
+accused Abraham Mann of being “a person of seditious spirit,” in
+which he was probably right. The house, however, expelled Moore and
+proceeded to collect evidence for the prosecution. They met with a
+decided obstacle in the conduct of Patrick Robinson, clerk of the
+court, who declined to produce the records of the court, declaring
+that they were “written in Latin where one word stood for a sentence,
+and in unintelligible characters which no person could read but
+himself, no, not an angel from Heaven.”[140] But this did not end his
+offenses; he declared the articles of impeachment were drawn “hob nob
+at a venture” and threatened to “have at” the speaker when he was “out
+of the chair.” The house issued a warrant for Robinson’s arrest and
+requested the council to remove him from office. From the hearing on
+the impeachment Moore contemptuously absented himself, but the evidence
+was thought sufficiently grave by the council to suspend the judge
+from his official functions until the matter was finally decided.
+The council showed every disposition to treat Moore with leniency,
+although it had been testified that he had called the members thereof
+“fooles and Logerheads, and said it were well if all the Laws had
+drapt and that it would never be good Times as Long as ye Quakers had
+the administration.” Knowing the proprietor’s predilection for Moore
+the house addressed a letter to Penn on the subject, a quotation from
+the last paragraph of which shows that in spite of their quarrels and
+jealousies they still regarded him with affection.
+
+  “Dear and honored Sir, the honor of God, the love of your person,
+  and the preservation of the peace and welfare of the government,
+  were, we hope, the only centre to which all our actions did tend,
+  and although the wisdom of the assembly thought fit to humble that
+  aspiring and corrupt minister of state, Nicholas Moore, yet to you,
+  dear sir, and to the happy success of your affairs our hearts are
+  open, and our hands ready at all times to subscribe ourselves, in the
+  name of ourselves and all the freemen we represent, Your obedient and
+  faithful freemen.
+
+                                         JOHN WHITE, Speaker.”[141]
+
+By one excuse after another the council prevented further proceedings
+in the impeachment until the matter was lost sight of in the discussion
+of more important and perplexing affairs of state which soon required
+attention.
+
+The provincial council, although not strictly a court, for a long time
+exercised judicial functions and, through the fortunate preservation
+of its minutes, is by far the best known of the early tribunals.
+The exercise of judicial functions by the governor and council was
+strictly in accordance with the custom in other proprietary and royal
+provinces, and that judicial and executive functions were found
+incompatible in Pennsylvania so early in its history is a clear
+indication of the rapid growth of a democratic and progressive spirit
+in that province.
+
+The extraordinary growth of the colony, the long absences of the
+proprietor in England and the large measure of self-government which
+the citizens enjoyed, threw upon the council an amount of executive
+business which made judicial duties particularly onerous, and numbers
+of petitions and appeals were referred back to the courts. Aside from
+their judicial duties the governor and council, as an executive body,
+appointed the judges and magistrates, regulated commerce, conducted
+negotiations with the Indians and the other colonies, subdivided
+counties, laid out towns, established fairs and markets, ordained
+the principal highways, bridges and ferries, and exercised a general
+supervision over local administration. As a legislative body, they
+drew up all the laws, prior to 1693, when that right was assumed by
+the assembly, being finally transferred to that body by the Frame of
+Government of 1701. By that instrument also, the council, no doubt to
+its great relief, was expressly deprived of judicial functions.
+
+During the first twenty years of its existence the amount of
+judicial business transacted in the council was large; prior to the
+establishment of the provincial court it was the only general tribunal
+and was not only a court for hearing appeals but also a court of first
+instance for such suitors as could obtain a hearing before it. This, of
+course, was natural at the first settlement, as a matter of practical
+necessity. We therefore find in the early part of the minutes, trials
+for petty offenses and the collection of small debts. They seem
+to have been obliged even to discipline their own members, for at
+the fifth meeting of the council one of its members was fined five
+shillings “for being disordered in Drink.”[142] The council seems to
+have exercised its good offices in composing differences. In 1684 there
+is the following entry:--
+
+  “Andrew Johnson Pl. Hance Peterson Deft. There being a difference
+  depending between them, the Govr. & Council advised them to shake
+  hands and to forgive One another. And Ordered that they should Enter
+  in bonds for fifty pounds apiece, for their good abearance; which
+  accordingly they did. It was also Ordered that the Records of Court
+  concerning that Business should be burnt.”[143]
+
+There are other cases where the council would seem to have acted more
+as a final board of arbitration than as judges in the strict sense.[144]
+
+Prior to the establishment of the provincial court in 1684, the council
+heard all appeals, and although after that time such appeals were
+discouraged, they nevertheless continued to be brought before the
+council for some years. Besides regular appeals, there were numerous
+petitions for executive clemency, complaints against severe sentences
+in criminal cases and, in civil cases, petitions for relief against
+judgments entered by default and against executions which bore too
+severely on the debtor. In one early case, on appeal from the county
+court of Philadelphia, it was shown to the council that the case
+concerned the title to land in Bucks County, when the law required
+cases to be tried where the cause of action arose. The council remitted
+the case to the court of Bucks County and fined the Philadelphia court
+“forty pounds for giving judgment against law.”[145]
+
+As an illustration of the practice on appeal to the council the case of
+_Grantham_ v. _Wollaston_[146] may be cited:--
+
+One Wollaston purchased a negro from Grantham and gave a bond for £26,
+15 s. in payment. Judgment was entered on this bond by the New Castle
+County court, execution issued and a portion of the defendant’s land
+sold by the sheriff to Grantham for £30, 10 s. and the latter was put
+in possession. Wollaston on the 18th, 3 mo., 1687, petitioned to the
+council at Philadelphia averring that the county court had denied him
+an appeal to have his case heard in equity. After reading a copy of the
+proceedings the council directed the secretary to take security for the
+prosecution of the appeal at the next provincial court and ordered the
+county court to stop all proceedings. The provincial court on the 10th,
+2 mo., 1688, made an order restoring Wollaston to possession, which,
+it was explained later by one of the judges, was not intended to be
+executed “until the debt and damages were satisfied.” On the 7th, 12
+mo., 1688-9, Wollaston again petitioned the council, complaining of a
+forcible entry and detainder, whereupon it was resolved that a warrant
+be drawn, directed to the justices of the peace dwelling “nearest to
+ye place where ye fforce is alleaged,” to make a view and, if they
+found no force, to require the sheriff to summon a jury to inquire
+into the facts and thereupon to imprison the offender and restore
+quiet possession to the petitioner. On March 4, 1688-9, the clerk of
+the county court returned to the council the finding of the jury,
+which was in effect that Grantham had been the victim of the forcible
+entry. “This was judged by ye board to be a great affront and contempt
+of their authority.” Grantham’s wife then petitioned the council
+setting forth her husband’s side of the case, and the assembly also
+remonstrated against the action of the provincial court and requested
+the council to rehear the whole matter “as the supreame judges of this
+government.” Governor Blackwell and the council, accordingly, proceeded
+to New Castle where, on March 13 and 14, 1689, the facts were again
+reviewed. Both parties were called in and “endeavors used with both of
+them to agree the matter between themselves,” but in vain. Wollaston
+declared he had better be without the land than pay £30, 10 s. for
+it, and on the other hand Grantham refused to take back the negro,
+contending justly that the defendant had had several years’ use of
+his purchase while the plaintiff had been out his money. The council
+thereupon resolved and ordered that the sheriff’s sale to Grantham
+should be confirmed and that he should be restored to possession, that
+this should be in full of all demands against Wollaston, debt, damages
+and charges, and “that this be the finall conclusion & judgement of
+this board in that case.”
+
+It has been observed that the judicial powers exercised by the
+council resembled those wielded by the court of star chamber in its
+purest and best days,[147] but however beneficial such control was
+in correcting the errors of an amateur judiciary, it was contrary
+to the constitutional principles then uppermost in English minds
+after a century-long struggle with absolutism. Accordingly, when the
+revision of the Frame of Government was under consideration in 1701,
+the assembly petitioned that no person should be answerable before
+the governor and council or in any place but an ordinary court of
+justice.[148] Penn replied that he knew of no person obliged so to
+answer,[149] but he inserted the following clause in the new charter:--
+
+  “That no person or persons shall or may, at any time hereafter, be
+  obliged to answer any complaint, matter or thing whatsoever Relateing
+  to Property before the Govern^r and Council, or in any other place
+  but in the ordinary Courts of Justice, Unless appeals thereunto shall
+  be hereafter by Law appointed.”[150]
+
+The council was also the only court for the trial of serious crimes
+until 1685, when that jurisdiction was conferred on the provincial
+court. Important cases of this kind were those of the Proprietor
+against Pickering for counterfeiting[151] and against Margaret
+Mattson[152] for witchcraft. The latter case is peculiarly interesting
+as illustrating the superstition of the times and in its outcome
+was most creditable to the common sense of Penn and the jury. The
+accusation against the woman was that she had bewitched the witness’s
+cattle, but the evidence was mostly hearsay, as the defendant herself
+cleverly pointed out. The verdict of the jury was: “Guilty of haveing
+the Comon fame of a Witch, but not Guilty in manner and forme as Shee
+Stands Indicted.” The defendant was permitted to go, on entering
+bond for good behavior. The fear of witchcraft did not disappear for
+some time in Pennsylvania. In 1695, the grand jury of Chester County
+presented “Robert Roman of Chichester for practising Geomacy according
+to Hidon and Divining by a Stick.” The accused submitted to the court,
+was fined five pounds and ordered “never to practice the arts” but
+behave himself well, which he promised. His books, “Hidon’s Temple of
+Wisdom,” “Scot’s Discovery of Witchcraft,” and “Cornelius Agrippa’s
+Necromancy,” were ordered to be brought into court.[153] Another
+accusation of witchcraft was brought to the attention of the council in
+1701 but dismissed as trifling.
+
+The jurisdiction of the council in admiralty matters was a source of
+much trouble to them.[154] There are numerous cases in the minutes
+relating to seamen’s wages, pilots’ fees, violations of the navigation
+laws and complaints against masters for ill treatment of passengers.
+An example of the last is the case of _March_ v. _Kilner_[155] where
+the master of the ship was charged with beating the passengers and
+permitting the crew to drink their beer. Kilner denied everything,
+“only ye kicking of the maid.” He was reprimanded and advised to “make
+up the business w^{ch} accordingly he did.” The proprietor was, by his
+charter, personally charged with the duty of seeing to the enforcement
+of the English navigation acts and that fines and duties were imposed
+and collected according to that complicated and, as the colonists
+thought, burdensome system. The responsibility for the execution of
+these laws rested upon the council and many were the complaints to the
+home government of their indifference and laxity in these matters.
+Indeed Penn was obliged to write to them in 1697 urging the enforcement
+of the laws and stating that it had been reported to him “that you
+doe not onlie wink att but Imbrace pirats, shipps and men.”[156] The
+council indignantly denied this accusation and reported:--
+
+  “Wee know of none that has been entertained here, unless Chinton &
+  Lassell, with some others of Avery’s Crew, that happened for a smal
+  time to sojourn in this place, as they did in some of the neighboring
+  governments; but as soon as the magistrats in Philadelphia had
+  received but a Copie of the Lords Justice’s proclamation, gott all
+  that were here apprehended, & would have taken the Care & Charge of
+  securing y^m, untill a Legall Court had been erected for their trial,
+  or an opportunity had presented to send y^m to England; but before
+  that Could be effected, they broke goale & made their escape to New
+  York, where Hues & Crys wer sent after y^m.”[157]
+
+Nevertheless the records of the time are full of references to piracy,
+and Pennsylvania was reported to have “become ye greatest refuge &
+Shelter for pirats & Rogues in America.” Undoubtedly the “pirats
+and rogues” took advantage of the mild temper and humanity of the
+Quaker justices. In 1698 the town of Lewes was plundered, a woeful
+account of which is contained in a letter from the local justices to
+Lieutenant-Governor Markham, and in 1700 it was reported to Penn that
+the great Captain Kidd was lying off Cape Henlopen and trading with
+some of the inhabitants.[158]
+
+To deal with such matters, a court of vice admiralty was established,
+by the Crown, for Pennsylvania and the territories in 1697, of which
+Colonel Robert Quarry was appointed judge. Quarry was a former
+governor of South Carolina, a vain and quarrelsome person who disliked
+the Friends and was bitterly opposed to the proprietary system of
+government. Almost immediately after his appointment his court came
+into conflict with the county court of Philadelphia. Certain goods
+having been seized by the collector of customs under a warrant issued
+by Colonel Quarry, a judge of the county court at the instance of David
+Lloyd, a lawyer and member of the council, granted a writ of replevin
+under which they were taken from the collector. Quarry was exceedingly
+indignant at this and complained both to the home government and to the
+governor and council, who made such apologies as they could, handed
+over the replevin bond to him, and reprimanded the judge, who tendered
+his resignation.[159] David Lloyd, however, was as obstinate and
+hot-headed as Quarry himself. At the succeeding county court he brought
+an action against the marshal for the detaining of the goods. In the
+words of Quarry--
+
+  “Ye marshall being called to defend the sute, hee produced in his
+  owne Justificaon His maties Lres pats, undr ye broad seal of ye High
+  Court of Admiraltie, with the Judges warrt for ye seizure aforesaid,
+  which sd patent having in the frontis piece his most sacred maties
+  effigies stampt, with the sd seal adpendant, the sd David Lloyd, in a
+  most insolent & disloyal manner, taking the sd Commission in his hand
+  & exposing it to ye people, did utter & publish these scurilous &
+  reflecting words following, viz:--what is this? do you think to scare
+  us wt a great box (meaning ye seal in a tin box) and a little Babie;
+  (meaning ye picture or effigies aforesaid); ’tis true, said hee, fine
+  pictures please children; but wee are not to be frightened att such a
+  rate; & many more gross & reflecting expressions on his matie to ye
+  like effect.”[160]
+
+For this and other insults to the court of admiralty, Penn, by order
+of the board of trade, suspended Lloyd from the council and dismissed
+him from all public employment and he from that time became a bitter
+opponent of the proprietor.[161] Nevertheless in spite of stringent
+laws and a more systematic patrol of the coast by cruisers it was
+long before pirates ceased to be a menace to commerce. In 1712 Logan
+wrote, “We have been extremely pestered with pirates who now swarm in
+America and increase their numbers with every vessel they take.”[162]
+In 1718 Governor Keith in calling the council’s attention to the losses
+sustained by the colony through piracy, said that he was informed that
+Teach had been lurking for some days in and about Philadelphia and that
+he suspected that many of the pirates who had surrendered under an
+offer of pardon still kept up a correspondence with their companions
+abroad. The Teach referred to was the notorious pirate “Blackbeard” who
+was shortly after killed in an encounter with a vessel fitted out by
+Virginia for his capture.[163]
+
+It must not be supposed that either the provincial court or the
+council, in its judicial capacity, was a court of last resort. Under
+the charter the right was reserved to the king to hear and determine
+appeals from all judgments given in the province, and until the
+Revolution there was no court of last resort in Pennsylvania. A
+reference to this subject is contained in the commission of William and
+Mary to Governor Fletcher wherein it is provided that if either party
+to a civil cause is dissatisfied with the judgment of the superior
+court of the province “they may then appeale unto us in Our privy
+Council, provided the matter in difference exceed the real value and
+Sum of three hundred pounds Sterling.”[164] The Act of October 28,
+1701,[165] contained provisions for appeals to England but no limit of
+money value was fixed. While the right to such appeals to England was,
+in this colony, unquestioned, the difficulty and expense of prosecuting
+them was such as to render them infrequent. In 1685 an appeal to
+England was allowed by the provincial court upon entry of security, but
+from the discussion in the council it would seem that the appellant
+failed to enter security as required.[166]
+
+In December, 1699, Penn returned to America and began the work of
+reconstructing the government of the province, which had been restored
+to him on the express condition that he would put an end to the
+existing state of confusion.[167] The political and constitutional
+history of provincial Pennsylvania has been ably and thoroughly treated
+elsewhere[168] and it is not our purpose to refer to it except as it
+affected the courts. Suffice it to say that the period of utopian and
+paternal experiments had closed and that thereafter the proprietor
+and his successors were engaged in a struggle to maintain a difficult
+position between two fires; on the one side a democracy, selfish,
+narrow and individualistic, and on the other a home government,
+critical and contemptuous, that regarded the colony as little more than
+a nest of republicans and smugglers. Penn found the assembly determined
+to strengthen its position and after much fruitless discussion, granted
+a charter conferring very extended powers on the legislative body and
+containing little else of constitutional importance.[169] Nothing was
+said of the judges. The provincial court was then an insignificant
+factor in the political life of the province and the organization of
+the courts was left to be regulated by an act of assembly, which will
+be referred to presently.
+
+With the adoption of the charter of privileges of 1701, the government
+of the province assumed a form that it was to retain until the
+Revolution. The power of proposing and enacting laws passed to the
+assembly and the council ceased to exercise judicial powers. More
+important still, the council ceased to be an elected body and was
+thereafter appointed by the proprietor or in his absence by his
+lieutenant-governor. The effect of this was to throw into the assembly
+the abler spirits of the opposition and greatly strengthen that body,
+while the council, chosen from among the friends of the governor or
+proprietor, was thereafter regarded as representing the proprietary
+interests rather than those of the populace.
+
+One humble court has not been referred to, that of the coroner. The
+following is a specimen of a verdict taken in 1699 in Chester County:--
+
+  “We whose names are underwritten, summoned and attested by the
+  Coroner to view the body of Sarah Baker, haveing made strict enquiry,
+  and alsoe had what evidence could be found, attested to what they
+  know, and wee can find noe other but that it pleased Almighty God
+  to visit her with death by the force of Thunder; and to this we all
+  unanimously agree.”[170]
+
+Who will say that this is not quite equal in intelligence to the
+verdict of the average coroner’s jury at the present time?
+
+
+  FOOTNOTES:
+
+  [1] _Cromwell_ v. _The Bank_, 2 Wallace, Jr. Reports, 569 (1853), at
+  page 589.
+
+  [2] “I have several times solicited to obtain a learned and able man
+  to administer justice and attend to the law business.” Report dated
+  February 20, 1647, to the West India Company. Records of Court at
+  Upland, Introduction, p. 29; V Pennsylvania Archives (2d Series), 766.
+
+  [3] VII Pennsylvania Archives (2d Series), 511, 531. This policy
+  seems to have alarmed the home authorities. VII Pennsylvania Archives
+  (2d Series), 555.
+
+  [4] Hazard’s Annals of Pennsylvania, 205.
+
+  [5] New York Colonial Documents, Vol. XII, 133.
+
+  [6] New York Colonial Documents, Vol. XII, 149.
+
+  [7] New York Colonial Documents, Vol. XII, 150.
+
+  [8] Records of New Amsterdam Court, Vol. I, 358.
+
+  [9] O’Callahan’s History of New Netherlands, Vol. I, 220; VII
+  Pennsylvania Archives (2d Series), 521, 528, 534; Hazard’s Annals of
+  Pennsylvania, 221.
+
+  [10] Hazard’s Annals of Pennsylvania, 220; V Pennsylvania Archives
+  (2d Series), 459.
+
+  [11] Howard’s Matrimonial Institutions, Vol. II, 376.
+
+  [12] VII Pennsylvania Archives (2d Series), 634.
+
+  [13] Hazard’s Annals of Pennsylvania, 330, 333; VII Pennsylvania
+  Archives (2d Series), 670, 672, 680.
+
+  [14] Hazard’s Annals of Pennsylvania, 407; VII Pennsylvania Archives
+  (2d Series), 758; Whorekill is a corruption of Hoorn Kill, Sussex
+  Records (Turner), 2.
+
+  [15] VII Pennsylvania Archives (2d Series), 662.
+
+  [16] Constitutional law by S. E. Baldwin in Two Centuries Growth of
+  American Law, 11.
+
+  [17] V Pennsylvania Archives (2d Series), 494.
+
+  [18] V Pennsylvania Archives (2d Series), 544.
+
+  [19] Reinch’s Colonial Common Law, reprinted in Select Essays in
+  Anglo-American Legal History, Vol. 1, 367.
+
+  [20] V Pennsylvania Archives (2d Series), 501, 507.
+
+  [21] Broadhead’s History of New York, Vol. II, 66. Governor Nicolls
+  writes to Clarendon April 7, 1666: “My Lord, I have remitted for
+  confirmation to his Royal Highness the present Lawes of this Colony
+  collected out of the Lawes of the other Colonyes, onely with such
+  alterations as may revive the memory of old England amongst us,
+  ffor Democracy hath taken so deepe a roote in these parts, that ye
+  very name of a Justice of the Peace is an abomination.” New York
+  Historical Society Collections, 1869, p. 75.
+
+  [22] Laws of Massachusetts Colony (1672), 61. The Act of 1661
+  provided that “Vagabond Quakers” should “be stripped naked from the
+  middle upwards, and tyed to a Carts tail, and whipped through the
+  Town, and from thence immediately conveyed to the constable of the
+  next Town towards the borders of our jurisdiction, as their warrant
+  shall direct, and so from constable to constable till they be
+  conveyed through any the outward-most Towns of our jurisdiction.” If
+  the Quaker returned he was to be branded and whipped as before and if
+  he returned again suffer death. The Act of 1662 reduced the whippings
+  to three towns.
+
+  [23] Story, J., in _Van Ness_ v. _Packard_, 2 Peter’s Reports (U.
+  S.), 144 (1829); _Commonwealth_ v. _Knowlton_, 2 Massachusetts
+  Reports, 530 (1807); _Bogardus_ v. _Trinity Church_, 4 Paige’s
+  Reports (N. Y.), 197 (1833).
+
+  [24] Blackstone’s Commentaries Introduction, page 107, and Notes of
+  American Editors, particularly Hammond; _Johnson_ v. _McIntosh_, 8
+  Wheaton’s Reports (U. S.), 582 (1827).
+
+  [25] _Anonymous_, 2 Peere Williams’s Reports, 74 (1722); _Blankard_
+  v. _Galdy_, 2 Salkeld’s Reports, 411 (1694); _Anonymous_, 1 Dallas’s
+  Reports, 1 (1754).
+
+  [26] Chalmer’s Opinions, 208; Report of the Judges, 3 Binney’s
+  Reports, 595 (1808); Pepper & Lewis’s Digest of Pennsylvania
+  Decisions, Vol. XX, col. 35347; _Commonwealth_ v. _Burrell_, 7
+  Pennsylvania Reports, 34 (1847).
+
+  [27] Sioussat’s English Statutes, reprinted in Select Essays in
+  Anglo-American History, Vol. I, 416.
+
+  [28] Charter and Laws of Pennsylvania, 35. Upon such complaints of
+  inconveniences and omissions the laws were several times amended.
+  Charter and Laws of Pennsylvania, 58, 60, 68.
+
+  [29] Charter and Laws of Pennsylvania, 3; see also page 51.
+
+  [30] Records of Court of New Amsterdam, Vol. I, 226, 230, 237, 268,
+  299.
+
+  [31] Steven’s Essay on Arbitration, 105. The principle of compulsory
+  arbitration in partnership disputes was recognized in France by an
+  edict of Francis II (1560) and an ordinance of Louis XIV (1673),
+  incorporated in the Code Napoleon, L. 1, tit. 3, 2.
+
+  [32] Records of the Court of New Castle, 94.
+
+  [33] Records of the Court of New Castle, 292.
+
+  [34] Charter and Laws of Pennsylvania, 11. The Court of Assizes was
+  abolished in 1684 by Act of Assembly. Scott’s History of Courts of
+  New York, 104.
+
+  [35] Laws of Massachusetts Colony (1672), 3; compare Charter and Laws
+  of Pennsylvania, 7.
+
+  [36] Charter and Laws of Pennsylvania, 4.
+
+  [37] The law was soon amended “that Inn keepers or Ordinary keepers
+  shall not bee obliged to put any perticuler quantity of Mault into
+  their Beere.” Charter and Laws of Pennsylvania, 64. For a petition
+  for a license to keep an ordinary see Records of Court of New Castle,
+  312.
+
+  [38] Charter and Laws of Pennsylvania, 4.
+
+  [39] Charter and Laws of Pennsylvania, 11.
+
+  [40] Charter and Laws of Pennsylvania, 44, 69.
+
+  [41] Charter and Laws of Pennsylvania, 60.
+
+  [42] Charter and Laws of Pennsylvania, 22.
+
+  [43] “The w^{ch} they will bee at y^e charge of themselves.” VII
+  Pennsylvania Archives (2d Series), 737.
+
+  [44] Charter and Laws of Pennsylvania, 33.
+
+  [45] The Connecticut Laws of 1650 (Hartford, 1833), 60.
+
+  [46] Charter and Laws of Pennsylvania, 60.
+
+  [47] Charter and Laws of Pennsylvania, 69.
+
+  [48] Records of the Court at Upland, 190; see pages 107 and 181.
+
+  [49] Records of the Court of New Castle, 12, 49, 53, 81, 133, 168,
+  174, 212, 217, 358, 436, 455.
+
+  [50] Charter and Laws of Pennsylvania, 100, 117, 154.
+
+  [51] Elsewhere in the record “searifacous” (_scire facias_, mistaken
+  for _habere facias possessionem_).
+
+  [52] Sussex Records (Turner), 86, 91.
+
+  [53] Sussex Records (Turner) 102. In the earlier records there are
+  cases tried before juries of both seven and twelve men.
+
+  [54] VII Pennsylvania Archives (2d Series), 722.
+
+  [55] VII Pennsylvania Archives (2d Series) 748. The commission of
+  Peter Alricks as “Bayliff” of the corporation of New Castle dated
+  August 24, 1672, will be found in V Pennsylvania Archives (2d
+  Series), 619.
+
+  [56] VII Pennsylvania Archives (2d Series), 783.
+
+  [57] VII Pennsylvania Archives (2d Series), 787, also 777, 794, 797.
+
+  [58] VII Pennsylvania Archives (2d Series), 494; Hazard’s Annals of
+  Pennsylvania, 70.
+
+  [59] Hazard’s Annals of Pennsylvania, 219, quoting Albany Records,
+  Vol. XVII.
+
+  [60] Hazard’s Annals of Pennsylvania, 400, quoting Albany Records,
+  Court of Assizes, Vol. II, 293-300.
+
+  [61] V Pennsylvania Archives (2d Series), 627. A second execution
+  was issued in 1675 by Governor Andros, V Pennsylvania Archives (2d
+  Series), 666. In Records of Court of New Castle, page 53, is a suit
+  by the sheriff against the auctioneer for the amount realized at a
+  sale under this execution.
+
+  [62] VII Pennsylvania Archives (2d Series), 799.
+
+  [63] Records of the Court at Upland, 189.
+
+  [64] Chester County Records quoted in Ashmead’s History of Delaware
+  County, 280; see, also, Memoirs Long Island Historical Society, Vol.
+  I, 189.
+
+  [65] _Hart_ v. _Hill_, 1 Wharton’s Reports, 124 (1835); _Tinicum
+  Fishing Co._ v. _Carter_, 61 Pennsylvania Reports, 21 (1869); 77
+  Pennsylvania Reports, 310 (1875); 90 Pennsylvania Reports, 85 (1879).
+
+  [66] Smith’s History of Delaware County, 31.
+
+  [67] VII Pennsylvania Archives (2d Series), 797. In the case of
+  a decedent, Andros seems to have solved the question of title by
+  directing that the purchaser should have “a new pattent for his
+  title.”
+
+  [68] III Blackstone’s Commentaries, 419.
+
+  [69] _Presbyterian Corporation_ v. _Wallace_, 3 Rawle’s Reports, 108
+  (1831) at page 141.
+
+  [70] New York Colonial Documents, Vol. XII, 160.
+
+  [71] Records of the Court of New Castle, 355; see, also, _Jegou_ v.
+  _Wright_, Upland Records, 140.
+
+  [72] V Pennsylvania Archives (2d Series), 692; see in the court below
+  New Castle Records, 88; Upland Records, 74.
+
+  [73] V Pennsylvania Archives (2d Series), 721.
+
+  [74] V Pennsylvania Archives (2d Series), 722. Abraham Mann not
+  satisfied with the judgment of the Court of Assizes attempted to post
+  on the door of the court at New Castle a paper containing his version
+  of the proceedings, in which the court was charged with partiality.
+  A warrant was issued for his arrest but he fled up the river. New
+  Castle Records, 497, 514.
+
+  [75] V Pennsylvania Archives (2d Series), 579, 582, 584; VII
+  Pennsylvania Archives (2d Series), 723, 725.
+
+  [76] VII Pennsylvania Archives (2d Series), 728.
+
+  [77] VII Pennsylvania Archives (2d Series), 731.
+
+  [78] Records of the Court at Upland, 160.
+
+  [79] Sussex Records (Turner), 69.
+
+  [80] Upland Court Records, 180. In another case of slander the court
+  fined the defendant and ordered “that y^e defendant openly shall
+  declare him selfe a Lyar,” page 176. “In the Norman Custumal it
+  is written that the man who has falsely called another ‘thief’ or
+  ‘manslayer’ must pay damages, and, holding his nose with his fingers,
+  must publicly confess himself a liar.” Pollock and Maitland History
+  English Law, II, 537.
+
+  [81] Records of the Court at Upland, 156.
+
+  [82] Records of the Court at Upland, 111.
+
+  [83] Records of the Court of New Castle, 9.
+
+  [84] Records of the Court of New Castle, 341.
+
+  [85] Sussex Records (Turner), 57.
+
+  [86] Smith’s History of Delaware County.
+
+  [87] VII Pennsylvania Archives (2d Series), 777.
+
+  [88] Charter and Laws of Pennsylvania, 81.
+
+  [89] Eberling’s History of Pennsylvania quoted in Janney’s Life of
+  Penn and 1 Hazard Pa. Reg. 340.
+
+  [90] The justices at New Castle in a letter to the deputy governor at
+  New York dated November 11, 1681, refer to “Pensilvania.”
+
+  [91] Hazard’s Annals of Pennsylvania, 525.
+
+  [92] Pennsylvania Historical Magazine, Vol. XXX, 6.
+
+  [93] 6 Howell’s State Trials, 951 (1670).
+
+  [94] Charter and Laws of Pennsylvania, 92.
+
+  [95] For form of promulgation, see Minutes of Council, 2, 2 mo. 1686,
+  I Colonial Records, 122.
+
+  [96] The original Frame of Government as drawn up by Penn was amended
+  at an assembly held at Philadelphia March 1, 1683, Charter and Laws
+  of Pennsylvania, 93, 123. Penn’s first plan contained the principle
+  of initiative and referendum.
+
+  [97] Charter and Laws of Pennsylvania, 100.
+
+  [98] Charter and Laws of Pennsylvania, 117.
+
+  [99] Charter and Laws of Pennsylvania, 128.
+
+  [100] Charter and Laws of Pennsylvania, 154; Reinch’s Colonial Common
+  Law, Essays in Anglo-American Legal History, Vol. I, 397.
+
+  [101] Hazard’s Annals of Pennsylvania, 606, quoting Records of Court
+  of New Castle, Recorder’s Office, B. 9, 407.
+
+  [102] Hazard’s Annals of Pennsylvania, 596.
+
+  [103] Charter and Laws of Pennsylvania, 233, 237; Pennypacker’s
+  Colonial Cases, 78, 92; Sussex Records (Turner), 55, 83.
+
+  [104] Charter and Laws of Pennsylvania, 3, 176; Upland Court Records,
+  189.
+
+  [105] Lands were made liable for debts “except where there was
+  issue and then one half of the land,” the principle of set-off was
+  accepted, the recording of deeds regulated and a mild criminal code
+  adopted. Charter and Laws of Pennsylvania 109, 118.
+
+  [106] I Colonial Records, 34, 7, 9 mo., 1683; see, also, Sussex
+  Records (Turner) 97, 116, for the election of peacemakers.
+
+  [107] II Statutes at Large, 242. The Society of Friends had
+  regulations of their own for submitting all differences between
+  members to their monthly meetings. See the publications of the
+  Genealogical Society of Pennsylvania, Vol. IV, 141. In 1707 James
+  Logan writes to William Penn: “William Rakestraw has had me before
+  the meeting for not granting him the lot near the bridge, after
+  Francis Plumstead had applied to thee for it, and, as he pretends
+  here, got a grant for it; but the six Friends to whom it was
+  referred, declared it as their sentiments, upon a full hearing, that
+  William has no manner of claim to it, either in law or equity, but
+  that he has had full satisfaction, and shall condemn and retract his
+  abuse against thee especially, of which shall send copies when past
+  in the meeting.” Memoirs of Historical Society of Pennsylvania, Vol.
+  X, 258. The Statute of William III would seem to have been first
+  suggested by John Locke. Board of Trade Journal, December 18, 1696
+  (Mss. Historical Society of Pennsylvania, Vol. IX, 288).
+
+  [108] Charter and Laws of Pennsylvania, 129.
+
+  [109] Minutes of Provincial Council, May 24, 1693, 1 Colonial
+  Records, 379, 380. Penn under date of 25, 7 mo. 1689, instructed
+  Deputy Governor Blackwell “to collect y^e Laws that are in Being, and
+  send them over to me in a sticht book, by y^e ffirst opportunity,
+  which I have so often and so much in vaine desired.” I Pennsylvania
+  Archives (4th Series), 106; 1 Colonial Records, 276, 2, 11 mo.
+  1689-90. It would seem that Penn had contemplated periodic revisions
+  of the whole code, 1 Colonial Records, 42, 24, 1 mo. 1684; 151-2,
+  1, 2 mo. 1687; letter of Penn to Council, Pennsylvania Magazine of
+  History, Vol. 33, 308; Chapter 142 of the Acts of 1683, Charter and
+  Laws of Pennsylvania, 155.
+
+  [110] Journal of the Board of Trade (Mss. Historical Society of
+  Pennsylvania, Vol. VII, 309), August 3, 1694.
+
+  In 1694 the speaker informed the house that the laws passed by the
+  last assembly, and transmitted to the king and council, were lodged
+  with the king’s attorney, “who expects twenty guineas for perusing
+  them, so that the same are not disallowed.” I Votes of Assembly, 82,
+  25, 3 mo. 1694.
+
+  [111] Journal of the Board of Trade, December 31, 1697, Vol. X. 386.
+
+  [112] I Colonial Records, 18, 23, 3 mo. 1683. The jurisdiction of
+  the courts prior to 1700 has been admirably described by the late
+  Lawrence Lewis, Jr., Esq., in a paper read before the Historical
+  Society of Pennsylvania March 14, 1881, and reprinted in I
+  Pennsylvania Bar Association Reports, 353.
+
+  [113] Chester County Records, 6th, 8 mo. 1685; 5 Hazard’s
+  Pennsylvania Register, 156. The case of _Cock_ v. _Rambo_,
+  Pennypacker’s Colonial Cases, 79, is an illustration of the practice
+  in a criminal case from the binding over to final judgment.
+
+  [114] Pennypacker’s Colonial Cases, 99. In the previous year Thomas
+  Howell was fined one shilling for breach of a rule. “Hee saucilie
+  ansered Let the Court gett it how they can.”
+
+  [115] Sussex County Records (Turner), 109. Watson was expelled from
+  the provincial council in 1686, I Colonial Records, 129, 10, 3 mo.
+  1686, but reinstated, I Colonial Records, 177, 10, 3 mo. 1688.
+
+  [116] Sussex Records (Turner), 110. He could have cited year-book
+  precedents in his favor.
+
+  [117] Sussex County Records Mss., quoted I Pennsylvania Bar
+  Association Reports, 361.
+
+  [118] Pennypacker’s Colonial Cases, 116 (1686).
+
+  [119] See _Reynolds_ v. _Simpson_, Pennypacker’s Colonial Cases, 77
+  (1685).
+
+  [120] In _Proprietor_ v. _Wilkins_, Pennypacker’s Colonial Cases,
+  89 (1685-6), a criminal case in Philadelphia, after the defendant
+  had elected to be tried “by the bench of justices without a jury,”
+  Hersent, the attorney-general, contended that it was contrary to law
+  to try a prisoner without a petit jury. His contention was overruled,
+  but the prisoner was convicted and fined.
+
+  [121] Sussex County Records Mss., quoted I Pennsylvania Bar
+  Association Reports, 364.
+
+  [122] I Colonial Records, 122, 2, 2 mo. 1686.
+
+  [123] I Colonial Records, 157, 158, 11, 3 mo. 1687. In Philadelphia
+  the practice was for the justices to sign the order for an execution.
+  Pennypacker’s Colonial Cases, 108; so, also, in the provincial court,
+  I Colonial Records, 95, 11, 5 mo. 1685.
+
+  [124] I Colonial Records, 124, 9, 2 mo. 1686.
+
+  [125] I Colonial Records, 125, 9, 2 mo. 1686, also pages 153, 156,
+  161.
+
+  [126] Charter and Laws of Pennsylvania, 100.
+
+  [127] I Colonial Records, 199, 21, 12 mo. 1688-9.
+
+  [128] I Colonial Records, 531, August 8, 1699. Part of Patrick
+  Robinson’s house seems to have been used as a prison. Watson’s Annals
+  of Philadelphia (1850), Vol. I, 356.
+
+  [129] Charter and Laws of Pennsylvania, 131.
+
+  [130] Charter and Laws of Pennsylvania, 168.
+
+  [131] Charter and Laws of Pennsylvania, 178, 184, 225; I Colonial
+  Records, 205, 26, 12 mo. 1688-9.
+
+  [132] I Colonial Records, 68, 12, 7 mo. 1684.
+
+  [133] I Colonial Records, 290, 10, 2 mo. 1690.
+
+  [134] I Colonial Records, 157, 11, 3 mo. 1687.
+
+  [135] I Colonial Records, 304, 21, 9 mo. 1690.
+
+  [136] I Colonial Records, 202, 25, 12 mo. 1688-9.
+
+  [137] See Votes of the Assembly, Vol. I, 32.
+
+  [138] I Colonial Records, 55, 17, 3 mo. 1684.
+
+  [139] I Colonial Records, 83, 15, 3 mo. 1685; Votes of the Assembly,
+  Vol. I, 35; Charter and Laws of Pennsylvania, 499.
+
+  [140] Those who have had occasion to read his handwriting will
+  testify to the truth of this statement.
+
+  [141] Janney’s Life of Penn, 278.
+
+  [142] I Colonial Records, 4, 15, 1 mo. 1683.
+
+  [143] I Colonial Records, 52, 13, 3 mo. 1684.
+
+  [144] I Colonial Records, 65, 14, 6 mo. 1684.
+
+  [145] I Colonial Records, 20, 20, 4 mo. 1683.
+
+  [146] I Colonial Records, 161, 18, 3 mo. 1687, and see pages 172,
+  193, 210, 215-18.
+
+  [147] McCall’s address before the Law Academy (1838); I Pennsylvania
+  Bar Association Reports, 386.
+
+  [148] II Colonial Records, 34, 20, 7 mo. 1701.
+
+  [149] II Colonial Records, 38, 29, 7 mo. 1701.
+
+  [150] II Colonial Records, 56, 28, 8 mo. 1701.
+
+  [151] Pennypacker’s Colonial Cases, 32; I Colonial Records, 29, 24, 8
+  mo. 1683, and page 32.
+
+  [152] Pennypacker’s Colonial Cases, 35; I Colonial Records, 40, 27,
+  12 mo. 1683.
+
+  [153] Hazard’s Pennsylvania Register, Vol. V, 159. In Sussex County
+  Edward Southrin was accused of having conversed with the devil.
+  Sussex County Records (Turner), 36.
+
+  [154] I Colonial Records, 8, 21, 1 mo. 1683, and pages 35, 69.
+
+  [155] Pennypacker’s Colonial Cases, 29; I Colonial Records, 23, 7, 7
+  mo. 1683.
+
+  [156] I Colonial Records, 494, 9 February, 1697-8; Board of Trade
+  Journals, Mss. Historical Society Pennsylvania, Vol. X, 268, 287, 333.
+
+  [157] I Colonial Records, 495, 10 February, 1697-8.
+
+  [158] I Colonial Records, 532, August 9, 1699 and see page 549;
+  Sussex Records (Turner), 42. August 17, 1696, Mr. Randolph
+  delivered to the Commissioners of Trade a paper relating to the ill
+  execution of the Acts of Parliament and a list of names of Pirates
+  and Scotchmen inhabiting and trading in Pennsylvania; Memoirs of
+  Historical Society of Pennsylvania, Vol. IV, part 2, 260.
+
+  [159] I Colonial Records, 535, December 21, 1699, and see page 545.
+
+  [160] I Colonial Records, 576, May 14, 1700.
+
+  [161] Memoirs Historical Society of Pennsylvania, Vol. IV, part 2,
+  301.
+
+  [162] Watson’s Annals of Philadelphia (1850), Vol. II, 218; III
+  Colonial Records, 43, August 11, 1718.
+
+  [163] Blackbeard’s head was struck off and brought back in triumph
+  on the end of the bowsprit. Afterwards his skull was made into the
+  bottom of a very large punch bowl long used at the Raleigh Tavern at
+  Williamsburg, Va.; Watson’s Annals of Philadelphia (1850), Vol. II,
+  221.
+
+  [164] I Colonial Records, 313, 21, 9 mo. 1690.
+
+  [165] II Statutes at Large, 148, § 5.
+
+  [166] I Colonial Records, 95, 11, 5 mo. 1685, and see page 98.
+
+  [167] Board of Trade Journals, July 13, 1694; Mss. Historical Society
+  of Pennsylvania, Vol. VII, 300.
+
+  [168] Shepherd’s Proprietary Government in Pennsylvania (Columbia
+  University Studies in History, 1896).
+
+  [169] II Colonial Records, 54, 28, 8 mo. 1701; Proceedings of the
+  Constitutional Conventions of Pennsylvania of 1776 and 1790, 31.
+
+  [170] Chester County Records, 6, 5 mo. 1699, reprinted in Hazard’s
+  Pennsylvania Register, Vol. V, 156.
+
+
+
+
+  CHAPTER II.
+
+
+  In 1701 William Penn was called back to England to defend his
+  proprietorship. Before his departure a general revision of the
+  earlier legislation was undertaken at the sessions of the assembly
+  held at New Castle in 1700 and at Philadelphia in 1701. The acts
+  there passed, one hundred and fourteen in number, seem, in a sense,
+  to have been regarded as supplying the previous legislation and
+  were passed with the expectation of being presented to the privy
+  council for approval, as required by the charter. In fact, when the
+  board of trade inquired of Penn, on his return, as to whether the
+  laws received from him were a complete body of all the laws of the
+  province, he replied that he believed they were the present body
+  of laws,[171] and it will be noticed that the compilations of the
+  eighteenth century begin with the Acts of 1700.
+
+  Among these acts was one of October 28, 1701, entitled “An Act for
+  Establishing Courts of Judicature in this Province and Counties
+  Annexed.”[172] Its origin was as follows: Edward Shippen, for the
+  two previous years chief justice of the provincial court, and John
+  Guest, the then chief justice, both members of the council, brought
+  into the assembly on October 7th, a bill for establishing the courts,
+  which was “unanimously rejected.” Some few days after, David Lloyd,
+  who was not then a member of either council or house, proposed a bill
+  which was voted to be adopted with amendments, and Richard Hallowell
+  and Isaac Norris were appointed a committee to draw up the bill,
+  with the amendments. The bill met with no apparent opposition in
+  the council. Without repeating its provisions in full, which would
+  be tedious, it may be said by way of summary that the act provided
+  for the holding of the “County Courts or Sessions” at stated periods,
+  three justices to constitute a quorum, with jurisdiction in civil and
+  criminal matters, capital cases excepted. These courts were required
+  to observe as nearly as possible “respecting the infancy of this
+  Government and capacities of the people, the methods and practice of
+  the King’s court of common pleas in England; having regard to the
+  regular process and proceedings of the former county courts; always
+  keeping to brevity, plainness and verity in all declarations and
+  pleas, and avoiding all fictions and color in pleadings.” Maritime
+  affairs, not cognizable in the admiralty courts, were to be tried
+  in a special manner before a jury of “merchants, masters of vessels
+  or ship carpenters.” The county courts also received equity powers,
+  with the right of appeal to the provincial court from any decree
+  or sentence made or given by the justices. The provincial court
+  was to consist of five judges, appointed by the governor, three of
+  whom were required to sit twice a year in Philadelphia, and two, at
+  least, to go on circuit through the counties to try capital cases and
+  serious crimes and hear appeals from the county courts. The governor,
+  however, was to grant writs of error and writs of habeas corpus. The
+  powers and duties of the orphans’ courts were also defined and the
+  forms of certain writs prescribed; all former laws relating to the
+  courts were repealed.
+
+  There is little doubt that David Lloyd was the original draftsman
+  of the bill and while the act, as finally adopted, contained in its
+  main outline features afterwards recognized by the colonists as most
+  convenient for Pennsylvania, it was, like other acts attributed
+  to Lloyd, verbose, involved and overloaded with minor details of
+  practice. Lloyd, no doubt, thought that he was faithfully adhering to
+  the simplicity that had marked the legal procedure in the province
+  from the beginning, but he was a lawyer, and, like most of his
+  brethren, could not divest himself of his professional circumlocution
+  or exclude from his plan pet theories of his own. In the form adopted
+  the act did not prove acceptable to the advisers of the Crown.
+
+  Penn himself seems, on second thought, to have found some
+  objectionable features in the act and desired that it might not be
+  confirmed but sent back to be amended. The lords commissioners for
+  trade and plantations reported that the act, “so far from expediting
+  the determination of lawsuits,” would, as they conceived, “impede
+  the same,” and, accordingly, the act was formally disallowed and
+  repealed on February 7, 1705, by the queen in council.[173] One of
+  the objections that occurred to the minds of the English lawyers was
+  to that clause which directed the courts to avoid all “fictions and
+  color in pleadings.” A doubt was entertained as to whether this might
+  not preclude an action of ejectment. In this they were not far from
+  the real purpose of the draftsman of the act, as would appear from a
+  debate in the provincial council in December, 1704, upon a petition
+  by Thomas Revel, the plaintiff in an ejectment, who complained that
+  his case had been put off for nearly three years. John Moore, counsel
+  for the plaintiff, and David Lloyd, for the defendant, being summoned
+  before the council, Lloyd boldly argued that that method of trial
+  being fictitious, was repugnant to the law of the province.[174]
+  Lloyd, however, was clever enough at a later day, to use the action
+  of ejectment with success in the Frankfort Company’s case, which will
+  be referred to hereafter.
+
+  The repeal of the Act of 1701 left the administration of justice
+  in a confused state. There had been some debate in the session of
+  the assembly of 1705 upon the subject of courts, but the repeal
+  of the act was not known. Upon receipt of the order in council,
+  Governor Evans called the assembly in special session, in September,
+  1706,[175] and presented to that body an act for establishing courts,
+  drawn up, it was said, by some practitioners therein. The assembly,
+  however, requested that the matter be referred to the new house,
+  which met in October, 1706, and accordingly at the following session
+  this was the first matter under discussion, the governor laying
+  his bill before the house with his opening address. The assembly,
+  or rather David Lloyd who dominated that body, had other views and
+  presented them in what is described as a “long and tedious bill,”
+  which, on being read in council, was found to depart very widely from
+  the plan proposed by the governor’s advisers.[176]
+
+  We have not the text of these rival bills, which brought about a
+  deadlock between the governor and the house, but it is apparent that
+  both sides were struggling for the control of the courts and in view
+  of the expected surrender of the government to the Crown, both were
+  equally anxious to establish their position before that event.[177]
+
+  The plan endorsed by the governor included county courts with civil
+  jurisdiction, exclusive in cases under ten pounds, and criminal
+  jurisdiction, except in capital cases which were to be tried by
+  special commissions of oyer and terminer; a provincial court for
+  the whole province, to sit ordinarily at Philadelphia but to go on
+  circuit twice a year, with original jurisdiction concurrent with
+  the county courts in cases over ten pounds as well as on appeal
+  from the county courts, and lastly, a court of equity to be held
+  by the governor and council.[178] The assembly ever jealous of the
+  centralization of authority objected to a separate court of chancery
+  and to the exercise of original jurisdiction by the provincial
+  court.[179] On the other hand, the governor pointed out that the
+  bill proposed by the assembly contained precisely the same faults
+  that had caused the rejection of the Act of 1701; that it went into
+  matters of practice at great length which ought to be settled by rule
+  of court; that the chancery practice ought to conform to that in the
+  other English dominions; that there was too much leniency shown to
+  debtors in the clauses relating to executions; that too much power
+  was conferred on the court of the city of Philadelphia; that the
+  provision for the payment of the judges was inadequate, and that the
+  proprietors’ rights were interfered with in the clause providing for
+  the dismissal of the judges on the address of the assembly and for
+  the appropriation of all fines and forfeitures to the support of the
+  courts.[180]
+
+  The controversy began politely enough, for the governor and council
+  were anxious to settle the administration of justice on a firm
+  basis and to persuade the assembly to allow a fixed salary to Roger
+  Mompesson, a good lawyer who had been persuaded to accept the
+  office of chief justice. But as time passed and each side adhered
+  obstinately to its own view the tone of the respective messages
+  became warmer. The governor hinted that if further delay occurred he
+  would establish the courts by ordinance and charged the assembly with
+  grasping for power.
+
+    “It might reasonably be thought a very easy business to
+    establish the courts by a law, without raising new disputes and
+    contending for such Grants of Power as are not essential to their
+    Constitution, nor were ever in the People for these 24 years past,
+    since this has been a colony.”[181]
+
+  To which the assembly rejoined that whoever advised the governor to
+  establish courts by ordinance was an enemy to the welfare of the
+  province; that they were not striving for power--
+
+    “but for what are essential to y^e Administration of Justice and
+    agreeable to an English Constitution, and if we have not been in
+    possession of this these 24 years, we know where to place the
+    fault, and shall only say, tis high time we were in the enjoyment
+    of our rights.”[182]
+
+  It is needless to refer at greater length to the rhetorical
+  flourishes of the combatants, which did not add particularly to
+  clarity of reasoning. Conferences were held and bitter language used,
+  the matter at one time taking the form of a personal controversy
+  between the hot-headed young governor and the equally fiery speaker,
+  when the latter declined to rise when addressing the governor at one
+  of these debates.[183]
+
+  The assembly then proceeded to impeach James Logan, the secretary
+  of the province, charging him with attempting to subvert the
+  charter and set up arbitrary government. The governor, having twice
+  adjourned the courts pending the discussion and now despairing of
+  reaching a conclusion, on February 22, 1707, issued an ordinance
+  for the establishment of the courts, under a clause in the charter
+  which authorized the proprietor to make wholesome ordinances for
+  the preservation of the peace and the better government of the
+  people.[184] The expedient was somewhat daring, as the charter
+  further provided that such ordinances should not bind or charge
+  any person for or in their “life, members, freehold, goods or
+  chattels.” In this ordinance the provincial court is first called the
+  “Supream Court” of Pennsylvania.[185] The assembly prepared a bitter
+  remonstrance against the ordinance and adjourned.[186]
+
+  Under this ordinance, which embodied the undisputed features of
+  the proposed bills in a clear and concise form, the courts acted
+  during the remainder of Evans’s and the first two years of Gookin’s
+  administration, until, in 1710, when tired of quarreling over
+  non-essentials, a court act was passed.[187] By this act a court,
+  called the “Supream Court of Pennsylvania,” was established,
+  consisting of four judges appointed by the governor, two to
+  constitute a quorum, with power to hear appeals at law or in equity.
+  The jurisdiction and practice of the quarter sessions and common
+  pleas were elaborately defined and Governor Evans’s ordinance was
+  followed in the provision that all capital offenses should be tried
+  before commissioners of oyer and terminer specially appointed for the
+  occasion.
+
+  This act was, with minor modifications, the same as that proposed
+  by the assembly in 1706, for it appears in the minutes that on
+  November 2, 1710, a bill for establishing courts prepared by a former
+  assembly was read, which, being very long, was left to the further
+  consideration of the house. Governor Gookin was of the opinion that
+  the courts could be better regulated by ordinance and that three
+  judges were sufficient for the supreme court, but ultimately gave
+  in on most of the points formerly in dispute. The act is indeed
+  long and complicated, embodying an almost complete code of practice
+  in both civil and criminal cases and on appeal, with very definite
+  limitations placed on arrests in civil actions. One proposal of the
+  governor was adopted. It having been suggested by the justices that
+  the common pleas should be separated from the sessions of the peace,
+  “for that the Holding ’em together perplexes Bench Juries, parties
+  & Witnesses,”[188] the act provided that the terms of the quarter
+  sessions should begin on Mondays or Tuesdays and of the common pleas
+  on the Wednesdays following. By a fee bill adopted the same day, the
+  chief justice was allowed thirty shillings and the other justices
+  twenty shillings for every day they sat in court.[189] Both of these
+  acts were repealed by the queen in council on February 20, 1713,
+  by advice of the solicitor general, Sir Robert Raymond, who was of
+  the opinion that the practice provided would multiply trials at law
+  in plain cases and make proceedings in law and equity insufferably
+  dilatory and expensive.[190]
+
+  It was no doubt very irritating to the anti-proprietary party
+  that acts upon which they had expended time and thought should
+  be continually repealed by the Crown upon pretexts that probably
+  concealed the true motives for such action. The assembly had,
+  however, hit upon a method of preserving its legislation, temporarily
+  at least. Under the charter, all laws were required to be submitted
+  to the council within five years of their enactment. The colonists
+  took as much time as they pleased before submitting the acts, and, as
+  a result, the laws generally remained in force nearly five years, and
+  when the assembly was notified of their repeal, new acts on similar
+  lines were passed. Against such tactics the commissioners of trade
+  vainly protested.[191] During the intervals between the repeal of the
+  old and the passage of the new court acts the governor maintained
+  the courts either by special commissions to the judges or by general
+  ordinances.
+
+  One act did succeed in obtaining favorable recommendation, that of
+  March 27, 1712-13, relating to the organization of and powers of
+  orphans’ courts, a comprehensive statute which defined the duties
+  of that court in relation to the estates of decedents, and the care
+  of the estates of minors, and became the basis of all subsequent
+  legislation extending and strengthening the jurisdiction of that
+  admirable tribunal.
+
+  It would take up too much space to go over all the acts that fell
+  before the criticisms of the council. One, that of May 15, 1715,[192]
+  regulated the taking of appeals to Great Britain and required the
+  appellant to give recognizance in double the amount of the judgment.
+  The objection to this act was that there was no sum limited for
+  which an appeal might be brought, as provided in the instructions
+  to the governors of all the plantations, but notice of this repeal
+  does not seem to have reached Pennsylvania, and the act was printed
+  as in force in all compilations of the laws down to the Revolution.
+  The first definite reference to these appeals is, as we have seen,
+  in the commission of William and Mary to Governor Fletcher, which
+  limited appeals to cases involving more than three hundred pounds.
+  Additional instructions were sent to the proprietors in 1726,[193]
+  directing the suspension of execution pending the final determination
+  of appeals, and in 1753 still more explicit instructions were issued
+  to a number of colonies including Pennsylvania. By these instructions
+  the governor and council were directed to hear appeals from the
+  courts and if any of the judges who tried the case appealed were
+  members of the council they were not to vote but to give the reasons
+  for their decision. From the judgment of the provincial council an
+  appeal was to be allowed to the king in council provided the matter
+  in controversy involved five hundred pounds, and in cases of less
+  than that amount where future rights might be bound or the king’s
+  revenue affected. The appellant was required to enter security for
+  the judgment and costs and pending the appeal execution was to be
+  suspended, unless security was entered for restitution.[194] The
+  directions for a judicial hearing before the provincial council
+  must have been given in ignorance of the fact that under the Frame
+  of Government of 1701 the council in Pennsylvania did not exercise
+  judicial powers.
+
+  In 1718 two murderers, Hugh Pugh and Lazarus Thomas, attempted to
+  gain a reprieve by an appeal to the king, but the council ignored
+  their petition on account of the notoriety of their crimes.[195] The
+  case of _Fothergill_ v. _Stover_,[196] involving the admissibility
+  in evidence of a letter from the secretary of the land office to
+  a deputy surveyor, is said by the reporter to have been affirmed
+  on appeal to the king, and the docket of the supreme court shows
+  that such an appeal was taken.[197] In fact there are several
+  entries of this sort. In _Brown_ v. _McMurtrie_, April Term,
+  1763, judgment is entered for the plaintiff on a special verdict,
+  whereupon Mr. Galloway “prays leave to appeal to the King in
+  Council,” which is granted on giving security agreeable to the act
+  of assembly and paying the costs. Below in another handwriting is
+  the entry, “Judgment of the Supream Court confirmed by his Majesty
+  in Council.”[198] There is a similar entry in _Nixon_ v. _Long_,
+  where Chew and Galloway appeared for the plaintiff and Dickinson and
+  Ross for the defendant. Judgment for the plaintiff was entered on
+  a demurrer to the evidence and on appeal to the king the judgment
+  was “confirmed.”[199] There are two other entries of appeals in
+  1765,[200] and at April Term, 1767, there are three suits by the
+  same plaintiff against different defendants, in which appeals to
+  the king were taken, security entered and transcripts of the record
+  issued, but the result is not recorded.[201]
+
+  It is interesting to note, that to the appeals from the various
+  colonies and from the Channel Islands is to be traced the
+  jurisdiction of the judicial committee of the privy council. The
+  standing committee for trade and plantations was, by an order of
+  1691, directed to hear appeals and report thereon to the king in
+  council.[202] Few cases came before the committee at first, but
+  gradually their proceedings took a judicial form, the judgment of the
+  members became a judicial decision, and the adoption of their report
+  a _pro forma_ matter. At this early period their decisions are but
+  occasionally noticed in the English reports, but Lord Mansfield, in
+  his speech on the Stamp Act, stated that he had in his early practice
+  been much concerned in the plantation causes before the privy council
+  and so had become acquainted with American affairs.[203]
+
+  The attempted appeal of Pugh and Thomas was based on the fact that
+  seventeen of the grand jury which had indicted them and eight of the
+  petit jury who found them guilty were Quakers who had qualified by
+  affirmations instead of oaths. This calls attention to a difficulty
+  that had long troubled the colony. The conscientious scruples of
+  the Friends against judicial oaths had been taken advantage of by
+  their opponents, led by Colonel Quarry, to drive them from office and
+  lessen their power.[204] An order had been procured from Queen Anne
+  enjoining the administration of oaths to all persons willing to take
+  them, an order which the Quaker justices were loath to enforce, while
+  the justices of the church party declined to administer affirmations,
+  lest they should mistake the sincerity of the affiant’s religious
+  scruples. Constant friction and mistrials resulted from this state of
+  affairs, and more than one act was passed on the subject only to meet
+  with technical objections in England.[205]
+
+  The popularity of Governor Keith enabled him to obtain the passage
+  of the Act of May 31, 1718,[206] which permitted affirmations by
+  such as conscientiously scrupled to take an oath, but at the same
+  time restored much of the rigorous criminal code of England, which
+  the humanity of Penn had prevented from being put in force in the
+  province. A few years later the Act of May 9, 1724,[207] was passed
+  which carefully prescribed the forms of declarations of fidelity,
+  abjurations and affirmations to be taken by Quakers, with a proviso
+  that the act was not to be construed as repealing the Act of 1718.
+  To this the assembly in 1739 attempted to add a supplement for the
+  relief of Scotch Presbyterians, who had conscientious scruples
+  against kissing the Bible, permitting them to take the oath in the
+  form commonly administered in Scotland. Approval of this act was
+  refused on the advice of Sir Dudley Ryder and Sir John Strange, who
+  criticised its loose wording and called attention to the danger of
+  giving way to new scruples about oaths.[208] Subsequently the privy
+  council relented and in 1772 an act was passed and approved which
+  permitted witnesses to qualify either by a solemn affirmation, an
+  oath in the usual form or an oath with uplifted hand.[209]
+
+  From the passage of the Act of 1718 capital punishment for the
+  greater felonies was rigorously employed, until in 1794, principally
+  through the efforts of Judge Bradford, the death penalty was
+  abolished in all cases except high treason and willful murder. As
+  a natural consequence the number of appeals for executive clemency
+  steadily increased and the minutes of the council are full of such
+  petitions.[210] One of the most curious is the following:--
+
+    “A Petition of John Remington, Attorney at Law, delivered to the
+    President, was by him laid before the Board and read, setting forth
+    that the Petitioner was unfortunately deluded & drawn into the idle
+    Diversion of performing the Ceremony of making a free Mason, in
+    Order to which a Sport called Snap Dragon was prepared, at which
+    the Petitioner was perswaded to be present; that unhappily some of
+    the burning Spirit used in this Sport was thrown or spilt on the
+    Breast of one Daniel Rees, which so burnt or scalded him that in
+    a few days after the said Daniel dyed; That Doctor Evan Jones had
+    been indicted as Principle for the Murder of the said Daniel Rees,
+    & by a Jury of the County was found guilty of Manslaughter; That
+    the Petitioner was also indicted as aiding & abetting the said Evan
+    Jones, and altho’ no Evidence did or could appear to prove that
+    the Petitioner had any hand in the throwing or spilling the said
+    Liquor on the Body of the said Daniel, or was privy to any Design
+    or Intention of doing harm to the said Daniel, or to any other
+    Person, yet the same Jury had brought in a Verdict of Manslaughter
+    likewise against the Petitioner, which if put in Execution would
+    tend to the utter Ruin of the Petitioner, his Wife, and two small
+    children, & therefore humbly praying that the President & Council
+    would be pleased to grant him a Pardon; Whereupon the Board are of
+    Opinion that the Petitioner should be pardoned the Manslaughter
+    aforesaid, and the burning in the hand, which by reason thereof,
+    he ought to suffer; But it being observed that in the Course of
+    the Tryal a certain wicked & irreligious Paper had been produced &
+    read, which appeared to have been composed by the said Remington,
+    who had made the aforesaid Daniel Rees repeat the same, as part of
+    the form to be gone thro’ on initiating him as a free Mason; the
+    Board therefore agreed that the Pardon should be so restricted as
+    that it might not be pleaded in Bar of any Prosecution that should
+    hereafter be commenced against the said Remington on account of the
+    said scandalous Paper.”[211]
+
+  It would seem that with the constantly increasing population, a
+  disorderly element was introduced into the community that rendered
+  stringent measures necessary for the protection of society. In 1726
+  a riotous crowd burnt down the pillory and stocks in the market
+  place and the governor was obliged to issue a proclamation for the
+  suppression of such tumults in the future.[212] In the newspapers
+  will be found complaints against the authorities in England for
+  making the colony a dumping ground for criminals and vagabonds.[213]
+  In 1717 the grand jury present:--
+
+    “Whereas, it has been _frequently and often_ presented by several
+    former grand juries for this city, the necessity of a ducking stool
+    and house of correction, for the just punishment of scolding,
+    drunken women, as well as divers other profligate and unruly
+    persons in this place, who are become a public nuisance to the town
+    in general; therefore, we the present grand jury, _earnestly_ again
+    present the same to this Court of Quarter Sessions, desiring their
+    immediate care; that those public _conveniences_ may not be longer
+    delayed, but with all possible speed provided for the _detection_
+    and quieting such disorderly persons.” And a few years later, a
+    second inquest, “taking in consideration the great disorders and
+    the turbulent behaviour of _many_ people in this city, present the
+    great necessity of a ducking-stool for _such people_, according to
+    their deserts.”[214]
+
+  There are many indictments for forestalling the markets and
+  regrating, offenses against public trade that excited in that day the
+  popular attention now centered on rebates and trusts.
+
+  Some presentments of the grand jury of Philadelphia will further
+  illustrate the care of our ancestors for the manners and morals of
+  the community.[215]
+
+                   “Philadelphia, the 26th day of the 7th month, 1702.
+
+    “We, the Grand Inquest for this Corporation, do present George
+    Robinson, butcher, for being a parson of evill fame as a common
+    swarer, and a common drunker, & particularly upon the twenty-third
+    day of this instant, for swaring three oths in the market-place, &
+    also for utering two very bad curses the twenty-sixth day of this
+    instant. Signed in behalf of self & fellows, by
+
+                                         “Jno. Pons, ferman.”
+
+      “Submits, and puts himself
+        in mercy of the Court.”
+
+                                         “George Robinson, fined xxx s.
+                                       for the oaths and curses.”
+
+                                         “Philadelphia, ss.
+
+    “We, the Jurors for this city, doe present phillip Eilbeck, of
+    Chester County, for that on the twenty-third Day of this Instant,
+    at night, at the house of Margaret Garret, in the front street, in
+    Philadelphia, aforsd, Did then & theire mennace & threaten herman
+    Debeck, by drawing his bagenet and making a pass at him, the said
+    herman: & at the same time & place abovesaid, did utter three
+    curses, to the terrifiding of the said herman & other the Qeen’s
+    Leige people, contrary to the laws in that case made & provided.
+    Signed in behalf of the Rest of the Jurors, this 28th day of the
+    7th mo., 1702, pr.
+
+                                         “Jno. Psons, forman.”
+
+      “Appears and submits, and puts
+        himself in mercy of the Court.”
+
+                                         “Eilbeck for breach of the
+                                        peace and curses, xxx s.”
+
+                                         “The 3d of the 12th mon: 1702.
+
+    “We of the Grand Jury for the Citty of Philadelphia, do psent John
+    Satell for passing of bad counterfeit Coine to Anne Simes, on the
+    2nd of January Last past in her husbands house, now Living in
+    Philadelphia, & Also finding the mettal in his pocket, which we
+    think the Money was made withall.
+
+                                         “Signed in behalf of the Rest,
+                                               “Abra. Hooper, foreman.”
+
+                         “Philadelphia, y^e 4th of the 12th mon., 1702.
+
+    “We, of y^e Grand Jury for the Citty of philadelphia, Do psent John
+    Joyse, for having of to wifes at once, which is boath against the
+    law of God and man.
+
+                                         “Signed in behalf of the rest,
+                                               “Abra. Hooper, foreman.”
+
+                         “Philadelphia, y^e 6th of the 3rd month, 1703.
+
+    “We, of the Grand Jury for this city, Doe present Alexander Paxton
+    & his wife, for letting a house to John Lovet, he being a Stranger,
+    & have not Given security for The In Demnifying of this Corporation.
+
+                                         “Signed in behalf of the rest,
+                                               “Abra. Hooper, foreman.”
+
+                       “Philadelphia, this third day of November, 1703.
+
+    “We doe also present Jon Furnis & Thomas McCarty & Thomas Anderson
+    & henery Flower, barbers, for triming people on first days of the
+    weeks, commonly called sunday, contrary to the law in that case
+    made & provided.
+
+                           “Signed in behalf of the rest of the Jurors,
+                                                “John Redman, foreman.”
+
+  In 1731 an execution took place at New Castle which, it is to be
+  hoped, was exceptional in the annals of the colonies. Catherine
+  Bevan, together with a servant named Peter Murphy, were indicted,
+  tried and found guilty of the murder of the woman’s husband, Henry
+  Bevan. The conviction would seem to have been obtained principally
+  upon the confession of the servant. By the common law at that time
+  the murder of a husband by his wife was petit treason, and the
+  punishment was to be drawn and burnt. Accordingly, on September
+  10, 1731, the man was hanged and the woman burnt pursuant to their
+  sentences.[216] A gruesome account of the affair appears in
+  Franklin’s “Pennsylvania Gazette” for September 23, 1731:--
+
+    “She deny’d to the last that she acted any part in the murder and
+    could scarce be brought to own that she was guilty of consenting.
+    Neither of them said much at the place of execution. The man seemed
+    penitent but the woman appear’d hardened. It was designed to
+    strangle her dead before the fire could touch her; but its first
+    breaking out was in a stream which pointed directly upon the rope
+    that went round her neck, and burnt it off instantly so that she
+    fell alive into the flames, and was seen to struggle.”
+
+  To return to the courts. At a meeting of the council held on November
+  9, 1719, Governor Keith called attention to the repeal of the several
+  acts relating to courts, and proposed that the board consider the
+  best means of meeting the inconvenience caused thereby. The consensus
+  of opinion was that the governor should issue special commissions
+  authorizing the justices to hold court on the days when they should
+  be held under the repealed laws. Similar action was taken in the
+  following March in reference to the supreme court, and David Lloyd,
+  who was now chief justice, prepared the forms of commission. In this
+  way the courts were continued until at a meeting of the council, May
+  12, 1722, it was observed that the courts would be “more regularly
+  and effectually established by ordinance, as they are done in some
+  of our neighboring governments, than by any particular Commissions,”
+  and it was recommended that the matter be brought to the attention of
+  the house of representatives. A bill was promptly passed and messaged
+  to the council, where it was referred to Richard Hill, Isaac Norris,
+  James Logan and the attorney general, Andrew Hamilton, for amendment.
+  The bill as amended was returned to the house, and on May 22, 1722,
+  became a law.[217]
+
+  This act apparently was never considered by the Crown, but, in some
+  manner, was allowed to become a law by lapse of time, according to
+  the charter. The reason for its escape lies probably in an oversight
+  of the clerks of the council rather than in any intention on the part
+  of the board to give it even a tacit approval. The act appears in a
+  list, under consideration by the board of trade in 1739, which the
+  lords commissioners could not find to have ever been approved.[218]
+  Mr. Paris, the agent for the colony, after tedious searches, found
+  some of these acts “laid up in a by corner of the Board of Trade and
+  covered very thick with dust.” In the list the act we are discussing
+  is marked “supplied.” As a matter of fact, three months before the
+  time for its consideration had expired, the act had been supplied
+  by the Act of August 27, 1727,[219] which was repealed by order in
+  council September 21, 1731. In repealing the latter act, the point
+  seems to have been overlooked that the Act of 1722 was revived by the
+  repeal, and the question of the Crown’s power to pass upon it then
+  was not raised.
+
+  Upon the repeal of the Act of 1727 a special session of the assembly
+  was called, and an act passed formally reviving the Act of 1722.[220]
+  This reviving act seems to have been allowed to become a law by lapse
+  of time. Mr. Fane, the king’s counsel, to whom it was referred by
+  the lords commissioners, saw no objection to it. The Act of 1722,
+  which in many of its provisions remained in force until after the
+  Revolution, provided for county courts of quarter sessions, composed
+  of justices appointed by the governor, three to constitute a quorum,
+  and for similar county courts of common pleas, to be held after the
+  quarter sessions by justices, also appointed by the governor, with
+  authority to hold pleas of assizes, _scire facias_, replevins and
+  all manner of actions, civil, personal, real and mixed, and to grant
+  writs of partition and writs of view.
+
+  As to the supreme court, the Act of 1722 provided as follows:--
+
+    “And be it further enacted by the authority aforesaid, That there
+    shall be holden and kept at Philadelphia a court of record twice in
+    every year: (That is to say) on the twenty-fourth day of September
+    and the tenth day of April, if the same days, or either, do not
+    happen to be the First day of the week, and in such case the said
+    court shall be held on the next day following; which said court
+    shall be called and styled the supreme court of Pennsylvania.
+    And that there shall be three persons of known integrity and
+    ability, commissionated by the governor, or his lieutenant for
+    the time being, by several distinct patents or commissions, under
+    the great seal of this province, to be judges of the said court,
+    one of whom shall be distinguished in his commission by the name
+    of chief-justice. And every of the said justices shall have full
+    power and authority, by virtue of this act, when and as often as
+    there may be occasion, to issue forth writs of habeas corpus,
+    _certiorari_ and writs of error, and all remedial and other writs
+    and process returnable to the said court, and grantable by the said
+    judges by virtue of their office, in pursuance of the powers and
+    authorities hereby given them.
+
+    “Provided always, That upon (any) issue joined in the said supreme
+    court, such issue shall be tried in the county from whence the
+    cause was removed, before the judges aforesaid, or any two of them,
+    who are hereby empowered and required, if occasion require, to go
+    the circuit twice in every year, * * * * and to do generally all
+    those things that shall be necessary for the trial of any issue, as
+    fully as justices of _nisi prius_ in England may or can do.
+
+    “And that the said judges, or any two of them, shall have full
+    power to hold the said court, and therein to hear and determine
+    all causes, matters and things, cognizable in the said court, and
+    also to hear and determine all and all manner of pleas, plaints and
+    causes, which shall be removed or brought there from the respective
+    (general) quartersessions of the peace and courts of common pleas,
+    to be held for the respective counties of Philadelphia, Chester
+    and Bucks, as also for the city of Philadelphia, or from any other
+    court of this province, by virtue of any of the said writs. And to
+    examine and correct all and all manner of errors of the justices
+    and magistrates of this province, in their judgments, process and
+    proceedings in the said courts, as well as in all pleas of the
+    Crown, as in all pleas real, personal and mixed; and thereupon to
+    reverse or affirm the said judgments, as the law doth or shall
+    direct. And also to examine, correct and punish the contempts,
+    omissions and neglects, favors, corruptions and defaults, of all or
+    any of the justices of the peace, sheriffs, coroners, clerks and
+    other officers within the said respective counties. And also shall
+    award process for levying, as well of such fines, forfeitures and
+    amercements, as shall be estreated into the said supreme court, as
+    of the fines, forfeitures and amercements, which shall be lost,
+    taxed and set there, and not paid to the uses they are or shall be
+    appropriated.
+
+    “And generally shall minister justice to all persons, and exercise
+    the jurisdictions and powers hereby granted concerning all and
+    singular the premises according to law, as fully and amply, to all
+    intents and purposes whatsoever, as the justices of the court of
+    King’s Bench, common pleas and exchequer at Westminster, or any of
+    them, may or can do.
+
+    “Saving to all and every person and persons, his, her or their
+    heirs, executors and administrators, their right of appeal from
+    the final sentence, judgment or decree of any court within this
+    province, to His Majesty in council, or to such court or courts,
+    judge or judges, as by our Sovereign Lord the King, his heirs or
+    successors, shall be appointed in Britain, to receive, hear and
+    judge of appeals from His Majesty’s plantations.
+
+    “Provided, The person appealing shall, upon entering his appeal in
+    the court where the sentence, judgment or decree shall be given in
+    this province, pay all the costs before that time expended in the
+    prosecution, or defending the said suit; and shall further enter
+    into bond, with two good and sufficient securities in the sum of
+    three hundred pounds, to the defendant in the appeal, conditioned
+    to prosecute the said appeal with effect within the space of
+    eighteen months after the entry of such appeal, and to satisfy the
+    judgment of the court from which he appeals; and further, to pay
+    all such costs and damages as shall be adjudged to him to pay,
+    in case a sentence, judgment or decree, pass against the said
+    appellant, or in case he, she or they fail to prosecute their
+    appeal with effect.
+
+    “And be it further enacted by the authority aforesaid, That the
+    said judges of the supreme court shall have power and are hereby
+    authorized and empowered, from time to time, to deliver the gaols
+    of all persons which now are or hereafter shall be committed for
+    treasons, murders, and such other crimes as (by the laws of this
+    province) now are or hereafter shall be made capital or felonies
+    of death as aforesaid. And for that end from time to time to issue
+    forth such necessary precepts and process, and force obedience
+    thereto, as justices of assize, justices of oyer and terminer, and
+    of gaol delivery, may or can do in the realm of Great Britain.”
+
+  We have referred to the short-lived Act of August 27, 1727. This act
+  was almost a counterpart of the Act of 1722, but was designed to
+  deprive the supreme court of the power to institute original process.
+  Its repeal was accomplished by John Moore, the king’s collector of
+  customs at Philadelphia, who strongly objected to it on the ground
+  that actions involving the revenue would thenceforth have to be tried
+  in the county courts. From the statements of Moore and Fitzwilliam,
+  the surveyor general of the customs, it would appear that in 1724
+  there arrived at Philadelphia the ship _Fame_ purporting to carry
+  emigrants from the Palatine, but really containing a cargo of East
+  India goods from Holland and articles of European manufacture which
+  the navigation laws required to be imported from England only. Moore
+  seized the ship but it was forcibly taken out of his possession by a
+  mob, towed down the river and most of the cargo unloaded. Then, it is
+  stated, Sir William Keith made a fresh seizure in a collusive action
+  brought in the county court and the ship was sold for a trifling sum.
+  Moore acting by advice of Sir Philip Yorke, the attorney-general,
+  brought actions in the supreme court of Pennsylvania against the
+  parties concerned, whereupon Keith and his colleagues in the assembly
+  procured the passage of the Act of 1727 depriving that court of
+  original jurisdiction. This, said Fitzwilliam, would discourage
+  prosecutions for breaches of the acts of trade.
+
+    “For as the judges of those courts are men but of mean
+    circumstances and as mean capacities, so are the juries more apt
+    to be biased in favor of those who transgress the law, the common
+    people being generally of opinion that those who bring goods from
+    foreign parts can afford them better pennyworths than others who
+    import the like commodities from Great Britain where the duties and
+    customs are high.”
+
+  Moore added that the magistrates were “all merchants.”[221] The
+  proprietors addressed a counter petition to the council in favor of
+  the act, stating that they were not concerned in the controversy
+  between Keith and Moore but that the act had been passed after nine
+  months careful consideration and was not intended to prejudice His
+  Majesty’s service, that so far as they were informed Moore was the
+  first person to attempt to introduce the practice of bringing actions
+  in the supreme court, and that it would prove a great hardship to
+  the inhabitants living in remote settlements to compel them to
+  attend court at Philadelphia and that the merchants were frequently
+  gentlemen of the best fortune and substance as well as probity.[222]
+  The act was referred to Mr. Fane, who wrote an elaborate opinion in
+  which he questioned whether original jurisdiction was vested in the
+  supreme court by the Act of 1722 although there were some words that
+  pointed that way.
+
+    “It is true the judges of the Supreme Court in the case of Mr.
+    Moore have thought fit to exercise a jurisdiction, but I see
+    no great conclusion from thence, because courts of law are
+    ever willing, upon the slightest pretenses, to extend their
+    jurisdiction.”[223]
+
+  The commissioners for trade and plantations reported adversely to the
+  act and it was accordingly disallowed.[224]
+
+  Whatever may have been the intention of the Act of 1722, it
+  would seem that the supreme court was chary of assuming original
+  jurisdiction. Chief Justice Tilghman in _Commonwealth_ v.
+  _Smith_[225] informs us that prior to 1786 the court had, certainly
+  for a long time, exercised no original jurisdiction except in cases
+  of fines and common recoveries, which, though actions in form, were
+  in substance no more than mere conveyances of record.
+
+  Two acts amending the Act of 1722 were passed prior to the
+  Revolution. By the first of these, the Act of September 29, 1759,
+  the judges of the court of common pleas were appointed to hold the
+  orphans’ court, a duty which had for some time previously been
+  assigned to the quarter sessions, and the judges of the latter court
+  were not to sit in the common pleas, which was to consist of five
+  persons. No exception was taken to these provisions, which were
+  approved, but the proprietors strongly objected to another clause in
+  the act which provided that the judges of the common pleas, as well
+  as the justices of the supreme court, should hold their commissions
+  _quam diu se bene gesserint_ and be removable only on the address
+  of the assembly. The committee of the council were strongly against
+  this provision, not only as limiting the charter rights of the
+  proprietors, who were therein permitted to nominate judges without
+  limitation, but as perpetuating in the seat of justice men of
+  secondary capacity, except the chief justice. It was further stated
+  that in the other colonies the judges held _durante bene placita_,
+  and it was not expedient to make a change in Pennsylvania which
+  would confer no real benefit upon the inhabitants and “excite a
+  just jealousy in the other colonies by seeming to extend advantages
+  to this proprietary government, which have been denied to those
+  under his majesty’s immediate care.”[226] The act was accordingly
+  disapproved September 2, 1760.
+
+  Another amendment to the Act of 1722 was adopted, by which the
+  number of supreme judges was increased to four, and the removal of
+  cases into the supreme court in suits involving less than fifty
+  pounds, except in cases involving title to land, was prohibited
+  under penalty, in the case of the plaintiff, of loss of costs and
+  of the defendant of double costs. It was also provided that appeals
+  to England should be taken only on demurrer to evidence, bill of
+  exceptions or writ of error. This act was allowed to become a
+  law.[227]
+
+  It will be noticed that no jurisdiction is conferred upon the courts
+  in matters of divorce. We have seen that in the Dutch period divorce
+  was recognized in accordance with the doctrines of the Reformation,
+  but after the English conquest the subject is hardly recognized as
+  belonging to the domain of ordinary courts. In an amendment to the
+  Duke of York’s Laws of 1665 it is provided that in cases of adultery
+  the proceedings shall be “according to the laws of England which is
+  by divorce,”[228] but this does not say more than that a divorce
+  _a mensa et thoro_, or judicial separation, would be recognized
+  and Chancellor Kent is authority for the statement that during the
+  colonial period no divorce took place in the colony of New York.[229]
+  In Pennsylvania the “great law” of 1682 in defining and punishing
+  adultery provided that the guilty parties should “be liable to a Bill
+  of Divorcement, if required by the grieved husband or wife” within
+  a year after conviction.[230] This was reënacted in 1693[231] and
+  again in 1700[232] with a more severe punishment for the crime. The
+  last act was repealed by the Crown in 1705 upon the advice of the
+  attorney general, Sir Edward Northey, who pointed out that “by this
+  law for adultery a bill of divorce is allowed to the injured husband
+  and wife, but the divorce is not explained, whether to be _a vinculo
+  matrimoni_ or only from bed and board, as the ecclesiastical laws
+  of England allow, which I think ought to be ascertained.”[233] The
+  defect was remedied by the Act of January 12, 1705-6,[234] which, in
+  adultery, gave the injured party a divorce from bed and board, to
+  be granted on bill by the governor or lieutenant-governor for the
+  time being. This act was allowed to become a law. If the governor
+  exercised this power it has escaped notice in the minutes of the
+  council, but among the records of the court of chancery is a bill
+  filed by a wife against her husband, praying for a writ of _ne exeat_
+  against the defendant, until he should enter security to answer a
+  bill for divorce.[235] The writ was allowed but there is no entry
+  of the final result of the divorce proceeding. It would have been
+  strange, however, if the practice of obtaining a divorce by act of
+  parliament, which was the only means by which the marriage bond
+  could be dissolved in England in the eighteenth century,[236] had
+  not been imitated in America, and, accordingly, we find a bill
+  passed February 18, 1769,[237] to dissolve the marriage between
+  Curtis Grubb and Ann Few, his wife, and to enable him to marry again.
+  Before approving this bill Governor John Penn sent to the assembly
+  for the papers and proofs in support of the charges of adultery and
+  bigamy made against the wife and suggested several amendments to the
+  act.[238] When the laws of 1769 were submitted to the privy council,
+  this act was referred by the committee for plantation affairs to Mr.
+  Jackson, their counsel, who gave it as his opinion that the assembly
+  had properly exercised a power which he was inclined to think they
+  ought to be entrusted with, but, as the matter was very important, he
+  advised that the attorney and solicitor-general be consulted.[239]
+  The point was so referred but no reply was received and the act
+  became a law by lapse of time. The same question arose three years
+  later when a bill was passed to divorce George Keehmle from his wife
+  Elizabeth, who had been tried, in the supreme court, for adultery
+  and convicted.[240] This time the committee on plantations advised
+  that the king should refuse to confirm the act and should give “such
+  directions as shall have the effect to prevent the laws passed by the
+  legislature of Pennsylvania, becoming a precedent and example for the
+  exercise of like powers in other colonies.” The act was accordingly
+  declared void April 27, 1773,[241] and in the same year a circular
+  letter sent to the provincial governors commanding them not to give
+  their assent to any bill “for the divorce of persons joined together
+  in Holy Marriage.”[242] Prior to this the governor had refused his
+  consent to a bill “making void the pretended marriage of Rebecca
+  Vanakin with a certain John Martin.”[243] No more divorce acts were
+  passed until 1779 when James Martin was divorced from his wife
+  Elizabeth, who had eloped with Sergeant Havell of the British Army
+  “taking with her the said James Martin’s effects, and leaving him to
+  pay sundry debts of her contracting.”[244] From this time the number
+  of special acts granting divorces increases. Ten were granted prior
+  to the Act of September 19, 1785,[245] which conferred jurisdiction
+  in divorce upon the supreme court and authorized absolute divorces
+  in the cases of impotency at time of contract, bigamy, adultery and
+  willful and malicious desertion for four years, as well as divorces
+  from bed and board in other cases, an extremely liberal law for that
+  day but soon superseded by legislation even more liberal. Private
+  divorce acts, however, were passed by the legislature until forbidden
+  by the constitution of 1874.[246]
+
+  An examination of the judges’ commissions, in the archives, will
+  show that the practice, prior to the Revolution, was to issue to the
+  justices of the peace of each county a joint commission authorizing
+  three or more of them to hold the quarter sessions, and likewise
+  assigning any three or more of them to hold the court of common
+  pleas. Separate commissions were issued to the chief justice and
+  justices of the supreme court, and a joint commission of oyer and
+  terminer.[247] In 1717 Governor Keith questioned the propriety of
+  issuing commissions to the judges in the name of the proprietor
+  instead of the king, since, even if the charter could be so
+  construed, the king could not grant away any part of his prerogative
+  inseparable from the sovereignty. The council replied that the
+  difficulty arose from not distinguishing fully “between the state
+  of England and that of new colonies made without the Verge of the
+  ancient Laws of that kingdom.”
+
+    “That these American Lands being new Discoveries of Tracts long
+    settled by their native inhabitants the indians who were under no
+    subjection to nor had any knowledge of the laws of England; those
+    laws, whenever they come to reach these Lands, must by some Regular
+    method be extended to them, for they cannot be supposed of their
+    own nature to accompany the people into these Tracts in America,
+    any more than they would the same persons going into any other
+    foreign part of the world.”
+
+  And further, that the royal prerogative as exercised in England could
+  “no more be understood to accompany the sovereignty than all the
+  other laws can.”[248] Keith yielded to the opinion of the council.
+  After the death of Penn, judicial commissions were issued in the
+  name of the king and attested by the governor, by authority of the
+  proprietor, while minor officials were commissioned in the name of
+  the proprietors alone.[249]
+
+  In these commissions the time for which they are to run is not
+  stated. The commission of the peace seems to have been filled up and
+  renewed at first yearly, but later at longer intervals of irregular
+  length, and it was the custom for governors to renew the commissions
+  at, or soon after, their accession to the government.[250] At these
+  various renewals it may be presumed that undesirable members were
+  dropped. The justices of the supreme court also were recommissioned
+  from time to time, but would seem usually to have held their offices
+  until death or resignation. The real trouble seems to have been to
+  persuade men of ability to fill the thankless positions. The assembly
+  neglected the matter of compensation, and on Penn’s second visit
+  he seems to have himself promised the chief justice one hundred
+  pounds a year. In 1706 the salary of the chief justice is said to
+  have been in arrears, and it was proposed that the assembly should
+  be asked to make some provision for the judges, as it was unfair to
+  throw this expense on the proprietor. Roger Mompesson, judge of vice
+  admiralty, who was appointed to the office soon afterwards, accepted,
+  “though the present encouragement be but very slender and no way
+  inviting.”[251] The perquisites of the court were the fees allowed by
+  the fee bill. Those established by the Act of March 30, 1723,[252]
+  were four shillings for every _allocatur_ signed, six shillings
+  for every case brought into court by _certiorari_, taking bail two
+  shillings, every judgment six shillings, every rule two shillings. As
+  late as 1772 the salary of the chief justice of the supreme court was
+  two hundred pounds, and of the associate justices one hundred and
+  fifty pounds.[253]
+
+  In the county courts the justices received trifling fees for various
+  services, and the expenses of the sitting of the court were paid by
+  the county.
+
+  The Act of January 28, 1777,[254] provided that one justice should
+  be appointed to preside in the respective courts of common pleas,
+  quarter sessions and orphans’ court, but the honorary office of
+  president of the court had existed from the earliest times and was
+  applied to the first in the commission, or senior justice, the same
+  person being, in many cases, for a long series of years first in the
+  commission.[255] The city of Philadelphia, under its charter, had
+  a criminal court of its own, presided over by the city recorder,
+  usually a lawyer, assisted by the aldermen. Those of the aldermen who
+  were in the commission of the peace also sat in the county courts.
+
+  By an Act of January 12, 1705,[256] a special court was established
+  for the trial of negroes, consisting of two judges, specially
+  commissioned by the governor, in the respective counties, assisted by
+  six freemen of the county; the purpose being to obtain speedy trials
+  and summary punishment for negro offenders, whose crimes excited some
+  alarm in the province. This act was repealed in 1780.
+
+  By an Act of May 28, 1715,[257] the justices of the peace were given
+  jurisdiction to try, and finally determine all suits for debts
+  and demands under forty shillings, and issue executions on their
+  judgments, through the constable, by levy on the goods or attachment
+  of the body of the defendant. The court of the city of Philadelphia
+  for the collection of small debts was abolished, and it was further
+  enacted that no court of the province should have jurisdiction of
+  debts under said amount, but that the act should be the exclusive
+  remedy. Debts for rents or contracts relating to real estate were
+  excluded from this jurisdiction. The act was allowed to become a
+  law, and is the foundation of the present civil jurisdiction of the
+  justices of the peace as amplified by the Act of March 20, 1810,[258]
+  and subsequent acts.
+
+  Briefly summarized, the administration of justice at the beginning of
+  the Revolution was vested in the county courts of quarter sessions,
+  common pleas and orphans’ courts, presided over by justices of the
+  peace, commissioned by the governor, none of whom, prior to the
+  Revolution, appears to have been learned in the law. There was a
+  supreme provincial court consisting at first of five, later of three
+  and finally of four judges, of whom the chief justice was generally a
+  lawyer or at least possessed of some legal experience. This court had
+  a general appellate jurisdiction, and original criminal jurisdiction
+  in capital cases. The original jurisdiction in civil cases does not
+  seem to have been well defined but was assumed to exist in cases of
+  fines and common recoveries. Where a case appealed involved issues
+  of fact, such issues were tried in the supreme court before a jury.
+  The court sat twice a year in Philadelphia and went on circuit to the
+  other counties when required. From this court an appeal could, in
+  certain cases, be taken to the king in council. There were special
+  courts, such as that of the corporation of Philadelphia and that for
+  the trial of negroes, and, finally, the court of vice admiralty under
+  the Crown.
+
+  As for the judges of the respective courts, to mention them all would
+  be to give a biographical history of the province. Nearly every man
+  of distinction at that day filled at some time a place on the bench.
+  It was, in the lower magistracy, the stepping stone to higher office,
+  and, with the higher officials, part of the burden and duty of
+  government. It is interesting to note that Benjamin Franklin sat for
+  a short time in the common pleas, but was wise enough to see that the
+  position required a special knowledge that he did not possess and was
+  not sufficiently interested to acquire.[259] Except the recorders of
+  Philadelphia, few, if any, of the judges of the lower courts had any
+  legal training, beyond such as they acquired in the exercise of their
+  office. In the supreme court, David Lloyd, chief justice from 1717 to
+  1731, had a reputation in his day as an able lawyer, but in history
+  he is chiefly conspicuous as the spokesman of the anti-proprietary
+  party in the assembly, and, as we have seen, was actively concerned
+  in the development of the judicial system of the province.[260] James
+  Logan, his one-time enemy, who succeeded him in the office, was
+  the most conspicuous figure in the province in his time, excepting
+  only Penn himself. He was not a lawyer, but was talented and well
+  educated, and had sat in the quarter sessions and common pleas of
+  Philadelphia for years. John Kinsey, who became chief justice in
+  1743, was a lawyer in extensive practice, and the governor considered
+  it a matter of congratulation that one of the legal profession had
+  consented to take the position. At the time when Dallas’s Reports
+  begin, William Allen presided. He was said to be the richest citizen
+  in the province and was a son-in-law of the distinguished lawyer,
+  Andrew Hamilton. Educated in London, he had filled various offices,
+  including those of mayor, recorder of Philadelphia and judge of
+  the common pleas, and was also one of the original trustees of the
+  College of Philadelphia.[261] In 1774 Benjamin Chew, who had studied
+  law in Hamilton’s office and also in the Middle Temple, was appointed
+  chief justice. During the Revolution he was displaced, but after
+  spending fourteen years in retirement was made president of the high
+  court of errors and appeals in 1791.
+
+  In the early days of the settlement there was no public building in
+  the capital where court could be held, and, as time went on, the
+  inconvenience of this state of affairs became manifest. In 1705,
+  the grand jury of Philadelphia County recommended the levy of a
+  tax to build a courthouse “where the bell now stands.”[262] This
+  was at Second and Market streets where the town bell, erected on a
+  mast, gave notice to the citizens of important gatherings. Penn had
+  intended that the public offices should be placed in Centre square,
+  but that spot was then far distant from the centre of population.
+  There was some dispute between the city and county as to the division
+  of the expense of erecting the proposed building and the matter was
+  before the council in 1708, when Justices Growdon and Pidgeon stated
+  that “it is not only scandalous to both town and county, but even
+  to the whole Govmt. that while every other county has their County
+  house, Here in the Capital town of the Govmt. the Magistrates are
+  obliged to hold court in an ale house.”[263] It was finally agreed
+  that if the county would build some necessary bridges, the town would
+  build the courthouse. Accordingly a small, quaint two-story structure
+  was built at Second and Market streets, of which the municipality was
+  then very proud and which served all the purposes of a town hall.
+  Here the assembly met until the erection of the statehouse and here
+  elections were held, while from the balcony the inaugural addresses
+  of the governors were delivered.[264] Near by were the stocks and
+  the pillory. Besides the city and county courts, the supreme court
+  also sat there twice a year. When the statehouse was finished the
+  supreme court moved to that building. In 1787 the erection of a
+  new courthouse was commenced at Sixth and Chestnut streets, upon
+  land devoted to that use by the assembly in 1762,[265] but while
+  Philadelphia was the capital, the building was used by the Federal
+  Government. When the capital was removed to Washington the courts
+  took possession of the building long intended for their use. The old
+  courthouse was ruthlessly torn down in 1837, an extraordinary act of
+  vandalism even for those times.
+
+  In 1698 a volume was printed in London, entitled, “A historical and
+  geographical account of the province of Pennsylvania and of the West
+  New Jersey in America, etc., by Gabriel Thomas who resided there
+  about fifteen years.” Regarding two of the learned professions he
+  writes: “Of lawyers and physicians I shall say nothing, because
+  the country is very peaceable and healthy; long may it continue
+  so and never have occasion for the tongue of one and the pen of
+  the other, both equally destructive to men’s estates and lives;
+  besides, forsooth, they hangman-like, have a license to murder and
+  make mischief.” Such views, so far, at least, as our profession is
+  concerned, were not uncommon among the early colonists. Many of
+  them belonged to persecuted religious sects whose experiences with
+  the law in their former homes were not such as to inspire pleasant
+  sentiments toward the courts or their officers. Few were drawn from
+  that class of society which, through birth or education, could be
+  expected to feel or display any interest in professional learning,
+  while those few who might have done so, were enthusiasts, filled
+  with utopian theories of government, or utilitarians, who regarded
+  the lawyer as an “unproductive consumer.” Nor was there anything to
+  tempt an ambitious barrister to desert Westminster Hall for a hut in
+  the wilderness. The colonists were usually poor, their possessions
+  half-cleared farms, commerce was controlled by the mother country,
+  fees were necessarily small, and the only road to professional
+  distinction and wealth was through crown offices or successful land
+  speculation. However, since courts without counsel are as Hamlet
+  without Hamlet, there are evidences that even in the earliest days
+  there were men willing to undertake the conduct of cases.
+
+  The early records of the court of assizes of New York show
+  unmistakably the activity of certain men who appear in so many cases
+  that they must have been regarded as regular practitioners.[266] In
+  the records of the court of New Castle the following minute appears
+  under date of November 7, 1676:--
+
+    “Uppon the Petition of Thomas Spry desiering that hee might bee
+    admitted to plead some Peoples cases in Court etc. the Worpp^{ll}
+    Court have granted him License So long as the Petitioner Behaves
+    himself well and carrys himself answerable thereunto.”[267]
+
+  Evidently something must have happened in 1677 to disgust the
+  governor with the ways of the law, for on May twenty-ninth of that
+  year the governor and council “resolved and ordered that pleading
+  atturneys bee no Longer allowed to practice in ye Government but for
+  ye depending Causes,” which order was read in open court at Upland
+  and New Castle.[268] Prior to the receipt of this order at New Castle
+  John Mathews petitioned to be admitted as an attorney. The record
+  states:--
+
+    “The Court did admit the Peticon^r as an attorney and was sworne
+    accordingly: You doe sware by the Everliving God that you will
+    according to Lawe truely plead & manadge all cases wherein you
+    shall bee Imployed by Yo^r Clyant that you will not exact in yo^r
+    fees above what shall bee allowed by the Governo^r & Court That you
+    will not in one and the same action take fees both of the Pl^t and
+    def^t That you will not take any apparent unjust case in hand, but
+    in all Respects behave yo^{r}selve as all Attorneys are obliged to
+    by the Lawes of this governm^t.”[269]
+
+  Subsequently it was ordered that--
+
+    “The Cryer of the Court is to have for every Attorney that shall be
+    admitted & sworne in Court twelve Gilders or halfe a bever.”[270]
+
+  The crier no longer gets a beaver, but there is still a fee to be
+  paid on admission by those prisoners of hope who have satisfied the
+  examiners.
+
+  It was the dream of Penn that in his colony the laws should be so
+  plain and the pleadings so simple that every person could plead his
+  own cause, and it was so provided in his laws agreed upon in England
+  and embodied in the Act of March 10, 1683. His paternalism, and the
+  peace-loving tendencies of his more sincere followers, tended to
+  discourage skilled advocacy. In 1685 and again in 1686 the council
+  promulgated laws against lawyers’ fees. That of 1686 is as follows:--
+
+    “For the a Voyding of to frequent Clamours and manifest
+    Inconveniences wch usually attend mercenary pleadings in Civill
+    Causes, It is Enacted by ye authority aforesaid, that noe persons
+    shall plead in any Civill Causes of another, in any Court
+    whatsoever within this Province and Territories, before he be
+    Solemnlye attested in open Court, that he neither directly or
+    Indirectly hath in any wise taken or received, or will take or
+    receive to his use or benefit, any reward whatsoever for his
+    soe pleading, under ye penalty of 5 lb. if the Contrary be made
+    appear.”[271]
+
+  Neither of these acts, however, passed the assembly.
+
+  It soon became evident that lawyers could not, or would not,
+  be dispensed with, and in 1686 David Lloyd was dispatched by
+  the proprietor to Pennsylvania with a commission to act as
+  attorney-general of the province. The Acts of 1710 and 1715, for
+  establishing the courts, had provisions for the admission of
+  attorneys, as also the Act of May 22, 1722, which finally became a
+  law, and which provided “that there may be a competent number of
+  persons of an honest disposition and learned in the law, admitted by
+  the justices of the said respective courts, to practise as attorneys
+  there.” In the Act of March 30, 1722-23,[272] for regulating official
+  fees, the attorney’s oath is prescribed in a form very similar to
+  that used at the present day: “Thou shalt behave thyself in the
+  office of attorney, within the court to the best of thy learning and
+  ability, and with all good fidelity, as well to the court as to the
+  client. Thou shalt use no falsehood, nor delay any person’s cause for
+  lucre or malice.”
+
+  Even before this a miniature bar had sprung up among those active
+  in public affairs, among whom were Abraham Mann and John White,
+  members of the assembly, and Patrick Robinson, clerk of the court,
+  and afterwards a member of the provincial council. In 1683 John White
+  was appointed attorney-general to try a case against counterfeiters,
+  and in 1685 Samuel Hersent was appointed to this office. The two men
+  who were most active during the earliest period were David Lloyd
+  and John Moore. The latter, who had emigrated to Pennsylvania from
+  South Carolina prior to 1696, was appointed advocate of the court of
+  admiralty by Colonel Quarry, and was afterwards attorney-general.
+  As the province grew and prospered others came in, and in the early
+  part of the eighteenth century there was a considerable influx of
+  educated lawyers. The natural result was greater precision in the
+  pleadings and closer adherence to English forms and practice. Robert
+  Assheton, who filled the office of prothonotary from 1701 to 1727, as
+  well as that of associate justice of the supreme court, was a trained
+  lawyer; from his time the indictments were scientifically prepared,
+  and in fact all the clerical work of the court offices improved.
+  Nevertheless, the bar must have been a small and select body, since
+  there are recorded accusations of attempts to monopolize it. In
+  1708[273] a petition was read in the council from one James Heaton--
+
+    “representing that he had been sued in an Action of Trover and
+    Conversion, in the County of Bucks, by J. Growdon, yt he had
+    procured a writt of Error, by which the cause is to be brought
+    before the Provincial Judges, in the said County, the 14th of this
+    Instant; that in the meantime the said Jos. Growdon arrested him
+    in Philadia. on the same account in an Action to which he must
+    answer at the County Court in Philadia., on the 15th Instant, wch.
+    two several Courts coming so near together layes the Petitr. under
+    great hardships; he also represents that his antagonist himself is
+    Judge of the Provincial Court, and further that he has retained
+    all the Lawyers in the County (that have leave to plead,) against
+    him; Whereupon he prays that the Govr. would be pleased to appoint
+    an Impartial Judge to hear his cause, and would either assign him
+    Counsel, or so ascertain the Provincial Court, that if he be at the
+    Charge of procuring some from New York, he may not be disappointed.
+
+    “Upon wch. Jos. Growdon himself being present, answered that his
+    action in Bucks, and that in this County, are different; that he
+    never retained more than one Counsell, viz: John Moore, in this
+    cause, but that he not being able to attend, procured another to
+    act for him; by which means without any design of his, two became
+    Concerned in it, that it being impracticable that a man should
+    Judge in his own cause: that part of the Petition was altogether
+    needless.”
+
+  It was resolved that the petitioner be left to find his own counsel,
+  and Yeates, the second judge, was assigned to hear the case.
+
+  In the following year Francis Daniel Pastorius and Johannes Jawert
+  petitioned the council against proceedings in ejectment brought by
+  one Sprogel to recover the estates of the Frankfort Company, an
+  association of German purchasers of land, averring that Sprogel as
+  part of his “abominable plot did fee all the known attorneys or
+  lawyers of this province either to speak for him or to be silent
+  in court, in order to deprive the petitioners of all advice in
+  law.”[274] Upon examining the petitioners in the council David Lloyd
+  was declared “the principal agent and contriver of the whole,” and
+  steps were taken to protect the purchasers. The case is reported in
+  Pennypacker’s Colonial Cases with an account by Pastorius of the
+  whole curious transaction.[275]
+
+  In _Lyle_ v. _Richards_[276] Chief Justice Tilghman remarks that
+  there were few lawyers of eminence in the province prior to Tench
+  Francis, although there were never wanting strong minds well
+  able to conduct the business of the courts, and the fact that
+  the leading lawyers of the following generation received their
+  training in the Inns of Court led them perhaps to look down on their
+  predecessors, some of whom were in extensive practice that included
+  the neighboring colonies. Disparaging remarks by contemporaries are
+  not infrequent. Secretary Richard Peters, writing in 1749 to the
+  proprietors says of the bar in general: “All of whom except Francis
+  and Moland are persons of no knowledge, and, I had almost said, of
+  no principle.”[277] One name, however, stands at the head of the
+  early bar, that of the brilliant Andrew Hamilton. The history of
+  Hamilton is worth noting, as he is the only American lawyer of
+  his generation that enjoyed an international reputation. A native
+  of Scotland, he first taught school and then practiced law in
+  Maryland, from whence he removed to Philadelphia, about 1715, having
+  been retained to represent the proprietary interests. In 1717 he
+  became attorney-general and was active in the litigation over the
+  Maryland boundary. He also appeared in the high court of chancery
+  for the young proprietors, in the contest over Penn’s will,[278]
+  having been called to the English bar in 1712. The most interesting
+  personal episode in his career was the part he took in the erection
+  of Independence Hall, which was built from plans prepared by him
+  and under his personal supervision. To the legal profession he is
+  best known for his brilliant and successful defense of the printer,
+  Peter Zenger, tried for seditious libel, a case of real historical
+  importance as well as contemporary interest. In this case, tried in
+  the supreme court of New York in 1735, Hamilton, after the court had
+  refused his offer to prove the truth of the statements alleged to
+  be libelous, carried the jury against the instructions of the court
+  and obtained the defendant’s acquittal by a bold address in which
+  the liberty of the press was asserted with unprecedented vigor.
+  The doctrines which he advanced, regarded as unsound at the time,
+  have since become indelibly impressed upon English and American
+  law, and the trial deserves careful reading on account of the light
+  that it throws on contemporary political conditions and the effect
+  that it had on the law of libel.[279] On the other hand, the part
+  played by Hamilton in the suppression of the court of chancery
+  shows a willingness to sacrifice the science of jurisprudence to
+  the exigencies of politics, characteristic of his time, but not in
+  keeping with the best professional traditions. Tench Francis, the
+  next bar leader of distinction, enjoyed a greater reputation with his
+  successors in the post-Revolutionary period, and is praised by those
+  whose learning entitled them to speak with authority.[280]
+
+  As the century advanced it became the general custom, for those
+  who could afford it, to send their sons to be educated in the law
+  at the Inns of Court. This was more prevalent in the Southern and
+  Middle than in the New England colonies. From 1760 to the end of the
+  Revolution there were more than one hundred American students of law
+  in London, of whom forty-seven were from South Carolina, twenty-one
+  from Virginia, sixteen from Maryland, eleven from Pennsylvania,
+  five from New York and the rest from the other colonies, no other
+  colony than those named having more than two students.[281] Many
+  of these men attained great distinction in professional and public
+  life. Among those from Pennsylvania were Chief Justices Benjamin
+  Chew, Thomas McKean, Edward Shippen and William Tilghman; Justice
+  Jasper Yeates; Presidents of the Supreme Executive Council, Joseph
+  Reed and John Dickinson; as well as such distinguished lawyers and
+  citizens as Nicholas Waln, Edward and Richard Tilghman, William
+  Rawle, Jared Ingersoll and Peter Markoe. It is not to be supposed
+  that the education afforded by the Inns of Court corresponded to
+  that given in a modern law school. Everything depended on the
+  diligence of the student himself, and admission as a barrister came
+  in due course after eating the required number of dinners regularly
+  during the appointed terms. But the atmosphere and associations
+  were conducive to study, while inspiration was to be drawn from the
+  courts at Westminster, where the student attended and took notes
+  of the arguments and decisions. Such notebooks were, in those days
+  of scanty reporting, the treasured possessions of lawyer and judge
+  and carefully consulted in the preparation of important arguments
+  and decisions. In _Clayton_ v. _Clayton_,[282] the manuscript
+  notes of one of these students were cited in the supreme court of
+  Pennsylvania. The case was one involving the question as to whether
+  certain devisees under a will took an estate in fee or for life,
+  there being no words of inheritance, but a direction to divide.
+  Mansfield’s decision in _Wigfall_ v. _Brydon_,[283] was cited in
+  favor of a fee. It being difficult to reconcile this decision with
+  other authorities, the case was explained as turning on a direction
+  to sell and divide, which appeared from the manuscript notes of the
+  case of _Goodright_ v. _Patch_, decided in the King’s Bench, June
+  20, 1773, taken by Edward Tilghman while a student at law. So, too,
+  in the political capital of the kingdom, the student studied the
+  conflicting doctrines of the Tory and the Whig and prepared his mind
+  for the momentous changes about to occur in his home across the sea.
+
+  Those who could not go abroad for a legal education served a
+  clerkship in the office of a practitioner in the courts. Just what
+  were the qualifications for admission do not seem to be recorded. At
+  the earliest period sufficient assurance seems to have been all that
+  was required, but, as the legal fraternity became better organized,
+  it may be presumed that the courts gave more consideration to the
+  fitness of applicants. In 1759 the supreme court made an order--
+
+    “That for the future no persons be admitted attorneys or council
+    of this court without being previously examined as to their
+    qualifications to practice, nor without having taken the oaths or
+    affirmations of allegiance to his Majesty and subscribed the usual
+    Declaration.”[284]
+
+  At September term, 1760, Mr. Chew and Mr. Ross were appointed to
+  examine an applicant and at April term, 1761, Francis Hopkinson was
+  examined by Mr. Ross and Mr. Dickinson. Later admissions do not
+  recite an examination, and, perhaps, this duty was delegated to the
+  local bar, but the fact that there are no common pleas dockets for
+  Philadelphia County on file prior to the Revolution renders the
+  subject obscure. From the few minute books of the Philadelphia common
+  pleas that have escaped destruction we find that by 1790 it was the
+  established practice for a member of the bar to move in open court
+  for the admission of the candidate. The court would then appoint
+  a special committee of three members of the bar to conduct the
+  examination, and, if the result was favorable to the applicant, he
+  was admitted and sworn.[285]
+
+  Prior to the Revolution the path of the law student was made easier
+  by the publication of Blackstone’s Commentaries, a work that was
+  said by Edmund Burke to have had a larger sale in America than in
+  England, a statement that would seem to be justified, for hardly had
+  the first complete edition appeared in England before an American
+  edition was printed at Philadelphia (1771) of which about fourteen
+  hundred copies were subscribed for in advance, and this although
+  one thousand copies of the English edition had been imported and
+  sold in America.[286] The subscription list to the local edition
+  is headed by seven colonial governors and lieutenant-governors,
+  including Richard Penn of Pennsylvania and William Franklin of
+  New Jersey. The alphabetical list, headed by “John Adams, Esq.,
+  Barrister at Law, Boston,” includes many distinguished names, while
+  of the local subscribers, many were from the interior parts of the
+  state; John Creigh, bookseller of Carlisle, alone subscribing for
+  forty-five sets. It is hardly possible to overestimate Blackstone’s
+  influence upon American private law. His Commentaries became at once
+  the _vade mecum_ of the lay judge and the pioneer lawyer, in regions
+  where libraries were unknown. The work in fact long stood for the
+  common law itself in many communities, but it may be questioned
+  whether the Commentaries were not, for a period, detrimental to
+  legal scholarship, whether their flowing sentences did not carry the
+  superficial student too easily over the submerged rocks of the common
+  law, whether learned jurists have not wasted time in the discussion
+  and criticism of Blackstone’s theories and errors that might have
+  been better spent in a reexamination of his sources.
+
+  As the Revolution approaches we find an able group leading the bar,
+  Moland, Chew, Ross, Waln, Tilghman, Galloway and Dickinson. Time
+  was no object to the courts in those peaceful and slumberous days.
+  In a manuscript book of reports giving some cases of that time
+  the reporter says, in noting _Haldane_ v. _Duffield_, April Term,
+  1768, “The remainder of Mr. Chew’s argument I did not hear nor did
+  I wait Mr. Dickinson’s and Mr. Tilghman’s conclusion, this case
+  having continued twelve hours.”[287] In 1774 Chew succeeded Allen
+  as chief justice,[288] and in September of that year hospitably
+  entertained the members of the Continental Congress then assembled in
+  Philadelphia. Washington and John Adams both mention dining with him
+  on the twenty-second of that month. Adams writes in his diary:--
+
+    “Dined with Mr. Chew Chief Justice of the Province with all the
+    gentlemen from Virginia, Dr. Shippen, Mr. Tilghman and many
+    others. We were shown into a grand entry and staircase and into
+    an elegant and magnificent chamber until dinner. About 4 o’clock
+    we were called down to dinner. The furniture was all rich. Turtle
+    and every other thing, flummery, jellies, sweetmeats, of 20 sorts,
+    trifles, whipped sillabubs, floating islands, fools, &ct., and then
+    a dessert of fruits, raisins, almonds, pears, peaches. Wines most
+    excellent and admirable. I drank Madeira at a great rate, & found
+    no inconvenience in it.”[289]
+
+  The stately mansion of the chief justice yet stands, the fine old
+  colonial hospitality a treasured memory. The smoke and dust of
+  fratricidal war darkened it, its walls were battered with shot and
+  its floor stained with blood; bench and bar were scattered, some
+  to attain distinction in the camps and councils of the new nation,
+  others to live obscurely through weary years of suspicion or to fly
+  from the country of their birth as attainted traitors, their lands
+  forfeited and their names soon forgotten.
+
+
+  FOOTNOTES:
+
+  [171] II Statutes at Large, 461.
+
+  [172] II Statutes at Large, 148; Charter and Laws of Pennsylvania,
+  311.
+
+  [173] II Statutes at Large, 456, 482.
+
+  [174] II Colonial Records, 185, 19, 11 mo. 1704. Penn & Logan
+  Correspondence, Memoirs of Historical Society of Pennsylvania, Vol.
+  X, 5. Lloyd attempted to regulate the practice in ejectment in
+  his bill of 1706 which was rejected by the governor. His idea was
+  to require a real lease, entry and ouster and to do away with the
+  fictitious proceeding--“A new practice, allowed only in Westminster
+  Hall.” II Colonial Records, 354, February 24, 1706-7.
+
+  [175] II Colonial Records, 261, September 19, 1706.
+
+  [176] II Colonial Records, 271, 14, 9 mo. 1706. In a speech the
+  governor refers to it as “the longest perhaps that ever was drawn up
+  in America.” II Colonial Records, 313.
+
+  [177] Penn & Logan Correspondence, Memoirs of Historical Society of
+  Pennsylvania, Vol. X, 180.
+
+  [178] II Colonial Records, 268, 3, 8 mo. 1706.
+
+  [179] II Colonial Records, 263, 23, 7 mo. 1706; 266, 25, 7 mo. 1706;
+  276, 27, 9 mo. 1706.
+
+  [180] II Colonial Records, 272, 16, 9 mo. 1706.
+
+  [181] II Colonial Records, 298, 23, 10 mo. 1706.
+
+  [182] II Colonial Records, 304, January 15, 1706-7.
+
+  [183] II Colonial Records, 326, February 6, 1706-7.
+
+  [184] II Statutes at Large, 500; Charter and Laws of Pennsylvania,
+  319; II Colonial Records, 349, February 21, 1706-7.
+
+  [185] In the list of acts before the Commissioners of Trade in
+  1694 is one purporting to be entitled, “Law about appeals to the
+  Supream Court,” but if this is the Act of 1693 it should have been
+  Provincial Court. Board of Trade Journals, Mss. Historical Society of
+  Pennsylvania, Vol. VII, 309.
+
+  [186] II Colonial Records, 362, March 4, 1707.
+
+  [187] February 28, 1710-11, II Statutes at Large, 301; II Colonial
+  Records, 552, February 28, 1710-11.
+
+  [188] II Colonial Records, 549, February 10, 1710-11.
+
+  [189] II Statutes at Large, 331. Twenty shillings was the sum which
+  Governor Evans considered “too small for any person duly qualified to
+  accept of.” II Colonial Records, 273, 16, 9 mo. 1706.
+
+  [190] II Statutes at Large, 548; I Pennsylvania Archives (1st
+  Series), 157.
+
+  [191] II Statutes at Large, 554; III Statutes at Large, 441, 467. On
+  the other hand, Penn complained of the expense to which he was put in
+  endeavoring to have the acts approved by the crown officers.
+
+  [192] III Statutes at Large, 32, 440, 466.
+
+  [193] Charter and Laws of Pennsylvania, 395; I Pennsylvania Archives
+  (1st Series), 196.
+
+  [194] II Pennsylvania Archives (1st Series), 107, see also, VIII New
+  Jersey Archives (1st Series) 190. For appeals in other colonies,
+  see _Winthrop_ v. _Lechmere_, 1 Thayer’s Cases on Constitutional
+  Law, 34; VII Connecticut Colonial Records, 571 (1727); _Frost_ v.
+  _Leighton_ (Mass. 1738), II American Historical Review, 229; _Perry_
+  v. _Randolph_, Barradal’s Reports, 2 Virginia Colonial Decisions, 22
+  (1726). In the introduction to Volume II of Acts of the Privy Council
+  of England, Colonial Series (1910), will be found an interesting
+  account of the practice of the council on appeal, while in the text
+  are numerous examples of appeals from the West India Islands as well
+  as from the colonies on the American Continent between 1680 and 1720.
+
+  [195] III Colonial Records, 30, May 8, 1718.
+
+  [196] 1 Dallas’s Reports, 6 (1763).
+
+  [197] April Term, 1763, Docket No. 3, page 450.
+
+  [198] April Term, 1763, Docket No. 3, page 448.
+
+  [199] April Term, 1765, Docket No. 4, page 93.
+
+  [200] September Term, 1765, Docket No. 4, pages 120, 181.
+
+  [201] _Swift_ v. _Hawkins, Lightfoot and Jones_, Docket No. 4, page
+  591.
+
+  [202] Finlason’s History of the Judicial Committee of the Privy
+  Council, 39; V Pennsylvania Archives (2d Series), 436, 658. While
+  there was a standing committee for hearing appeals, these petitions
+  seem to have been frequently referred to special committees. The
+  present judicial committee dates from the Act of 3 & 4 William IV,
+  chapter 41.
+
+  [203] Mansfield’s speech on the Stamp Act, reprinted in Library of
+  Original Sources, Vol. VII, 84.
+
+  [204] II Colonial Records, 38, 17, 3 mo. 1703.
+
+  [205] Shepherd’s Proprietary Government in Pennsylvania, chapter VII,
+  351.
+
+  [206] III Statutes at Large, 199; III Colonial Records, 63.
+
+  [207] III Statutes at Large, 427.
+
+  [208] IV Statutes at Large, 337, 483.
+
+  [209] March 21, 1772, VIII Statutes at Large, 239.
+
+  [210] See III Colonial Records, 35, June 15, 1718.
+
+  [211] IV Colonial Records, 276, Feb. 3, 1737-8. A full report of this
+  affair will be found in the Pennsylvania Gazette, February 7, 1737-8.
+  It appears that the parties concerned were not Free Masons, but
+  practical jokers.
+
+  [212] III Colonial Records, 274, October 4, 1726.
+
+  [213] As early as 1685 an ecclesiastical offender was offered
+  an opportunity to emigrate to the new colony, as appears by the
+  Privy Council minutes: “Whereas it has been this day represented
+  to his majesty that Christopher Sibthorpe, brazier, is a prisoner
+  in Woodstreet compter upon a capias on the Writt de excomunicato
+  capiendo, his majesty was pleased to order the sheriffs of the
+  city of London (taking good security that the said Christopher do
+  forthwith transport himself and family to Pennsylvania in America and
+  paying the charges of the court) sett him at liberty in order to his
+  sayd voyage.” Acts of the Privy Council of England, Colonial Series
+  (1910), Vol. II, p. 79, § 176. The exile was an active Friend.
+
+  [214] The Forum, Vol. I, 231. It is a matter of some doubt as to
+  whether the ducking-stool ever was actually used in Philadelphia.
+  In 1769 a woman was sentenced to be ducked at the end of Market
+  street wharf, but we are not informed whether the sentence was
+  carried into execution. In 1779 Ann Mease was sentenced to the same
+  punishment but the council remitted the ducking January 26, 1780.
+  XII Colonial Records, 235. In 1781 there was another conviction but
+  the sentence was not carried out. In 1824 the supreme court held
+  that the ducking-stool was not the punishment for a common scold in
+  Pennsylvania. _James_ v. _Commonwealth_, 12 Sergeant & Rawle, 221
+  (1824). The Act of March 10, 1683, reënacted in 1693, provided that
+  a scold should stand one hour in a public place with a gag in the
+  mouth. Charter and Laws of Pennsylvania, 144, 198. This was supplied
+  by the Act of November 27, 1700, II Statutes at Large, 85, which
+  provided that the gagged person should stand in some public place at
+  the discretion of the magistrate. The act was repealed in council
+  because it was not stated how long the person should stand gagged and
+  the penalty was too great. II Statutes at Large, 466.
+
+  [215] Quotations from Mss. Docket, given in Appendix to Vol. I of
+  David Paul Brown’s Forum, 573.
+
+  [216] Such executions were not unusual in England. Sidney refers to
+  a number, mentioned in the newspapers, including two in 1735, one in
+  1737, two in 1739 and one as late as 1789. Sidney’s England in the
+  Eighteenth Century, Vol. II, 299.
+
+  [217] III Statutes at Large, 298.
+
+  [218] III Statutes at Large, 488.
+
+  [219] IV Statutes at Large, 84.
+
+  [220] November 27, 1731, IV Statutes at Large, 229.
+
+  [221] IV Statutes at Large, 425, 430.
+
+  [222] IV Statutes at Large, 431.
+
+  [223] IV Statutes at Large, 443.
+
+  [224] IV Statutes at Large, 421, 449; III Colonial Records, 446,
+  November 23, 1731. The assembly stated that the aspersions on the
+  inferior courts were false and scandalous. Votes of Assembly, Vol.
+  III, 168, 169.
+
+  [225] 4 Binney’s Reports, 117 (1811).
+
+  [226] V Statutes at Large, 462, 722.
+
+  [227] May 20, 1767, VII Statutes at Large, 107.
+
+  [228] Charter and Laws of Pennsylvania, 63.
+
+  [229] Kent’s Commentaries, Vol. II, 97.
+
+  [230] Charter and Laws of Pennsylvania, 109.
+
+  [231] Charter and Laws of Pennsylvania, 194.
+
+  [232] Act of November 27, 1700, II Statutes at Large, 5.
+
+  [233] II Statutes at Large, 490.
+
+  [234] II Statutes at Large, 180. By another act, of the same date, a
+  divorce from bed and board was allowed to the first husband or wife
+  of a bigamist. II Statutes at Large, 181.
+
+  [235] Rawle’s Equity in Pennsylvania, Appendix, 25.
+
+  [236] “As a matter of fact, for the century and a half during which
+  the practice prevailed perhaps not more than two hundred such
+  separations were granted.” Howard, Matrimonial Institutions, Vol. II,
+  106.
+
+  [237] VII Statutes at Large, 263.
+
+  [238] IX Colonial Records, 564, 566, 567, 580.
+
+  [239] VII Statutes at Large, 626.
+
+  [240] VIII Statutes at Large, 243.
+
+  [241] VIII Statutes at Large, 597, 600; Votes of Assembly of
+  Pennsylvania, Vol. VI, 485, 488; X Colonial Records, 104.
+
+  [242] November 24, 1773, O’Callahan’s Documents relative to the
+  Colonial History of New York, Vol. VIII, 402; New Jersey Archives,
+  Vol. X, 411, 412.
+
+  [243] X Colonial Records, 40, 53, 54.
+
+  [244] IX Statutes at Large, 433.
+
+  [245] XII Statutes at Large, 94.
+
+  [246] Eighteen private acts were passed in 1873. For the present law
+  see the Act of March 13, 1815, 6 Smith’s Laws of Pennsylvania, 286;
+  Pepper & Lewis’s Digest of Decisions, Vol. V, col. 7075; Stewart’s
+  Purdon’s Digest, Vol. I, 1230.
+
+  [247] See examples in VIII Pennsylvania Archives (3d Series), 23.
+
+  [248] III Colonial Records, 23, February 14, 1717.
+
+  [249] Charter and Laws of Pennsylvania, 382, 385; VIII and IX
+  Pennsylvania Archives (3d Series), _passim_.
+
+  [250] So, also, on the accession of a new sovereign, III Colonial
+  Records, 298, September 1, 1727. Chronological lists of the judges of
+  the supreme court and of the court of common pleas and the orphans’
+  court of Philadelphia County will be found in John H. Martin’s Bench
+  & Bar of Philadelphia (1883). Another list, slightly different, will
+  be found in IX Pennsylvania Archives (2d Series), 629.
+
+  [251] II Colonial Records, 247, April 17, 1706.
+
+  [252] III Statutes at Large, 369; same in Act of August 22, 1752; V
+  Statutes at Large, 161.
+
+  [253] X Colonial Records, 53, September 19, 1772.
+
+  [254] IX Statutes at Large, 29.
+
+  [255] Justice Moll is described as “president of the court at New
+  Castle.” Records of Court at New Castle, 496; see, also, I Colonial
+  Records, 18, 23, 3 mo. 1683.
+
+  [256] II Statutes at Large, 233.
+
+  [257] III Statutes at Large, 63.
+
+  [258] P. L. 208.
+
+  [259] Benjamin Franklin’s Autobiography, chapter ix. A bill of
+  exceptions signed by Franklin with the other judges of the common
+  pleas is printed in Appendix B, Vol. I, of the Forum, by David Paul
+  Brown.
+
+  [260] David Lloyd was born in 1656 in Montgomery County, North Wales,
+  and was appointed attorney-general by Penn in 1686. At the time of
+  his death in 1731 he resided at Chester. He left no descendants.
+
+  [261] It is said that Chief Justice Allen refused to issue Writs
+  of Assistance to the customs officers at the time of the memorable
+  agitation on that subject. Quincy’s Reports (Mass.), 509.
+
+  [262] Watson’s Annals of Philadelphia (1850), Vol. I, 350; Sharp &
+  Westcott’s History of Philadelphia, Vol. II, 857, Vol. III, page 1819.
+
+  [263] II Colonial Records, 425, April 5, 1708. The building was
+  finished in 1710.
+
+  [264] The Pennsylvania Gazette of December 14, 1769, states that
+  Governor John Penn’s commission was read from the Court House in the
+  presence of a concourse of people. An election riot took place on the
+  staircase leading to the balcony in 1742.
+
+  [265] Act of February 12, 1762; VI Statutes at Large, 177.
+
+  [266] There are attorneys mentioned in the Records of the Court
+  of New Amsterdam, Vol. I, 190. Peter Alrichs, writing to Governor
+  Stuyvesant March 30, 1658, says: “I have also to pay the attorney
+  Schelluyn for salary earned by him in a suit against Dirck
+  Cornelissen Heunich.” VII Pennsylvania Archives (2d Series), 528.
+
+  [267] Records of the Court of New Castle, 9. Spry was also a doctor.
+  In the same year he got into trouble by assaulting Captain Collier
+  with a cane while “overcome w^{th} drinke” and was fined two hundred
+  guilders by the court. Records of Court of New Castle, 103.
+
+  [268] Hazard’s Annals of Pennsylvania, 438; Records of the Court of
+  New Castle, 111; Records of Court at Upland, 82.
+
+  [269] Records of the Court of New Castle, 83.
+
+  [270] Records of the Court of New Castle, 101.
+
+  [271] Charter and Laws, 507; I Colonial Records 123, 2, 2 mo. 1686.
+  This was not a new idea, as Massachusetts in 1641 and Virginia in
+  1645 had attempted by legislation to prevent attorneys from pleading
+  for remuneration. Baldwin on Constitutional Law in Two Centuries’
+  Growth of American Law, 14; see also, II Connecticut Colonial
+  Records, 59.
+
+  [272] III Statutes at Large, 379.
+
+  [273] II Colonial Records, 423, April 2, 1708.
+
+  [274] II Colonial Records, 447, March 1, 1708-9.
+
+  [275] _Heather_ v. _Frankfort Co._, Pennypacker’s Colonial Cases,
+  142; II Colonial Records, 447, March 1, 1708-9. That the “cornering”
+  of the bar was not a new experiment would appear from an incident
+  mentioned by Barrington in his “Observations on the Statutes,” page
+  294n. “There is also ---- a petition of Robert Pickerell, exhibited
+  to the king in parliament the second year of Richard the Second; by
+  which he complains that Alice Perrers had retained all the advocates
+  in Westminster Hall, so that he could have no advice; ‘si il ne
+  donneroit si grande summe d’or, quil ne poit attainder.’”
+
+  [276] 9 Sergeant & Rawle’s Reports, 322 (1823).
+
+  [277] Watson’s Annals of Philadelphia (1850), Vol. I, 316.
+
+  [278] VII Pennsylvania Archives (2d Series), 94. See sketch of his
+  life in Vol. I, Lewis’s Great American Lawyers (1907), 1.
+
+  [279] Howell’s State Trials, Vol. 17, 575. In Pennsylvania the
+  quarter sessions of Philadelphia had in 1692 allowed the question
+  of the seditious character of a publication to go to the jury.
+  _Proprietor_ v. _Bradford_, Pennypacker’s Colonial Cases, 117.
+
+  [280] It is a curious fact that a number of the bar leaders came from
+  Maryland to Pennsylvania--Andrew Hamilton, Tench Francis, Benjamin
+  Chew and the Tilghmans.
+
+  [281] Life and Times of John Dickinson, 28.
+
+  [282] 3 Binney’s Reports, 476 (1811).
+
+  [283] 3 Burrough’s Reports, 1895 (1766).
+
+  [284] April Term, 1759, Supreme Court Docket No. 3, page 83.
+
+  [285] Minute Book, Court of Common Pleas, Philadelphia County, March
+  Term, 1790.
+
+  [286] Hammond’s Blackstone’s Commentaries, Preface, page viii.
+
+  [287] Keith’s Provincial Councillors, 328.
+
+  [288] X Pennsylvania Colonial Records, 173, April 29, 1774.
+
+  [289] Keith’s Provincial Councillors, 329.
+
+
+
+
+  CHAPTER III.
+
+
+  The appearance docket of the supreme court for April Term, 1776,
+  contains the following entry:--
+
+    “Philadelphia, s. s.
+
+    “At a Supream Court held at Philadelphia for the Province of
+    Pennsylvania the tenth day of April in the sixteenth year of the
+    reign of our Sovereign Lord George the third King of Great Britain
+    France and Ireland, Defender of the Faith &c and in the year of our
+    Lord one thousand seven hundred and seventy six: and continued by
+    adjournment until--”
+
+  Until when? Doomsday no doubt; for this was the last court held under
+  our “Sovereign Lord George” and the date of continuance was never
+  filled in. Independence, however, was not welcomed in Pennsylvania
+  with the same enthusiasm as in the New England states. At the
+  beginning of the conflict the influential and conservative element
+  in the province while opposed to the measures of parliament was
+  exceedingly adverse to the idea of a separation from Great Britain.
+  The grievances of the Pennsylvanians were not as great as those of
+  the other colonists; they had a liberal charter and a satisfactory
+  system of local government, while the proprietary family stood
+  between them and the Crown to soften controversies and prevent
+  conflicts of authority; many earnestly hoped for reconciliation and
+  were carried on the tide of revolution sorely against their wills.
+  To accelerate the movement and to get rid of the conservatives, a
+  bold, radical minority, with the moral support of congress, organized
+  and carried through a revolution in the government of Pennsylvania.
+  A convention called in July, 1776, and presided over by Franklin,
+  drew up a new constitution, which, after considerable opposition,
+  was declared to have been adopted. Penn’s charter was discarded,
+  the proprietary government ceased to exist, the old officials and
+  assembly retired and new men took their places.
+
+  The Constitution of 1776 was not a satisfactory instrument and was
+  discarded after a fourteen years’ trial, but some of its features are
+  worth noticing. The executive power was vested in a supreme executive
+  council composed of twelve members, one from the city of Philadelphia
+  and eleven from the respective counties. The term of office was three
+  years, and the president and vice-president were chosen from the
+  council by joint ballot of the assembly and council. The president
+  and council were empowered to choose and commission all judges and
+  other officers and fill vacancies in office. Every officer of the
+  state was subject to impeachment by the assembly, the impeachments to
+  be heard before the president and council. The principal judiciary
+  clauses were as follows:--
+
+    “Sec. 23. The judges of the supreme court of judicature shall
+    have fixed salaries, be commissioned for seven years only, though
+    capable of reappointment at the end of that term, but removable for
+    misbehaviour at any time by the general assembly; they shall not be
+    allowed to sit as members in the continental congress, executive
+    council or general assembly, nor to hold any other office, civil or
+    military, nor take or receive fees or perquisites of any kind.
+
+    “Sec. 25. Trials shall be by jury as heretofore, and it is
+    recommended to the legislature of this state to provide by law
+    against every corruption or partiality in the choice, return or
+    appointment of juries.
+
+    “Sec. 26. Courts of sessions, common pleas and orphans’ courts
+    shall be held quarterly in each city and county, and the
+    legislature shall have power to establish all such other courts as
+    they may judge for the good of the inhabitants of the state; all
+    courts shall be open, and justice shall be impartially administered
+    without corruption or unnecessary delay: All their officers shall
+    be paid an adequate but moderate compensation for their services,
+    and if any officer shall take greater or other fees than the laws
+    allow him, either directly or indirectly, it shall ever after
+    disqualify him from holding any office in this state.
+
+    “Sec. 27. All prosecutions shall commence in the name and by the
+    authority of the freemen of the commonwealth of Pennsylvania, and
+    all indictments shall conclude with these words--_against the peace
+    and dignity of the same_. The stile of all process hereafter in
+    this state shall be _The commonwealth of Pennsylvania_.”[290]
+
+  The office of justice of the peace was made elective, the voters
+  of the respective districts to choose two, one of whom was to be
+  commissioned by the president for the term of seven years.
+
+  A peculiar feature of the constitution was the provision for the
+  election every seven years of a council of censors who were to meet
+  and inquire whether the constitution had been preserved inviolate,
+  whether the laws were duly executed, and, if there appeared any
+  necessity to amend the constitution, to call a convention for that
+  purpose. While these changes were in progress and while most of
+  the active citizens were engaged in war or political strife, the
+  administration of justice was sadly neglected.
+
+  By an act of January 28, 1777,[291] passed for the purpose of putting
+  into effect such and so much of the laws of the province as were
+  necessary in the commonwealth, it was provided, that the courts of
+  quarter sessions and gaol delivery, petty sessions, common pleas,
+  orphans’ courts, supreme court, courts of oyer and terminer and
+  general gaol delivery should be held and kept in each respective
+  county at the times and places appointed by law, with all the
+  powers, authority and jurisdiction which by law such justices and
+  judges theretofore had had and exercised and such as were given by
+  the constitution. It was further provided that the president and
+  council should appoint one justice in each county to preside in the
+  respective courts and in his absence the justices who should attend
+  were to choose a president. All actions in the provincial courts were
+  continued in the same state as if the authority of such courts had
+  never ceased.
+
+  The chief justice of the new supreme court was Thomas McKean, a
+  signer of the Declaration of Independence and one of the most active
+  of the patriot party. The associate justices were William A. Atlee
+  and John Evans. The suspension of the courts caused considerable
+  inconvenience and letters and petitions complaining of the prevailing
+  conditions were presented to the council.[292] In the counties the
+  same trouble was had with regard to the justices, many of whom were
+  away, or unwilling to act in the unsettled state of affairs; in some
+  parts of the state the local committees of safety assumed judicial
+  power and took cognizance of minor crimes.
+
+  The first session of the common pleas, at Philadelphia, when the
+  style of process was altered from king to commonwealth, was held in
+  September, 1777, when six attorneys were admitted to practice,[293]
+  but the British were already marching on Philadelphia, and before
+  the end of the month the army of King George had expelled the new
+  government.
+
+  During the occupation of Philadelphia by General Howe, from
+  September, 1777, to June, 1778, the seat of government was in
+  Lancaster. With the return of the state officials to Philadelphia
+  the various agencies of proscription became active. Many persons
+  were declared traitors and their estates forfeited to the
+  commonwealth.[294] The most important cases tried before the newly
+  organized supreme court were treason trials, among which those of
+  Roberts and Carlisle, which are very briefly reported, aroused
+  great popular interest.[295] Roberts, a miller of Lower Merion
+  Township, was accused of acting as a guide to Sir William Howe and of
+  persuading various persons to enlist in the British army. Carlisle
+  was charged with having accepted a commission to keep watch over the
+  gate of the city of Philadelphia, established by Howe to prevent
+  the ingress and egress of persons not provided with passes. The
+  accused were tried on the twenty-fifth and thirtieth of September,
+  1778, found guilty and sentenced to be hanged. Earnest appeals for
+  executive clemency were made on behalf of the prisoners by petitions,
+  but the council was firm and both men were hanged. In these, as in
+  most of the other treason trials, James Wilson appeared for the
+  defendants and acquired such unpopularity through his faithful
+  efforts in behalf of his clients that his house was attacked by
+  a mob, which was driven off only after a fight that cost several
+  persons their lives.
+
+  The Revolution brought to an end the court of vice admiralty, of
+  which Edward Shippen was judge, and it became necessary to create
+  a tribunal to take its place. The Continental Congress advised
+  the several legislatures to establish courts of admiralty and,
+  accordingly, the assembly, on March 26, 1776, passed a resolution
+  creating a court of admiralty to be held in the city of Philadelphia
+  to try cases of captured vessels brought into that port, with the
+  right of appeal to congress or to such person or persons as they
+  should appoint to hear appeals.[296] For this last purpose a
+  committee was appointed by congress, whose feeble and unsupported
+  authority was openly defied by George Ross, the Pennsylvania judge of
+  admiralty, in the case of the “Active,” giving rise to a memorable
+  controversy carried on in the courts long after the adoption of the
+  constitution of the United States, and nearly resulting in an armed
+  conflict between the federal and state authorities. This case, or
+  rather series of cases, pointedly illustrates the growth of the
+  federal power, the decree of the helpless commissioners of admiralty
+  of the Continental Congress, long flouted by the state judges,
+  prevailing, after many years, by virtue of a judgment of the supreme
+  court of the United States, to whose authority the state officials,
+  after calling out the militia to resist the marshal, yielded a sullen
+  obedience.[297]
+
+  Francis Hopkinson, the distinguished writer, who succeeded Ross in
+  1779, was the first state judge to undergo the unpleasant experience
+  of an impeachment by the assembly. This proceeding, which took place
+  in December, 1780, was the result of a complaint by the judge against
+  Mathew Clarkson, the marshal of the court, which resulted in his
+  dismissal. Clarkson in revenge made charges against the judge before
+  the assembly, which voted for his impeachment. The court consisted
+  of President Reed and the council. Smith and Galbraith managed for
+  the house with Attorney-General Bradford, while Judge Hopkinson
+  was represented by James Wilson. The principal charges against the
+  judge were that he had wrongfully issued a writ for the sale of the
+  cargo of a ship, and that he had exacted illegal fees in a prize
+  case. The judgment of the council, as pronounced by the president,
+  was an acquittal upon all the charges, although it seemed to the
+  council that the fees, which were charged according to the recognized
+  practice of the court, were excessive.[298] Upon the adoption of the
+  constitution of the United States admiralty jurisdiction passed to
+  the federal district courts and Judge Hopkinson was appointed the
+  first district judge for Pennsylvania under the Act of Congress of
+  September 14, 1789.
+
+  The necessity for a court of last resort to take the place of the
+  privy council of Great Britain was met by the creation of the High
+  Court of Errors and Appeals, under the act of February 28, 1780,[299]
+  to hear appeals from the supreme court, the register’s courts and the
+  court of admiralty.
+
+  This act, after reciting that the laws of the late province gave a
+  very precarious, difficult and expensive remedy to parties injured
+  by erroneous judgments, by appeal to the king in council, and that
+  as “the good people of this commonwealth, by their happy deliverance
+  from their late dependent condition, and by becoming free and
+  sovereign are released from this badge of slavery and have acquired
+  the transcendent benefit of having justice administered to them at
+  home and at moderate costs and charges,” enacted that a court of
+  error should be established composed of the president of the supreme
+  executive council, the judges of the supreme court, the judge of the
+  admiralty, together with three persons of known integrity and ability
+  commissioned for seven years, any four or more of them to constitute
+  a quorum. The court in this form had but a brief existence, its
+  composition being materially changed by the Act of April 13,
+  1791.[300] Of the presidents of the council, Reed and Dickinson
+  were leading lawyers and Dickinson rendered at least one very able
+  decision in the admiralty case of _Talbot_ v. _Three Brigs_.[301]
+  Benjamin Franklin, although he had once sat for a brief period in
+  the common pleas, was wise enough to know that the administration
+  of law required a special education, at least there is no reported
+  opinion by him while president. Of the extra members of the court,
+  Edward Shippen, judge of vice admiralty under the Crown, subsequently
+  became chief justice of the supreme court; Francis Hopkinson has been
+  mentioned and Henry Wynkoop was president judge of Bucks County.
+
+  That the Constitution of 1776 was not working smoothly was the
+  opinion of a majority of the council of censors which met in 1783
+  to consider whether the constitution was being observed and whether
+  it needed amendment. The committee on defects reported that the
+  commissioning of the judges of the supreme court for seven years
+  only was a material defect, because it rendered the tenure of judges
+  dependent on the will of the council, while the committee on abuses
+  reported that the section requiring fixed salaries for the judiciary
+  had not been complied with as it ought and that permanent salaries
+  should without delay be established for the judges during their
+  continuance in office.[302] The findings of the censors on these and
+  other points were to bear fruit in the Constitution of 1790.
+
+  In 1786 an addition was made to the jurisdiction of the supreme
+  court, which hitherto had exercised no original jurisdiction in civil
+  cases except in fines and common recoveries. By an act of that year
+  issues of fact were allowed to be tried _in banc_ or at _nisi prius_
+  by that court in the county of Philadelphia.[303]
+
+  A case that excited considerable interest at the time was the
+  outlawry of Aaron Doan, one of the famous brothers who terrorized
+  Bucks County and the surrounding country. The defendant, having
+  been attainted of robbery, was brought into the supreme court on
+  September 24, 1784, and after hearing before the court upon several
+  exceptions to the outlawry, all of which were overruled, execution
+  was awarded. When the transcript of the record was remitted to the
+  supreme executive council, in order that a warrant for the execution
+  should issue, the humanity of President Dickinson seems to have been
+  shocked that a man should be deprived of his life without a trial
+  by jury and, accordingly, a letter was addressed to the supreme
+  court inquiring whether there were any modern instances in England
+  of persons being executed upon outlawry, or whether that had ever
+  occurred in Pennsylvania, and was compatible with the constitution.
+  Technical objections to the record were also raised.[304] The court
+  replied that, while not bound to give reasons for their judgment
+  and desiring that this should not be construed as a precedent, they
+  gave it as their opinion that under the laws of the commonwealth
+  and the common law they had no doubt that the prisoner had been
+  properly outlawed and had forfeited his life, but could mention no
+  case in Pennsylvania of a person executed upon outlawry by judicial
+  proceedings alone, except that of one Daniel Dawson, who had been
+  executed since the Declaration of Independence, in consequence of
+  an attainder, by virtue of a proclamation of the supreme executive
+  council and judicial proceedings thereon, in which the court awarded
+  execution by sentence of death, no judgment having been given before.
+  Dickinson was still dissatisfied and addressed a special message
+  to the assembly on the subject, but no action was taken at that
+  time and the humane scruples of Dickinson did not influence his
+  successors, Franklin and Muhlenberg, upon the outlawry of the other
+  Doans, Abraham and Levi.[305] In fact except for the objections
+  to the proceedings, as out of harmony with modern ideas, little
+  sympathy would have been wasted on these desperadoes who, from all
+  accounts, richly deserved their sentences. By an Act of September 23,
+  1791,[306] the process of outlawry was better regulated, and by the
+  Act of April 22, 1794,[307] the death penalty was abolished for all
+  crimes except murder in the first degree.
+
+  This reform was largely due to the efforts of William Bradford,
+  who in that year became a judge of the supreme court, resigning a
+  few years later to accept the office of attorney-general of the
+  United States in Washington’s cabinet, whose brilliant career was
+  cut short by an early death. Prior to this time the minutes of the
+  supreme executive council are burdened with appeals for executive
+  clemency and numerous orders appear for the remission of corporal
+  punishment, as well as of death sentences. That the council had an
+  eye to dramatic effect, or were convinced of the value of mental
+  suggestions, is indicated by one order in which a reprieve is granted
+  to a prisoner “which the sheriff is not to make known to him until he
+  be taken under the gallows.”[308] Executions were still public and
+  were attended by vast crowds, drawn by the same morbid curiosity as
+  is exhibited by their descendants who feast on the published details
+  of the so-called private executions.[309]
+
+  In 1790 a new constitution for the state was drafted and adopted
+  by a convention called for that purpose. The old constitution had
+  many defects and the newly adopted constitution of the United
+  States offered a model which many were eager to imitate. In the new
+  constitution the legislative, executive and judicial powers were
+  distinguished and defined according to the now classic American
+  method, and the state was provided with a governor and a senate
+  as well as an assembly. In remodeling the judiciary, the subject
+  with which we are concerned, an earnest but unsuccessful effort was
+  made to establish a court of chancery. The principal changes in
+  the judiciary were embodied in the following clauses of Article V
+  relating to the judiciary:[310]--
+
+    “Sec. 2. The judges of the supreme court, and of the several courts
+    of common pleas, shall hold their offices during good behaviour:
+    But for any reasonable cause, which shall not be sufficient ground
+    for impeachment, the governor may remove any of them, on the
+    address of two-thirds of each branch of the legislature. The judges
+    of the supreme court, and the presidents of the several courts of
+    common pleas shall, at stated times, receive, for their services,
+    an adequate compensation, to be fixed by law; which shall not be
+    diminished during their continuance in office; but they shall
+    receive no fees or perquisites of office, nor hold any other office
+    of profit under this commonwealth.
+
+    “Sec. 3. The jurisdiction of the supreme court shall extend over
+    the state; and the judges thereof shall, by virtue of their
+    offices, be justices of oyer and terminer and general gaol delivery
+    in the several counties.
+
+    “Sec. 4. Until it shall be otherwise directed by law, the several
+    courts of common pleas shall be established in the following
+    manner: The governor shall appoint in each county, not fewer than
+    three, not more than four judges, who, during their continuance in
+    office, shall reside in such county: The state shall be, by law,
+    divided into circuits, none of which shall include more than six,
+    nor fewer than three counties. A president shall be appointed of
+    the courts in each circuit, who, during his continuance in office,
+    shall reside therein. The president and judges, any two of whom
+    shall be a quorum, shall compose the respective courts of common
+    pleas.
+
+    “Sec. 5. The judges of the court of common pleas in each county
+    shall, by virtue of their offices, be justices of oyer and terminer
+    and general gaol delivery, for the trial of capital and other
+    offenders therein; and two of the said judges, the president being
+    one, shall be a quorum; but they shall not hold a court of oyer and
+    terminer or gaol delivery in any county, when the judges of the
+    supreme court, or any of them, shall be sitting in the same county.
+    The party accused, as well as the commonwealth, may, under such
+    regulations as shall be prescribed by law, remove the indictment
+    and proceedings, or a transcript thereof, into the supreme court.”
+
+  The most important changes, as will readily be seen, were the
+  restoration of life tenure to the judges and the grouping of the
+  counties into circuits with a president for the common pleas courts
+  therein, a measure rendered necessary by the growth of the state,
+  particularly in the West. By the appointment of judges learned in the
+  law to preside over the lower courts in the respective circuits some
+  measure of relief was afforded to the supreme court, whose work was
+  becoming increasingly arduous.
+
+  By the Act of April 13, 1791,[311] the courts were established
+  in conformity with the new constitution. The supreme court was
+  required to hold three terms a year and courts of _nisi prius_ in
+  the intervals. The state was divided into five circuits or districts
+  (increased in 1806 to ten), each comprising a group of counties, and
+  for each district a president judge learned in the law was appointed
+  by the governor who, with not less than three, or more than four
+  other persons, commissioned as judges for each of the counties in
+  the circuit, formed for such counties, respectively, the courts of
+  common pleas, oyer and terminer, quarter sessions and orphans’ court.
+  The president and any two of the judges, with the register of wills,
+  comprised the register’s court.
+
+  In cases involving more than four hundred dollars, a writ of error
+  lay from the supreme court and the register’s court to the high court
+  of errors and appeals, which was also remodeled, and, under this
+  act, comprised the judges of the supreme court and the presidents of
+  the common pleas, with three other persons of known legal ability
+  commissioned in the same manner as the judges of the supreme court.
+  It was further provided that such judges as should have given
+  judgment below should be excluded from sitting on the hearing of that
+  cause on appeal. The high court of errors and appeals sat once a year
+  in Philadelphia. On the organization of this court Benjamin Chew, the
+  former provincial chief justice, was named as an extra member and was
+  made president of the court, the other extra places not being filled.
+
+  By another act of the same date the salaries of the judges were fixed
+  as follows: Chief justice of the supreme court £1000, associate
+  justices and president judge of first district £600, presidents of
+  other districts £500.[312] When it is remembered that these are
+  not pounds sterling, but Pennsylvania currency, the modesty of the
+  salaries is but too evident. Thirty shillings a day were allowed
+  to each justice of the supreme court for traveling expenses when
+  on circuit. In 1796 the salaries of the associate justices and the
+  president of the first district were raised $400 and of the other
+  presidents $266.67. At the time of the Constitutional Convention of
+  1837, the salary of the chief justice of the supreme court was $2666
+  and of the associate justices $2000 each, with an allowance for
+  mileage and expenses on circuit. The judges of the district courts
+  were paid $2000 each, as well as the judges of the common pleas for
+  the first judicial district. In the other districts the president
+  judges of the common pleas received $1600 and the associates $140
+  with mileage.[313]
+
+  In 1799, further changes were made in the jurisdiction of the
+  courts, which for some time were the subject of constant legislative
+  experiments. As the population grew, the impracticability of keeping
+  up the system of _nisi prius_ sessions of the supreme court became
+  more and more obvious, while to the suitors and the bar, the hardship
+  and expense of crossing the Alleghenies to attend a session of the
+  court _in banc_, at Philadelphia, in the days before railroads,
+  amounted to a denial of justice. But the bar was not yet prepared to
+  give up its inherited fondness for itinerant justice, and the courts
+  of common pleas of the newly established judicial districts had not
+  been long enough in operation to be recognized as the true solution
+  of the problem. The Act of March 20, 1799,[314] therefore provided
+  that instead of _nisi prius_ courts, there should be held, except in
+  the county of Philadelphia, circuit courts which were of the same
+  nature as the court of _nisi prius_ except that the judges holding
+  the same were empowered to give judgment, pass decrees and award
+  execution in as ample a manner on circuit as when sitting _in banc_.
+  The right of appeal to the supreme court was preserved under special
+  conditions.
+
+  Although not required by the act by which these courts were
+  constituted, it continued to be the practice, as before, for two
+  judges to ride on circuit and sit together at trials in these courts.
+  This was unnecessary, as the time of the judges could have been
+  better distributed by sitting singly on jury trials, while trials
+  conducted by two judges were subject to the same inconvenience as
+  when conducted by the four judges sitting _in banc_, which, as Judge
+  Brackenridge has remarked,[315] caused great delay, as documents
+  offered in evidence had to be read by all the judges in turn and a
+  note taken by each.
+
+  Trials _in banc_ were abolished in Philadelphia by the Act of
+  February 24, 1806,[316] which also established a western district
+  for the supreme court, which was required to hold its September term
+  at Pittsburg. It was also provided that in the future circuit courts
+  should be held by one judge and that the judges should alternate
+  so that the same judge would not sit oftener than once in the same
+  county in every fourth successive term. The act also abolished the
+  high court of errors and appeals and vested its powers in the supreme
+  court. As respects the common pleas, the state was divided into ten
+  judicial districts and a president judge appointed in each of the new
+  districts. It was further provided that whenever required by either
+  party or counsel the judge should reduce his opinion to writing with
+  his reasons and file the same of record in the cause.[317]
+
+  By an act of April 10, 1807,[318] a middle district was established
+  for the supreme court, the term to be held at Sunbury, and again in
+  1809[319] two additional districts were established, the Lancaster
+  district, and the southern to be held at Chambersburg. By this act
+  the circuit courts were abolished, and the cases undetermined therein
+  relegated to the common pleas or, where appeals were pending, to the
+  supreme court. The number of judges of the supreme court was reduced
+  from four to three. By another supplement to the Act of 1806, enacted
+  in 1810,[320] the original jurisdiction of the supreme court was
+  restored in Philadelphia County in cases involving over $500, the
+  judges being required to hold _nisi prius_ courts there thirty-three
+  weeks in the year.
+
+  To dispose of the accumulation of business a new court called the
+  district court was created for the city and county of Philadelphia,
+  by the Act of March 30, 1811,[321] to consist of a president and two
+  assistant judges with power to hear and determine all civil pleas and
+  actions where the sum in controversy exceeded one hundred dollars.
+  The act was experimental and limited to six years, but the court was
+  such an unqualified success that it was continued, made permanent,
+  and similar courts established later in Pittsburg and Lancaster. From
+  the first this court absorbed the most important legal business of
+  the county and acquired an “enduring reputation as a great law court
+  for the trial of civil issues,”[322] the greatest this commonwealth
+  has ever seen; but the names of its most famous judges belong to a
+  later period.
+
+  No further experiments were tried with the supreme court until 1826,
+  when an act was passed increasing the number of justices to five
+  and restoring the circuit courts.[323] The cup of that overworked
+  body was now full. They were required to hear all cases of error and
+  appeal sitting in six districts, to hold a court of _nisi prius_
+  in Philadelphia, to go on circuit through the counties, beside
+  exercising original jurisdiction in cases of _quo warranto_ and
+  _mandamus_. Relief came in the Act of April 14, 1834,[324] passed
+  on the recommendation of the commissioners appointed to revise the
+  civil code. Circuit courts were finally abolished and the number of
+  districts reduced to four (the eastern at Philadelphia, northern at
+  Sunbury, middle at Harrisburg and western at Pittsburg); courts of
+  _nisi prius_ continued to be held twice a year in Philadelphia by a
+  single justice for the trial of civil actions involving more than
+  five hundred dollars, reviewable by the court _in banc_ upon motions
+  for new trial or in arrest of judgment.
+
+  At the risk of being tedious we have briefly reviewed the many
+  changes in the judiciary system between the Revolution and the
+  revision of the civil code in 1834-36, touching on these acts in
+  but a cursory manner without attempting to point out many important
+  features which were incorporated into later legislation and became
+  a permanent part of the system. The changes made were many of them
+  experimental, some met with success, others were doomed to failure;
+  they were forced by the extraordinary growth of the commonwealth in
+  population and wealth and the increase in the amount and importance
+  of the business of the courts. The law of real estate still had first
+  place, land was the principal asset of the inhabitants, and the loose
+  methods of the land office were an invitation to litigation, not
+  to speak of the additional complications arising from Connecticut
+  and Virginia titles. Ejectments innumerable occupied the attention
+  of the courts. But commercial law was every day becoming more
+  important, particularly in Philadelphia, then the first city in the
+  country and for some years the nation’s capital. The legal profession
+  enjoyed great prosperity during the early days of independence;
+  recklessness and paper money inflation had increased private debts to
+  an enormous extent and this, with the settlement of the loyalists’
+  estates, filled the dockets with more cases than could be tried. This
+  naturally led to envy and jealousy of the bar, which in Massachusetts
+  culminated in riots directed against the courts, an incident referred
+  to in history as Shays’ rebellion.[325]
+
+  In Pennsylvania there was no open attack on the courts while McKean
+  was chief justice, whose stern judicial deportment and inflexible
+  courage were sufficient to awe the mob. No one could doubt his
+  devotion to the cause of independence, but if a democrat in theory
+  he was an aristocrat in bearing. David Paul Brown relates[326] that
+  “shortly after his appointment, a petition was presented to him
+  directed to the Right Honorable Thomas McKean, Esq., lord chief
+  justice of Pennsylvania, upon which he complacently observed--‘these
+  are, perhaps, more titles than I can fairly lay claim to, but at all
+  events the petitioner has erred on the right side.’” Court was, in
+  his time, opened with great ceremony and form, and the chief justice
+  held the attendants to a rigid observance of duty. There are several
+  cases which illustrate this jealousy of the authority of the court,
+  of which the famous libel case _Respublica_ v. _Oswald_,[327] may
+  be taken as an example, as well as the following incident stated
+  by Brown to have occurred in 1778. The chief justice had issued
+  a warrant for the arrest of Colonel Robert L. Hooper, a deputy
+  quartermaster, on a charge of libel. Colonel Hooper informed General
+  Greene, who wrote to the chief justice stating that there was no one
+  to fill the colonel’s place and requesting that he might be permitted
+  to enter into a recognizance to appear at court later. The chief
+  justice replied as follows:--
+
+                                         “Yorktown, June 9th, 1778.
+
+    “Sir:--I have just now received your favor of the 3d inst., and
+    am not a little surprised that the sheriff of Northampton county
+    should have permitted Colonel Robert L. Hooper, after he was
+    arrested by virtue of my precept, to wait upon _you_ until he
+    appeared before _me_.
+
+    “You say, sir, ‘Colonel Hooper waited upon me to communicate his
+    situation, and to know if the circumstances of the army would
+    admit of his absence; but, as the army is just upon the wing, and
+    part of it will, in all probability, march through his district, I
+    could not, without great necessity, consent to his being absent, as
+    there is no other person that can give the necessary aid upon this
+    occasion.’
+
+    “I do not think, sir, that the absence, sickness, or even death
+    of Mr. Hooper could be attended with such a consequence, that no
+    other person could be found who could give the necessary aid upon
+    this occasion; but what attracts my attention the most, is your
+    observation that _you_ cannot, without great necessity consent to
+    his being absent. As to that, sir, I shall not _ask_ your consent,
+    nor that of any other person, in or out of the army, whether _my
+    precept_ shall be obeyed or not in Pennsylvania.
+
+    “The warrant for the arrest of Mr. Hooper being special, no other
+    magistrate can take cognizance thereof but myself. The mode you
+    propose, of giving bail, cannot be adopted, for many reasons.
+
+    “I should be very sorry to find that the execution of criminal law
+    should impede the operations of the army, in any instance; but much
+    more so to find the latter impede the former.
+
+         “I am, sir, with much respect,
+                  “Your most obedient, humble servant,
+                                          Thomas M’Kean.”[328]
+
+  In 1799 McKean was elected governor and was succeeded on the bench
+  by Judge Shippen, then seventy years old, who had studied under
+  Tench Francis and at the Middle Temple. Chief Justice Shippen
+  was a patient, practical and discriminating lawyer and it was
+  from his notes that the first reported cases in Pennsylvania were
+  taken. He indeed formed a connecting link between the courts of
+  the province and those of the commonwealth, having sat on the
+  bench during both periods. This very fact, which caused him to be
+  venerated by the bar, was calculated to increase the hatred with
+  which he and his colleagues, Yeates and Smith, were regarded by the
+  radical politicians. The three judges from their wealth and social
+  connections were regarded as representatives of the old aristocracy,
+  while the defeat of the Federalist party, in 1799, left those who
+  had taken office in its day of power exposed to all the dangers of
+  political revenge. The tenure of the judiciary was for life and it
+  filled the earnest partisans of the new democracy with rage to see
+  all the places on the bench filled with those whose sentiments were
+  scarcely less detested than those of the Tories.
+
+  The first to be marked for attack was Alexander Addison, president
+  judge of the fifth judicial district, which, when formed in 1791,
+  comprised Westmoreland, Fayette, Washington and Allegheny Counties,
+  all of the western part of the state. Addison, a Scotchman by birth,
+  had been educated for the ministry, but had changed to the law, and
+  while practicing in the western counties had served as a member of
+  the convention that framed the Constitution of 1790. An aggressive
+  Federalist, his views were out of harmony with those of the greater
+  portion of the local population, while his strong opposition to the
+  Whiskey Insurrection did not increase his popularity with the rough
+  inhabitants of that wild region. It was Addison’s habit to deliver
+  political sermons from the bench under the guise of charges to
+  the grand jury. These interminable discourses were published and
+  greatly admired by the Federalists, but detested by the Democrats,
+  who, in attending court as parties or jurors, were obliged to
+  listen respectfully to the heavy campaign literature of their
+  opponents.[329] Judge Addison was particularly fond of dwelling upon
+  the enormities of the French revolutionists as a warning to good
+  citizens against those admirers of that revolution who were prominent
+  among the Anti-Federalists. Aside from these foibles, Addison was
+  an able, upright and energetic judge, and had toiled ceaselessly to
+  bring order out of confusion in the western district. His learning
+  was regarded with respect by the bar and his firmness had won the
+  confidence of the better class of citizens. When the party of
+  Jefferson triumphed in 1799, Addison was the first victim of their
+  revenge. His leading enemy was, like himself, a theologian who had
+  turned to the law, had built up an extensive practice and had just
+  been appointed to the supreme court, Hugh Henry Brackenridge, of whom
+  more hereafter.
+
+  Instigated by Brackenridge, John B. C. Lucas, a justice of the peace,
+  unlearned in the law, at the court of quarter sessions of Allegheny
+  County, attempted to address the grand jury and was prevented by
+  Judge Addison on the ground that in such matters the president judge
+  was the mouthpiece of the court. Lucas brought the matter before
+  the supreme court on a motion for leave to file an information
+  against Addison for misconduct on the bench, but the court declined
+  to interfere, although of opinion that the associate judges had a
+  right to express their opinions.[330] Lucas again attempted, at the
+  court held June 22, 1801, to address the grand jury and was again
+  prevented by Judge Addison with the concurrence of another colleague.
+  The paper Lucas intended to read had nothing to do with the duties
+  of the jury, but contained some trifling remarks of a semi-political
+  nature, composed perhaps by Brackenridge.[331] For this act Addison
+  was impeached by the house of representatives on January 26, 1803,
+  convicted by the senate, by a vote of twenty to four, and sentenced
+  to be removed from office and forever disqualified from holding the
+  office of judge in the commonwealth. Judge Agnew has described this
+  trial as “the most flagitious ever urged on by vicious hate and
+  obnoxious partisanship,”[332] and the conduct of the legislature in
+  this matter has met with general reprobation. Under the circumstances
+  Addison had acted perhaps injudiciously, but his purpose was to
+  preserve the dignity of the court and the punishment he received was
+  unreasonably harsh.
+
+  Having tasted blood, the legislature next turned its attention to
+  the supreme court. In February, 1803, a petition was presented to
+  the house of representatives by one Thomas Passmore, complaining
+  that he had been arbitrarily fined and imprisoned for a constructive
+  contempt of court in violation of the bill of rights and praying for
+  the impeachment of the judges who had taken part in the proceedings.
+  The matter went over to the following session when it was referred
+  to a committee which recommended the impeachment of Chief Justice
+  Shippen and Justices Yeates and Smith, and accordingly, articles of
+  impeachment, adopted on March 23, 1804, were presented to the senate.
+  On January 5, 1805, at Lancaster, then the capital of the state, the
+  trial began. The cause of this impeachment was a proceeding in the
+  supreme court, which will be found reported in the case of _Bayard_
+  v. _Passmore_.[333] The brig _Minerva_ belonging to Passmore, which
+  had been insured in 1801 by certain underwriters including the firm
+  of Petit and Bayard, sprang a-leak and put into New Brunswick where
+  Passmore abandoned her to the underwriters. Some of the latter
+  refused to pay on the ground that the vessel was unseaworthy when she
+  sailed. An amicable action was entered and the matter referred to
+  arbitrators, who made an award in favor of the plaintiff. Judgment
+  was entered on the award and a _fi. fa._ issued, but, on motion, the
+  execution was set aside, and a rule granted to set aside the award,
+  on exceptions filed by the defendant. These exceptions were based
+  partly on irregularities in the proceedings and partly on the merits
+  of the case. While the exceptions were pending, Passmore, who seems
+  to have been exasperated at the delay, posted on a board in the
+  exchange room of the city tavern the following notice:--
+
+    “The subscriber publicly declares, that Petit and Bayard, of this
+    city, merchants and quibbling underwriters, has basely kept from
+    me the said subscriber for nine months about 500 dollars, and that
+    Andrew Bayard, the partner of Andrew Petit, did on the 3d or 4th
+    inst. go before John Inskeep, esq., aldermen, and swore to that
+    which is not true, by which the said Bayard and Petit is enabled to
+    keep the subscriber out of his money for about three months longer,
+    and the said Bayard has meanly attempted to prevent others from
+    paying the subscriber about 2500 dollars but in this mean and dirty
+    action he was disappointed in; I therefore do publickly declare,
+    that Andrew Bayard is a liar, a rascal and a coward, and do offer
+    two and a half per cent. to any good person or persons to insure
+    the solvency of the said Bayard and Petit for about four months
+    from this date.
+
+    “Philadelphia, September 8, 1802.
+
+                                         “Thomas Passmore.”
+
+  Thereupon Mr. Dallas, the attorney for Bayard and Petit, moved for
+  an attachment against Passmore for contempt of court, which was
+  granted and interrogatories filed, which Passmore answered. On the
+  issuing of the attachment the court expressed its opinion that an
+  apology was due to the defendants. The answer of Passmore disclaimed
+  any intention to treat the court with contempt and admitted that the
+  paper had been posted in a moment of irritation but declined to make
+  an apology to the defendants. It was argued that there was no suit
+  pending when the notice was posted, the proceedings having closed
+  with the award of the arbitrators, but the court held otherwise,
+  being of the opinion that a contempt had been committed. As Passmore
+  declined to make any atonement to the injured individuals which would
+  influence the court to leniency, he was sentenced to pay a fine of
+  fifty dollars and suffer imprisonment for thirty days. This sentence
+  was carried out.
+
+  As the law then stood Passmore was clearly guilty, and even if not,
+  the sentence was given after a patient hearing and full argument and
+  amounted at most to an error of law, for which Passmore had a remedy
+  by appeal to the high court of errors and appeals, a point upon which
+  he was advised by William Lewis, one of the leaders of the bar. But
+  this remedy was not pursued. Passmore paid his fine, served his
+  sentence and sought revenge by the aid of a partisan assembly.
+
+  When the time of the trial arrived public feeling had turned in
+  favor of the judges, the better class of newspapers took their side
+  and the bar rallied to their defense; in fact the assembly found it
+  impossible to procure eminent local counsel to assist them in their
+  odious task and Cæsar A. Rodney of Delaware, was retained for the
+  prosecution. The defendants were represented by Jared Ingersoll and
+  Alexander J. Dallas.
+
+  The trial began on the eighth of January, 1805, and lasted until the
+  twenty-eighth of the month.[334] Many witnesses were called and all
+  the litigation which gave rise to Passmore’s commitment was minutely
+  reviewed. In summing up Mr. Boileau, one of the managers for the
+  house, argued that Passmore had not been punished because he had
+  committed a contempt of court but because he would not apologize to
+  Bayard, and declared that the court had no authority to direct one
+  individual to apologize to another. His address was a violent attack
+  on English precedents and the legal profession in general, with the
+  usual platitudes on the rights of man and the principles of the
+  Revolution. Mr. Rodney’s speech was more dignified and it is apparent
+  that his task was uncongenial. For the defense the speeches of Dallas
+  and Ingersoll were brilliant and exhaustive, replete with reported
+  precedents as well as manuscript records, which their industry had
+  discovered and which throw much light on the early practice of the
+  courts in attachments. That any doubt could be felt as to the issue
+  of this trial is a matter for wonder, and that thirteen out of
+  twenty-four senators voted for conviction is a lasting disgrace to
+  their names. Fortunately, the prosecutors failed by three votes to
+  obtain a two-thirds vote, and the judges were declared acquitted.
+
+  One incident of the trial deserves mention. Judge Brackenridge was
+  not on the bench when the motion for the attachment of Passmore was
+  made, and at the time of the argument was returning from a special
+  court in Northumberland County, but was present when sentence was
+  passed. He was not included in the impeachment, but at once wrote to
+  the house of representatives stating that he concurred in the opinion
+  of his brethren, and while not courting prosecution, could see no
+  distinction in his case and asked to be included in the impeachment.
+  The house sent up an address to Governor McKean for his removal,
+  which was refused, and when a committee urged that the term in the
+  constitution “may remove” meant “must remove,” he replied that he
+  would have them know that “may” sometimes meant “won’t.”[335]
+
+  This offer to stand impeachment with his colleagues was the most
+  courageous act in the public career of the most eccentric genius
+  that ever sat on our supreme bench, about whom a few words may be
+  interesting. Hugh Henry Brackenridge, born in Scotland, of poor
+  parents, was brought as a child to this country. By teaching school
+  he saved enough to attend Princeton College, where he became a tutor,
+  studied divinity and later served as a chaplain in the Revolutionary
+  army. In 1778 he commenced the study of law with Samuel Chase,
+  afterwards a justice of the supreme court of the United States,
+  and, locating at Pittsburg, soon became a leader of the western
+  bar. During the whiskey insurrection Brackenridge’s conduct was not
+  free from suspicion. His opinions were opposed to the excise tax,
+  and, if he did not join the insurgents, he did not take a very firm
+  stand against them. He was marked for arrest by Hamilton, but was
+  saved, it is said, by James Ross, the rival bar leader of the western
+  district, afterwards United States senator. At the bar Brackenridge
+  was noted for his shrewdness, wit and eloquence, and was a writer
+  of considerable talent; “Modern Chivalry,” a satirical work from
+  his pen, has gone through several editions. On the bench he did not
+  display the same power as at the bar; his opinions were racy, but not
+  profound and failed to do justice to his real learning; an untiring
+  student, his dislike of convention led him at times into a show of
+  flippancy. The enmity between Judges Yeates and Brackenridge was a
+  curious incident of the times. It probably dated from the time of the
+  whiskey insurrection when Yeates served as one of the commissioners
+  to deal with the insurgents. No two men were ever more dissimilar in
+  appearance, habits and opinions: Judge Yeates a tall, florid, portly
+  man, rich, aristocratic and fond of society; Brackenridge dark and
+  sallow, of moderate means, a bookworm and recluse, and absolutely
+  indifferent to his appearance. An examination of the reports will
+  show that the associates rarely agreed, and the position of Chief
+  Justice Tilghman must have been peculiarly difficult. Indeed the
+  eccentricities of Brackenridge, if half the traditions are true,
+  would almost amount to insanity, but it is difficult at this day to
+  say whether his want of judicial decorum arose from this cause or
+  from his utter contempt for social conventions. Among the odd stories
+  told of him is one narrated by David Paul Brown:[336]--
+
+    “During the time, as has been said, the circuits existed, a friend
+    of the judge, riding in his carriage in the western part of the
+    state, while a prodigious storm of wind and rain prevailed, saw a
+    figure approaching, which resembled, what might be conceived of
+    Don Quixote, in one of his wildest moods; a man, with nothing on
+    but his hat and boots, mounted upon a tall, raw-boned Rosenant,
+    and riding deliberately through the tempest. On nearer approach he
+    discovered it to be Judge Brackenridge, and upon inquiring what was
+    the cause of the strange phenomenon, Brackenridge informed him,
+    that seeing the storm coming on, he had stripped himself and put
+    the clothes under the saddle; ‘because,’ said he, ‘though I am a
+    judge, I have but one suit, and the storm, you know, would spoil
+    the clothes; but it couldn’t spoil me.’”
+
+  The interminable criticism of and complaints against the judiciary
+  during the early years of the nineteenth century were in a large
+  measure due to the fact that judges held office for life. The same
+  processes were to be seen at work in the other states, culminating
+  in the abolition of life tenure and the substitution of a term of
+  office varying, under the different constitutions, from one to twenty
+  years. In Pennsylvania this result was accomplished by one of the
+  constitutional amendments adopted in 1838, by which the terms of
+  the supreme court judges were fixed at fifteen years and those of
+  the common pleas judges at ten. This change was not adopted without
+  vigorous opposition on the part of the leaders of the bar[337] and
+  is a subject upon which opinions differ today. We may suspect that,
+  however loudly the political leaders who advocated the change may
+  have declaimed against the dangers of caste prejudice, favoritism
+  and despotic conduct, they were really looking at the offices with
+  envious eyes and plotting to divert the meagre salaries to partisan
+  purposes. This was the period when American political life, in its
+  outward aspects at least, reached its lowest depths of degradation,
+  and that the judiciary should suffer thereby was inevitable.
+  Americans had yet to learn that democracy was not synonymous with
+  vulgarity and provincialism, that the American Revolution had not
+  severed us from the traditions of our race, and that the French
+  Revolution had not emancipated us from the rules of social decorum.
+  The American “Sans Culotte” was an unlovely type, an iconoclast and
+  a bitter partisan, and that he should have done his best to add
+  the judiciary to the spoils system is not the least count in his
+  indictment.
+
+  The citation of English decisions in the opinions of the courts
+  greatly exasperated the radical element. What were these precedents
+  but the rags of despotism, who were the judges that had rendered
+  them but tyrants, sycophants, oppressors of the people and enemies
+  of liberty! There was danger that our courts might be contaminated
+  by the source from which they drew their inspiration, so an act
+  was passed March 19, 1810,[338] which provided that it should not
+  be lawful to read or quote in any court of this commonwealth, any
+  British precedent or adjudication which had been given or made
+  subsequent to the fourth of July, 1776, except those relating to
+  maritime law or the law of nations. Upon this act Judge Brackenridge
+  wittily remarked:[339]--
+
+    “Were it not that I should be unwilling to enter into a contest
+    with the legislature, where public opinion, or prejudice is on
+    their side, I might be disposed to question the constitutionality
+    of this act. It would seem to be abridging the right of the
+    judiciary, to hear all reason on a question before them.
+
+                 ----What is’t to us
+        Though it were said by Trismegistus?
+
+    “But if we are to hear the saying of a lord, years, or centuries
+    ago; and before the 4th July, 1776, why not what another lord has
+    said since, to explain or contradict the adjudication? The fact is,
+    early decisions were, many of them narrow; and why drink out of the
+    neck of a gourd, rather than out of an open goblet; more especially
+    if the fountain was muddy, out of which the gourd was filled; the
+    stream of law in that country, now runs more clear in particular
+    cases than centuries ago; and it will always remain so, the law
+    being an improvable science.”
+
+  This act was repealed in 1836.[340]
+
+       *       *       *       *       *
+
+  It may be said, however, for those who railed against the courts,
+  that many of the lay associate judges set anything but a good
+  example of judicial dignity, and quarreled even to the point of
+  coming to blows and dragging each other from the bench.[341] The
+  law judges, who rode the circuits, manfully attempted to preserve in
+  the log court houses of remote counties the dignity of Westminster
+  Hall, and added to their unpopularity with the uncouth inhabitants
+  by instructing them in manners as well as in the law. In his
+  “Recollections of the West,”[342] Judge Brackenridge’s son, himself
+  also a judge, gives an amusing picture of the first court held in
+  Butler County. The court house was a log cabin into which bench,
+  bar and the entire village population were crowded. The audience
+  hung from the rafters like bats, and when these were cleared away
+  by the sheriff, a big Irishman objected to being removed. The Court
+  sentenced him to an hour’s imprisonment for contempt, whereupon
+  the sheriff was greatly puzzled as to what he should do with his
+  prisoner, as there was no jail. It was finally decided that he should
+  be incarcerated in a pig pen, emptied to prepare a feast for the
+  court, but the prisoner was too much for his captors and made his
+  escape into the brush.
+
+  Rapid as was the tide of immigration into western Pennsylvania it was
+  only by slow degrees that a well organized system of local government
+  was introduced. Westmoreland County, comprising most of the western
+  district, was established in 1773 with a county seat at Hannastown,
+  but the confusion incident to the Revolution and the boundary dispute
+  between Pennsylvania and Virginia retarded the growth of local
+  institutions. Court was held at the house of Robert Hanna where petty
+  offenders were sentenced to the pillory, stocks and whipping post,
+  erected before the log jail. The first person, it is said, convicted
+  of murder and hanged west of the Alleghenies was an Indian of the
+  Delaware tribe named Mamachatoga, who in 1785, while drunk, killed a
+  white man near Pittsburg. At the trial at Hannastown he was defended
+  by Brackenridge, but Chief Justice McKean who presided held that
+  drunkenness was no excuse and the defendant suffered the extreme
+  penalty of the law.[343] In the early days when the fifth judicial
+  district embraced practically all of western Pennsylvania litigation
+  was slow, owing to the long intervals between the terms of court and
+  the difficulty in procuring the attendance of witnesses. The law
+  judge rode the circuit from county to county, attended or followed by
+  the members of the bar, who, during the sessions of court, generally
+  put up at one tavern and made a lively time of it.
+
+  During the early years of the nineteenth century the supreme
+  court was presided over by chief justices of reputation equal to
+  any, and superior to most of those who have sat in American state
+  courts, Tilghman and Gibson. William Tilghman came of a family of
+  distinguished lawyers; his father was secretary of the provincial
+  land office, and his maternal grandfather, Tench Francis, the bar
+  leader of the provincial court of his time. His first judicial
+  appointment was by President Adams on March 3, 1801, to the circuit
+  court of the United States for this circuit; hence he was one of
+  the so-called “midnight judges,” commissioned a few hours before
+  Jefferson took office, and legislated out of office in the following
+  year. In 1806 he was appointed chief justice by Governor McKean on
+  the recommendation of his cousin, Edward Tilghman, who declined the
+  office. His appointment gave offense to some of the minor Democrats,
+  but the governor, although a leading member of that party, having
+  once made up his mind on the subject, was not to be moved.
+
+    “A committee, consisting of Duane, Lieper, and others, were
+    appointed by a town meeting to wait upon him, to inform him
+    that the democracy of Philadelphia were utterly opposed to the
+    nomination of William Tilghman as chief justice of Pennsylvania.
+    The committee were introduced into the executive apartments,
+    and the governor received them in his civil but reserved and
+    aristocratic manner, treating them simply as his constitutents;
+    when, however, they announced themselves as the representatives
+    from the democratic party--the sovereign people--he bowed most
+    profoundly, and inquired of them what the great democracy of
+    Philadelphia required of him. They proceeded, and stated the
+    purposes of their delegation, and in pretty plain terms gave him to
+    understand that the appointment of Mr. Tilghman would never meet
+    the approval of the democratic party. ‘Indeed,’ said the governor,
+    ‘inform your constitutents that I bow with submission to the will
+    of the great democracy of Philadelphia; but by G--d, William
+    Tilghman _shall be_ chief justice of Pennsylvania.’”[344]
+
+  The confidence of the governor was justified by the long and
+  distinguished career of his appointee, whose judicial decisions are
+  marked by a comprehensive knowledge of the common law and an unusual
+  clearness of diction. “Other Judges,” says Binney, “may have had more
+  learning under their immediate command,--none have had their learning
+  under better discipline, or in a condition more effective for the
+  duty upon which it was employed.”[345]
+
+  An adequate life of his great successor, John Bannister Gibson, has
+  still to be written.[346] Appointed to the common pleas in 1812 and
+  to the supreme court in 1816, of which he became chief justice in
+  1827, his reputation increased with years, and common consent assigns
+  to him the first place in our judicial history. “Abroad,” said
+  Chief Justice Black, “he has for many years been thought the great
+  glory of his native state.” Chief Justice Gibson has been credited
+  with an abhorrence of the petty and prosaic details and drudgery of
+  the law, qualities that would have militated against a successful
+  career as an advocate, but given a problem, no judge could grasp it
+  more firmly or dispose of it more readily, and he was master of a
+  style which in vigor of expression and condensation of thought is
+  unrivalled. “When he brought the lens of his mind to a focus, its
+  power was resistless.” For one act in his career he was subjected to
+  some criticism. The constitutional amendments of 1838 substituted a
+  term of fifteen years for life appointment and the commissions of the
+  judges on the bench were to expire at intervals of three years. At
+  the suggestion of his colleagues, the chief justice resigned in 1838,
+  and was immediately reappointed, and thus, instead of holding for the
+  shortest term, enjoyed the longest. The necessity for this action was
+  no doubt humiliating to him, who could hardly have resumed practice
+  at that period of his life, but on the other hand his loss to the
+  state would, at that time of transition, have been irreparable, and
+  when his term expired in 1851, he was re-elected almost without
+  opposition.
+
+  If space permitted, it would be proper to say something of the bar at
+  this time, which was particularly distinguished.
+
+  During the greater part of this period Philadelphia was the
+  leading city of the nation, both in population and wealth, and the
+  achievements of the local bar attracted national attention.[347]
+  Such leaders as William Lewis, Edward Tilghman, Jared Ingersoll,
+  William Rawle, William Bradford, Alexander James Dallas, and Horace
+  Binney, both in private practice and public office, exhibited talents
+  that were admired and esteemed by their contemporaries and served
+  as models for their students and successors, while in the West
+  Albert Gallatin, James Ross and H. H. Brackenridge attained high
+  distinction. Indeed, so much has been said about the good old times,
+  that we are often in danger of minimizing professional progress,
+  which, in the nineteenth century, has been in the nature of a
+  world-wide forced march to keep pace with the flying wheels of Father
+  Time’s steam and electric chariots.
+
+  The first bar after the Revolution was a very remarkable body; most
+  of its leaders had been educated at the Inns of Court or in offices
+  steeped in black-letter traditions. Devoted to the common law, they
+  endeavored to inspire their pupils with the same spirit. Deprived
+  by legislative shortsightedness of a court of equity they applied
+  to the problem of working out equitable relief through common law
+  forms the same sort of ingenuity that their ancestors had exercised
+  in the invention of fictions to overcome the inelasticity of common
+  law actions. Masters of their profession, they were jealous of all
+  innovation, and the less important members of the bar took their cue
+  from the leaders, in blissful ignorance of the issues involved. As a
+  result the agitation for codification that subsequently swept over
+  the country was but faintly echoed in Pennsylvania.
+
+  In pursuance of resolutions adopted by the legislature in 1830 a
+  commission was appointed by the governor consisting of William Rawle,
+  T. I. Wharton and Joel Jones, to revise, collate and digest all such
+  public acts and statutes of the civil code of the state and all such
+  British statutes in force in the state as were general and permanent
+  in their nature. The commission made a series of reports between
+  1831 and 1836 with drafts of proposed acts, most of which were, with
+  some modifications, enacted into law.[348] That the members did their
+  work thoroughly and well is proved by the fact that the acts passed
+  on their recommendation are the basis of the present jurisdiction
+  of and practice in the courts of the commonwealth. Their work,
+  however, consisted mainly in repairing, restoring and strengthening
+  the existing structure, a statutory system supplemented by so much
+  of the common law as it had been found expedient to incorporate into
+  the jurisprudence of a new community. Their cautious recommendations
+  accorded with conservative public opinion, and the house-cleaning
+  then done tended, undoubtedly, to check the sentiment for
+  codification which has had such extraordinary results in England as
+  well as in many of the states.[349] Whether this is a blessing or a
+  curse is a question upon which opinions may differ. At least, it may
+  be suggested that three-quarters of a century has passed since this
+  revision, during which time many statutes have been enacted which do
+  not add clarity to the law, and that it may be worth while to examine
+  some of the more notable procedural reforms, with a view to the
+  introduction of such methods as have proved unqualifiedly successful
+  elsewhere and the ultimate simplification of our procedure, in
+  the interest of common sense and social and economic progress.
+  Self-laudation is one of our professional faults that frequently
+  leads to narrow views and unprogressive provincialism. A peep over
+  our neighbors’ fences may lead us to the horrifying discovery that we
+  are provincial in many respects.
+
+  The revision of the civil code has been fixed as the limit of this
+  discussion for the reason that there are members of the bar who can
+  speak with authority from personal recollection upon the occurrences
+  during the middle nineteenth century, and for the further reason that
+  the judicial system had by that time assumed a form which in its
+  main outlines, it still retains, subject to the changes introduced
+  by the constitution of 1874.[350] Relief has since been afforded to
+  the supreme court by the establishment of an intermediate court of
+  appeal, the superior court, and the transfer to the latter of a part
+  of the appellate business.[351] Both are courts for the hearing of
+  appeals, none of the judges sitting at _nisi prius_, an arrangement
+  that has been criticised as tending to disassociate the appellate
+  judges from the main body of the judiciary, in contradistinction
+  to the federal system. The number of common pleas judges has been
+  greatly increased and the lay associate has almost disappeared.[352]
+
+  The most glaring defect in the system is in the minor judiciary. The
+  magistrate, or justice of the peace, is a relic of the eighteenth
+  century whose intelligence, education and social position have not
+  kept pace with the general improvement. The holding of courts at
+  this day by men unlearned in the law is an anachronism, a nuisance
+  to those having to do with the collection of small debts and,
+  frequently, a source of oppression to the poor. It is to be hoped
+  that reform in this respect will not be unduly delayed by the
+  necessity for the adoption of amendments to the constitution to make
+  it complete.
+
+  The early division of the state into judicial districts has had some
+  unfortunate consequences. The bar of the state became divided into
+  a number of local bars, mutually jealous and exclusive, practicing
+  under dissimilar rules, without common interests or _espirit de
+  corps_. The tendency to disunion has been checked by the formation
+  of the State Bar Association, an organization that has already done
+  much to promote uniform legislation as well as to encourage good
+  fellowship in the legal fraternity. The appointment, too, by the
+  supreme court of a state board to examine candidates for admission to
+  the bar has done much to standardize legal education in the state.
+
+  Owing largely to her great natural resources Pennsylvania has enjoyed
+  a prosperity in which both bench and bar have shared, but the first
+  stages of that prosperity were attained through the liberal and
+  farsighted policy of William Penn, the founder. His adopted sons
+  should at least be willing to view with open minds the innovations
+  demanded by progress. The panorama from the housetop does not
+  necessarily lead to a suicidal leap or a broomstick ride.
+
+
+  FOOTNOTES:
+
+  [290] Proceedings of the Constitutional Conventions of Pennsylvania
+  of 1776 and 1790, 61. The equity clause will be referred to later.
+
+  [291] IX Statutes at Large, 29.
+
+  [292] VI Pennsylvania Archives (1st Series), 228, 245, 294; VII
+  Pennsylvania Archives (1st Series), 72; IX Colonial Records, 214, 260.
+
+  [293] Biography of William Lewis, Pennsylvania Magazine, Vol. XX, 30.
+
+  [294] X Colonial Records, 610, 745.
+
+  [295] _Respublica_ v. _Carlisle_, 1 Dallas’s Reports, 35 (1778);
+  _Respublica_ v. _Roberts_, 1 Dallas’s Reports, 39 (1778); and see IX
+  Colonial Records, 600, 613.
+
+  [296] Journal of Congress, Vol. 1, 260; VIII Statutes at Large, 519.
+
+  [297] _Ross_ v. _Rittenhouse_, 2 Dallas’s Reports, 160 (1792);
+  Olmstead’s Case, Brightly’s Nisi Prius Reports, 9 (1809); _United
+  States_ v. _Peters_, 5 Cranch (U. S.) 115 (1809); Trial of General
+  Bright; Federal Courts before the Constitution, 131 United States
+  Reports, appendix at page xxix.
+
+  [298] Pennsylvania State Trial (Hogan, 1794), 3; XII Colonial
+  Records, 584, December 26, 1780.
+
+  [299] X Statutes at Large, 52.
+
+  [300] 3 Smith’s Laws of Pennsylvania, 28.
+
+  [301] 1 Dallas’s Reports, 95 (1784).
+
+  [302] Proceedings of the Constitutional Conventions of Pennsylvania
+  of 1776 and 1790, 70, 107.
+
+  [303] XII Statutes at Large, 308; 2 Smith’s Laws of Pennsylvania. 392.
+
+  [304] _Respublica_ v. _Doan_, 1 Dallas’s Reports (Wharton’s Edition),
+  86 (1784).
+
+  [305] XV Colonial Records, 505, 544; Watson’s Annals of Philadelphia
+  (1850), Vol. II, 330.
+
+  [306] 3 Smith’s Laws of Pennsylvania, 37.
+
+  [307] 3 Smith’s Laws of Pennsylvania, 186.
+
+  [308] XV Colonial Records, 31.
+
+  [309] 12 Hazard’s Pennsylvania Register, 117; 13 Hazard’s
+  Pennsylvania Register, 4. When, in 1783, it was proposed in England
+  to do away with the public procession to Tyburn, Dr. Samuel Johnson
+  remarked, in his vigorous manner, to Sir William Scott: “Sir,
+  executions are intended to draw spectators. If they do not draw
+  spectators, they don’t answer their purpose. The old method was
+  most satisfactory to all parties; the public was gratified by a
+  procession; the criminal was supported by it. Why is all this to be
+  swept away?” Boswell’s Life of Johnson, chapter 56.
+
+  [310] Proceedings of the Constitutional Conventions of Pennsylvania
+  of 1776 and 1790, 301, and 3 Smith’s Laws of Pennsylvania, xxxix.
+
+  [311] 3 Smith’s Laws of Pennsylvania, 28.
+
+  [312] April 13, 1791, 3 Smith’s Laws of Pennsylvania, 26.
+
+  [313] Debates of Pennsylvania Constitutional Convention of 1837, Vol.
+  1, 263.
+
+  [314] 5 Carey & Bioren’s Laws of Pennsylvania, 694.
+
+  [315] Brackenridge’s Law Miscellanies, 283.
+
+  [316] 4 Smith’s Laws of Pennsylvania, 270.
+
+  [317] See also the Act of March 6, 1812 (5 Smith’s Laws of
+  Pennsylvania, 308).
+
+  [318] 4 Smith’s Laws of Pennsylvania, 448.
+
+  [319] March 11, 1809, 5 Smith’s Laws of Pennsylvania, 15.
+
+  [320] March 10, 1810, 5 Smith’s Laws of Pennsylvania, 158.
+
+  [321] 5 Smith’s Laws of Pennsylvania, 223.
+
+  [322] Martin’s Bench & Bar, 78.
+
+  [323] April 8, 1826, P. L. 265.
+
+  [324] P. L. 341. See Fourth Report of the Commission to Revise the
+  Civil Code (1834). The northern district of the supreme court was
+  afterwards abolished.
+
+  [325] McMaster’s History of the American People, Vol. I, 302, _et
+  seq._
+
+  [326] The Forum, Vol. I, 327.
+
+  [327] 1 Dallas’s Reports, 319 (1788).
+
+  [328] The Forum, Vol. I, 330.
+
+  [329] See specimens of these charges in Appendix to Addison’s Report.
+
+  [330] _Commonwealth_ v. _Addison_, 4 Dallas’s Reports, 225 (1801).
+
+  [331] See the printed report of Addison’s Trial (1803).
+
+  [332] Address before the Allegheny Bar Association, Pennsylvania
+  Magazine, Vol. xvi, 1.
+
+  [333] 3 Yeates’s Reports, 438 (1802).
+
+  [334] See printed report of the Judges’ Trial (1805).
+
+  [335] The Forum, Vol. I, 408.
+
+  [336] The Forum, Vol. I, 404.
+
+  [337] Debates of Pennsylvania Constitutional Convention of 1837, Vol.
+  X, 148 _et seq._
+
+  [338] P. L. 136. See similar Act in New Jersey passed in 1799. New
+  Jersey Statutes (1800), 436.
+
+  [339] Brackenridge’s Law Miscellanies, 525.
+
+  [340] Act of March 29, 1836, P. L. 224.
+
+  [341] McMaster’s History of the American People, Vol. III, 154.
+
+  [342] Recollections of the West, H. M. Brackenridge. See extract in
+  Hazard’s Pennsylvania Register, Vol. XIV, 172.
+
+  [343] History of Allegheny County (Errett), chapter xiv.
+
+  [344] The Forum, Vol. I, 343.
+
+  [345] See Binney’s Eulogy on Chief Justice Tilghman, 16 Sergeant &
+  Rawle’s Reports, 444.
+
+  [346] See Eulogies in Appendix to 19 Pennsylvania Reports; W. A.
+  Porter’s Essay and article in Great American Lawyers, Vol. III, 353.
+
+  [347] See the reprints and papers contained in the volume
+  commemorative of the One Hundredth Anniversary of the Philadelphia
+  Law Association.
+
+  [348] The reports of the commissioners form a most instructive
+  commentary upon the early statute law of Pennsylvania.
+
+  [349] Hepburn’s Historical Development of Code Pleading (1897).
+
+  [350] The Judiciary Article of the Constitution of 1874 is printed in
+  the Appendix to this volume. Special pleading was abolished by the
+  Act of May 25, 1887, P. L. 271, which substituted a hybrid system
+  that is neither common law nor good code pleading.
+
+  [351] Act of June 25, 1895, P. L. 212, and its supplements.
+
+  [352] For the present personnel of the courts, see Smull’s
+  Legislative Handbook, current issue.
+
+
+
+
+  CHAPTER IV.
+
+
+  One of the most troublesome questions with which the colonial
+  administrator had to deal was equity jurisprudence. In the early
+  years of the seventeenth century politics entered into the contest
+  for jurisdiction between the English court of chancery and the courts
+  of common law, beclouding the issues and retarding a settlement of
+  their respective spheres of action. Popular dislike pictured the
+  chancellorship as a great political office closely identified with
+  the Crown, and grudgingly admitted its importance in the complex
+  judicial system of England. On the other hand, the chancellor
+  too frequently subordinated the judicial functions of his office
+  to ministerial policy and permitted abuses in the organization
+  and administration of his court that impaired its usefulness and
+  checked the growth of its business. At this early period chancery
+  practice was concerned chiefly with questions connected with the
+  devolution and management of real property and property held in
+  trust, and many of the broader doctrines of equity were still in
+  process of growth. Lord Nottingham, the father of modern equity,
+  held the office of chancellor from 1673 to 1682, but was succeeded
+  by several chancellors of inferior capacity who added nothing to the
+  prestige of the court, while the masters and inferior officers were
+  chiefly distinguished for rapacity and extortion, not to speak of
+  incompetency and dishonesty, in the management of property committed
+  to their care.[353] Reform came, but too late to convince the more
+  democratic communities of the positive advantages of chancery
+  procedure, while the prevailing fanatical devotion to trial by jury
+  operated as a check upon any system that seemed to interfere with
+  that palladium of liberty.
+
+  It was manifestly impossible to administer complete justice according
+  to the English system without the assertion of equitable rights
+  and the enforcement of equitable remedies. Anything less would
+  have amounted to a denial of justice, and in so far as some few
+  equitable rights were concerned, this was vaguely recognized. But a
+  true appreciation of the necessity for the introduction of chancery
+  procedure was obscured by a common and popular error which confused
+  equity with so-called natural justice; an error for which chancery
+  literature was, perhaps, itself in a measure responsible, in basing
+  its claims to override the strict rules of the common law upon the
+  strength of an intrinsic ethical superiority.[354]
+
+  Another obstacle to the introduction of equity jurisprudence was
+  the primitive social conditions that prevailed in the sparsely
+  populated settlements. There was sufficient difficulty in the
+  conduct of an ordinary lawsuit in the local courts without adding
+  to the embarrassment of the magistracy by requiring them to solve
+  the mysteries of the unreformed chancery pleading and practice. The
+  colonial judge of the seventeenth and eighteenth centuries was in
+  knowledge and training about on a par with the English justice of the
+  peace and it would have been as preposterous to expect the former to
+  undertake the office of chancellor as to impose similar duties on the
+  English quarter sessions. When, in the eighteenth century, trained
+  lawyers began to make their influence felt in the colonies, disputes
+  and misunderstandings between the assemblies and the governors
+  prevented the creation of or retarded the growth of courts of
+  chancery, resulting in a conflict of principles and practice in the
+  several provinces far too intricate to be briefly described.[355]
+  The theory upheld by the crown lawyers, and put in practice in the
+  more tractable colonies, was that the governor, as custodian of the
+  great seal, was the proper person to act as chancellor, assisted if
+  necessary by the council. To this the more democratic communities
+  were opposed, as an undue extension of the prerogative, but they had
+  no substitute to offer except the direct exercise of equitable relief
+  by legislative resolution or the delegation of limited equity powers
+  to the ordinary courts, such as giving relief from the penal clauses
+  of bonds and mortgages. It did not seem difficult to the uninitiated
+  to inject into the law such equitable principles as would mitigate
+  the harshness of its stricter rules. The limited scope of such an
+  experiment and the deprivation involved, in the elimination of the
+  powerful preventive measures afforded by chancery process, became
+  apparent only when the commercial and industrial expansion of the
+  American commonwealths had brought about more complicated social
+  relations.
+
+  The reform of procedure in the more progressive jurisdictions, has
+  buried chancery and common law practice in a common tomb and if it
+  were safe to hazard an opinion upon the parentage of the modern
+  complaint, or statement, the inclination would be to favor the bill
+  in equity rather than the common law declaration. But it would
+  seem that before these momentous changes could well be brought
+  about, it was necessary that both systems should reach the limits
+  of their development, that there should be a thoroughly scientific
+  demonstration of the economic waste involved in a dual and highly
+  artificial procedure, before one more simple and rational could be
+  evolved. Conservative opinion hesitates to endorse these changes, and
+  the tendency, displayed in many jurisdictions, to overload procedure
+  with petty statutory details, that ought to be left to the rules
+  of court, shows an immature conception of the principles of law
+  reform. If this is true today, how poorly prepared was the eighteenth
+  century for experiments in jurisprudence, with a bar nourished on
+  technicalities and trained to state almost every legal right in
+  procedural terms.
+
+  Pennsylvania was one of the most persistent of the colonies in its
+  opposition to the introduction of a court of chancery, and its
+  courts were the most fertile in devising expedients to decrease the
+  inconveniences resulting from such opposition, and this, although in
+  the immediately adjoining colonies chancery had a fairly successful
+  development. In the early period, political conditions had much to
+  do with the failure of the only serious attempt to establish such a
+  court. After the Revolution, opposition to the extension of equity
+  jurisdiction long continued as a political tradition, in spite of the
+  changed attitude of the leaders of the bar.
+
+  While the territory on the Delaware was under the government of the
+  Duke of York it would seem to have been the intention to administer
+  equity, in the popular sense of that word, through the court of
+  assizes. Among the laws of April 2, 1664, was one that provided:--
+
+    “In regard it is almost impossible to provide Sufficient Lawes
+    in all Cases, or proper Punishments for all Crimes the Court of
+    Sessions shall not take further Cognizance of any Case or Crimes,
+    whereof there is not provition made in some Lawes but to remit the
+    case or Crime, with the due Examination and proof to the Next Court
+    of Assizes where matters of Equity shall be decided, or punishment
+    awarded according to the discretion of the Bench and not Contrary
+    to the known Laws of England.”[356]
+
+  This was amended at the court of assizes held in September, 1665, as
+  follows:--
+
+    “Where the Originall Point is matter of equity the proceedeings
+    shall bee by way of Bill and delivering in Answers upon Oath and
+    by the Examination of witnesses, in like manner as is used in the
+    Court of Chancery in England. And due regard must be had that the
+    Defendant have timely notice thereof, as is appointed at Common
+    Law; which is eight dayes warning before the Court shall sitt.”[357]
+
+  In the following February it was ordained that “matters of Equity
+  under five pounds may be tried in Town Courts and if under twenty
+  at Sessions.” This investing of the lower courts with equitable
+  powers was undoubtedly intended to lessen the hardship of seeking
+  relief in a distant court meeting but once a year, and its practical
+  application was probably limited to giving effect to the more obvious
+  equities of defendants. That such was the case, would appear from the
+  instructions of Governor Andros to the justices of the court at New
+  Castle dated August 14, 1677, in reply to a query on their part.
+
+    “As to penal Bonds or such like cases of Equity it is the custom
+    & practice of Courts here, to hear & judge thereof according to
+    Equity, w^{ch} you may also observe as Allowed by Law.”[358]
+
+  At the court for Deal, afterwards Sussex, County held Tune 13 and
+  14, 1682, Henry Stracher obtained a verdict against Peter Groundyk
+  in an “action of the case,” the nature of which is not disclosed,
+  whereupon--
+
+    “Peter Groundyk peticon the Court that he may have That was this
+    day Tryd betwene Henry Stracher Ant this peticoner to be Tryd in
+    Equiety, the next Court by bill and Answer as is use in the Court
+    of Chancrey in England which the Court would A perswaded him to A
+    dissisted in it; and rest himselfe satisfied in what was allready
+    done; but through his perswading the Court grant the peticoner
+    his request; provided that the proceeding be put in in due time
+    According to Law.”[359]
+
+  At the September court, however, nothing is recorded as to the
+  “Tryal in Equiety” which the justices seem to have been reluctant to
+  undertake.
+
+  There are also instances where the governor at New York assumed the
+  equitable power of granting relief against oppressive judgments at
+  law, of which the following order is an illustration:--
+
+    “By the Governo^r
+
+    Whereas Hendrick Jansen Van Bremen, of Swanyck or Paerden Hook,
+    near Newcastle in Delaware River, hath preferr’d a Petition unto me
+    setting forth, that having heretofore, in the Time of the Dutch,
+    received great Damage in his Corne, by M^r W^m Toms Horses, by
+    Reason of his insufficient Fence; It was Ordered, that M^r Toms
+    Land there, should be Sold in Vendue, which said Order being not
+    effected, The Petitioner since the Restoration of the English
+    Government, took the said Horses off his Land, and sent them to
+    M^r Tom at New Castle, desiring they might be kept from his Corne;
+    But the Petitioner still sustaining Damage, without Relief, he
+    acknowledges that in Passion, he rashly and unadvisedly, shot
+    one of the said Horses, with small shot, whereof he not long
+    after dyed; Whereupon M^r Tom Sued the Peticon^r in the Court of
+    Newcastle, from the which Appealing to the High Court, Judgment
+    past against the Peticon^r there for Six Hundred Guild^{rs} to
+    be paid by him to M^r Tom, for his Horse, besides One Hundred
+    Guild^{rs} Charges; But was neither call’d, nor heard there;
+    Wherefore I have thought fitt, & do hereby Order, that the said
+    Hendrick Jansen giving Security, by binding over his Person and
+    Estate, to make good his Complaint, That Execucon be Suspended; And
+    that all the Proceedings, Papers, Writings, Passages or Proofs,
+    both in Dutch and English Time, beforthwith Transmitted hither, for
+    a final Determinacon in Equity.
+
+    Given under my Hand in New Yorke this 25th day of May 1676.
+
+                                         E. ANDROS.
+
+    To the Justices of the Peace of Newcastle in Deleware.”[360]
+
+  A petition for equitable relief preferred by Arnoldus la Grange to
+  Governor Andros in connection with the litigation concerning the
+  title to Tinicum Island will be found in the archives, but the action
+  taken thereon by the governor is not recorded.[361]
+
+  With the further history of equity in New York we are not directly
+  concerned. By an act passed soon after the separation from
+  Pennsylvania a court of chancery was authorized but the law seems to
+  have been disregarded.[362] Lord Bellomont, the governor, writing
+  to the lords of trade October 19, 1700, says: “There is a great
+  want of a court of chancery here, but nobody here understanding it
+  rightly I delay appointing one till the judge and attorney general’s
+  coming from England.”[363] The lords, in reply, directed him to
+  establish the court at once and in the following year the court was
+  proclaimed by ordinance of his successor, Lieutenant Governor Nanfan.
+  Nothing, however, of importance seems to have been done and it would
+  appear that some of the governors disliked the responsibility. Lord
+  Cornbury, who was also appointed royal governor of New Jersey, wrote
+  to the lords of trade on May 7, 1711:--
+
+    “In both plantations I have been pelted with petitions for a Court
+    of Chancery; and I have been made acquainted with some cases which
+    very much require such a court, there being no relief at common
+    law, I had ordered the committee of both Councils to form a scheme
+    for such a court, but to no purpose; the trust of the seals they
+    say constitute a chancellor, and unless the Governor can part with
+    the seals there can be no chancellor but himself. I have already
+    more business than I can attend to, besides I am very ignorant in
+    matters, having never in my life been concerned in any one suit. So
+    I earnestly beg your lordship’s directions as to that Court.”[364]
+
+  The court was also a favorite object of attack by the popular party.
+  Governor Hunter on January 1, 1712, wrote:--
+
+    “The country here, in general, groaned for a Court of Chancery
+    which had been discontinued for some time before my arrival in
+    these parts. * * * I gave a public notification of that court being
+    opened, and the House of Representatives, in their angry mood
+    resolved that the erecting of such a court without their consent
+    was against law.”[365]
+
+  In spite of this and similar attacks the court maintained its
+  existence until reorganized after the Revolution and adoption of
+  the constitution of 1777, but the amount of business transacted was
+  comparatively small until the time of Chancellors Livingston and Kent.
+
+  In Pennsylvania and Delaware, as we have seen, Penn took over the
+  local courts very much as he found them, exercising a supervisory
+  jurisdiction through the provincial council. On the hearing of
+  appeals before the latter body equitable principles were applied
+  as is illustrated by the case of _Bellamy_ v. _Watson_, described
+  in the court below as “an action of Trasspase and ejectment” for
+  land on Prime Hook. The case was tried at Lewes on May 27, 1683,
+  before a jury who found a verdict for the defendant.[366] The
+  plaintiff appealed to the governor and council who heard the case
+  in July and were unanimously of the opinion that one Smith, under
+  whom the defendant claimed, had no title in law or equity. They
+  entered judgment for the plaintiff, he to pay the defendant for his
+  improvements, the value of which was to be fixed by appraisers,
+  and gave the defendant four months’ time in which to remove his
+  crops, stock and “other moveable concernes.”[367] A year later it is
+  recorded that the difference between Watson and Bellamy was amicably
+  settled by mutual conveyances, “and thus they agreed & shaked
+  hands.”[368] In another case that came before the council, that body
+  seems to have been in doubt whether they ought to proceed in law or
+  equity, but the nature of the business is not given.[369]
+
+  By the Act of May 10, 1684, passed at New Castle, it was provided
+  that the “Quarter Sessions be as well a court of Equity as Law,
+  Concerning any Judgment given in Cases by Law capable of Triall in
+  the respective County Sessions and Courts,”[370] and by another
+  chapter of the same act a provincial court was constituted, the
+  judges of which were given cognizance of appeals and all causes
+  both in law and equity not determinable by the county courts. This
+  enactment seems to have caused some misgivings for in 1685 the
+  council “Ordered that a bill be drawn up That y^e Word Equity be
+  left out in ye Law off County Courts.”[371] The conception of equity
+  then entertained is illustrated by the following case taken from the
+  minutes of the court of common pleas of Chester County, where the
+  court sitting in equity, modified its own judgment previously entered
+  at law.
+
+    “Josua Hastings v. Francis Yarnall. The Declaration was read--the
+    answer was read. Judgment for plaintiff 25 shillings with costs of
+    suit. Upon which the defendant makes his appeal to the next court
+    of equity for this county.
+
+      1686 at a court of equity   }  Commissioners present, John
+      held at Chester ye 5th day  }  Bluston, Samuel Lewis, John
+      of the 1st week of ye 10th  }  Simcocke, Robert Wade, Geo.
+      month, 1686                 }  Maris, Robert Pile, Bartholomew
+                                  }  Coppoche, Robert Eyre Clech.
+
+    Francis Yarnall of this county preferred a bill to this court
+    wherein he required a remedy against ye verdickt of Jury and
+    Judgment of court obtained against him by Joshua Hastings of ye
+    same county, at the last court of Common Pleas held for this
+    county, at Chester, the 3rd and 4th days of this present weeke.
+    Upon which it was decreed that Francis Yarnall should pay 10
+    shillings and bear half the charges of that court.”[372]
+
+  Such proceedings gave offense to the people, as unduly interfering
+  with the verdicts of juries, and in 1687 the assembly asked for a
+  conference with the council upon certain questions, among them “how
+  far y^e County Quarter Sessions may be Judges of Equity as well as
+  Law and if after a judgment in Law whether the same Court hath power
+  to Resolve itselfe into a Court of Equity, and Either Mitigate,
+  alter, or Revers y^e said Judgment.”[373] The council answered
+  evasively that the law made at New Castle “doth supply and answer all
+  occasions of appeal, and is a plainer rule to proceed by.”[374]
+
+  By the Act of May 10, 1690, it was provided that the county courts
+  “shall be Courts of equitie for the hearing and determining all
+  matters and causes cognizable in the said Court, under the value of
+  ten pounds,” and that the provincial court should have the hearing
+  and determining of all appeals from the county courts both in law and
+  equity.[375] This statute was substantially reënacted in 1693 during
+  the administration of Governor Fletcher of New York.[376] During all
+  this time there were frequent petitions to the council, for relief
+  against judgments of the courts, several of which were relegated to
+  the county or provincial courts for a hearing in equity.[377]
+
+  The relief given under the name of equity would seem to have been
+  similar to the discretionary powers of the courts now exercised on
+  rules to open judgments, or in controlling verdicts on motions for
+  new trials, and there is no trace of formal chancery proceedings.
+  Nevertheless the popular dislike of any interference with verdicts
+  is voiced in a further complaint of the assembly, in 1694, stating
+  that the judges had too great liberty to destroy or make void the
+  verdicts of juries and praying that they might be instructed not to
+  decree anything in equity to the prejudice of judgments before given
+  in law.[378] Even more vigorous would have been their remonstrance if
+  there had been an attempt to introduce real chancery pleading, but
+  this was foreign to the spirit of Penn’s legislation, which permitted
+  “all persons to freely appear in their own way and personally plead
+  their own cases themselves, or if unable, by their friends.”[379]
+
+  The prolonged controversy between the assembly, the governors and
+  the home government over the court laws that took place in the early
+  years of the eighteenth century has been sufficiently discussed
+  and will be referred to here only in so far as it affected equity
+  jurisdiction. The Act of October 28, 1701,[380] believed to have been
+  drafted by David Lloyd, contained this provision:--
+
+    “That the said justices in the respective county courts shall
+    have full power, and are hereby empowered and authorized to hear
+    and decree all such matters and causes of equity as shall come
+    before them in the said courts, wherein the proceedings shall be
+    by bill and answer, with such other pleadings as are necessary in
+    chancery courts and proper in these parts, with power also for the
+    said justices to force obedience to their decrees in equity, by
+    imprisonment or sequestration of lands, as the case may require.”
+
+  An appeal was given to the provincial court, which was empowered to
+  revoke, alter and confirm decrees according to equity and justice.
+
+  This act, which was repealed by the queen in council on February 7,
+  1705, because the lords commissioners for trade conceived that so far
+  from expediting the determination of lawsuits it would impede the
+  same,[381] attempted to introduce a more elaborate procedure without
+  actually committing the courts to the English practice, and, like all
+  half measures, would have led to confusion and litigation. One can
+  imagine the unlearned judges of the county courts deciding how much
+  chancery pleading was “proper in these parts.” There is no trace of
+  any proceedings had under its authority; in fact Chief Justice Guest
+  in 1703 made a complaint to the council--
+
+    “That notwithstanding y^e Laws of this Govmt had erected Courts of
+    Equity & y^e Justices, have a power also in their Commission for
+    y^e same: Yet that to y^e great oppression of y^e People, there
+    have been no such courts as yet held in pursuance of y^e present
+    Law, the Rules of y^e said Court not having yet recev^d so full a
+    sanction as tis thought may be requisite.”[382]
+
+  It was ordered that the rules should be produced at the next session
+  of the council, but nothing further appears to have been done until
+  September, 1704, when Guest moved that the rules agreed on by the
+  county court should be enforced in all the courts.[383] Finally in
+  the following April the rules prepared by “certain persons skilled in
+  the law” were laid before the council and approved,[384] but not long
+  afterwards the governor was notified of the repeal of the act.
+
+  The controversy that followed between the governor and council on
+  the one side and the speaker and assembly on the other was the first
+  real crisis in the history of equity in Pennsylvania. Lasting as
+  it did for three sessions of the legislature we can gather some
+  information as to the respective plans submitted for the organization
+  of the courts, although the text of the bills has not come down to
+  us. Chancery was the chief bone of contention. Governor Evans wished
+  to act as chancellor assisted by the council, in accordance with the
+  practice recently established in the crown colonies, and it would
+  seem that the assembly was at first inclined to yield this point
+  “provided that the court meddle not with matters wherein sufficient
+  remedy may be had in any other court”[385] whether by the rules of
+  the common law or the laws of the province. But the country members
+  were afraid that too much of the business of the courts would be
+  drawn to Philadelphia, and after some fruitless discussion the house
+  was dismissed and the matter postponed until the meeting of the new
+  assembly. This assembly was even more completely dominated by David
+  Lloyd, the speaker, than its predecessor and replied to the bill of
+  the governor, drawn up by the “practitioners of the law,” with a
+  “long and tedious bill”[386] of its own which appears to have been
+  a modified form of David Lloyd’s act of 1701 that had been rejected
+  by the Crown. The governor at once objected to the administration
+  of equity by county justices who had previously decided the same
+  question at law, to which the assembly replied that the council
+  should devote their attention to public affairs and leave private
+  causes to the justices--
+
+    “That the Court of Equity as proposed by the Bill, gives no Colour
+    of authority for the same persons to Judge twice of the same cause,
+    for that matters of Equity being originally begun there, and a
+    Clause particularly obliging them not to intermeddle with matters
+    of Law in the said Courts of Equity, and our Bill being warranted
+    in that point by an act of Parlia^{mt} which gives the Judges of
+    the Common Law Power to determine matters of Equity in the same
+    Sessions throughout the Dominion of Wales, We find no cause to
+    Recede from what we have already proposed.”[387]
+
+  To this the council quickly replied that it was wiser to follow the
+  practice of the “others of the Queen’s colonies” than to draw from
+  the court of the “Marches of Wales, which for its inconveniency, ’tis
+  said has been abrogated by act of Parliament.”[388]
+
+  This aroused the ire of the Welsh Speaker and back came the hot
+  reply that whoever had advised that any part of the law which
+  established courts in Wales was abrogated gave pernicious counsel to
+  the governor. Only that portion of the ordinance of Wales which gave
+  the president and council chancery powers had been suppressed, but
+  the settlement of chancery in the respective counties of Wales, the
+  foundation of the assembly’s bill had “had constant allowance since
+  the time of King Henry ye 8th.”[389]
+
+  The governor rejoined that “if there were any mistake in a matter
+  that is so foreign to us as the Courts of Wales, it might have been
+  hinted to the Gov^r in another language than calling it pernicious
+  council,” and again urged that the court of chancery be settled as
+  in other parts of the queen’s dominions.[390] The assembly remained
+  firm and were in a fair way to win this point, but the discussion
+  of other features of the bill became so acrimonious that finally
+  the house adjourned without passing any court law and the governor
+  established the courts by an ordinance which, incidentally, conferred
+  equity powers upon the county courts of common pleas and the supreme
+  provincial court.[391] The assembly vigorously protested that the
+  ordinance was illegal but no compromise could be effected and the
+  courts continued to sit by authority of the ordinance during the
+  remainder of Evans’s administration.
+
+  So far as equity was concerned, the anti-proprietary party had
+  achieved a distinct success and it is not a little curious that
+  this was, at least in part, due to the fact that their leader, a
+  Welsh lawyer, could cite the courts of his native principality as a
+  precedent for what he offered for adoption in Pennsylvania. Although
+  the subject is inadequately treated by text writers it would seem
+  that David Lloyd’s assertions were correct; that the court of the
+  lord president and the council in the principality of Wales and the
+  Marches had jurisdiction in cases of equity by force of the king’s
+  commission and instructions;[392] that this court was abolished in
+  1689,[393] and that equity jurisdiction was exercised thereafter by
+  the court of great sessions, the principal law court of Wales, which
+  was not visited by the English judges of assize.[394] The procedure
+  on the equity side of this court was by bill, answer and demurrer
+  in accordance with ordinary chancery practice, although somewhat
+  more dilatory than in the high court of chancery, owing to the long
+  intervals between circuit and circuit.[395] The jurisdiction of this
+  court was, however, not exclusive either at law or in equity.[396]
+
+  It is unfortunate that the early records of our courts have not been
+  preserved in such a condition as to afford much information regarding
+  the extent that equity was administered under this system, if at all.
+  In 1710 an “act for establishing courts of judicature” was passed,
+  which conferred appellate equity jurisdiction on the supreme court,
+  and original equity jurisdiction on the county courts of common pleas
+  with a proviso that--
+
+    “When matters of fact shall happen to arise upon their examination,
+    or hearing of the matters and causes to be heard and determined in
+    the said court, then and in every such case, they shall order the
+    matter of fact to issue and trial at the court of common pleas, for
+    the proper county, where the fact ariseth, before they proceed to
+    sentence or decree in the said court of equity.”[397]
+
+  This clause was largely responsible for the repeal of the act by the
+  queen in council, Lord Raymond, the solicitor general, having given
+  an opinion that it would “make proceedings in equity insufferably
+  dilatory and multiply trials at law in the plain cases to no manner
+  of purpose.”[398] Upon notification of the repeal Governor Gookin
+  revived the courts by an ordinance drafted by Robert Assheton which
+  contained the substance of the repealed act in a more concise
+  form.[399] When the assembly took into consideration the reenactment
+  of the court laws it was decided that separate laws should be passed
+  for each of the courts and further resolved “that all matters of
+  Equity, shall begin originally in the Provincial Court with Power
+  to grant Injunctions and to have general jurisdiction over the
+  Province.”[400] What brought about this change of opinion on the part
+  of David Lloyd, who was again speaker and principal draftsman of the
+  acts passed in accordance with the resolution on May 28, 1715,[401]
+  must be left to conjecture. Experience had perhaps taught him by this
+  time that the county courts were incapable of administering formal
+  equity. At any rate the county courts of common pleas ceased to
+  exercise chancery powers and the perpetuation of the Welsh system was
+  left to depend on the supreme provincial court, which received the
+  following chancery powers:--
+
+    “Section III. And be it further enacted by the authority aforesaid,
+    That the said judges of the supreme court are hereby also
+    authorized and enabled to hold plea in equity, by bill, appeal,
+    petition or suit, to be brought or exhibited in the said court by,
+    for or against any person or persons whatsoever, for any discovery,
+    or other matters relievable in equity; and thereupon to issue out
+    process of subpœna or _distringas_, and all other usual process
+    for compelling the parties defendants in such suits to appear, put
+    in their answers and make their defenses to such bills, appeals,
+    petitions (or) suits; and for the parties to proceed therein and
+    thereupon according to such rules or orders, and in such manner and
+    form as the courts of chancery and exchequer in Great Britain have
+    used to proceed by.
+
+    “And upon issues joined in any of the said causes or suits in
+    equity, the said court is to cause witnesses to be examined
+    if desired, on either side, by commissions to be awarded for
+    that purpose, or by sworn or attested examiners; and after the
+    publication of the depositions of the witnesses, to proceed to the
+    hearing of the said causes, and upon proofs and evidences therein
+    or thereupon, or upon bill and answer, where no witnesses shall be
+    examined, or proofs made, to make such orders and decrees either
+    for the r(elief of) the plaintiffs or for the directing any issue
+    or issues at law to be (tried) for the information of the court,
+    or for the dismissing of the said plaintiff’s bills or otherwise,
+    as the said court shall see just and reasonable, and as is or hath
+    been used in the said courts of chancery or exchequer in Great
+    Britain.
+
+    “And the said court shall award such process for the enforcing
+    the parties, in the said suits, to yield obedience to such orders
+    or decrees as shall be made in the said causes, and in case of
+    non-performance thereof, or disobedience thereto, the said court
+    shall award all such process of contempt against the persons
+    and estates of him or them that shall be in contempt or refuse
+    obedience to any of the said orders or decrees, and make and
+    execute like process, orders and proceedings thereupon, as are and
+    hath been used in like cases in or by the said courts of chancery
+    or exchequer in Great Britain; and that the prothonotary of the
+    supreme court shall be register of the said court of equity.”
+
+  Unfortunately, the Act of 1715 received scant consideration from the
+  lords commissioners of trade and was repealed by the king in council
+  on July 21, 1719.[402]
+
+  The notification of the repeal of this law was received at a time
+  when good feeling prevailed in the province. David Lloyd had been
+  appointed chief justice and had ceased to be a disturbing factor,
+  Andrew Hamilton, the bar leader of his time, was attorney general,
+  while Sir William Keith, the governor, was at the height of his
+  popularity. On May 3, 1720, the governor addressed a message to the
+  assembly in which he stated that, having consulted gentlemen learned
+  in the law, he was satisfied “that no representative body, in any of
+  his Majesty’s colonies, is invested with the power to erect such a
+  court, or that the office of chancellor can be lawfully executed by
+  any person whatsoever, except him, who, by virtue of the great seal
+  of England, may be understood to act as the King’s representative
+  in the place.” On the following day the message was considered by
+  the assembly and it was resolved, “that, considering the present
+  circumstances of this Province, this House is of opinion, that, for
+  the present, the Governor be desired to open and hold a court of
+  equity for this Province, with the assistance of such of his council
+  as he shall think fit, except such as have heard the same cause in
+  any inferior court.”[403]
+
+  At a meeting of the council on August 6, 1720, the governor brought
+  the matter to the attention of the members who resolved:--
+
+    “That it is the Opinion of this Board, that by virtue of the
+    Powers granted by the Royal Charter to the late Proprietor, his
+    Heirs and Assigns, and to his and their Lieutents. or Deputies,
+    being regularly appointed, the present Governour William Keith,
+    Esqr., safely may comply with the Desire of the Representatives of
+    the ffreemen of this Province, signified to him by an unanimous
+    Resolution of their House, dated at Philadelphia the 4th day of
+    May last, And that the holding of such a Court of Chancery in the
+    manner aforesaid, may be of great Service to the Inhabitants of
+    this Colony, and appears agreeable to the practice which has been
+    approved of in the neighbouring Governments.
+
+    “But the Governour speaking to his own want of Experience in
+    Judicial Affairs, and representing to the Board the great Addition
+    of Attendance and Fatigue in the public Business which would be
+    thereby laid upon him, He was pleased to add nevertheless, that
+    considering the many marks the House of Representatives and this
+    Board had shewn of their Confidence in him in this as well as
+    divers other respects, He should not decline to serve the Publick
+    in that Station, but insisted on this, that as no Court of Chancery
+    could by the method proposed be held without him, So that He, on
+    the other hand, should not fail of having a due assistance from the
+    Council on their parts; And it was thereupon, at the Governours
+    desire, established and declared.
+
+    “That as often as the Governour is to sit in Chancery and hold a
+    Court, All the members of Council in or near Philadelphia, shall
+    be summoned to attend the Governour as his assistants upon that
+    Bench, and that there shall not any Decree be pronounced or made in
+    Chancery but by the Governour as Chancellor, with the assent and
+    concurrence of any two or more of the Six eldest of the Council
+    for the time being, And that those Six eldest Counsellors or
+    assistants, or any of them, may be employed by the Governour as
+    Masters in Chancery, as often as Occasion shall require.
+
+    “And that the Inhabitants may have due notice of the said Court,
+    it is ordered that A Proclamation be issued certifying all his
+    Majestys Liege People of this Province, that for the more equal
+    Distribution of Justice and the Conveniency of the Subject, a
+    Court of Equity or Chancery will be opened by the Governour, at the
+    Court House in Philadelphia, upon the 25th day of this instant,
+    August, in order to hear and judge of all such matters within this
+    province, as are regularly cognizable before any Court of Chancery,
+    according to the Laws and Constitutions of that part of Great
+    Britain called England, and that the said Court will be always
+    open for the Relief of the Subject; Whereof his Majestys Judges of
+    the Supreme Court, and the Justices of the inferiour Courts, and
+    all others whom it may concern are to take Notice, and to govern
+    themselves accordingly.”[404]
+
+  Four days later the following proclamation was made:--
+
+                        “COURT OF CHANCERY.
+
+    “By William Keith Esqr. Govern^r Of the Province of Pensivania
+    & Counties of New Castle, Kent & Sussex, upon Delaware. A.
+    Proclamation.
+
+    “Whereas Complaint has been made, That Courts of Chancery or Equity
+    are absolutely necessary in the Administration of Justice, for
+    mitigating in many cases the Rigour of ye Laws, whose Judgments
+    are tied down to fixed and unalterable Rules, and for Opening away
+    to the Right and Equity Of a Cause for which the Law cannot in
+    all cases make a Sufficient Provision. Have notwithstanding been
+    but toe seldom regularly held in this Province, in such a manner
+    as ye aggrieved Subject might obtain the Reliefe which by such
+    Courts ought to be Granted. And Where as, the Representatives of
+    ye Freemen of this Province taking ye same into Consideration, did
+    at their last meeting in Assembly request me that I would with ye
+    assistance of ye Council, Open and hold such a Court of Equity for
+    this Province, To ye end therefore that his Majesties good Subjects
+    may no longer Labour under these inconveniences which are now
+    Complained Of, I have thought fitt, by and with the advice of the
+    Council, hereby to Publish and Declare, That with their assistance
+    I Purpose (God willing) to open and hold a Court of Chancery or
+    Equity, for this Province of Pensilvania, at ye Court House of
+    Philadelphia, on Thursday the Twenty fifth day of this instant
+    August, From which Date the Said Court will be and remain Always
+    Open for the Reliefe of ye Subject, to hear and Determine all such
+    matters arrising within the Province afores^d, as are regularly
+    Cognizable before any Court of Chancery, According to ye Laws and
+    Constitution of that part of Great Britain called England. And
+    his Majesties Judges of his Supream Court, as well as ye Justices
+    of the Inferior Courts, and all others whom it may Concern,
+    are required to take Notice hereof, and to govern themselves
+    Accordingly. Given at Philadelphia, ye tenth day of August, in the
+    Seventh year of the Reign of our Sovereign Lord George King of
+    Great Britain, France & Ireland, Defender of the Faith &c. Annoq.
+    Domini 1720.
+
+    “God Save the King.
+
+                                         “W. Keith.”[405]
+
+  A few days later the assembly took into consideration the governor’s
+  proclamation and on the twenty-eighth of August extended to him their
+  thanks for his message and requested that he should choose as his
+  assistants those who had not heard the cases before in the inferior
+  courts, to which the governor readily assented and in this auspicious
+  manner was established the first and only separate court of
+  chancery in Pennsylvania. When the common law courts were once more
+  established by the Act of May 22, 1722,[406] no equity jurisdiction
+  was conferred upon either the supreme or county courts.
+
+  On the twenty-fifth of August, 1720, Sir William Keith qualified as
+  chancellor and appointed Charles Brockden registrar. James Logan and
+  five other members of the council were named as masters and from time
+  to time thereafter other appointments both of masters and examiners
+  were made. The proceedings of the court, long buried in oblivion,
+  are not referred to in the reported cases, and the only allusion to
+  them by an early historian is a statement by Proud that John Kinsey,
+  afterwards chief justice, was compelled by Sir William to take off
+  his hat when addressing the court, an act which brought upon the
+  governor a remonstrance by the quarterly meeting of Friends.[407]
+  Thanks to the perseverance of William Henry Rawle, Esq., a portion of
+  the records of the court were found in a folio volume that had lain
+  neglected for many years among the unpublished archives of the state
+  department and which proved to be the registrar’s book. A critical
+  examination of the cases contained in the register will be found in
+  Mr. Rawle’s admirable address on Equity in Pennsylvania, delivered
+  before the Law Academy of Philadelphia in 1868.[408] Among the cases
+  in which the court of chancery exercised jurisdiction were bills for
+  account and for partition; to subject land to the payment of debts
+  and legacies; to stay waste; to restrain proceedings at law; to take
+  the testimony of witnesses in foreign parts; to settle differences
+  between partners; petitions for writs _de lunatico inquirendo_, and
+  for writs _ne exeat provincia_.[409] The frequent use of the last
+  named writ is interesting. Confined in its original application
+  to cases involving the safety of the realm, its use had, in time,
+  extended to private causes as a means of procuring equitable bail.
+  The departure of a litigant out of the jurisdiction of the court
+  without security for his appearance was a serious matter indeed in
+  days when communication between Europe and America was slow and
+  difficult.
+
+  The case of _Cole_ v. _Wathell_[410] is curious, as an application
+  to chancery in an admiralty cause. The complainants, part owners of
+  a ship, filed a petition setting forth that the defendant, also a
+  part owner, had refused to join with them in fitting out and loading
+  the vessel for a proposed voyage, that she was about to sail for the
+  Barbadoes and there being no person in this government acting as
+  judge of vice-admiralty, they were obliged to apply to the governor,
+  as chancellor, for equitable relief and praying that, “according to
+  the custom and usage in such cases,” the chancellor would appoint
+  appraisers, to value the defendant’s interest, they being willing to
+  account to him for the appraised value. The defendant was given time
+  to dispose of his interest or join in fitting out the ship, but he
+  left town without leaving any notice of what he had done or intended
+  to do, whereupon an order was made appointing three appraisers, who
+  filed a return valuing the defendant’s interest at “two hundred
+  and forty pounds current money of Pennsylvania.” In _Blad_ v.
+  _Bamfield_,[411] Lord Nottingham said: “I took this occasion to show
+  that, the court of chancery hath always had an admiral jurisdiction,
+  not only _per viam appellationis_, but _per viam evocationis_ too,
+  and may send for any cause out of the admiralty to determine it
+  here.” On several other occasions the lord chancellor asserted and
+  enforced this concurrent jurisdiction, which extended at least to
+  cases of depredations on the sea, and has long been deemed obsolete,
+  so that it is quite possible, although by no means certain, that a
+  knowledge of these seventeenth century precedents may have induced
+  the complainants in _Cole_ v. _Wathell_ to seek relief in chancery.
+
+  From the minutes in the register it would appear that the cases did
+  not proceed with much rapidity, in fact many of them were before the
+  court for several years, delayed by all sorts of dilatory motions.
+  In a partition case[412] one of the defendants was particularly
+  obstinate. Having refused to appear in response to a subpœna and
+  _alias_ subpœna, he was attached and remained in jail from June,
+  1733, to November, 1734, when counsel for complainants moved that the
+  bill be taken _pro confesso_ against him. He was then set at liberty
+  and ordered to prepare an answer within a month, which he declined to
+  do, whereupon the court proceeded to a hearing and entered a decree
+  for partition and mutual conveyances. This he declined to obey and
+  in the archives will be found the proof of service of notice on him,
+  with his answer that “he had been informed that there was a decree
+  against him but that he did not care.”[413] A writ of partition then
+  issued, the nature of which is not explained.
+
+  The counsel practicing most frequently in the court were Andrew
+  Hamilton, Joseph Growdon, John Kinsey and Peter Evans. Of the cases
+  recorded only two were decided by Sir William Keith, who was removed
+  by the proprietors from the office of governor in 1726 after a
+  quarrel with Logan. His successor, Patrick Gordon, upon being applied
+  to by the parties to proceed with several cases before the court,
+  hesitated to act until he had consulted with the council as to his
+  authority. The matter was debated and the governor assured that he
+  might legally assume the duties of the office, whereupon he took the
+  oath as chancellor.[414] It was further proposed that rules should
+  be drawn up for the better regulation of the court and the speedier
+  dispatch of business, and David Lloyd, the chief justice, and Andrew
+  Hamilton were named for that purpose.
+
+  So far as can be discovered the practice in the court followed that
+  of England. Suit was commenced by bill; a _subpœna ad respondendum_
+  then issued; an answer or demurrer was filed by the respondents;
+  testimony was taken before examiners, or the matter referred to one
+  of the masters; injunctions were issued and decrees enforced by
+  attachment. On the whole, considering the number of years the court
+  was in existence, the amount of business brought before it was small.
+  Undoubtedly the tedious and technical character of the proceedings,
+  their expense and the fact that the sittings of the court were
+  dependent upon the convenience of the governor, tended to discourage
+  litigants from seeking legal redress through such a channel.
+
+  In 1736 the silent dislike with which the court was regarded
+  changed into open hostility. Perhaps the contagion, if it may be so
+  described, spread from New York, where, in 1735, the general assembly
+  had resolved that the court of chancery held by the governor without
+  their consent was “contrary to law, unwarrantable, and of dangerous
+  consequence to the liberties and properties of the people.”[415]
+  Petitions were presented, signed by inhabitants of Philadelphia,
+  Bucks and Chester counties, complaining to the assembly that the
+  holding of a court of chancery before the governor and council was
+  contrary to a clause in Penn’s charter of privileges which provided--
+
+    “That no person or persons shall or may, at any time hereafter,
+    be obliged to answer any Complaint, matter or thing Whatsoever
+    Relating to Property before the Govern^r and Council, or in any
+    other place but in the ordinary Courts of Justice, unless appeals
+    thereunto shall be hereafter by Law appointed.”[416]
+
+  Even before the meeting of the assembly the subject had been taken
+  up by the press and a spirited controversy had been carried on by
+  contributors to the _Mercury_ and the _Gazette_.[417] The assembly
+  sent a message to the governor requesting information as to how
+  the court of chancery was constituted,[418] and on March 27, 1736,
+  resolved, “That the court of chancery as it is at present established
+  is contrary to the charter of privileges granted to the freemen of
+  this province.”[419] It was then resolved that the justices of the
+  county courts be given power to determine all suits in equity under
+  one hundred pounds, that a supreme court of equity should also be
+  established, to which appeals might be taken from the inferior courts
+  and which should also have original jurisdiction in all matters of
+  equity “_prima instantia_” when the value of the claim exceeded
+  one hundred pounds. The judges of this court were to consist of
+  three persons, to be commissioned by the governor out of any six
+  that should be nominated by the house. A bill was framed to this
+  effect.[420]
+
+  The charge that he was violating the charter angered Governor
+  Gordon and it was ordered that a vindication of the proceedings of
+  the governor and council be prepared and published. Accordingly a
+  voluminous report was drawn up by James Logan, giving a history of
+  the establishment of the court, which, he said, was erected at the
+  request of the assembly upon the best legal advice that could be
+  procured, “particularly that of our then Attorney General, Andrew
+  Hamilton, Esq., who was esteemed and allowed to be as able in that
+  Profession as any on the Continent of America,”--a fling at Hamilton,
+  who as speaker of the assembly was now leading the opposition to the
+  court. The report went on to argue that the word “property” as used
+  in the charter had reference to the proprietary grants and that a
+  court of chancery was an “ordinary court of justice.” It concluded--
+
+    “The Assembly however may be assured, that none of the Council
+    are fond, or in the least desirous, of the Employment, and if the
+    Governor shews any Inclination the Court should be continued on
+    the same Foot, we are perswaded it can be from no other Inducement
+    than his Desire to preserve Decency and Order, and some Resemblance
+    between this Government and all the other British Ones in
+    America.”[421]
+
+  The assembly replied that they intended no offense to the governor
+  or his council and were surprised at their resentment; that a vote
+  of the house was not sufficient to raise a court nor was the opinion
+  of one or more lawyers, who were left to answer for themselves, or
+  the silence of subsequent assemblies of any consideration in the
+  case; that they were sorry to see gentlemen of such penetration as
+  the members of the council resigning away the common sense of the
+  charter; that great men and even courts were often mistaken as to
+  their own jurisdiction; that it had been decided in England that a
+  court of equity could not be established except by act of parliament,
+  and if the king could not raise such a court how could the deputy
+  of the king’s patentee do so? They further hoped to be pardoned for
+  saying that, in their opinion it would have been more reasonable if
+  notice had been taken of their resolution in time to save them the
+  trouble of preparing the bill relating to courts of equity, which had
+  long lain before the governor unapproved although the session of the
+  assembly was drawing to a close.[422]
+
+  Here the controversy was dropped, the assembly soon after adjourned
+  and the governor continued to act as chancellor until his death
+  in the following summer. The matter seems to have disturbed the
+  proprietary party, for a case was stated presenting all the facts
+  and the opinions taken of the Solicitor General, Sir Dudley Ryder,
+  and the Attorney General, Sir John Willes, upon the legality of the
+  court. They held, in effect, that the king had power, in erecting a
+  new form of government in Pennsylvania, to authorize Penn to erect
+  courts of equity and that the consent of the legislature was not
+  necessary until Penn had made it so by the charter of 1701; that the
+  unanimous resolution of 1720 was a sufficient declaration of the
+  assent of the legislature to the erection of the court, and that
+  the court could be lawfully held until the whole legislature passed
+  an act to the contrary.[423] Nevertheless, Logan, who as president
+  of the council administered the government for two years, probably
+  felt that the office of chancellor was outside of the scope of his
+  temporary duties and when Thomas was appointed lieutenant governor,
+  in 1738, the court was not revived. The proprietors were unwilling
+  to give up the court and refer to the matter several times in their
+  correspondence. “We desire,” wrote Thomas Penn to Mr. Peters,
+  September 28, 1751, “that the court of chancery may be established
+  in a manner most favorable to the people, without giving up the
+  king’s prerogative with which we are entrusted, we should have
+  some share of influence, else the trial would not be equal. We are
+  willing, however, that the assembly should regulate the court.”[424]
+  Nevertheless the assembly continued its opposition until the end of
+  the proprietary government.
+
+  Thus, in the words of Horace Binney, Pennsylvania lost this system of
+  justice because “her governors and representatives could not agree
+  by whom the office of chancellor should be held.”[425] The same
+  dispute occurred in the other colonies and was settled according to
+  the exigencies of local politics. There is no indication, however,
+  of any real dislike on the part of the people to the principles of
+  equity; in fact the petition from Bucks County against the governor’s
+  court distinctly demanded that some provision be made for such as
+  want relief in equity, by the erection of courts of equity “more
+  convenient for their attendance and less expensive to those who may
+  have business there.” While that from Chester County requested--
+
+    “That some Provision suitable to the Circumstances of the people
+    may be made for such as want Relief in Equity, without being
+    obliged to travel from the remotest parts of the Province to
+    Philadelphia, & there to attend that Court at a very great & heavy
+    Expence, Which Proceedings, as the Business of that Court does
+    Increase, will undoubtedly become a very great Grievance to the
+    People.”[426]
+
+  It has been suggested that the opposition to the court of chancery
+  would not have taken concrete form but for the influence of Andrew
+  Hamilton who had recently been one of the defendants in an important
+  equity suit brought in the high court of chancery of England where
+  a decree had been entered against him.[427] But this is hardly
+  probable. Hamilton was a man of wealth and influence enjoying a
+  large practice, with a reputation for political independence; he had
+  represented the proprietors in their controversy with Lord Baltimore
+  and had defended the printer, Peter Zenger, in his famous trial at
+  New York, and his activity was probably due to a desire to see the
+  court put on a sound and popular basis. It is fascinating to read
+  into history the characters of the chief actors, and particularly
+  tempting when, as here, the strong personalities of such men as David
+  Lloyd and Andrew Hamilton are found asserting themselves at the
+  critical periods for equity in Pennsylvania. But too much may easily
+  be made of this side of the story; the inhabitants were jealous of
+  the power of the proprietors, they distrusted the governors and
+  suspected the purposes of the Crown, they wanted cheap justice and
+  demanded that it be brought to their doors, the very name “chancery”
+  was odious and they would have none of it, while the governors and
+  councilors, in their zeal for uniformity of practice in the British
+  dominions, sacrificed the substance, equity, for the shadow, the
+  chancellorship.
+
+  As a man, after an amputation, makes shift as best he can with an
+  artificial limb, so Pennsylvania proceeded slowly to construct a
+  substitute for the discarded court. That the loss was not acutely
+  felt, or at least realized, may be inferred from the fact that we
+  hear no more on the subject from the legislature, where real or
+  fancied grievances were then aired with greater persistency than in
+  these days of unlimited appropriations and limited debates. The court
+  act of 1722, previously quoted, conferred upon the supreme court the
+  power to exercise its jurisdiction as fully as the justices of the
+  king’s bench, common pleas and exchequer at Westminster might do, and
+  a plea might have been made for the exercise by the supreme court
+  of the chancery powers of the barons of the exchequer. But the ill
+  success that finally attended the efforts of Governor Cosby of New
+  York to maintain this position, in his celebrated suit against his
+  predecessor, Rip Van Dam, would have discouraged any one from urging
+  a view so unpopular.[428] The orphans’ court was, within its field, a
+  court of equity, and, in regard to the estates of minors, exercised
+  the functions of the chancellor.
+
+  The fact that our pre-revolutionary reports are confined to the
+  notes of a few lawyers makes it doubly difficult to investigate the
+  beginning of the system by which equitable principles were worked
+  out through common law forms. The first case in which the subject is
+  mentioned is _Swift_ v. _Hawkins_,[429] where, in an action of debt
+  on a bond, the court under the plea of payment, admitted evidence
+  of want (probably a misprint for failure) of consideration, which,
+  said Chief Justice Allen, was a necessity, to prevent a failure of
+  justice, there being no court of chancery in the province; and this,
+  he said, he had known to be the constant practice of the courts for
+  thirty-nine years past. If the chief justice is accurately reported
+  this would carry the practice back to 1729, before the abolition of
+  the court of chancery, but Chief Justice Allen was in a position to
+  speak with authority, having sat in the common pleas as early as 1732.
+
+  In _Wharton_ v. _Morris_,[430] Chief Justice McKean, in charging
+  the jury on the question as to whether a bond payable in “lawful
+  current money of Pennsylvania” could be paid in depreciated currency,
+  remarked that--
+
+    “The want of a court with equitable powers, like those of the
+    chancery in England, had long been felt in Pennsylvania. The
+    institution of such a court, he observed, had once been agitated
+    here, but the houses of assembly, antecedent to the revolution,
+    successfully opposed it; because they were apprehensive of
+    increasing, by that means, the power and influence of the governor,
+    who claimed it as a right to be chancellor. For this reason, many
+    inconveniences have been suffered. No adequate remedy is provided
+    for a breach of trust; no relief can be obtained in cases of
+    covenants with a penalty, &c. This defect of jurisdiction has
+    necessarily obliged the court, upon such occasions, to refer
+    the question to the jury, under an equitable and conscientious
+    interpretation of the agreement of the parties.”
+
+  In the same year, the court of common pleas of Philadelphia County in
+  _Dorrow_ v. _Kelly_,[431] held that a simple contract debt could not
+  be tacked to a mortgage, President Judge Shippen saying, that while
+  the courts of the state had in some instances adopted chancery rules
+  to prevent an absolute failure of justice, there was no necessity
+  in this case to usurp the powers of a court of chancery, an act of
+  assembly having directed the mode of proceeding on mortgages and
+  confined the recovery to principal and interest.
+
+  The first statutory efforts to give relief as in equity were,
+  naturally, by private acts, where the interests involved were
+  sufficiently important to warrant a direct interference by the
+  legislature. Among these was an act passed in 1757[432] to enable
+  certain testamentary trustees to carry out an agreement of the
+  testator by the execution of deeds of conveyance; another in
+  1761[433] to enable trustees to sell lands settled in trust for the
+  Oxford church and with the money arising therefrom to purchase other
+  lands; a third in 1772[434] confirming the title to land where the
+  deed had, by some accident, been torn and defaced, and a fourth in
+  the same year where the deed had been lost.[435] One act will serve
+  as an illustration. Godfrey Brown mortgaged land in Cheltenham
+  township to the Trustees of the General Loan Office of the Province
+  and subsequently conveyed to Philip Fox. Fox paid the mortgage and
+  then it was found that two deeds in the chain of title, that had been
+  pledged to the trustees according to the custom of their office,
+  were lost, and, although diligent search had been made in the loan
+  office and elsewhere, they could not be found. Therefore “to prevent
+  the damages and mischiefs which may arise from the loss of the said
+  deeds,” on petition of Philip Fox, it was enacted that the grantors
+  in said deeds and their heirs be barred and forever excluded from
+  all claims to the said premises which should vest in the petitioner
+  absolutely, saving the rights of others than the said grantors.[436]
+
+  The first legislative attempt to give equitable relief by a general
+  act, was contained in the Act of January 22, 1774,[437] to compel
+  trustees and assignees of insolvent debtors to execute their trusts.
+  By this law the courts of common pleas were empowered, on petition,
+  to appoint commissioners to audit the accounts of such trustees
+  and upon their report to order the trustees to forthwith pay the
+  creditors their just proportions of the funds with which they were
+  charged.
+
+  The next halting step was taken in the constitution of 1776 which
+  contained the following clause:--
+
+    “The supreme court and the several courts of common pleas of this
+    commonwealth shall, besides the powers usually exercised by such
+    courts, have the powers of a court of chancery, so far as relates
+    to the perpetuating testimony, obtaining evidence from places not
+    within this state, and the care of the persons and estates of those
+    who are _non compotes mentis_, and such other powers as may be
+    found necessary by future general assemblies, not inconsistent with
+    this constitution.”[438]
+
+  No such other powers were conferred except by the Act of March 28,
+  1786,[439] which authorized the supreme court upon bill setting forth
+  the loss of deeds or other writings, to issue a subpœna, requiring
+  the persons named to appear and answer; to refer the matter to a
+  master and upon his report to make such order and decree as to
+  justice and equity should appertain. This statute appears to have
+  been occasioned by the frequent complaints of the loss of deeds
+  which could only be remedied by private acts such as those already
+  referred to. By the Act of September 28, 1789,[440] proceedings akin
+  to discovery were authorized in foreign attachment. The plaintiff
+  after judgment against the defendant was permitted to exhibit
+  interrogatories to the garnishees, who were required to answer under
+  oath.
+
+  On the twenty-fourth of November, 1789, there met at Philadelphia a
+  convention to draft a new constitution for the state. The members
+  were abler and more representative men than those who had framed
+  the short-lived constitution of 1776. The committee of nine who
+  prepared the first draft of the proposed constitution included
+  James Wilson, William Lewis, Alexander Addison and James Ross. The
+  plan submitted by them included a high court of chancery presided
+  over by a chancellor with state-wide jurisdiction, and a court of
+  chancery in each judicial district, or circuit, except that in which
+  the high court should be held, presided over by the president judge
+  of the court of common pleas with the same power as the chancellor
+  except that of granting injunctions to stay proceedings or suspend
+  judgments at law. From a decree in chancery in any circuit an appeal
+  was allowed to the chancellor of the state. Determined opposition to
+  this plan developed in the convention and after a prolonged contest
+  in committee of the whole, the provision for a court of chancery was
+  struck out of the judiciary article and limited equity powers were
+  conferred on the existing courts in the following words:--
+
+    Art. V. Section VI. “The supreme court and the several courts of
+    common pleas shall, beside the powers heretofore usually exercised
+    by them, have the powers of a court of chancery so far as relates
+    to the perpetuating of testimony, the obtaining of evidence from
+    places not within the state, and the care of the persons and
+    estates of those who are _non compotes mentis_. And the legislature
+    shall vest in the said courts such other powers to grant relief in
+    equity as shall be found necessary; and may, from time to time,
+    enlarge or diminish those powers; or vest them in such other
+    courts as they shall judge proper for the due administration of
+    justice.”[441]
+
+  So ended the last effort to obtain a separate court of chancery in
+  Pennsylvania. This much was conceded, the legislature was authorized
+  not only to extend the equity powers of the existing courts, but
+  to vest them in such other courts as they should judge proper. But
+  the latter power was not exercised by the creation of a separate
+  court, nor were equity powers conferred upon the ordinary courts
+  in a systematic manner. From time to time, under the compulsion of
+  sheer necessity, equitable jurisdiction was extended by a series of
+  acts the mere recital of which is wearisome.[442] Delaware, however,
+  whose political and judicial history was so long and so intimately
+  associated with that of Pennsylvania, took the step declined by her
+  sister commonwealth and established a separate court of chancery by
+  the constitution of June 12, 1792.[443]
+
+  As we have seen, the constitutions of 1776 and 1790 expressly
+  conferred upon the courts the power to grant relief in certain cases.
+  Of these, the first, the perpetuation of testimony, was exercised
+  directly under the constitution in accordance with chancery practice;
+  the second, the obtaining of evidence from places out of the state,
+  by commissions and rule of court;[444] as to the third, the care
+  of idiots and lunatics, the power of determining the question
+  of insanity was exercised through the medium of a commissioner
+  and inquest according to chancery practice.[445] In addition the
+  legislature by a series of acts, prior to 1836, conferred additional
+  powers the most important of which were to compel trustees to
+  account, to discharge and dismiss them, to compel the conveyance of
+  the legal estate where the trust had expired, to compel discovery
+  in aid of execution in certain cases relating to corporations and
+  corporate stock, and to compel the specific performance of a contract
+  for the sale of lands, where the vendor had died, by an order
+  empowering the executors or administrators to execute a deed.[446]
+
+  If the sum total of legislation seems meagre today, it can only be
+  said that public opinion in regard to law reform moves slowly, and
+  the bar, while dissatisfied with some features of the system, was
+  not clear as to the direction reform should take. As will be seen
+  presently, the simpler equities had been worked out through the
+  common law actions and it was thought practicable to extend this
+  method by the revival of neglected actions and an extension of their
+  remedial effects. Such was the thesis maintained by Mr. Laussat in
+  his brilliant essay[447] and the favorable reception it received
+  shows how obstinately loyal a bar may become to an inadequate system
+  that they have been taught to revere. These views were respected
+  by the commissioners to revise the civil code when, in 1835, they
+  took up the question of equity. Some of the subjects ordinarily
+  dealt with in a court of chancery, such as mortgages, they found
+  had been fully covered by statutes; others could be covered in the
+  same manner by acts that they had prepared; others were within the
+  sphere of the orphans’ courts. It was in the peculiar means of
+  administering preventive justice that the courts of equity possessed
+  a decided superiority over the courts of law, and it was here that
+  the Pennsylvania system was most defective and the recommendations
+  of the commissioners most radical. The commissioners were opposed
+  to a separate court of chancery as unnecessary, and also opposed
+  to keeping up a separate chancery organization in the existing
+  tribunals. The courts, they said, had pursued certain established
+  modes of practice which now for more than a century had become
+  familiar to the community. “To recast the whole system then, to
+  establish a class of equitable remedies for all equitable cases, and
+  to confine the common law procedure to common law subjects,” would
+  produce, they thought, “greater inconveniences than any benefit which
+  might be supposed in theory to arise from the change.”[448] Upon the
+  whole, they thought that the safest plan to pursue was to give relief
+  whenever possible by some familiar common law remedy, and when full
+  relief could not be given by such process, to resort by statute to
+  the methods of the chancery courts.
+
+  Upon the recommendation of the commissioners the legislature extended
+  the equity powers of the courts as follows in the Act of June 13,
+  1836:[449]--
+
+    “The Supreme court, and the several courts of Common Pleas, shall
+    have the jurisdiction and powers of a court of Chancery, so far as
+    relates to--
+
+    “I. The perpetuation of testimony:
+
+    “II. The obtaining of evidence from places not within the state:
+
+    “III. The care of the persons and estate of those who are _non
+    compos mentis_:
+
+    “IV. The control, removal and discharge of trustees, and the
+    appointment of trustees, and the settlement of their accounts:
+
+    “V. The supervision and control of all corporations other than
+    those of a municipal character, and unincorporated societies or
+    associations, and partnerships:
+
+    “VI. The care of trust monies and property, and other monies and
+    property made liable to the control of the said courts.
+
+    “And in such other cases, as the said courts have heretofore
+    possessed such jurisdiction and powers, under the constitution and
+    laws of this commonwealth.
+
+    “And in every case in which any court as aforesaid, shall exercise
+    any of the powers of a court of Chancery, the same shall be
+    exercised according to the practice in equity, prescribed or
+    adopted by the Supreme court of the United States, unless it be
+    otherwise provided by act of assembly, or the same shall be altered
+    by the Supreme court of this commonwealth, by general rules and
+    regulations, made and published as is hereinbefore provided;
+    and the Supreme court when sitting in banc, in the city of
+    Philadelphia, and the court of Common Pleas for the said city and
+    county, shall besides the powers and jurisdiction aforesaid, have
+    the power and jurisdiction of courts of Chancery so far as relates
+    to--
+
+    “I. The supervision and controul of partnerships, and corporations
+    other than municipal corporations.
+
+    “II. The care of trust monies and property, and other monies and
+    property made liable to the controul of the said courts.
+
+    “III. The discovery of facts material to a just determination of
+    issues, and other questions arising or depending in the said courts.
+
+    “IV. The determination of rights to property or money claimed by
+    two or more persons in the hands or possession of a person claiming
+    no right of property therein.
+
+    “V. The prevention or restraint of the commission or continuance
+    of acts contrary to law, and prejudicial to the interests of the
+    community or the rights of individuals.
+
+    “VI. The affording specific relief, when a recovery in damages
+    would be an inadequate remedy: _Provided_, That in relation to the
+    discovery of facts material to a just determination of issues,
+    and other questions, the District court for the city and county
+    of Philadelphia, shall have the same power and authority, within
+    its jurisdiction, as is hereby conferred on the court of Common
+    Pleas for the said city and county: _And provided further_, That
+    no process to be issued by the said courts of the city and county
+    of Philadelphia, or the Supreme court sitting therein, under the
+    chancery powers herein specially granted, excepting such as have
+    heretofore been exercised shall at any time be executed beyond the
+    limits of the city and county aforesaid.”
+
+  In conferring these powers the legislature did not adopt in full
+  the recommendations of the commissioners, who in the bill reported
+  by them embraced the whole state as the field for the operation of
+  chancery remedies, but confined a portion to Philadelphia County,
+  yielding to the prejudices of the interior counties where want of
+  familiarity with the forms of chancery procedure had created a
+  special distaste for a change in practice. The unqualified success
+  of the extension of equity jurisdiction in Philadelphia County
+  led to a rapid change of opinion; in twenty years the wisdom of
+  the commission’s recommendations was vindicated and the courts of
+  common pleas of all the counties were invested with the same equity
+  powers that the courts of Philadelphia possessed.[450] These powers
+  had in the meantime been increased by an extension to all cases of
+  fraud, accident, mistake, account,[451] discovery,[452] dower and
+  partition.[453] The extension of equity jurisdiction to partition
+  was most advantageous, since the court could upon bill determine the
+  rights of the parties in a far more satisfactory manner than by a
+  common law action, which would rarely be resorted to now were it not
+  for the fear of the expense involved in a reference to a master.
+
+  A catalogue of the statutory additions to the equity powers of
+  the courts would unnecessarily prolong this discussion. They will
+  be found in the digests and books on practice. In one important
+  particular it became necessary to rectify the opinion of the
+  commissioners that the remedy by _scire facias sur_ mortgage was
+  adequate by an extension of the equity powers of the common pleas to
+  corporation mortgages. It having been held that the trustee named in
+  a corporation mortgage could not maintain a bill to foreclose, an
+  act was passed conferring this necessary power.[454] With respect
+  to charities, legislation also became necessary to give effect in a
+  limited extent to the doctrine of _cy-pres_.[455]
+
+  As important as any clause in the Act of 1636 was that which
+  empowered the supreme court to adopt equity rules for the whole
+  state which the courts of common pleas could neither disregard nor
+  suspend.[456] The power has been wisely exercised by the adoption of
+  clear and concise rules that have operated as a check upon slovenly
+  practice and furthered that uniformity which should characterize the
+  administration of justice. In the interest of economy, regularity and
+  certainty it is unfortunate that the same course has not been adopted
+  in regard to actions at law. A recent act[457] provides that where a
+  bill in equity has been filed, if the defendant desires to question
+  the jurisdiction of the court, he must do so by demurrer or answer,
+  explicitly so stating, or praying for an issue; otherwise the right
+  of trial by jury shall be deemed to have been waived. If the demurrer
+  or answer avers that the suit should have been brought at law, that
+  issue shall be decided _in limine_ before hearing on the merits, and
+  if the court decide that the suit should have been brought at law it
+  shall certify the case to the law side of the court at the cost of
+  the plaintiff. So, on appeal, if the decision of the appellate court
+  is that the suit should have been brought at law it shall remit the
+  cause with directions to transfer it to the law side of the court.
+
+  It is necessary to say something in reference to the nature of the
+  equitable relief administered through common law forms, a subject of
+  unusual interest inasmuch as it has had a profound influence upon the
+  development of legal procedure in the commonwealth. Independently of
+  the form of action, it has been said, “our courts will advance the
+  equitable rights of plaintiffs, where, through some accident that
+  occurred anterior to the institution of his suit, or that happens
+  during its pendency his common law remedy would be taken away or
+  rendered nugatory.”[458] An early case illustrating this principle is
+  _Respublica_ v. _Coates_,[459] an action of debt on a bond brought
+  in the supreme court against the defendant as surety. Levy, for
+  the plaintiff, moved for a rule to show cause why the declaration
+  should not be amended by striking out the _profert_ and averring
+  the loss of the obligation. Lewis and Sergeant, for the defendant,
+  declared that they would not object to the rule being made absolute,
+  as they apprehended a late authority had settled the practice in
+  England.[460] The court made the rule absolute, declaring that it was
+  absolutely necessary such practice should be adopted here to prevent
+  a failure of justice, there being no court of chancery to protect
+  against such accident.
+
+  The common law actions that were made the vehicles of equitable
+  rights were assumpsit, debt, covenant, replevin, ejectment and
+  partition; in fact nearly all the personal actions have been employed
+  to support equitable claims. “I do not like the idea,” said Mr.
+  Justice Huston, “that our equitable powers are more extensive in
+  one form of action than another.”[461] Assumpsit is an equitable
+  action and lies, according to the familiar phrase, in all cases
+  where the defendant has money which _ex æquo et bono_ belongs to the
+  plaintiff.[462] Thus where there had been a recovery in ejectment
+  against tenants and the landlord died, it was held indebitatus
+  assumpsit would lie against the landlord’s executors to recover
+  rents received, from the time the plaintiffs’ title accrued, as a
+  substitute for a bill in equity, and the question was submitted to
+  the jury as to whether the defendant’s testator had misrepresented
+  their title to the plaintiffs and concealed the defects in his
+  own.[463]
+
+  An illustration of the free use of the equitable powers of the
+  court will be found in _Bixler_ v. _Kunkle_,[464] an action of
+  assumpsit for money had and received by the defendants to the use
+  of the plaintiff. It appeared that plaintiff’s father had by his
+  will directed his executors to lay out a certain sum in land for
+  the plaintiff’s separate use and that the executors had procured a
+  release from her by fraud on payment of about one half of what was
+  due. Judgment was entered for the plaintiff, the money to be paid
+  into court and expended under the court’s direction in the purchase
+  of land according to the will. Chief Justice Gibson, however,
+  thought that the judgment exceeded the powers of the court, although
+  jurisdiction to decree a trust would be most salutary.
+
+  So also, where by articles of agreement for the sale of land a deed
+  was to have been delivered on a certain date, and in covenant on the
+  articles it appeared that it had been verbally agreed that delivery
+  should take place on a subsequent date. Chief Justice Tilghman was
+  of the opinion that the action could have been supported if the
+  declaration had been amended so as to set forth the alteration of
+  the agreement. “I see,” he said, “no certain mode of doing equity to
+  both parties, but by issuing a writ of covenant in the usual form
+  and permitting the declaration to partake so much of the nature of
+  a bill of equity as to set forth the truth of the case. To this the
+  defendant may plead anything which in law or equity will serve him,
+  and thus the parties may go to trial on the merits of the case.” And
+  Mr. Justice Gibson added: “The declaration is in effect a bill in
+  equity; for in England the plaintiff could not recover in a court
+  of law: I cannot, therefore, see why those equitable circumstances
+  that are the very foundation of the action, should not be set forth.
+  Performance by the plaintiff at a subsequent day, and acceptance by
+  the defendant, is in equity equivalent to performance strictly at the
+  day, and ought to have been alleged here. Principles of equity cannot
+  be administered through common law forms, strictly such, without
+  having recourse to fiction, which leads to serious inconvenience. The
+  facts as they exist ought, in all cases where it is practicable, to
+  be set forth.”[465]
+
+  Replevin had from the earliest times a wider scope than in England,
+  being applicable in every case in which goods and chattels in the
+  possession of one person were claimed by another.[466] So too, in
+  partition an equitable estate was held sufficient to support the
+  action, as in _Stewart_ v. _Brown_,[467] where it was held that if
+  a person purchase land at a tax sale under an agreement that another
+  should be equally concerned, he would be considered as holding for
+  the plaintiff and himself as tenants in common. The technical and
+  nearly obsolete action of account render was frequently resorted to
+  as a substitute for the bill in equity for an account. The action
+  of ejectment became at an early date, through the ingenuity of
+  the courts, the most important mode of enforcing the equity of a
+  plaintiff in real property. In _Hawthorn_ v. _Bronson_,[468] it is
+  thus described by Mr. Justice Duncan:--
+
+    “The equitable action of ejectment, in this state, forms a
+    considerable branch of the law. From the nature of our original
+    titles, settlement-rights, warrants and applications, all imperfect
+    rights, so variant in their circumstances from other countries,
+    our courts of justice have been obliged to form a system of
+    laws adapted to this species of title, and accommodated to all
+    its circumstances, and which, perhaps, could not, after all our
+    experience, be changed to advantage; and which, indeed, ought not
+    to be changed, however specious the reason might be, as it would
+    tend to destroy all security of title, and introduce new confusion,
+    which nothing but a steady adherence to decisions can prevent.
+    And when to this is added, that in general, the people contract
+    by articles for payment by instalments, and the legal title is
+    seldom made, until all the purchase-money is paid, and the frequent
+    essignment of these articles, we ought not to be surprised at the
+    numerous complicated cases which arise in our courts of law and
+    equity; for they are courts of law and equity distributing justice
+    by the same medium--the instrumentality of a jury. In Pennsylvania,
+    equity is law. Courts give the equitable principles to the jury, as
+    they lay down the legal principles. The facts are for the decision
+    of the jury, as all contested facts must be; but whether, on any
+    state of facts found by the jury, the party is entitled to equity,
+    and the mode, manner and extent of relief, is for the court.”
+
+  Wherever chancery would enforce specifically a contract for the sale
+  of land, it is said, the same relief will be granted in Pennsylvania
+  by ejectment.[469] Thus ejectment lies by the vendor against the
+  vendee in possession under articles who has paid part of the
+  purchase money and defaulted on the remainder.[470] So also by the
+  vendee, upon tendering the purchase money.[471] Difficulties were
+  encountered, as might be expected, in cases involving a construction
+  of the statute of frauds which are too technical for discussion
+  here.[472]
+
+  The interest of the assignee of a chose in action was also recognized
+  and protected in actions at law, and on the other hand, the assignee
+  made liable to set-offs and costs in the same manner as if the suit
+  had been instituted in his own name. The practice which prevailed
+  from a time antedating the Revolution was to bring the suit in the
+  name of the assignor and mark it to the use of the assignee.[473]
+
+  It was a somewhat simpler matter to give effect to the equities of a
+  defendant, since this did not involve an extension of the scope of
+  common law writs or the revival of obsolete actions as substitutes
+  for chancery procedure. The rules of pleading and evidence interposed
+  the chief barrier to the admission of equitable defenses and these
+  were broken down at an early period. And whatever may be said as to
+  the insufficiency of the remedies afforded to a plaintiff, it must be
+  admitted, as observed by Mr. Rawle,[474] that the protection given to
+  a defendant in Pennsylvania was in advance of the law as elsewhere
+  administered. There were two ways in which it was possible to present
+  the equity of a defendant, first by giving evidence of equitable
+  matter, under a general plea, and second, where from the nature of
+  the case it was improper to make a defense under a general plea by
+  pleading specially the facts constituting the equitable grounds of
+  defense.[475]
+
+  The first reported case describing the practice of giving in
+  evidence, under the plea of payment, matters of equitable defense is
+  _Swift_ v. _Hawkins_[476] already referred to, “the Magna Charta,”
+  says Mr. Justice Duncan, “of this branch of equity.”[477] Seven years
+  later, in 1775, the supreme court, to prevent surprise at trials,
+  adopted a rule that every person, intending to give special matter
+  in evidence under the general issue, must give notice in writing
+  ten days before trial of the special facts he intended to rely on
+  and, because it had been adjudged that under the plea of payment the
+  defendant might give evidence that a bond or specialty was given
+  “without any or good consideration,” for the future in all such
+  cases, the defendant should thirty days before trial give notice in
+  writing of his intention to offer such evidence.[478] From that day
+  every practicing attorney in Pennsylvania has, at some time in his
+  career, started from his sleep in the middle of the night in a cold
+  sweat, wondering if he _did_ give notice in that case on tomorrow’s
+  list.
+
+  Where an equitable defense is set up under the plea of payment with
+  notice of special matter, the plea is a substitute for a bill in
+  equity, and under it the jury may and should presume everything to
+  have been paid which in equity and good conscience the defendant
+  ought not to be compelled to pay. The nature of the plea, says Chief
+  Justice Gibson,[479] has frequently been misunderstood. It is not the
+  general issue. As an equitable plea it makes room only for what would
+  sustain a bill in chancery, and as a legal plea it makes room only
+  for evidence of direct payment, or what is the equivalent of payment
+  where the plea is directed by act of assembly. The various equitable
+  defenses permitted under the plea may be classed under the familiar
+  heads of fraud, accident, mistake, and failure of consideration.[480]
+  The same liberality as to evidence was not favored under the plea of
+  non assumpsit. It was said by Chief Justice Tilghman[481] that if the
+  circumstances afforded grounds for relief in equity, the defendant
+  should give notice of special matter under the plea of payment.
+
+  In the action of covenant, the plea of performance, or covenants
+  performed, almost obsolete in England, was, with notice of special
+  matter held sufficient to support any evidence which would discharge
+  the defendant in equity.[482] In ejectment an equitable defense would
+  protect the defendant’s possession, but by statute[483] the plea of
+  “not guilty” was the only one allowed. There was also permitted,
+  in addition to the statutory set-off, an equitable defense in the
+  nature of set-off applicable to acts of nonfeasance or misfeasance
+  by the plaintiff connected with his cause of action, not matter of
+  defalcation but directed to the defeat of the claim in whole or part.
+  As to replications and subsequent pleadings, if a plea was put in
+  founded in equity the plaintiff was permitted in reply to set up any
+  special facts sufficient to destroy that equity.[484]
+
+  Another powerful instrument in the administration of equity under
+  common law forms was the conditional verdict frequently used as a
+  substitute for an injunction or a bill for specific performance. In
+  such a case, where the plaintiff had set out in his declaration the
+  whole ground of his equitable right, the jury under the direction of
+  the court might find large damages to be released on condition of
+  compliance with the terms prescribed by the verdict, which terms were
+  for the jury alone to impose.[485] So also the power of the court to
+  control or open judgments has been exercised according to equitable
+  principles and with a view to preventing injustice under color of law.
+
+  Such then is the system which Horace Binney contemptuously described
+  as “a spurious equity compounded of the temper of the judge and
+  the feelings of the jury, with nothing but a strong infusion of
+  integrity to prevent it from becoming as much the bane of personal
+  security as it was the bane of science.”[486] The early bar, however,
+  regarded it much as a mother does a deformed child; they loved it,
+  they doctored it and resented reflections upon its symmetry and
+  efficiency.[487] Extravagant notions were at one time entertained
+  as to the possibility of extending the system by the employment of
+  long forgotten actions, such as the assize of nuisance,[488] and by
+  widening the scope of the writ of _scire facias_.[489] As has been
+  shown, more sensible counsel prevailed and limited chancery powers
+  were extended to the courts by statute.
+
+  If the court of chancery had been excluded in the eighteenth century
+  from our system of justice as the first step in a movement for
+  the scientific reform of procedure, the result might have been
+  far-reaching. But it was not. Political considerations dictated
+  the change and the best legal opinion of the day was adverse to
+  the innovation. Anglo-American jurisprudence was founded on the
+  inherited conception of a dual system, law and equity, each with its
+  distinct functions. The excision of equity crippled and paralysed
+  the administration of justice. Having destroyed chancery forms,
+  the next logical step should have been to abolish all distinctions
+  between common law forms and substitute one simple method of
+  proceeding, under which equity and law alike could be administered.
+  But such a conception was in advance of the times. Instead, from
+  time to time under the pressure of necessity, efforts were made to
+  administer equitable principles through forms that even for their own
+  legitimate purposes were fast becoming archaic. The result was to
+  create a new series of technicalities requiring a glossary of their
+  own. When chancery powers were conferred upon the courts, the fact
+  that relief was given in common law forms might have presented an
+  obstacle to the exercise of equity jurisdiction in many instances,
+  had not the courts, by a liberal construction of the acts conferring
+  such jurisdiction, insisted that it was not sufficient to oust the
+  jurisdiction of equity that complainant had a remedy at law, unless
+  that remedy was as complete, adequate, practical, efficient and
+  convenient to the ends of justice as that in equity. Nevertheless
+  there are cases where the distinction is still far from clear,
+  a situation that would be ridiculous were it not so serious to
+  prospective litigants.
+
+  Another disadvantage that attended the system was that the equities
+  of the respective parties were to a large extent left to the chance
+  decision of a jury, which is more likely to be guided by sympathy or
+  prejudice than the law of the case, or, with the best intentions in
+  the world, is an unsatisfactory tribunal for the determination of
+  complicated questions of fact. No doubt this is one reason for the
+  great number of references to arbitrators to be found on the early
+  dockets.
+
+  It is true that for purely defensive purposes the system had
+  decided advantages. It permitted a defendant to put in an equitable
+  defense without resorting to another jurisdiction for relief. But
+  on the offensive it broke down. The common law offered no adequate
+  substitute for the bill for an injunction, to enforce specific
+  performance of contracts, to reform or cancel instruments, to
+  obtain a receiver, for the bill _quia timet_ and the bill of peace.
+  Present social and commercial conditions tend to increase rather
+  than diminish the importance of equity jurisdiction. Such matters
+  as trade-marks, copyrights and patents; corporations, associations
+  and trusts; trade disputes and interstate commerce, present problems
+  that would seem almost incapable of solution except through chancery
+  procedure, either in its original form or as assimilated by code
+  practice, without a revolutionary reconstruction of the entire legal
+  system.
+
+  Some reformation of our procedure belongs to the future. Of that we
+  may be certain. It is impossible to imagine that our technical and
+  complicated practice will not fall some day of its own weight and be
+  replaced by a procedure clearer, simpler and more scientific. In that
+  golden age, when the practice of law will be a pleasant diversion
+  and the bringing of a suit the opening bar of a symphony, if one
+  of our learned profession now living is permitted, as a shade, to
+  revisit the scene of his earthly struggles, he will be able, perhaps,
+  to recognize traces of equity procedure, but the common law actions
+  will belong as completely to the past as himself, or, to put it more
+  humanely, as the _actio sacramenti_ of the Roman or the weregeld of
+  the Saxon.
+
+
+  FOOTNOTES:
+
+  [353] Parkes’s History of the High Court of Chancery.
+
+  [354] Maine’s Ancient Law, chapter 3.
+
+  [355] Courts of Chancery in the American Colonies, S. D. Wilson,
+  American Law Review, Vol. XVIII, 226, reprinted in Select Essays in
+  Anglo-American Legal History, Vol. II, 779; Story’s Miscellaneous
+  Writings, 151. History of Equity in the American Colonies, E. B.
+  Gager, in Two Centuries’ Growth of American Law, chapter 6.
+
+  [356] Charter and Laws of Pennsylvania, 35.
+
+  [357] Charter and Laws of Pennsylvania, 61.
+
+  [358] V Pennsylvania Archives (2d series), 697.
+
+  [359] Sussex County Records (Turner), 76.
+
+  [360] V Pennsylvania Archives (2d series), 679.
+
+  [361] VII Pennsylvania Archives (2d series), 799.
+
+  [362] Broadhead’s History of New York, Vol. II, 385, gives the date
+  of the act as November 1, 1683. It appears in the laws of 1694 as of
+  1691. Compare preface to 1 Johnson’s Chancery Reports (N. Y.).
+
+  [363] New York Colonial Documents, Vol. IV, 882.
+
+  [364] IV New Jersey Archives, 70.
+
+  [365] New York Colonial Documents, Vol. V, 298.
+
+  [366] Sussex County Records (Turner), 97.
+
+  [367] I Colonial Records, 21, 4, 5 mo. 1683.
+
+  [368] I Colonial Records, 65, 14, 6 mo. 1684.
+
+  [369] I Colonial Records, 63, 20 4 mo. 1684.
+
+  [370] Charter and Laws of Pennsylvania, 167.
+
+  [371] I Colonial Records, 75, 3, 2 mo. 1685.
+
+  [372] Chester County Records, 3, 10 mo. 1686, quoted by Peter McCall
+  in his address before the Law Academy, 21.
+
+  [373] I Colonial Records, 159, 12, 3 mo. 1687.
+
+  [374] I Votes of the Assembly, 41.
+
+  [375] Charter and Laws of Pennsylvania, 184. The assembly tried to
+  strike out the word equity, I Votes of the Assembly, 57.
+
+  [376] Charter and Laws of Pennsylvania, 214, 225. See also Act of
+  November 27, 1700, II Statutes at Large, 134.
+
+  [377] I Colonial Records, 161, 18, 3 mo. 1687; I Colonial Records
+  441, April 24, 1695; I Colonial Records, 442, May 25, 1695; I
+  Colonial Records, 478, May 24, 1697.
+
+  [378] I Votes of the Assembly, 79.
+
+  [379] Charter and Laws of Pennsylvania, 100, re-enacted November 27,
+  1700; II Statutes at Large, 128.
+
+  [380] II Statutes at Large, 148. See Charter and Laws of
+  Pennsylvania, 300.
+
+  [381] II Statutes at Large, 481.
+
+  [382] II Colonial Records, 115, 29, 11 mo. 1703-4.
+
+  [383] II Colonial Records, 164, 15, 7 mo. 1704.
+
+  [384] II Colonial Records, 189, 13, 2 mo. 1704-5.
+
+  [385] II Colonial Records, 263, 23, 7 mo. 1706.
+
+  [386] II Colonial Records, 266, 25, 7 mo. 1706.
+
+  [387] II Colonial Records, 280, 27, 9 mo. 1706.
+
+  [388] II Colonial Records, 282, November 28, 1706.
+
+  [389] II Colonial Records, 288, 2, 10 mo. 1706.
+
+  [390] II Colonial Records, 295, 23, 10 mo. 1706.
+
+  [391] Charter and Laws of Pennsylvania, 319. The remonstrance of the
+  Assembly will be found in II Colonial Records, 362. March 4, 1706-7.
+
+  [392] IV Coke’s Institutes, 242; Pembrokeshire by Owen of Heullys
+  (1603), Folio 74a, edition of 1892, page 155; History of Radnorshire
+  by Rev. Jonathan Williams, 72; Archæologia Cambrensis, Vol. III
+  (series 3), 29; Bacon’s Law Tracts, Jurisdiction of the Marches.
+
+  [393] I William and Mary, chapter 27.
+
+  [394] The court of great sessions was abolished by the act of I
+  William IV, chapter 70; Stephen’s Commentaries on the Law of England
+  (1st edition), Introduction, § 4.
+
+  [395] Abbot’s Jurisdiction and Practice of the Court of Great
+  Sessions of Wales (1795), 94 and introduction, xxviii.
+
+  [396] Viner’s Abridgment, title, Wales, D., _Morgan_ v. ----, I
+  Atkins’ Reports, 408 (1737); _Griffith_ v. _Joanes_, Choyce Cases
+  in Chancery, 129 (1578); Prohibitions might issue from the King’s
+  Bench directed to the Court of Great Sessions, _Vaughn_ v. _Evans_, 8
+  Modern Reports, 374 (1725), _Trantor_ v. _Duggan_, 12 Modern Reports,
+  138 (1698).
+
+  [397] February 28, 1710-11, II Statutes at Large, 301; Charter and
+  Laws of Pennsylvania, 323.
+
+  [398] II Statutes at Large, 549, 1 Pennsylvania Archives (1st
+  Series), 157.
+
+  [399] II Statutes at Large, 556; Charter and Laws of Pennsylvania,
+  351; The Assembly, as usual, protested against this ordinance, II
+  Colonial Records, 599, August 4, 1714.
+
+  [400] II Votes of the Assembly, 161, 20, 11 mo. 1714-15.
+
+  [401] III Statutes at Large, 65.
+
+  [402] III Statutes at Large, 439, 464.
+
+  [403] Charter and Laws of Pennsylvania, 305; II Votes of the
+  Assembly, 271; III Colonial Records, 84, June 8, 1720.
+
+  [404] III Colonial Records, 100, August 6, 1720.
+
+  [405] Charter and Laws of Pennsylvania, 386, II Votes of the
+  Assembly, 274.
+
+  [406] II Statutes at Large, 298.
+
+  [407] Proud’s History of Pennsylvania, Vol. II, 200.
+
+  [408] The lecture was published by the Law Academy of Philadelphia in
+  1868 with the register as an appendix.
+
+  [409] Rawle’s Equity in Pennsylvania, 26.
+
+  [410] Rawle’s Equity in Pennsylvania, 38, appendix 23 (1728).
+
+  [411] 3 Swanston’s Reports, 604 (1674); _Blad’s Case_, 3 Swanston’s
+  Reports, 603 (1673); _Denew_ v. _Stock_, 3 Swanston’s Reports, 662
+  (1677); _Rex_ v. _Carew_, 3 Swanston’s Reports, 699 (1682); Spence’s
+  Equity, Vol. I, 703.
+
+  [412] _Ellis_ v. _Ellis_, Rawle’s Equity in Pennsylvania, appendix,
+  34.
+
+  [413] I Pennsylvania Archives (1st Series), 442.
+
+  [414] III Colonial Records, 281, February 2, 1726-7.
+
+  [415] Smith’s History of New York, Vol. II, 24.
+
+  [416] II Colonial Records, 56, 28, 8 mo. 1701.
+
+  [417] See particularly the Pennsylvania Mercury, December 18, 1735,
+  and the Pennsylvania Gazette, December 24, 1735. Thomas Penn wrote to
+  John Penn on January 14, 1735: “The late newspapers have been filled
+  with arguments for and against the legality of the Court of Chancery
+  and some people whisper that we intend to make use of that court to
+  recover our arrears.” VII Pennsylvania Archives (2d Series), 166.
+
+  [418] III Colonial Records, 670, January 23, 1735-6.
+
+  [419] III Votes of the Assembly, 253.
+
+  [420] III Votes of the Assembly, 258-261.
+
+  [421] IV Colonial Records, 27, February 16, 1735-6.
+
+  [422] IV Colonial Records, 41, February 21, 1735-6. The case cited
+  to support their view is _Stephney_ v. _Lloyd_, Croke’s Reports
+  (Elizabeth), 647 (1598).
+
+  [423] Appendix to Wharton’s Edition of 1 Dallas’s Reports, 514.
+
+  [424] Penn MSS. quoted in Shepherd’s Proprietary Government in
+  Pennsylvania, 395.
+
+  [425] Eulogy on Chief Justice Tilghman, 16 Sergeant & Rawle’s
+  Reports, 448.
+
+  [426] IV Colonial Records, 37, February 19, 1735-6.
+
+  [427] III Statutes at Large, 472; VIII Pennsylvania Archives (2d
+  Series), 69.
+
+  [428] Lamb’s History of New York, Vol. I, 536, Vol. II, 54.
+
+  [429] 1 Dallas’s Reports, 17 (1768).
+
+  [430] 1 Dallas’s Reports, 125 (1785).
+
+  [431] 1 Dallas’s Reports, 142 (1785).
+
+  [432] September 27, 1757, V Statutes at Large, 315.
+
+  [433] March 14, 1761, VI Statutes at Large, 100.
+
+  [434] March 21, 1772, VIII Statutes at Large, 245.
+
+  [435] March 21, 1772, VIII Statutes at Large, 254.
+
+  [436] May 20, 1767, VII Statutes at Large, 122. There is an
+  interesting act of September 29, 1781, X Statutes at Large, 366, by
+  which a title was confirmed to an equitable grantee who had failed
+  to get a legal title, owing to the error of a conveyancer, but the
+  commonwealth had a direct interest in the case because the legal
+  title had, by the error referred to, become vested in an attainted
+  traitor whose lands had been forfeited.
+
+  [437] VII Statutes at Large, 382. Supplied March 24, 1818. 7 Smith’s
+  Laws of Pennsylvania, 131.
+
+  [438] Chapter II, section 24 of the Constitution of 1776, Proceedings
+  of the Constitutional Conventions of 1776 and 1790, 61; Act of
+  January 28, 1777, § 4; 1 Smith’s Laws of Pennsylvania, 427.
+
+  [439] 2 Smith’s Laws of Pennsylvania, 375. This act was limited to
+  five years, but was revived and extended to the court of common pleas
+  in 1793 and made perpetual by the act of February 16, 1866, P. L. 50.
+
+  [440] 2 Smith’s Laws of Pennsylvania, 500.
+
+  [441] Proceedings of the Constitutional Conventions of 1776 and 1790,
+  159, 301, 350, 354, 362, 364.
+
+  [442] Troubat and Haly’s Practice, chapter II.
+
+  [443] American Constitutions, 179.
+
+  [444] In _Taylor_ v. _Jolly_, Supreme Court of Pennsylvania,
+  September Term, 1773, Docket 6, 365, there is a rule to take the
+  depositions of a witness in New Jersey “before any magistrate there,”
+  on three weeks’ notice.
+
+  [445] This practice as well as the whole subject of lunatics and
+  habitual drunkards was soon afterwards regulated by the act of June
+  13, 1836, P. L. 592, and its supplements.
+
+  [446] Rawle’s Equity in Pennsylvania, 61.
+
+  [447] Laussat’s Equity in Pennsylvania (1826). This essay was
+  prepared as a student’s dissertation for the Law Academy.
+
+  [448] Report of the Commissioners to Revise the Civil Code on the
+  Administration of Justice, January 9, 1835.
+
+  [449] § 13, P. L. 784. Article V, § 3 of the Constitution of 1874
+  deprived the Supreme Court of original jurisdiction in Equity, except
+  in cases of injunction where a corporation was a party defendant. The
+  district court was abolished.
+
+  [450] Act of February 14, 1857, P. L. 89.
+
+  [451] Acts of June 13, 1840, § 39, P. L. 671, April 16, 1845, § 3, P.
+  L. 542.
+
+  [452] Act of April 10, 1845, § 4, P. L. 449.
+
+  [453] Act of March 17, 1845, § 3, P. L. 158, made general by the Act
+  of July 7, 1885, § 1, P. L. 257.
+
+  [454] _Ashurst_ v. _Iron Company_, 35 Pennsylvania Reports, 30
+  (1860). Act of April 11, 1862, P. L. 477; Act of May 5, 1876, P. L.
+  123.
+
+  [455] Act of April 26, 1855, P. L. 331.
+
+  [456] _Chester Traction Co._ v. _Philadelphia W. & B. R. Co._, 180
+  Pennsylvania Reports, 432 (1897).
+
+  [457] June 7, 1907, P. L. 440; _Naomi Coal Co._ v. _Moore_, 18
+  Pennsylvania District Reports, 616 (1908); _Harton_ v. _Hildebrand_,
+  57 Pittsburg Legal Journal, 129 (1909); _Kingston Coal Co._ v. _Coal
+  Company_, 14 Luzerne Legal Register, 267 (1909).
+
+  [458] Troubat and Haly’s Practice (edition of 1837), 55.
+
+  [459] 1 Yeates’s Reports, 2 (1791).
+
+  [460] _Read_ v. _Brookman_, 3 Term Reports (1789), where it was held
+  by a majority of the court that a deed might be pleaded as lost
+  without a _profert_.
+
+  [461] _Pidcock_ v. _Bye_, 3 Rawle’s Reports, 183 (1831) at page 195.
+
+  [462] See the cases collected in Pepper and Lewis’s Digest of
+  Decisions, Vol. II, col. 1632.
+
+  [463] _Haldane_ v. _Fisher_, 1 Yeates’s Reports, 121 (1792).
+
+  [464] 17 Sergeant & Rawle’s Reports, 298 (1828).
+
+  [465] _Jordan_ v. _Cooper_, 3 Sergeant & Rawle’s Reports, 564 (1818).
+  For an action of debt see _Huber_ v. _Burke_, 11 Sergeant & Rawle’s
+  Reports, 238 (1824).
+
+  [466] _Weaver_ v. _Lawrence_, 1 Dallas’s Reports, 156 (1785).
+
+  [467] 2 Sergeant & Rawle’s Reports, 461 (1816).
+
+  [468] 16 Sergeant & Rawle’s Reports, 269 (1827).
+
+  [469] Laussat’s Equity in Pennsylvania, Troubat and Haly’s Practice,
+  chapter on Ejectment.
+
+  [470] _Mitchell_ v. _De Roche_, 1 Yeates’s Reports, 12 (1791).
+
+  [471] _Hawn_ v. _Norris_, 4 Binney’s Reports, 77 (1811).
+
+  [472] The Pennsylvania Statute of Frauds, Act of March 21, 1772, 1
+  Smith’s Laws of Pennsylvania, 389, omitted the fourth section of the
+  Act of 29, Charles II, chapter 3, making it possible to bring an
+  action for damages for breach of parol contracts relating to land.
+  _Wilson_ v. _Clarke_, 1 Watts & Sergeant’s Reports, 554 (1841).
+  Lewis’s Cases on Specific Performance, 128. Pepper and Lewis’s Digest
+  of Decisions, Vol. 20, col. 34592.
+
+  [473] _McCullum_ v. _Coxe_, 1 Dallas’s Reports, 150 (1785). _Wheeler_
+  v. _Hughes_, 1 Dallas’s Reports, 23 (1776).
+
+  [474] Rawle’s Equity in Pennsylvania, 63.
+
+  [475] Laussat’s Equity in Pennsylvania, 66. Of the second class of
+  cases, _Pollard_ v. _Shaffer_, 1 Dallas’s Reports, 210 (1787), is an
+  example.
+
+  [476] 1 Dallas’s Reports, 17 (1768).
+
+  [477] _Mackey_ v. _Brownfield_, 13 Sergeant & Rawle’s Reports, 240
+  (1825).
+
+  [478] Rule of Supreme Court of Pennsylvania, April 10, 1775, Docket
+  No. 7, page 291. Section 7 of the procedure act of May 25, 1887, P.
+  L. 271, provides: “The pleadings in all courts to be subject to the
+  rules of the respective courts as to notice of special matter.”
+
+  [479] _Lewis_ v. _Morgan_, 11 Sergeant & Rawle’s Reports, 234 (1823).
+  Compare _Hollingsworth_ v. _Ogle_, 1 Dallas’s Reports, 257 (1788).
+
+  [480] Pepper and Lewis’s Digest of Decisions, Vol. 16, col. 27376.
+
+  [481] _Dunlap_ v. _Miles_, 4 Yeates’s Reports, 366 (1807).
+
+  [482] _Bender_ v. _Fromberger_, 4 Dallas’s Reports, 436 (1806).
+
+  [483] Act of April 13, 1807, 4 Smith’s Laws of Pennsylvania, 476.
+
+  [484] _McCutchen_ v. _Nigh_, 10 Sergeant & Rawle’s Reports, 344
+  (1823).
+
+  [485] _Clyde_ v. _Clyde_, 1 Yeates’s Reports, 92 (1791); _Decamp_ v.
+  _Feay_, 5 Sergeant & Rawle’s Reports, 323; _Moyer_ v. _Germantown
+  Railroad Co._, 3 Watts & Sergeant’s Reports, 91 (1841).
+
+  [486] Eulogy on Chief Justice Tilghman, 16 Sergeant & Rawle’s
+  Reports, 448; _Gochenauer_ v. _Cooker_, 8 Sergeant & Rawle’s Reports,
+  187 (1822), Gibson, J., at page 192.
+
+  [487] Opinion of Chief Justice Black in _Finley_ v. _Aitken_, 1
+  Grant’s Reports (Pa.), 83 (1854), at page 95.
+
+  [488] _Livezey_ v. _Gorgas_, 2 Binney’s Reports, 192 (1809). The
+  record of the trial will be found in Brackenridge’s Law Miscellanies,
+  438. See also _Barnet_ v. _Ihrie_, 17 Sergeant & Rawle’s Reports, 174
+  (1828).
+
+  [489] Laussat’s Equity in Pennsylvania, 136.
+
+
+
+
+  CHAPTER V.
+
+
+  In the preceding pages brief references were made to the register’s
+  court and orphans’ court. The rise of the latter tribunal from a
+  humble beginning to its present important position is sufficiently
+  interesting to warrant a more detailed account of its functions
+  and growth. However unobtrusively the work of its judges may be
+  performed, it should not be permitted to escape attention, for, as
+  Judge Duncan grimly puts it, “as sure as we descend into our graves,
+  so sure into this court we must come.”[490]
+
+  During the American colonial period the settlement of the estates of
+  decedents belonged, in England, principally to the ecclesiastical
+  courts. Briefly, the territory of England was divided into two
+  provinces, Canterbury and York, each presided over by an archbishop
+  or metropolitan. Each of the provinces was divided into dioceses.
+  With exceptions, which it is unnecessary to particularize here,[491]
+  the bishop of the diocese where the decedent had his last domicile
+  had the power to appoint the administrator and settle his accounts,
+  and where there was a will, it was proved before him and letters
+  testamentary issued thereon. When so acting, he was called the
+  “ordinary” and held what was called the “consistory court,” either
+  in person or by a deputy styled his commissary. From this court an
+  appeal would lie to that of the archbishop and thence to the king
+  in chancery, that is, to the “court of delegates,” appointed by the
+  king’s commission under the great seal.
+
+  Here and there were districts called “peculiars,” exempt from the
+  jurisdiction of the ordinary and subject to the metropolitan only.
+  The court of appeal of the Archbishop of Canterbury was called the
+  Court of the Arches, because formerly held in the church of Saint
+  Mary le bow (_Sancta Maria de arcubus_), and was presided over by
+  the “dean of the arches.” If the decedent left _bona notabilia_ or
+  chattels to the value of one hundred shillings in two different
+  dioceses or jurisdictions, then probate or administration belonged
+  to the archbishop, by way of special prerogative, and the matter was
+  cognizable in the “prerogative court” before a judge appointed by the
+  archbishop.[492]
+
+  Such a system was wholly impractical in America, where the principle
+  of an established church, even in the most loyal colonies, never
+  gained more than a precarious foothold. It would have met with the
+  opposition not only of the many sects into which the emigrants were
+  divided, but also with that, probably, of the common lawyers, whose
+  jealousy of the canonists and civilians was then at its height.
+  But the feeling that probate and administration were something
+  separate and apart from the common law was sufficiently strong in
+  most of the colonies to lead to the creation of separate tribunals
+  for the exercise of jurisdiction over decedents’ estates, and to
+  the retention of, at least, a supervision over such matters by the
+  governor and council.[493] By a law of the colony at Plymouth of 1633
+  wills were to be probated before the governor and council,[494] while
+  in Maryland in the records of the court held at St. Mary’s by the
+  proprietor and his council, beginning 1637, are many instances of
+  the grant of probate or administration as well as of the settlement
+  of executors’ accounts.[495] In the Massachusetts Colony probate of
+  wills was to be made at the county court, but by an act of 1652 two
+  magistrates with the recorder or clerk of the county court meeting
+  together were authorized to allow wills and grant administration,
+  reporting to the county court.[496] The charter of 1692 made the
+  governor and council a court of probate, although these officials
+  seem to have exercised their jurisdiction through the county judges,
+  with an appeal reserved to the governor and council as a supreme
+  court of probate.
+
+  As we have previously seen, the Duke of York’s laws for the
+  government of New York were in 1676 put in force in the settlements
+  on the Delaware by Governor Andros. These laws contained minute
+  provisions for the care of the property of decedents. Upon the
+  death of any person it was made the duty of the constable with two
+  overseers of the parish to “repair to the house of the deceased
+  party to enquire after the manner of his death and of his will and
+  testament and in case none doth appear or shall be produced, it may
+  be taken for granted that the person died intestate,” whereupon
+  security was to be taken for the care of the estate until the next
+  court of sessions, where all cases of probate and administration were
+  to be adjudged. Administration was to be granted to the widow or
+  children upon the entry of security and an inventory filed.
+
+    “But in case the deceased Dye without widow or Child, then the
+    estate, for the better improvement thereof shall be sould by order
+    of the Court at an Outcry, and the purchasers all puting Security,
+    and Acknowledging Judgment for their debt which by the Court shall
+    be Assigned to the several Creditors of the decendant, and paid
+    according to the priority of Law and the Surplusage remaining, if
+    any, to be delivered to the next kinsman of the descendant, if he
+    appears or if none prove himself such within one year and six week,
+    Then the Court to give an accompt of the said Surplusage to the
+    Governour. And when the widow or Child Administers the surplusage
+    after debts paid and the funerall Charges according to the quality
+    of the person allowed for, shall be equally divided between the
+    Widow and Children, viz. one third of the personall Estate to the
+    widow and the other two thirds amongst the Children, provided the
+    Eldest Sonne shall have a double portion, and where there are no
+    Sonnes the daughters shall Inherit as Copartners, and if any of
+    the Children shall happen to dye before it come to age his portion
+    shall be divided amongst the surviving Children.
+
+    “If any person shall renounce his Executorship or that none of the
+    friends or kindred of the deceased party that shall die intestate
+    shall seeke for Administration of such persons Estate, then the
+    Constable of the Town where any such person shall die, shall give
+    notice thereof to the next Court of Sessions; that so the Court
+    may take order therein, as they shall think meet, who shall also
+    allow such Constable due recompence for his pains. But if the
+    Constable shall fail therein, he shall forfeit forty Shillings to
+    the publigue Treasury.
+
+    “That the Clarke of the sessions when he carries the Probates or
+    Commissions of Administration to be signed do then also Certify
+    unto the recorders Office at New York, the name of the testator
+    or the party deceased the Executors or Administrators and their
+    Security, the County and Parrish where they dwelt And the Court
+    wherein the Administration is granted to the end that strangers and
+    other Creditors invested in the Estate may be the better Enabled to
+    find out the Records in which the accompts of the estate is entered
+    and be informed how they may come to their just dues.”[497]
+
+  Executors failing to probate wills and persons intermeddling with the
+  goods of a decedent were made liable for the debts of the decedent
+  whether the estate was sufficient for that purpose or not.
+
+  The conferring of probate jurisdiction upon the courts of sessions
+  is an indication of New England influence in the framing of the
+  laws. About 1686 instructions from the home government reserved
+  to the governor the probate of wills, after which the governor or
+  the secretary of the province exercised this jurisdiction, and a
+  department grew up in the secretary’s office known as the prerogative
+  court, whose jurisdiction was exercised in minor matters by local
+  delegates. The prerogative court was not succeeded by a court of
+  probate until 1778.
+
+  In the territories on the Delaware the ordinance of 1676, putting
+  in force the Duke of York’s laws, did not expressly concede to the
+  local courts the right to grant administration or probate wills,
+  and such matters were in the hands of the authorities at the seat
+  of government. A case in New Castle against a deceased person was
+  on April 4, 1677, continued until the “letter of administration bee
+  come from New York.”[498] Prior to this, the justices of the court at
+  New Castle, in a letter to Governor Andros, dated February 8, 1677,
+  giving an account of local affairs, made the following request:--
+
+    “That yo^r Honor will bee pleased soe far to Impower the Commander
+    Capt^n John Colier or the Court that wills may bee proved before
+    them and Letters of Administracon granted accordingly w^{th} ye
+    fees for the estates of the most part of the People in these parts
+    are so Inconciderable that otherwyse the Charges & Expenses of
+    going to yo^r honor Att New Yorke for to obtaine the same may Prove
+    mutch to the hinderance of such Estates.”[499]
+
+  To which the governor replied in a letter dated April 6, 1677, and
+  read at the court held June 8, 1677:--
+
+    “The severall Co^{rts} May att a session take proofes and security
+    and grant administracon of wills but if above twenty pounds to
+    remit the same here to the secretary’s office to bee recorded.”[500]
+
+  The court availed itself of this permission at once and several wills
+  were proved at this term of court. The procedure in one case will
+  serve as an illustration. Rebecca Eghberts, widow of Barent Eghberts,
+  deceased, produced the will of her husband dated October 20, 1674.
+  The two witnesses swore that they were present and saw the testator
+  sign the will. The court then granted “administration” according to
+  the will and directed that it be recorded. In other estates, where
+  the decedents died intestate, administration in the proper sense was
+  granted.
+
+  Under the power conferred upon William Penn in the charter of
+  Pennsylvania, to appoint judges, magistrates and other officers, it
+  was provided in the laws agreed upon in England that there should
+  be a register for births, marriages, burials, wills and letters of
+  administration distinct from the office for enrolling deeds.[501]
+  This provision was incorporated in the “Great Law” or body of laws
+  passed at Upland, December 7, 1682,[502] and Christopher Taylor was
+  appointed Register General for the province and territories. The
+  register general kept his office at Philadelphia and commissioned
+  deputies to act in the respective counties. Taylor, according to
+  Proud,[503] was a well educated Yorkshireman, an eminent Quaker
+  preacher and the author of several tracts in defense of their
+  principles. He was also a member of the first provincial council, but
+  did not live long to enjoy his honors, dying in the early part of
+  1686. His own will is No. 26 on the register.
+
+  The first will on record is that of Thomas Fream, proved, apparently,
+  October 10, 1682. Wills and administrations were kept in separate
+  volumes, as is still the practice. The first entries are brief
+  and informal and it probably took some time to settle the forms
+  and practice of the office. The following entry will serve as an
+  example:--
+
+    “Philadelphia in the Province of Pennsylvania 2 mo/6 1683.
+
+    “Wheras Mary Mason Relict of the deceased, John Mason did the day
+    of the date thereof appear before me, Christopher Taylor, Register
+    Gen^{ll} of the said Province, &c. desiring to take out Letters
+    of Administration upon the estate of the said John Mason and
+    having given in and attested an Inventory of the said estate with
+    sufficient security to pay his debts and dispose of the remainder
+    according to law I do by virtue of my Commission from William Penn,
+    Proprietary and Govern^r of the said Province and Territories grant
+    Letters of Administration to the said Mary Mason for the ends and
+    purposes aforesaid. Under my hand and the seal of my office.
+
+                                    “Christopher Taylor,
+                                              “Regist. Gen^{ll} (SEAL)”
+
+  William Clark, the deputy register for Kent and Sussex counties, had
+  served as a justice in the court at the Whorekills under the previous
+  government and became chief justice of the provincial court in 1703.
+  One of his entries is as follows:--
+
+    “Whereas William Darnall of the County of Kent, Marchant, did the
+    day of the date hereof appeare before me, William Clark, deputy
+    Register of the Countys of Sussex and Kent in the territories of
+    the Provience of Pensilvania; and desireth as princable Creditor
+    to take out Letters of Administracon upon the estate of Andrew
+    Stocker, deceased, And haveing Given me Good and sufficient
+    securiety to bring in unto me a true inventory of the estate that
+    the said Andrew Stocker dyd possessed of within one moneth after
+    the date hereof soe fer as the same shall com to his knowlidge And
+    also to pay his debts soe fer as the Estate will extend and dispose
+    of the Remayner According to Law, I doe therefor by the authority
+    of William Penn, Proprietary and Govern^r of the Provience of
+    Pensilvania and the Territories thereunto belonging & by commicon
+    from Christopher Taylor, Register General of the provience of
+    Pensilvania and the Counties of Sussex and Kent Grant Letters of
+    Administracon to the said William Darnall for the ends and purposes
+    A for said. Given under my hand and seale of my office the 18th day
+    of mo/7 In the year of our Lord according to the English account
+    1683.
+
+                                         “William Clark.”[504]
+
+  In the same volume are recorded inventories of estates as well as
+  records of births, deaths and marriages. The following is curious:--
+
+    “These are to give notice unto all persons whatsoever that there
+    is a Marriage shortly intended to be solmonized Betwene Abraham
+    Westron, widdower, and Mary Smith, widdow, if any person have
+    anything justly to object wherefor the said parties should not be
+    Joyned together in marriage Let them Give in there Exceptions unto
+    me to the end that the same may be prevented or elce forever after
+    to be silant in that case, dated at Lewis the 5 day of the mo/8
+    1683.
+
+                                         William Clark.”
+
+  During its existence the office of register general was held by men
+  of importance, including Governors Blackwell, Markham, Evans and
+  Gookin, who probably kept it themselves on account of the fees, while
+  among the deputy registers were Patrick Robinson and David Lloyd
+  whose activities in political and legal affairs have been referred to
+  before.
+
+  The duties of the register general and his deputies were not
+  defined by legislation until the passage of the Act of January 12,
+  1705,[505] an elaborate measure relating to the probate of written
+  and nuncupative wills. This act in its last section provided for the
+  appointment of the register general by the governor and required
+  him to keep an office at Philadelphia and appoint deputies for the
+  other counties, as had been the practice. All of these officers were
+  required to give bonds for the faithful performance of their duties,
+  which were to be recorded in the orphans’ court and to be for the use
+  of parties aggrieved.
+
+  Failure to keep these positions filled seems to have caused
+  dissatisfaction, for an act was passed June 7, 1712,[506] which,
+  after reciting that “no register has been commissioned and deputies
+  constituted in each county as the act (of 1705) directs,” goes on
+  to enact that in case of the removal of the register general by
+  death, or otherwise, another fit person should be commissioned within
+  three weeks; that if the governor failed to act, the agents of the
+  proprietor should appoint, and if they too failed, the judges of the
+  common pleas of Philadelphia should make the appointment. Governor
+  Gookin thought that two months’ time was little enough to appoint the
+  officer, and that the office should be kept at Philadelphia for the
+  whole province, for the greater security of the public. The distance,
+  he said, was no objection, for it was well known that people in
+  England traveled much farther on such occasions.[507] Nevertheless he
+  finally agreed to the bill which became a law and was approved by the
+  queen in council February 20, 1713-4.[508]
+
+  In this statute it was also enacted--
+
+    “That where objections are made or caveats entered against the
+    proving of any will or granting letters of administration, and
+    where there is or shall be occasion to take the final accounts of
+    executors or administrators, or make distribution of decedents’
+    estates, the register-general and his deputies, respectively,
+    shall, in every such case, call to their assistance two or more of
+    the justices of the said court of common pleas for the county where
+    they are concerned, who are hereby empowered and required to give
+    their assistance accordingly to decide the said caveats and matters
+    in controversy, settle the said accounts, make distributions, and
+    do all such other judicial acts as do or shall belong or ought of
+    right to be done by any person or persons having power by law to
+    take probate of wills and grant administration.”[509]
+
+  This is the origin of the register’s court, as to which more will be
+  said hereafter. It will be noticed that the act seems to contemplate
+  the taking of accounts of executors and administrators before this
+  court, but this jurisdiction, if ever exercised, must have been very
+  limited, for the orphans’ court already had jurisdiction of such
+  accounts in cases of intestacy[510] and where the interests of minors
+  were involved, a jurisdiction defined and amplified by an act passed
+  in the following year.[511] When, more than one hundred years later,
+  the act of 1712 was invoked as authority for an attachment issued
+  by the register’s court to compel an administrator to account, the
+  supreme court in discharging the prisoner on a writ of habeas corpus
+  said, per Tilghman, C. J.:--
+
+    “This law has never been expressly repealed, and so far as concerns
+    caveats, it has been always in force. But the final settlement
+    of the accounts of executors and administrators, and making
+    distribution of the estates of intestates, having been expressly
+    given to the Orphans’ Court by the Act of 27 March, 1713, the
+    jurisdiction of the Register’s Court, on these subjects, has been
+    supposed to be taken away by implication, and for a long course
+    of time the practice has been to settle final accounts in the
+    Orphans’ Court and not in the Register’s Court. * * * We are of
+    opinion, that at the time of the adoption of this constitution, the
+    Act of 1712, so far as concerned the final settlement of accounts
+    of executors and administrators, was not in force, being either
+    repealed by implication or obsolete.”[512]
+
+  As a matter of fact the Orphans’ Court Act of 1713 was introduced
+  in the assembly on February 10, 1712, and passed on the sixteenth
+  of the same month, before the register’s act, but was held over
+  by the governor, as too important to be hurried, and submitted to
+  Judge Mompesson for his opinion. The judge returned the bill to the
+  governor March 25, 1713, with several proposed amendments. To these
+  the assembly refused to accede and the governor, considering the
+  amendments not essential, agreed to the passage of the bill, which
+  became a law on March 27, 1713.[513]
+
+  During the administration of Governor Fletcher the council heard an
+  informal appeal from the probate of a will by Markham, as appears in
+  the minutes of the council for June 5, 1694.
+
+    “His Excellie BENJAMIN FLETCHER.
+
+    “Wm. Markham, Esq^r., Leiv^t Governo^r.
+
+      And^r Robeson, }
+      pat. Robinson, } Esq^{rs}.    Wm. Clarke,  } Esq^{rs}.
+      Wm. Salway,    }              Geo. forman, }
+
+    “His Excellie Having ordered the Hearing of what might be offered
+    ag^t the will of peter de buc, deceased, and severall things being
+    offered by sundrie persons, wherein they seem to insinuate there
+    was fraud and Collusion in the making thereof, His Excellie did,
+    upon hearing therof, dismiss the people, and desired the Councill
+    to give their opinions upon the whole matter, Whether or not the
+    will, which was proved befor the Leiv^t Governo^r, Can be allowed
+    or not; Which being putt to the vote amongst the members of
+    Councill, was caried in the affirmative, & his Excellie did allow
+    yrof.”[514]
+
+  The care of the persons and property of orphans was a subject that
+  seems to have particularly appealed to the philanthropic founder of
+  the commonwealth. In England, the lord chancellor was the supreme
+  guardian of all infants and the conduct of both guardian and ward
+  was within the controlling jurisdiction of chancery.[515] As we have
+  already seen, that court was not in favor with Penn or his fellow
+  colonists, and, in respect to this branch of its jurisdiction, they
+  were lucky enough to establish a substitute founded on precedent and
+  successful in operation, the orphans’ court.
+
+  The name as well as the early jurisdiction of this court was borrowed
+  from the Court of Orphans of the city of London.[516]
+
+  “It has been resolved,” says Bohun,--
+
+    “That there hath been a Court of Orphans time out of mind in
+    London; and that there hath been a Custom, if any Freeman or
+    Freewoman die, leaving Orphans within age unmarried, that the said
+    Court have had the custody of their Body and Goods: And that the
+    Executors and Administrators have used, and ought to exhibit true
+    Inventories before them; and if any Debt appear due, to become
+    bound to the Chamberlain to the use of the Orphans in a reasonable
+    Sum to make a true Account upon Oath of them, after they have been
+    received and if they refuse, to commit them till they will become
+    bound; and this was adjudged to be a reasonable Custom.”[517]
+
+  The court, it is further said, was held before the lord mayor and
+  aldermen of the city of London. The common sergeant of the city took
+  the inventories and accounts, while all securities for the orphans’
+  portions were taken in the name of the city chamberlain. The court
+  could commit the custody of an orphan to such person as they thought
+  fit, even when the father had devised the custody, and if any person
+  married an orphan without the consent of the court, such person might
+  be “fined by them according to the Quality and Portion of the Orphan;
+  and unless such Person do pay the Fine, or give Security to pay it,
+  the Court may commit him to Newgate, to remain there till he submit
+  to their Orders.”
+
+  Upon the death of a freeman the widow or executor was summoned to
+  bring in an inventory and appraisement, and when the inventory was
+  so exhibited, the executor was bound either to pay the money due the
+  orphans into the chamber of London, where interest was allowed, or to
+  find security by bond or recognizance to pay the amount due. When the
+  orphans came of age or married, with the consent of the court, they
+  were brought into court with a person to prove their age and there
+  acknowledged satisfaction for their respective portions.
+
+  Although somewhat paternal, according to our view, the system was an
+  undoubted privilege when compared with the burdensome incidents of
+  feudal wardship, and, even in 1682, when wardship had been abolished
+  over twenty years,[518] the citizen preferred his own court, to
+  chancery, with its aggravating delays and extortionate fees. Once
+  indeed, the city fathers betrayed their trust. King Charles II
+  succeeded in obtaining from the city a loan of the orphans’ moneys,
+  paying interest thereon until 1671, when he closed the Exchequer
+  “and thereby became not only Bankrupt himself, but occasioned the
+  Chamber of the said City to be so also: whereby many Thousand of
+  City Orphans (_heu Pietas Regum!_) were reduced to misery and
+  want,”[519]--a wrong that remained unredressed until the reign of
+  William and Mary.[520]
+
+  At the second session of the legislature under the proprietorship of
+  Penn, March 10, 1683, it was enacted--
+
+    “That the Justices of each respective County Court, shall sitt
+    twice every year, to inspect and take Care of the Estates, usage,
+    and Employment of Orphans, which shall be called The Orphans’
+    Court, and sitt the first third day of ye week, in the first and
+    eighth month yearly; That Care may be taken for those, that are not
+    able to take care for themselves.”[521]
+
+  The same assembly also provided that executors and guardians should
+  give bonds and--
+
+    “If any man shall refuse this honest Care and Charge in the
+    government, Unless hee hath five children to take care of, or is
+    already executor to one Will or hath persons nearer related to
+    him, who in all likelihood will impose that Charge upon him; hee
+    shall be fined at the Discretion of the Governor and Provincial
+    Council.”[522]
+
+  Whether this court was suggested by Penn himself or by one of his
+  followers the minutes of the council do not show. But, at any rate,
+  the idea commended itself to the proprietor, for he mentions it in a
+  letter to the Free Society of Traders dated August 16, 1683. “Spring
+  and fall,” he writes, “there is an orphans’ court in each county to
+  inspect and regulate the affairs of orphans and widows.” In fact the
+  minutes of the Bucks County court show Penn presiding in an orphans’
+  court contemporaneous with if not prior to the passage of the act.
+
+    “Pennsilvania Bucks SS. At an orphans’ court held by the King’s
+    authority in the name of William Penn, Proprietary and Governor
+    of the said Province and territory thereto belonging at Gilbert
+    Wheelers’ for the aforesaid County, the 4th day of the first month
+    1683, to take account of improvements and usage of estates of
+    Orphans.
+
+    “Present, the Governor, William Penn, Justices--James Harrison,
+    Jona Otter, Wm. Yardley, Wm. Berks, Thomas Fitzwater and Phineas
+    Pemberton Clark.
+
+    “The next meeting held by adjournment 11, 1 mo. 1683, Present--Wm.
+    Penn, Governor, James Harrison and Wm. Berks, Justices.”[523]
+
+  At this time some of the business that belonged to the register
+  general and much that afterwards fell to the orphans’ court
+  was transacted in the provincial council. In several instances
+  administrators were appointed.[524] One estate that seems to have
+  given some trouble was that of Christopher Taylor, the former
+  register. It appeared that he had named the proprietor and another
+  as his executors, both of whom were absent at the time of his death.
+  Administration was refused to the son as contrary to the intention
+  of the will and a temporary administrator was appointed, who was to
+  account to the executors or the council.[525]
+
+  The most frequent applications to the council were those for the
+  sale of land for the payment of decedents’ debts. Penn in the laws
+  agreed upon in England had incorporated a provision that lands and
+  goods should be liable for debts except where there was legal issue
+  and then all the goods and one third of the land only,[526] which
+  provision was incorporated in the Act of December 10, 1682.[527] The
+  orphans’ court was by the Act of 10, 3 mo., 1688, empowered, with
+  the approval of the governor and council, to permit the widow or
+  administrator to sell lands to defray debts, educate the children,
+  support the widow and improve the remainder of the estate.[528] After
+  passing through minor changes of form this act was supplied by the
+  Act of November 27, 1700,[529] which gave the jurisdiction to the
+  orphans’ court without the intervention of the council. This act was
+  disapproved by the queen, on the advice of the attorney general, as
+  not sufficiently protecting marriage settlements and the interests
+  of the children,[530] but the same provisions were incorporated in
+  the intestate Act of January 12, 1705,[531] in terms carefully framed
+  to meet these objections and the act became a law. It is interesting
+  to note that what was perhaps the first order of sale for debts was
+  verbal, as would appear from the following extract from the minutes
+  of the council:--
+
+    “The Petition of Mary Mason, Widdow, was Read; Requesting y^e
+    Councill to Confirme y^e Sale of Lotts and Lands sold by y^e
+    said Widdow, by y^e Gov^{rs} Verball order, to pay her Deceased
+    husband’s Debts, and for subsistence of herselfe and Children.
+
+    “James Harrison being prosent & attesting y^e truth of y^e Order,
+    and she declaring y^t y^e Land sould was y^e Citty Lotts, and
+    y^e Liberty Land, and but two hundred Acres out of one thousand,
+    and not y^e Land y^t was Improved; y^e Councill ordered a
+    Confirmation.”[532]
+
+  It will be noticed that the widow took the precaution to have the
+  verbal order confirmed. Another illustration may be given which
+  leaves the reader in some doubt as to the miracle proposed to be
+  accomplished with the fund:--
+
+    “Att a Council Held att Philad. die Lunæ, 1st July, 1700.
+
+                              Present:
+
+    “WM. PENN, pro^r and Governo^r
+
+      Edw^d Shippin,   Wm. Clark,    Thomas Storie.
+      Rt. Turner,      John Moll,
+
+    “Upon reading the petion of Sarah Gibbs, widdow, setting forth y^t
+    Her Husband Latelie dyed, Leaving her much in debt, & the charge
+    of a sucking child, & having nothing wherwt to pay y^e sd debts
+    but y^e shell of a smal house, unfinisht, & a Lott valued att 50£,
+    yrfor, requesting y^e Go^r & Council to allow, permitt, & authorize
+    her to make sale yrof, towards y^e defraying of sd debts, educaon
+    of sd infant & her support, according to the Laws and Customs of
+    sd province. Wheron Rt. turner signified y^t y^e sd allegaons wer
+    true, y^e circumstances qrof being to him well known.
+
+    “Itt was yrfor Ordered y^t sd Sarah Gibbs be pmitted, allowed &
+    authorized, & is hereby by y^e Go^r & Council pmitted, allowed &
+    authorized, to make sale & conveyance to anie pson qtsoever, of y^e
+    sd house & Lott, wt its improvments and apptenances, & to ym & y^r
+    Heirs & assigns for ever, towards y^e defraying her just debts, y^e
+    educaon & maintainance of sd infant & her owne support, according
+    to y^e Laws & Customs of sd province, to Hold to y^e sd pchasers
+    yrof & y^r heirs & assigns, & to y^r use & behoofe, in fee simple &
+    estate of inheritance forever.”[533]
+
+  There does not appear to have been any express statutory directions
+  as to the distribution of decedents’ estates in general until
+  June 4, 1693, when at the stormy session of that year a bill was
+  passed relating to the distribution of decedents’ estates, the
+  order of payment of debts and the disposition of the residue of
+  real and personal estate, all of which distributions “as well of
+  the Testate’s as intestate’s estate are to be made by the Register
+  General for the time being, within twelve months after the Decedent’s
+  Death.”[534] The distributees were required to give refunding bonds
+  to the register general. It was further provided that all executors
+  and guardians of persons under age should give bond to the orphans’
+  court. All of these provisions were substantially re-enacted in the
+  Acts of May 24, 1697,[535] and of November 27, 1700,[536] except that
+  in the latter act the distribution was to be made by the “registers
+  of the counties.” The last act was disapproved by the queen.
+
+  The jurisdiction of the orphans’ court, in matters of accounts, was
+  in some degree widened by the judiciary Act of October 28, 1701,[537]
+  an act which we have already seen failed to meet the approval of
+  the privy council. By this act the orphans’ court was not only
+  given jurisdiction over all executors, administrators and trustees
+  accountable for lands or chattels belonging to orphans or minors,
+  but it was further provided that those who filed inventories, gave
+  bond or made accounts in the orphans’ court should not be obliged to
+  account to the register general’s office. By the Act of January 12,
+  1705-6,[538] relating to intestate estates, complete jurisdiction
+  over the settlement of administrators’ accounts and the distribution
+  of the surplus after payment of debts was conferred upon the orphans’
+  court. By this statute, which was allowed to become a law, the
+  orphans’ court may be said to have finally departed from the limited
+  scope of its London prototype to enter upon a constantly widening
+  field of activities.
+
+  The act, however, which is the principal source of orphans’ court
+  jurisdiction is that of March 27, 1712-3,[539] passed, as stated
+  in the preamble, to take the place of the prior acts repealed by
+  the queen. It is too long to give in full, but, briefly stated, the
+  justices of the court of quarter sessions were empowered to hold a
+  court of record called the orphans’ court, with jurisdiction over
+  the accounts of such persons who as guardians, trustees, tutors,
+  executors or administrators were entrusted with the property, real or
+  personal, of orphans or persons under age, to see that the surety for
+  such persons was sufficient, to revoke their letters, if necessary,
+  to see that funds were invested, appoint guardians or bind the minors
+  out as apprentices, and upon a settlement of an account to require a
+  proper discharge for the accountant, “and if any person or persons,
+  being duly summoned to appear in any of the said orphans’ courts,
+  ten days before the time appointed for their appearance, shall make
+  default, the justices may send their attachments for contempts,
+  and may force obedience to their warrants, sentences and orders
+  concerning any matter or thing cognizable in the same courts, by
+  imprisonment of body, or sequestration of lands or goods, as fully
+  as any court of equity may or can do. Provided always, That if any
+  person or persons shall be aggrieved with any definitive sentence
+  or judgment of the said orphans’ court, it shall be lawful for
+  them to appeal from the same to the supreme court; which appeal,
+  upon security given, as is usual in such cases, shall be granted
+  accordingly.”
+
+  This act, with some amendments, remained in force until supplied in
+  1832 by the act drafted by commissioners to revise the civil code.
+  We have already seen that an act of September 29, 1759,[540] which
+  failed of approval by the Crown, appointed the judges of the common
+  pleas to hold the orphans’ court. This, however, was a matter of
+  form rather than substance, for the judges of the common pleas were
+  selected from the general commission of the peace and none, at this
+  period, was learned in the law. The dockets of the orphans’ court of
+  Philadelphia County, which are complete from 1719, show a long list
+  of worthy citizens presiding in this tribunal. The court did not
+  have any special president but certain justices of the peace to whom
+  the service was congenial usually attended its sessions. John Hill
+  Martin notes[541] that whenever the mayor of the city was present he
+  always presided, and on all other occasions the order of seniority of
+  justices was rigidly observed, erasures being made in the minutes to
+  correct errors in this respect.
+
+  The oldest docket in the Philadelphia office opens the ninth of
+  April, 1719, with the following justices present: Jonathan Dickinson,
+  Robert Assheton and Clement Plumstead. The first case is a petition
+  for the appointment of a guardian and these cases are the most
+  numerous in the early records.
+
+  There are also many petitions for the sale of land for the payment
+  of debts or to support minors, to partition real estate, to compel
+  the filing of accounts and for the appointment of auditors. At the
+  court held February 12, 1738, there is a petition by the widow and
+  executrix of Abel Cain for leave to sell “a negro woman Mumbo and
+  her increase” for the support of the testator’s children. The return
+  shows that forty pounds was realized at the sale, of which, fifteen
+  pounds was directed to be paid to the widow, to reimburse her for
+  expenditures made, fifteen pounds to be expended in purchasing
+  clothing for the son and putting him out as an apprentice, and the
+  balance was directed to remain in court until further order.[542]
+
+  The proceedings are usually by petition and answer and the judgment
+  of the court is entered in the form of an order. In 1738 a subpœna
+  was issued to an executor to appear and exhibit his account, and on
+  his failure to do so an attachment was awarded.[543] But ten years
+  later the citation is in use. Thus, on June 20, 1748, on petition
+  by the guardian of a minor and heir at law of a decedent averring
+  that the widow and administratrix had married again and was wasting
+  the estate, a citation was directed to the administratrix and her
+  husband, requiring them to appear and render an account, returnable
+  the tenth day of July next.[544]
+
+  The most important audit of these early days was that of the accounts
+  of the trustees for the sale of the lands of the Society of Free
+  Traders, which by an Act of Assembly of March 2, 1722-3,[545] was
+  referred to this court, which was also directed to hear and pass upon
+  all claims for a share in the funds. This society, an association
+  in the nature of a joint stock company, which had purchased twenty
+  thousand acres of land from Penn in 1681, had not proved a success,
+  its affairs had been neglected and at the instance of the certificate
+  holders and their heirs the act was passed under which its business
+  was wound up. The court first met for this audit on March 10, 1724,
+  and the meetings continued at intervals for a number of years.
+
+  It is now, of course, well settled that the orphans’ court while a
+  court of equity with respect to subjects within its jurisdiction,
+  has no general chancery powers, but only such as are derived
+  from statute or are necessary to make its statutory powers
+  effective.[546] In 1745 there is recorded a curious effort to extend
+  its jurisdiction. William Good, by his guardian, Ralph Assheton,
+  filed a petition averring that petitioner was the owner of ten acres
+  of land in the township of Passyunk which had “by the extraordinary
+  rise of the price of lands thereabouts become of considerable value;”
+  that one Joseph Scull, brickmaker, taking advantage of the fact that
+  petitioner was a minor, had entered on said land, dug pits and was
+  about to set up a brick yard to the damage of petitioner, pretending
+  that he had a lease from petitioner’s father, although that lease had
+  expired and contained no clause permitting him to commit waste, and
+  praying that the said Scull might be cited to appear and answer the
+  complaint and, if the facts prove true, then that Scull be restrained
+  from committing waste or that petitioner have such other relief “as
+  is agreeable to equity and good conscience.” Whereupon it was ordered
+  that the said Joseph Scull be served with a copy of the petition and
+  cited to appear and answer the same.[547] The answer filed July 29,
+  1745, averred that any demand William Good might have had against
+  the respondent for waste, damages or otherwise was not cognizable
+  in this court, but in the courts of common law duly constituted and
+  settled in said province, and further that the tract referred to
+  did not belong to petitioner but to his mother, who had leased it
+  to respondent, and that the present right and title to the same was
+  not to be impeached, tried and determined in this court but in the
+  ordinary course of law. There is no entry of a decree, and perhaps
+  the answer was regarded by the parties as conclusive, inasmuch as a
+  question of title was raised. After the closing of the governor’s
+  court of chancery there was no court with jurisdiction to enjoin
+  the commission of waste, and the attempt to persuade the orphans to
+  exercise that power indicates the need of such a remedy, at least to
+  the mind of the guardian, who was himself a justice, and to that of
+  the presiding judge, William Allen, afterwards chief justice of the
+  province.[548]
+
+  The constitution of 1776 provided that the orphans’ court should be
+  held quarterly in each city and county, while the Act of January 28,
+  1777,[549] passed for the purpose of putting into effect so much of
+  the provincial law as was necessary in the commonwealth, conferred
+  upon these courts the powers and jurisdiction which they had
+  theretofore exercised. By the Act of March 14, 1777,[550] registers
+  of wills were directed to be appointed for each county by the
+  general assembly and the office of register general was abolished.
+  The constitution of 1790 vested the appointment of registers in
+  the governor, but the office was made elective by the amended
+  constitution of 1838.[551]
+
+  By the constitution of 1790[552] it was provided that the judges of
+  the court of common pleas of each county, any two of whom should be
+  a quorum, should compose the orphans’ court thereof, and the register
+  of wills together with the said judges or any two of them should
+  compose the register’s court. By the Act of April 13, 1791,[553] the
+  courts were established in conformity with the constitution.
+
+  The orphans’ court, although called a court of record in the Act of
+  1713, was not, at first, accorded that dignity. In 1786 it was held
+  that the settlement of an executor’s account was not conclusive[554]
+  and this decision was followed in 1818.[555] In other cases there
+  was shown a tendency to discredit proceedings before these tribunals
+  which, perhaps on this very account, had become loose and irregular.
+  Judge Duncan in _McPherson_ v. _Cunliff_[556] gives a melancholy
+  picture of the careless practice; the orders written on loose
+  scraps of paper and deposited in untitled pigeon holes, or packed
+  up as useless lumber in old trunks. Nevertheless, his opinion in
+  that case, vindicating the authority of decrees of orphans’ courts,
+  checked their decline, while his criticism, added to complaints
+  from the bench and bar, moved the legislature in the resolution for
+  the revision of the civil code passed March 23, 1830, to require
+  the commissioners “to revise the several statutes relative to the
+  settlement of accounts before registers and proceedings in the
+  orphans’ courts, as soon as conveniently may be, and report the
+  same for the determination of the general assembly at their next
+  session.” Accordingly the commissioners made their first report to
+  the legislature on January 31, 1831, and presented two bills, one
+  relating to registers and registers’ courts and the other relating to
+  orphans’ courts. Upon the latter bill the commissioners observed:--
+
+    “The bill relating to the Orphans’ Court has occupied a large
+    share of our time and reflections. The peculiar structure of that
+    court, its extensive but ill-defined sphere of jurisdiction, the
+    magnitude of the interest upon which it operates, the uncertainty
+    of the code of law by which it is regulated, and its equally
+    uncertain and insufficient practice and process, serve to surround
+    with difficulties every attempt to frame a regular system for
+    it. So convinced are we of the arduousness of the task of
+    compiling a complete system, which shall embrace the constitution,
+    jurisdiction, powers, and practice, of this court, that had it not
+    been for the express directions of the legislature to report upon
+    it at the present session, we should probably have reserved this
+    subject to the last, and given it the utmost deliberation that our
+    limits allowed. Of the necessity however of an early as well as
+    thorough examination and revision of the acts of assembly relating
+    to this tribunal, we are fully convinced.”[557]
+
+  The bills recommended by the commissioners were enacted into laws at
+  the session of 1832, that relating to registers and registers’ courts
+  being approved March 15, 1832,[558] and that relating to orphans’
+  courts on March 29, 1832.[559]
+
+  Under these acts the register was given jurisdiction within the
+  county for which he was appointed, “of the probate of wills and
+  testaments, of the granting of letters testamentary, and of
+  administration, of the passing and filing of the accounts of
+  executors; administrators and guardians, and of any other matter
+  whereof jurisdiction may be at any time expressly annexed to his
+  office.”
+
+  When a caveat was filed, objection made to the granting of letters of
+  administration, or when any disputable or difficult matter came into
+  controversy, the register, at the request of any person interested,
+  was required to call a register’s court for the decision thereof. So
+  also, an appeal might be taken to the register’s court from all the
+  judicial acts and decisions of the register. The register’s court
+  comprised the register of wills and the judges of the court of common
+  pleas of the county or any two of said judges.
+
+  After the register had allowed and filed any account in his office,
+  he was required to prepare and present a certified copy thereof to
+  the orphans’ court at its next stated meeting and give notice by
+  public advertisement that said accounts would be presented to the
+  orphans’ court for confirmation.
+
+  The judges of the court of common pleas of each county or any two
+  of them composed the orphans’ court, which was declared a court of
+  record, the decrees of which were not to be reversed or avoided
+  collaterally in any other court. The jurisdiction of the court was
+  summarized in the act as follows:--
+
+    “The jurisdiction of the several Orphans’ Courts of this
+    Commonwealth shall extend to and embrace the appointment, control,
+    removal and discharge of guardians, the settlement of their
+    accounts, the removal and discharge of executors and administrators
+    deriving their authority from the register of the respective
+    county, the settlement of the accounts of such executors and
+    administrators and the distribution of the assets or surplusage of
+    the estates of decedents, after such settlements among creditors
+    or others interested in the sale or partition of the real estate
+    of decedents among the heirs, and generally to all cases within
+    their respective counties, wherein executors, administrators,
+    guardians or trustees are or may be possessed of or undertake the
+    care and management of, or are in any way accountable for any real
+    or personal estate of a decedent, and such jurisdiction shall be
+    exercised in the manner hereinafter provided.”[560]
+
+  No account of an executor, administrator or guardian was to be
+  confirmed and allowed by the court unless advertised by the register
+  of wills as provided in the prior act and all accounts, except
+  partial accounts by guardians, were to be examined by the court or
+  referred to auditors, unless otherwise agreed by all parties in
+  interest. These provisions were adopted to compel a more thorough
+  audit of accounts. Under the prior practice the settlement of
+  accounts in the register’s office was generally a perfunctory matter
+  and no more than a mere vouching of the items of the account, while
+  the confirmation in the orphans’ court was largely a matter of form.
+  A reform in these matters was absolutely necessary if the decrees of
+  the orphans’ court were to be made conclusive. Finally the practice
+  and process of the orphans’ court were defined and strengthened.
+  Writing in 1847, Mr. Hood observed:--
+
+    “The orphans’ court, as at present constituted, is a court of a
+    peculiar nature both as respects its jurisdiction, powers, and
+    the forms of its proceedings, partaking of the characters of a
+    court of common law, a court of equity, and an ecclesiastical
+    court. The process of the orphans’ court would seem, in some
+    respects, to resemble that of the English ecclesiastical courts,
+    whose proceedings are regulated according to the practice of
+    the civil and canon law; or rather according to a mixture of
+    both collected and new-modelled by their own particular usages
+    and the interpretation of the courts of common law. It was this
+    establishment of the civil law process in the ecclesiastical courts
+    that made a coalition impracticable between them and the national
+    tribunals of England. The act of 1832 has remodelled the forms of
+    proceeding in the orphans’ court, making them approximate more
+    nearly to the common law. Hence, in the orphans’ court practice,
+    are found the _motion_, _rule_, _fieri facias_, and _subpœna_
+    of the common law courts, the _petition_ of chancery, and the
+    _citation_ of doctors commons; and mingled with them, the _order_,
+    _decree_, and _sequestration_ derived through these equity and
+    ecclesiastical tribunals, from the civil and canon laws. In one
+    respect the orphans’ court may be said to be of a higher nature
+    than the court of chancery and the ecclesiastical courts of
+    England: for the court of chancery, when proceeding by subpœna, is
+    not a court of record, nor are the ecclesiastical tribunals, courts
+    of record.”[561]
+
+  Under the Act of 1832, and some additional acts relating to
+  decedents’ estates subsequently passed on the recommendation of the
+  commissioners, the orphans’ courts reached their full dignity as
+  courts of record and have justified their creation by a long career
+  of usefulness. The confidence of the community has been further
+  marked by the extension of their jurisdiction in numerous cases as,
+  for example, under the Price Act.[562] To fully describe the powers
+  of the court would exceed the limits of this chapter and indeed
+  open up the whole subject of orphans’ court practice, a matter
+  that has been thoroughly discussed in several text books.[563] It
+  is necessary, however, to refer to certain changes brought about
+  by the constitution of 1874 which abolished the register’s court
+  and conferred its jurisdiction on the orphans’ court, provided for
+  the establishment of separate orphans’ courts in counties having a
+  population exceeding one hundred and fifty thousand, and directed
+  that all accounts filed with the register of wills, as clerk of a
+  separate orphans’ court, should be audited by the court without
+  expense to the parties, unless the parties themselves nominated an
+  auditor.[564]
+
+  These changes have proved most beneficial. The registers’ court was
+  unnecessary and was wisely abolished, while the creation of separate
+  orphans’ courts in the larger communities has been particularly
+  advantageous in furnishing to the judiciary of the state a corps
+  of experts, specially trained in the handling of those difficult
+  and intricate problems arising out of the devolution of property by
+  death. The name of the court today indicates but a small part of its
+  functions, but is an historic illustration of the way in which great
+  institutions sometimes grow from small beginnings.
+
+
+  FOOTNOTES:
+
+  [490] _McPherson_ v. _Cunliff_, 11 Sergeant & Rawle’s Reports, 431
+  (1824).
+
+  [491] Williams on Executors, Part I, Book 4, chapter 1.
+
+  [492] Blackstone’s Commentaries, Vol. II, 590, Vol. III, 64.
+
+  [493] Article on Wills by L. M. Dagget in Two Centuries’ Growth of
+  American Law, 167.
+
+  [494] Laws of the Colony of New Plymouth (Edition of 1836), 32.
+
+  [495] Maryland Archives, Judicial and Testamentary Business of the
+  Provincial Court, 12.
+
+  [496] Laws of the Colony of Massachusetts (1672), 157.
+
+  [497] Charter and Laws of Pennsylvania, 5, 6.
+
+  [498] Records of the Court of New Castle, 74.
+
+  [499] Records of the Court of New Castle, 66.
+
+  [500] Records of the Court of New Castle, 98.
+
+  [501] Charter and Laws of Pennsylvania, 101.
+
+  [502] Charter and Laws of Pennsylvania, 119.
+
+  [503] Proud’s History of Pennsylvania, Vol. I, 236.
+
+  [504] Sussex County Records, MSS. Historical Society of Pennsylvania.
+  For similar entries, see Turner’s Sussex County Records, 133.
+
+  [505] II Statutes at Large, 194; II Colonial Records, 238, January
+  12, 1705.
+
+  [506] II Statutes at Large, 421.
+
+  [507] II Colonial Records, 576, May 27, 1712.
+
+  [508] II Statutes at Large, 541.
+
+  [509] II Statutes at Large, 423, § 3.
+
+  [510] Act of January 12, 1705, II Statutes at Large, 199.
+
+  [511] Act of March 27, 1713, III Statutes at Large, 14.
+
+  [512] _Commonwealth_ v. _Brady_, 3 Sergeant & Rawle’s, 309 (1817).
+
+  [513] Charter and Laws of Pennsylvania, 302.
+
+  [514] I Colonial Records, 407, June 5, 1694.
+
+  [515] I Blackstone’s Commentaries, 463.
+
+  [516] _Wimmer’s Appeal_, 1 Wharton’s Reports, 102 (1836). The court
+  of the burgomaster and schepens of the city of New York acted as an
+  orphans’ court during the Dutch period. To relieve the court of this
+  work Stuyvesant created a separate court of orphan masters, which
+  ceased to exist when the colony passed into the hands of the English.
+  Scott’s History of the Courts of New York (1909), 40; Records of the
+  Court of New Amsterdam, Vol. II, 341. There is no evidence, however,
+  that this court influenced Penn in establishing orphans’ courts in
+  Pennsylvania.
+
+  [517] Bohun’s Privileges of London (Edition of 1723), 314.
+
+  [518] Act of 12 Charles II, chapter 24 (1660).
+
+  [519] Bohun, 336.
+
+  [520] Act of 5 and 6 William & Mary, chapter 10.
+
+  [521] Charter and Laws of Pennsylvania, 131.
+
+  [522] Charter and Laws of Pennsylvania, 142.
+
+  [523] Address of Peter McCall, Esq., before the Law Academy (1838).
+
+  [524] I Colonial Records, 39, 20, 12 mo. 1683; I Colonial Records,
+  62, 18 4 mo. 1684.
+
+  [525] I Colonial Records, 137, 5, 5 mo. 1686; 138, 6, 5 mo. 1686;
+  143, 21 September, 1686.
+
+  [526] Charter and Laws of Pennsylvania, 100. See page 28, _supra_.
+
+  [527] Charter and Laws of Pennsylvania, 120, 181.
+
+  [528] Charter and Laws of Pennsylvania, 180; I Colonial Records, 176,
+  12, 2 mo. 1688.
+
+  [529] II Statutes at Large, 51.
+
+  [530] II Statutes at Large, 494.
+
+  [531] II Statutes at Large, 199, §§ 3, 4.
+
+  [532] I Colonial Records, 103, 16, 7 mo. 1685.
+
+  [533] I Colonial Records, 552, July 1, 1700.
+
+  [534] Charter and Laws of Pennsylvania, 231; I Colonial Records, 390,
+  May 31, 1693.
+
+  [535] Charter and Laws of Pennsylvania, 261.
+
+  [536] II Statutes at Large, 31, § 3.
+
+  [537] II Statutes at Large, 148, § 8.
+
+  [538] II Statutes at Large, 199.
+
+  [539] III Statutes at Large, 14.
+
+  [540] V Statutes at Large, 462.
+
+  [541] Martin’s Bench and Bar of Philadelphia, 66.
+
+  [542] Orphans’ Court Docket No. 2, page 78.
+
+  [543] Orphans’ Court Docket No. 2, pages 59, 93.
+
+  [544] Orphans’ Court Docket No. 3, page 53.
+
+  [545] III Statutes at Large, 345.
+
+  [546] _Brinker_ v. _Brinker_, 7 Pennsylvania Reports, 53 (1847);
+  _Steffy’s Appeal_, 76 Pennsylvania Reports, 94 (1874); _Kidder’s
+  Estate_, 1 Kulp’s Reports, 412 (1875).
+
+  [547] Orphans’ Court Docket No. 2, page 176.
+
+  [548] By the Act of May 19, 1874, P. L. 206, § 7, the orphans’ court
+  has power to prevent by order, in the nature of an injunction, acts
+  contrary to law or equity prejudicial to the property over which they
+  have jurisdiction. See Pepper and Lewis’s Digest of Decisions, Vol.
+  15, col. 24472.
+
+  [549] IX Statutes at Large, 29; 1 Smith’s Laws of Pennsylvania, 429.
+
+  [550] IX Statutes at Large, 68; 1 Smith’s Laws of Pennsylvania, 443.
+
+  [551] Article V, § 11, Constitution of 1790; Article VI, § 3,
+  Constitution of 1838.
+
+  [552] Article V, § 7, Constitution of 1790; 3 Smith’s Laws of
+  Pennsylvania, page xxxix.
+
+  [553] 3 Smith’s Laws of Pennsylvania, 28.
+
+  [554] _Marriot_ v. _Davey_, 1 Dallas’s Report, 164 (1786).
+
+  [555] _Kohr_ v. _Fedderhaff_, 4 Sergeant & Rawle’s Reports, 248
+  (1818).
+
+  [556] 11 Sergeant & Rawle’s Reports, 422 (1824). So far as
+  Philadelphia County is concerned the orphans’ court records are in a
+  better state of preservation than those of the other courts.
+
+  [557] First Report of the Commissioners to Revise the Civil Code
+  (1831).
+
+  [558] P. L. 135.
+
+  [559] P. L. 190.
+
+  [560] Section 4 of the Act of March 29, 1832, P. L. 190.
+
+  [561] Hood on Executors, 103.
+
+  [562] Act of April 18, 1853, P. L. 503.
+
+  [563] Scott on the Intestate System of Pennsylvania, Rhone’s Orphans’
+  Court Practice, Brewster’s Orphans’ Court Practice. Pepper and
+  Lewis’s Digest of Decisions, Vol. 14, col. 24234.
+
+  [564] Article V. § 22, Constitution of 1874; see appendix.
+
+
+
+
+  CHAPTER VI.
+
+
+  In tracing the early history of the judicial proceedings by which
+  roads and streets are laid out and opened in Pennsylvania, the common
+  law of England lends little assistance. The physical conditions in
+  colony and mother country were so radically different as to afford
+  little analogy in matters of local or municipal regulation. In
+  England, at the time of the settlement of the province, the country
+  was traversed in every direction, from town to town and village to
+  village, by ways so well defined by custom and so well established
+  by reputation, that a complaint of want of thoroughfare was
+  uncommon.[565] In Pennsylvania, as in the other colonies, the opening
+  of roads for public travel and for the transportation of commodities
+  was an immediate and pressing economic necessity.
+
+  The science of road construction was still in its infancy and
+  throughout England roads were, during the seventeenth and eighteenth
+  centuries, in a deplorable condition. In the first year of the reign
+  of Queen Anne, Charles III of Spain visited England. His experiences
+  on the road between Portsmouth and Petworth in Sussex are thus
+  related by one of his suite:--
+
+    “We set out at six in the morning by torchlight to go to Petworth
+    and did not get out of the coaches (save only when we were
+    overturned or stuck fast in the mire) till we arrived at our
+    journey’s end. ’Twas a hard service for the Prince to sit fourteen
+    hours in the coach that day without eating anything, and passing
+    through the worst ways I ever saw in my life. We were thrown but
+    once, indeed, in going, but our coach (which was the leading one)
+    and his Highness’s body coach would have suffered very much if the
+    nimble boors of Sussex had not frequently poised it or supported
+    it with their shoulders from Godalming almost to Petworth; and
+    the nearer we approached the Duke of Somerset’s house the more
+    inaccessible it seemed to be. The last nine miles of the way cost
+    us six hours to conquer them: and indeed we had never done it if
+    our good master had not several times lent us a pair of horses out
+    of his own coaching, whereby we were enabled to trace out the road
+    for him.”[566]
+
+  So Defoe, in a letter written in 1722, remarks:--
+
+    “Going to church at a country village not far from Lewes, I saw an
+    ancient lady--and a lady of very good quality I assure you--drawn
+    in her coach to church with six oxen; nor was it done in frolic or
+    humour, but mere necessity, the way being so stiff and deep that no
+    horses could go in it.”[567]
+
+  Few roads were more than bridle paths and a journey for any distance
+  from home was a serious undertaking, that commonly meant the inditing
+  of a last will and testament and the settlement of one’s worldly
+  affairs. A country gentleman when traveling alone at this time
+  usually adopted the plan called riding post; that is, he hired at
+  each stage two horses and a postboy, who carried the portmanteau
+  behind him and rode back when fresh horses were required.
+
+  With the physical conditions thus, it is not surprising that the
+  road law of the country was that of the feudal period, except
+  as affected by special turnpike acts. Three kinds of ways were
+  recognized--footways, horseways and cartways. In the language of
+  Coke:--
+
+    “There be three kinds of wayes whereof you shall reade in our
+    ancient bookes. First a footway, which is called iter, quod est jus
+    eundi vel ambulandi hominis; and this is the first way. The second
+    is a footway and horseway, which is called actus ab agendo; and
+    this vulgarly is called packe and prime way because it is both a
+    footway, which was the first or prime way and a packe or drift way
+    also. The third is via or aditus which contains the other two and
+    also a cartway etc. for this is jus eundi, vehendi et vehiculum
+    et jumentum ducendi: and this is two fold, viz: regia via, the
+    king’s highway for all men, et communis strata, belonging to a
+    city or town or between neighbors and neighbors. This is called in
+    our bookes chimin, being a French word for a way, whereof cometh
+    chiminage, chiminagium or chimmagium, which signifieth a toll
+    due by custome for having a way through a forest, and in ancient
+    records it is sometimes called pedagium.”[568]
+
+  Another classification divided ways into: King’s highways, that is,
+  public passages for the king and his subjects; common ways or such as
+  led from a village to the parish church or common fields, and were
+  for the benefit of the particular inhabitants of the locality; and
+  private ways, where particular individuals had a right of passage
+  through certain land.
+
+  The right to a public highway usually rested on an act of parliament,
+  express grant, dedication, or was claimed by prescription, and, as
+  already stated, complaints of want of thoroughfare seldom arose. If
+  it became necessary to deviate from an existing way the new route did
+  not become a public highway without a writ of _ad quod damnum_ and
+  inquisition. This was an ancient writ issued out of and returnable
+  into chancery through the petty-bag office and was directed to the
+  escheator or sheriff, who was commanded to hold an inquisition to
+  determine what damage would result to the king or his subjects
+  from the grant so that compensation could be made a condition
+  thereof.[569] Without this writ the public could not justify going
+  over a new way, as a common highway, but were obliged to show their
+  excuse specially.[570] If the purpose was to change an old way or
+  alter its condition, the new way, or way so altered, was required to
+  be as beneficial as the old one.[571] “These inquests of office,”
+  says Blackstone, speaking generally of sheriffs’ and coroners’
+  inquisitions, “were devised by law, as an authentic means to give
+  the king his right by solemn matter of record without which he, in
+  general, can neither take nor part from anything. For it is of the
+  liberties of England and greatly for the safety of the subject, that
+  the king may not enter upon and seize any man’s possession upon bare
+  surmises without the intervention of a jury.”[572]
+
+  The obscurity of the practice and infrequency of reported cases
+  shows that _ad quod damnum_ proceedings never played an important
+  part in highway law. The writ contained great possibilities, and,
+  with a simplified procedure, might have become a useful vehicle for
+  accommodating the conflicting interests of the public and the land
+  owner, had road matters been of importance in the flourishing days
+  of petty-bag jurisdiction. But in those times the ancient ways were
+  sufficient for the needs of the public, and where new roads were
+  formally opened, they were usually either dedicated by the land
+  owner or laid out over unimproved lands without compensation. When
+  the pressure for highway improvements became greater a statutory
+  proceeding more convenient and inexpensive was substituted for the
+  ancient writ, preserving, however, the spirit and substance of the
+  earlier procedure.[573] In some of the American states, notably in
+  Virginia and Kentucky, the writ _ad quod damnum_ was introduced and
+  applied in proceedings for the erection of mill dams on streams, and
+  extended to other matters involving injury to and appropriation of
+  private property.[574]
+
+  It was about the time of the settlement of the colonies that eminent
+  domain as a distinct branch of governmental power began to be
+  discussed, although it had long existed as a necessary attribute of
+  sovereignty. Grotius, in 1625, first used and apparently originated
+  the phrase which, although open to criticism, in so far as it implies
+  that the basis of the power is an ultimate ownership in the state
+  of all property, has been universally adopted as defining the power
+  inherent in a sovereign state to take or authorize the taking of
+  private property for public use.[575] But in the seventeenth and
+  eighteenth centuries the practical application of the principle and
+  its relation to the constitutional restraints on state action had not
+  been worked out.[576]
+
+  The period of Dutch supremacy was not marked by any special activity
+  in road improvements. The colonists on both the North and South
+  Rivers were scattered in villages along the banks and transportation
+  was usually by water. The laying out of such highways as were needed
+  came under the jurisdiction of the schout and schepens, while the
+  streets of the capital were under the immediate supervision of the
+  chief officials.[577] Thus an ordinance of the director and council
+  of New Amsterdam of February 25, 1656, approves a survey of the
+  streets of the city and refers the execution to the burgomasters,
+  who are to give notice to all persons, who may be damaged by the
+  survey, to furnish a statement of their damages, and if an agreement
+  cannot be reached, the matter is to be referred to two or three
+  disinterested persons who are to appraise the lots.[578] Various
+  regulations were adopted as to the use of the village streets, one of
+  which may be quoted at length:--
+
+    “Ordinance of the Vice Director and Commisaries of Fort
+    Orange Passed 10 December 1659. The Worshipful Commissary and
+    Commissionaries of Fort Orange and Village of Beverswyck, having
+    heard divers complaints from the Burghers of this place, against
+    playing at Golf along the streets, which causes great damage to
+    the windows of the Houses, and exposes people to danger of being
+    wounded, and is contrary to the freedom of the public streets;
+    therefore their worships, wishing to prevent the same, forbid all
+    persons playing Golf in the streets, on pain of forfeiting fl. 25
+    for each person who shall be found doing so.”[579]
+
+  That some of the good people of Albany were devoting their time
+  to golf at this period, is more surprising than that their
+  fellow-townsmen objected to the use of the streets as links.
+
+  Upon the conquest of the New Netherlands by the English the matter
+  of highway regulation seems to have been neglected. There is no
+  mention of the subject in the Duke of York’s Laws, and this is the
+  more surprising in view of the fact that they were drawn largely
+  from New England sources where the subject of highways had received
+  early attention. By a law of the colony of Massachusetts passed in
+  1639 highways were to be laid out on complaint to the county court,
+  which was directed to appoint “two or three men of each next town
+  whose inhabitants had most occasion thereof,” and these, upon view,
+  were to lay out such highway according to order and make return to
+  the next court, compensation to be paid to any man damaged in his
+  improved ground by estimation of those who laid out the same. If the
+  viewers disagreed or the person was dissatisfied with the acts of the
+  viewers, the matter was to be referred to the county court,[580]--a
+  simple and effective proceeding, and hard to improve upon, as long as
+  the laying out of roads was regarded as a matter of local government.
+
+  In the settlements on the Delaware the opening and repair of roads
+  were matters within the jurisdiction of the court of sessions.
+  Overseers of highways were appointed who were empowered to call upon
+  the inhabitants for assistance in the construction and repair of
+  highways and bridges, and persons refusing to work on the roads were
+  fined by the courts.[581] The following entry appears on the minutes
+  of the court held at New Castle June 15, 1678:--
+
+    “It being Represented to the court y^t there is need of a highway
+    to come from Jan Staalcops Round Christina to this Towne of New
+    Castle, The court therefore ordered, that all the Inhabitants
+    dwelling on the North syde of Christina, from brandewyn Creeke
+    to the place or plantation of John Ogle, Doe with all Convenient
+    speede make and Cleare a good and passable Highway from y^e s^d
+    Staalcops house Round Christina Creeke to this Towne of New Castle,
+    and doe appoint for overseer thereof Mr. Abraham Man who is desired
+    to see the worke Effectually done.”[582]
+
+  At a court held December 3, 1679, the inhabitants were divided into
+  companies under designated overseers and charged with the care of
+  the highways in their respective districts. It was also ordered that--
+
+    “Whereas for y^e Common Good of the Country itt is found necessary
+    that y^e highwayes from place to place bee annually made good &
+    cleared Itt is therefore resolved viz^t That Every respective
+    overseer take care that betweene Every decem & March his part of
+    y^e highway bee made good & cleared, upon y^e penalty & forfeiture
+    of 1000 lb. of tobb if proved to be y^e fault of y^e overzeer and
+    if any Inhabitant resorting under the company of any overseer
+    shall refuse upon due notice to worke att y^e highway till it be
+    finisht hee to forfeit for Each such neglect 400 lb. of tobacco.
+    The highway to be Cleared as followeth viz^t The way to bee made
+    cleare of standing & Lying trees at Least 10 foot broad all stumpes
+    & shrubs to bee close cutt by y^e ground, the trees markt yearly on
+    boath sydes, sufficient bridges to be made and kept over all marshy
+    swampy & difficult dirty places & what ever else shall be tougt
+    more necessary in and about y^e highwayes afores^d.”[583]
+
+  William Penn on receiving his grant of the province of Pennsylvania,
+  provided in his frame of government that the governor and provincial
+  council should “at all times settle and order the situation of all
+  cities, ports and market towns in every county, modeling therein all
+  public buildings, streets and market places,” and should “appoint all
+  necessary roads and highways in the province.”[584]
+
+  In the instrument executed by Penn July 11, 1681, known as “the
+  conditions and concessions to the adventurers and purchasers,” it was
+  agreed that--
+
+    “Great roads from City to City not to contain less than forty feet
+    in breadth shall be first laid out and declared to be for highways
+    before the Dividend of acres be laid out for the purchaser and the
+    like observation to be had for the streets in the towns and Cities
+    that there may be convenient roads and streets preserved not to
+    be encroached upon by any planter or builder that none may build
+    irregularly to the damage of another.”[585]
+
+  “On the arrival of the adventurers in this country,” says Chief
+  Justice Shippen, “it was found very practicable to lay out streets in
+  one great city, which was accordingly done, but quite impracticable
+  to lay out the great roads or highways from city to city, as only one
+  city was then contemplated. But as such great roads were to be laid
+  out over the land of the proprietor alone and the purchasers were not
+  to contribute, it was at length agreed and sanctioned in lieu of the
+  impracticable plan settled in England, there should be an additional
+  quantity of land granted to each purchaser without price or rent, to
+  enable him to contribute without loss to such public roads as should
+  thereafter be found necessary for the use of the inhabitants.”[586]
+  The quantity of six per cent was fixed as the permanent additional
+  allowance for that purpose and provision was made therefor in the
+  Acts of November 20, 1700,[587] and of June 7, 1712.[588] Both of
+  these acts were repealed by the queen in council, for reasons having
+  nothing to do with this provision, but the custom was established,
+  and it is the law of this state that the owner of land taken for
+  the purpose of a public road, has no right to compensation for the
+  land itself, but only for the improvements, unless such a right is
+  expressly conferred by statute.[589] “The six per cent,” in the
+  words of Chief Justice Black, “belongs to the State and she may
+  constitutionally appropriate it to the use it was meant for. I speak
+  now of land in its natural state. Where buildings are pulled down,
+  or other valuable improvements destroyed in the making of a new
+  road, the right to compensation is guaranteed to the owner by the
+  constitution.”[590]
+
+  On the eighteenth of April, 1682, Captain Thomas Holme was
+  commissioned as surveyor general of the province and proceeded to
+  the Delaware, where, in the summer of that year, a site for the
+  city of Philadelphia was chosen and the ground laid out in streets
+  and lots, according to the general directions of Penn as shown on
+  the plan usually referred to as Holme’s map of Philadelphia.[591]
+  If the streets seem narrow, it must be remembered that the plan
+  was conceived on a liberal scale for that time. When the city was
+  laid out the standard width of a street in London was two perches
+  or thirty-three feet. Penn determined to make the streets wider in
+  Philadelphia, so as to prepare for future growth, and, accordingly,
+  established the standard of fifty feet, which is about three perches.
+  Market street was laid out one hundred feet wide, Broad street one
+  hundred and thirteen feet, Arch or Mulberry street sixty-six feet or
+  four perches.[592]
+
+  Penn, indeed, was determined that the city should not be cramped.
+  “Let every house,” he said in his instructions to the commissioners
+  to lay out the city, “be placed, if the person pleases, in the middle
+  of its plat as to the breadth way of it, that so there may be ground
+  on each side for gardens and orchards, or fields, that it may be
+  a green country town, which will never be burnt, and always be
+  wholesome.”[593]
+
+  In the charter of October 25, 1701,[594] erecting the town into a
+  city, Penn ordained that the streets of the city should forever
+  continue as they were then laid out and regulated, and no special
+  power was conferred upon the corporation to alter the plan. This,
+  of course, applied to the old city, extending from Vine street on
+  the north to Cedar (South) street on the south. The streets in the
+  several outlying districts were, upon their incorporation, plotted
+  under special acts.
+
+  In accordance with the Frame of Government, the provincial council
+  assumed jurisdiction of the laying out of the main highways, and the
+  minutes of that body are full of references to such matters. At a
+  meeting of the council in 1686--
+
+    “A Petition Relating to highways was Read, upon wch the Councill
+    agreed y^t there should be a Sett time appointed for y^e Councill
+    to Inspect all y^e Business relating to y^e Highways, and to Order
+    yt y^e Roads be Laid out in y^e most proper and Convenient Places
+    within this Province.”[595]
+
+  The multiplicity of their duties, however, prevented them from taking
+  entire charge of road cases, and by the Act of March 1, 1683,[596]
+  it was provided that each county court should “appoint and settle
+  sufficient cartways to the most convenient landing places, in their
+  respective counties, for public use and benefit.” A distinction was
+  thus made between the great provincial roads or king’s highways
+  and the local roads or cartways for the convenience of a special
+  neighborhood. This is illustrated by two resolutions of the council,
+  passed within a couple of months of each other. In one case the
+  minutes read:--
+
+    “The Petition of Henry Jones was Read, setting forth y^e badness
+    of the way from Moyamensin to Philadelphia. It was Referred to
+    y^e County Court, who it’s presumed has power to appoynt Roads to
+    Landing Places, to Court, & to Markett.”[597]
+
+  In the other case:--
+
+    “The Councill taking into Consideration y^e Unevenesse of y^e Road
+    from Philadelphia to y^e falls of Delaware.
+
+    “Agreed that Robt Turner & John Barnes for y^e County of
+    Philadelphia, Arth. Cook and Tho. Janney for y^e County of Bucks,
+    with y^e Respective Surveyrs of y^e sd Counties, meet and Lay
+    out a more Comodious Road from y^e broad Street in Philadelphia
+    to y^e falls aforesaid: y^e time when is Referred to y^e members
+    Nominated.”[598]
+
+  From this time on the minutes of the council contain many
+  references to public highways. Petitions were presented, sometimes
+  by individuals, sometimes by the inhabitants of a neighborhood or
+  township, complaining of the want of a road and praying for an order
+  to lay out the same; if the petition was approved, the usual practice
+  was to order that a warrant be directed to the surveyor general to
+  lay out the road. The following is a typical case:--
+
+    “Upon the memorial of the Honble, Andrew Hamilton, Esqr. Gor of the
+    Jersies, & post master generall, &c. to the Gor & Council, Setting
+    forth that it was formerlie with great difficultie that the post
+    could goe to Philadelphia by Land, to the great inconvenience of
+    Correspondence & trade, and yt for remedie whereof, & accommodaon
+    of Travellers, a ferry had been erected on Jersie side att a great
+    chairge, but that the way was not yet returned from the landing on
+    pennsilvania side to the king’s road, wch is about three Quarters
+    of a mile & easily cleared; And therefore, Requesting the Governor
+    & Council to approve the said road, and give the necessarie orders
+    for clearing it.
+
+    “Ordered, that a warrantt be directed from the Governor to
+    Thomas ffairman, Surveyor, To lay outt the king’s road from
+    dunck William’s Landing, (the nearest & most convenient yt
+    may be had, & Least prejudicial to the Lands and improvments
+    of the nighbourhood,) Into the king’s great road that Leads
+    to Philadelphia, and that a Return in words, of the Courses &
+    protracted figure thereof, be made Into the Secries office, in
+    order to be filed & recorded there, as a finall Confirmaon thereof.
+    And that the Justices of the peace for the County of Bucks, be by
+    the Governor requested to order the overseers of y^e Highways in
+    that County to make good & clear the same wt all expedion.”[599]
+
+  The return of the surveyor general is as follows:--
+
+    “By virtue of the Governor’s speciall warrant, bearing date y^e
+    28th day of October, 1696, to mee directed, psuant to an order
+    of the Govervor & Council, granted upon the applicaon of Andrew
+    Hamilton, esqr. Governor of y^e Jersies & post mr generall, I have
+    surveyed & Laid outt the king’s roade from y^e Landing of dunken
+    Williams, on delaware, in the Countie of Bucks & province of
+    pennsilvania, Beginning there at a Spanish oak att High water mark;
+    thence sixtie foot broad, extending North North-west on each side
+    the Line, dividing betwixt the Land of the sd duncken Williams &
+    Nathaniel Harding, Two Hundred pearches; Thence in the sd duncken’s
+    Land, north eightie-One degrees, westerlie fourtie pearches;
+    Thence north sixtie-foure degrees, westerly sixty-two pearches,
+    Unto the old king’s Roade which Leads to Philadelphia, & Hath been
+    ancientlie Surveyed & Returned.”[600]
+
+  Occasionally an order for the laying out of a road is directed to a
+  number of individuals, usually six, but these roads are not always
+  described as king’s roads, and would seem sometimes to belong to the
+  class of roads ordinarily laid out by the courts, which the council,
+  in a few instances, undertook to order, in the exercise of their
+  supervisory functions still undefined. In fact there are instances
+  where their order was for the confirmation of an old road merely,
+  or to settle a disagreement between the parties interested and the
+  viewers appointed by the county court.
+
+  An interesting case was that of Robert Wade, the owner of a tract
+  of land in Chester, the whole of which was taken by the grand jury
+  for a public landing place and open street, without Wade’s knowledge
+  or consent and without offering him any compensation. Upon his
+  protesting the justices stated that they “Seazed it for the king,”
+  whereupon he petitioned the council, stating--
+
+    “That the petitionr being a freeman, cannot by Law be disseized of
+    his freehold but by the Judgment of his 12 equalls, by a Legall
+    tryall, and which act of the Court has been to the petitioner’s
+    great Loss & damage, who is daylie threatened to have what hee
+    shall build on sd his Land pulled downe and throwen in the sd
+    creek, and therfor, requesting such remedie & redress in the
+    premisses as is agreeable to Justice & equitie.”[601]
+
+  The council sent to the court for a copy of the proceedings, and on
+  further debate it was resolved that the action of the grand jury
+  was unjustified and an order made that the petitioner be no further
+  molested in the peaceable possession of his property.[602]
+
+  This isolated attempt by the grand jury to assume the right of
+  eminent domain having been promptly frustrated, the real doubt as to
+  how the Act of 1683 was to be interpreted was resolved by a further
+  act defining the practice in road cases, passed May 10, 1699.[603]
+  This was re-enacted in almost the same language in the Act of
+  November 27, 1700,[604] as follows, the only substantial additions
+  being the clauses bracketed:--
+
+    “Section I. Be it enacted by the Proprietary and Governor, by and
+    with the advice and consent of the freemen of this Province and
+    Territories in General Assembly met, and by the authority of the
+    same, That all the King’s highways or public roads within this
+    province or counties annexed, shall be laid out by order of the
+    governor and council for the time being; which roads shall be
+    recorded in the council book, with the courses thereof, as near as
+    may be done.
+
+    “Section II. And be it further enacted by the authority aforesaid,
+    That the justices of each county court within this government
+    shall, and by virtue of this act have power, as often as they
+    find needful, in open court to order and appoint six sufficient
+    housekeepers of the neighborhood inhabiting near the place where
+    complaint is made for want of a road or cartway unto the public
+    road, who shall view the said place; and if the said housekeepers,
+    or any four of them, are satisfied that there is occasion for a
+    road or cartway to be laid out, according to the complainant’s or
+    complainants’ desire, then they shall and may lay out the same,
+    [in and through such convenient places as they shall think may be
+    least to the damage or inconveniency of the neighbors or parties
+    concerned, and least injurious to the settlements thereabouts;] and
+    of such breadth as the justices shall order and appoint, so that it
+    exceed not fifty feet; and shall make return thereof under their
+    hands to the next county court after it is laid out; and if then
+    and there the justices approve the same, it shall at the same court
+    be entered upon record, and from thenceforth be taken, deemed and
+    allowed to be a lawful road or cartway from that time forwards.
+
+    “[Provided, That no such road shall be carried through any man’s
+    improved lands but where there is a necessity for the same; and
+    where that appears, the respective county courts shall appoint six
+    indifferent men to view and adjudge the value of so much of such
+    improved lands as shall be taken up for the use aforesaid, and the
+    value thereof shall be paid to the owner of the said land out of
+    the respective county stock.]
+
+    “And to prevent any difference that may arise among neighbors about
+    roads or cartways laid out by order of the governor and council,
+    or any of the county courts in this government, and which are or
+    shall be entered upon record, either before or after the making and
+    publishing of this act:
+
+    “Section III. Be it enacted by the authority aforesaid, That all
+    such roads and cartways as before mentioned, shall be taken, deemed
+    and allowed to be free, open and lawful roads and cartways from the
+    time they are so laid out and recorded as aforesaid.”
+
+  This act was the real foundation of the system of laying out and
+  opening township roads in Pennsylvania. Its salient features were
+  the provision for the appointment of six viewers to report on the
+  necessity for the road before confirmation by the court, and the
+  further provision that, where it became necessary to carry the road
+  through improved lands, six viewers should be appointed to adjudge
+  the value of the improvements so taken, which was to be paid for out
+  of the county stock.
+
+  By a supplementary act of February 20, 1735,[605] the justices of the
+  quarter sessions were empowered, on the application of any person
+  for a road from the plantation or dwelling place of such person
+  to or from a highway, to direct a view, and if such road be found
+  necessary, to order it laid out, not exceeding thirty-three feet in
+  width, the value of the improved land taken to be paid for by the
+  person at whose request it was laid out, who was also to clear and
+  maintain the same.
+
+  The result of this legislation was to establish three kinds of
+  roads: (1) The great provincial roads or king’s highways, laid out
+  by order of the provincial council; (2) Cartways leading into public
+  roads, laid out by order of the justices of the county courts upon
+  the report of viewers, and (3) Private roads, likewise laid out by
+  order of the justices upon the report of viewers.[606] The last
+  were common roads for the use not only of the persons for whom they
+  were laid out but for all who should have occasion to travel to the
+  plantations of such persons. Some interesting information as to the
+  procedure may be gleaned from the minutes of the council, where
+  road matters were frequently under consideration. Thus, on October
+  7, 1737, on consideration of a petition of sundry inhabitants of
+  Lancaster County, setting forth the want of a high road from the
+  town of Lancaster to Coventry Iron Works on French Creek in Chester
+  County and praying for the appointment of proper persons to lay out
+  the same, the council granted the prayer of the petition and directed
+  that six persons appointed from Lancaster County or any four of them
+  view and lay out a high road to the division line between Lancaster
+  and Chester counties; that six persons appointed from Chester County,
+  or any four of them, there join the others and agree on the most
+  convenient passage over the division line and continue the road to
+  the terminus and that the twelve, or eight of them, make return to
+  the council for confirmation.[607] The duties of the viewers, it will
+  be noticed, were limited to their respective counties.
+
+  On March 24, 1736-7, an elaborate draft of a road from Harris’s Ferry
+  on the Susquehanna River to Kennison’s plantation in Chester County
+  was returned by the viewers, eleven of whom signed the report.[608]
+  A petition by some inhabitants of Chester County was presented,
+  objecting to the road as laid out, and praying for a review. Other
+  citizens supported the report, and after hearing the petitioners for
+  the review withdrew their petition and the road was confirmed as
+  laid out. Nevertheless, the parties being still dissatisfied and the
+  quarter sessions of Chester County being of opinion that the road
+  as laid out was impracticable, new petitions were presented to the
+  council for and against the road. After full argument the council,
+  finding that all the objections were to that part of the road in
+  Chester County, appointed six persons from that county to review the
+  road from the county line and make such alterations to the best of
+  their judgment “as may truly answer the intention of accommodating
+  both Country and travellers.”[609] Upon the report of the reviewers
+  the following order was made:--
+
+    “The Board, on due Consideration had of the said Return, and of
+    the Draught accompanying it, do approve, establish, & confirm the
+    Road aforesaid as now laid out and reviewed, agreeable to which
+    Return the Confirmation formerly made by an Order of Council of
+    the twenty-fourth day of March, 1736-7, is directed to be amended,
+    and the said Road is hereby declared to be the King’s Highway or
+    Publick Road, and It is Recommended to the Justices of the Peace
+    for the County of Chester, that they, at their next ensuing Quarter
+    Sessions, issue Directions to the Overseers of the Highways for
+    causing the said Road to be opened & cleared, so that it may be
+    rendred commodious for the Publick Service.”[610]
+
+  The foregoing record is interesting as showing the practice of
+  granting reviews in the case of provincial as well as county roads,
+  and other instances will be found in the minutes of the council.
+  In the case of a road laid out by the quarter sessions it was
+  held in 1764 that a review, though not taken notice of in the act
+  of assembly, had always been granted and had become a matter of
+  right.[611] By the Act of April 6, 1802,[612] the quarter sessions
+  were required to grant a review in all cases, provided the
+  application was made at the next court after the report had been made
+  on the first view. The appointment of re-reviewers is discretionary.
+
+  The Act of April 6, 1802, just referred to, was a general road law
+  which replaced the older legislation with greater elaboration of
+  detail. It, in turn, was repealed by the general road law of June 13,
+  1836,[613] an act, drafted by the commissioners to revise the civil
+  code, which embodied the previous legislation and practice in a clear
+  and comprehensive form. This act, with its amendments, is still in
+  force and is the only general road law applicable to all parts of the
+  commonwealth, but its operation has been greatly restricted by local
+  and special acts.
+
+  Briefly stated the Act of 1836 provides that the court of quarter
+  sessions, on being petitioned to grant a view for a road within the
+  county, shall appoint six viewers (since reduced to three),[614]
+  who, if they agree that there is occasion for the road, are to
+  proceed to lay out the same so as to do least injury to improved
+  property and also meet the desire of the petitioners. The viewers are
+  required to report at the next term of court, annexing a draft of
+  the road, stating the courses and distances and briefly noting the
+  improvements and, when practicable, they are not to lay out the road
+  at an elevation exceeding five degrees except at crossings of ravines
+  and streams. If the court approve the report they must direct of
+  what breadth the road shall be opened[615] and at the next court the
+  whole proceedings are to be entered of record and the road deemed and
+  allowed to be a public road or highway or a private road as the case
+  might be.
+
+  Public roads were to be kept in repair at the expense of the
+  township; private roads at the expense of the petitioner. Reviews
+  might be granted if applied for at or before the next term of court
+  after the report on the first view. The owner of any land through
+  which the road was laid out might, within one year from the opening,
+  petition for the appointment of six viewers to assess his damages,
+  who were to report to the next court the injury done, and if their
+  report was approved the amount assessed was to be paid out of the
+  county stock.
+
+  The Act of May 14, 1874,[616] following various prior local acts,
+  provides that the viewers appointed to lay out the road shall
+  endeavor to procure releases from property owners and shall assess
+  the damages sustained, thus combining the laying out of roads and
+  the assessment of damages in one view, and obviating the necessity
+  of a separate view for damages, except in such counties as may have
+  local laws inconsistent with the Act of 1874. These proceedings seem
+  simple enough, but a glance at the hundreds of bitterly contested
+  cases would indicate otherwise. Every step, in fact, has been the
+  subject of protracted litigation and voluminous opinions, which must
+  be carefully studied at every stage of this intricate game of the law.
+
+  The general road law of 1836 conferred no authority on the quarter
+  sessions to grant a view to widen a road or street, but this
+  jurisdiction was conferred by the Act of May 8, 1850.[617]
+
+  As to the vacation of roads, the Act of 1836 provided that the
+  quarter sessions should have power, on petition, to change or vacate
+  the whole or any part of a public or private road which had become
+  inconvenient, useless or burdensome, and to vacate and annul a road
+  laid out, but not opened, on petition of a majority of the original
+  petitioners. No authority was given to vacate a road confirmed and
+  partly opened, but this defect was remedied by the Act of May 3,
+  1855,[618] which, however, expressly excepted state roads, authorized
+  by special law, and streets in incorporated cities and boroughs.
+  The Act of May 8, 1854,[619] conferred jurisdiction on the quarter
+  sessions to vacate any private or public lane, alley, road or highway
+  whenever the same, by reason of forming of town plots or otherwise,
+  had become useless to the public and those having lands bounding
+  thereon.
+
+  Whenever the whole or a part of a road is vacated, changed and
+  supplied by a new one, the old road cannot be closed until the road
+  laid out to supply its place is actually opened and made.[620]
+
+  With the dissolution of the provincial government in 1776 the
+  jurisdiction of the council in matters relating to the laying out
+  of highways came to an end and the constitution adopted in that
+  year conferred no special jurisdiction in such affairs upon its
+  successor, the supreme executive council. As a consequence, the
+  great roads through the sparsely inhabited sections of the state,
+  where the settlers were unwilling or unable to bear the expense of
+  constructing such highways as the public service required, were
+  authorized by special acts of the legislature. Such an act was that
+  of September 21, 1785,[621] directing the president, or in his
+  absence the vice-president, in council to appoint three freeholders
+  as commissioners to view, survey and lay out a state highway from
+  Miller’s Springs in Cumberland County to Pittsburg, of the breadth of
+  fifty feet, and to report to the president and council, who were to
+  confirm the same or order a review. The highway, when so established,
+  was to remain a state highway and the courses and distances to be
+  entered in the council book. An appropriation of £2000 was made for
+  this enterprise. This road was in part laid out, and confirmed by the
+  council November 24, 1787,[622] as far as Bedford, but a review was
+  ordered of the other part from Bedford to Pittsburg. By a resolution
+  of the assembly of November 21, 1788, the council was ordered to draw
+  for the expenses of the review, and, accordingly, by order of the
+  council March 14, 1789,[623] reviewers were appointed, whose report
+  was confirmed September 28, 1790.[624]
+
+  Many state roads were laid out by commissioners under similar acts
+  and it cannot be doubted that, in the early days, such proceedings
+  were of use where a road was desired through several counties, whose
+  conflicting demands it was difficult to reconcile. But in later years
+  the power of the legislature was greatly abused and the constitution
+  of 1874 has forbidden the passage of any local or special law
+  authorizing the laying out, opening or altering of highways.[625]
+
+  As for the local acts containing variations from the general road
+  law, it would be useless to attempt to summarize them. A list of
+  such acts, published in 3 Pennsylvania County Court Reports, 401,
+  covers eight pages of small type and is really appalling. And yet
+  this list does not include Philadelphia County, which, prior to
+  the consolidation in 1854, included, besides the city proper, six
+  boroughs, ten incorporated districts and thirteen townships, many of
+  which had their own highway systems.[626]
+
+  In Philadelphia, as previously stated, the principal streets were
+  laid down by the surveyor general on the original town plan and no
+  special power was conferred on the corporation to change that plan.
+  The Act of April 15, 1782,[627] declared that streets theretofore
+  opened to public use by private persons or directed to be laid out
+  by the supreme executive council should be considered and deemed
+  public highways. The Act of March 25, 1805, empowered the quarter
+  sessions, on petition, to grant views for the laying out and opening
+  of streets in Philadelphia. This act was supplied and repealed by the
+  general road law of 1836, which instituted a rather cumbersome method
+  of summoning road viewers and was in turn repealed and supplied
+  by the Act of March 16, 1866.[628] The streets in the districts
+  first incorporated were directed by local acts to be surveyed and
+  laid out by the commissioners of the districts, who were required
+  to return a general plan (in the case of Southwark, to the supreme
+  executive council; in the case of Spring Garden, to the quarter
+  sessions)[629], which, on approval, was recorded. The subsequent
+  opening of the streets, so laid out, was on petition of a stated
+  number of freeholders to the quarter sessions. This system, with
+  minor modifications, was extended to the other municipalities by
+  local acts which will be found in Price’s Index to Local Legislation
+  in Pennsylvania.
+
+  Section 27 of the Act of February 2, 1854,[630] by which the various
+  municipal corporations in Philadelphia County were consolidated into
+  one city, established a board of surveyors who, by an amendment
+  passed in the following year,[631] were directed to cause a survey of
+  the city plot to be completed. By the Act of June 6, 1871,[632] the
+  board of surveys is empowered to examine and confirm or reject all
+  plans of survey or revision of plans made under direction of councils.
+
+  Streets in Philadelphia may be opened either by ordinance of councils
+  or by the quarter sessions. Under the Act of April 21, 1855,[633]
+  councils may order any street laid down on the city plan to be
+  opened, whenever they deem the public exigency to demand it, giving
+  three months’ notice to the owner. This act, it has been said, was
+  intended only for special cases requiring speedy action, but, as
+  councils are the judges as to when the exigency exists, there is
+  no review of their decision, and, in practice, this is the usual
+  method pursued. The quarter sessions has concurrent jurisdiction, by
+  proceedings on petition, to order the opening of a street laid down
+  on the city plan, but the court will not appoint viewers when the
+  opening of the street is so inadvisable that confirmation of a report
+  favorable to an opening would be withheld.[634] When a plotted street
+  is opened by ordinance, a jury of six viewers is appointed by the
+  quarter sessions to assess the damages, and if the proceedings are
+  begun in that court, the same viewers pass on the damages as report
+  on the necessity for opening. The general Act of May 8, 1889,[635]
+  providing that juries of view shall consist of three persons, does
+  not apply to juries appointed by the quarter sessions of Philadelphia
+  nor is the jurisdiction of that court affected by the general Act of
+  May 16, 1891.[636] The juries appointed to assess damages are also to
+  assess benefits upon the properties whose value is enhanced by the
+  opening, which benefits are to be collected by the city as in other
+  cases of municipal assessments.
+
+  While the matter is of academic rather than practical interest,
+  it is curious to note that proceedings might still be brought
+  to open streets laid down on the plans of the old incorporated
+  districts under the special systems prevailing in those districts,
+  it having been held as late as 1878,[637] that the clause in the
+  Act of 1813 relating to the opening of streets in the district of
+  Spring Garden was still in force. It is highly improbable that
+  such a proceeding could be carried to a successful issue, as these
+  acts constitute the forgotten lore of a previous generation, and
+  the courts are increasingly inclined to leave such matters to the
+  municipal authorities who must devise the means of paying for public
+  improvements.
+
+  As to changes of grade in Philadelphia, in section 27 of the
+  consolidation act there was a proviso that compensation should be
+  made for damage to private property resulting from any changes in the
+  plans adopted under that section, but this was held to apply only to
+  alterations and revisions of grades previously established by the old
+  city or other municipalities before the consolidation. Hence, a paper
+  change made in a grade established after the consolidation gave the
+  land owner no right to proceed in the quarter sessions, his remedy
+  being under Article XVI, § 8 of the constitution of 1874 upon the
+  physical change. Prior to 1891 this remedy was enforceable by action
+  of trespass. Since the passage of the Act of May 16, 1891, petitions
+  for the assessment of damages for changes of grade are assigned to
+  the common pleas and three viewers appointed.[638]
+
+  Space will not permit a reference to many other interesting features
+  in Philadelphia’s local system and in the local systems of other
+  parts of the state. That of Pittsburg has had an important influence
+  on subsequent general legislation on the subject of streets in
+  municipalities. By a series of acts, beginning with that of January
+  6, 1864,[639] authority to lay out, open and widen streets in
+  Pittsburg was vested in councils, with very extensive powers in
+  the matter of assessing and collecting assessments for benefits.
+  These powers, having been exercised in an arbitrary and reckless
+  manner, were resisted by property owners, and certain acts framed
+  to strengthen the hands of the municipal authorities having been
+  declared unconstitutional, the whole matter was thrown into great
+  confusion.[640] To remedy this, a series of curative acts was
+  passed, concluding with the Act of May 16, 1891,[641] which, while
+  in form and intent a general act, is but a part of the series and
+  manifestly intended as a blanket supplement to the others, to supply
+  deficiencies and confirm doubtful powers under existing legislation.
+  This act was held applicable to municipal corporations generally,
+  but does not supersede previous legislation or confer new rights,
+  such as the right to damages for the vacation of a public highway
+  which, ordinarily, does not exist unless conferred by a special law.
+  By reason of its many practical features the Act of 1891 may in time
+  become the basis of a uniform system.
+
+  Boroughs incorporated under the general borough Act of April 3,
+  1851,[642] are authorized to ordain and lay out streets within the
+  borough limits, but in boroughs incorporated prior to the general
+  borough act and having no special provisions on the subject in their
+  charters, the jurisdiction to lay out streets is in the quarter
+  sessions under the general road law. The Act of 1891 may be used in
+  boroughs as an alternative method of proceeding.[643]
+
+  The counties of Erie and Bradford have under their local acts a
+  system radically different from the general road law.[644] By
+  these acts the authority to lay out roads is vested in the road
+  commissioners of the townships, who may be required to view a
+  proposed route for a road on petition of twelve citizens of the
+  township. From their action any person affected may appeal to a
+  justice of the peace, who, if he finds there is good cause of
+  complaint, issues a summons to six disinterested citizens as jurors,
+  and the decision of the justice and jurors is reviewable only by
+  _certiorari_.
+
+  Article XVI, § 8 of the constitution of 1874 secures an appeal from
+  any preliminary assessment of damages and a trial by jury whenever
+  private property is taken, injured or destroyed by a municipal or
+  other corporation, or an individual invested with the privilege
+  of taking private property for public use. The Act of June 13,
+  1874,[645] is intended to carry this provision into effect, where no
+  sufficient provision for a jury trial already existed. Counties and
+  townships having been held not to be municipal corporations within
+  the Act of 1874, it was provided by the Act of May 26, 1891,[646]
+  that an appeal might be taken to the common pleas by any party
+  aggrieved by the decree of any court of quarter sessions, confirming
+  the report of viewers appointed to assess damages for the opening,
+  condemning or change of grade of any street, road or highway, for a
+  trial of the question of damages by a jury according to the course of
+  common law.
+
+  As to damages, an allusion has been made to the effect of the six per
+  cent allowance for roads in original grants by the proprietors or
+  the commonwealth. The constitution of 1790 contained no restriction
+  on the taking of private property for public use except that in
+  Article IX, § 10, it was provided that no man’s property should be
+  taken or applied to public use “without just compensation.”[647] A
+  similar provision was contained in the constitution of 1838 and is
+  embodied in the bill of rights to the constitution of 1874 (Article
+  I, § 10). Besides this, Article VII, § 4, of the constitution of
+  1838 provided that the legislature should not invest any corporate
+  body or individual with the privilege of taking private property for
+  public use, without requiring compensation to be made or secured
+  to the owner of such property. Under this clause it was held that
+  there was no liability for consequential injuries.[648] To remedy
+  this the constitution of 1874, in Article XVI, § 8, added “injured
+  and destroyed” to the words “property taken,” and compensation
+  may now be recovered in the case of any property sufficiently
+  near the improvement to make the injury proximate, immediate and
+  substantial.[649]
+
+  In assessing damages in road cases, the measure of damages, stated in
+  the briefest possible terms, is the difference in the market value
+  of the property injured before and after the improvement. Into this
+  labyrinth, externally so fair, it would be inadvisable to penetrate,
+  except to remark that, as a practical question, it is extremely
+  difficult to obtain expert witnesses with sufficient powers of
+  generalization to state a difference in market values, as a psychic
+  phenomenon or unrelated idea, without betraying on cross examination
+  the inadmissible sources from which their estimates are derived.
+
+  In response to the demand for good roads, which of late years has
+  become more insistent, recent legislation has been directed to the
+  improvement of the condition of the public highways throughout the
+  state. A beginning was made in the Act of June 26, 1895,[650] which
+  authorized the county commissioners with the approval of the grand
+  jury and court of quarter sessions, to cause any particular main
+  highway to be improved, and for that purpose to re-locate, open,
+  straighten, widen or alter the same, the damage to property to be
+  assessed by viewers. The highway when so improved is a township or
+  borough road, the duty of maintaining which rests on the locality.
+  By an amendment of April 22, 1905,[651] the county commissioners are
+  required first to cause to be laid out, surveyed and adopted a system
+  of main thoroughfares, taking into consideration the needs of all
+  parts of the county, a plan of such system is to be approved and
+  recorded and thereafter all applications to the quarter sessions for
+  the improvement of a road under the act are to be restricted to the
+  development of such system.
+
+  By the Act of April 15, 1903,[652] a state highway department was
+  established, with a commissioner at its head, who is authorized to
+  co-operate with the counties and townships in the reconstruction and
+  improvement of the principal highways according to the plans adopted
+  by the department, the cost to be apportioned and borne, sixty-six
+  and two thirds per cent by the state, sixteen and two thirds per cent
+  each by the county and township, provided that amount appropriated
+  for state aid shall be apportioned among the counties according
+  to their road mileage. Six million five hundred thousand dollars
+  was appropriated to carry out this act, to be expended during six
+  years, ten per cent of which was to be set aside for the purpose of
+  maintenance where the conditions warranted the affording of state aid
+  for such purposes. All highways constructed or improved under the
+  provisions of this act are to be known as State Highways.
+
+  In passing rapidly over our system of road law apologies for the
+  omission of much that is of interest as well as of importance are
+  unnecessary. The subject has reached dimensions that can hardly be
+  contained in a text book of reasonable size. The extraordinary number
+  and variety of the statutes, with the decisions interpreting them,
+  might drive a Bentham to despair, but has caused less inconvenience
+  than might reasonably be expected, for the reason that the bar of
+  the state is an aggregation of county bars, each familiar with the
+  local practice and with few opportunities to test the disadvantages
+  of its own, or the advantages of rival systems. Consequently no bar
+  sentiment in favor of uniformity and simplicity has developed, and
+  while there is no inherent difficulty in drafting a code, or series
+  of codes, which, with the repeal of all local acts, would reduce the
+  subject to order, local prejudices and conservatism would probably
+  oppose such a movement. Minor reforms suggest themselves. The
+  assignment of road cases to the quarter sessions, in accordance with
+  colonial tradition, possesses no advantages, and is contrary to the
+  modern tendency to confine the activities of that court to criminal
+  matters.
+
+  As appeals from awards of viewers to the common pleas for a jury
+  trial are the rule rather than the exception, the proceedings should
+  have their inception in the latter court, as in change of grade
+  cases under the Act of 1891. There is no reason why six viewers
+  should be appointed to assess damages for the opening of streets
+  in Philadelphia, when three are sufficient in change of grade
+  cases, except to gladden the hearts and replenish the purses of the
+  additional jurors. The method of presenting testimony as to values
+  by expert witnesses is far from satisfactory, but that difficulty
+  belongs to the law of evidence and is not confined to road cases.
+
+  Time may improve our roads and our road laws, but for the present no
+  attorney delighting in the sharp points of the law need mourn for a
+  field for his talents.
+
+  Criticism is frequently leveled at the adventitious growth of our
+  law, at its want of system, its atavistic tendencies. But is this not
+  true of other sciences as well? Can we not detect traces of folklore
+  in religion, of magic in medicine? The deeper the foundations of a
+  science the more securely is it buttressed by the rubbish of the ages.
+
+  Communities do not grow according to preconceived plans, nor does
+  progress necessarily point to a prison lockstep march toward a
+  Utopia of automatic activities. But in law, as in other sciences,
+  there must be periodic revision of the accumulated material,
+  otherwise the principles of social conduct will be lost sight of in
+  a mass of unrelated and arbitrary rules. Statutes that are obsolete
+  should be repealed, conflicting statutes reconciled, and ambiguous
+  statutes restated. Local and special provisions that really serve no
+  useful purpose should, in the interest of orderly administration, be
+  replaced by general acts.
+
+  The present state of the statute book, representing as it does the
+  accumulations of two centuries, is far from creditable to a community
+  that claims to be progressive, and should be subjected to systematic
+  revision, if only for the sake of clearness. The responsibility for
+  this condition does not rest wholly upon the bar nor, in fact, upon
+  any one class in the community. It results from the rapidity of
+  our material development and the recurring necessity for immediate
+  legislation, coupled with a fallacious belief in new statutes as
+  a panacea for all the ills of the state. The disinclination to
+  revise what has already been enacted is in part the result of an
+  inherited conservatism, an unwillingness to tamper with what is
+  written although imperfectly understood. Purely selfish interests,
+  too, may unite to disfigure or destroy a well conceived plan for
+  the unification of a branch of the statute law, as happened at the
+  legislative session of 1909 when the proposed school law was cut to
+  pieces to satisfy conflicting local claims.
+
+  Since the days of Bradford and Franklin the commonwealth has relied
+  on private enterprise for compilations and digests of the statute
+  law. But these, however creditable to their editors, cannot take the
+  place of a systematic revision authorized by the state and ratified
+  by legislative enactment. The private editor cannot say that any law
+  is obsolete, he must print what he finds. If he undertakes to decide
+  that an act is repealed or supplied by implication and omits it from
+  his text, there is no assurance that his opinion will be endorsed by
+  the courts.
+
+  While road law, owing to its local development, is a glaring example
+  of the confusion that in time creeps into the statute book, it is by
+  no means the only title that requires attention. The laws relating to
+  corporations, municipalities, taxation, as well as other subjects,
+  are in need of revision and unification. The education of the public
+  to the economy of well drafted and properly classified statutes may
+  be slow, but a progressive bar should assist in that education and be
+  prepared to lend encouragement to any reasonable and practical plan
+  for a systematic analysis and rearrangement of our statute law.
+
+
+  FOOTNOTES:
+
+  [565] Woolwych on Ways, 6.
+
+  [566] England in the Eighteenth Century, Sidney, Vol. II, 3.
+
+  [567] England in the Eighteenth Century, Sidney, Vol. II, 6.
+
+  [568] Coke on Littleton, 56 A.
+
+  [569] Fitzherbert’s Natura Brevium, 226.
+
+  [570] _King_ v. _Warde_, Croke’s Reports (Charles I), 226 (1633).
+
+  [571] _Ex parte Armitage_, Ambler’s Reports, 294 (1755).
+
+  [572] III Blackstone’s Commentaries, 259; _Bonaparte_ v. _Camden and
+  Atlantic Railroad Co._, Baldwin’s Reports (U. S.), 205 (1830) at page
+  221.
+
+  [573] 13 George III, chapter 78, § 19; _Davison_ v. _Gill_, 1 East’s
+  Reports, 64 (1800).
+
+  [574] _Wroe_ v. _Harris_, 2 Washington’s Reports (Va.), 126 (1795);
+  _Gay_ v. _Caldwell_, Hardin’s Reports (Ky.), 63, (1806); _Mairs_
+  v. _Gallahue_, 9 Grattan’s Reports (Va.), 94 (1852); _Tracy_ v.
+  _Elizabethtown, L. & B. S. Railroad Co._, 78 Kentucky Reports, 309
+  (1880); _Schuylkill & S. N. Co._ v. _Decker_. 2 Watt’s Reports, 343,
+  (1834).
+
+  [575] Grotius, De Jure Belli et Pacis, Lib. III, chapter 20, § 7.
+
+  [576] Nicholls on Eminent Domain, 7.
+
+  [577] II New York Colonial Documents, 621; O’Callaghan’s Laws and
+  Ordinances of New Netherlands, 478.
+
+  [578] O’Callaghan’s Laws and Ordinances of New Netherlands, 219.
+
+  [579] O’Callaghan’s Laws and Ordinances of New Netherlands, 367.
+
+  [580] Laws of Massachusetts Colony (1672), 64; compare Laws of Colony
+  of New Plymouth (Edition of 1836), 64.
+
+  [581] Records of Court at Upland, 118, 192.
+
+  [582] Records of the Court of New Castle, 288.
+
+  [583] Records of the Court of New Castle, 364, also pages 143, 169,
+  197.
+
+  [584] Charter and Laws of Pennsylvania, 95.
+
+  [585] Charter and Laws of Pennsylvania, 467.
+
+  [586] _McClenachan_ v. _Curwen_, 6 Binney’s Reports, 509; 3 Yeates’s
+  Reports, 362 (1862).
+
+  [587] II Statutes at Large, 118.
+
+  [588] II Statutes at Large, 400.
+
+  [589] Pepper and Lewis’s Digest of Decisions, Vol. 18, col. 13567.
+
+  [590] _Perryville & Z. P. R. Co._ v. _Thomas_, 20 Pennsylvania
+  Reports 91 (1852).
+
+  [591] Hazard’s Annals of Pennsylvania, 555.
+
+  [592] _Philadelphia_ v. _Hinckley_, 9 Pennsylvania District Reports
+  125 (1900).
+
+  [593] Hazard’s Annals of Pennsylvania, 530.
+
+  [594] 1 Dallas’s Laws of Pennsylvania, Appendix 11.
+
+  [595] I Colonial Records, 136, 18, 3 mo. 1686.
+
+  [596] Charter and Laws of Pennsylvania, 139.
+
+  [597] I Colonial Records, 142, 3, 7 mo. 1686.
+
+  [598] I Colonial Records, 148, 19, 9 mo. 1686.
+
+  [599] I Colonial Records, 463, October 28, 1696.
+
+  [600] I Colonial Records, 467, October 31, 1696.
+
+  [601] I Colonial Records, 402, February, 13, 1693-4.
+
+  [602] I Colonial Records, 441, May 25, 1695.
+
+  [603] Charter and Laws of Pennsylvania, 285.
+
+  [604] II Statutes at Large, 68.
+
+  [605] IV Statutes at Large, 296.
+
+  [606] _McClenachan_ v. _Curwen_, 6 Binney’s Reports, 509; s. c. 3
+  Yeates’s Reports 362 (1802).
+
+  [607] IV Colonial Records, 247, October 7, 1737.
+
+  [608] IV Colonial Records, 181, March 24, 1736-7.
+
+  [609] IV Colonial Records, 283, March 22, 1737-8.
+
+  [610] IV Colonial Records, 287, May 15, 1738.
+
+  [611] _King’s Road_, 1 Dallas’s Reports 11 (1764). _In re Road in
+  Chester County_, Supreme Court Docket No. 4, page 37, September
+  Term, 1764, on _certiorari_ the order is reversed “for refusing to
+  grant a review, and reviewers appointed.” Is this the same case?
+  Lewis Gordon, writing to Richard Peters, March 18, 1758, signified
+  his intention to apply for a review of a road, but observed that the
+  practice was declaimed against, except where fraud appeared. VII
+  Pennsylvania Archives (2 Series), 254.
+
+  [612] 3 Smith’s Laws of Pennsylvania, 521, § 22. See also § 25 of the
+  act of June 13, 1836, P. L. 551.
+
+  [613] P. L. 551.
+
+  [614] Act of May 8, 1889, P. L. 129.
+
+  [615] Section 5 of the act fixed the maximum breadth of a public road
+  at 50 feet and of a private road at 25 feet. The maximum breadth of a
+  public road is fixed at 80 feet by the act of June 7, 1907, P. L. 452.
+
+  [616] P. L. 164, § 1.
+
+  [617] P. L. 713; _Church Road_, 5 Watts & Sergeant’s Reports, 200
+  (1843).
+
+  [618] P. L. 422; _Greenwich Township Road_, 11 Pennsylvania Reports,
+  186 (1849).
+
+  [619] P. L. 645.
+
+  [620] _Bridgeport & N. C. T. Road_, 171 Pennsylvania Reports, 312
+  (1895).
+
+  [621] 2 Dallas’s Laws of Pennsylvania, 389.
+
+  [622] 15 Colonial Records 331, November 24, 1787.
+
+  [623] 16 Colonial Records 26, March 14, 1789.
+
+  [624] 16 Colonial Records 466, September 28, 1790.
+
+  [625] Constitution of Pennsylvania, 1874, Article III, § 7.
+
+  [626] Addick’s Philadelphia Highway Acts.
+
+  [627] 2 Smith’s Laws of Pennsylvania, 48, § 10.
+
+  [628] P. L. 224.
+
+  [629] Act of September 29, 1787, 2 Smith’s Laws of Pennsylvania, 435;
+  Act of March 22, 1813; 6 Smith’s Laws of Pennsylvania, 37.
+
+  [630] P. L. 21.
+
+  [631] Act of April 21, 1855, P. L. 264, § 4.
+
+  [632] P. L. 1353. _In re Plan 166_, 143 Pennsylvania Reports, 414
+  (1891).
+
+  [633] P. L. 264, § 7, _Large_ v. _Philadelphia_, 35 Pennsylvania
+  Reports, 231 note (1859).
+
+  [634] _Twenty-Eighth Street_, 102 Pennsylvania Reports, 140 (1883).
+
+  [635] P. L. 129.
+
+  [636] P. L. 75; _Orthodox Street_, 1 Pennsylvania District Reports,
+  37 (1892).
+
+  [637] _Parrish Street_, 12 Philadelphia Reports, 638 (1878).
+
+  [638] _In re Plan 166_, 143 Pennsylvania Reports, 414 (1891).
+
+  [639] P. L. 1131.
+
+  [640] _Wyoming Street_, 137 Pennsylvania Reports, 494 (1891);
+  _Pittsburg’s Petition_, 138 Pennsylvania Reports, 40 (1891); _Donley_
+  v. _Pittsburg_, 147 Pennsylvania Reports, 348 (1892).
+
+  [641] P. L. 75; _Howell_ v. _Morrisville Borough_, 212 Pennsylvania
+  Reports, 349 (1905).
+
+  [642] P. L. 230.
+
+  [643] _Dorrance_ v. _Dorrancetown Borough_, 181 Pennsylvania Reports,
+  164 (1897).
+
+  [644] Acts of April 13, 1843, P. L. 218; April 5, 1844, P. L. 200;
+  March 26, 1846, P. L. 175; April 15, 1857, P. L. 205. See Act of July
+  2, 1901, P. L. 607, § 2.
+
+  [645] P. L. 283.
+
+  [646] P. L. 116; _Pusey’s Appeal_, 83 Pennsylvania Reports, 67 (1877).
+
+  [647] Pepper and Lewis’s Digest of Decisions, Vol. 18, col. 31570.
+
+  [648] _O’Connor_ v. _Pittsburg_, 18 Pennsylvania Reports, 187 (1851).
+
+  [649] _Mellor_ v. _Philadelphia_, 160 Pennsylvania Reports, 614
+  (1894); _Melon Street_, 182 Pennsylvania Reports, 397 (1897).
+
+  [650] P. L. 336.
+
+  [651] P. L. 290, since amended by the Act of May 13, 1909, P. L. 527.
+
+  [652] P. L. 188, supplied by the Act of May 1, 1905, P. L. 318.
+
+
+
+
+  APPENDIX.
+
+  ARTICLE V OF THE CONSTITUTION OF PENNSYLVANIA.
+
+  In effect January 1, 1874.
+
+
+  THE JUDICIARY.
+
+
+  The Courts.
+
+  Section 1. The judicial power of this Commonwealth shall be vested
+  in a Supreme Court, in courts of Common Pleas, courts of oyer and
+  terminer and general jail delivery, courts of quarter sessions of the
+  peace, orphans’ courts, magistrates’ courts, and in such other courts
+  as the General Assembly may from time to time establish.
+
+
+  Supreme Court--Tenure of Judges--Chief Justice.
+
+  Section 2. The Supreme Court shall consist of seven judges who shall
+  be elected by the qualified electors of the State at large. They
+  shall hold their offices for the term of twenty-one years, if they
+  so long behave themselves well, but shall not be again eligible. The
+  judge whose commission shall first expire shall be chief justice, and
+  thereafter each judge whose commission shall first expire shall in
+  turn be chief justice.
+
+
+  Supreme Court.
+
+  Section 3. The jurisdiction of the Supreme Court shall extend over
+  the State, and the judges thereof shall, by virtue of their offices,
+  be justices of oyer and terminer and general jail delivery in the
+  several counties; they shall have original jurisdiction in cases
+  of injunction where a corporation is a party defendant, of habeas
+  corpus, of mandamus to courts of inferior jurisdiction, and of quo
+  warranto as to all officers of the Commonwealth whose jurisdiction
+  extends over the State, but shall not exercise any other original
+  jurisdiction; they shall have appellate jurisdiction by appeal,
+  certiorari or writ of error in all cases, as is now or may hereafter
+  be provided by law.
+
+
+  Common Pleas Courts.
+
+  Section 4. Until otherwise directed by law, the courts of common
+  pleas shall continue as at present established, except as herein
+  changed; not more than four counties shall, at any time, be included
+  in one judicial district organized for said courts.
+
+
+  Judicial Districts--Associate Judges.
+
+  Section 5. Whenever a county shall contain forty thousand inhabitants
+  it shall constitute a separate judicial district, and shall elect
+  one judge learned in the law; and the General Assembly shall provide
+  for additional judges, as the business of the said districts may
+  require. Counties containing a population less than is sufficient to
+  constitute separate districts shall be formed into convenient single
+  districts, or, if necessary, may be attached to contiguous districts
+  as the General Assembly may provide. The office of associate judge,
+  not learned in the law, is abolished in counties forming separate
+  districts; but the several associate judges in office when this
+  Constitution shall be adopted shall serve for their unexpired terms.
+
+
+  Common Pleas Courts in Philadelphia and Allegheny Counties.
+
+  Section 6. In the counties of Philadelphia and Allegheny all the
+  jurisdiction and powers now vested in the district courts and courts
+  of common pleas, subject to such changes as may be made by this
+  Constitution or by law, shall be in Philadelphia vested in four,
+  and in Allegheny in two, distinct and separate courts of equal and
+  co-ordinate jurisdiction, composed of three judges each; the said
+  courts in Philadelphia shall be designated respectively as the court
+  of common pleas number one, number two, number three and number four,
+  and in Allegheny as the court of common pleas number one and number
+  two, but the number of said courts may be by law increased, from
+  time to time, and shall be in like manner designated by successive
+  numbers; the number of judges in any of said courts, or in any county
+  where the establishment of an additional court may be authorized by
+  law, may be increased from time to time, and whenever such increase
+  shall amount in the whole to three, such three judges shall compose a
+  distinct and separate court as aforesaid, which shall be numbered as
+  aforesaid. In Philadelphia all suits shall be instituted in the said
+  courts of common pleas without designating the number of said court,
+  and the several courts shall distribute and apportion the business
+  among them in such manner as shall be provided by rules of court,
+  and each court, to which any suit shall be thus assigned, shall have
+  exclusive jurisdiction thereof, subject to change of venue, as shall
+  be provided by law. In Allegheny each court shall have exclusive
+  jurisdiction of all proceedings at law and in equity, commenced
+  therein, subject to change of venue as may be provided by law.
+
+
+  Prothonotary of Philadelphia--Court Dockets.
+
+  Section 7. For Philadelphia there shall be one prothonotary’s office,
+  and one prothonotary for all said courts to be appointed by the
+  judges of said courts, and to hold office for three years, subject to
+  removal by a majority of the said judges; the said prothonotary shall
+  appoint such assistants as may be necessary and authorized by said
+  courts; and he and his assistants shall receive fixed salaries, to be
+  determined by law and paid by said county; all fees collected in said
+  office, except such as may be by law due to the Commonwealth, shall
+  be paid by the prothonotary into the county treasury. Each court
+  shall have its separate dockets, except the judgment docket which
+  shall contain the judgments and liens of all the said courts, as is
+  or may be directed by law.
+
+
+  Criminal Courts in Philadelphia and Allegheny Counties.
+
+  Section 8. The said courts in the counties of Philadelphia and
+  Allegheny, respectively, shall, from time to time, in turn detail one
+  or more of their judges to hold the courts of oyer and terminer and
+  the courts of quarter sessions of the peace of said counties, in such
+  manner as may be directed by law.
+
+
+  Common Pleas Judges to be Justices of the Peace.
+
+  Section 9. Judges of the courts of common pleas learned in the law
+  shall be judges of the courts of oyer and terminer, quarter sessions
+  of the peace and general jail delivery, and of the orphans’ court,
+  and within their respective districts shall be justices of the peace
+  as to criminal matters.
+
+
+  Judges of Common Pleas Courts may Issue Writs of Certiorari.
+
+  Section 10. The judges of the courts of common pleas, within their
+  respective counties, shall have power to issue writs of _certiorari_
+  to justices of the peace and other inferior courts not of record, and
+  to cause their proceedings to be brought before them, and right and
+  justice to be done.
+
+
+  Justices of the Peace and Aldermen.
+
+  Section 11. Except as otherwise provided in this Constitution,
+  justices of the peace or aldermen shall be elected in the several
+  wards, districts, boroughs and townships at the time of the election
+  of constables by the qualified electors thereof, in such manner as
+  shall be directed by law, and shall be commissioned by the Governor
+  for a term of five years. No township, ward, district or borough
+  shall elect more than two justices of the peace or aldermen without
+  the consent of a majority of the qualified electors within such
+  township, ward or borough; no person shall be elected to such office
+  unless he shall have resided within the township, borough, ward
+  or district for one year next preceding his election. In cities
+  containing over fifty thousand inhabitants, not more than one
+  alderman shall be elected in each ward or district.
+
+
+  Magistrates in Philadelphia.
+
+  Section 12. In Philadelphia there shall be established, for each
+  thirty thousand inhabitants, one court, not of record, of police and
+  civil causes, with jurisdiction not exceeding one hundred dollars;
+  such courts shall be held by magistrates whose term of office
+  shall be five years, and they shall be elected on general ticket
+  by the qualified voters at large; and in the election of the said
+  magistrates no voter shall vote for more than two-thirds of the
+  number of persons to be elected when more than one are to be chosen;
+  they shall be compensated only by fixed salaries, to be paid by said
+  county; and shall exercise such jurisdiction, civil and criminal,
+  except as herein provided, as is now exercised by aldermen, subject
+  to such changes, not involving an increase of civil jurisdiction or
+  conferring political duties, as may be made by law. In Philadelphia
+  the office of alderman is abolished.
+
+
+  Fees, Fines and Penalties.
+
+  Section 13. All fees, fines and penalties in said courts shall be
+  paid into the county treasury.
+
+
+  Appeals from Summary Convictions.
+
+  Section 14. In all cases of summary conviction in this Commonwealth,
+  or of judgment in suit for a penalty before a magistrate, or court
+  not of record, either party may appeal to such court of record as
+  may be prescribed by law, upon allowance of the appellate court or
+  judge thereof upon cause shown.
+
+
+  Election of Judges--Removal.
+
+  Section 15. All judges required to be learned in the law, except
+  the judges of the Supreme Court, shall be elected by the qualified
+  electors of the respective districts over which they are to preside,
+  and shall hold their offices for the period of ten years, if they
+  shall so long behave themselves well; but for any reasonable cause,
+  which shall not be sufficient ground for impeachment, the Governor
+  may remove any of them on the address of two-thirds of each House of
+  the General Assembly.
+
+
+  Voting for Judge of Supreme Court.
+
+  Section 16. Whenever two judges of the Supreme Court are to be chosen
+  for the same term of service each voter shall vote for one only,
+  and when three are to be chosen he shall vote for no more than two;
+  candidates highest in vote shall be declared elected.
+
+
+  Priority of Judges’ Commissions.
+
+  Section 17. Should any two or more judges of the Supreme Court, or
+  any two or more judges of the court of common pleas for the same
+  district, be elected at the same time, they shall, as soon after the
+  election as convenient, cast lots for priority of commission, and
+  certify the result to the Governor, who shall issue their commissions
+  in accordance therewith.
+
+
+  Compensation of Judges.
+
+  Section 18. The judges of the Supreme Court and the judges of the
+  several courts of common pleas, and all other judges required to be
+  learned in the law, shall at stated times receive for their services
+  an adequate compensation, which shall be fixed by law, and paid
+  by the State. They shall receive no other compensation, fees or
+  perquisites of office for their services from any source, nor hold
+  any other office of profit under the United States, this State or any
+  other State.
+
+
+  Residences of Judges.
+
+  Section 19. The judges of the Supreme Court, during their continuance
+  in office, shall reside within this Commonwealth; and the other
+  judges, during their continuance in office shall reside within the
+  district for which they shall be respectively elected.
+
+
+  Chancery Powers of Common Pleas Courts.
+
+  Section 20. The several courts of common pleas, besides the powers
+  herein conferred, shall have and exercise within their respective
+  districts, subject to such changes as may be made by law, such
+  chancery powers as are now vested by law in the several courts of
+  common pleas of this Commonwealth, or as may hereafter be conferred
+  upon them by law.
+
+
+  Supreme Court--Extra Judicial Duties---Court of Nisi Prius Abolished.
+
+  Section 21. No duties shall be imposed by law upon the Supreme Court
+  or any of the judges thereof except such as are judicial, nor shall
+  any of the judges thereof exercise any power of appointment except as
+  herein provided. The court of _nisi prius_ is hereby abolished, and
+  no court of original jurisdiction to be presided over by any one or
+  more of the judges of the Supreme Court shall be established.
+
+
+  Orphans’ Courts--Auditing of Accounts--Registers’ Courts Abolished.
+
+  Section 22. In every county wherein the population shall exceed one
+  hundred and fifty thousand the General Assembly shall, and in any
+  other county may, establish a separate orphans’ court to consist of
+  one or more judges who shall be learned in the law, which court shall
+  exercise all the jurisdiction and powers now vested in or which may
+  hereafter be conferred upon the orphans’ courts, and thereupon the
+  jurisdiction of the judges of the court of common pleas within such
+  county, in orphans’ court proceedings, shall cease and determine. In
+  any county in which a separate orphans’ court shall be established,
+  the register of wills shall be clerk of such court and subject to its
+  directions in all matters pertaining to his office; he may appoint
+  assistant clerks, but only with the consent and approval of said
+  court. All accounts filed with him as register or as clerk of the
+  said separate orphans’ court shall be audited by the court without
+  expense to parties, except where all parties in interest in a pending
+  proceeding shall nominate an auditor whom the court may, in its
+  discretion, appoint. In every county orphans’ courts shall possess
+  all the powers and jurisdiction of a registers’ court, and separate
+  registers’ courts are hereby abolished.
+
+
+  Style of Process.
+
+  Section 23. The style of all process shall be “The Commonwealth of
+  Pennsylvania.” All prosecutions shall be carried on in the name and
+  by the authority of the Commonwealth of Pennsylvania, and conclude
+  “against the peace and dignity of the same.”
+
+
+  Right of Appeal in Criminal Cases.
+
+  Section 24. In all cases of felonious homicide, and in such other
+  criminal cases as may be provided for by law, the accused after
+  conviction and sentence may remove the indictment, record and all
+  proceedings to the Supreme Court for review.
+
+
+  Vacancies in Court--How Filled.
+
+  Section 25. Any vacancy happening by death, resignation or
+  otherwise, in any court of record, shall be filled by appointment
+  by the Governor, to continue till the first Monday of January next
+  succeeding the first general election which shall occur three or more
+  months after the happening of such vacancy.
+
+
+  Laws Relating to Courts to be Uniform--Special Courts Forbidden.
+
+  Section 26. All laws relating to courts shall be general and of
+  uniform operation, and the organization, jurisdiction and powers of
+  all courts of the same class or grade, so far as regulated by law,
+  and the force and effect of the process and judgments of such courts,
+  shall be uniform; and the General Assembly is hereby prohibited
+  from creating other courts to exercise the powers vested by this
+  Constitution in the judges of the courts of common pleas and orphans’
+  courts.
+
+
+  Submission of Issues of Fact.
+
+  Section 27. The parties, by agreement filed, may in any civil case
+  dispense with trial by jury, and submit the decision of such case to
+  the court having jurisdiction thereof, and such court shall hear and
+  determine the same; and the judgment thereon shall be subject to writ
+  of error as in other cases.
+
+
+
+
+  INDEX.
+
+
+  “Active,” case of the, 127
+
+  Acts of assembly:
+    disallowed, 76, 82, 93, 97, 99, 170, 175, 177, 229, 231, 249
+    submission to king in council, 50, 82
+
+  _Ad quod damnum_, 243
+
+  Addison, Alexander:
+    characteristics of, 141
+    impeached, 142
+
+  Admiralty:
+    chancery jurisdiction in, 181
+    federal court of, 128
+    provincial council as court of, 68
+    state court of, 126
+    vice admiralty court established, 69
+
+  Affirmations, 85, 86
+
+  Allen, William, 108, 190
+
+  Amsterdam, colony of the city of, 5
+
+  Andros, Governor, 23, 164, 216
+
+  Appeals:
+    from Dutch courts, 7
+    to high court of errors, 128, 134, 136
+    to privy council, 71, 82, 84
+    to provincial council, 65
+    under the Duke of York, 17, 29
+
+  Arbitration, 15, 48
+
+  Assheton, Robert, 113, 175, 231
+
+  Assizes, court of, 16, 29, 163
+
+  Attachment, 37
+
+  Attorney general, 113
+
+  Attorneys-at-law:
+    early bar, 110-115
+    examinations, 119
+    students, 117
+    subsequent to Revolution, 154
+
+
+  Bar (see Attorneys-at-law)
+
+  Binney, Horace, 155, 208
+
+  Blackstone’s Commentaries, 119
+
+  Brackenridge, Judge H. H., 142, 147
+
+  Bradford, Judge William, 131
+
+  Butler county, first court held in, 151
+
+
+  Carr, Sir Robert, 9, 11
+
+  Censors, council of, 124, 129
+
+  Chancery, court of, 179, 193
+
+  Charles II, 40
+
+  Charter:
+    of privileges of 1701, 73, 184
+    to William Penn, 41
+
+  Chew, Benjamin, 108, 121, 134
+
+  Clark, William, 218
+
+  Circuit courts, 135, 138
+
+  Codes, colonial tendency toward, 10, 14
+
+  Commission to revise the civil code:
+    appointment, 155
+    report on equity jurisdiction, 196
+    on orphans’ court, 235
+
+  Commissions of judges, 102
+
+  Common law, as a subsidiary system in the colonies, 13, 103
+
+  Conditional verdict, 28, 208
+
+  Constable, 19
+
+  Constitution of 1874, judiciary article, 275
+
+  Constitutional convention:
+    of 1776, 122, 123
+    of 1790, 132
+
+  Coroner, 73
+
+  Counties, Penn’s division, 47
+
+  Court house:
+    Philadelphia, 108
+    Westmoreland county, 151
+
+  Criminal law, 52, 56, 86, 90, 131
+
+
+  Deal court, 35
+
+  Decedents’ debts, sale of land for payment of, 226
+
+  Decedents’ estates (see Orphans’ court and Registers’ court)
+
+  Dickinson, John, 117, 120, 129, 130
+
+  Disorder, complaints against, 88
+
+  District court of Philadelphia, 137
+
+  Divorce:
+    acts of 1700 and 1705, 100
+    in the Dutch period, 6
+    private acts, 101
+    under Duke of York’s laws, 99
+
+  Doan, Aaron, outlawry of, 130
+
+  Ducking-stool, 89
+
+  Duke of York (James II):
+    proprietorship of, 9
+    conveys territory to Penn, 41
+
+  Duke of York’s laws, 10, 23, 25, 162, 216
+
+  Dutch:
+    court on the Delaware, 3
+    West India Company, 3, 5
+
+
+  Ejectment, 76, 204
+
+  Eminent domain, 245
+
+  English:
+    citation of cases forbidden, 150
+    conquest of New Netherlands, 9
+    statutes in force, 13, 14, 103
+
+  Equity jurisprudence:
+    colonial difficulties, 159
+    common-law forms, 190, 201
+    confined to Supreme Court, 176
+    constitution of 1776, 192
+    constitution of 1790, 194
+    county courts, 167
+    court of assizes, 163
+    Keith’s court, 177, 179, 181
+    petitions against, 184
+    private acts, 191
+    provincial council, 166
+    recommendations of commissioners in 1835, 196
+    resolutions of general assembly, 185
+    rules of Supreme Court, 200
+    Welsh courts as a precedent, 172, 174
+
+  Erie and Bradford counties:
+    road system, 267
+
+  Evans, Governor, 80
+
+  Examinations for the bar, 119
+
+  Execution, in civil cases, 55
+
+  Executions, public, 131
+
+  Executive clemency, 131
+
+
+  Finne, Long, 31
+
+  Fletcher, Benjamin, 50, 222
+
+  Frame of government, 42
+
+  Francis, Tench, 115
+
+  Franklin, Benjamin, 107, 129
+
+  Friends, society of:
+    affirmations, 85
+    arbitration, 49
+
+  Fundamental laws, 45
+
+
+  Gambling contract, 39
+
+  Gibson, John Bannister, 153
+
+  Golf, 246
+
+  Gookin, Governor, 81, 220
+
+  Gordon, Patrick, 183, 185
+
+  Grand jury, 90
+
+  Guest, Chief Justice, 171
+
+
+  Hamilton, Andrew, 115, 188, 189
+
+  High court of errors and appeals, 128, 134, 136
+
+  Highways (see Roads)
+
+  Holme, Thomas, 250
+
+  Hopkinson, Francis, 119, 127
+
+
+  Impeachment:
+    Judge Addison, 142
+    Judge Hopkinson, 127
+    Chief Justice Moore, 59
+    Supreme Court justices, 143
+
+
+  Jacquet, Jean Paul, 3
+
+  James II (see Duke of York)
+
+  Jealousy of the courts, 139
+
+  Jones, Joel, 155
+
+  Judges:
+    commissions, 102
+    fined for giving wrong judgment, 64
+    fined for non-attendance, 47
+    fined for smoking in court, 53
+    forbidden to cite English cases, 150
+    required to file opinions in writing, 136
+    salaries, 104, 134
+    term of office, 98, 123, 133, 149
+
+  Judgments, entered in kind, 36
+
+  Judicial committee of privy council, 85
+
+  Judicial districts, 7, 133
+
+  Judiciary:
+    constitution of 1776, 123
+    constitution of 1790, 132
+    constitution of 1874, 275
+
+  Jury:
+    of seven, 20
+    trial without, 55
+    viewers, 253, 255, 260
+
+  Justices of peace, civil jurisdiction, 105, 157
+
+
+  Keith, Sir William:
+    dispute with collector of customs, 96
+    establishes court of chancery, 177
+    restores English criminal law, 86
+
+  Kinsey, John, 107, 180, 183
+
+
+  La Grange, Arnoldus, 27
+
+  Land:
+    liable for debts, 28, 226
+    six per cent allowance for roads, 249
+
+  Laussat, Anthony, 196
+
+  Lawyers (see Attorneys-at-law)
+
+  Liquor licenses, 18
+
+  Lloyd, David, 70, 75, 79, 92, 107, 112, 172, 177, 189
+
+  Logan, James, 49, 79, 107, 180, 185, 187
+
+
+  McKean, Thomas, 125, 139, 152, 190
+
+  Mann, Abraham, 30, 61, 113
+
+  Markham, William, 42, 69
+
+  Moll, John, 30, 46
+
+  Mompesson, Roger, 78, 104
+
+  Moore, John, 96
+
+  Moore, Nicholas, 59
+
+  Mortgage, foreclosure of, 38
+
+
+  Negligence, 38
+
+  Negroes, court for trial of, 105
+
+  New Amstel, 5, 7, 9
+
+  New Castle, 22, 47
+
+  New Netherlands, 9
+
+  Nicholls, Governor, 11, 12
+
+  _Nisi prius_, 129, 135
+
+
+  Oaths, judicial, 86
+
+  Ordinance, courts established by, 80
+
+  Orphans’ court, 57, 82, 225, 230, 236, 239
+    early practice, 231
+    equity jurisdiction, 232
+    of London, 223
+    report of commissioners to revise civil code, 235
+
+  Outlawry, process regulated, 131
+
+
+  Pappegoya, Jeuffro Armgart, 25
+
+  Pardons, 87, 131
+
+  Partition, 182, 199
+
+  Passmore, Thomas, 143
+
+  Peacemakers, 48
+
+  Penn, William, 40, 42, 46, 48, 51, 74, 166, 226, 248, 250
+
+  Petit treason, 91
+
+  Philadelphia, 108, 138, 154, 250
+
+  Piracy, 69, 71
+
+  Pittsburg, 136, 138, 266
+
+  President Judge, 105
+
+  Printz, John, 2, 25
+
+  Prisons, 56
+
+  Privy council appeals, 72, 84
+
+  Probate, 214, 222
+
+  Procedure:
+    under Duke of York, 19, 29, 35
+    under William Penn, 44, 45, 49, 52, 54
+
+  Provincial council:
+    admiralty jurisdiction, 68
+    as principal court, 62-67
+    equity jurisdiction, 169, 178
+    road matters, 251
+
+  Provincial court (see Supreme Court), 57, 67
+
+
+  Quakers:
+    affirmations, 85, 86
+    arbitration, 48
+    Massachusetts laws against, 12
+
+  Quarry, Robert, 69
+
+
+  Rawle, William, 155
+
+  Reed, Joseph, 117, 129
+
+  Register general, 217
+
+  Register’s court, 220, 236, 239
+
+  Reviews of provincial roads, 258
+
+  Revision of civil code, 155, 197, 236, 259
+
+  Roads:
+    act of 1700, 254
+    act of 1836, 259
+    borough streets, 267
+    classes of, 256
+    consequential damages, 268
+    in England in eighteenth century, 241
+    in the New Netherlands, 245
+    jurisdiction of provincial council, 251
+    local acts, 262
+    measure of landowners’ damages, 269
+    Penn’s provisions, 248
+    recent legislation, 269
+    reviews, 258
+    state roads, 261
+    streets in Philadelphia, 263
+    streets in Pittsburg, 266
+    under the Duke of York, 247
+    vocation, 260
+    widening, 260
+
+  Robinson, Patrick, 61, 113, 219
+
+  Ross, George, 125
+
+  Rules of court, 53
+
+
+  Schepens, 5
+
+  Schout, 5
+
+  Scolds, common, 89
+
+  Sessions, courts of, 17
+
+  Set-off, 3, 54, 208
+
+  Shippen, Edward, 129, 141
+
+  Six per cent allowance for roads, 249
+
+  Slander, 35
+
+  Stocks, 54
+
+  Streets (see Roads)
+
+  Superior Court, 157
+
+  Supreme Court, 80, 94, 98, 136, 137, 138, 176
+
+  Suspension of courts during Revolution, 125
+
+  Swedish court, 2
+
+
+  Tilghman, Edward, 118, 152
+
+  Tilghman, William, 152
+
+  Tinicum Island, 25
+
+  Town court, 19
+
+  Treason trials, 126
+
+  Trials in banc abolished, 136
+
+
+  Upland court, 7, 34
+
+
+  Verdict, conditional, 28, 208
+
+
+  Western Pennsylvania, primitive courts of, 151
+
+  Westmoreland county, 151
+
+  Wharton, T. I., 155
+
+  White, John, 113
+
+  Whorekill, 7, 35, 47
+
+  Wilson, James, 126, 193
+
+  Witchcraft, 67
+
+
+  Yeates, Jasper, 148
+
+
+  Zenger, Peter, 116
+
+       *       *       *       *       *
+
+
+
+
+  Transcriber’s note
+
+
+  Minor punctuation errors have been changed without notice except for
+  quotes. Hyphenation and diacritics were standardized.
+
+  Page number references in the index are as published in the original
+  publication and have not been checked for accuracy.
+
+  On page 238 there was a footnote anchor, but there was no
+  corresponding footnote. The anchor has been removed.
+
+  Spelling was retained (particularly in the quotes) as in the original
+  except for the following changes:
+
+  Page 40: “of York’s administrat on”      “of York’s administration”
+  Page 44: “administratoin of justice”     “administration of justice”
+  Page 77: “administration f justice in”   “administration of justice”
+  Page 120: “in a re xamination of his”    “in a reexamination of his”
+  Page 139: “were suffi- to awe”           “were sufficient to awe”
+  Page 152: “Pennslyvania litigation was”  “Pennsylvania litigation was”
+  Page 164: “Estate, to makegood”          “Estate, to make good”
+  Page 259: “prov ded the application”     “provided the application”
+  Page 268: “A smiliar provision was”      “A similar provision was”
+
+
+  Footnote 96: “Penn’s first dlan”           “Penn’s first plan”
+  Footnote 361: “VII Pensnylvania Archives”  “VII Pennsylvania Archives”
+  Footnote 513: “and Laws of Pennsyvlania”   “and Laws of Pennsylvania”
+
+
+*** END OF THE PROJECT GUTENBERG EBOOK 78802 ***
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+<body>
+<div style='text-align:center'>*** START OF THE PROJECT GUTENBERG EBOOK 78802 ***</div>
+
+
+
+
+<h1>
+THE EARLY COURTS<br>
+OF<br>
+PENNSYLVANIA</h1>
+
+
+<p class="ph4">BY</p>
+
+<p class="ph3">WILLIAM H. LOYD</p>
+
+<p class="ph4">OF THE PHILADELPHIA BAR; GOWEN FELLOW IN THE LAW<br>
+SCHOOL OF THE UNIVERSITY OF PENNSYLVANIA</p>
+
+
+<p class="ph3">BOSTON<br>
+THE BOSTON BOOK<br>
+1910</p>
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+<p class="ph4"><span class="smcap">Copyright, 1910</span><br>
+<span class="smcap">By</span> THE UNIVERSITY OF PENNSYLVANIA</p>
+</div>
+
+
+<p class="ph4"><i>The Riverdale Press, Brookline, Boston, Mass.</i></p>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+  <p class="ph2">
+    UNIVERSITY OF PENNSYLVANIA<br>
+    LAW SCHOOL SERIES
+    </p>
+  <p class="ph3">
+    NUMBER 2
+  </p>
+</div>
+
+
+<p>Each volume in this series has been made a
+publication of the School of Law of the
+University of Pennsylvania, by a vote of the
+Law Faculty. The authors are connected with
+the school as members of the teaching force,
+fellows, or graduate students.</p>
+
+<p>The object of the University is to promote
+the scientific study of legal problems—historical
+and practical, and to assist in the improvement
+of the law.</p>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+  <p>
+    “<i>Yes, you have shown us a representation of freedom.
+    True. But you are content with it in a world that moves
+    by computation some considerable sum upward of sixty
+    thousand miles an hour.</i>”
+  </p>
+</div>
+
+<p class="author">
+  <span class="smcap">Dr. Julius von Karsteg to Harry Richmond</span>
+</p>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_v">[Pg v]</span></p>
+
+
+  <h2 class="nobreak" id="PREFACE">
+    PREFACE.
+  </h2>
+</div>
+
+
+<p>This account of the early courts of Pennsylvania
+is the outcome of some lectures delivered
+as an auxiliary course in the Law School of the
+University of Pennsylvania. Their purpose was
+to describe briefly the establishment and development
+of the courts in the colonial period.
+That our ancestors should have expressed such
+profound admiration for the common law while
+deviating so widely from it in practice, must have
+puzzled many who have not learned to put a
+true value upon the flights of forensic oratory.
+History alone supplies the key, and colonial
+legal history has not received the attention it
+deserves. The absence of reports, the destruction
+of many records and the inaccessibility
+of those that have been preserved, have all
+contributed to discourage work in a field usually
+abandoned to the antiquarian. But as American
+law increases in importance, the story of its
+obscure beginnings will require careful consideration.</p>
+
+<p><span class="pagenum" id="Page_vi">[Pg vi]</span></p>
+
+<p>The earliest emigrants, caring little for the
+common law except those principles associated
+with Magna Charta, stamped their peculiar
+notions upon our jurisprudence in a way that
+the second and more conservative generation
+of colonists was unable to eradicate. The
+Revolution, and the constitutional development
+that followed, concentrated attention
+on public rather than on private law, which in
+many of the States has been allowed to develop
+haphazard, along the lines of least resistance.
+Before it will be possible to classify and discuss
+American colonial law in a thorough and
+scientific manner, much preliminary work must
+be done in local fields, and, from material so
+collected, there may be derived finally a rational
+account of our legal institutions.</p>
+
+<p>It is in this spirit that the following study has
+been prepared. The original lectures were
+undertaken, at the suggestion of Dr. William
+Draper Lewis, Dean of the Law School, and
+material sought in the records without, at first,
+a sufficient realization of their lack of coherence.
+It was found that while some special topics
+had been carefully discussed, and while others
+were treated incidentally, in works having a
+different object in view, there was no concise
+<span class="pagenum" id="Page_vii">[Pg vii]</span>statement of the origin and growth of the courts
+and their jurisdiction based directly on the
+statutes and archives of the commonwealth.
+Such a narrative, it was thought, might prove
+useful to those who have not found time to
+become acquainted with the scattered literature
+of the period described. The treatment is
+not exhaustive; that would be impossible in a
+volume of this size, but it is believed that the
+information contained will be found accurate,
+as it is based on a careful examination of the
+public records. While the labor involved was
+greater than anticipated, the result by no means
+does justice to a deeply interesting topic.</p>
+
+<p class="author">
+  WILLIAM H. LOYD.
+</p>
+
+<blockquote>
+<p><span class="smcap">Biddle Law Library</span>, May 10, 1910.</p>
+</blockquote>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_viii">[Pg viii]</span></p>
+
+
+  <h2 class="nobreak" id="NOTE">
+    NOTE.
+  </h2>
+</div>
+
+
+<p>The work cited as Charter and Laws of Pennsylvania contains
+the Duke of York’s Laws and the Acts of Assembly prior to
+1700. The Statutes at Large of Pennsylvania, as published
+to date, begin at 1700 with Volume II and end at 1793 with
+Volume XIV. Compilations of the laws of the State by Dallas
+and Smith are also cited for acts in the last years of the eighteenth
+and early years of the nineteenth centuries. The regular series
+of Acts of Assembly which begin with 1800 are cited, according
+to local custom, as pamphlet laws abbreviated “P. L.” The
+records of the court at Upland were published by the Historical
+Society of Pennsylvania in 1860; the records of the court at
+New Castle by the Colonial Society of Pennsylvania in 1904.
+This society is about to publish the records of the courts of
+Chester County which, unfortunately, are not yet available
+for reference. For the convenience of the general reader,
+illustrations have been taken from published records, when
+practicable, rather than from manuscript sources. The dates
+are given just as they appear in the records without accounting
+for the discrepancies due to the reform of the calendar in 1752.</p>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_ix">[Pg ix]</span></p>
+
+
+  <h2 class="nobreak" id="CONTENTS">
+    CONTENTS.
+  </h2>
+</div>
+
+
+
+<table class="autotable">
+<tr>
+<td class="tdc">
+<span class="smcap">Chapter I.</span>
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+The Courts in the Seventeenth Century
+</td>
+<td class="tdr">
+<a href="#Page_1">1</a>
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdc">
+<span class="smcap">Chapter II.</span>
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+The Courts in the Eighteenth Century Prior to the Revolution
+</td>
+<td class="tdr">
+<a href="#Page_74">74</a>
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdc">
+<span class="smcap">Chapter III.</span>
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+The Courts from the Revolution to the Revision of the Civil Code
+</td>
+<td class="tdr">
+<a href="#Page_122">122</a>
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdc">
+<span class="smcap">Chapter IV.</span>
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+Equity in Pennsylvania
+</td>
+<td class="tdr">
+<a href="#Page_159">159</a>
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdc">
+<span class="smcap">Chapter V.</span>
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+The Register’s Court and the Orphans’ Court
+</td>
+<td class="tdr">
+<a href="#Page_212">212</a>
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdc">
+<span class="smcap">Chapter VI.</span>
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+The Laying Out and Opening of Roads by Viewers
+</td>
+<td class="tdr">
+<a href="#Page_241">241</a>
+</td>
+</tr>
+</table>
+
+
+<hr class="chap x-ebookmaker-drop">
+
+<div class="chapter">
+<p><span class="pagenum"><a id="Page_1">[Pg 1]</a></span></p>
+<p class="ph2">
+  THE EARLY COURTS<br>
+  OF<br>
+  PENNSYLVANIA.
+</p>
+</div>
+
+
+<hr class="r5">
+<div class="chapter">
+  <h2 class="nobreak" id="CHAPTER_I">
+    CHAPTER I.
+  </h2>
+</div>
+
+
+<p>For more than two hundred years the courts of province
+and state have administered justice to the inhabitants
+of Pennsylvania. Created under the peculiar
+conditions surrounding the foundation of the colony,
+subjected to numerous legislative experiments, their
+organization and practice present many peculiarities
+that can only be understood by a reference to their
+history. This history has been sadly neglected owing
+partly to the paucity of material, and partly to lack
+of interest. The founders were more bent on developing
+the resources and organizing the administration
+of the great territory that had come under their control,
+than on preserving the records of their proceedings
+for the benefit of posterity, while their immediate
+descendants, living in an uncritical age and possessed
+with a passion for rhetoric to the exclusion of history,
+carelessly permitted the records of the preceding generation
+to be scattered or ruthlessly destroyed. Documents
+that would now be regarded as precious memorials
+of the past, and that would throw valuable light on
+our early institutions, were used to feed the fires in
+the old courthouse.&#x2060;<a id="FNanchor_1_1" href="#Footnote_1_1" class="fnanchor">[1]</a> Fortunately, sufficient fragments
+<span class="pagenum" id="Page_2">[Pg 2]</span>have escaped and found their way into the collections
+of individuals and societies to enable us, with the aid
+of the state archives, to present, if not a picture, at
+least a sketch of the judicial organization and procedure
+in a period which the rapidity of our national development
+has made more remote in thought than in time.</p>
+
+<p>As the first organized settlements in the territory now
+included in the state of Pennsylvania were those of the
+Swedes and the Dutch, so the first courts of justice
+were established under their auspices. To give a complete
+account of their administration would involve a
+tedious narrative of the political vicissitudes of these
+unsuccessful colonies, which never developed to the
+point of establishing lasting institutions. In fact,
+throughout their stormy history the judicial and executive
+functions of the various governors and local officials
+are scarcely distinguishable.</p>
+
+<p>The first Swedish settlement was hardly more than a
+trading post, and, if a court in the proper sense of that
+word existed, it must have been established by the
+governor, John Printz, who arrived at the colony on
+the Delaware in 1643 with instructions to “decide all
+controversies according to the laws, customs and usages
+of Sweden” and in all other things to “adopt and follow
+all the laudable manners, customs and usages of the
+kingdom of Sweden,” the crown of which was then
+worn by Christina, the daughter of the great Gustavus
+Adolphus.</p>
+
+<p>Printz established the seat of government on the
+island of Tinicum, but he must have found his duties
+onerous, for he wrote several times to obtain the services
+of a learned and able man to administer justice and
+attend to the law business.&#x2060;<a id="FNanchor_2_2" href="#Footnote_2_2" class="fnanchor">[2]</a> The territory, however,
+<span class="pagenum" id="Page_3">[Pg 3]</span>passed into the possession of the Dutch West India
+Company, and Swedish law ceased to be a factor in the
+development of Pennsylvania, although the Swedes
+were permitted to retain their own magistrates, under
+the supervision of the officials of their conquerors.&#x2060;<a id="FNanchor_3_3" href="#Footnote_3_3" class="fnanchor">[3]</a>&#x2060;</p>
+
+<p>In 1655, a vice directorship of the “South River”
+was created, and Jean Paul Jacquet, a former agent
+of the company in Brazil, was appointed to the office.&#x2060;<a id="FNanchor_4_4" href="#Footnote_4_4" class="fnanchor">[4]</a>
+Andries Hudde, who had for some years managed the
+earlier Dutch settlement on the Delaware, was named
+as secretary, a commissary was appointed, and these,
+with two others, formed a council for general administration,
+as well as a court for the trial of civil and
+criminal cases, with right of appeal in all important
+matters to the director and council in New Amsterdam.
+The minutes of this court from December, 1655, to
+March, 1657, have been preserved, and afford some
+interesting information upon the methods and procedure
+of the Dutch justices, as well as the social condition of
+the colonists.&#x2060;<a id="FNanchor_5_5" href="#Footnote_5_5" class="fnanchor">[5]</a> Actions for the recovery of small debts
+are most frequent on the civil side, while on the criminal
+side, complaints for minor breaches of the peace are
+the principal matters disposed of. The striking features
+of these trials are the mild and paternal attitude of the
+court, the efforts made to obtain amicable adjustments
+of disputes, the merciful treatment of offenders, and
+the leniency to unfortunate debtors.</p>
+
+<hr class="tb">
+
+<p>The following case, taken from the minutes of the
+court, July 7, 1656, is interesting as an early attempt
+to apply the principles of set-off:—</p>
+
+<p><span class="pagenum" id="Page_4">[Pg 4]</span></p>
+
+<blockquote>
+<p>"Jan Flaman appears before the council against the wife of
+Tobias Willeborgh, and demands payment for a shirt lost by
+her, the defendant, and for passage from the manhattans
+hither, viz.</p>
+
+
+<table class="autotable">
+<tr>
+<td class="tdl">
+for the shirt
+</td>
+<td class="tdl">
+14
+</td>
+</tr>
+<tr>
+<td class="tdl">
+for her passage &amp; freight
+</td>
+<td class="tdl">
+16
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+—
+</td>
+
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+30
+</td>
+</tr>
+</table>
+
+
+<p>The defendant says, that she lost on the voyage, being wrecked
+with the bark, a chest containing four shirts, one coat of red
+duffel, one underwaist coat, and a powder horn with copper
+mountings, valued by her, the defendant at fl 28.</p>
+
+
+<table class="autotable">
+<tr>
+<td class="tdl">
+Paid to plaintiff in money
+</td>
+<td class="tdl">
+fl
+</td>
+<td class="tdr">
+4
+</td>
+</tr>
+<tr>
+<td class="tdl">
+From above
+</td>
+<td class="tdl">
+fl
+</td>
+<td class="tdr">
+28
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+—
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+<td class="tdr">
+32
+</td>
+</tr>
+</table>
+
+
+<p>The defendant is told that the freight shall be set off against
+her lost goods; in regard to the shirt, she is ordered to pay
+plaintiff four guilders 15 stivers.”&#x2060;<a id="FNanchor_6_6" href="#Footnote_6_6" class="fnanchor">[6]</a>&#x2060;</p>
+</blockquote>
+
+<p>A case heard on August 2, 1656, gives new and interesting
+grounds for a continuance:—</p>
+
+<blockquote>
+<p>“Before the council appeared Jacob Crabbe against Robert
+Martyn and complained that he Robert Martyn had shot and
+killed his, the plaintiff’s pig. Defendant answers that fourteen
+days ago he entreated the plaintiff to pen up his hogs as the same
+did great damage to his corn. Plaintiff upon being asked what
+he wanted, answers, ‘Payment for his pig.’ It was proposed
+to the parties, that plaintiff shall take the pig, as it is still living,
+but that if it should die, each one shall keep his action in the law
+unprejudiced.”&#x2060;<a id="FNanchor_7_7" href="#Footnote_7_7" class="fnanchor">[7]</a>&#x2060;</p>
+</blockquote>
+
+<p>Perhaps it may not be considered out of place to
+refer to a case tried September 13, 1655, in New Amsterdam
+as illustrating the pleasant side of judicial office
+in Knickerbocker days:—</p>
+
+<blockquote>
+<p>“Jan Hackius Plf. v/s Jacob van Couwenhoven Deft. The
+Plf. demands paymands of 1150 fl. on account of a promissory
+note, dated July 1, 1655, payable in beer and distilled liquors.
+<span class="pagenum" id="Page_5">[Pg 5]</span>Deft. says his beer is ready. Plf. denies, that the beer is ready,
+and enquires if it be allowable to mix strong with small beer,
+and says the beer is not fit to be removed. Couwenhoven
+denies the same, and requests the Court to be pleased to test
+the same after adjournment of the session and then decide.
+Parties being heard, Jacob van Couwenhoven was ordered to
+pay Plf. the residue according to contract and obligation; And
+the beer having been tested after adjournment of the Court the
+same was pronounced good. The Plf. was therefore ordered to
+receive the same.”&#x2060;<a id="FNanchor_8_8" href="#Footnote_8_8" class="fnanchor">[8]</a>&#x2060;</p>
+</blockquote>
+
+<p>Would Professor Wigmore call this autoptic profference?</p>
+
+<p>As in the other Dutch settlements the principal prosecuting
+officer of the district was the schout whose duties
+combined those of a sheriff and district attorney; he
+convened the justices’ courts and executed the orders
+of the states-general and officials of the company.
+Where local courts were established the justices were
+known as schepens. Their jurisdiction extended to the
+rendition of judgment for sums under one hundred
+guilders. In cases exceeding that amount the party
+aggrieved was allowed an appeal to the director general
+and council of the New Netherlands. The schepens
+also had authority to pronounce sentence in criminal
+cases subject to appeal.&#x2060;<a id="FNanchor_9_9" href="#Footnote_9_9" class="fnanchor">[9]</a>&#x2060;</p>
+
+<p>In 1656 the Dutch India Company, being deeply
+in debt and compelled to obtain aid from the city of
+Amsterdam, transferred to that city a portion of their
+possessions on the Delaware. This colony was called
+New Amstel, special inducements were held out to
+emigrants, and a town government was established
+consisting of a schout, three burgomasters and five to
+seven schepens, a formidable body for the government
+of a village of less than five hundred inhabitants. Thenceforth
+<span class="pagenum" id="Page_6">[Pg 6]</span>the jurisdiction on the river was divided between
+the officials of the company and those of the city’s
+colony.&#x2060;<a id="FNanchor_10_10" href="#Footnote_10_10" class="fnanchor">[10]</a>&#x2060;</p>
+
+<p>Laws and ordinances were sent from New Amsterdam
+to the Delaware and there proclaimed for the general
+government of that territory. With occasional modifications,
+they were the same as prevailed in the older
+settlements on the Hudson, the ordinances of the West
+India Company, the civil law, the enactments of the
+states-general, and the customs of Holland.</p>
+
+<p>In the matter of granting divorces the magistrates
+of the New Netherlands exercised a liberal policy in
+keeping with the doctrines of the Reformation, a policy
+that was not destined to survive the English Conquest.&#x2060;<a id="FNanchor_11_11" href="#Footnote_11_11" class="fnanchor">[11]</a>
+Traces of this jurisdiction are found on the Delaware.
+Vice Director Beekman, writing to the director general
+under date of April 28, 1660, mentions a Finnish couple
+who lived together in constant strife: “The wife receives
+daily a severe drubbing, and is often expelled from the
+house as a dog. This treatment she suffered a number
+of years; not a word is said in blame of the wife, whereas
+he, on the contrary, is an adulterer; on all of which
+the priest, the neighbors, the sheriff and the commissaries
+appealed to me, at the solicitation of man and
+wife that a divorce might take place and the small
+property and stock be divided between them.”&#x2060;<a id="FNanchor_12_12" href="#Footnote_12_12" class="fnanchor">[12]</a>
+He asks for orders but the reply is not given.</p>
+
+<p>In 1662, the Finnish priest Laers, or Laurentius,
+Carels, whose wife had eloped with Jacob Jough, married
+again before he had obtained letters of divorce from
+the council, performing the ceremony himself. He was
+condemned by the commissaries to pay a fine of two
+<span class="pagenum" id="Page_7">[Pg 7]</span>hundred guilders and his new marriage declared illegal,
+but was advised to apply to the director general for a
+divorce.&#x2060;<a id="FNanchor_13_13" href="#Footnote_13_13" class="fnanchor">[13]</a>&#x2060;</p>
+
+<p>At the last period of the Dutch dominion (1673-4)
+three judicial districts were recognized, one for the
+inhabitants of the Whorekill, between Cape Henlopen
+and “Boomties” (Bombay) Hook, another for New
+Amstel, from Bombay Hook to Kristina Kill, and a
+third for Upland from Kristina Kill “unto the head of
+the river.”&#x2060;<a id="FNanchor_14_14" href="#Footnote_14_14" class="fnanchor">[14]</a> Roughly speaking, the first of these districts
+corresponds to the lower counties of the state of
+Delaware, the second to New Castle County, in that
+state, and the third to so much of the southeastern
+part of Pennsylvania as was then settled, extending to
+the falls at Trenton.</p>
+
+<p>The humble and widely scattered settlers seldom
+had time or occasion to indulge in law suits involving
+questions or amounts beyond the limited jurisdiction
+of the schepens, but such disputes as did arise were the
+cause of endless discussion and much heartburning
+between the officers of the West India Company and
+those of the city of Amsterdam, whose complaints and
+recriminations distracted the governor at New Amsterdam.
+In justifying the action of the council in such
+a contest Peter Stuyvesant writes to the directors
+in Holland: “We might here remark upon and continue
+with the insults and slights, heaped on your Hon<sup>ble</sup>
+Worships’ servants in their capacity as supreme judges
+of this province, but will desist for the present to keep
+ourselves above party spirit and avoid further displeasures.”
+Appeals heard and decided by the governor
+<span class="pagenum" id="Page_8">[Pg 8]</span>and council seem to have been carried to the directors
+in Holland, and occasionally reversed to the chagrin of
+Stuyvesant, who thus reproaches his employers in a
+letter dated July 21, 1661:—</p>
+
+<blockquote>
+<p>“Your Noble Worships say in regard to the third and last point
+concerning the appeal and the reversing of a sentence pronounced
+against one Jan Gerritsen van Marcken, that we would have
+done better not to meddle with this case. Honorable Worships!
+It surpasses our conception to understand how to avoid such
+proceedings and the reproaches following them, how to satisfy
+your Honors and the parties to the suit without exposing ourselves
+to blame for refusing a hearing and justice, as long as it is
+your Hon<sup>ble</sup> Worships’ order, and pleasure, that appeals are
+to be brought before your Honors’ humble servants and we
+declare with good conscience that in this and the abovementioned
+case we have not aimed at nor intended anything else, but what
+we in our humble opinion judged to be just, equitable and our
+duty: God the Ominiscient is the witness for it: we have no
+knowledge of it, that the Sheriff van Sweeringen was to be
+forced here, to ask pardon of God and justice in addition to
+what his opponent had demanded: we refer to the sentences
+regarding this point.”&#x2060;<a id="FNanchor_15_15" href="#Footnote_15_15" class="fnanchor">[15]</a>&#x2060;</p>
+</blockquote>
+
+<p>Dutch rule and Dutch laws, however, were not
+destined to endure on the Delaware. On the twelfth
+of March, 1664, Charles II of England granted to his
+brother, the Duke of York (afterwards James II), the
+territory comprising the New Netherlands.</p>
+
+<p>The charter to James is neither as elaborate nor as
+carefully drawn as that granted eighteen years later
+to Penn. The standing committee of the privy council
+for the foreign plantations had been but recently
+organized and the Crown lawyers were just beginning
+to realize that vast problems, legal and social, were
+connected with the administration of the colonial
+domain. It has been well said that in the colonial
+charter will be found the germ of American constitutional
+<span class="pagenum" id="Page_9">[Pg 9]</span>law, whether of the trading company or proprietary
+type, since it contained beside the grant of territory
+a scheme of political organization.&#x2060;<a id="FNanchor_16_16" href="#Footnote_16_16" class="fnanchor">[16]</a> It is a significant
+fact that the charter of James contains no reference
+to a legislative assembly; the Duke is given “full and
+absolute power and authority” to “correct, punish,
+pardon, govern and rule” the inhabitants of the territories
+according to such laws, ordinances and directions
+as he should establish, not contrary to the laws of
+England, reserving to the Crown the right to hear and
+determine appeals from judgments or sentences there
+given.&#x2060;<a id="FNanchor_17_17" href="#Footnote_17_17" class="fnanchor">[17]</a>&#x2060;</p>
+
+<p>With the history of the conquest of the New Netherlands
+we are not directly concerned; suffice it to say
+that Sir Robert Carr who was charged with the reducing
+of the Dutch possessions on the Delaware arrived at
+that river in the latter part of the year 1664, and without
+much bloodshed obtained the surrender of the
+colony. Carr established the seat of government at
+New Amstel, the name of which was now changed to
+New Castle, and under the terms of his agreement with
+the inhabitants, continued all the magistrates in their
+offices upon their taking the oath of allegiance.&#x2060;<a id="FNanchor_18_18" href="#Footnote_18_18" class="fnanchor">[18]</a> The
+wise policy of enlisting the local authorities in support
+of the new government was continued, and Dutch and
+Swedish magistrates administered justice to their
+neighbors until long after the arrival of William Penn.</p>
+
+<p>The period of the Duke of York’s rule is of more
+importance in our judicial history than would at first
+be supposed. It was a formative period, and the law
+and practice as then developed had a marked influence
+upon the early legislation of the province of Pennsylvania.
+<span class="pagenum" id="Page_10">[Pg 10]</span>The establishment of English jurisprudence in the
+colonies on the Delaware was not the work of a day,
+but a gradual process, involving compromises with
+the established customs and practices of the inhabitants,
+the gradual transformation of the Dutch schouts and
+schepens into their English equivalents, the education
+of the magistracy in the rudiments of English court
+practice and the actual modification of many of the
+rules of the common law, both as to property and
+practice, to meet the necessities of the primitive social
+conditions in the New World.</p>
+
+<p>The legal conceptions of the new rulers found expression
+in a brief code promulgated at Hempstead,
+Long Island, in 1664, which, quaint and unsystematic
+as it may seem to us now, contained several notable
+departures from the common law well worth careful
+study by those interested in legal history.</p>
+
+<p>The principle seems to have been generally accepted
+in the American colonies that the elements of public
+and private law should be stated in a concise and
+permanent form. Whether originating with the people,
+as in the case of the “Body of Liberties” in Massachusetts,
+or with the proprietors, as in the case of the “Fundamental
+Constitutions” of the Carolinas, the tendency
+of early colonial law was toward codification.&#x2060;<a id="FNanchor_19_19" href="#Footnote_19_19" class="fnanchor">[19]</a> And
+what could be more natural than that both adventurers
+and proprietors should dream of creating little Utopias
+by force of the statute book? New conditions, too,
+required new measures, the laymen who administered
+justice required brief and simple handbooks for their
+guidance, and the mixed population a homogeneous
+system in the place of their various ancestral customs.
+Such a code was the Duke of York’s Laws which is
+stated to have been “Collected out of the Severall Laws
+<span class="pagenum" id="Page_11">[Pg 11]</span>now in force in his Majesties American Colonyes and
+Plantations.” Prior to the conquest of the New Netherlands,
+Colonel Nicolls, the newly appointed governor,
+and Sir Robert Carr had been appointed members of a
+commission for the visitation of the New England
+colonies, a part of whose duties it was with diligence and
+care “to peruse the collection of the lawes published
+in those colonies during the late usurping Government,
+or at any tyme before or since; to the end that upon
+examination thereof you may discerne both the indecent
+expressions and material and important points and
+determinations in them, which are contrary to our dignity
+and to the lawes and customes of this realme and
+to the justice thereof; all which they have obliged
+themselves to cancele and repeale; and if the same bee
+not already done, you are in the first place to cause
+it to be done.”&#x2060;<a id="FNanchor_20_20" href="#Footnote_20_20" class="fnanchor">[20]</a>&#x2060;</p>
+
+<p>The commissioners were also empowered to hear all
+complaints and appeals in matters military, criminal
+and civil, but it was left to their discretion whether
+they would first visit New England or reduce the Dutch
+to submission. Having carried out the latter project
+it became necessary at once to organize the captured
+territory. The greater part of Long Island was already
+occupied by settlers from New England and, having
+obtained copies of the laws of Massachusetts and New
+Haven, Nicolls&#x2060;<a id="FNanchor_21_21" href="#Footnote_21_21" class="fnanchor">[21]</a> with the assistance of the secretary
+<span class="pagenum" id="Page_12">[Pg 12]</span>and some of the magistrates prepared a code which,
+as a comparison will show, drew much of its material
+from these sources with, in the governor’s words, “a
+relaxation of their severity in matters of conscience
+and religion.” The cruel laws against heretics and
+against “a pernicious sect commonly called Quakers”&#x2060;<a id="FNanchor_22_22" href="#Footnote_22_22" class="fnanchor">[22]</a>
+were omitted, as well as many other provisions relating
+to the Puritan discipline. The “capital lawes” were
+transcribed from the Massachusetts code, which was
+avowedly based on the Old Testament, but the offense
+of witchcraft was omitted and while the clause making
+it a capital offense for children above sixteen years
+old to curse or smite their parents was retained, the
+succeeding clause, enabling a man having a stubborn
+or rebellious son to bring him to the magistrates to be
+put to death in accordance with Deuteronomy, xxi, 18,
+was rejected.</p>
+
+<p>As in its prototypes, the code is divided into titles
+arranged in alphabetical order but the classification is
+neither logical nor consistent, a failing noticeable in
+more modern and more pretentious legal productions.
+Much, however, that was adopted was both valuable
+and practical and, with additions from English and
+Dutch sources, was moulded into a form that perhaps
+met best the needs of civil administration in a newly
+organized proprietary province. Indeed we may recognize
+<span class="pagenum" id="Page_13">[Pg 13]</span>in this as well as other provincial codes a kindred
+spirit, which without attempting to exploit many theoretical
+views on jurisprudence, drew upon a common
+source for so much of English law and custom as could
+reasonably be applied to the social and economic conditions
+of frontier life.</p>
+
+<p>It is most difficult to determine how far the common
+law was viewed as a subsidiary system when not replaced
+by colonial statutes. The accepted theory that the
+colonists brought with them and adopted so much of
+the common law as was applicable to their condition&#x2060;<a id="FNanchor_23_23" href="#Footnote_23_23" class="fnanchor">[23]</a>
+is not wholly borne out by the facts. As the colonies
+increased in wealth and population, as their commercial
+relations with the mother country became more complex,
+the doctrines of the common law were necessarily
+drawn upon to fill up the gaps in the early legislation,
+and, as friction with the home government increased,
+the popular party appealed more and more to the
+common law, particularly to Magna Charta, as the
+muniment of political liberty and birthright of Englishmen,
+an appeal which writers such as Blackstone
+sought to evade by applying to America the status of
+conquered territory.&#x2060;<a id="FNanchor_24_24" href="#Footnote_24_24" class="fnanchor">[24]</a>&#x2060;</p>
+
+<p>Even more obscure is the question of the applicability
+of English statutes, but the principle was generally
+accepted that acts of parliament passed after the settlement
+of a colony were not in force there unless the
+words of the act expressly included the territory so
+<span class="pagenum" id="Page_14">[Pg 14]</span>occupied,&#x2060;<a id="FNanchor_25_25" href="#Footnote_25_25" class="fnanchor">[25]</a> although in some instances local usage would
+seem to have given the force of law to a statute not so
+extended. The subject is difficult and intricate.&#x2060;<a id="FNanchor_26_26" href="#Footnote_26_26" class="fnanchor">[26]</a> But
+at the early period now under discussion the tendency
+was to regard the elementary codes as approximately
+complete statements of the law. For matters not covered
+New England referred to the “Word of God” as
+contained in the Scriptures, while in the south the
+inclination was to claim a share in the laws of England,
+but in either case the application of these vague principles
+left in the local magistrates a very wide discretion
+which in the absence of professional criticism was checked
+and restrained only by legislative action or the influence
+of the governor and council.&#x2060;<a id="FNanchor_27_27" href="#Footnote_27_27" class="fnanchor">[27]</a> In the Duke of York’s
+Laws the difficulty is met by the following clause:—</p>
+
+<blockquote>
+<p>“In regard it is almost impossible to provide sufficient Lawes
+in all Cases, or proper Punishments for all Crimes. The Court
+of Sessions shall not take further Cognizance of any Case or
+Crimes, whereof there is not provition made in some Lawes but
+to remit the Case or Crime, with the due Examination and proof
+to the Next Court of Assizes where matters of Equity shall be
+decided, or Punishment awarded according to the discretion
+of the Bench and not contrary to the known Laws of England.”&#x2060;<a id="FNanchor_28_28" href="#Footnote_28_28" class="fnanchor">[28]</a>&#x2060;</p>
+</blockquote>
+
+<p>An analysis of the substantive provisions of this code,
+however interesting, is outside of the scope of this discussion.
+<span class="pagenum" id="Page_15">[Pg 15]</span>It is sufficient to note that New York, in
+passing from the status of a proprietary to that of a
+royal province, came more directly under home influences
+and, as in the case of Virginia, the more radical
+and experimental features of the early laws disappeared
+in the face of the constantly increasing influence of the
+common law, or what the colonial administrator understood
+as common law.</p>
+
+<p>As to remedial law it was, in the first place, provided
+that all actions of debt or trespass under the value of
+five pounds between neighbors should be put to the
+arbitration of two indifferent persons of the neighborhood
+to be nominated by the constable, or if either of
+the parties refused their arbitration, the justices of the
+peace should choose three other persons who were to
+meet at the cost of him who dissented from the first
+method, and their award should be conclusive.&#x2060;<a id="FNanchor_29_29" href="#Footnote_29_29" class="fnanchor">[29]</a> The practice
+of referring complicated cases to arbitration prevailed
+in the New Netherlands and this provision has been
+regarded as a survival of the Dutch custom.&#x2060;<a id="FNanchor_30_30" href="#Footnote_30_30" class="fnanchor">[30]</a> Voluntary
+submissions were well known at the common law,
+but the principle of compulsory reference was then
+and still is to a certain extent, looked upon askance as
+an attempt to take away the palladium of liberty—the
+right to a jury trial.&#x2060;<a id="FNanchor_31_31" href="#Footnote_31_31" class="fnanchor">[31]</a> Arbitration, as we shall see,
+occupied a prominent place in Penn’s system of justice,
+was by far the most popular method of determining
+minor civil cases during the early period in Pennsylvania,
+<span class="pagenum" id="Page_16">[Pg 16]</span>and, though less used now, is still a part of the
+law. In 1677, the court at New Castle referred a dispute
+concerning the estate of a decedent to two arbitrators
+who were to examine the accounts and if possible
+decide the difference, otherwise to choose an umpire
+and report at the next court day.&#x2060;<a id="FNanchor_32_32" href="#Footnote_32_32" class="fnanchor">[32]</a> In 1678 Hendrick
+Vanden Burgh petitioned the court complaining that
+he had bought a house and lot from one Vidette who
+had purchased from William Tom, deceased; that the
+lot was six feet less in breadth than the deed called for
+and praying that this be added from Tom’s adjoining
+lot which was about to be sold:—</p>
+
+<blockquote>
+<p>“The court answer that whereas this business in the Lyfetyme
+of Jan Vidette &amp; M<sup>r</sup> Tom was in question, and then decyded
+by M<sup>r</sup> Moll, M<sup>r</sup> Hans Blocq &amp; Capt<sup>n</sup> Cregier as umpier and the
+Peticon<sup>r</sup> now haueing in possession soe mutch ground as then
+the arbitrato<sup>rs</sup> allowed, must therefore Rest himself Contented
+w<sup>th</sup> y<sup>e</sup> same.”&#x2060;<a id="FNanchor_33_33" href="#Footnote_33_33" class="fnanchor">[33]</a>&#x2060;</p>
+</blockquote>
+
+<p>The courts were organized on a basis not dissimilar
+from that which already prevailed under the Dutch
+rule, with modifications suggested by the practice in the
+older English colonies. The principal court was the
+general court of assizes, held once a year in the autumn,
+presided over by the governor, and attended by the
+council, the mayor and aldermen of New York, and the
+justices of the various courts of sessions.&#x2060;<a id="FNanchor_34_34" href="#Footnote_34_34" class="fnanchor">[34]</a> No express
+provision for its creation is to be found in the laws
+although it is there incidentally mentioned, and, while
+the subject is obscure, the court was in fact the successor
+of that held by the director and council of the New
+<span class="pagenum" id="Page_17">[Pg 17]</span>Netherlands. The limits of its jurisdiction were undefined,
+and it seems to have combined both legislative
+and judicial functions; indeed it was the closest approximation
+to a legislature that New York was destined to
+enjoy for some time. The court heard appeals from the
+sessions and complaints against local officials, tried the
+more important civil cases and all capital cases, except
+where a special commission of oyer and terminer was
+issued to the justices of a distant community in order
+to obtain a more speedy trial.</p>
+
+<p>The procedure on appeal was taken almost literally
+from the laws of Massachusetts relating to appeals to
+the court of assistants.&#x2060;<a id="FNanchor_35_35" href="#Footnote_35_35" class="fnanchor">[35]</a> The appellant was required
+to give security for prosecuting an appeal and payment
+of damages. The grounds and reasons for appeal were
+to be filed with the clerk of the court. No justice that
+had sat or voted in the inferior court was permitted to
+vote in the court appealed to. Where the law and facts
+were found to agree with the former judgment it was
+not to be revoked, but the damages could be abated or
+increased as should be judged right.</p>
+
+<p>Courts of sessions were established in districts roughly
+corresponding to counties (in the neighborhood of New
+York called Ridings in imitation of the division of the
+English County of Yorkshire). These courts were held
+three times in the year, and were attended by the justices
+of the peace. The governor, if present, presided,
+or in his absence a member of the council or the senior
+justice. All actions involving from five to twenty
+pounds were triable at this court, from which there
+was no appeal “unless the debt appear to be above that
+summe of twenty pounds or where there is a dubiousness
+in the expression of the law.”&#x2060;<a id="FNanchor_36_36" href="#Footnote_36_36" class="fnanchor">[36]</a> In addition the court
+<span class="pagenum" id="Page_18">[Pg 18]</span>was charged with the granting of letters of administration,
+the preservation of the peace, the trial of petty
+offenders, and the usual duties associated with the
+quarter sessions including the granting of liquor licenses,
+a duty still imposed on our quarter sessions to the discomfort
+of the judges. In this connection the law
+provided:—</p>
+
+<blockquote>
+<p>“Every person Licenced to keep an Ordinary shall always be
+provided of strong and wholesome Beer, of four bushels of malt,
+at the least to a Hoggshead which he shall not Sell at above
+two pence the quart under the penalty of twenty shillings, for
+the first Offence, forty shillings for the Second, and loss of his
+Licence. It is permitted to any to sell Beer out of the Doores at
+a peny the Ale quart or under.</p>
+
+<p>“No Licenced Person shall suffer any to Drink excessively or
+at unseasonable hours after Nine of the Clock at night in or
+about any their houses upon penalty of two shillings six pence
+for every Offence if Complaint and proofe be made thereof.</p>
+
+<p>“No Licenced Person shall unreasonably exact upon his Guest
+for any sort of entertainment, and no man shall be compelled
+to pay above eight pence a Meale, with small beer only, unless
+the Guest shall make other agreement with the person so
+lycenced.</p>
+
+<p>“No Licence shall be granted by any two Justices in Sessions
+for above the terme of one year, but every person so Licenced
+before the expiration of the said Terme shall and are hereby
+enjoyned to repair to the Sessions of that Jurisdiction for renewing
+their several Licences for which they shall pay to the Clark
+of the Sessions two Shillings Six pence, or else they shall forfeit
+five pounds as unlicenced persons.”&#x2060;<a id="FNanchor_37_37" href="#Footnote_37_37" class="fnanchor">[37]</a>&#x2060;</p>
+</blockquote>
+
+<p>Pure food agitation and rate regulation are thus foreshadowed,
+but not prohibition.</p>
+
+<p>In all actions the plaintiff was required to file his
+declaration eight days before hearing.&#x2060;<a id="FNanchor_38_38" href="#Footnote_38_38" class="fnanchor">[38]</a> The defendant
+<span class="pagenum" id="Page_19">[Pg 19]</span>was permitted to take a copy thereof and file an answer.
+If judgment was entered for plaintiff it was endorsed
+on the declaration, if for the defendant on the answer.
+As in Massachusetts, no proceedings are to be reversed
+because of errors or mistakes “if the person and cause
+be rightly understood and intended by the court.”&#x2060;<a id="FNanchor_39_39" href="#Footnote_39_39" class="fnanchor">[39]</a>
+Imprisonment in civil cases was restricted. No man
+was to be kept in prison for a debt or fine longer than
+the second day of the sessions after the arrest unless it
+was made to appear that he had some estate which he
+would not produce; if the debtor had no estate he could
+be required to satisfy the debt by service.</p>
+
+<p>In deference to the wishes of the New Englanders
+settled on Long Island provision was made for a town
+court consisting of the constable and overseers. The
+number of the latter was first fixed at eight but was
+subsequently reduced to four.&#x2060;<a id="FNanchor_40_40" href="#Footnote_40_40" class="fnanchor">[40]</a> Their duties were chiefly
+administrative, but, in cases where the parties refused
+arbitration, the town court was to decide the case if
+less than five pounds was involved.&#x2060;<a id="FNanchor_41_41" href="#Footnote_41_41" class="fnanchor">[41]</a> The town system,
+however, was not destined to thrive in the middle
+colonies, and penetrated to the Delaware only in an
+attenuated form.</p>
+
+<p>Last in the official scale was the constable, then, as
+now, the local peace officer. His badge of office was a
+staff six feet long with the king’s arms thereon, which
+was to be provided at the cost of the town,&#x2060;<a id="FNanchor_42_42" href="#Footnote_42_42" class="fnanchor">[42]</a> but on the
+Delaware came out of the slender purse of the local
+Dogberry.&#x2060;<a id="FNanchor_43_43" href="#Footnote_43_43" class="fnanchor">[43]</a> Among his other onerous duties he was
+required to whip or punish any one so ordered by authority,
+“unless they can get another person to do it.”</p>
+
+<p><span class="pagenum" id="Page_20">[Pg 20]</span></p>
+
+<p>A singular feature of the code was the section relating
+to jurors. It was provided that—</p>
+
+<blockquote>
+<p>“No jury shall exceed the number of seaven nor be under
+six unless in Special Causes upon Life and Death, the Justices
+shall thinke fitt to Appoint twelve.”</p>
+
+<p>“A verdict shall be so esteemed, when the major part of the
+Jury is agreed, and the Minor shall be concluded by the Major
+without allowance of any protest by any of them to the Contrary;
+Except in case of Life and Death where the whole Jury is to be
+unanimos in their Virdict.”&#x2060;<a id="FNanchor_44_44" href="#Footnote_44_44" class="fnanchor">[44]</a>&#x2060;</p>
+</blockquote>
+
+<p>The source of this enactment, although not disclosed,
+will probably be found in a modified form in the Connecticut
+code of 1650&#x2060;<a id="FNanchor_45_45" href="#Footnote_45_45" class="fnanchor">[45]</a> which left it to the magistrates—</p>
+
+<blockquote>
+<p>“To impannell a jury of sixe or twelve, as they shall judge
+the nature of the case shall require—and if foure of sixe, or
+eight of twelve agree, the verdict shall be deemed to all intents
+and purposes, sufficient and full.”</p>
+</blockquote>
+
+<p>In confirmation of this view the similar provision of
+1665 in regard to the town courts may be recalled,
+where—</p>
+
+<blockquote>
+<p>“The constable and overseers are to give their judgment
+by the Major vote, where six with the constable, or seaven in
+his absence, are competent and equivolent to a jury, and the
+constable upon equall Division, is to have a casting voyce.”&#x2060;<a id="FNanchor_46_46" href="#Footnote_46_46" class="fnanchor">[46]</a>&#x2060;</p>
+</blockquote>
+
+<p>In 1666, it was directed that in jury trials at the
+court of assizes the number of jurors should be twelve,
+but that at the courts of sessions the number set forth
+in the law should be sufficient.&#x2060;<a id="FNanchor_47_47" href="#Footnote_47_47" class="fnanchor">[47]</a>&#x2060;</p>
+
+<p>This remarkable deviation from the English jury
+system was not destined to survive. In the records of
+<span class="pagenum" id="Page_21">[Pg 21]</span>the court at Upland, to which reference will be made
+hereafter, there is a case concerning title to real estate
+which was tried in 1681 before a jury of seven,&#x2060;<a id="FNanchor_48_48" href="#Footnote_48_48" class="fnanchor">[48]</a> but in
+other cases in the same court juries of twelve were
+drawn, as was the practice also of the court at New
+Castle.&#x2060;<a id="FNanchor_49_49" href="#Footnote_49_49" class="fnanchor">[49]</a>&#x2060;</p>
+
+<p>Penn in his laws agreed upon in England provided
+that all trials should be by twelve men, and this was
+made a fundamental law of the province.&#x2060;<a id="FNanchor_50_50" href="#Footnote_50_50" class="fnanchor">[50]</a> At the first
+court held at Lewes for the county of Sussex by commission
+of William Penn the legality of a prior verdict
+by a jury of seven was questioned. The suit was by
+Hermanns Wiltbank against Cornelius Johnson and is
+stated to be “by way of scarifacous”&#x2060;<a id="FNanchor_51_51" href="#Footnote_51_51" class="fnanchor">[51]</a> to show cause
+why the defendant should not give the plaintiff possession
+of certain land.</p>
+
+<blockquote>
+<p>“According to An order of Court &amp; verdict of a jurey of
+Seaven men obtaind in this Court the 8th day of the 1 Mo.
+1681. The said Cornelis Johnson showeth cause by his plea
+delivered into the Court in writing that he had obtained in this
+court a verdict of a Jurey of twelve men for the said Land and
+premisses According to the Laws of England; and that the
+verdict of seaven men was and is Contrary to the knownen
+Laws of England.”&#x2060;<a id="FNanchor_52_52" href="#Footnote_52_52" class="fnanchor">[52]</a>&#x2060;</p>
+</blockquote>
+
+<p>It was further alleged that Wiltbank had appealed
+from the former verdict against him and had failed to
+prosecute his appeal. The court with the consent of
+both parties referred the matter to the proprietor. At
+a subsequent court the plaintiff again brought up the
+<span class="pagenum" id="Page_22">[Pg 22]</span>matter, stating that the governor had confirmed his
+right to the land but had recommended that it should
+be left to the peacemakers to determine whether anything
+was due the defendant for his improvements.
+Failing to prove his declaration he was nonsuited but
+afterwards on the advice of the court the whole dispute
+was referred to arbitration.&#x2060;<a id="FNanchor_53_53" href="#Footnote_53_53" class="fnanchor">[53]</a>&#x2060;</p>
+
+<p>The Duke of York’s Laws were not put into execution
+in the territories on the Delaware immediately upon their
+adoption. As already stated, the Dutch and Swedish
+magistrates were retained in office, but it was wisely
+resolved to carry the necessary changes into effect gradually.
+In 1668 Governor Lovelace issued directions to
+Deputy Governor John Carre to associate the schout
+and certain magistrates with himself as a council, and
+that—</p>
+
+<blockquote>
+<p>“The Lawes of the Governmt Establisht by his Royall Highness
+be shewed &amp; frequently Communicated to the said Councellors &amp;
+all oth<sup>rs</sup>. To the end that being therw<sup>th</sup> acquainted the practice
+of them may also in convenient tyme be established w<sup>ch</sup> conduceth
+to the Public Welfare &amp; Common Justice.”&#x2060;<a id="FNanchor_54_54" href="#Footnote_54_54" class="fnanchor">[54]</a>&#x2060;</p>
+</blockquote>
+
+<p>Under this plan the government was steadily brought
+into harmony with English ideas, the temporary check
+received in 1673, when the Dutch for a few brief months
+repossessed themselves of the New Netherlands, scarcely
+interrupting this process. At a council held at New
+York, May 17, 1672, it was ordered:—</p>
+
+<blockquote>
+<p>“That for y<sup>e</sup> better Governm<sup>t</sup> of ye Towne of New Castle
+for the future, the said Towne shall be erected into a Corporacon
+by the name of a Balywick, That is to say, it shall be Governed
+by a Bailey &amp; six Assistants, to bee at first nominated by the
+Governor and at y<sup>e</sup> expiracon of a yeare foure of the six to go
+<span class="pagenum" id="Page_23">[Pg 23]</span>out &amp; foure others to be chosen in their places, the Bailey to
+continue for a yeare, &amp; then two to be named to succeed, out
+of whom ye Governo<sup>r</sup> will elect one; Hee is to preside in all
+y<sup>e</sup> co<sup>rts</sup> of the Towne &amp; have a double vote. A constable is
+likewise annually to be chosen by y<sup>e</sup> Bench.</p>
+
+<p>“The Towne Court shall have power to try all causes of debt
+or damage to the value of ten pounds without appeal.</p>
+
+<p>“That y<sup>e</sup> English Lawes according to the desire of the inhabitants,
+bee establish<sup>t</sup> both in ye Towne &amp; all plantations upon
+Delaware River.</p>
+
+<p>“That the office of Schout be converted into a Sheriffalty &amp;
+y<sup>e</sup> High Sheriffs power extend both in the corporacon &amp; river &amp;
+that he be annually chosen by two being presented to the
+Govern<sup>r</sup>, of whom he will nominate &amp; confirm one.”&#x2060;<a id="FNanchor_55_55" href="#Footnote_55_55" class="fnanchor">[55]</a>&#x2060;</p>
+</blockquote>
+
+<p>Finally, on September 26, 1676, an ordinance was
+passed by Governor Andros and the council formally
+introducing the Duke of York’s Laws and establishing
+courts on the Delaware, the material portion of which
+is as follows:—</p>
+
+<blockquote>
+<p>“Whereas upon a peticon of the Magistrates and officers of
+New Castle and Delaware River, Goveno<sup>r</sup> Lovelace did resolve &amp;
+in part settle the Establish Lawes of this Government and appoint
+some magistrates under an English Denominacon accordingly,
+In the which their having been an obstruction for reason of the
+late warres &amp; Change of Government; And findeing now an
+absolute necessity for y<sup>e</sup> well being of the Inhabitants, to make
+a speedy settlement, to be a generall knowne rule unto them
+for the future, Vpon mature deliberation and advise of my
+Councell, I have resolved, and by vertue of the Authority
+derived unto mee, doe hereby in his Ma<sup>ties</sup> Name Order as
+followeth.</p>
+
+<p>“1. That the booke of Lawes Establisht by his Royal Highnesse
+&amp; practiced in New Yorke, Long Island, and Dependencies
+bee likewise in force, and practiced in this River and Precincts,
+Except the Constables Courts, Country Rates &amp; some-other
+<span class="pagenum" id="Page_24">[Pg 24]</span>things peculiar to Long Island, and the Militia as now ordered
+to remaine in y<sup>e</sup> King, but that a constable in each place bee
+yearely chosen for the Preservacon of his Ma<sup>ties</sup> Peace with
+all other Power as directed by y<sup>e</sup> law.</p>
+
+<p>“2. That there bee three Courts held in y<sup>e</sup> several (parts of
+the river) &amp; bay as formerly. To witt one in the Townes (New
+Castle one above at) Uplands another below at the Whorekil.</p>
+
+<p>“3. That the said Courts consist of Justices of the Peace
+whereof three to make a Coram, &amp; to have the Power of a Court
+of Sessions &amp; decide all matters under twenty pounds without
+Appeale, in which Court the oldest Justice to preside, unless
+otherwise agreed amongst themselves above twenty pounds &amp;
+for crime Extending to life Limbo or Banishment, to admit
+appeal to the Court of Assizes.</p>
+
+<p>“4. That all small matters under the value of five pounds may
+be determined by the Court without a jury unless desired by the
+Partyes as also matters of Equity.</p>
+
+<p>“5. That the Court for New Castle bee held once a month, to
+begin the first Tuesday in each Month And the Court for Uplands
+&amp; the Whorekill, Quarterly &amp; to begin the Second Tuesday of
+the Month.</p>
+
+<p>“6. That all necessary By lawes or orders (not repugnant
+to the Lawes of the Government) made by the said Courts,
+bee of force &amp; binding, for the space of one whole yeare, in the
+severall places where made They giveing an Account thereof
+to the Governo<sup>r</sup> by the first Convenience, And that noe fines
+be made or imposed but by order of Court.</p>
+
+<p>“7. That the severall Courts have power to regulate the Court
+and Offic<sup>rs</sup> Fees, not to exceed the Rates in the book of Lawes,
+nor to bee under halfe the Value therein exprest.</p>
+
+<p>“8. That there bee a high Sheriffe for the Towne of New
+Castle, the River and Bay: And that the said high Sheriffe
+have power to make an Under Sheriffe or Marshall being a fitt
+person, and for whom hee will bee responsable, to be approved
+by the Court, But the Sheriffe, to act as in England &amp; according
+to the now practice on Long Island, to act as a principall officer
+in the Execution of the Lawe, but not as a Justice of the Peace
+or Magistrate.</p>
+
+<p>“9. That there bee fitting books provided for the Records
+in which all Judiciall Proceedings to be duely and fairely Entered,
+as also all Publick Orders from the Governo<sup>r</sup> And the names
+of the Magistrates &amp; Officers Authorized, with the time of their
+Admission: the said Records to bee kept in English, To which
+<span class="pagenum" id="Page_25">[Pg 25]</span>all persons concerned may have free Recourse at due or seasonable
+times.</p>
+
+<p>“10. That a fitt person for Clarke when Vacant, be recommended
+by each Court to the Governo<sup>r</sup> for his Approbacon in
+whose hands the said Reccords to be kept.</p>
+
+<p>“11. That all writts, Warrants &amp; Proceedings at Law shall
+be in his Ma<sup>ties</sup> Name. It having been practiced in y<sup>e</sup>
+Government ever since the first writing of the Law booke, And
+being his Royall Highness Speciall pleasure &amp; Order.”&#x2060;<a id="FNanchor_56_56" href="#Footnote_56_56" class="fnanchor">[56]</a>&#x2060;</p>
+</blockquote>
+
+<p>The promulgation of the laws and the more definite
+instructions for the administration of justice must have
+given general satisfaction, for in their communications
+with the governor the justices seem to have been in
+doubt on many points, and a delay in forwarding copies
+of the laws seems to have given them considerable anxiety.
+In a letter of June 8, 1677, the magistrates of New
+Castle write: “We likewise humbly desier that the
+sending of the Law booke may not be forgot, there being
+great occasions for the same.”&#x2060;<a id="FNanchor_57_57" href="#Footnote_57_57" class="fnanchor">[57]</a>&#x2060;</p>
+
+<p>It may be interesting at this point to give a brief
+account of the most important civil suit fought out in
+the territory on the Delaware at this early date, involving
+the title to Tinicum Island. It was here, as we
+have seen, that the Swedish governor, John Printz,
+established the seat of government, building a block-house,
+church and private residence called Printzhof,
+the island having been granted to him in 1643 by Queen
+Christina “for a bouwery” as a reward for his services.&#x2060;<a id="FNanchor_58_58" href="#Footnote_58_58" class="fnanchor">[58]</a>
+After the Dutch conquest his daughter, Jeuffro Armgart,
+wife of John Pappegoya, the successor of Printz
+as governor, was on her petition, permitted in 1656 “to
+take possession and cultivate the lands of her lord and
+<span class="pagenum" id="Page_26">[Pg 26]</span>father.”&#x2060;<a id="FNanchor_59_59" href="#Footnote_59_59" class="fnanchor">[59]</a> Jeuffro Armgart as agent for her father sold
+the property on May 29, 1662, to Joost De LaGrange who
+paid one half of the purchase money and entered into
+possession. Trouble occurred at once over payment
+of the balance. In the latter part of 1662 a bill of
+exchange given by LaGrange was protested, Jeuffro
+Armgart recovered judgment and an appeal was taken.
+Printz died in 1663 and Jeuffro’s power to act for her
+sisters was disputed. In the meantime the English
+conquered the New Netherlands, LaGrange died and his
+widow married Andrew Carr who obtained a patent for
+the island from Governor Lovelace in 1669. While the
+Carrs were abroad, looking after an estate they had
+inherited, Jeuffro Armgart returned with powers of
+attorney from her sisters and brought suit for the balance
+of the purchase money at the court of New Castle. The
+case was adjourned or appealed to the court of assizes
+at New York, where it was tried on October twelfth,
+1672.&#x2060;<a id="FNanchor_60_60" href="#Footnote_60_60" class="fnanchor">[60]</a> Some of the papers were in “high” and some
+in “low” Dutch and the services of an interpreter were
+required. The defendants’ attorney, Mr. Ryder, protested
+that Captain John Carr’s letter of attorney from
+Andrew Carr was not sufficient to authorize him to
+defend the suit and moved for a continuance, which was
+refused. The case was sent to the jury, who brought in
+a verdict for the plaintiff for the full amount of her
+claim upon which judgment was entered. In the month
+of January following the governor and council issued
+an execution directed to Captain Edmund Cantwell,
+high sheriff at New Castle, who was directed to seize
+<span class="pagenum" id="Page_27">[Pg 27]</span>the land and goods of the Carrs, particularly Tinicum.&#x2060;<a id="FNanchor_61_61" href="#Footnote_61_61" class="fnanchor">[61]</a>
+The latter island was to be appraised and if found of less
+value than the debt, the plaintiff was to be given possession
+and a further levy made on other property of the
+defendants. Jeuffro Armgart was accordingly restored
+to possession of the island which she sold to Justice
+Otto Ernest Cock. The new owner was, however, not
+to rest in quiet possession. Arnoldus De LaGrange, son
+of Joost, when of age returned to America and
+settled at New Castle where he subsequently became
+a justice of the peace. Shortly after his return he presented
+to Governor Andros a petition for equitable
+relief against the judgment of the court of assizes,
+setting forth his infancy at the time of the trial and
+other defects in the proceedings.&#x2060;<a id="FNanchor_62_62" href="#Footnote_62_62" class="fnanchor">[62]</a> No answer to the
+petition is recorded but at the last session of the Upland
+court before the transfer of the territory to Penn held
+June 14, 1681, suit was brought by LaGrange against
+Cock which was postponed to the next court “by reason
+that there’s noe court w<sup>th</sup>out Justice Otto whoe is a
+party.”&#x2060;<a id="FNanchor_63_63" href="#Footnote_63_63" class="fnanchor">[63]</a> The case was finally tried at a court held at
+Chester 22, 6 mo. 1683, where LaGrange was represented
+by Abraham Mann and Cock by John White as
+attorneys in the suit. The plaintiff declared as heir
+at law and the defense was that part of the purchase
+money had never been paid. The verdict of the jury
+as entered on the record is:—</p>
+
+<blockquote>
+<p>“The jury finde for ye Plaint and alsoe give him his costs
+of suite and fforty shillings damage; the Plaint paying to ye
+<span class="pagenum" id="Page_28">[Pg 28]</span>Deft Thirty &amp; seaven pounds &amp; Tenne Shillings, according to
+an agreement between ye Plaint and Deft produced &amp; read in
+this court &amp; alsoe delivering ye Block House &amp; pticuters in ye
+same agreemt mentioned. Judgmt is thereupon awarded.”&#x2060;<a id="FNanchor_64_64" href="#Footnote_64_64" class="fnanchor">[64]</a>&#x2060;</p>
+</blockquote>
+
+<p>Here we have an early, if not the first, example of a
+conditional verdict so popular afterwards in Pennsylvania
+when an equitable defense was raised in an action
+of ejectment. Execution issued on this judgment and
+LaGrange was put in possession. Less than a year
+afterward he sold the island to Christopher Taylor, the
+first register general, one of whose descendants left a
+will that gave rise, in the nineteenth century, to litigation
+as long and stubborn as that we have recounted.&#x2060;<a id="FNanchor_65_65" href="#Footnote_65_65" class="fnanchor">[65]</a>
+The Printz mansion was destroyed by fire in 1822 but
+it is said that on the site ancient bricks of a foreign
+make and pale yellow color have been found which were
+once a part of this venerable structure.&#x2060;<a id="FNanchor_66_66" href="#Footnote_66_66" class="fnanchor">[66]</a>&#x2060;</p>
+
+<p>It would seem from the above proceedings and from
+an order of Governor Andros of July 17, 1678,&#x2060;<a id="FNanchor_67_67" href="#Footnote_67_67" class="fnanchor">[67]</a> that lands
+were regarded as liable for debts, contrary to the common
+law where the creditor’s only remedy was by writ
+of elegit under which one half of the rents could be
+taken.&#x2060;<a id="FNanchor_68_68" href="#Footnote_68_68" class="fnanchor">[68]</a> Penn’s first legislation subjected lands to execution
+to a limited extent, but not until 1700 was the
+<span class="pagenum" id="Page_29">[Pg 29]</span>whole land made liable where no personal property
+could be found.&#x2060;<a id="FNanchor_69_69" href="#Footnote_69_69" class="fnanchor">[69]</a>&#x2060;</p>
+
+<p>That land was subject to seizure for debts under the
+Dutch rule is indicated by the following extract from
+the minutes of Jacquet’s court, February 14, 1657:—</p>
+
+<blockquote>
+<p>“Isack Allerton has had seized by the Court Messenger subject
+to the decision of the Hon<sup>ble</sup> Council, the immovable property
+belonging to Peter Hermausen here on the river.”&#x2060;<a id="FNanchor_70_70" href="#Footnote_70_70" class="fnanchor">[70]</a>&#x2060;</p>
+</blockquote>
+
+<p>From such records as have escaped destruction we are
+enabled to present a fair outline of the actual practice
+in these primitive tribunals, presided over by laymen
+and unembarrassed by the conflicting arguments of professional
+lawyers. An adequate notion of the crudity
+of the proceedings can be conveyed only by examples
+from the records which were kept in the most informal
+fashion. Sometimes the entries are limited to the names
+of the parties and the judgment, while in other instances
+there is a summary of pleadings and evidence. While
+the names of common law actions, such as debt, case
+and replevin, are used there is little to indicate that
+judges or parties had more than a very vague conception
+of their scope and distinctions. Thus, there is an
+entry of “an action of the Case for twoo peeces of
+marrish &amp; y<sup>e</sup> hay thereon mowed.”&#x2060;<a id="FNanchor_71_71" href="#Footnote_71_71" class="fnanchor">[71]</a> Appeals to New
+York were frequent and were sometimes specially allowed
+by the governor, as would appear from the following
+example:—</p>
+
+<blockquote>
+<p>
+  “By the Governor
+</p>
+
+<p>“Upon the request of Hans Pieterson, concerning several
+Judgm<sup>ts</sup> of the Courts of New Castle &amp; Upland in Delaware
+in a case between the sd Pieterson &amp; D<sup>o</sup> Lawrentius Carolus,
+<span class="pagenum" id="Page_30">[Pg 30]</span>concerning a certain Mare, The Jureys tho’ composed in part of
+the same Persons, yet brought in several Verdicts, the Courts
+having given different Judgm<sup>ts</sup> accordingly, &amp; it not appearing
+by any Testimonies what Mare was in Difference; I do therefore
+hereby Order, that the Execucons in s<sup>d</sup> Matter be Suspended, &amp;
+a full Acco<sup>t</sup> of all s<sup>d</sup> Proceeding in both Co<sup>ts</sup> be forthwith sent me.</p>
+
+<p>“Actum in New York this 28th day of July, 1677.</p>
+
+<p class="author">
+  “E. ANDROS.
+</p>
+
+<p>“To the Courts of New Castle and Upland &amp; all Officers in
+Delaware whom it may concern.”&#x2060;<a id="FNanchor_72_72" href="#Footnote_72_72" class="fnanchor">[72]</a>&#x2060;</p>
+</blockquote>
+
+<p>Such appeals were heard at the general court of
+assizes in the city of New York, the minutes of which
+present a spirited picture of assembled worthies. One
+appeal from a judgment of the court at the Whorekill
+concerning the title to a tract of land was tried in 1680
+before the following distinguished company: the governor,
+Sir Edmund Andros, five members of the council,
+the mayor and five aldermen of New York, the chief
+justice of Nantucket, the two commissaries of Albany,
+three justices from New Jersey, two from “Peniquid
+and parts eastward,” and a dozen more from Long Island
+and New York. The judgment of the lower court was
+affirmed at the cost of the appellant.&#x2060;<a id="FNanchor_73_73" href="#Footnote_73_73" class="fnanchor">[73]</a> On another occasion
+(in 1681) a case was tried in which the defendant,
+one of the justices of the court at New Castle, was
+accused of misconduct in his office.</p>
+
+<blockquote>
+<p>“M<sup>r</sup> John Moll Justice of the Peace and President of the Court
+at Newcastle being called to Answer to an Indictment Exhibitted
+against him by one Abram Mann for severall Words and Expressions
+by him said to be uttered and spoken in Court and at
+other Times, To which the said John Moll pleaded not Guilty,
+and a jury being Impanelled and Sworne with several Evidences
+they brought in their Verdict and found him guilty of Speaking
+the Words mentioned in the first and second Articles and of
+<span class="pagenum" id="Page_31">[Pg 31]</span>Denying Execution when demanded, menconed in the fourth
+Article, and for the rest not Guilty, the which the Court taking
+into Consideration Do adjudge the said Indictment to be illegal
+and vexatious and that the said John Moll by what found against
+him is not Guilty of any Crime or Breach of any known Law
+Therefore do Acquitt the said John Moll from the same and
+Order the said Abram Mann to Pay the Costs of Court. The
+said Mann moved for an Appeale for England which is granted
+he giving sufficient Security to the value of One Thousand
+Pounds to Prosecute the same and pay damage to the Party
+if lost.”&#x2060;<a id="FNanchor_74_74" href="#Footnote_74_74" class="fnanchor">[74]</a>&#x2060;</p>
+</blockquote>
+
+<p>It is interesting to note that the parties to this suit
+were afterwards prominent in Penn’s government. Justice
+Moll became a member of the first provincial council
+and was one of the committee that drew up the amended
+frame of government, or charter of 1683, while Abram
+Mann was a member of the assembly from New Castle
+in the sessions of 1684-5.</p>
+
+<p>It would not do to omit mention of the first state
+trial, if it may be so called, that was held on the Delaware.
+Near the close of 1669 a disturbance was created
+by one Marcus Jacobson, alias John Binckson, but better
+known as “Long Finne,” who pretended to be a son of
+Conningsmark, a Swedish general. Whether this so-called
+insurrection was a serious attempt to overthrow
+the government, or a mere riotous or seditious disturbance,
+it was treated with the utmost seriousness by
+Deputy Governor Carr as well as Governor Lovelace.
+An order for the Finne’s arrest was issued, and he was
+put in irons, while the other persons implicated were
+bound over for court. At a meeting of the council in
+New York on October 18, 1669, it was resolved:—</p>
+
+<p><span class="pagenum" id="Page_32">[Pg 32]</span></p>
+
+<blockquote>
+<p>“Vpon serious &amp; due Consideracon had of the Insurrection
+begann by ye Long Finne at Delaware, who gave himself out
+to bee son of Coningsmarke a Swedish Generall &amp; y<sup>e</sup> dangerous
+consequences thereof, It is adjudged that y<sup>e</sup> said Long Finne
+deserves to dye for the same. Yet in regard that many others
+being concerned w<sup>th</sup> him in that Insurrection might be involved
+in the Premunire if the rigour of the Law should be extended
+&amp; amongst them divers simple and ignorant People:
+It is thought fitt and Ordered, that the said Long Finne shall
+be publickly &amp; severely whipt &amp; stigmatiz’d or branded in the
+fface with the Letter (R) with an Inscription written in great
+Letters &amp; putt upon his Breast, That he received that Punishment
+for Attempting Rebellion, after wh<sup>ch</sup> that hee bee secured
+untill hee can bee sent &amp; sold to the Barbadoes or some other
+of those remote Plantations.”&#x2060;<a id="FNanchor_75_75" href="#Footnote_75_75" class="fnanchor">[75]</a>&#x2060;</p>
+</blockquote>
+
+<p>But after deciding upon his fate, it was determined
+to try him according to the forms of law and a special
+commission was issued to Mathias Nicolls and others
+to try him, whose instructions were to hold the court
+according to a prescribed form, which presents an excellent
+picture of the practice then followed in a criminal
+trial.</p>
+
+<blockquote>
+<p>“The forme of holding the Co<sup>rt</sup> at the Fort in Newcastle upon
+Delaware River for the Tryall of the Long Finne &amp;c. about the
+late Insurrection, Decem. y<sup>e</sup> 6th 1669.</p>
+
+<p>“Vpon the meeting of the Court let a proclamation bee made by
+saying, O yes, O yes, O yes, Silence is commanded in the Co<sup>rt</sup>
+whilst his Ma<sup>ties</sup> Commissioners are sitting Vpon paine of imprisonment.</p>
+
+<p>“Lett the Commission be read &amp; the Commission<sup>rs</sup> called vpon
+afterwards, if any shall bee absent Let their names bee recorded.</p>
+
+<p>“Then let the proclamacon bee made again by O yes, as before,
+after which say: All manner of persons that have anything to doe
+at this speciall Co<sup>rt</sup> held by Commission from the Right Ho<sup>ble</sup>
+Francis Lovelace Esq. Governo<sup>r</sup> Genr<sup>l</sup> vnder his Royal Highness
+the Duke of York of all his Territories in America draw
+neare to give yo<sup>r</sup> attendance, and if any one have any plaint to
+<span class="pagenum" id="Page_33">[Pg 33]</span>enter or suite to prosecute let them come forth &amp; they
+shall bee heard.</p>
+
+<p>“After this let a jury of twelve good men bee empannelled.</p>
+
+<p>“Then let the Long Finne prisoner in the Fort bee called for &amp;
+brought to the Barr.</p>
+
+<p>“Vpon which the jury is to be called over &amp; numbered one,
+two &amp;c. &amp; if the prisoner have no exception against either of
+them let them bee sworne as directed in the Booke of Laws
+for Tryall of Criminals, and bid to look vpon the prisoner at the
+Barre.</p>
+
+<p>“The forme of the oath is as followeth: You do swear by the
+Everliving God that you will conscientiously try and deliver
+your verdict between o<sup>r</sup> Sovaraigne Lord the King, &amp; the prisoner
+at the Barre according to evidence &amp; the lawes of the Country,
+so helpe you God &amp; the contents of this booke.</p>
+
+<p>“Then let the prisoner bee again called vpon and bid to hold
+up his right hand:</p>
+
+<p>“Viz. John Binckson alias Marcus Coningsmark alias Coningsmarcus
+alias Mathew Hincks....</p>
+
+<p>“Then proceed with the indictment as follows:</p>
+
+<p>“John Binckson, Thou standest here indicted by the name
+of John Binckson alias Coningsmark alias Coningsmarcus alias
+Mathews Hinks, alias, etc. for that having not the feare of God
+before thine eyes but being instigated by the devill vpon or
+about the 28th day of August in y<sup>e</sup> 21st year of the Raigne of
+o<sup>r</sup> Soveraigne Lord Charles the 2d by the Grace of God of England
+Scotland, France and Ireland, King, Defender of the Faith &amp;c.
+Annoque Domini 1669, at Christina &amp; at severall other times &amp;
+places before, thou didst most wickedly, traitorously, feloniously
+&amp; maliciously conspire and attempt to invade by force of armes
+this Government setled vnder the allegiance and protection
+of his Ma<sup>ties</sup> &amp; also didst most traitorously solicit &amp; entice
+divers &amp; threaten others of his Ma<sup>ties</sup> good subjects to betray
+their allegiance to his Ma<sup>ties</sup> the King of England persuading
+them to revolt &amp; adhere to a forraign prince, that is to say,
+to the King of Sweden In prosecution whereof thou didst appoint
+and cause to bee held Riotous, Routous &amp; Vnlawfull Assemblyes,
+breaking the Peace of o<sup>r</sup> Sovereign Lord the King and the laws
+of this Government in such cases provided John Binckson &amp;c
+what hast thou to say for thyself, Art thou guilty of the felony &amp;
+treason layd to thy charge or not guilty. If hee says not guilty,
+then ask him By whom wilt thou be tryed. If hee say be God &amp;
+his countrey, say, God send the a good deliverance.</p>
+
+<p><span class="pagenum" id="Page_34">[Pg 34]</span></p>
+
+<p>“Then call the witnesses and let them bee sworne either to
+their testimony already given, in or to what they will then declare
+upon their oaths.</p>
+
+<p>“Vpon which the jury is to have their charge giving them
+directing them to find the matter of Fact according to the
+Evidence and then let them bee called over as they go out to
+consult upon their verdict in which they must all agree.</p>
+
+<p>“When the jury returns to deliver in their verdict to the Co<sup>rt</sup>
+let them bee called over againe &amp; then ask<sup>t</sup>: Gent<sup>s</sup>, are you
+agreed upon your verdict in this case in difference between o<sup>r</sup>
+soveraign Lord the King &amp; the prisoner at the Barr. Upon
+their saying yes aske who shall speak for you. Then the ...
+bring in their verdict &amp; the ... then read the verdict and say:
+Gentlemen, this is y<sup>r</sup> verdict upon which you are all agreed;
+upon their saying yes, call that the prisoner bee taken from
+the barre &amp; secured.”&#x2060;<a id="FNanchor_76_76" href="#Footnote_76_76" class="fnanchor">[76]</a>&#x2060;</p>
+</blockquote>
+
+<p>As a matter of course the Finn was convicted and
+sentenced. The last we hear of him is in this minute
+of the council, January 25, 1669-70:—</p>
+
+<blockquote>
+<p>“This day ye Long ffinne called Marcus Jacobsen was by
+warrt put on board Mr. Cosseans Ship called y<sup>e</sup> Fort Albany
+to be Transported &amp; sould at y<sup>e</sup> Barbadoes according to y<sup>e</sup>
+sentence of Court at Delaware for his attempting rebellion. He
+had beene a prisoner in y<sup>e</sup> State house ever since y<sup>e</sup> 20th day of
+Decemb<sup>r</sup> last.”&#x2060;<a id="FNanchor_77_77" href="#Footnote_77_77" class="fnanchor">[77]</a>&#x2060;</p>
+</blockquote>
+
+<p>We are fortunate in possessing portions of the records
+of the county courts during this period. That of Upland
+is particularly interesting as presenting a complete
+record of the first county court on Pennsylvania soil
+from the year 1676 to the announcement, in June, 1681,
+of the transfer of the government to William Penn. In
+the commissions issued by the governor six justices of the
+peace are named, any three or more of whom may hold
+court, the commissions to be in force for one year or
+until further order. It would be tedious to recite the
+<span class="pagenum" id="Page_35">[Pg 35]</span>manifold duties performed by the justices, whose functions
+included those now delegated to the county commissioners,
+directors of the poor and auditors as well as
+those pertaining strictly to their judicial office. They
+granted applications for taking up land, took acknowledgments
+of deeds, and exercised a general supervision
+over the churches, the repair of the highways, the
+maintenance of fences, the sale of the time of bound
+servants, and even recorded the earmarks of cattle.</p>
+
+<p>The expenses connected with the sittings of the courts
+were supposed to be met by the fees and fines imposed,
+but these were not always easily collected and the
+Upland justices record in one place that they are “in
+great want of some meanes to pay and defray their
+necessary charges of meat and drinke.”&#x2060;<a id="FNanchor_78_78" href="#Footnote_78_78" class="fnanchor">[78]</a> The court at
+the Whorekill, the name of which had been changed to
+Deal, made this clever bargain:—</p>
+
+<blockquote>
+<p>“It is agreed and Concluded upon by the Court and Alexander
+Moulston as followeth; that from the first day of this moneth
+the said Alexander Moulston shall have to his owne proper use
+all the Amacements that doe from that day becom due to the
+court for one whole yeare; and that the said Alix Moulston doe
+Ingage to find and allow the Justices of this Court for the time
+being and there friends and strangers with house roome and
+diett And one gallon of Rum and wine for every Court during
+the said year.”&#x2060;<a id="FNanchor_79_79" href="#Footnote_79_79" class="fnanchor">[79]</a>&#x2060;</p>
+</blockquote>
+
+<p>Actions for the recovery of debts, for assault and
+battery and slander predominate. It would seem that
+the judges sometimes found it necessary to appeal to
+their own tribunal, as the following case shows:—</p>
+
+<blockquote>
+
+<table class="autotable">
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+“Justice Otto Ernest Coch Plt.
+</td>
+<td class="tdl">
+{
+</td>
+<td class="tdl">
+In an action of slaunder
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+“Moens Petersen Staecket Deft.
+</td>
+<td class="tdl">
+{
+</td>
+<td class="tdl">
+<span class="indent">&amp; defamat.</span>
+</td>
+</tr>
+</table>
+
+
+<p>“The p<sup>lt</sup> Complaines that this deft. maliciously has defamed
+and most highly slaundered him in his Honor &amp; reputation
+<span class="pagenum" id="Page_36">[Pg 36]</span>by terming him a hogh theef, desires that this deft (if hee or
+any others can) will prove ye same, or otherwayes that hee
+may bee punisht according to Lawe.</p>
+
+<p>“The deft sayes and protests, that hee never Knew heard or
+sawe, that this Plt was guilty of any such fact, and that hee
+to his knowledge never sayed any such thing, but if that he
+hath sayed itt (as the witness doe afirme:) that itt must haue
+been in his drink, hee humbly desires forgivenesse, sence hee
+finds himselfe in a great fault;</p>
+
+<p>“Hans Jurian, william orian &amp; andries homman sworne in Co<sup>rt</sup>
+declare that they haue heard moens Peterss Staecket say in full
+tearmes &amp; substance, Mr. Otto is a hogh theef of ye one &amp; andries
+Boen of ye other syde &amp; further say nott;</p>
+
+<p>“The Court haueing heard ye Case doe order that ye deft: shall
+publicqly in open Court declare that hee has wrongfully falsly &amp;
+malisiously slaundered &amp; blamed this p<sup>lt</sup> and doe further fyne
+him for an Example to others to pay the sume of one thousand
+gilders w<sup>th</sup> the Costs;</p>
+
+<p>“The deft. did willingly in open Court, declare as above &amp;
+humbly desires forgivenesse &amp; prayes that ye fyne may bee
+remitted, Upon ye Intercession of Justice Otto Ernest, the Co<sup>rt</sup>
+did remit ye fyne above<sup>d</sup>.”&#x2060;<a id="FNanchor_80_80" href="#Footnote_80_80" class="fnanchor">[80]</a>&#x2060;</p>
+</blockquote>
+
+<p>Judgments are entered sometimes in guilders and
+stivers and sometimes in pounds of tobacco, wheat or
+other products. In one case at Upland the court
+ordered the defendant to pay the plaintiff “twenty gilders
+in wheat and twenty six in pompkiens.”&#x2060;<a id="FNanchor_81_81" href="#Footnote_81_81" class="fnanchor">[81]</a>&#x2060;</p>
+
+<p>A case, showing the primitive practice, from the
+commencement to the termination of a suit, is that of—</p>
+
+<p><span class="pagenum" id="Page_37">[Pg 37]</span></p>
+
+<blockquote>
+<p>
+  “James Sanderlins plt<br>
+<span class="indent">ags</span><sup>t</sup><br>
+  <br>
+  “John Edmunds of<br>
+  <span class="indent">maryland</span> <span class="indent2">Def</span><sup>t</sup>
+</p>
+
+<p>“The plt demands by bill from this deft. ye sume of 1200 lb
+of good &amp; merchandable Tobbacco &amp; Caske to bee paid in Great
+Chaptank River in maryland on all demands after ye 10th of
+october 1675; as by the said bill under ye hand and seale of the
+def<sup>t</sup> bearing date ye 9th of June 1675; &amp; produced in Court did
+more att Large appeare, the plt further declaring &amp; prooveing
+in Court that hee hath made severall Legall demands of the s<sup>d</sup>
+debt, and y<sup>e</sup> the same was not paid to this day, desiering that
+this Co<sup>rt</sup> would be<sup>e</sup> pleased to grant him Judgem<sup>t</sup> ag<sup>st</sup> ye de<sup>ft</sup>
+and to allow of his attachment Laid upon a certaine great
+Boate or shiallop &amp; appurtenances now att upland—That
+the same might bee publicqly sould and the p<sup>lt</sup> payed his Just
+due w<sup>th</sup> ye Costs;</p>
+
+<p>“m<sup>r</sup> walter wharton one of the witnesses to ye sd bill being
+sworne in Court declared that hee was p<sup>rsent</sup> and did see John
+Edmundsen signe seale and deliver, the abovesaid bill of 1200
+lb of Tobacco, to James Sanderlins;</p>
+
+<p>“The Court haueing Examined into ye businesse, and finding
+the Case to bee Just, did order that Judgment bee Entered
+against the deft: John Edmunds, for the paym<sup>t</sup> of ye sd. 1200
+lb of Tobacco, or the True vallue thereof, and alloweing of ye
+Plts attachm<sup>t</sup> doe hereby order the vendu master, to sell the
+boate &amp; appurtenances, this Courtday to the most bidders,
+out of which hee to pay James Sanderlins his debt w<sup>th</sup> ye Costs,
+and the overplus to bee returned to John Edmunds or his order;</p>
+
+<p>“According to the aboves<sup>d</sup> order of Co<sup>rt</sup> was this day being ye
+12th of Novembr, by publicq outcry sould unto m<sup>r</sup> John Test, as
+ye highest bidder the boate &amp; appurtenances for ye sume of
+six hundred and twenty fyve gilders; to bee paid in New Castle
+with merchandable Tobbacco &amp; Caske dutch w<sup>th</sup> &amp; tarr att 8
+styvers pr lb or w<sup>th</sup> merchandable wheat at 5 gilders pr schipple
+att or before ye Laest of march next Ensuing, as by the Conditions
+of sale upon ye fyle att Large doth &amp; may appeare;</p>
+
+<p>“James Sanderlins bound himselfe as security for ye true payment
+of ye aboves 625 gilders according to the conditions.”&#x2060;<a id="FNanchor_82_82" href="#Footnote_82_82" class="fnanchor">[82]</a>&#x2060;</p>
+</blockquote>
+
+<p>As these proceedings occurred all on one day, the
+parties could not complain of the delays of the law.
+<span class="pagenum" id="Page_38">[Pg 38]</span>What would appear to be the first recorded action for
+negligence is entered as follows on the New Castle
+records:—</p>
+
+<blockquote>
+<p>“Mounes Powell plt</p>
+
+<p>“Hans Pietersen Deft</p>
+
+<p>“The p<sup>lt</sup> declares that this de<sup>ft</sup> about one Jeare sence was the
+occascon that he the plt lost the use of his boddy so that he was
+&amp; is not able to worke for his wife and family and therefore
+humbly craves that the de<sup>ft</sup> may be ordered to hire a servant
+for him until he bee restored to health:—The court having heard
+the answer of the deft and finding by the evidence sworne in
+court, as also by the p<sup>lt</sup> owne confession that itt was an accidental
+mischange, doe order that the deft shall pay the curing to the
+doctors bill this date and moreover Pay unto the p<sup>lt</sup> in regard
+of his smart and Payne w<sup>ch</sup> the p<sup>lt</sup> hath suffered the sume of
+one hundred and fifty gilders and pay cost of sute.”&#x2060;<a id="FNanchor_83_83" href="#Footnote_83_83" class="fnanchor">[83]</a>&#x2060;</p>
+</blockquote>
+
+<p>In another case in 1679 a mortgage is foreclosed:—</p>
+
+<blockquote>
+<p>“John Moll P<sup>lt</sup></p>
+
+<p>“Robberd Hutchinson Def<sup>t</sup></p>
+
+<p>“The P<sup>lt</sup> declares that one Daniel Linsy being his debtor the
+sume of 847 lb of Tobacco &amp; Caske did on y<sup>e</sup> day of 167; mortgage
+Trasport &amp; make over unto this P<sup>lt</sup> a Certain peece of
+Land Lying in Appoquenemen Creeke, above y<sup>e</sup> old Landing
+w<sup>ch</sup> s<sup>d</sup> mortgage and Transp<sup>rt</sup> was to bee void upon y<sup>e</sup> payment
+of y<sup>e</sup> s<sup>d</sup> 847 lb of tobbatt y<sup>e</sup> time in y<sup>e</sup> s<sup>d</sup> deed Exprest, as by
+the s<sup>d</sup> mortgage bearing date as above more att Largedid appeare
+and that this deft Robberd hutchinson, haueing sence bougt
+the s<sup>d</sup> Land from y<sup>e</sup> s<sup>d</sup> Linsey did promise to pay y<sup>e</sup> P<sup>lt</sup> his
+s<sup>d</sup> debt w<sup>ch</sup> being nott performed, The P<sup>lt</sup> is now forced to Commence
+his action in Lawe, and humbly Craues this Co<sup>rts</sup> order
+so that hee may haue y<sup>e</sup> forfeiture and benefitt of his afores<sup>d</sup>
+mortgage and that hee may bee put in peaceable Possession of
+the s<sup>d</sup> Land according to s<sup>d</sup> deed. The Co<sup>rt</sup> haueing Examined
+the premises doe Judge that according to Lawe and the s<sup>d</sup> deed
+the Land aboves<sup>d</sup> is forfeited and belonging to y<sup>e</sup> P<sup>lt</sup> and therefore
+do order that the P<sup>lt</sup> bee put in Lawfull Possession thereof.”&#x2060;<a id="FNanchor_84_84" href="#Footnote_84_84" class="fnanchor">[84]</a>&#x2060;</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_39">[Pg 39]</span></p>
+
+<p>A case that perplexed the justices at Deal involved a
+gambling contract.</p>
+
+<blockquote>
+<p>“Henry Bowman P<sup>lt</sup>, James Welles and John Newall defts.
+The P<sup>lt</sup> declare that the defts did contract &amp; agree w<sup>th</sup> him to
+Run A horse Race for three thousand pounds of Tobacco; and
+that he the said P<sup>lt</sup> ded wine; the deft pleaded that the Contract
+was not confirmed, the cause being debated on both sides and
+severall witnesses Examined the Cause was Referred to a Jurey;
+w<sup>ch</sup> went out and brought in there verdict; that they finde for
+the p<sup>lt</sup> with Cost of suit and one shill Damages; and the defts
+arest the Judgmt of the Court &amp; craved an Appeale to have
+the Cause to be Tryd at the next Gennarall Court of Assisses
+at New York befor the Honorable Governor and Councell;
+the vallow being under twenty pounds the Court Could not
+agree weather it was appealeable or not; and soe refered the
+same untill the next Court; there being sume thing dubous
+in the Testament of the Wittnesses.”&#x2060;<a id="FNanchor_85_85" href="#Footnote_85_85" class="fnanchor">[85]</a>&#x2060;</p>
+</blockquote>
+
+<p>A competent authority has remarked, “the whole
+method of practice was rather a dispensation of justice,
+as the idea of it existed in the heads and was tempered
+by the hearts of the judges, than the administration
+of any law written or unwritten.”&#x2060;<a id="FNanchor_86_86" href="#Footnote_86_86" class="fnanchor">[86]</a> And yet when we
+remember that these men were all laymen, pioneers
+on the border of the wilderness, whose true business
+was to clear the forests and till the soil, and whose
+judicial office was a burdensome duty, performed at a
+considerable sacrifice of time and money in the interest
+of their little communities, that they were without
+books or forms and sometimes without blank books in
+which to write their records, we may wonder that they
+did so well.&#x2060;<a id="FNanchor_87_87" href="#Footnote_87_87" class="fnanchor">[87]</a> The justices of these courts as members
+of the provincial council, as assemblymen, and as judges,
+played their part in the “Holy Experiment” heralded
+<span class="pagenum" id="Page_40">[Pg 40]</span>in the last entry in the Upland records. This entry,
+the last official act under the Duke of York’s administration,
+is a notice to the magistrates of the cession of
+the territory to William Penn and a direction that they
+should yield due obedience to the new proprietor. Here
+then it is that the histories of the commonwealths of
+Pennsylvania and Delaware begin, if commonwealths
+may be said to have a beginning.</p>
+
+<p>On March 4, 1681, the province of Pennsylvania was
+granted by King Charles II to William Penn, son of
+Vice Admiral Penn, to whom a considerable debt was
+then owing by the Crown.&#x2060;<a id="FNanchor_88_88" href="#Footnote_88_88" class="fnanchor">[88]</a> It would be tempting at this
+point to turn aside and discuss the character and career
+of the remarkable man who founded the commonwealth
+of Pennsylvania. Much has been written about him and
+yet it is doubtful if he has received his real due from
+history. William Penn was an idealist, perhaps in some
+respects a visionary man, and yet many of his views
+were eminently sensible and fundamentally sound. The
+leader of an exclusive religious sect, the welcome guest
+at court, the friend alike of James II, of Algernon Sydney
+and of John Locke, a man of brilliant parts and attractive
+personality, yet modest, generous, tolerant and
+forgiving, the nobility of his character as revealed in his
+writings and conduct is worthy of our highest admiration,
+little as it was appreciated by those who, like
+Franklin, owed much of their prosperity to his “Holy
+Experiment,” but could not understand his motives.
+To his enlightened benevolence and faith in mankind,
+civilized and savage, was due the early prosperity and
+progress of the commonwealth. As a German writer
+has well observed, “Of all the colonies that ever existed
+none was ever founded on so philanthropic a plan, none
+was so deeply impressed with the character of its founder,
+<span class="pagenum" id="Page_41">[Pg 41]</span>none practised in a greater degree the principles of
+toleration, liberty and peace, and none rose and flourished
+more rapidly than Pennsylvania. She was the
+youngest of the British colonies established before the
+eighteenth century, but it was not long before she surpassed
+most of her elder sisters in population, agriculture
+and general prosperity.”&#x2060;<a id="FNanchor_89_89" href="#Footnote_89_89" class="fnanchor">[89]</a>&#x2060;</p>
+
+<p>An analysis of the charter granted to Penn belongs
+rather to constitutional history than to our subject.
+The English government was daily becoming more
+impressed with the importance of the colonies in America,
+and in consequence the document was drawn with more
+care for the royal prerogative than the earlier charters.
+One of the most important of its provisions was that
+requiring a transcript of all laws made and published in
+the province to be transmitted within five years to the
+privy council, and if within six months such laws should
+be declared inconsistent with the king’s prerogative or
+sovereignty, the same should be declared void, otherwise
+to remain in full force. Penn was given full power
+to make laws, with the advice and consent of the freemen
+of the country or their deputies in assembly, to
+appoint judges, justices and other judicial officers, to
+pardon crimes, treason and willful and malicious murder
+excepted, and to “do all and every other thing and
+things which unto the complete establishment of justice,
+unto courts and tribunals, forms of judicature and
+manner of proceedings do belong,” and by judges
+appointed, to award process, hold pleas and determine
+all actions, suits and causes whatsoever, as well criminal
+as civil, personal, real and mixed. By three deeds the
+Duke of York conveyed to Penn the territory covered
+by the charter and the three lower counties.</p>
+
+<p><span class="pagenum" id="Page_42">[Pg 42]</span></p>
+
+<p>On April 10, 1681, Penn commissioned his cousin,
+William Markham, to be deputy governor, who arrived
+on the Delaware about the first of July following. His
+first act was to call a council and on November 30th
+we find him holding court at Upland. Prior to this we
+have the first entry in the records of the Upland Court as
+part of the province of Pennsylvania.&#x2060;<a id="FNanchor_90_90" href="#Footnote_90_90" class="fnanchor">[90]</a> Nine justices
+are recorded as present. The first cases tried were two
+cross actions of assault and battery in which all parties
+were convicted and fined.&#x2060;<a id="FNanchor_91_91" href="#Footnote_91_91" class="fnanchor">[91]</a>&#x2060;</p>
+
+<p>Before sailing for America Penn drew up his famous
+“Frame of Government,” the original manuscript of
+which, with interlineations and notes in the handwriting
+of his friends, is preserved in the archives of the Historical
+Society of Pennsylvania.&#x2060;<a id="FNanchor_92_92" href="#Footnote_92_92" class="fnanchor">[92]</a> Penn was a close
+student of political institutions and lived at a time
+when, in his own words, there was “nothing the wits of
+men are more busy and divided upon.” He like many
+of his coreligionists had suffered imprisonment for conscience
+sake. The account of his trial is a fair picture
+of the administration of justice in the principal criminal
+court of London during the Stuart period.&#x2060;<a id="FNanchor_93_93" href="#Footnote_93_93" class="fnanchor">[93]</a> When we
+read those stirring pages we can understand the suspicion
+with which the courts were regarded by the
+colonists and their exaggerated faith in trial by jury.
+Fear of judicial oppression, in fact, had a marked influence
+on the development of our courts, was instrumental
+in checking the growth of chancery jurisdiction for
+several generations and was the primary cause of that
+jealousy of the judiciary which was long a feature of
+local politics.</p>
+
+<p><span class="pagenum" id="Page_43">[Pg 43]</span></p>
+
+<p>Penn, although he had grown up in a period of political
+unrest, was eminently practical in his ideas of government.
+He was a believer in men rather than in methods.
+In the preface to the Frame of Government he says:—</p>
+
+<blockquote>
+<p>“But lastly when all is said, there is hardly one frame of
+government in the world so ill designed by its first founders,
+that in good hands would not do well enough; and story tells
+us, the best in ill ones can do nothing that is great or good;
+witness the Jewish and Roman states. Governments, like clocks,
+go from the motion men give them, and as governments are
+made and moved by men, so by them they are ruined too.
+Wherefore governments rather depend upon men, than men
+upon governments. Let men be good, and the government cannot
+be bad; if it be ill, they will cure it. But if men be bad,
+let the government be never so good, they will endeavor to
+warp and spoil to their turn.”&#x2060;<a id="FNanchor_94_94" href="#Footnote_94_94" class="fnanchor">[94]</a>&#x2060;</p>
+</blockquote>
+
+<p>Under the system of government first established by
+Penn the executive powers were vested in the governor
+and provincial council, while the legislative powers were
+vested in the governor, provincial council and general
+assembly of the representatives of the freemen of the
+province. The provincial council was an elective body
+not only associated with the governor in the ordinary
+executive duties but also charged with the preparation
+of all new laws, which after publication,&#x2060;<a id="FNanchor_95_95" href="#Footnote_95_95" class="fnanchor">[95]</a> were to be
+submitted to the general assembly for approval. Both
+council and assembly were designed on generous proportions
+but at the request of the colonists the membership
+in both bodies was greatly reduced.&#x2060;<a id="FNanchor_96_96" href="#Footnote_96_96" class="fnanchor">[96]</a> The courts
+were to be erected by the governor and council, the
+latter body nominating a double number of candidates
+<span class="pagenum" id="Page_44">[Pg 44]</span>from whom the governor was to select a proper number
+for each office. This last provision did not work well
+in practice, as it was difficult to get enough men of the
+right sort to fill the commission of the peace, as the
+minutes of the council clearly show.</p>
+
+<p>It will be seen that the courts, as such, played but a
+subordinate part in the constitutional system. Indeed
+the conception of the judiciary as a coördinate branch
+of the government was as yet unrealized; balanced constitutions
+were the final products of the eighteenth century,
+the seventeenth was concerned with the fundamental
+rights, liberties and privileges of the subject.
+These rights, as applied in the administration of justice,
+were embodied in the “Laws agreed upon in England,”
+and published with the Frame of Government. It is
+therein declared—</p>
+
+<blockquote>
+<p>“That in all courts all persons of all persuasions may freely
+appear in their own way, and according to their own manner,
+and there personally plead their own cause themselves, or if
+unable, by their friends. And the first process shall be the
+exhibition of the complaint in court, fourteen days before the
+trial; and that the party complained against may be fitted
+for the same, he or she shall be summoned no less than ten days
+before, and a copy of the complaint delivered him or her, at
+his or her dwelling house. But before the complaint of any
+person be received, he shall solemnly declare in court, that he
+believes in his conscience his cause is just.</p>
+
+<p>“That all pleadings, processes, and records in courts, shall be
+short, and in English, and in an ordinary and plain character,
+that they may be understood, and justice speedily administered.</p>
+
+<p>“That all trials shall be by twelve men, and as near as may be
+peers, or equals, and of the neighborhood, and men without
+just exception. In cases of life, there shall be first twenty four
+returned by the sheriff for a grand inquest, of whom twelve
+at least shall find the complaint to be true; and then the twelve
+men or peers, to be likewise returned by the sheriff shall have
+the final judgment. But reasonable challenges shall be always
+admitted against the said twelve men or any of them.</p>
+
+<p>“That all fees in all cases shall be moderate, and settled by the
+Provincial Council and General Assembly, and be hung up in a
+<span class="pagenum" id="Page_45">[Pg 45]</span>table in every respective court; and whosoever shall be convicted
+of taking more, shall pay two-fold, and be dismissed his employment,
+one moiety of which shall go to the party wronged.”&#x2060;<a id="FNanchor_97_97" href="#Footnote_97_97" class="fnanchor">[97]</a>&#x2060;</p>
+</blockquote>
+
+<p>These provisions were enacted into law at assemblies
+held December 10, 1682,&#x2060;<a id="FNanchor_98_98" href="#Footnote_98_98" class="fnanchor">[98]</a> and March 1, 1683.&#x2060;<a id="FNanchor_99_99" href="#Footnote_99_99" class="fnanchor">[99]</a>
+    Indeed
+the first and third paragraphs were at the latter session,
+included among the “fundamental laws” not to be
+altered without the consent of the governor and six-sevenths
+of the freemen of the province.&#x2060;<a id="FNanchor_100_100" href="#Footnote_100_100" class="fnanchor">[100]</a> This early
+attempt to discriminate between the general body of
+law and certain laws which were regarded as “more
+essentially requisite” to the well being of the state is
+of interest to the student of constitutional law. It
+shows that at this early period the feeling was present
+that some laws, not necessarily political, ought to be
+marked out for a special sort of permanence; a feeling
+that has led to the development of the modern state
+constitution, absurdly complex and overloaded with non-political
+details.</p>
+
+<p>Notable, also, are the provisions for the commencement
+of actions by an informal complaint and for
+brevity and simplicity in the pleadings and court records,
+which although in keeping with the primitive local
+custom were as code provisions a radical departure
+from the common law, too radical, in fact, to withstand
+the growth of professional feeling in the eighteenth century.
+Penn’s more liberal contemporaries would not
+have thought of imposing upon a raw community the
+artificial system of England in its entirety, but few
+would have committed themselves to so radical a stand
+<span class="pagenum" id="Page_46">[Pg 46]</span>for permanent reform. As it happened lawyers soon
+emigrated to the province, bringing with them their
+cherished technicalities, and the old forms slowly but
+surely crept into use. Penn, indeed, was too much of a
+utilitarian to fully realize how deeply even the more
+cumbersome and fantastic features of the common law
+were rooted in the habits and customs of the people.
+We are reminded of his famous colloquy with Mr.
+Recorder Howell at his trial:—</p>
+
+<blockquote>
+<p>Penn. “I desire you would let me know by what law it is
+you prosecute me and upon what you ground your indictment.”</p>
+
+<p>Recorder. “Upon the common law.”</p>
+
+<p>Penn. “Where is that common law?”</p>
+
+<p>Recorder. “You must not think that I am able to run up
+so many years and over so many adjudged cases which we call
+common law to answer your curiosity.”</p>
+
+<p>Penn. “This answer I am sure is very short of my question
+for if it be common, it should not be so hard to produce.”</p>
+</blockquote>
+
+<p>Penn, like Bentham, would seem to have the best of
+the argument, but a century and a half passed before
+New York broke the chains of tradition in the code of
+1848.</p>
+
+<p>After a “prosperous passage of about two months,”
+Penn arrived before New Castle on the twenty-seventh
+of October, 1682, and demanded livery of seisin from
+the commissioners appointed by the Duke of York.
+The ceremony took place on October twenty-eighth and
+is thus reported by John Moll:—</p>
+
+<blockquote>
+<p>“Whereupon by virtue of the power given unto us by the
+abovementioned letters of attorney, we did give and surrender
+in the name of his royal highness, unto him the said William
+Penn, Esq., actual and peaceable possession of the fort of New
+Castle, by giving him the key thereof, to lock upon himself
+alone the door, which being opened by him again, we did deliver
+also unto him one turf, with a twig upon it, a porringer with
+river water and soil, in part of all what was specified in the
+<span class="pagenum" id="Page_47">[Pg 47]</span>said indenture or deed of enfeoffment from his royal highness,
+and according to the true intent and meaning thereof.”&#x2060;<a id="FNanchor_101_101" href="#Footnote_101_101" class="fnanchor">[101]</a>&#x2060;</p>
+</blockquote>
+
+<p>One of his first acts, after taking possession, was to
+commission six justices of the peace for New Castle and
+to send out notices for the holding of a court.&#x2060;<a id="FNanchor_102_102" href="#Footnote_102_102" class="fnanchor">[102]</a> At this
+court, which was attended by several of the council,
+as well as the justices, Penn delivered an address stating
+his purpose to call an assembly and recommending the
+magistrates, in the interim, to follow the laws of the
+Duke of York. Before the end of the year the province
+of Pennsylvania was divided into three counties, Philadelphia,
+Bucks, and Chester (which replaced Upland),
+and the lower territories into three also, New Castle,
+as before, while of the two counties into which the Whorekills
+had been divided, Deal became Sussex, and St.
+Jones, Kent. The county courts continued as already
+constituted, and for some time the boards of justices,
+therein assembled, exercised most of the functions of
+local government, such as the assessment of taxes, the
+erection of jails, the allotment of land to settlers and
+the abatement of public nuisances.&#x2060;<a id="FNanchor_103_103" href="#Footnote_103_103" class="fnanchor">[103]</a> The number of
+justices in any county varied from time to time with the
+pressure of business, the willingness or ability of those
+chosen to perform their duties or the favor of the council.
+Sometimes a man of importance was commissioned as
+justice for the whole province.</p>
+
+<p>Under the Duke of York’s laws the attendance of the
+justices was enforced by a fine of ten pounds for every
+day’s absence, and there are entries of such fines in the
+records of the courts.&#x2060;<a id="FNanchor_104_104" href="#Footnote_104_104" class="fnanchor">[104]</a> Under the Act of May 10, 1685,
+<span class="pagenum" id="Page_48">[Pg 48]</span>(ch. 176) the same policy was continued, but the fine
+reduced to thirty shillings. When possible the justices
+were assisted by the presence of the governor, members
+of the council or judges of the provincial court, after its
+establishment, all of whom were <i>ex officio</i> of the commission
+of the peace. In the minutes of the court of Bucks
+County it is noted that on the 4th and 11th day, 1 mo.,
+1683, the governor, William Penn, was present and held
+an orphans’ court. The county courts with their vague
+and indefinite jurisdiction in civil and criminal causes
+and county affairs would seem to have been regarded
+with favor by Penn, who was averse to complicated
+procedure; hence at the first assembly held at Chester,
+December 7, 1682, there is little said of the courts,
+although in the “Great Body of Laws” then adopted
+will be found most important modifications of the
+common law both as to persons and property.&#x2060;<a id="FNanchor_105_105" href="#Footnote_105_105" class="fnanchor">[105]</a>&#x2060;</p>
+
+<p>At the session, in March, 1683, it was enacted that in
+every precinct three persons should yearly be chosen
+as common peacemakers, to whom differences might be
+submitted for arbitration and whose findings should be
+as conclusive as those of the county court. In the
+minutes of the provincial council, 7th, 9 mo., 1683, will
+be found a case “referred to the peacemakers and
+in case of refusal to the County Court.”&#x2060;<a id="FNanchor_106_106" href="#Footnote_106_106" class="fnanchor">[106]</a> Voluntary
+arbitration was then an accepted method of settling
+disputes in England, particularly in cases involving
+merchants’ accounts, enforced by bond conditioned to
+submit to the award, and arbitration, by rule of court,
+<span class="pagenum" id="Page_49">[Pg 49]</span>was adopted by Statute 9 and 10 William III, ch. 15. We
+have also seen that from the earliest period the practice
+prevailed in New York and its dependencies. The office
+of peacemaker, however, seems to have survived only
+until 1692 when the assembly decided that the law was
+not in practice. Arbitration was long a popular method
+of trying cases and beginning with the Act of January 12,
+1705,&#x2060;<a id="FNanchor_107_107" href="#Footnote_107_107" class="fnanchor">[107]</a> a law for reference by rule of court in the spirit
+of the statute of William III, there is a long series of
+acts perfecting this method of disposing of litigation.
+The early dockets of the supreme and common pleas
+courts are full of rules for references and voluntary
+submissions.</p>
+
+<p>At the session of 1683 it was enacted that the first
+process in every suit should be the exhibition of a complaint
+<i>fourteen</i> days before trial, that the defendant
+should be summoned <i>ten</i> days before trial and furnished
+with a copy of the complaint, which was required to be
+delivered to him at his dwelling house. The jurisdiction
+of the county courts was also more clearly defined.</p>
+
+<blockquote>
+<p>“That all actions of debt, Accompt, or Slander, and all actions
+of Trespass, shall be henceforth first tryed by there respective
+County Court, where the Cause of action did arise.</p>
+
+<p><span class="pagenum" id="Page_50">[Pg 50]</span></p>
+
+<p>“And if any person shall think himself aggrieved with the
+Judgement of the County Court, That then, such person may
+Appeal to have the same tryed before the Governour and Council;
+Provided always that the same be above twelve lbs. And that
+the person appealing, do put in good, and sufficient Security,
+to pay all Costs and Damages, if hee shall be cast, as also to pay
+the Cost and Charges of the first Suit.”&#x2060;<a id="FNanchor_108_108" href="#Footnote_108_108" class="fnanchor">[108]</a>&#x2060;</p>
+</blockquote>
+
+<p>The legislative activity of Penn and the assembly
+during the early days of the colonization of Pennsylvania
+was such as to render it difficult to follow all the
+changes in procedure. No colony started with a more
+complete and original code, but much was necessarily
+experimental and was gradually modified under the
+influence of practical experience. The change in the
+dynasty and the political vicissitudes of the proprietor
+were also disturbing elements and an atmosphere of
+uncertainty surrounds much of the legislation prior to
+Penn’s second visit to America. In 1693, when Penn’s
+government was suspended and Governor Fletcher of
+New York in charge, an investigation showed the rolls
+of the laws in confusion and not passed under the great
+seal. There was no certain evidence either that they
+had been transmitted to the privy council for approval,
+although David Lloyd and John White stated that they
+knew that Penn had delivered some at least of the laws
+to the king in council.&#x2060;<a id="FNanchor_109_109" href="#Footnote_109_109" class="fnanchor">[109]</a> In 1694 some of the laws were
+<span class="pagenum" id="Page_51">[Pg 51]</span>sent over, for on August first of that year Penn appeared
+before the committee on trade and plantations and
+objected to the act about recording deeds. On the
+third of August following the attorney-general gave his
+opinion on the acts and the committee agreed to approve
+of nineteen, to repeal two and to hold five until the general
+assembly had given them further consideration.
+From the titles, which alone are given in the journal of
+the board of trade, the acts referred to are apparently
+those passed in 1693 under Governor Fletcher and
+include one “about appeals to the Supream Court.”&#x2060;<a id="FNanchor_110_110" href="#Footnote_110_110" class="fnanchor">[110]</a>
+On December 31, 1697, Penn laid some more laws before
+the commissioners of trade&#x2060;<a id="FNanchor_111_111" href="#Footnote_111_111" class="fnanchor">[111]</a> but the minutes do not
+state what they were or what action was taken on them.
+However, this much is certain, that in their more general
+provisions these laws were recognized and to some extent
+observed, but the unsettled political conditions, brought
+about partly by the absence of the proprietor after
+1684 and the English revolution of 1688, led to confirmations,
+reënactments and repetitions of statutes in
+varying phraseology, which must have caused confusion,
+particularly as the laws were not at this time allowed
+to be printed, manuscript copies being filed in the
+county courts with the president or clerk.&#x2060;<a id="FNanchor_112_112" href="#Footnote_112_112" class="fnanchor">[112]</a> Hence, the
+<span class="pagenum" id="Page_52">[Pg 52]</span>text of acts passed before 1700 must be accepted with
+considerable reserve and it is difficult to determine
+just how far the more experimental features were enforced.</p>
+
+<p>The county courts were vested with criminal jurisdiction
+in all except such important crimes as treason,
+murder and manslaughter and, after 1693, burglary, rape
+and arson. At times, however, a special commission of
+oyer and terminer was issued to some of the justices to
+try a special offender or to clear the jail. The offenses
+for which indictments were most frequently found and
+trials had were for drunkenness, larceny, profanity,
+assault and battery and breach of the peace, offenses
+against morality, “selling rum to the Indians,” speaking
+disrespectfully of the magistrates and breaking the
+Sabbath. In the lower counties there are occasional
+arrests on suspicion of piracy and smuggling. The
+following entry in the Chester County court records
+carries a faint echo from Monmouth’s Rebellion:—</p>
+
+<blockquote>
+<p>“Ordered that the sheriff take into his custody the body of
+David Lewis upon suspicion of treason, as also the body of
+Robert Cloud for concealing the same; for that he the said
+Robert Cloud being attested before this court, declared that
+upon the 3d day of the weeke before Christmas last at the house
+of George Foreham, the said David Lewis did declare in his
+hearing that he was accused for being concerned with the Duke
+of Monmouth in the West Country.”&#x2060;<a id="FNanchor_113_113" href="#Footnote_113_113" class="fnanchor">[113]</a>&#x2060;</p>
+</blockquote>
+
+<p>On the civil side the practice at this period did not
+differ materially from that under the Duke of York,
+although there is a gradual improvement in the forms
+and methods of procedure and in the use of legal terms,
+as the courts acquired experience or became better
+<span class="pagenum" id="Page_53">[Pg 53]</span>informed as to their duties through the importation of
+law books into the province. Although without legal
+training, the justices lived in a time when a knowledge
+of the rudiments of the law and the ordinary forms of
+conveyancing were essential to a gentleman, or merchant
+of importance, and a copy of Dalton’s Justices
+with the acts of assembly would meet most of the
+requirements of a rustic community. Some at least of
+the justices were drawn from the same class as supplied
+the quarter sessions in the rural districts of England.</p>
+
+<p>A difficulty seems to have confronted them in properly
+upholding the dignity of the courts. A rule of the
+Philadelphia County court for 1686, after reciting that
+many disorders had been committed in the courts of this
+county, partly through ignorance and partly through
+negligence of otherwise well-meaning persons, goes on
+to order—</p>
+
+<blockquote>
+<p>“That plfs, dfts, and all other psons speake directly to the
+point in question, &amp; yt they put in their pleas in writing (this
+being a Court of record) &amp; that they forbeare reflections &amp;
+recriminations either on the Court, Juries or on one another;
+under penalty of a fine.”&#x2060;<a id="FNanchor_114_114" href="#Footnote_114_114" class="fnanchor">[114]</a>&#x2060;</p>
+</blockquote>
+
+<p>Nor were the judges always free from fault themselves.
+Justice Luke Watson of Sussex County was in
+1684 twice fined by his colleagues for “smoakin tobacco
+in the Court house,”&#x2060;<a id="FNanchor_115_115" href="#Footnote_115_115" class="fnanchor">[115]</a> the first time fifty and the second
+time one hundred pounds of tobacco, an instance where
+the punishment certainly fitted the crime. Another
+<span class="pagenum" id="Page_54">[Pg 54]</span>justice was fined five shillings for swearing.&#x2060;<a id="FNanchor_116_116" href="#Footnote_116_116" class="fnanchor">[116]</a> In the
+same county in 1687 one Thomas Jones refused to attend
+court when summoned and a constable and two justices
+were sent to fetch him, whom he roundly cursed. The
+record adds:—</p>
+
+<blockquote>
+<p>“The said Jones being brought to the Court, the Court told
+him of his misdemeanor, and told him he should suffer for it;
+he told the Court he questioned their power, soe the Court
+ordered the Sheriff and Constable to secure him and they
+carryed &amp; dragged him to ye smith shop where they put irons
+upon him, but he quickly got the Irons off and escaped, he
+having before wounded several persons’ legs with his spurs
+that strived with him, and when they was goeing to put him in
+the Stocks, before that they put him in Irons, he kicked the
+Sheriff on the mouth and was very unruly and abusive, and soone
+got out of the Stocks.”&#x2060;<a id="FNanchor_117_117" href="#Footnote_117_117" class="fnanchor">[117]</a>&#x2060;</p>
+</blockquote>
+
+<p>The grand jury of Philadelphia County in 1686 presented
+Justice James Claypoole “for endeavoring by an
+indirect way to preposess Judge Moore in a case yt was
+to be tryed before him in the provinciall court, being
+by us lookt upon to be of a dangerous Consequence,”
+and “for menacing and abusing ye jurors in ye triall of
+John Moon which was an infringement of ye rights and
+properties of ye people.”&#x2060;<a id="FNanchor_118_118" href="#Footnote_118_118" class="fnanchor">[118]</a>&#x2060;</p>
+
+<p>In the trial of cases the procedure was characteristically
+simple. If the plaintiff failed to serve his process
+he was nonsuited; if the defendant failed to appear
+judgment was entered against him. If both parties
+were present the defendant was called on for his answer,
+which could set up any defense legal or equitable or
+claim a set-off.&#x2060;<a id="FNanchor_119_119" href="#Footnote_119_119" class="fnanchor">[119]</a> The law required the pleadings to be
+<span class="pagenum" id="Page_55">[Pg 55]</span>short and in English. The parties would sometimes
+leave the case to the bench without a jury,&#x2060;<a id="FNanchor_120_120" href="#Footnote_120_120" class="fnanchor">[120]</a> particularly
+in the lower counties, but if a jury was called, it consisted
+invariably of twelve men. After verdict judgment
+was entered and the practice survived for some
+time of entering judgments in kind—perhaps reaching a
+climax in an entry of judgment for “one thousand of
+six-penny nails, and three bottles of rum.”&#x2060;<a id="FNanchor_121_121" href="#Footnote_121_121" class="fnanchor">[121]</a>&#x2060;</p>
+
+<p>As to process of execution, we know little except
+that the proceedings would seem rather summary. An
+order of council was made in 1686 “yt there should be
+tenn days Respite between judgm<sup>t</sup> given in ye County
+Courts within this Province and Territoryes in all Civill
+Causes, and signing the execution thereoff, and that in
+the Prov<sup>ll</sup> Court no Execution shall be served until
+eight days after judgm<sup>t</sup> given.”&#x2060;<a id="FNanchor_122_122" href="#Footnote_122_122" class="fnanchor">[122]</a> To this the assembly
+in 1687 made strenuous objection and urged that the
+order be revoked, whereupon the council decided to
+leave the matter to the discretion of the courts.&#x2060;<a id="FNanchor_123_123" href="#Footnote_123_123" class="fnanchor">[123]</a> There
+are recorded several petitions to the council for relief
+against executions on judgments entered by default,
+and others for relief against vexatious and oppressive
+executions. In one of these a widow complains that
+judgment having been obtained against the estate of
+her deceased husband, the sheriff had levied on the
+<span class="pagenum" id="Page_56">[Pg 56]</span>plantation where she and her children dwelt, although
+there was sufficient property elsewhere to satisfy the
+debt. The council sent for the sheriff and told him that
+if there were other effects of the decedent he ought not
+to levy on the plantation where the widow and children
+lived.&#x2060;<a id="FNanchor_124_124" href="#Footnote_124_124" class="fnanchor">[124]</a> In other cases relief seems to have been given
+on account of the poverty of the defendant, a practice
+that would pave the way for the debtor’s exemption
+law.&#x2060;<a id="FNanchor_125_125" href="#Footnote_125_125" class="fnanchor">[125]</a>&#x2060;</p>
+
+<p>In criminal cases the sentences were usually limited to
+fines, whippings or the stocks. Sentences to terms of
+imprisonment were rare; the colony could ill afford to
+spare the labors of any individual, however depraved,
+and still less was it inclined to support him in idleness.
+Penn’s incarceration in Newgate had familiarized him
+with the evils of prison life and he expressly ordained
+that prisons should be workhouses.&#x2060;<a id="FNanchor_126_126" href="#Footnote_126_126" class="fnanchor">[126]</a> Such prisons as
+were built at this time were neither particularly commodious
+nor strong. In 1688 the council found it necessary
+to reprimand the sheriff of Sussex for permitting
+a dangerous prisoner to be at large. The prisoner magnanimously
+sent word to the council that he would yield
+himself up rather than “ye sheriff should suffer.”&#x2060;<a id="FNanchor_127_127" href="#Footnote_127_127" class="fnanchor">[127]</a> A
+similar reprimand was administered to the sheriff of
+Philadelphia for permitting two prisoners suspected of
+piracy to go at large, to which the sheriff replied, that
+they never went without his leave and a keeper, “w<sup>ch</sup>
+hee thought might have been allowed in hott weather.”&#x2060;<a id="FNanchor_128_128" href="#Footnote_128_128" class="fnanchor">[128]</a>&#x2060;</p>
+
+<p><span class="pagenum" id="Page_57">[Pg 57]</span></p>
+
+<p>By the Act of March 1, 1683,&#x2060;<a id="FNanchor_129_129" href="#Footnote_129_129" class="fnanchor">[129]</a> the justices of the
+county courts were required to sit twice a year as an
+orphans’ court. The name as well as the original purpose
+of this court was derived from the court maintained
+by the corporation of London, which, by immemorial
+custom, had charge of the estates of orphans of
+freemen of the city. The practice and jurisdiction of
+the court, which will be discussed later, differed from
+that of its prototype but was not distinctly settled at
+this time, and we find the provincial council taking
+cognizance of matters that subsequently were assigned
+to this tribunal or to the register’s court, such as the
+appointment of administrators, and sale of land for
+debts.</p>
+
+<p>Prior to 1684 there existed in the province no tribunal
+having cognizance of appeals other than the provincial
+council, which, in some degree, supplied the place of the
+general court of assizes under the Duke of York’s Laws.
+As the colony grew, the ever increasing number of appeals
+took up more and more of the council’s time and made
+this duty exceedingly burdensome, not to speak of the
+inconvenience to the suitors in traveling to Philadelphia
+with their witnesses for a hearing <i>de novo</i>. To remedy
+this inconvenience the Act of May 3, 1684&#x2060;<a id="FNanchor_130_130" href="#Footnote_130_130" class="fnanchor">[130]</a>&#x2060;, was passed,
+which provided that there should be five provincial
+judges, appointed by the governor, any three of whom
+should form the provincial court and sit twice a year
+in Philadelphia, while two of them should every spring
+and fall go on circuit into every county and there hold
+court. The court was to hear and determine all appeals
+from inferior courts and all causes, criminal and civil
+both in law and equity not determinable in the county
+courts. In 1685 the number of judges was reduced to
+<span class="pagenum" id="Page_58">[Pg 58]</span>three, but the original number was restored by the Acts
+of 1690 and 1693.&#x2060;<a id="FNanchor_131_131" href="#Footnote_131_131" class="fnanchor">[131]</a> A commission was accordingly issued
+by Penn to five judges, of whom Nicholas Moore was
+named first, the commission to be in force for two
+years.&#x2060;<a id="FNanchor_132_132" href="#Footnote_132_132" class="fnanchor">[132]</a> The law did not fix any definite period for service
+and the commissions were drawn for various
+periods. In one instance it is noted in the minutes of
+the council that the commission is to continue “only
+for this present court.”&#x2060;<a id="FNanchor_133_133" href="#Footnote_133_133" class="fnanchor">[133]</a> Jealousies quickly arose as to
+the geographical apportionment of the judges and in
+1687 the assembly requested that at least one of the
+judges be named from the lower counties.&#x2060;<a id="FNanchor_134_134" href="#Footnote_134_134" class="fnanchor">[134]</a> In 1690 the
+appointment of the judges caused a split in the council,
+the members from the lower counties objecting to the
+naming of but one judge from the territories and also
+demanding that, according to what they stated was the
+proprietor’s example, two commissions issue, one for
+the province and one for the counties, so that each would
+have a chief justice from its own district. Unable to
+prevail on their colleagues, the members from the lower
+counties held a separate meeting and drew up commissions
+to suit themselves.&#x2060;<a id="FNanchor_135_135" href="#Footnote_135_135" class="fnanchor">[135]</a> The keeper of the great seal,
+however, refused to seal these commissions and at a
+regular meeting of the council, subsequently held, the
+action of these members was denounced as irregular
+and annulled. This was the first open manifestation
+of the dissatisfaction of the territories with the union
+with Pennsylvania, which continually increased until
+a separate government was obtained.</p>
+
+<p>The provincial court did not at once command or
+obtain the respect and influence due to the chief judicial
+<span class="pagenum" id="Page_59">[Pg 59]</span>tribunal of the colony. It was founded in the most
+trying times, when political dissensions among the leading
+colonists and war and revolution in England distracted
+the province. The terms of office were irregular,
+the compensation wholly inadequate and the journeys
+on circuit tedious and even dangerous. It is not to be
+wondered at that it was difficult to induce properly
+qualified men to accept a place on the bench and that
+nominees for that honor sought excuses to decline the
+office. No traces of the records and opinions of the court
+at this time have come down to us and they cannot
+have been bulky, for, when the council in 1688 sent for
+the records, they were informed by the clerk that “they
+were not recorded otherwise than in a quire of paper.”&#x2060;<a id="FNanchor_136_136" href="#Footnote_136_136" class="fnanchor">[136]</a>
+The duties of the judges did not at first compel them to
+grapple with legal problems with a view to the value
+of their decisions as precedents. The correction of
+errors arising on issues of fact and the trial of the
+more serious crimes probably made up the bulk of
+the business. As time went on the court strengthened
+its position, and appeals to the council became less and
+less frequent, until in the early eighteenth century the
+two bodies, executive and judicial, assumed their normal
+functions.</p>
+
+<p>It is sad to relate that Nicholas Moore, the first chief
+justice of the provincial court, was impeached by the
+assembly within a year after the creation of the court.
+Moore was a physician as well as president of the Society
+of Free Traders and a large purchaser of land from
+Penn. Although not a Friend he immediately obtained
+a position of influence, was elected to the assembly and
+was speaker in 1684. While capable and energetic he
+lacked tact and discretion and assumed an arrogant
+tone which offended his fellow members of the assembly
+<span class="pagenum" id="Page_60">[Pg 60]</span>and gave still greater offense after his elevation to the
+bench. In the minutes of the assembly there are
+numerous instances of his interruptions and protests
+during the consideration of bills.&#x2060;<a id="FNanchor_137_137" href="#Footnote_137_137" class="fnanchor">[137]</a> It was reported to
+the council, during the session of 1684, that the speaker
+had said: “The proposed laws were cursed laws” and
+“hang it Damn them all.”&#x2060;<a id="FNanchor_138_138" href="#Footnote_138_138" class="fnanchor">[138]</a> The principal complaints
+against his conduct on the bench seem to have come
+from the lower counties. Ten formidable articles of
+impeachment were presented, among which were the
+following:—</p>
+
+<blockquote>
+<p>“The said Nich. Moore, Judge, having that high Trust Lodged
+in him for the Equall Distribution of justice, without respect of
+Persons, the said Judge Sitting in Judgemt at New Castle,
+hath presumed to cast out a person from being of a Jury, after
+ye said Person was Lawfully attested to ye True Tryall
+of ye Cause, thereby rending an Innocent &amp; Lawful Person
+Infamous in the face of the County, by rejecting his attestation
+after Lawfully Taken, and Depriving the plantif of his just
+Right.</p>
+
+<p>“The said Nich. Moore, Sitting in judgmt, did in ye towne of
+New Castle, refuse a verdict brought in by a Lawfull Jury, and
+by Divers threats &amp; Menaces, and Threatening ye jury with ye
+same of Perjury and crim of their Estates, forced ye said Jury
+to goe out so often—until they had brought a Direct Contrary
+verdict to the first, There, by preventing justice, and wounding
+the Libertyes of ye free people of this Province and Territories
+in the Tenderest point of their Privelege, and violently Usurping
+over ye Consciences of the Jury.</p>
+
+<p>“The said Nich. Moore assuming to himselfe an Unlimited
+and unlawful Power, did, Sitting in Judgmt at ye aforesaid
+Towne of New Castle, wherin two persons stood Charged in a
+Civil action, it being in its own Nature only Trover &amp; Convertion,
+and ye pretended Indictmt raised it no higher, notwithstanding
+the said Moore did give the judgmt of fellony, Comending the
+Defendant to be Publickly Whipt, &amp; Each to be fined to pay
+three fould, thereby Tyranizeing over the persons, Estates
+<span class="pagenum" id="Page_61">[Pg 61]</span>and reputations of the people of this Province and Territories,
+Contrary to Law and Reason.</p>
+
+<p>“The said Nich. Moore, Sitting in judgmt at Chester, did in a
+most Ambitious, Insulting, &amp; Arbitrary way, reverse and Impeach
+the judgmt of ye Justices of ye said County Court, and
+Publickly affronting the members thereof, although the matter
+came not regularly before the said Circular Court, thereby drawing
+the Magistrates into the Contempt of ye people, and Weakening
+their hands in the administration of justice.”&#x2060;<a id="FNanchor_139_139" href="#Footnote_139_139" class="fnanchor">[139]</a>&#x2060;</p>
+</blockquote>
+
+<p>A committee of five was appointed to manage the
+impeachment, one of whom was Abraham Mann, whom
+we have previously seen engaged in the prosecution of
+Justice Moll before the court of assizes in New York.
+The council showed little disposition to further this
+impeachment but treated the accusers with due civility
+and fixed a time for the hearing. Moore, however, was
+by no means inclined to submit tamely to the proceedings,
+and in the house, of which he was still a member,
+accused Abraham Mann of being “a person of seditious
+spirit,” in which he was probably right. The house,
+however, expelled Moore and proceeded to collect evidence
+for the prosecution. They met with a decided
+obstacle in the conduct of Patrick Robinson, clerk of
+the court, who declined to produce the records of the
+court, declaring that they were “written in Latin where
+one word stood for a sentence, and in unintelligible characters
+which no person could read but himself, no, not
+an angel from Heaven.”&#x2060;<a id="FNanchor_140_140" href="#Footnote_140_140" class="fnanchor">[140]</a> But this did not end his
+offenses; he declared the articles of impeachment were
+drawn “hob nob at a venture” and threatened to “have
+at” the speaker when he was “out of the chair.” The
+house issued a warrant for Robinson’s arrest and requested
+<span class="pagenum" id="Page_62">[Pg 62]</span>the council to remove him from office. From the hearing
+on the impeachment Moore contemptuously absented
+himself, but the evidence was thought sufficiently grave
+by the council to suspend the judge from his official
+functions until the matter was finally decided. The
+council showed every disposition to treat Moore with
+leniency, although it had been testified that he had
+called the members thereof “fooles and Logerheads,
+and said it were well if all the Laws had drapt and that
+it would never be good Times as Long as ye Quakers
+had the administration.” Knowing the proprietor’s
+predilection for Moore the house addressed a letter to
+Penn on the subject, a quotation from the last paragraph
+of which shows that in spite of their quarrels and
+jealousies they still regarded him with affection.</p>
+
+<blockquote>
+<p>“Dear and honored Sir, the honor of God, the love of your
+person, and the preservation of the peace and welfare of the
+government, were, we hope, the only centre to which all our
+actions did tend, and although the wisdom of the assembly
+thought fit to humble that aspiring and corrupt minister of
+state, Nicholas Moore, yet to you, dear sir, and to the happy
+success of your affairs our hearts are open, and our hands ready
+at all times to subscribe ourselves, in the name of ourselves and
+all the freemen we represent, Your obedient and faithful freemen.</p>
+
+<p class="author">
+  JOHN WHITE, Speaker.”&#x2060;<a id="FNanchor_141_141" href="#Footnote_141_141" class="fnanchor">[141]</a>
+</p>
+</blockquote>
+
+<p>By one excuse after another the council prevented
+further proceedings in the impeachment until the matter
+was lost sight of in the discussion of more important and
+perplexing affairs of state which soon required attention.</p>
+
+<p>The provincial council, although not strictly a court,
+for a long time exercised judicial functions and, through
+the fortunate preservation of its minutes, is by far the
+best known of the early tribunals. The exercise of
+<span class="pagenum" id="Page_63">[Pg 63]</span>judicial functions by the governor and council was
+strictly in accordance with the custom in other proprietary
+and royal provinces, and that judicial and executive
+functions were found incompatible in Pennsylvania
+so early in its history is a clear indication of the rapid
+growth of a democratic and progressive spirit in that
+province.</p>
+
+<p>The extraordinary growth of the colony, the long
+absences of the proprietor in England and the large
+measure of self-government which the citizens enjoyed,
+threw upon the council an amount of executive
+business which made judicial duties particularly
+onerous, and numbers of petitions and appeals were
+referred back to the courts. Aside from their judicial
+duties the governor and council, as an executive body,
+appointed the judges and magistrates, regulated commerce,
+conducted negotiations with the Indians and
+the other colonies, subdivided counties, laid out towns,
+established fairs and markets, ordained the principal
+highways, bridges and ferries, and exercised a general
+supervision over local administration. As a legislative
+body, they drew up all the laws, prior to 1693, when
+that right was assumed by the assembly, being finally
+transferred to that body by the Frame of Government of
+1701. By that instrument also, the council, no doubt
+to its great relief, was expressly deprived of judicial
+functions.</p>
+
+<p>During the first twenty years of its existence the
+amount of judicial business transacted in the council
+was large; prior to the establishment of the provincial
+court it was the only general tribunal and was not only
+a court for hearing appeals but also a court of first
+instance for such suitors as could obtain a hearing
+before it. This, of course, was natural at the first
+settlement, as a matter of practical necessity. We
+therefore find in the early part of the minutes, trials for
+<span class="pagenum" id="Page_64">[Pg 64]</span>petty offenses and the collection of small debts. They
+seem to have been obliged even to discipline their own
+members, for at the fifth meeting of the council one of
+its members was fined five shillings “for being disordered
+in Drink.”&#x2060;<a id="FNanchor_142_142" href="#Footnote_142_142" class="fnanchor">[142]</a> The council seems to have exercised
+its good offices in composing differences. In 1684
+there is the following entry:—</p>
+
+<blockquote>
+<p>“Andrew Johnson Pl. Hance Peterson Deft. There being a
+difference depending between them, the Govr. &amp; Council advised
+them to shake hands and to forgive One another. And Ordered
+that they should Enter in bonds for fifty pounds apiece, for
+their good abearance; which accordingly they did. It was also
+Ordered that the Records of Court concerning that Business
+should be burnt.”&#x2060;<a id="FNanchor_143_143" href="#Footnote_143_143" class="fnanchor">[143]</a>&#x2060;</p>
+</blockquote>
+
+<p>There are other cases where the council would seem
+to have acted more as a final board of arbitration than
+as judges in the strict sense.&#x2060;<a id="FNanchor_144_144" href="#Footnote_144_144" class="fnanchor">[144]</a>&#x2060;</p>
+
+<p>Prior to the establishment of the provincial court in
+1684, the council heard all appeals, and although after
+that time such appeals were discouraged, they nevertheless
+continued to be brought before the council for
+some years. Besides regular appeals, there were numerous
+petitions for executive clemency, complaints against
+severe sentences in criminal cases and, in civil cases,
+petitions for relief against judgments entered by default
+and against executions which bore too severely on the
+debtor. In one early case, on appeal from the county
+court of Philadelphia, it was shown to the council that
+the case concerned the title to land in Bucks County,
+when the law required cases to be tried where the cause
+of action arose. The council remitted the case to the
+court of Bucks County and fined the Philadelphia court
+“forty pounds for giving judgment against law.”&#x2060;<a id="FNanchor_145_145" href="#Footnote_145_145" class="fnanchor">[145]</a>&#x2060;</p>
+
+<p><span class="pagenum" id="Page_65">[Pg 65]</span></p>
+
+<p>As an illustration of the practice on appeal to the
+council the case of <i>Grantham</i> v. <i>Wollaston</i>&#x2060;<a id="FNanchor_146_146" href="#Footnote_146_146" class="fnanchor">[146]</a> may be
+cited:—</p>
+
+<p>One Wollaston purchased a negro from Grantham
+and gave a bond for £26, 15 s. in payment. Judgment
+was entered on this bond by the New Castle County
+court, execution issued and a portion of the defendant’s
+land sold by the sheriff to Grantham for £30, 10 s. and
+the latter was put in possession. Wollaston on the 18th,
+3 mo., 1687, petitioned to the council at Philadelphia
+averring that the county court had denied him an
+appeal to have his case heard in equity. After reading
+a copy of the proceedings the council directed the
+secretary to take security for the prosecution of the
+appeal at the next provincial court and ordered the
+county court to stop all proceedings. The provincial
+court on the 10th, 2 mo., 1688, made an order restoring
+Wollaston to possession, which, it was explained later
+by one of the judges, was not intended to be executed
+“until the debt and damages were satisfied.” On
+the 7th, 12 mo., 1688-9, Wollaston again petitioned the
+council, complaining of a forcible entry and detainder,
+whereupon it was resolved that a warrant be drawn,
+directed to the justices of the peace dwelling “nearest
+to ye place where ye fforce is alleaged,” to make a view
+and, if they found no force, to require the sheriff to
+summon a jury to inquire into the facts and thereupon
+to imprison the offender and restore quiet possession
+to the petitioner. On March 4, 1688-9, the clerk of the
+county court returned to the council the finding of the
+jury, which was in effect that Grantham had been the
+victim of the forcible entry. “This was judged by ye
+board to be a great affront and contempt of their authority.”
+<span class="pagenum" id="Page_66">[Pg 66]</span>Grantham’s wife then petitioned the council
+setting forth her husband’s side of the case, and the
+assembly also remonstrated against the action of the
+provincial court and requested the council to rehear
+the whole matter “as the supreame judges of this government.”
+Governor Blackwell and the council, accordingly,
+proceeded to New Castle where, on March 13 and
+14, 1689, the facts were again reviewed. Both parties
+were called in and “endeavors used with both of them
+to agree the matter between themselves,” but in vain.
+Wollaston declared he had better be without the land
+than pay £30, 10 s. for it, and on the other hand Grantham
+refused to take back the negro, contending justly
+that the defendant had had several years’ use of his
+purchase while the plaintiff had been out his money.
+The council thereupon resolved and ordered that the
+sheriff’s sale to Grantham should be confirmed and that
+he should be restored to possession, that this should be
+in full of all demands against Wollaston, debt, damages
+and charges, and “that this be the finall conclusion &amp;
+judgement of this board in that case.”</p>
+
+<p>It has been observed that the judicial powers
+exercised by the council resembled those wielded by
+the court of star chamber in its purest and best days,&#x2060;<a id="FNanchor_147_147" href="#Footnote_147_147" class="fnanchor">[147]</a>
+but however beneficial such control was in correcting
+the errors of an amateur judiciary, it was contrary to
+the constitutional principles then uppermost in English
+minds after a century-long struggle with absolutism.
+Accordingly, when the revision of the Frame of Government
+was under consideration in 1701, the assembly
+petitioned that no person should be answerable before
+the governor and council or in any place but an ordinary
+court of justice.&#x2060;<a id="FNanchor_148_148" href="#Footnote_148_148" class="fnanchor">[148]</a> Penn replied that he knew of no person
+<span class="pagenum" id="Page_67">[Pg 67]</span>obliged so to answer,&#x2060;<a id="FNanchor_149_149" href="#Footnote_149_149" class="fnanchor">[149]</a> but he inserted the following
+clause in the new charter:—</p>
+
+<blockquote>
+<p>“That no person or persons shall or may, at any time hereafter,
+be obliged to answer any complaint, matter or thing whatsoever
+Relateing to Property before the Govern<sup>r</sup> and Council, or in any
+other place but in the ordinary Courts of Justice, Unless appeals
+thereunto shall be hereafter by Law appointed.”&#x2060;<a id="FNanchor_150_150" href="#Footnote_150_150" class="fnanchor">[150]</a>&#x2060;</p>
+</blockquote>
+
+<p>The council was also the only court for the trial of
+serious crimes until 1685, when that jurisdiction was
+conferred on the provincial court. Important cases of
+this kind were those of the Proprietor against Pickering
+for counterfeiting&#x2060;<a id="FNanchor_151_151" href="#Footnote_151_151" class="fnanchor">[151]</a>
+    and against Margaret Mattson&#x2060;<a id="FNanchor_152_152" href="#Footnote_152_152" class="fnanchor">[152]</a> for
+witchcraft. The latter case is peculiarly interesting as
+illustrating the superstition of the times and in its
+outcome was most creditable to the common sense of
+Penn and the jury. The accusation against the woman
+was that she had bewitched the witness’s cattle, but the
+evidence was mostly hearsay, as the defendant herself
+cleverly pointed out. The verdict of the jury was:
+“Guilty of haveing the Comon fame of a Witch, but not
+Guilty in manner and forme as Shee Stands Indicted.”
+The defendant was permitted to go, on entering bond
+for good behavior. The fear of witchcraft did not disappear
+for some time in Pennsylvania. In 1695, the
+grand jury of Chester County presented “Robert Roman
+of Chichester for practising Geomacy according to Hidon
+and Divining by a Stick.” The accused submitted to
+the court, was fined five pounds and ordered “never
+to practice the arts” but behave himself well, which he
+promised. His books, “Hidon’s Temple of Wisdom,”
+<span class="pagenum" id="Page_68">[Pg 68]</span>“Scot’s Discovery of Witchcraft,” and “Cornelius
+Agrippa’s Necromancy,” were ordered to be brought
+into court.&#x2060;<a id="FNanchor_153_153" href="#Footnote_153_153" class="fnanchor">[153]</a> Another accusation of witchcraft was
+brought to the attention of the council in 1701 but
+dismissed as trifling.</p>
+
+<p>The jurisdiction of the council in admiralty matters
+was a source of much trouble to them.&#x2060;<a id="FNanchor_154_154" href="#Footnote_154_154" class="fnanchor">[154]</a> There are
+numerous cases in the minutes relating to seamen’s
+wages, pilots’ fees, violations of the navigation laws and
+complaints against masters for ill treatment of passengers.
+An example of the last is the case of <i>March</i> v.
+<i>Kilner</i>&#x2060;<a id="FNanchor_155_155" href="#Footnote_155_155" class="fnanchor">[155]</a> where the master of the ship was charged with
+beating the passengers and permitting the crew to drink
+their beer. Kilner denied everything, “only ye kicking
+of the maid.” He was reprimanded and advised to
+“make up the business w<sup>ch</sup> accordingly he did.” The
+proprietor was, by his charter, personally charged with
+the duty of seeing to the enforcement of the English
+navigation acts and that fines and duties were imposed
+and collected according to that complicated and, as the
+colonists thought, burdensome system. The responsibility
+for the execution of these laws rested upon the
+council and many were the complaints to the home
+government of their indifference and laxity in these
+matters. Indeed Penn was obliged to write to them in
+1697 urging the enforcement of the laws and stating
+that it had been reported to him “that you doe not onlie
+wink att but Imbrace pirats, shipps and men.”&#x2060;<a id="FNanchor_156_156" href="#Footnote_156_156" class="fnanchor">[156]</a> The
+<span class="pagenum" id="Page_69">[Pg 69]</span>council indignantly denied this accusation and reported:—</p>
+
+<blockquote>
+<p>“Wee know of none that has been entertained here, unless
+Chinton &amp; Lassell, with some others of Avery’s Crew, that
+happened for a smal time to sojourn in this place, as they did
+in some of the neighboring governments; but as soon as the
+magistrats in Philadelphia had received but a Copie of the
+Lords Justice’s proclamation, gott all that were here apprehended,
+&amp; would have taken the Care &amp; Charge of securing y<sup>m</sup>,
+untill a Legall Court had been erected for their trial, or an
+opportunity had presented to send y<sup>m</sup> to England; but before
+that Could be effected, they broke goale &amp; made their escape
+to New York, where Hues &amp; Crys wer sent after y<sup>m</sup>.”&#x2060;<a id="FNanchor_157_157" href="#Footnote_157_157" class="fnanchor">[157]</a>&#x2060;</p>
+</blockquote>
+
+<p>Nevertheless the records of the time are full of references
+to piracy, and Pennsylvania was reported to have
+“become ye greatest refuge &amp; Shelter for pirats &amp; Rogues
+in America.” Undoubtedly the “pirats and rogues”
+took advantage of the mild temper and humanity of
+the Quaker justices. In 1698 the town of Lewes was
+plundered, a woeful account of which is contained in a
+letter from the local justices to Lieutenant-Governor
+Markham, and in 1700 it was reported to Penn that the
+great Captain Kidd was lying off Cape Henlopen and
+trading with some of the inhabitants.&#x2060;<a id="FNanchor_158_158" href="#Footnote_158_158" class="fnanchor">[158]</a>&#x2060;</p>
+
+<p>To deal with such matters, a court of vice admiralty
+was established, by the Crown, for Pennsylvania and the
+territories in 1697, of which Colonel Robert Quarry was
+appointed judge. Quarry was a former governor of
+South Carolina, a vain and quarrelsome person who
+disliked the Friends and was bitterly opposed to the
+<span class="pagenum" id="Page_70">[Pg 70]</span>proprietary system of government. Almost immediately
+after his appointment his court came into conflict with
+the county court of Philadelphia. Certain goods having
+been seized by the collector of customs under a warrant
+issued by Colonel Quarry, a judge of the county court
+at the instance of David Lloyd, a lawyer and member
+of the council, granted a writ of replevin under which
+they were taken from the collector. Quarry was exceedingly
+indignant at this and complained both to the
+home government and to the governor and council, who
+made such apologies as they could, handed over the
+replevin bond to him, and reprimanded the judge, who
+tendered his resignation.&#x2060;<a id="FNanchor_159_159" href="#Footnote_159_159" class="fnanchor">[159]</a> David Lloyd, however, was
+as obstinate and hot-headed as Quarry himself. At
+the succeeding county court he brought an action against
+the marshal for the detaining of the goods. In the
+words of Quarry—</p>
+
+<blockquote>
+<p>“Ye marshall being called to defend the sute, hee produced
+in his owne Justificaon His maties Lres pats, undr ye broad
+seal of ye High Court of Admiraltie, with the Judges warrt for
+ye seizure aforesaid, which sd patent having in the frontis piece
+his most sacred maties effigies stampt, with the sd seal adpendant,
+the sd David Lloyd, in a most insolent &amp; disloyal manner,
+taking the sd Commission in his hand &amp; exposing it to ye people,
+did utter &amp; publish these scurilous &amp; reflecting words following,
+viz:—what is this? do you think to scare us wt a great box
+(meaning ye seal in a tin box) and a little Babie; (meaning ye
+picture or effigies aforesaid); ’tis true, said hee, fine pictures
+please children; but wee are not to be frightened att such a rate;
+&amp; many more gross &amp; reflecting expressions on his matie to
+ye like effect.”&#x2060;<a id="FNanchor_160_160" href="#Footnote_160_160" class="fnanchor">[160]</a>&#x2060;</p>
+</blockquote>
+
+<p>For this and other insults to the court of admiralty,
+Penn, by order of the board of trade, suspended Lloyd
+from the council and dismissed him from all public
+<span class="pagenum" id="Page_71">[Pg 71]</span>employment and he from that time became a bitter
+opponent of the proprietor.&#x2060;<a id="FNanchor_161_161" href="#Footnote_161_161" class="fnanchor">[161]</a> Nevertheless in spite of
+stringent laws and a more systematic patrol of the
+coast by cruisers it was long before pirates ceased to
+be a menace to commerce. In 1712 Logan wrote, “We
+have been extremely pestered with pirates who now
+swarm in America and increase their numbers with
+every vessel they take.”&#x2060;<a id="FNanchor_162_162" href="#Footnote_162_162" class="fnanchor">[162]</a> In 1718 Governor Keith in
+calling the council’s attention to the losses sustained
+by the colony through piracy, said that he was informed
+that Teach had been lurking for some days in and about
+Philadelphia and that he suspected that many of the
+pirates who had surrendered under an offer of pardon
+still kept up a correspondence with their companions
+abroad. The Teach referred to was the notorious pirate
+“Blackbeard” who was shortly after killed in an encounter
+with a vessel fitted out by Virginia for his
+capture.&#x2060;<a id="FNanchor_163_163" href="#Footnote_163_163" class="fnanchor">[163]</a>&#x2060;</p>
+
+<p>It must not be supposed that either the provincial
+court or the council, in its judicial capacity, was a court
+of last resort. Under the charter the right was reserved
+to the king to hear and determine appeals from all
+judgments given in the province, and until the Revolution
+there was no court of last resort in Pennsylvania.
+A reference to this subject is contained in the commission
+of William and Mary to Governor Fletcher wherein
+it is provided that if either party to a civil cause is dissatisfied
+with the judgment of the superior court of the
+<span class="pagenum" id="Page_72">[Pg 72]</span>province “they may then appeale unto us in Our privy
+Council, provided the matter in difference exceed the
+real value and Sum of three hundred pounds Sterling.”&#x2060;<a id="FNanchor_164_164" href="#Footnote_164_164" class="fnanchor">[164]</a>
+The Act of October 28, 1701,&#x2060;<a id="FNanchor_165_165" href="#Footnote_165_165" class="fnanchor">[165]</a> contained provisions for
+appeals to England but no limit of money value was
+fixed. While the right to such appeals to England was,
+in this colony, unquestioned, the difficulty and expense
+of prosecuting them was such as to render them infrequent.
+In 1685 an appeal to England was allowed by
+the provincial court upon entry of security, but from
+the discussion in the council it would seem that the
+appellant failed to enter security as required.&#x2060;<a id="FNanchor_166_166" href="#Footnote_166_166" class="fnanchor">[166]</a>&#x2060;</p>
+
+<p>In December, 1699, Penn returned to America and
+began the work of reconstructing the government of
+the province, which had been restored to him on the
+express condition that he would put an end to the existing
+state of confusion.&#x2060;<a id="FNanchor_167_167" href="#Footnote_167_167" class="fnanchor">[167]</a> The political and constitutional
+history of provincial Pennsylvania has been ably
+and thoroughly treated elsewhere&#x2060;<a id="FNanchor_168_168" href="#Footnote_168_168" class="fnanchor">[168]</a> and it is not our
+purpose to refer to it except as it affected the courts.
+Suffice it to say that the period of utopian and paternal
+experiments had closed and that thereafter the proprietor
+and his successors were engaged in a struggle
+to maintain a difficult position between two fires; on
+the one side a democracy, selfish, narrow and individualistic,
+and on the other a home government, critical
+and contemptuous, that regarded the colony as little
+more than a nest of republicans and smugglers. Penn
+found the assembly determined to strengthen its position
+and after much fruitless discussion, granted a charter
+<span class="pagenum" id="Page_73">[Pg 73]</span>conferring very extended powers on the legislative body
+and containing little else of constitutional importance.&#x2060;<a id="FNanchor_169_169" href="#Footnote_169_169" class="fnanchor">[169]</a>
+Nothing was said of the judges. The provincial court
+was then an insignificant factor in the political life of
+the province and the organization of the courts was left
+to be regulated by an act of assembly, which will be
+referred to presently.</p>
+
+<p>With the adoption of the charter of privileges of 1701,
+the government of the province assumed a form that it
+was to retain until the Revolution. The power of proposing
+and enacting laws passed to the assembly and
+the council ceased to exercise judicial powers. More
+important still, the council ceased to be an elected body
+and was thereafter appointed by the proprietor or in
+his absence by his lieutenant-governor. The effect of
+this was to throw into the assembly the abler spirits of
+the opposition and greatly strengthen that body, while
+the council, chosen from among the friends of the
+governor or proprietor, was thereafter regarded as representing
+the proprietary interests rather than those of
+the populace.</p>
+
+<p>One humble court has not been referred to, that of
+the coroner. The following is a specimen of a verdict
+taken in 1699 in Chester County:—</p>
+
+<blockquote>
+<p>“We whose names are underwritten, summoned and attested
+by the Coroner to view the body of Sarah Baker, haveing made
+strict enquiry, and alsoe had what evidence could be found,
+attested to what they know, and wee can find noe other but that
+it pleased Almighty God to visit her with death by the force of
+Thunder; and to this we all unanimously agree.”&#x2060;<a id="FNanchor_170_170" href="#Footnote_170_170" class="fnanchor">[170]</a>&#x2060;</p>
+</blockquote>
+
+<p>Who will say that this is not quite equal in intelligence
+to the verdict of the average coroner’s jury at the
+present time?</p>
+
+
+<div class="footnotes">
+<h3>FOOTNOTES:</h3>
+
+<div class="footnote"><p><a id="Footnote_1_1" href="#FNanchor_1_1" class="label">[1]</a> <i>Cromwell</i> v. <i>The Bank</i>, 2 Wallace, Jr. Reports, 569 (1853),
+at page 589.</p></div>
+
+<div class="footnote"><p><a id="Footnote_2_2" href="#FNanchor_2_2" class="label">[2]</a> “I have several times solicited to obtain a learned and able
+man to administer justice and attend to the law business.”
+Report dated February 20, 1647, to the West India Company.
+Records of Court at Upland, Introduction, p. 29; V Pennsylvania
+Archives (2d Series), 766.</p></div>
+
+<div class="footnote"><p><a id="Footnote_3_3" href="#FNanchor_3_3" class="label">[3]</a> VII Pennsylvania Archives (2d Series), 511, 531. This
+policy seems to have alarmed the home authorities. VII
+Pennsylvania Archives (2d Series), 555.</p></div>
+
+<div class="footnote"><p><a id="Footnote_4_4" href="#FNanchor_4_4" class="label">[4]</a> Hazard’s Annals of Pennsylvania, 205.</p></div>
+
+<div class="footnote"><p><a id="Footnote_5_5" href="#FNanchor_5_5" class="label">[5]</a> New York Colonial Documents, Vol. XII, 133.</p></div>
+
+<div class="footnote"><p><a id="Footnote_6_6" href="#FNanchor_6_6" class="label">[6]</a> New York Colonial Documents, Vol. XII, 149.</p></div>
+
+<div class="footnote"><p><a id="Footnote_7_7" href="#FNanchor_7_7" class="label">[7]</a> New York Colonial Documents, Vol. XII, 150.</p></div>
+
+<div class="footnote"><p><a id="Footnote_8_8" href="#FNanchor_8_8" class="label">[8]</a> Records of New Amsterdam Court, Vol. I, 358.</p></div>
+
+<div class="footnote"><p><a id="Footnote_9_9" href="#FNanchor_9_9" class="label">[9]</a> O’Callahan’s History of New Netherlands, Vol. I, 220;
+VII Pennsylvania Archives (2d Series), 521, 528, 534; Hazard’s
+Annals of Pennsylvania, 221.</p></div>
+
+<div class="footnote"><p><a id="Footnote_10_10" href="#FNanchor_10_10" class="label">[10]</a> Hazard’s Annals of Pennsylvania, 220; V Pennsylvania
+Archives (2d Series), 459.</p></div>
+
+<div class="footnote"><p><a id="Footnote_11_11" href="#FNanchor_11_11" class="label">[11]</a> Howard’s Matrimonial Institutions, Vol. II, 376.</p></div>
+
+<div class="footnote"><p><a id="Footnote_12_12" href="#FNanchor_12_12" class="label">[12]</a> VII Pennsylvania Archives (2d Series), 634.</p></div>
+
+<div class="footnote"><p><a id="Footnote_13_13" href="#FNanchor_13_13" class="label">[13]</a> Hazard’s Annals of Pennsylvania, 330, 333; VII Pennsylvania
+Archives (2d Series), 670, 672, 680.</p></div>
+
+<div class="footnote"><p><a id="Footnote_14_14" href="#FNanchor_14_14" class="label">[14]</a> Hazard’s Annals of Pennsylvania, 407; VII Pennsylvania
+Archives (2d Series), 758; Whorekill is a corruption of Hoorn
+Kill, Sussex Records (Turner), 2.</p></div>
+
+<div class="footnote"><p><a id="Footnote_15_15" href="#FNanchor_15_15" class="label">[15]</a> VII Pennsylvania Archives (2d Series), 662.</p></div>
+
+<div class="footnote"><p><a id="Footnote_16_16" href="#FNanchor_16_16" class="label">[16]</a> Constitutional law by S. E. Baldwin in Two Centuries
+Growth of American Law, 11.</p></div>
+
+<div class="footnote"><p><a id="Footnote_17_17" href="#FNanchor_17_17" class="label">[17]</a> V Pennsylvania Archives (2d Series), 494.</p></div>
+
+<div class="footnote"><p><a id="Footnote_18_18" href="#FNanchor_18_18" class="label">[18]</a> V Pennsylvania Archives (2d Series), 544.</p></div>
+
+<div class="footnote"><p><a id="Footnote_19_19" href="#FNanchor_19_19" class="label">[19]</a> Reinch’s Colonial Common Law, reprinted in Select Essays
+in Anglo-American Legal History, Vol. 1, 367.</p></div>
+
+<div class="footnote"><p><a id="Footnote_20_20" href="#FNanchor_20_20" class="label">[20]</a> V Pennsylvania Archives (2d Series), 501, 507.</p></div>
+
+<div class="footnote"><p><a id="Footnote_21_21" href="#FNanchor_21_21" class="label">[21]</a> Broadhead’s History of New York, Vol. II, 66. Governor
+Nicolls writes to Clarendon April 7, 1666: “My Lord, I have
+remitted for confirmation to his Royal Highness the present
+Lawes of this Colony collected out of the Lawes of the other
+Colonyes, onely with such alterations as may revive the memory
+of old England amongst us, ffor Democracy hath taken so deepe
+a roote in these parts, that ye very name of a Justice of the
+Peace is an abomination.” New York Historical Society Collections,
+1869, p. 75.</p></div>
+
+<div class="footnote"><p><a id="Footnote_22_22" href="#FNanchor_22_22" class="label">[22]</a> Laws of Massachusetts Colony (1672), 61. The Act of 1661
+provided that “Vagabond Quakers” should “be stripped naked
+from the middle upwards, and tyed to a Carts tail, and whipped
+through the Town, and from thence immediately conveyed
+to the constable of the next Town towards the borders of our
+jurisdiction, as their warrant shall direct, and so from constable
+to constable till they be conveyed through any the outward-most
+Towns of our jurisdiction.” If the Quaker returned he
+was to be branded and whipped as before and if he returned
+again suffer death. The Act of 1662 reduced the whippings
+to three towns.</p></div>
+
+<div class="footnote"><p><a id="Footnote_23_23" href="#FNanchor_23_23" class="label">[23]</a> Story, J., in <i>Van Ness</i> v. <i>Packard</i>, 2 Peter’s Reports (U. S.),
+144 (1829); <i>Commonwealth</i> v. <i>Knowlton</i>, 2 Massachusetts
+Reports, 530 (1807); <i>Bogardus</i> v. <i>Trinity Church</i>, 4 Paige’s
+Reports (N. Y.), 197 (1833).</p></div>
+
+<div class="footnote"><p><a id="Footnote_24_24" href="#FNanchor_24_24" class="label">[24]</a> Blackstone’s Commentaries Introduction, page 107, and
+Notes of American Editors, particularly Hammond; <i>Johnson</i>
+v. <i>McIntosh</i>, 8 Wheaton’s Reports (U. S.), 582 (1827).</p></div>
+
+<div class="footnote"><p><a id="Footnote_25_25" href="#FNanchor_25_25" class="label">[25]</a> <i>Anonymous</i>, 2 Peere Williams’s Reports, 74 (1722); <i>Blankard</i>
+v. <i>Galdy</i>, 2 Salkeld’s Reports, 411 (1694); <i>Anonymous</i>, 1 Dallas’s
+Reports, 1 (1754).</p></div>
+
+<div class="footnote"><p><a id="Footnote_26_26" href="#FNanchor_26_26" class="label">[26]</a> Chalmer’s Opinions, 208; Report of the Judges, 3 Binney’s
+Reports, 595 (1808); Pepper &amp; Lewis’s Digest of Pennsylvania
+Decisions, Vol. XX, col. 35347; <i>Commonwealth</i> v. <i>Burrell</i>, 7
+Pennsylvania Reports, 34 (1847).</p></div>
+
+<div class="footnote"><p><a id="Footnote_27_27" href="#FNanchor_27_27" class="label">[27]</a> Sioussat’s English Statutes, reprinted in Select Essays in
+Anglo-American History, Vol. I, 416.</p></div>
+
+<div class="footnote"><p><a id="Footnote_28_28" href="#FNanchor_28_28" class="label">[28]</a> Charter and Laws of Pennsylvania, 35. Upon such complaints
+of inconveniences and omissions the laws were several
+times amended. Charter and Laws of Pennsylvania, 58, 60, 68.</p></div>
+
+<div class="footnote"><p><a id="Footnote_29_29" href="#FNanchor_29_29" class="label">[29]</a> Charter and Laws of Pennsylvania, 3; see also page 51.</p></div>
+
+<div class="footnote"><p><a id="Footnote_30_30" href="#FNanchor_30_30" class="label">[30]</a> Records of Court of New Amsterdam, Vol. I, 226, 230, 237,
+268, 299.</p></div>
+
+<div class="footnote"><p><a id="Footnote_31_31" href="#FNanchor_31_31" class="label">[31]</a> Steven’s Essay on Arbitration, 105. The principle of compulsory
+arbitration in partnership disputes was recognized in
+France by an edict of Francis II (1560) and an ordinance of
+Louis XIV (1673), incorporated in the Code Napoleon, L. 1, tit.
+3, 2.</p></div>
+
+<div class="footnote"><p><a id="Footnote_32_32" href="#FNanchor_32_32" class="label">[32]</a> Records of the Court of New Castle, 94.</p></div>
+
+<div class="footnote"><p><a id="Footnote_33_33" href="#FNanchor_33_33" class="label">[33]</a> Records of the Court of New Castle, 292.</p></div>
+
+<div class="footnote"><p><a id="Footnote_34_34" href="#FNanchor_34_34" class="label">[34]</a> Charter and Laws of Pennsylvania, 11. The Court of
+Assizes was abolished in 1684 by Act of Assembly. Scott’s
+History of Courts of New York, 104.</p></div>
+
+<div class="footnote"><p><a id="Footnote_35_35" href="#FNanchor_35_35" class="label">[35]</a> Laws of Massachusetts Colony (1672), 3; compare Charter
+and Laws of Pennsylvania, 7.</p></div>
+
+<div class="footnote"><p><a id="Footnote_36_36" href="#FNanchor_36_36" class="label">[36]</a> Charter and Laws of Pennsylvania, 4.</p></div>
+
+<div class="footnote"><p><a id="Footnote_37_37" href="#FNanchor_37_37" class="label">[37]</a> The law was soon amended “that Inn keepers or Ordinary
+keepers shall not bee obliged to put any perticuler quantity
+of Mault into their Beere.” Charter and Laws of Pennsylvania,
+64. For a petition for a license to keep an ordinary see Records
+of Court of New Castle, 312.</p></div>
+
+<div class="footnote"><p><a id="Footnote_38_38" href="#FNanchor_38_38" class="label">[38]</a> Charter and Laws of Pennsylvania, 4.</p></div>
+
+<div class="footnote"><p><a id="Footnote_39_39" href="#FNanchor_39_39" class="label">[39]</a> Charter and Laws of Pennsylvania, 11.</p></div>
+
+<div class="footnote"><p><a id="Footnote_40_40" href="#FNanchor_40_40" class="label">[40]</a> Charter and Laws of Pennsylvania, 44, 69.</p></div>
+
+<div class="footnote"><p><a id="Footnote_41_41" href="#FNanchor_41_41" class="label">[41]</a> Charter and Laws of Pennsylvania, 60.</p></div>
+
+<div class="footnote"><p><a id="Footnote_42_42" href="#FNanchor_42_42" class="label">[42]</a> Charter and Laws of Pennsylvania, 22.</p></div>
+
+<div class="footnote"><p><a id="Footnote_43_43" href="#FNanchor_43_43" class="label">[43]</a> “The w<sup>ch</sup> they will bee at y<sup>e</sup> charge of themselves.” VII
+Pennsylvania Archives (2d Series), 737.</p></div>
+
+<div class="footnote"><p><a id="Footnote_44_44" href="#FNanchor_44_44" class="label">[44]</a> Charter and Laws of Pennsylvania, 33.</p></div>
+
+<div class="footnote"><p><a id="Footnote_45_45" href="#FNanchor_45_45" class="label">[45]</a> The Connecticut Laws of 1650 (Hartford, 1833), 60.</p></div>
+
+<div class="footnote"><p><a id="Footnote_46_46" href="#FNanchor_46_46" class="label">[46]</a> Charter and Laws of Pennsylvania, 60.</p></div>
+
+<div class="footnote"><p><a id="Footnote_47_47" href="#FNanchor_47_47" class="label">[47]</a> Charter and Laws of Pennsylvania, 69.</p></div>
+
+<div class="footnote"><p><a id="Footnote_48_48" href="#FNanchor_48_48" class="label">[48]</a> Records of the Court at Upland, 190; see pages 107 and 181.</p></div>
+
+<div class="footnote"><p><a id="Footnote_49_49" href="#FNanchor_49_49" class="label">[49]</a> Records of the Court of New Castle, 12, 49, 53, 81, 133, 168,
+174, 212, 217, 358, 436, 455.</p></div>
+
+<div class="footnote"><p><a id="Footnote_50_50" href="#FNanchor_50_50" class="label">[50]</a> Charter and Laws of Pennsylvania, 100, 117, 154.</p></div>
+
+<div class="footnote"><p><a id="Footnote_51_51" href="#FNanchor_51_51" class="label">[51]</a> Elsewhere in the record “searifacous” (<i>scire facias</i>, mistaken
+for <i>habere facias possessionem</i>).</p></div>
+
+<div class="footnote"><p><a id="Footnote_52_52" href="#FNanchor_52_52" class="label">[52]</a> Sussex Records (Turner), 86, 91.</p></div>
+
+<div class="footnote"><p><a id="Footnote_53_53" href="#FNanchor_53_53" class="label">[53]</a> Sussex Records (Turner) 102. In the earlier records there
+are cases tried before juries of both seven and twelve men.</p></div>
+
+<div class="footnote"><p><a id="Footnote_54_54" href="#FNanchor_54_54" class="label">[54]</a> VII Pennsylvania Archives (2d Series), 722.</p></div>
+
+<div class="footnote"><p><a id="Footnote_55_55" href="#FNanchor_55_55" class="label">[55]</a> VII Pennsylvania Archives (2d Series) 748. The commission
+of Peter Alricks as “Bayliff” of the corporation of New
+Castle dated August 24, 1672, will be found in V Pennsylvania
+Archives (2d Series), 619.</p></div>
+
+<div class="footnote"><p><a id="Footnote_56_56" href="#FNanchor_56_56" class="label">[56]</a> VII Pennsylvania Archives (2d Series), 783.</p></div>
+
+<div class="footnote"><p><a id="Footnote_57_57" href="#FNanchor_57_57" class="label">[57]</a> VII Pennsylvania Archives (2d Series), 787, also 777, 794, 797.</p></div>
+
+<div class="footnote"><p><a id="Footnote_58_58" href="#FNanchor_58_58" class="label">[58]</a> VII Pennsylvania Archives (2d Series), 494; Hazard’s
+Annals of Pennsylvania, 70.</p></div>
+
+<div class="footnote"><p><a id="Footnote_59_59" href="#FNanchor_59_59" class="label">[59]</a> Hazard’s Annals of Pennsylvania, 219, quoting Albany
+Records, Vol. XVII.</p></div>
+
+<div class="footnote"><p><a id="Footnote_60_60" href="#FNanchor_60_60" class="label">[60]</a> Hazard’s Annals of Pennsylvania, 400, quoting Albany
+Records, Court of Assizes, Vol. II, 293-300.</p></div>
+
+<div class="footnote"><p><a id="Footnote_61_61" href="#FNanchor_61_61" class="label">[61]</a> V Pennsylvania Archives (2d Series), 627. A second execution
+was issued in 1675 by Governor Andros, V Pennsylvania
+Archives (2d Series), 666. In Records of Court of New Castle,
+page 53, is a suit by the sheriff against the auctioneer for the
+amount realized at a sale under this execution.</p></div>
+
+<div class="footnote"><p><a id="Footnote_62_62" href="#FNanchor_62_62" class="label">[62]</a> VII Pennsylvania Archives (2d Series), 799.</p></div>
+
+<div class="footnote"><p><a id="Footnote_63_63" href="#FNanchor_63_63" class="label">[63]</a> Records of the Court at Upland, 189.</p></div>
+
+<div class="footnote"><p><a id="Footnote_64_64" href="#FNanchor_64_64" class="label">[64]</a> Chester County Records quoted in Ashmead’s History
+of Delaware County, 280; see, also, Memoirs Long Island Historical
+Society, Vol. I, 189.</p></div>
+
+<div class="footnote"><p><a id="Footnote_65_65" href="#FNanchor_65_65" class="label">[65]</a> <i>Hart</i> v. <i>Hill</i>, 1 Wharton’s Reports, 124 (1835); <i>Tinicum
+Fishing Co.</i> v. <i>Carter</i>, 61 Pennsylvania Reports, 21 (1869);
+77 Pennsylvania Reports, 310 (1875); 90 Pennsylvania Reports,
+85 (1879).</p></div>
+
+<div class="footnote"><p><a id="Footnote_66_66" href="#FNanchor_66_66" class="label">[66]</a> Smith’s History of Delaware County, 31.</p></div>
+
+<div class="footnote"><p><a id="Footnote_67_67" href="#FNanchor_67_67" class="label">[67]</a> VII Pennsylvania Archives (2d Series), 797. In the case of
+a decedent, Andros seems to have solved the question of title
+by directing that the purchaser should have “a new pattent
+for his title.”</p></div>
+
+<div class="footnote"><p><a id="Footnote_68_68" href="#FNanchor_68_68" class="label">[68]</a> III Blackstone’s Commentaries, 419.</p></div>
+
+<div class="footnote"><p><a id="Footnote_69_69" href="#FNanchor_69_69" class="label">[69]</a> <i>Presbyterian Corporation</i> v. <i>Wallace</i>, 3 Rawle’s Reports,
+108 (1831) at page 141.</p></div>
+
+<div class="footnote"><p><a id="Footnote_70_70" href="#FNanchor_70_70" class="label">[70]</a> New York Colonial Documents, Vol. XII, 160.</p></div>
+
+<div class="footnote"><p><a id="Footnote_71_71" href="#FNanchor_71_71" class="label">[71]</a> Records of the Court of New Castle, 355; see, also, <i>Jegou</i> v.
+<i>Wright</i>, Upland Records, 140.</p></div>
+
+<div class="footnote"><p><a id="Footnote_72_72" href="#FNanchor_72_72" class="label">[72]</a> V Pennsylvania Archives (2d Series), 692; see in the court
+below New Castle Records, 88; Upland Records, 74.</p></div>
+
+<div class="footnote"><p><a id="Footnote_73_73" href="#FNanchor_73_73" class="label">[73]</a> V Pennsylvania Archives (2d Series), 721.</p></div>
+
+<div class="footnote"><p><a id="Footnote_74_74" href="#FNanchor_74_74" class="label">[74]</a> V Pennsylvania Archives (2d Series), 722. Abraham Mann
+not satisfied with the judgment of the Court of Assizes attempted
+to post on the door of the court at New Castle a paper containing
+his version of the proceedings, in which the court was
+charged with partiality. A warrant was issued for his arrest
+but he fled up the river. New Castle Records, 497, 514.</p></div>
+
+<div class="footnote"><p><a id="Footnote_75_75" href="#FNanchor_75_75" class="label">[75]</a> V Pennsylvania Archives (2d Series), 579, 582, 584; VII
+Pennsylvania Archives (2d Series), 723, 725.</p></div>
+
+<div class="footnote"><p><a id="Footnote_76_76" href="#FNanchor_76_76" class="label">[76]</a> VII Pennsylvania Archives (2d Series), 728.</p></div>
+
+<div class="footnote"><p><a id="Footnote_77_77" href="#FNanchor_77_77" class="label">[77]</a> VII Pennsylvania Archives (2d Series), 731.</p></div>
+
+<div class="footnote"><p><a id="Footnote_78_78" href="#FNanchor_78_78" class="label">[78]</a> Records of the Court at Upland, 160.</p></div>
+
+<div class="footnote"><p><a id="Footnote_79_79" href="#FNanchor_79_79" class="label">[79]</a> Sussex Records (Turner), 69.</p></div>
+
+<div class="footnote"><p><a id="Footnote_80_80" href="#FNanchor_80_80" class="label">[80]</a> Upland Court Records, 180. In another case of slander the
+court fined the defendant and ordered “that y<sup>e</sup> defendant openly
+shall declare him selfe a Lyar,” page 176. “In the Norman
+Custumal it is written that the man who has falsely called
+another ‘thief’ or ‘manslayer’ must pay damages, and, holding
+his nose with his fingers, must publicly confess himself a liar.”
+Pollock and Maitland History English Law, II, 537.</p></div>
+
+<div class="footnote"><p><a id="Footnote_81_81" href="#FNanchor_81_81" class="label">[81]</a> Records of the Court at Upland, 156.</p></div>
+
+<div class="footnote"><p><a id="Footnote_82_82" href="#FNanchor_82_82" class="label">[82]</a> Records of the Court at Upland, 111.</p></div>
+
+<div class="footnote"><p><a id="Footnote_83_83" href="#FNanchor_83_83" class="label">[83]</a> Records of the Court of New Castle, 9.</p></div>
+
+<div class="footnote"><p><a id="Footnote_84_84" href="#FNanchor_84_84" class="label">[84]</a> Records of the Court of New Castle, 341.</p></div>
+
+<div class="footnote"><p><a id="Footnote_85_85" href="#FNanchor_85_85" class="label">[85]</a> Sussex Records (Turner), 57.</p></div>
+
+<div class="footnote"><p><a id="Footnote_86_86" href="#FNanchor_86_86" class="label">[86]</a> Smith’s History of Delaware County.</p></div>
+
+<div class="footnote"><p><a id="Footnote_87_87" href="#FNanchor_87_87" class="label">[87]</a> VII Pennsylvania Archives (2d Series), 777.</p></div>
+
+<div class="footnote"><p><a id="Footnote_88_88" href="#FNanchor_88_88" class="label">[88]</a> Charter and Laws of Pennsylvania, 81.</p></div>
+
+<div class="footnote"><p><a id="Footnote_89_89" href="#FNanchor_89_89" class="label">[89]</a> Eberling’s History of Pennsylvania quoted in Janney’s Life
+of Penn and 1 Hazard Pa. Reg. 340.</p></div>
+
+<div class="footnote"><p><a id="Footnote_90_90" href="#FNanchor_90_90" class="label">[90]</a> The justices at New Castle in a letter to the deputy governor
+at New York dated November 11, 1681, refer to “Pensilvania.”</p></div>
+
+<div class="footnote"><p><a id="Footnote_91_91" href="#FNanchor_91_91" class="label">[91]</a> Hazard’s Annals of Pennsylvania, 525.</p></div>
+
+<div class="footnote"><p><a id="Footnote_92_92" href="#FNanchor_92_92" class="label">[92]</a> Pennsylvania Historical Magazine, Vol. XXX, 6.</p></div>
+
+<div class="footnote"><p><a id="Footnote_93_93" href="#FNanchor_93_93" class="label">[93]</a> 6 Howell’s State Trials, 951 (1670).</p></div>
+
+<div class="footnote"><p><a id="Footnote_94_94" href="#FNanchor_94_94" class="label">[94]</a> Charter and Laws of Pennsylvania, 92.</p></div>
+
+<div class="footnote"><p><a id="Footnote_95_95" href="#FNanchor_95_95" class="label">[95]</a> For form of promulgation, see Minutes of Council, 2, 2 mo.
+1686, I Colonial Records, 122.</p></div>
+
+<div class="footnote"><p><a id="Footnote_96_96" href="#FNanchor_96_96" class="label">[96]</a> The original Frame of Government as drawn up by Penn
+was amended at an assembly held at Philadelphia March 1,
+1683, Charter and Laws of Pennsylvania, 93, 123. Penn’s first
+plan contained the principle of initiative and referendum.</p></div>
+
+<div class="footnote"><p><a id="Footnote_97_97" href="#FNanchor_97_97" class="label">[97]</a> Charter and Laws of Pennsylvania, 100.</p></div>
+
+<div class="footnote"><p><a id="Footnote_98_98" href="#FNanchor_98_98" class="label">[98]</a> Charter and Laws of Pennsylvania, 117.</p></div>
+
+<div class="footnote"><p><a id="Footnote_99_99" href="#FNanchor_99_99" class="label">[99]</a> Charter and Laws of Pennsylvania, 128.</p></div>
+
+<div class="footnote"><p><a id="Footnote_100_100" href="#FNanchor_100_100" class="label">[100]</a> Charter and Laws of Pennsylvania, 154; Reinch’s Colonial
+Common Law, Essays in Anglo-American Legal History, Vol. I,
+397.</p></div>
+
+<div class="footnote"><p><a id="Footnote_101_101" href="#FNanchor_101_101" class="label">[101]</a> Hazard’s Annals of Pennsylvania, 606, quoting Records
+of Court of New Castle, Recorder’s Office, B. 9, 407.</p></div>
+
+<div class="footnote"><p><a id="Footnote_102_102" href="#FNanchor_102_102" class="label">[102]</a> Hazard’s Annals of Pennsylvania, 596.</p></div>
+
+<div class="footnote"><p><a id="Footnote_103_103" href="#FNanchor_103_103" class="label">[103]</a> Charter and Laws of Pennsylvania, 233, 237; Pennypacker’s
+Colonial Cases, 78, 92; Sussex Records (Turner), 55, 83.</p></div>
+
+<div class="footnote"><p><a id="Footnote_104_104" href="#FNanchor_104_104" class="label">[104]</a> Charter and Laws of Pennsylvania, 3, 176; Upland Court
+Records, 189.</p></div>
+
+<div class="footnote"><p><a id="Footnote_105_105" href="#FNanchor_105_105" class="label">[105]</a> Lands were made liable for debts “except where there
+was issue and then one half of the land,” the principle of set-off
+was accepted, the recording of deeds regulated and a mild
+criminal code adopted. Charter and Laws of Pennsylvania
+109, 118.</p></div>
+
+<div class="footnote"><p><a id="Footnote_106_106" href="#FNanchor_106_106" class="label">[106]</a> I Colonial Records, 34, 7, 9 mo., 1683; see, also, Sussex
+Records (Turner) 97, 116, for the election of peacemakers.</p></div>
+
+<div class="footnote"><p><a id="Footnote_107_107" href="#FNanchor_107_107" class="label">[107]</a> II Statutes at Large, 242. The Society of Friends had
+regulations of their own for submitting all differences between
+members to their monthly meetings. See the publications
+of the Genealogical Society of Pennsylvania, Vol. IV, 141.
+In 1707 James Logan writes to William Penn: “William Rakestraw
+has had me before the meeting for not granting him the
+lot near the bridge, after Francis Plumstead had applied to
+thee for it, and, as he pretends here, got a grant for it; but
+the six Friends to whom it was referred, declared it as their
+sentiments, upon a full hearing, that William has no manner
+of claim to it, either in law or equity, but that he has had full
+satisfaction, and shall condemn and retract his abuse against
+thee especially, of which shall send copies when past in the
+meeting.” Memoirs of Historical Society of Pennsylvania, Vol. X,
+258. The Statute of William III would seem to have been first
+suggested by John Locke. Board of Trade Journal, December
+18, 1696 (Mss. Historical Society of Pennsylvania, Vol. IX, 288).</p></div>
+
+<div class="footnote"><p><a id="Footnote_108_108" href="#FNanchor_108_108" class="label">[108]</a> Charter and Laws of Pennsylvania, 129.</p></div>
+
+<div class="footnote"><p><a id="Footnote_109_109" href="#FNanchor_109_109" class="label">[109]</a> Minutes of Provincial Council, May 24, 1693, 1 Colonial
+Records, 379, 380. Penn under date of 25, 7 mo. 1689, instructed
+Deputy Governor Blackwell “to collect y<sup>e</sup> Laws that are in
+Being, and send them over to me in a sticht book, by y<sup>e</sup> ffirst
+opportunity, which I have so often and so much in vaine desired.”
+I Pennsylvania Archives (4th Series), 106; 1 Colonial
+Records, 276, 2, 11 mo. 1689-90. It would seem that Penn
+had contemplated periodic revisions of the whole code, 1 Colonial
+Records, 42, 24, 1 mo. 1684; 151-2, 1, 2 mo. 1687; letter of
+Penn to Council, Pennsylvania Magazine of History, Vol. 33,
+308; Chapter 142 of the Acts of 1683, Charter and Laws of
+Pennsylvania, 155.</p></div>
+
+<div class="footnote"><p><a id="Footnote_110_110" href="#FNanchor_110_110" class="label">[110]</a> Journal of the Board of Trade (Mss. Historical Society
+of Pennsylvania, Vol. VII, 309), August 3, 1694.</p>
+
+<p>In 1694 the speaker informed the house that the laws passed
+by the last assembly, and transmitted to the king and council,
+were lodged with the king’s attorney, “who expects twenty
+guineas for perusing them, so that the same are not disallowed.”
+I Votes of Assembly, 82, 25, 3 mo. 1694.</p></div>
+
+<div class="footnote"><p><a id="Footnote_111_111" href="#FNanchor_111_111" class="label">[111]</a> Journal of the Board of Trade, December 31, 1697, Vol. X.
+386.</p></div>
+
+<div class="footnote"><p><a id="Footnote_112_112" href="#FNanchor_112_112" class="label">[112]</a> I Colonial Records, 18, 23, 3 mo. 1683. The jurisdiction
+of the courts prior to 1700 has been admirably described by
+the late Lawrence Lewis, Jr., Esq., in a paper read before the
+Historical Society of Pennsylvania March 14, 1881, and reprinted
+in I Pennsylvania Bar Association Reports, 353.</p></div>
+
+<div class="footnote"><p><a id="Footnote_113_113" href="#FNanchor_113_113" class="label">[113]</a> Chester County Records, 6th, 8 mo. 1685; 5 Hazard’s Pennsylvania
+Register, 156. The case of <i>Cock</i> v. <i>Rambo</i>, Pennypacker’s
+Colonial Cases, 79, is an illustration of the practice
+in a criminal case from the binding over to final judgment.</p></div>
+
+<div class="footnote"><p><a id="Footnote_114_114" href="#FNanchor_114_114" class="label">[114]</a> Pennypacker’s Colonial Cases, 99. In the previous year
+Thomas Howell was fined one shilling for breach of a rule.
+“Hee saucilie ansered Let the Court gett it how they can.”</p></div>
+
+<div class="footnote"><p><a id="Footnote_115_115" href="#FNanchor_115_115" class="label">[115]</a> Sussex County Records (Turner), 109. Watson was
+expelled from the provincial council in 1686, I Colonial Records,
+129, 10, 3 mo. 1686, but reinstated, I Colonial Records, 177, 10,
+3 mo. 1688.</p></div>
+
+<div class="footnote"><p><a id="Footnote_116_116" href="#FNanchor_116_116" class="label">[116]</a> Sussex Records (Turner), 110. He could have cited year-book
+precedents in his favor.</p></div>
+
+<div class="footnote"><p><a id="Footnote_117_117" href="#FNanchor_117_117" class="label">[117]</a> Sussex County Records Mss., quoted I Pennsylvania Bar
+Association Reports, 361.</p></div>
+
+<div class="footnote"><p><a id="Footnote_118_118" href="#FNanchor_118_118" class="label">[118]</a> Pennypacker’s Colonial Cases, 116 (1686).</p></div>
+
+<div class="footnote"><p><a id="Footnote_119_119" href="#FNanchor_119_119" class="label">[119]</a> See <i>Reynolds</i> v. <i>Simpson</i>, Pennypacker’s Colonial Cases,
+77 (1685).</p></div>
+
+<div class="footnote"><p><a id="Footnote_120_120" href="#FNanchor_120_120" class="label">[120]</a> In <i>Proprietor</i> v. <i>Wilkins</i>, Pennypacker’s Colonial Cases, 89
+(1685-6), a criminal case in Philadelphia, after the defendant
+had elected to be tried “by the bench of justices without a jury,”
+Hersent, the attorney-general, contended that it was contrary
+to law to try a prisoner without a petit jury. His contention
+was overruled, but the prisoner was convicted and fined.</p></div>
+
+<div class="footnote"><p><a id="Footnote_121_121" href="#FNanchor_121_121" class="label">[121]</a> Sussex County Records Mss., quoted I Pennsylvania Bar
+Association Reports, 364.</p></div>
+
+<div class="footnote"><p><a id="Footnote_122_122" href="#FNanchor_122_122" class="label">[122]</a> I Colonial Records, 122, 2, 2 mo. 1686.</p></div>
+
+<div class="footnote"><p><a id="Footnote_123_123" href="#FNanchor_123_123" class="label">[123]</a> I Colonial Records, 157, 158, 11, 3 mo. 1687. In Philadelphia
+the practice was for the justices to sign the order for an execution.
+Pennypacker’s Colonial Cases, 108; so, also, in the
+provincial court, I Colonial Records, 95, 11, 5 mo. 1685.</p></div>
+
+<div class="footnote"><p><a id="Footnote_124_124" href="#FNanchor_124_124" class="label">[124]</a> I Colonial Records, 124, 9, 2 mo. 1686.</p></div>
+
+<div class="footnote"><p><a id="Footnote_125_125" href="#FNanchor_125_125" class="label">[125]</a> I Colonial Records, 125, 9, 2 mo. 1686, also pages 153, 156,
+161.</p></div>
+
+<div class="footnote"><p><a id="Footnote_126_126" href="#FNanchor_126_126" class="label">[126]</a> Charter and Laws of Pennsylvania, 100.</p></div>
+
+<div class="footnote"><p><a id="Footnote_127_127" href="#FNanchor_127_127" class="label">[127]</a> I Colonial Records, 199, 21, 12 mo. 1688-9.</p></div>
+
+<div class="footnote"><p><a id="Footnote_128_128" href="#FNanchor_128_128" class="label">[128]</a> I Colonial Records, 531, August 8, 1699. Part of Patrick
+Robinson’s house seems to have been used as a prison. Watson’s
+Annals of Philadelphia (1850), Vol. I, 356.</p></div>
+
+<div class="footnote"><p><a id="Footnote_129_129" href="#FNanchor_129_129" class="label">[129]</a> Charter and Laws of Pennsylvania, 131.</p></div>
+
+<div class="footnote"><p><a id="Footnote_130_130" href="#FNanchor_130_130" class="label">[130]</a> Charter and Laws of Pennsylvania, 168.</p></div>
+
+<div class="footnote"><p><a id="Footnote_131_131" href="#FNanchor_131_131" class="label">[131]</a> Charter and Laws of Pennsylvania, 178, 184, 225; I Colonial
+Records, 205, 26, 12 mo. 1688-9.</p></div>
+
+<div class="footnote"><p><a id="Footnote_132_132" href="#FNanchor_132_132" class="label">[132]</a> I Colonial Records, 68, 12, 7 mo. 1684.</p></div>
+
+<div class="footnote"><p><a id="Footnote_133_133" href="#FNanchor_133_133" class="label">[133]</a> I Colonial Records, 290, 10, 2 mo. 1690.</p></div>
+
+<div class="footnote"><p><a id="Footnote_134_134" href="#FNanchor_134_134" class="label">[134]</a> I Colonial Records, 157, 11, 3 mo. 1687.</p></div>
+
+<div class="footnote"><p><a id="Footnote_135_135" href="#FNanchor_135_135" class="label">[135]</a> I Colonial Records, 304, 21, 9 mo. 1690.</p></div>
+
+<div class="footnote"><p><a id="Footnote_136_136" href="#FNanchor_136_136" class="label">[136]</a> I Colonial Records, 202, 25, 12 mo. 1688-9.</p></div>
+
+<div class="footnote"><p><a id="Footnote_137_137" href="#FNanchor_137_137" class="label">[137]</a> See Votes of the Assembly, Vol. I, 32.</p></div>
+
+<div class="footnote"><p><a id="Footnote_138_138" href="#FNanchor_138_138" class="label">[138]</a> I Colonial Records, 55, 17, 3 mo. 1684.</p></div>
+
+<div class="footnote"><p><a id="Footnote_139_139" href="#FNanchor_139_139" class="label">[139]</a> I Colonial Records, 83, 15, 3 mo. 1685; Votes of the Assembly,
+Vol. I, 35; Charter and Laws of Pennsylvania, 499.</p></div>
+
+<div class="footnote"><p><a id="Footnote_140_140" href="#FNanchor_140_140" class="label">[140]</a> Those who have had occasion to read his handwriting will
+testify to the truth of this statement.</p></div>
+
+<div class="footnote"><p><a id="Footnote_141_141" href="#FNanchor_141_141" class="label">[141]</a> Janney’s Life of Penn, 278.</p></div>
+
+<div class="footnote"><p><a id="Footnote_142_142" href="#FNanchor_142_142" class="label">[142]</a> I Colonial Records, 4, 15, 1 mo. 1683.</p></div>
+
+<div class="footnote"><p><a id="Footnote_143_143" href="#FNanchor_143_143" class="label">[143]</a> I Colonial Records, 52, 13, 3 mo. 1684.</p></div>
+
+<div class="footnote"><p><a id="Footnote_144_144" href="#FNanchor_144_144" class="label">[144]</a> I Colonial Records, 65, 14, 6 mo. 1684.</p></div>
+
+<div class="footnote"><p><a id="Footnote_145_145" href="#FNanchor_145_145" class="label">[145]</a> I Colonial Records, 20, 20, 4 mo. 1683.</p></div>
+
+<div class="footnote"><p><a id="Footnote_146_146" href="#FNanchor_146_146" class="label">[146]</a> I Colonial Records, 161, 18, 3 mo. 1687, and see pages 172,
+193, 210, 215-18.</p></div>
+
+<div class="footnote"><p><a id="Footnote_147_147" href="#FNanchor_147_147" class="label">[147]</a> McCall’s address before the Law Academy (1838); I Pennsylvania
+Bar Association Reports, 386.</p></div>
+
+<div class="footnote"><p><a id="Footnote_148_148" href="#FNanchor_148_148" class="label">[148]</a> II Colonial Records, 34, 20, 7 mo. 1701.</p></div>
+
+<div class="footnote"><p><a id="Footnote_149_149" href="#FNanchor_149_149" class="label">[149]</a> II Colonial Records, 38, 29, 7 mo. 1701.</p></div>
+
+<div class="footnote"><p><a id="Footnote_150_150" href="#FNanchor_150_150" class="label">[150]</a> II Colonial Records, 56, 28, 8 mo. 1701.</p></div>
+
+<div class="footnote"><p><a id="Footnote_151_151" href="#FNanchor_151_151" class="label">[151]</a> Pennypacker’s Colonial Cases, 32; I Colonial Records, 29,
+24, 8 mo. 1683, and page 32.</p></div>
+
+<div class="footnote"><p><a id="Footnote_152_152" href="#FNanchor_152_152" class="label">[152]</a> Pennypacker’s Colonial Cases, 35; I Colonial Records, 40,
+27, 12 mo. 1683.</p></div>
+
+<div class="footnote"><p><a id="Footnote_153_153" href="#FNanchor_153_153" class="label">[153]</a> Hazard’s Pennsylvania Register, Vol. V, 159. In Sussex
+County Edward Southrin was accused of having conversed
+with the devil. Sussex County Records (Turner), 36.</p></div>
+
+<div class="footnote"><p><a id="Footnote_154_154" href="#FNanchor_154_154" class="label">[154]</a> I Colonial Records, 8, 21, 1 mo. 1683, and pages 35, 69.</p></div>
+
+<div class="footnote"><p><a id="Footnote_155_155" href="#FNanchor_155_155" class="label">[155]</a> Pennypacker’s Colonial Cases, 29; I Colonial Records, 23,
+7, 7 mo. 1683.</p></div>
+
+<div class="footnote"><p><a id="Footnote_156_156" href="#FNanchor_156_156" class="label">[156]</a> I Colonial Records, 494, 9 February, 1697-8; Board of Trade
+Journals, Mss. Historical Society Pennsylvania, Vol. X, 268,
+287, 333.</p></div>
+
+<div class="footnote"><p><a id="Footnote_157_157" href="#FNanchor_157_157" class="label">[157]</a> I Colonial Records, 495, 10 February, 1697-8.</p></div>
+
+<div class="footnote"><p><a id="Footnote_158_158" href="#FNanchor_158_158" class="label">[158]</a> I Colonial Records, 532, August 9, 1699 and see page 549;
+Sussex Records (Turner), 42. August 17, 1696, Mr. Randolph
+delivered to the Commissioners of Trade a paper relating to the
+ill execution of the Acts of Parliament and a list of names of
+Pirates and Scotchmen inhabiting and trading in Pennsylvania;
+Memoirs of Historical Society of Pennsylvania, Vol. IV, part 2,
+260.</p></div>
+
+<div class="footnote"><p><a id="Footnote_159_159" href="#FNanchor_159_159" class="label">[159]</a> I Colonial Records, 535, December 21, 1699, and see page 545.</p></div>
+
+<div class="footnote"><p><a id="Footnote_160_160" href="#FNanchor_160_160" class="label">[160]</a> I Colonial Records, 576, May 14, 1700.</p></div>
+
+<div class="footnote"><p><a id="Footnote_161_161" href="#FNanchor_161_161" class="label">[161]</a> Memoirs Historical Society of Pennsylvania, Vol. IV, part 2,
+301.</p></div>
+
+<div class="footnote"><p><a id="Footnote_162_162" href="#FNanchor_162_162" class="label">[162]</a> Watson’s Annals of Philadelphia (1850), Vol. II, 218; III
+Colonial Records, 43, August 11, 1718.</p></div>
+
+<div class="footnote"><p><a id="Footnote_163_163" href="#FNanchor_163_163" class="label">[163]</a> Blackbeard’s head was struck off and brought back in
+triumph on the end of the bowsprit. Afterwards his skull
+was made into the bottom of a very large punch bowl long used
+at the Raleigh Tavern at Williamsburg, Va.; Watson’s Annals
+of Philadelphia (1850), Vol. II, 221.</p></div>
+
+<div class="footnote"><p><a id="Footnote_164_164" href="#FNanchor_164_164" class="label">[164]</a> I Colonial Records, 313, 21, 9 mo. 1690.</p></div>
+
+<div class="footnote"><p><a id="Footnote_165_165" href="#FNanchor_165_165" class="label">[165]</a> II Statutes at Large, 148, § 5.</p></div>
+
+<div class="footnote"><p><a id="Footnote_166_166" href="#FNanchor_166_166" class="label">[166]</a> I Colonial Records, 95, 11, 5 mo. 1685, and see page 98.</p></div>
+
+<div class="footnote"><p><a id="Footnote_167_167" href="#FNanchor_167_167" class="label">[167]</a> Board of Trade Journals, July 13, 1694; Mss. Historical
+Society of Pennsylvania, Vol. VII, 300.</p></div>
+
+<div class="footnote"><p><a id="Footnote_168_168" href="#FNanchor_168_168" class="label">[168]</a> Shepherd’s Proprietary Government in Pennsylvania (Columbia
+University Studies in History, 1896).</p></div>
+
+<div class="footnote"><p><a id="Footnote_169_169" href="#FNanchor_169_169" class="label">[169]</a> II Colonial Records, 54, 28, 8 mo. 1701; Proceedings of the
+Constitutional Conventions of Pennsylvania of 1776 and 1790, 31.</p></div>
+
+<div class="footnote"><p><a id="Footnote_170_170" href="#FNanchor_170_170" class="label">[170]</a> Chester County Records, 6, 5 mo. 1699, reprinted in Hazard’s
+Pennsylvania Register, Vol. V, 156.</p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_74">[Pg 74]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_II">
+    CHAPTER II.
+  </h2>
+</div>
+
+
+<p>In 1701 William Penn was called back to England to
+defend his proprietorship. Before his departure a general
+revision of the earlier legislation was undertaken at
+the sessions of the assembly held at New Castle in 1700
+and at Philadelphia in 1701. The acts there passed,
+one hundred and fourteen in number, seem, in a sense,
+to have been regarded as supplying the previous legislation
+and were passed with the expectation of being
+presented to the privy council for approval, as required
+by the charter. In fact, when the board of trade inquired
+of Penn, on his return, as to whether the laws
+received from him were a complete body of all the laws
+of the province, he replied that he believed they were
+the present body of laws,&#x2060;<a id="FNanchor_171_171" href="#Footnote_171_171" class="fnanchor">[171]</a> and it will be noticed that the
+compilations of the eighteenth century begin with the
+Acts of 1700.</p>
+
+<p>Among these acts was one of October 28, 1701,
+entitled “An Act for Establishing Courts of Judicature
+in this Province and Counties Annexed.”&#x2060;<a id="FNanchor_172_172" href="#Footnote_172_172" class="fnanchor">[172]</a> Its origin
+was as follows: Edward Shippen, for the two previous
+years chief justice of the provincial court, and John
+Guest, the then chief justice, both members of the
+council, brought into the assembly on October 7th, a
+bill for establishing the courts, which was “unanimously
+rejected.” Some few days after, David Lloyd, who
+was not then a member of either council or house, proposed
+a bill which was voted to be adopted with amendments,
+and Richard Hallowell and Isaac Norris were
+appointed a committee to draw up the bill, with the
+amendments. The bill met with no apparent opposition
+<span class="pagenum" id="Page_75">[Pg 75]</span>in the council. Without repeating its provisions in
+full, which would be tedious, it may be said by way of
+summary that the act provided for the holding of the
+“County Courts or Sessions” at stated periods, three
+justices to constitute a quorum, with jurisdiction in
+civil and criminal matters, capital cases excepted. These
+courts were required to observe as nearly as possible
+“respecting the infancy of this Government and capacities
+of the people, the methods and practice of the King’s
+court of common pleas in England; having regard to the
+regular process and proceedings of the former county
+courts; always keeping to brevity, plainness and verity
+in all declarations and pleas, and avoiding all fictions
+and color in pleadings.” Maritime affairs, not cognizable
+in the admiralty courts, were to be tried in a special
+manner before a jury of “merchants, masters of vessels
+or ship carpenters.” The county courts also received
+equity powers, with the right of appeal to the provincial
+court from any decree or sentence made or given by the
+justices. The provincial court was to consist of five
+judges, appointed by the governor, three of whom were
+required to sit twice a year in Philadelphia, and two,
+at least, to go on circuit through the counties to try
+capital cases and serious crimes and hear appeals from
+the county courts. The governor, however, was to
+grant writs of error and writs of habeas corpus. The
+powers and duties of the orphans’ courts were also
+defined and the forms of certain writs prescribed; all
+former laws relating to the courts were repealed.</p>
+
+<p>There is little doubt that David Lloyd was the original
+draftsman of the bill and while the act, as finally adopted,
+contained in its main outline features afterwards recognized
+by the colonists as most convenient for Pennsylvania,
+it was, like other acts attributed to Lloyd, verbose,
+involved and overloaded with minor details of
+practice. Lloyd, no doubt, thought that he was faithfully
+adhering to the simplicity that had marked the
+<span class="pagenum" id="Page_76">[Pg 76]</span>legal procedure in the province from the beginning, but
+he was a lawyer, and, like most of his brethren, could
+not divest himself of his professional circumlocution or
+exclude from his plan pet theories of his own. In the
+form adopted the act did not prove acceptable to the
+advisers of the Crown.</p>
+
+<p>Penn himself seems, on second thought, to have found
+some objectionable features in the act and desired that
+it might not be confirmed but sent back to be amended.
+The lords commissioners for trade and plantations
+reported that the act, “so far from expediting the
+determination of lawsuits,” would, as they conceived,
+“impede the same,” and, accordingly, the act was
+formally disallowed and repealed on February 7, 1705,
+by the queen in council.&#x2060;<a id="FNanchor_173_173" href="#Footnote_173_173" class="fnanchor">[173]</a> One of the objections that
+occurred to the minds of the English lawyers was to that
+clause which directed the courts to avoid all “fictions
+and color in pleadings.” A doubt was entertained as
+to whether this might not preclude an action of ejectment.
+In this they were not far from the real purpose
+of the draftsman of the act, as would appear from a
+debate in the provincial council in December, 1704,
+upon a petition by Thomas Revel, the plaintiff in an
+ejectment, who complained that his case had been
+put off for nearly three years. John Moore, counsel for
+the plaintiff, and David Lloyd, for the defendant, being
+summoned before the council, Lloyd boldly argued that
+that method of trial being fictitious, was repugnant to
+the law of the province.&#x2060;<a id="FNanchor_174_174" href="#Footnote_174_174" class="fnanchor">[174]</a> Lloyd, however, was clever
+<span class="pagenum" id="Page_77">[Pg 77]</span>enough at a later day, to use the action of ejectment
+with success in the Frankfort Company’s case, which
+will be referred to hereafter.</p>
+
+<p>The repeal of the Act of 1701 left the administration
+of justice in a confused state. There had been some
+debate in the session of the assembly of 1705 upon the
+subject of courts, but the repeal of the act was not
+known. Upon receipt of the order in council, Governor
+Evans called the assembly in special session, in September,
+1706,&#x2060;<a id="FNanchor_175_175" href="#Footnote_175_175" class="fnanchor">[175]</a> and presented to that body an act for establishing
+courts, drawn up, it was said, by some
+practitioners therein. The assembly, however, requested
+that the matter be referred to the new house, which met
+in October, 1706, and accordingly at the following
+session this was the first matter under discussion, the
+governor laying his bill before the house with his opening
+address. The assembly, or rather David Lloyd who
+dominated that body, had other views and presented
+them in what is described as a “long and tedious bill,”
+which, on being read in council, was found to depart
+very widely from the plan proposed by the governor’s
+advisers.&#x2060;<a id="FNanchor_176_176" href="#Footnote_176_176" class="fnanchor">[176]</a>&#x2060;</p>
+
+<p>We have not the text of these rival bills, which brought
+about a deadlock between the governor and the house,
+but it is apparent that both sides were struggling for
+the control of the courts and in view of the expected
+surrender of the government to the Crown, both were
+equally anxious to establish their position before that
+event.&#x2060;<a id="FNanchor_177_177" href="#Footnote_177_177" class="fnanchor">[177]</a>&#x2060;</p>
+
+<p>The plan endorsed by the governor included county
+courts with civil jurisdiction, exclusive in cases under
+<span class="pagenum" id="Page_78">[Pg 78]</span>ten pounds, and criminal jurisdiction, except in capital
+cases which were to be tried by special commissions of
+oyer and terminer; a provincial court for the whole
+province, to sit ordinarily at Philadelphia but to go on
+circuit twice a year, with original jurisdiction concurrent
+with the county courts in cases over ten pounds as well
+as on appeal from the county courts, and lastly, a court
+of equity to be held by the governor and council.&#x2060;<a id="FNanchor_178_178" href="#Footnote_178_178" class="fnanchor">[178]</a> The
+assembly ever jealous of the centralization of authority
+objected to a separate court of chancery and to the
+exercise of original jurisdiction by the provincial court.&#x2060;<a id="FNanchor_179_179" href="#Footnote_179_179" class="fnanchor">[179]</a>
+On the other hand, the governor pointed out that the
+bill proposed by the assembly contained precisely the
+same faults that had caused the rejection of the Act of
+1701; that it went into matters of practice at great
+length which ought to be settled by rule of court; that
+the chancery practice ought to conform to that in the
+other English dominions; that there was too much
+leniency shown to debtors in the clauses relating to
+executions; that too much power was conferred on the
+court of the city of Philadelphia; that the provision for
+the payment of the judges was inadequate, and that
+the proprietors’ rights were interfered with in the
+clause providing for the dismissal of the judges on the
+address of the assembly and for the appropriation of all
+fines and forfeitures to the support of the courts.&#x2060;<a id="FNanchor_180_180" href="#Footnote_180_180" class="fnanchor">[180]</a>&#x2060;</p>
+
+<p>The controversy began politely enough, for the
+governor and council were anxious to settle the administration
+of justice on a firm basis and to persuade the
+assembly to allow a fixed salary to Roger Mompesson,
+a good lawyer who had been persuaded to accept the
+office of chief justice. But as time passed and each
+<span class="pagenum" id="Page_79">[Pg 79]</span>side adhered obstinately to its own view the tone of
+the respective messages became warmer. The governor
+hinted that if further delay occurred he would establish
+the courts by ordinance and charged the assembly with
+grasping for power.</p>
+
+<blockquote>
+<p>“It might reasonably be thought a very easy business to
+establish the courts by a law, without raising new disputes
+and contending for such Grants of Power as are not essential
+to their Constitution, nor were ever in the People for these 24
+years past, since this has been a colony.”&#x2060;<a id="FNanchor_181_181" href="#Footnote_181_181" class="fnanchor">[181]</a>&#x2060;</p>
+</blockquote>
+
+<p>To which the assembly rejoined that whoever advised
+the governor to establish courts by ordinance was an
+enemy to the welfare of the province; that they were
+not striving for power—</p>
+
+<blockquote>
+<p>“but for what are essential to y<sup>e</sup> Administration of Justice and
+agreeable to an English Constitution, and if we have not been
+in possession of this these 24 years, we know where to place
+the fault, and shall only say, tis high time we were in the enjoyment
+of our rights.”&#x2060;<a id="FNanchor_182_182" href="#Footnote_182_182" class="fnanchor">[182]</a>&#x2060;</p>
+</blockquote>
+
+<p>It is needless to refer at greater length to the rhetorical
+flourishes of the combatants, which did not add particularly
+to clarity of reasoning. Conferences were
+held and bitter language used, the matter at one time
+taking the form of a personal controversy between the
+hot-headed young governor and the equally fiery speaker,
+when the latter declined to rise when addressing the
+governor at one of these debates.&#x2060;<a id="FNanchor_183_183" href="#Footnote_183_183" class="fnanchor">[183]</a>&#x2060;</p>
+
+<p>The assembly then proceeded to impeach James
+Logan, the secretary of the province, charging him with
+attempting to subvert the charter and set up arbitrary
+government. The governor, having twice adjourned
+<span class="pagenum" id="Page_80">[Pg 80]</span>the courts pending the discussion and now despairing
+of reaching a conclusion, on February 22, 1707, issued
+an ordinance for the establishment of the courts, under
+a clause in the charter which authorized the proprietor
+to make wholesome ordinances for the preservation of
+the peace and the better government of the people.&#x2060;<a id="FNanchor_184_184" href="#Footnote_184_184" class="fnanchor">[184]</a>
+The expedient was somewhat daring, as the charter
+further provided that such ordinances should not bind
+or charge any person for or in their “life, members,
+freehold, goods or chattels.” In this ordinance the
+provincial court is first called the “Supream Court” of
+Pennsylvania.&#x2060;<a id="FNanchor_185_185" href="#Footnote_185_185" class="fnanchor">[185]</a> The assembly prepared a bitter remonstrance
+against the ordinance and adjourned.&#x2060;<a id="FNanchor_186_186" href="#Footnote_186_186" class="fnanchor">[186]</a>&#x2060;</p>
+
+<p>Under this ordinance, which embodied the undisputed
+features of the proposed bills in a clear and concise
+form, the courts acted during the remainder of
+Evans’s and the first two years of Gookin’s administration,
+until, in 1710, when tired of quarreling over non-essentials,
+a court act was passed.&#x2060;<a id="FNanchor_187_187" href="#Footnote_187_187" class="fnanchor">[187]</a> By this act a court,
+called the “Supream Court of Pennsylvania,” was
+established, consisting of four judges appointed by the
+governor, two to constitute a quorum, with power to
+hear appeals at law or in equity. The jurisdiction and
+practice of the quarter sessions and common pleas were
+elaborately defined and Governor Evans’s ordinance was
+followed in the provision that all capital offenses should
+<span class="pagenum" id="Page_81">[Pg 81]</span>be tried before commissioners of oyer and terminer
+specially appointed for the occasion.</p>
+
+<p>This act was, with minor modifications, the same as
+that proposed by the assembly in 1706, for it appears
+in the minutes that on November 2, 1710, a bill for
+establishing courts prepared by a former assembly was
+read, which, being very long, was left to the further
+consideration of the house. Governor Gookin was of
+the opinion that the courts could be better regulated
+by ordinance and that three judges were sufficient for
+the supreme court, but ultimately gave in on most of
+the points formerly in dispute. The act is indeed long
+and complicated, embodying an almost complete code
+of practice in both civil and criminal cases and on
+appeal, with very definite limitations placed on arrests
+in civil actions. One proposal of the governor was
+adopted. It having been suggested by the justices that
+the common pleas should be separated from the sessions
+of the peace, “for that the Holding ’em together perplexes
+Bench Juries, parties &amp; Witnesses,”&#x2060;<a id="FNanchor_188_188" href="#Footnote_188_188" class="fnanchor">[188]</a> the act provided
+that the terms of the quarter sessions should
+begin on Mondays or Tuesdays and of the common pleas
+on the Wednesdays following. By a fee bill adopted
+the same day, the chief justice was allowed thirty shillings
+and the other justices twenty shillings for every
+day they sat in court.&#x2060;<a id="FNanchor_189_189" href="#Footnote_189_189" class="fnanchor">[189]</a> Both of these acts were repealed
+by the queen in council on February 20, 1713, by advice
+of the solicitor general, Sir Robert Raymond, who was
+of the opinion that the practice provided would multiply
+trials at law in plain cases and make proceedings in law
+and equity insufferably dilatory and expensive.&#x2060;<a id="FNanchor_190_190" href="#Footnote_190_190" class="fnanchor">[190]</a>&#x2060;</p>
+
+<p><span class="pagenum" id="Page_82">[Pg 82]</span></p>
+
+<p>It was no doubt very irritating to the anti-proprietary
+party that acts upon which they had expended time
+and thought should be continually repealed by the
+Crown upon pretexts that probably concealed the true
+motives for such action. The assembly had, however,
+hit upon a method of preserving its legislation, temporarily
+at least. Under the charter, all laws were required
+to be submitted to the council within five years
+of their enactment. The colonists took as much time
+as they pleased before submitting the acts, and, as a
+result, the laws generally remained in force nearly five
+years, and when the assembly was notified of their
+repeal, new acts on similar lines were passed. Against
+such tactics the commissioners of trade vainly protested.&#x2060;<a id="FNanchor_191_191" href="#Footnote_191_191" class="fnanchor">[191]</a>
+During the intervals between the repeal of
+the old and the passage of the new court acts the governor
+maintained the courts either by special commissions
+to the judges or by general ordinances.</p>
+
+<p>One act did succeed in obtaining favorable recommendation,
+that of March 27, 1712-13, relating to the
+organization of and powers of orphans’ courts, a comprehensive
+statute which defined the duties of that court
+in relation to the estates of decedents, and the care of
+the estates of minors, and became the basis of all subsequent
+legislation extending and strengthening the jurisdiction
+of that admirable tribunal.</p>
+
+<p>It would take up too much space to go over all the acts
+that fell before the criticisms of the council. One, that
+of May 15, 1715,&#x2060;<a id="FNanchor_192_192" href="#Footnote_192_192" class="fnanchor">[192]</a> regulated the taking of appeals to
+Great Britain and required the appellant to give recognizance
+in double the amount of the judgment. The
+<span class="pagenum" id="Page_83">[Pg 83]</span>objection to this act was that there was no sum limited
+for which an appeal might be brought, as provided in
+the instructions to the governors of all the plantations,
+but notice of this repeal does not seem to have reached
+Pennsylvania, and the act was printed as in force in all
+compilations of the laws down to the Revolution. The
+first definite reference to these appeals is, as we have
+seen, in the commission of William and Mary to Governor
+Fletcher, which limited appeals to cases involving more
+than three hundred pounds. Additional instructions
+were sent to the proprietors in 1726,&#x2060;<a id="FNanchor_193_193" href="#Footnote_193_193" class="fnanchor">[193]</a> directing the suspension
+of execution pending the final determination
+of appeals, and in 1753 still more explicit instructions
+were issued to a number of colonies including Pennsylvania.
+By these instructions the governor and council
+were directed to hear appeals from the courts and if
+any of the judges who tried the case appealed were
+members of the council they were not to vote but to
+give the reasons for their decision. From the judgment
+of the provincial council an appeal was to be
+allowed to the king in council provided the matter in
+controversy involved five hundred pounds, and in cases
+of less than that amount where future rights might be
+bound or the king’s revenue affected. The appellant
+was required to enter security for the judgment and
+costs and pending the appeal execution was to be suspended,
+unless security was entered for restitution.&#x2060;<a id="FNanchor_194_194" href="#Footnote_194_194" class="fnanchor">[194]</a>
+<span class="pagenum" id="Page_84">[Pg 84]</span>The directions for a judicial hearing before the provincial
+council must have been given in ignorance of the
+fact that under the Frame of Government of 1701 the
+council in Pennsylvania did not exercise judicial powers.</p>
+
+<p>In 1718 two murderers, Hugh Pugh and Lazarus
+Thomas, attempted to gain a reprieve by an appeal to
+the king, but the council ignored their petition on
+account of the notoriety of their crimes.&#x2060;<a id="FNanchor_195_195" href="#Footnote_195_195" class="fnanchor">[195]</a> The case of
+<i>Fothergill</i> v. <i>Stover</i>,&#x2060;<a id="FNanchor_196_196" href="#Footnote_196_196" class="fnanchor">[196]</a> involving the admissibility in evidence
+of a letter from the secretary of the land office
+to a deputy surveyor, is said by the reporter to have
+been affirmed on appeal to the king, and the docket
+of the supreme court shows that such an appeal was
+taken.&#x2060;<a id="FNanchor_197_197" href="#Footnote_197_197" class="fnanchor">[197]</a> In fact there are several entries of this sort.
+In <i>Brown</i> v. <i>McMurtrie</i>, April Term, 1763, judgment is
+entered for the plaintiff on a special verdict, whereupon
+Mr. Galloway “prays leave to appeal to the King in
+Council,” which is granted on giving security agreeable
+to the act of assembly and paying the costs. Below in
+another handwriting is the entry, “Judgment of the
+Supream Court confirmed by his Majesty in Council.”&#x2060;<a id="FNanchor_198_198" href="#Footnote_198_198" class="fnanchor">[198]</a>
+There is a similar entry in <i>Nixon</i> v. <i>Long</i>, where Chew
+and Galloway appeared for the plaintiff and Dickinson
+and Ross for the defendant. Judgment for the plaintiff
+was entered on a demurrer to the evidence and on
+appeal to the king the judgment was “confirmed.”&#x2060;<a id="FNanchor_199_199" href="#Footnote_199_199" class="fnanchor">[199]</a> There
+are two other entries of appeals in 1765,&#x2060;<a id="FNanchor_200_200" href="#Footnote_200_200" class="fnanchor">[200]</a> and at April
+<span class="pagenum" id="Page_85">[Pg 85]</span>Term, 1767, there are three suits by the same plaintiff
+against different defendants, in which appeals to the
+king were taken, security entered and transcripts of
+the record issued, but the result is not recorded.&#x2060;<a id="FNanchor_201_201" href="#Footnote_201_201" class="fnanchor">[201]</a>&#x2060;</p>
+
+<p>It is interesting to note, that to the appeals from the
+various colonies and from the Channel Islands is to be
+traced the jurisdiction of the judicial committee of the
+privy council. The standing committee for trade and
+plantations was, by an order of 1691, directed to hear
+appeals and report thereon to the king in council.&#x2060;<a id="FNanchor_202_202" href="#Footnote_202_202" class="fnanchor">[202]</a> Few
+cases came before the committee at first, but gradually
+their proceedings took a judicial form, the judgment
+of the members became a judicial decision, and the
+adoption of their report a <i>pro forma</i> matter. At this
+early period their decisions are but occasionally noticed
+in the English reports, but Lord Mansfield, in his speech
+on the Stamp Act, stated that he had in his early practice
+been much concerned in the plantation causes
+before the privy council and so had become acquainted
+with American affairs.&#x2060;<a id="FNanchor_203_203" href="#Footnote_203_203" class="fnanchor">[203]</a>&#x2060;</p>
+
+<p>The attempted appeal of Pugh and Thomas was based
+on the fact that seventeen of the grand jury which had
+indicted them and eight of the petit jury who found
+them guilty were Quakers who had qualified by affirmations
+instead of oaths. This calls attention to a difficulty
+that had long troubled the colony. The conscientious
+scruples of the Friends against judicial oaths had
+<span class="pagenum" id="Page_86">[Pg 86]</span>been taken advantage of by their opponents, led by
+Colonel Quarry, to drive them from office and lessen
+their power.&#x2060;<a id="FNanchor_204_204" href="#Footnote_204_204" class="fnanchor">[204]</a> An order had been procured from Queen
+Anne enjoining the administration of oaths to all persons
+willing to take them, an order which the Quaker justices
+were loath to enforce, while the justices of the church
+party declined to administer affirmations, lest they
+should mistake the sincerity of the affiant’s religious
+scruples. Constant friction and mistrials resulted from
+this state of affairs, and more than one act was passed
+on the subject only to meet with technical objections in
+England.&#x2060;<a id="FNanchor_205_205" href="#Footnote_205_205" class="fnanchor">[205]</a>&#x2060;</p>
+
+<p>The popularity of Governor Keith enabled him to
+obtain the passage of the Act of May 31, 1718,&#x2060;<a id="FNanchor_206_206" href="#Footnote_206_206" class="fnanchor">[206]</a> which
+permitted affirmations by such as conscientiously
+scrupled to take an oath, but at the same time restored
+much of the rigorous criminal code of England, which
+the humanity of Penn had prevented from being put in
+force in the province. A few years later the Act of
+May 9, 1724,&#x2060;<a id="FNanchor_207_207" href="#Footnote_207_207" class="fnanchor">[207]</a> was passed which carefully prescribed
+the forms of declarations of fidelity, abjurations and
+affirmations to be taken by Quakers, with a proviso that
+the act was not to be construed as repealing the Act of
+1718. To this the assembly in 1739 attempted to add
+a supplement for the relief of Scotch Presbyterians, who
+had conscientious scruples against kissing the Bible,
+permitting them to take the oath in the form
+commonly administered in Scotland. Approval of this
+act was refused on the advice of Sir Dudley Ryder and
+Sir John Strange, who criticised its loose wording and
+called attention to the danger of giving way to new
+<span class="pagenum" id="Page_87">[Pg 87]</span>scruples about oaths.&#x2060;<a id="FNanchor_208_208" href="#Footnote_208_208" class="fnanchor">[208]</a> Subsequently the privy council
+relented and in 1772 an act was passed and approved
+which permitted witnesses to qualify either by a
+solemn affirmation, an oath in the usual form or an
+oath with uplifted hand.&#x2060;<a id="FNanchor_209_209" href="#Footnote_209_209" class="fnanchor">[209]</a>&#x2060;</p>
+
+<p>From the passage of the Act of 1718 capital punishment
+for the greater felonies was rigorously employed,
+until in 1794, principally through the efforts of Judge
+Bradford, the death penalty was abolished in all cases
+except high treason and willful murder. As a natural
+consequence the number of appeals for executive
+clemency steadily increased and the minutes of the
+council are full of such petitions.&#x2060;<a id="FNanchor_210_210" href="#Footnote_210_210" class="fnanchor">[210]</a> One of the most
+curious is the following:—</p>
+
+<blockquote>
+<p>“A Petition of John Remington, Attorney at Law, delivered
+to the President, was by him laid before the Board and read,
+setting forth that the Petitioner was unfortunately deluded &amp;
+drawn into the idle Diversion of performing the Ceremony of
+making a free Mason, in Order to which a Sport called Snap
+Dragon was prepared, at which the Petitioner was perswaded
+to be present; that unhappily some of the burning Spirit used
+in this Sport was thrown or spilt on the Breast of one Daniel
+Rees, which so burnt or scalded him that in a few days after
+the said Daniel dyed; That Doctor Evan Jones had been indicted
+as Principle for the Murder of the said Daniel Rees, &amp; by a Jury
+of the County was found guilty of Manslaughter; That the
+Petitioner was also indicted as aiding &amp; abetting the said Evan
+Jones, and altho’ no Evidence did or could appear to prove that
+the Petitioner had any hand in the throwing or spilling the said
+Liquor on the Body of the said Daniel, or was privy to any Design
+or Intention of doing harm to the said Daniel, or to any
+other Person, yet the same Jury had brought in a Verdict of
+Manslaughter likewise against the Petitioner, which if put
+in Execution would tend to the utter Ruin of the Petitioner,
+his Wife, and two small children, &amp; therefore humbly praying
+that the President &amp; Council would be pleased to grant him a
+Pardon; Whereupon the Board are of Opinion that the Petitioner
+<span class="pagenum" id="Page_88">[Pg 88]</span>should be pardoned the Manslaughter aforesaid, and the burning
+in the hand, which by reason thereof, he ought to suffer; But it
+being observed that in the Course of the Tryal a certain wicked &amp;
+irreligious Paper had been produced &amp; read, which appeared
+to have been composed by the said Remington, who had made
+the aforesaid Daniel Rees repeat the same, as part of the form
+to be gone thro’ on initiating him as a free Mason; the Board
+therefore agreed that the Pardon should be so restricted as that
+it might not be pleaded in Bar of any Prosecution that should
+hereafter be commenced against the said Remington on account
+of the said scandalous Paper.”&#x2060;<a id="FNanchor_211_211" href="#Footnote_211_211" class="fnanchor">[211]</a>&#x2060;</p>
+</blockquote>
+
+<p>It would seem that with the constantly increasing
+population, a disorderly element was introduced into
+the community that rendered stringent measures
+necessary for the protection of society. In 1726 a riotous
+crowd burnt down the pillory and stocks in the market
+place and the governor was obliged to issue a proclamation
+for the suppression of such tumults in the future.&#x2060;<a id="FNanchor_212_212" href="#Footnote_212_212" class="fnanchor">[212]</a>
+In the newspapers will be found complaints against
+the authorities in England for making the colony a
+dumping ground for criminals and vagabonds.&#x2060;<a id="FNanchor_213_213" href="#Footnote_213_213" class="fnanchor">[213]</a> In
+1717 the grand jury present:—</p>
+
+<blockquote>
+<p>“Whereas, it has been <i>frequently and often</i> presented by several
+former grand juries for this city, the necessity of a ducking stool
+<span class="pagenum" id="Page_89">[Pg 89]</span>and house of correction, for the just punishment of scolding,
+drunken women, as well as divers other profligate and unruly
+persons in this place, who are become a public nuisance to the
+town in general; therefore, we the present grand jury, <i>earnestly</i>
+again present the same to this Court of Quarter Sessions, desiring
+their immediate care; that those public <i>conveniences</i> may not
+be longer delayed, but with all possible speed provided for the
+<i>detection</i> and quieting such disorderly persons.” And a few
+years later, a second inquest, “taking in consideration the great
+disorders and the turbulent behaviour of <i>many</i> people in this
+city, present the great necessity of a ducking-stool for <i>such
+people</i>, according to their deserts.”&#x2060;<a id="FNanchor_214_214" href="#Footnote_214_214" class="fnanchor">[214]</a>&#x2060;</p>
+</blockquote>
+
+<p>There are many indictments for forestalling the
+markets and regrating, offenses against public trade
+that excited in that day the popular attention now
+centered on rebates and trusts.</p>
+
+<p>Some presentments of the grand jury of Philadelphia
+will further illustrate the care of our ancestors for the
+manners and morals of the community.&#x2060;<a id="FNanchor_215_215" href="#Footnote_215_215" class="fnanchor">[215]</a>&#x2060;</p>
+
+<p><span class="pagenum" id="Page_90">[Pg 90]</span></p>
+
+<blockquote>
+<p class="author">
+  “Philadelphia, the 26th day of the 7th month, 1702.
+</p>
+
+<p>“We, the Grand Inquest for this Corporation, do present
+George Robinson, butcher, for being a parson of evill fame as
+a common swarer, and a common drunker, &amp; particularly
+upon the twenty-third day of this instant, for swaring three
+oths in the market-place, &amp; also for utering two very bad
+curses the twenty-sixth day of this instant. Signed in behalf
+of self &amp; fellows, by</p>
+
+<p class="author">
+  “Jno. Pons, ferman.”</p>
+  <p>
+  “Submits, and puts himself<br>
+  in mercy of the Court.”</p>
+  <p class="author">
+  “George Robinson, fined xxx s.<br>
+  for the oaths and curses.”
+</p>
+</blockquote>
+
+<blockquote>
+<p class="author">
+  “Philadelphia, ss.
+</p>
+
+<p>“We, the Jurors for this city, doe present phillip Eilbeck,
+of Chester County, for that on the twenty-third Day of this
+Instant, at night, at the house of Margaret Garret, in the front
+street, in Philadelphia, aforsd, Did then &amp; theire mennace &amp;
+threaten herman Debeck, by drawing his bagenet and making
+a pass at him, the said herman: &amp; at the same time &amp; place
+abovesaid, did utter three curses, to the terrifiding of the said
+herman &amp; other the Qeen’s Leige people, contrary to the laws
+in that case made &amp; provided. Signed in behalf of the Rest of
+the Jurors, this 28th day of the 7th mo., 1702, pr.</p>
+
+<p class="author">
+  “Jno. Psons, forman.”</p>
+  <p>
+  “Appears and submits, and puts<br>
+  himself in mercy of the Court.”</p>
+  <p class="author">
+  “Eilbeck for breach of the<br>
+  peace and curses, xxx s.”
+</p>
+</blockquote>
+
+<blockquote>
+<p class="author">
+  “The 3d of the 12th mon: 1702.
+</p>
+
+<p>“We of the Grand Jury for the Citty of Philadelphia, do psent
+John Satell for passing of bad counterfeit Coine to Anne Simes,
+on the 2nd of January Last past in her husbands house, now
+Living in Philadelphia, &amp; Also finding the mettal in his pocket,
+which we think the Money was made withall.</p>
+
+<p class="author">
+  “Signed in behalf of the Rest,<br>
+  “Abra. Hooper, foreman.”
+</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_91">[Pg 91]</span></p>
+
+<blockquote>
+<p class="author">
+  “Philadelphia, y<sup>e</sup> 4th of the 12th mon., 1702.
+</p>
+
+<p>“We, of y<sup>e</sup> Grand Jury for the Citty of philadelphia, Do
+psent John Joyse, for having of to wifes at once, which is boath
+against the law of God and man.</p>
+
+<p class="author">
+  “Signed in behalf of the rest,<br>
+  “Abra. Hooper, foreman.”
+</p>
+</blockquote>
+
+<blockquote>
+<p class="author">
+  “Philadelphia, y<sup>e</sup> 6th of the 3rd month, 1703.
+</p>
+
+<p>“We, of the Grand Jury for this city, Doe present Alexander
+Paxton &amp; his wife, for letting a house to John Lovet, he being
+a Stranger, &amp; have not Given security for The In Demnifying
+of this Corporation.</p>
+
+<p class="author">
+  “Signed in behalf of the rest,<br>
+  “Abra. Hooper, foreman.”
+</p>
+</blockquote>
+
+<blockquote>
+<p class="author">
+  “Philadelphia, this third day of November, 1703.
+</p>
+
+<p>“We doe also present Jon Furnis &amp; Thomas McCarty &amp; Thomas
+Anderson &amp; henery Flower, barbers, for triming people on first
+days of the weeks, commonly called sunday, contrary to the
+law in that case made &amp; provided.</p>
+
+<p class="author">
+  “Signed in behalf of the rest of the Jurors,<br>
+  “John Redman, foreman.”
+</p>
+</blockquote>
+
+<p>In 1731 an execution took place at New Castle which,
+it is to be hoped, was exceptional in the annals of the
+colonies. Catherine Bevan, together with a servant
+named Peter Murphy, were indicted, tried and found
+guilty of the murder of the woman’s husband, Henry
+Bevan. The conviction would seem to have been
+obtained principally upon the confession of the servant.
+By the common law at that time the murder of a husband
+by his wife was petit treason, and the punishment was
+to be drawn and burnt. Accordingly, on September 10,
+1731, the man was hanged and the woman burnt pursuant
+to their sentences.&#x2060;<a id="FNanchor_216_216" href="#Footnote_216_216" class="fnanchor">[216]</a> A gruesome account of the
+<span class="pagenum" id="Page_92">[Pg 92]</span>affair appears in Franklin’s “Pennsylvania Gazette”
+for September 23, 1731:—</p>
+
+<blockquote>
+<p>“She deny’d to the last that she acted any part in the murder
+and could scarce be brought to own that she was guilty of consenting.
+Neither of them said much at the place of execution.
+The man seemed penitent but the woman appear’d hardened.
+It was designed to strangle her dead before the fire could touch
+her; but its first breaking out was in a stream which pointed
+directly upon the rope that went round her neck, and burnt
+it off instantly so that she fell alive into the flames, and was seen
+to struggle.”</p>
+</blockquote>
+
+<p>To return to the courts. At a meeting of the council
+held on November 9, 1719, Governor Keith called
+attention to the repeal of the several acts relating to
+courts, and proposed that the board consider the best
+means of meeting the inconvenience caused thereby.
+The consensus of opinion was that the governor should
+issue special commissions authorizing the justices to
+hold court on the days when they should be held under
+the repealed laws. Similar action was taken in the
+following March in reference to the supreme court, and
+David Lloyd, who was now chief justice, prepared the
+forms of commission. In this way the courts were continued
+until at a meeting of the council, May 12, 1722,
+it was observed that the courts would be “more regularly
+and effectually established by ordinance, as they
+are done in some of our neighboring governments, than
+by any particular Commissions,” and it was recommended
+that the matter be brought to the attention of
+the house of representatives. A bill was promptly
+passed and messaged to the council, where it was referred
+to Richard Hill, Isaac Norris, James Logan and the
+attorney general, Andrew Hamilton, for amendment.
+The bill as amended was returned to the house, and on
+May 22, 1722, became a law.&#x2060;<a id="FNanchor_217_217" href="#Footnote_217_217" class="fnanchor">[217]</a>&#x2060;</p>
+
+<p><span class="pagenum" id="Page_93">[Pg 93]</span></p>
+
+<p>This act apparently was never considered by the Crown,
+but, in some manner, was allowed to become a law by
+lapse of time, according to the charter. The reason for
+its escape lies probably in an oversight of the clerks
+of the council rather than in any intention on the part
+of the board to give it even a tacit approval. The act
+appears in a list, under consideration by the board of
+trade in 1739, which the lords commissioners could
+not find to have ever been approved.&#x2060;<a id="FNanchor_218_218" href="#Footnote_218_218" class="fnanchor">[218]</a> Mr. Paris, the
+agent for the colony, after tedious searches, found some
+of these acts “laid up in a by corner of the Board of Trade
+and covered very thick with dust.” In the list the act
+we are discussing is marked “supplied.” As a matter
+of fact, three months before the time for its consideration
+had expired, the act had been supplied by the Act of
+August 27, 1727,&#x2060;<a id="FNanchor_219_219" href="#Footnote_219_219" class="fnanchor">[219]</a> which was repealed by order in council
+September 21, 1731. In repealing the latter act, the
+point seems to have been overlooked that the Act of
+1722 was revived by the repeal, and the question of the
+Crown’s power to pass upon it then was not raised.</p>
+
+<p>Upon the repeal of the Act of 1727 a special session of
+the assembly was called, and an act passed formally
+reviving the Act of 1722.&#x2060;<a id="FNanchor_220_220" href="#Footnote_220_220" class="fnanchor">[220]</a> This reviving act seems to
+have been allowed to become a law by lapse of time.
+Mr. Fane, the king’s counsel, to whom it was referred
+by the lords commissioners, saw no objection to it.
+The Act of 1722, which in many of its provisions remained
+in force until after the Revolution, provided
+for county courts of quarter sessions, composed of
+justices appointed by the governor, three to constitute
+a quorum, and for similar county courts of common
+pleas, to be held after the quarter sessions by justices,
+also appointed by the governor, with authority to hold
+<span class="pagenum" id="Page_94">[Pg 94]</span>pleas of assizes, <i>scire facias</i>, replevins and all manner
+of actions, civil, personal, real and mixed, and to grant
+writs of partition and writs of view.</p>
+
+<p>As to the supreme court, the Act of 1722 provided
+as follows:—</p>
+
+<blockquote>
+<p>“And be it further enacted by the authority aforesaid, That
+there shall be holden and kept at Philadelphia a court of record
+twice in every year: (That is to say) on the twenty-fourth day
+of September and the tenth day of April, if the same days, or
+either, do not happen to be the First day of the week, and in
+such case the said court shall be held on the next day following;
+which said court shall be called and styled the supreme court of
+Pennsylvania. And that there shall be three persons of known
+integrity and ability, commissionated by the governor, or his
+lieutenant for the time being, by several distinct patents or
+commissions, under the great seal of this province, to be judges
+of the said court, one of whom shall be distinguished in his
+commission by the name of chief-justice. And every of the
+said justices shall have full power and authority, by virtue of
+this act, when and as often as there may be occasion, to issue
+forth writs of habeas corpus, <i>certiorari</i> and writs of error, and
+all remedial and other writs and process returnable to the said
+court, and grantable by the said judges by virtue of their office,
+in pursuance of the powers and authorities hereby given them.</p>
+
+<p>“Provided always, That upon (any) issue joined in the said
+supreme court, such issue shall be tried in the county from whence
+the cause was removed, before the judges aforesaid, or any two
+of them, who are hereby empowered and required, if occasion
+require, to go the circuit twice in every year, * * * * and to do
+generally all those things that shall be necessary for the trial
+of any issue, as fully as justices of <i>nisi prius</i> in England may or
+can do.</p>
+
+<p>“And that the said judges, or any two of them, shall have full
+power to hold the said court, and therein to hear and determine
+all causes, matters and things, cognizable in the said court, and
+also to hear and determine all and all manner of pleas, plaints
+and causes, which shall be removed or brought there from the
+respective (general) quartersessions of the peace and courts of
+common pleas, to be held for the respective counties of Philadelphia,
+Chester and Bucks, as also for the city of Philadelphia,
+or from any other court of this province, by virtue of any of the
+<span class="pagenum" id="Page_95">[Pg 95]</span>said writs. And to examine and correct all and all manner
+of errors of the justices and magistrates of this province, in
+their judgments, process and proceedings in the said courts,
+as well as in all pleas of the Crown, as in all pleas real, personal
+and mixed; and thereupon to reverse or affirm the said judgments,
+as the law doth or shall direct. And also to examine,
+correct and punish the contempts, omissions and neglects, favors,
+corruptions and defaults, of all or any of the justices of the peace,
+sheriffs, coroners, clerks and other officers within the said respective
+counties. And also shall award process for levying, as well
+of such fines, forfeitures and amercements, as shall be estreated
+into the said supreme court, as of the fines, forfeitures and
+amercements, which shall be lost, taxed and set there, and not
+paid to the uses they are or shall be appropriated.</p>
+
+<p>“And generally shall minister justice to all persons, and exercise
+the jurisdictions and powers hereby granted concerning all and
+singular the premises according to law, as fully and amply, to all
+intents and purposes whatsoever, as the justices of the court of
+King’s Bench, common pleas and exchequer at Westminster,
+or any of them, may or can do.</p>
+
+<p>“Saving to all and every person and persons, his, her or their
+heirs, executors and administrators, their right of appeal from
+the final sentence, judgment or decree of any court within this
+province, to His Majesty in council, or to such court or courts,
+judge or judges, as by our Sovereign Lord the King, his heirs
+or successors, shall be appointed in Britain, to receive, hear and
+judge of appeals from His Majesty’s plantations.</p>
+
+<p>“Provided, The person appealing shall, upon entering his
+appeal in the court where the sentence, judgment or decree shall
+be given in this province, pay all the costs before that time
+expended in the prosecution, or defending the said suit; and shall
+further enter into bond, with two good and sufficient securities in
+the sum of three hundred pounds, to the defendant in the appeal,
+conditioned to prosecute the said appeal with effect within the
+space of eighteen months after the entry of such appeal, and to
+satisfy the judgment of the court from which he appeals; and
+further, to pay all such costs and damages as shall be adjudged
+to him to pay, in case a sentence, judgment or decree, pass against
+the said appellant, or in case he, she or they fail to prosecute
+their appeal with effect.</p>
+
+<p>“And be it further enacted by the authority aforesaid, That
+the said judges of the supreme court shall have power and are
+hereby authorized and empowered, from time to time, to deliver
+<span class="pagenum" id="Page_96">[Pg 96]</span>the gaols of all persons which now are or hereafter shall be committed
+for treasons, murders, and such other crimes as (by the
+laws of this province) now are or hereafter shall be made capital
+or felonies of death as aforesaid. And for that end from time
+to time to issue forth such necessary precepts and process, and
+force obedience thereto, as justices of assize, justices of oyer
+and terminer, and of gaol delivery, may or can do in the realm
+of Great Britain.”</p>
+</blockquote>
+
+<p>We have referred to the short-lived Act of August 27,
+1727. This act was almost a counterpart of the Act of
+1722, but was designed to deprive the supreme court
+of the power to institute original process. Its repeal
+was accomplished by John Moore, the king’s collector
+of customs at Philadelphia, who strongly objected to it
+on the ground that actions involving the revenue would
+thenceforth have to be tried in the county courts. From
+the statements of Moore and Fitzwilliam, the surveyor
+general of the customs, it would appear that in 1724
+there arrived at Philadelphia the ship <i>Fame</i> purporting
+to carry emigrants from the Palatine, but really containing
+a cargo of East India goods from Holland and
+articles of European manufacture which the navigation
+laws required to be imported from England only. Moore
+seized the ship but it was forcibly taken out of his
+possession by a mob, towed down the river and most
+of the cargo unloaded. Then, it is stated, Sir William
+Keith made a fresh seizure in a collusive action brought
+in the county court and the ship was sold for a trifling
+sum. Moore acting by advice of Sir Philip Yorke, the
+attorney-general, brought actions in the supreme court
+of Pennsylvania against the parties concerned, whereupon
+Keith and his colleagues in the assembly procured
+the passage of the Act of 1727 depriving that court of
+original jurisdiction. This, said Fitzwilliam, would
+discourage prosecutions for breaches of the acts of trade.</p>
+
+<blockquote>
+<p>“For as the judges of those courts are men but of mean
+circumstances and as mean capacities, so are the juries more
+<span class="pagenum" id="Page_97">[Pg 97]</span>apt to be biased in favor of those who transgress the law, the
+common people being generally of opinion that those who
+bring goods from foreign parts can afford them better pennyworths
+than others who import the like commodities from Great
+Britain where the duties and customs are high.”</p>
+</blockquote>
+
+<p>Moore added that the magistrates were “all merchants.”&#x2060;<a id="FNanchor_221_221" href="#Footnote_221_221" class="fnanchor">[221]</a>
+The proprietors addressed a counter petition
+to the council in favor of the act, stating that they were
+not concerned in the controversy between Keith and
+Moore but that the act had been passed after nine months
+careful consideration and was not intended to prejudice
+His Majesty’s service, that so far as they were informed
+Moore was the first person to attempt to introduce
+the practice of bringing actions in the supreme court,
+and that it would prove a great hardship to the inhabitants
+living in remote settlements to compel them to
+attend court at Philadelphia and that the merchants
+were frequently gentlemen of the best fortune and
+substance as well as probity.&#x2060;<a id="FNanchor_222_222" href="#Footnote_222_222" class="fnanchor">[222]</a> The act was referred
+to Mr. Fane, who wrote an elaborate opinion in which
+he questioned whether original jurisdiction was vested
+in the supreme court by the Act of 1722 although there
+were some words that pointed that way.</p>
+
+<blockquote>
+<p>“It is true the judges of the Supreme Court in the case of Mr.
+Moore have thought fit to exercise a jurisdiction, but I see no
+great conclusion from thence, because courts of law are ever
+willing, upon the slightest pretenses, to extend their jurisdiction.”&#x2060;<a id="FNanchor_223_223" href="#Footnote_223_223" class="fnanchor">[223]</a>&#x2060;</p>
+</blockquote>
+
+<p>The commissioners for trade and plantations reported
+adversely to the act and it was accordingly disallowed.&#x2060;<a id="FNanchor_224_224" href="#Footnote_224_224" class="fnanchor">[224]</a>&#x2060;</p>
+
+<p><span class="pagenum" id="Page_98">[Pg 98]</span></p>
+
+<p>Whatever may have been the intention of the Act of
+1722, it would seem that the supreme court was chary
+of assuming original jurisdiction. Chief Justice Tilghman
+in <i>Commonwealth</i> v. <i>Smith</i>&#x2060;<a id="FNanchor_225_225" href="#Footnote_225_225" class="fnanchor">[225]</a> informs us that prior to
+1786 the court had, certainly for a long time, exercised no
+original jurisdiction except in cases of fines and common
+recoveries, which, though actions in form, were in substance
+no more than mere conveyances of record.</p>
+
+<p>Two acts amending the Act of 1722 were passed prior
+to the Revolution. By the first of these, the Act of
+September 29, 1759, the judges of the court of common
+pleas were appointed to hold the orphans’ court, a duty
+which had for some time previously been assigned to
+the quarter sessions, and the judges of the latter court
+were not to sit in the common pleas, which was to consist
+of five persons. No exception was taken to these provisions,
+which were approved, but the proprietors
+strongly objected to another clause in the act which
+provided that the judges of the common pleas, as well
+as the justices of the supreme court, should hold their
+commissions <i>quam diu se bene gesserint</i> and be
+removable only on the address of the assembly. The
+committee of the council were strongly against this provision,
+not only as limiting the charter rights of the
+proprietors, who were therein permitted to nominate
+judges without limitation, but as perpetuating in the
+seat of justice men of secondary capacity, except the
+chief justice. It was further stated that in the other
+colonies the judges held <i>durante bene placita</i>, and
+it was not expedient to make a change in Pennsylvania
+which would confer no real benefit upon the inhabitants
+and “excite a just jealousy in the other colonies by
+seeming to extend advantages to this proprietary
+government, which have been denied to those under
+<span class="pagenum" id="Page_99">[Pg 99]</span>his majesty’s immediate care.”&#x2060;<a id="FNanchor_226_226" href="#Footnote_226_226" class="fnanchor">[226]</a> The act was accordingly
+disapproved September 2, 1760.</p>
+
+<p>Another amendment to the Act of 1722 was adopted,
+by which the number of supreme judges was increased
+to four, and the removal of cases into the supreme court
+in suits involving less than fifty pounds, except in cases
+involving title to land, was prohibited under penalty,
+in the case of the plaintiff, of loss of costs and of the
+defendant of double costs. It was also provided that
+appeals to England should be taken only on demurrer
+to evidence, bill of exceptions or writ of error. This
+act was allowed to become a law.&#x2060;<a id="FNanchor_227_227" href="#Footnote_227_227" class="fnanchor">[227]</a>&#x2060;</p>
+
+<p>It will be noticed that no jurisdiction is conferred
+upon the courts in matters of divorce. We have seen
+that in the Dutch period divorce was recognized in
+accordance with the doctrines of the Reformation, but
+after the English conquest the subject is hardly recognized
+as belonging to the domain of ordinary courts.
+In an amendment to the Duke of York’s Laws of 1665
+it is provided that in cases of adultery the proceedings
+shall be “according to the laws of England which is by
+divorce,”&#x2060;<a id="FNanchor_228_228" href="#Footnote_228_228" class="fnanchor">[228]</a> but this does not say more than that a divorce
+<i>a mensa et thoro</i>, or judicial separation, would be recognized
+and Chancellor Kent is authority for the statement
+that during the colonial period no divorce took place
+in the colony of New York.&#x2060;<a id="FNanchor_229_229" href="#Footnote_229_229" class="fnanchor">[229]</a> In Pennsylvania the
+“great law” of 1682 in defining and punishing adultery
+provided that the guilty parties should “be liable to a
+Bill of Divorcement, if required by the grieved husband
+or wife” within a year after conviction.&#x2060;<a id="FNanchor_230_230" href="#Footnote_230_230" class="fnanchor">[230]</a> This was
+<span class="pagenum" id="Page_100">[Pg 100]</span>reënacted in 1693&#x2060;<a id="FNanchor_231_231" href="#Footnote_231_231" class="fnanchor">[231]</a>
+    and again in 1700&#x2060;<a id="FNanchor_232_232" href="#Footnote_232_232" class="fnanchor">[232]</a> with a more
+severe punishment for the crime. The last act was
+repealed by the Crown in 1705 upon the advice of the
+attorney general, Sir Edward Northey, who pointed
+out that “by this law for adultery a bill of divorce is
+allowed to the injured husband and wife, but the divorce
+is not explained, whether to be <i>a vinculo matrimoni</i>
+or only from bed and board, as the ecclesiastical laws
+of England allow, which I think ought to be ascertained.”&#x2060;<a id="FNanchor_233_233" href="#Footnote_233_233" class="fnanchor">[233]</a>
+The defect was remedied by the Act of
+January 12, 1705-6,&#x2060;<a id="FNanchor_234_234" href="#Footnote_234_234" class="fnanchor">[234]</a> which, in adultery, gave the
+injured party a divorce from bed and board, to be
+granted on bill by the governor or lieutenant-governor
+for the time being. This act was allowed to become a
+law. If the governor exercised this power it has escaped
+notice in the minutes of the council, but among the
+records of the court of chancery is a bill filed by a wife
+against her husband, praying for a writ of <i>ne exeat</i> against
+the defendant, until he should enter security to answer
+a bill for divorce.&#x2060;<a id="FNanchor_235_235" href="#Footnote_235_235" class="fnanchor">[235]</a> The writ was allowed but there is
+no entry of the final result of the divorce proceeding.
+It would have been strange, however, if the practice
+of obtaining a divorce by act of parliament, which was
+the only means by which the marriage bond could be
+dissolved in England in the eighteenth century,&#x2060;<a id="FNanchor_236_236" href="#Footnote_236_236" class="fnanchor">[236]</a> had
+not been imitated in America, and, accordingly, we
+<span class="pagenum" id="Page_101">[Pg 101]</span>find a bill passed February 18, 1769,&#x2060;<a id="FNanchor_237_237" href="#Footnote_237_237" class="fnanchor">[237]</a> to dissolve the
+marriage between Curtis Grubb and Ann Few, his wife,
+and to enable him to marry again. Before approving
+this bill Governor John Penn sent to the assembly for
+the papers and proofs in support of the charges of
+adultery and bigamy made against the wife and suggested
+several amendments to the act.&#x2060;<a id="FNanchor_238_238" href="#Footnote_238_238" class="fnanchor">[238]</a> When the laws of
+1769 were submitted to the privy council, this act was
+referred by the committee for plantation affairs to Mr.
+Jackson, their counsel, who gave it as his opinion that
+the assembly had properly exercised a power which
+he was inclined to think they ought to be entrusted
+with, but, as the matter was very important, he advised
+that the attorney and solicitor-general be consulted.&#x2060;<a id="FNanchor_239_239" href="#Footnote_239_239" class="fnanchor">[239]</a>
+The point was so referred but no reply was received and
+the act became a law by lapse of time. The same
+question arose three years later when a bill was passed
+to divorce George Keehmle from his wife Elizabeth,
+who had been tried, in the supreme court, for adultery
+and convicted.&#x2060;<a id="FNanchor_240_240" href="#Footnote_240_240" class="fnanchor">[240]</a> This time the committee on plantations
+advised that the king should refuse to confirm the act
+and should give “such directions as shall have the effect
+to prevent the laws passed by the legislature of Pennsylvania,
+becoming a precedent and example for the
+exercise of like powers in other colonies.” The act
+was accordingly declared void April 27, 1773,&#x2060;<a id="FNanchor_241_241" href="#Footnote_241_241" class="fnanchor">[241]</a> and in the
+same year a circular letter sent to the provincial governors
+commanding them not to give their assent to any bill
+“for the divorce of persons joined together in Holy
+<span class="pagenum" id="Page_102">[Pg 102]</span>Marriage.”&#x2060;<a id="FNanchor_242_242" href="#Footnote_242_242" class="fnanchor">[242]</a> Prior to this the governor had refused
+his consent to a bill “making void the pretended marriage
+of Rebecca Vanakin with a certain John Martin.”&#x2060;<a id="FNanchor_243_243" href="#Footnote_243_243" class="fnanchor">[243]</a>
+No more divorce acts were passed until 1779 when
+James Martin was divorced from his wife Elizabeth,
+who had eloped with Sergeant Havell of the British
+Army “taking with her the said James Martin’s effects,
+and leaving him to pay sundry debts of her contracting.”&#x2060;<a id="FNanchor_244_244" href="#Footnote_244_244" class="fnanchor">[244]</a>
+From this time the number of special acts granting
+divorces increases. Ten were granted prior to the Act
+of September 19, 1785,&#x2060;<a id="FNanchor_245_245" href="#Footnote_245_245" class="fnanchor">[245]</a> which conferred jurisdiction
+in divorce upon the supreme court and authorized
+absolute divorces in the cases of impotency at time of
+contract, bigamy, adultery and willful and malicious
+desertion for four years, as well as divorces from bed
+and board in other cases, an extremely liberal law for
+that day but soon superseded by legislation even more
+liberal. Private divorce acts, however, were passed by
+the legislature until forbidden by the constitution of
+1874.&#x2060;<a id="FNanchor_246_246" href="#Footnote_246_246" class="fnanchor">[246]</a>&#x2060;</p>
+
+<p>An examination of the judges’ commissions, in the
+archives, will show that the practice, prior to the Revolution,
+was to issue to the justices of the peace of each
+county a joint commission authorizing three or more
+of them to hold the quarter sessions, and likewise
+assigning any three or more of them to hold the court
+of common pleas. Separate commissions were issued
+<span class="pagenum" id="Page_103">[Pg 103]</span>to the chief justice and justices of the supreme court,
+and a joint commission of oyer and terminer.&#x2060;<a id="FNanchor_247_247" href="#Footnote_247_247" class="fnanchor">[247]</a> In 1717
+Governor Keith questioned the propriety of issuing
+commissions to the judges in the name of the proprietor
+instead of the king, since, even if the charter could be
+so construed, the king could not grant away any part
+of his prerogative inseparable from the sovereignty.
+The council replied that the difficulty arose from not
+distinguishing fully “between the state of England and
+that of new colonies made without the Verge of the
+ancient Laws of that kingdom.”</p>
+
+<blockquote>
+<p>“That these American Lands being new Discoveries of Tracts
+long settled by their native inhabitants the indians who were
+under no subjection to nor had any knowledge of the laws
+of England; those laws, whenever they come to reach these
+Lands, must by some Regular method be extended to them,
+for they cannot be supposed of their own nature to accompany
+the people into these Tracts in America, any more than they
+would the same persons going into any other foreign part of
+the world.”</p>
+</blockquote>
+
+<p>And further, that the royal prerogative as exercised
+in England could “no more be understood to accompany
+the sovereignty than all the other laws can.”&#x2060;<a id="FNanchor_248_248" href="#Footnote_248_248" class="fnanchor">[248]</a> Keith
+yielded to the opinion of the council. After the death
+of Penn, judicial commissions were issued in the name
+of the king and attested by the governor, by authority
+of the proprietor, while minor officials were commissioned
+in the name of the proprietors alone.&#x2060;<a id="FNanchor_249_249" href="#Footnote_249_249" class="fnanchor">[249]</a>&#x2060;</p>
+
+<p>In these commissions the time for which they are to
+run is not stated. The commission of the peace seems
+to have been filled up and renewed at first yearly, but
+later at longer intervals of irregular length, and it was
+<span class="pagenum" id="Page_104">[Pg 104]</span>the custom for governors to renew the commissions at,
+or soon after, their accession to the government.&#x2060;<a id="FNanchor_250_250" href="#Footnote_250_250" class="fnanchor">[250]</a> At
+these various renewals it may be presumed that undesirable
+members were dropped. The justices of the
+supreme court also were recommissioned from time
+to time, but would seem usually to have held their
+offices until death or resignation. The real trouble seems
+to have been to persuade men of ability to fill the thankless
+positions. The assembly neglected the matter of
+compensation, and on Penn’s second visit he seems to
+have himself promised the chief justice one hundred
+pounds a year. In 1706 the salary of the chief justice
+is said to have been in arrears, and it was proposed that
+the assembly should be asked to make some provision
+for the judges, as it was unfair to throw this expense
+on the proprietor. Roger Mompesson, judge of vice
+admiralty, who was appointed to the office soon afterwards,
+accepted, “though the present encouragement
+be but very slender and no way inviting.”&#x2060;<a id="FNanchor_251_251" href="#Footnote_251_251" class="fnanchor">[251]</a> The perquisites
+of the court were the fees allowed by the fee bill.
+Those established by the Act of March 30, 1723,&#x2060;<a id="FNanchor_252_252" href="#Footnote_252_252" class="fnanchor">[252]</a> were
+four shillings for every <i>allocatur</i> signed, six shillings
+for every case brought into court by <i>certiorari</i>, taking
+bail two shillings, every judgment six shillings, every
+rule two shillings. As late as 1772 the salary of the
+chief justice of the supreme court was two hundred
+<span class="pagenum" id="Page_105">[Pg 105]</span>pounds, and of the associate justices one hundred and
+fifty pounds.&#x2060;<a id="FNanchor_253_253" href="#Footnote_253_253" class="fnanchor">[253]</a>&#x2060;</p>
+
+<p>In the county courts the justices received trifling
+fees for various services, and the expenses of the sitting
+of the court were paid by the county.</p>
+
+<p>The Act of January 28, 1777,&#x2060;<a id="FNanchor_254_254" href="#Footnote_254_254" class="fnanchor">[254]</a> provided that one
+justice should be appointed to preside in the respective
+courts of common pleas, quarter sessions and orphans’
+court, but the honorary office of president of the court
+had existed from the earliest times and was applied
+to the first in the commission, or senior justice, the
+same person being, in many cases, for a long series of
+years first in the commission.&#x2060;<a id="FNanchor_255_255" href="#Footnote_255_255" class="fnanchor">[255]</a> The city of Philadelphia,
+under its charter, had a criminal court of its own,
+presided over by the city recorder, usually a lawyer,
+assisted by the aldermen. Those of the aldermen who
+were in the commission of the peace also sat in the
+county courts.</p>
+
+<p>By an Act of January 12, 1705,&#x2060;<a id="FNanchor_256_256" href="#Footnote_256_256" class="fnanchor">[256]</a> a special court was
+established for the trial of negroes, consisting of two
+judges, specially commissioned by the governor, in the
+respective counties, assisted by six freemen of the
+county; the purpose being to obtain speedy trials and
+summary punishment for negro offenders, whose crimes
+excited some alarm in the province. This act was
+repealed in 1780.</p>
+
+<p>By an Act of May 28, 1715,&#x2060;<a id="FNanchor_257_257" href="#Footnote_257_257" class="fnanchor">[257]</a> the justices of the peace
+were given jurisdiction to try, and finally determine
+all suits for debts and demands under forty shillings,
+<span class="pagenum" id="Page_106">[Pg 106]</span>and issue executions on their judgments, through the
+constable, by levy on the goods or attachment of the
+body of the defendant. The court of the city of Philadelphia
+for the collection of small debts was abolished,
+and it was further enacted that no court of the province
+should have jurisdiction of debts under said amount,
+but that the act should be the exclusive remedy. Debts
+for rents or contracts relating to real estate were excluded
+from this jurisdiction. The act was allowed
+to become a law, and is the foundation of the present
+civil jurisdiction of the justices of the peace as amplified
+by the Act of March 20, 1810,&#x2060;<a id="FNanchor_258_258" href="#Footnote_258_258" class="fnanchor">[258]</a> and subsequent acts.</p>
+
+<p>Briefly summarized, the administration of justice
+at the beginning of the Revolution was vested in the
+county courts of quarter sessions, common pleas and
+orphans’ courts, presided over by justices of the peace,
+commissioned by the governor, none of whom, prior
+to the Revolution, appears to have been learned in the
+law. There was a supreme provincial court consisting
+at first of five, later of three and finally of four judges,
+of whom the chief justice was generally a lawyer or at
+least possessed of some legal experience. This court
+had a general appellate jurisdiction, and original criminal
+jurisdiction in capital cases. The original jurisdiction
+in civil cases does not seem to have been well defined
+but was assumed to exist in cases of fines and common
+recoveries. Where a case appealed involved issues of
+fact, such issues were tried in the supreme court before
+a jury. The court sat twice a year in Philadelphia and
+went on circuit to the other counties when required.
+From this court an appeal could, in certain cases, be
+taken to the king in council. There were special courts,
+such as that of the corporation of Philadelphia and that
+for the trial of negroes, and, finally, the court of vice
+admiralty under the Crown.</p>
+
+<p><span class="pagenum" id="Page_107">[Pg 107]</span></p>
+
+<p>As for the judges of the respective courts, to mention
+them all would be to give a biographical history of the
+province. Nearly every man of distinction at that day
+filled at some time a place on the bench. It was, in
+the lower magistracy, the stepping stone to higher
+office, and, with the higher officials, part of the burden
+and duty of government. It is interesting to note that
+Benjamin Franklin sat for a short time in the common
+pleas, but was wise enough to see that the position
+required a special knowledge that he did not possess
+and was not sufficiently interested to acquire.&#x2060;<a id="FNanchor_259_259" href="#Footnote_259_259" class="fnanchor">[259]</a> Except
+the recorders of Philadelphia, few, if any, of the judges
+of the lower courts had any legal training, beyond such
+as they acquired in the exercise of their office. In the
+supreme court, David Lloyd, chief justice from 1717 to
+1731, had a reputation in his day as an able lawyer,
+but in history he is chiefly conspicuous as the spokesman
+of the anti-proprietary party in the assembly, and,
+as we have seen, was actively concerned in the development
+of the judicial system of the province.&#x2060;<a id="FNanchor_260_260" href="#Footnote_260_260" class="fnanchor">[260]</a> James
+Logan, his one-time enemy, who succeeded him in the
+office, was the most conspicuous figure in the province
+in his time, excepting only Penn himself. He was not
+a lawyer, but was talented and well educated, and had
+sat in the quarter sessions and common pleas of Philadelphia
+for years. John Kinsey, who became chief
+justice in 1743, was a lawyer in extensive practice, and
+the governor considered it a matter of congratulation
+that one of the legal profession had consented to take
+<span class="pagenum" id="Page_108">[Pg 108]</span>the position. At the time when Dallas’s Reports begin,
+William Allen presided. He was said to be the richest
+citizen in the province and was a son-in-law of the distinguished
+lawyer, Andrew Hamilton. Educated in
+London, he had filled various offices, including those of
+mayor, recorder of Philadelphia and judge of the common
+pleas, and was also one of the original trustees
+of the College of Philadelphia.&#x2060;<a id="FNanchor_261_261" href="#Footnote_261_261" class="fnanchor">[261]</a> In 1774 Benjamin Chew,
+who had studied law in Hamilton’s office and also in
+the Middle Temple, was appointed chief justice. During
+the Revolution he was displaced, but after spending
+fourteen years in retirement was made president of the
+high court of errors and appeals in 1791.</p>
+
+<p>In the early days of the settlement there was no
+public building in the capital where court could be held,
+and, as time went on, the inconvenience of this state
+of affairs became manifest. In 1705, the grand jury
+of Philadelphia County recommended the levy of a tax
+to build a courthouse “where the bell now stands.”&#x2060;<a id="FNanchor_262_262" href="#Footnote_262_262" class="fnanchor">[262]</a>
+This was at Second and Market streets where the town
+bell, erected on a mast, gave notice to the citizens of
+important gatherings. Penn had intended that the
+public offices should be placed in Centre square, but
+that spot was then far distant from the centre of population.
+There was some dispute between the city and
+county as to the division of the expense of erecting the
+proposed building and the matter was before the council
+in 1708, when Justices Growdon and Pidgeon stated that
+“it is not only scandalous to both town and county,
+but even to the whole Govmt. that while every other
+county has their County house, Here in the Capital town
+<span class="pagenum" id="Page_109">[Pg 109]</span>of the Govmt. the Magistrates are obliged to hold court
+in an ale house.”&#x2060;<a id="FNanchor_263_263" href="#Footnote_263_263" class="fnanchor">[263]</a> It was finally agreed that if the
+county would build some necessary bridges, the town
+would build the courthouse. Accordingly a small,
+quaint two-story structure was built at Second and
+Market streets, of which the municipality was then very
+proud and which served all the purposes of a town hall.
+Here the assembly met until the erection of the statehouse
+and here elections were held, while from the
+balcony the inaugural addresses of the governors were
+delivered.&#x2060;<a id="FNanchor_264_264" href="#Footnote_264_264" class="fnanchor">[264]</a> Near by were the stocks and the pillory.
+Besides the city and county courts, the supreme court
+also sat there twice a year. When the statehouse was
+finished the supreme court moved to that building. In
+1787 the erection of a new courthouse was commenced
+at Sixth and Chestnut streets, upon land devoted to
+that use by the assembly in 1762,&#x2060;<a id="FNanchor_265_265" href="#Footnote_265_265" class="fnanchor">[265]</a> but while Philadelphia
+was the capital, the building was used by the
+Federal Government. When the capital was removed
+to Washington the courts took possession of the building
+long intended for their use. The old courthouse
+was ruthlessly torn down in 1837, an extraordinary act
+of vandalism even for those times.</p>
+
+<p>In 1698 a volume was printed in London, entitled, “A
+historical and geographical account of the province of
+Pennsylvania and of the West New Jersey in America,
+etc., by Gabriel Thomas who resided there about fifteen
+years.” Regarding two of the learned professions he
+writes: “Of lawyers and physicians I shall say nothing,
+<span class="pagenum" id="Page_110">[Pg 110]</span>because the country is very peaceable and healthy;
+long may it continue so and never have occasion for the
+tongue of one and the pen of the other, both equally
+destructive to men’s estates and lives; besides, forsooth,
+they hangman-like, have a license to murder and make
+mischief.” Such views, so far, at least, as our profession
+is concerned, were not uncommon among the early
+colonists. Many of them belonged to persecuted religious
+sects whose experiences with the law in their former
+homes were not such as to inspire pleasant sentiments
+toward the courts or their officers. Few were drawn
+from that class of society which, through birth or education,
+could be expected to feel or display any interest
+in professional learning, while those few who might have
+done so, were enthusiasts, filled with utopian theories of
+government, or utilitarians, who regarded the lawyer as an
+“unproductive consumer.” Nor was there anything to
+tempt an ambitious barrister to desert Westminster Hall
+for a hut in the wilderness. The colonists were usually
+poor, their possessions half-cleared farms, commerce
+was controlled by the mother country, fees were necessarily
+small, and the only road to professional distinction
+and wealth was through crown offices or successful
+land speculation. However, since courts without counsel
+are as Hamlet without Hamlet, there are evidences
+that even in the earliest days there were men willing
+to undertake the conduct of cases.</p>
+
+<p>The early records of the court of assizes of New York
+show unmistakably the activity of certain men who
+appear in so many cases that they must have been
+regarded as regular practitioners.&#x2060;<a id="FNanchor_266_266" href="#Footnote_266_266" class="fnanchor">[266]</a> In the records of
+<span class="pagenum" id="Page_111">[Pg 111]</span>the court of New Castle the following minute appears
+under date of November 7, 1676:—</p>
+
+<blockquote>
+<p>“Uppon the Petition of Thomas Spry desiering that hee might
+bee admitted to plead some Peoples cases in Court etc. the
+Worpp<sup>ll</sup> Court have granted him License So long as the Petitioner
+Behaves himself well and carrys himself answerable thereunto.”&#x2060;<a id="FNanchor_267_267" href="#Footnote_267_267" class="fnanchor">[267]</a>&#x2060;</p>
+</blockquote>
+
+<p>Evidently something must have happened in 1677
+to disgust the governor with the ways of the law, for
+on May twenty-ninth of that year the governor and
+council “resolved and ordered that pleading atturneys
+bee no Longer allowed to practice in ye Government
+but for ye depending Causes,” which order was read
+in open court at Upland and New Castle.&#x2060;<a id="FNanchor_268_268" href="#Footnote_268_268" class="fnanchor">[268]</a> Prior to the
+receipt of this order at New Castle John Mathews petitioned
+to be admitted as an attorney. The record
+states:—</p>
+
+<blockquote>
+<p>“The Court did admit the Peticon<sup>r</sup> as an attorney and was
+sworne accordingly: You doe sware by the Everliving God that
+you will according to Lawe truely plead &amp; manadge all cases
+wherein you shall bee Imployed by Yo<sup>r</sup> Clyant that you will not
+exact in yo<sup>r</sup> fees above what shall bee allowed by the Governo<sup>r</sup>
+&amp; Court That you will not in one and the same action take
+fees both of the Pl<sup>t</sup> and def<sup>t</sup> That you will not take any apparent
+unjust case in hand, but in all Respects behave yo<sup>r</sup>selve as all
+Attorneys are obliged to by the Lawes of this governm<sup>t</sup>.”&#x2060;<a id="FNanchor_269_269" href="#Footnote_269_269" class="fnanchor">[269]</a>&#x2060;</p>
+</blockquote>
+
+<p>Subsequently it was ordered that—</p>
+
+<blockquote>
+<p>“The Cryer of the Court is to have for every Attorney that
+shall be admitted &amp; sworne in Court twelve Gilders or halfe
+a bever.”&#x2060;<a id="FNanchor_270_270" href="#Footnote_270_270" class="fnanchor">[270]</a>&#x2060;</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_112">[Pg 112]</span></p>
+
+<p>The crier no longer gets a beaver, but there is still a
+fee to be paid on admission by those prisoners of hope
+who have satisfied the examiners.</p>
+
+<p>It was the dream of Penn that in his colony the laws
+should be so plain and the pleadings so simple that every
+person could plead his own cause, and it was so provided
+in his laws agreed upon in England and embodied in the
+Act of March 10, 1683. His paternalism, and the
+peace-loving tendencies of his more sincere followers,
+tended to discourage skilled advocacy. In 1685 and
+again in 1686 the council promulgated laws against
+lawyers’ fees. That of 1686 is as follows:—</p>
+
+<blockquote>
+<p>“For the a Voyding of to frequent Clamours and manifest
+Inconveniences wch usually attend mercenary pleadings in
+Civill Causes, It is Enacted by ye authority aforesaid, that
+noe persons shall plead in any Civill Causes of another, in any
+Court whatsoever within this Province and Territories, before
+he be Solemnlye attested in open Court, that he neither directly
+or Indirectly hath in any wise taken or received, or will take or
+receive to his use or benefit, any reward whatsoever for his soe
+pleading, under ye penalty of 5 lb. if the Contrary be made
+appear.”&#x2060;<a id="FNanchor_271_271" href="#Footnote_271_271" class="fnanchor">[271]</a>&#x2060;</p>
+</blockquote>
+
+<p>Neither of these acts, however, passed the assembly.</p>
+
+<p>It soon became evident that lawyers could not, or
+would not, be dispensed with, and in 1686 David Lloyd
+was dispatched by the proprietor to Pennsylvania with
+a commission to act as attorney-general of the province.
+The Acts of 1710 and 1715, for establishing the courts,
+had provisions for the admission of attorneys, as also
+the Act of May 22, 1722, which finally became a law,
+and which provided “that there may be a competent
+<span class="pagenum" id="Page_113">[Pg 113]</span>number of persons of an honest disposition and learned
+in the law, admitted by the justices of the said respective
+courts, to practise as attorneys there.” In the Act of
+March 30, 1722-23,&#x2060;<a id="FNanchor_272_272" href="#Footnote_272_272" class="fnanchor">[272]</a> for regulating official fees, the
+attorney’s oath is prescribed in a form very similar to
+that used at the present day: “Thou shalt behave thyself
+in the office of attorney, within the court to the best of
+thy learning and ability, and with all good fidelity, as
+well to the court as to the client. Thou shalt use no
+falsehood, nor delay any person’s cause for lucre or
+malice.”</p>
+
+<p>Even before this a miniature bar had sprung up
+among those active in public affairs, among whom were
+Abraham Mann and John White, members of the
+assembly, and Patrick Robinson, clerk of the court,
+and afterwards a member of the provincial council. In
+1683 John White was appointed attorney-general to
+try a case against counterfeiters, and in 1685 Samuel
+Hersent was appointed to this office. The two men who
+were most active during the earliest period were David
+Lloyd and John Moore. The latter, who had emigrated
+to Pennsylvania from South Carolina prior to 1696, was
+appointed advocate of the court of admiralty by Colonel
+Quarry, and was afterwards attorney-general. As the
+province grew and prospered others came in, and in the
+early part of the eighteenth century there was a considerable
+influx of educated lawyers. The natural result was
+greater precision in the pleadings and closer adherence
+to English forms and practice. Robert Assheton, who
+filled the office of prothonotary from 1701 to 1727, as
+well as that of associate justice of the supreme court,
+was a trained lawyer; from his time the indictments were
+scientifically prepared, and in fact all the clerical work
+of the court offices improved. Nevertheless, the bar
+<span class="pagenum" id="Page_114">[Pg 114]</span>must have been a small and select body, since there
+are recorded accusations of attempts to monopolize it.
+In 1708&#x2060;<a id="FNanchor_273_273" href="#Footnote_273_273" class="fnanchor">[273]</a> a petition was read in the council from one
+James Heaton—</p>
+
+<blockquote>
+<p>“representing that he had been sued in an Action of Trover and
+Conversion, in the County of Bucks, by J. Growdon, yt he had
+procured a writt of Error, by which the cause is to be brought
+before the Provincial Judges, in the said County, the 14th of
+this Instant; that in the meantime the said Jos. Growdon arrested
+him in Philadia. on the same account in an Action to which he
+must answer at the County Court in Philadia., on the 15th
+Instant, wch. two several Courts coming so near together layes
+the Petitr. under great hardships; he also represents that his
+antagonist himself is Judge of the Provincial Court, and further
+that he has retained all the Lawyers in the County (that have
+leave to plead,) against him; Whereupon he prays that the Govr.
+would be pleased to appoint an Impartial Judge to hear his
+cause, and would either assign him Counsel, or so ascertain the
+Provincial Court, that if he be at the Charge of procuring some
+from New York, he may not be disappointed.</p>
+
+<p>“Upon wch. Jos. Growdon himself being present, answered that
+his action in Bucks, and that in this County, are different; that
+he never retained more than one Counsell, viz: John Moore,
+in this cause, but that he not being able to attend, procured
+another to act for him; by which means without any design of
+his, two became Concerned in it, that it being impracticable
+that a man should Judge in his own cause: that part of the
+Petition was altogether needless.”</p>
+</blockquote>
+
+<p>It was resolved that the petitioner be left to find his
+own counsel, and Yeates, the second judge, was assigned
+to hear the case.</p>
+
+<p>In the following year Francis Daniel Pastorius and
+Johannes Jawert petitioned the council against proceedings
+in ejectment brought by one Sprogel to recover
+the estates of the Frankfort Company, an association
+of German purchasers of land, averring that Sprogel
+as part of his “abominable plot did fee all the known
+<span class="pagenum" id="Page_115">[Pg 115]</span>attorneys or lawyers of this province either to speak for
+him or to be silent in court, in order to deprive the petitioners
+of all advice in law.”&#x2060;<a id="FNanchor_274_274" href="#Footnote_274_274" class="fnanchor">[274]</a> Upon examining the petitioners
+in the council David Lloyd was declared “the
+principal agent and contriver of the whole,” and steps
+were taken to protect the purchasers. The case is
+reported in Pennypacker’s Colonial Cases with an account
+by Pastorius of the whole curious transaction.&#x2060;<a id="FNanchor_275_275" href="#Footnote_275_275" class="fnanchor">[275]</a>&#x2060;</p>
+
+<p>In <i>Lyle</i> v. <i>Richards</i>&#x2060;<a id="FNanchor_276_276" href="#Footnote_276_276" class="fnanchor">[276]</a> Chief Justice Tilghman remarks
+that there were few lawyers of eminence in the province
+prior to Tench Francis, although there were never
+wanting strong minds well able to conduct the business
+of the courts, and the fact that the leading lawyers of
+the following generation received their training in the
+Inns of Court led them perhaps to look down on their
+predecessors, some of whom were in extensive practice
+that included the neighboring colonies. Disparaging
+remarks by contemporaries are not infrequent. Secretary
+Richard Peters, writing in 1749 to the proprietors
+says of the bar in general: “All of whom except Francis
+and Moland are persons of no knowledge, and, I had
+almost said, of no principle.”&#x2060;<a id="FNanchor_277_277" href="#Footnote_277_277" class="fnanchor">[277]</a> One name, however,
+stands at the head of the early bar, that of the brilliant
+Andrew Hamilton. The history of Hamilton is worth
+<span class="pagenum" id="Page_116">[Pg 116]</span>noting, as he is the only American lawyer of his generation
+that enjoyed an international reputation. A native
+of Scotland, he first taught school and then practiced
+law in Maryland, from whence he removed to Philadelphia,
+about 1715, having been retained to represent
+the proprietary interests. In 1717 he became attorney-general
+and was active in the litigation over the Maryland
+boundary. He also appeared in the high court of
+chancery for the young proprietors, in the contest over
+Penn’s will,&#x2060;<a id="FNanchor_278_278" href="#Footnote_278_278" class="fnanchor">[278]</a> having been called to the English bar in
+1712. The most interesting personal episode in his
+career was the part he took in the erection of Independence
+Hall, which was built from plans prepared by him
+and under his personal supervision. To the legal profession
+he is best known for his brilliant and successful
+defense of the printer, Peter Zenger, tried for seditious
+libel, a case of real historical importance as well as
+contemporary interest. In this case, tried in the supreme
+court of New York in 1735, Hamilton, after the court had
+refused his offer to prove the truth of the statements
+alleged to be libelous, carried the jury against the
+instructions of the court and obtained the defendant’s
+acquittal by a bold address in which the liberty of the
+press was asserted with unprecedented vigor. The
+doctrines which he advanced, regarded as unsound at
+the time, have since become indelibly impressed upon
+English and American law, and the trial deserves careful
+reading on account of the light that it throws on contemporary
+political conditions and the effect that it
+had on the law of libel.&#x2060;<a id="FNanchor_279_279" href="#Footnote_279_279" class="fnanchor">[279]</a> On the other hand, the
+<span class="pagenum" id="Page_117">[Pg 117]</span>part played by Hamilton in the suppression of the
+court of chancery shows a willingness to sacrifice the
+science of jurisprudence to the exigencies of politics,
+characteristic of his time, but not in keeping with the
+best professional traditions. Tench Francis, the next
+bar leader of distinction, enjoyed a greater reputation
+with his successors in the post-Revolutionary period, and
+is praised by those whose learning entitled them to speak
+with authority.&#x2060;<a id="FNanchor_280_280" href="#Footnote_280_280" class="fnanchor">[280]</a>&#x2060;</p>
+
+<p>As the century advanced it became the general custom,
+for those who could afford it, to send their sons to be
+educated in the law at the Inns of Court. This was more
+prevalent in the Southern and Middle than in the New
+England colonies. From 1760 to the end of the Revolution
+there were more than one hundred American
+students of law in London, of whom forty-seven were
+from South Carolina, twenty-one from Virginia, sixteen
+from Maryland, eleven from Pennsylvania, five from
+New York and the rest from the other colonies, no other
+colony than those named having more than two
+students.&#x2060;<a id="FNanchor_281_281" href="#Footnote_281_281" class="fnanchor">[281]</a> Many of these men attained great distinction
+in professional and public life. Among those from
+Pennsylvania were Chief Justices Benjamin Chew,
+Thomas McKean, Edward Shippen and William Tilghman;
+Justice Jasper Yeates; Presidents of the Supreme
+Executive Council, Joseph Reed and John Dickinson; as
+well as such distinguished lawyers and citizens as
+Nicholas Waln, Edward and Richard Tilghman, William
+Rawle, Jared Ingersoll and Peter Markoe. It is not
+to be supposed that the education afforded by the Inns
+of Court corresponded to that given in a modern law
+school. Everything depended on the diligence of the
+<span class="pagenum" id="Page_118">[Pg 118]</span>student himself, and admission as a barrister came in
+due course after eating the required number of dinners
+regularly during the appointed terms. But the atmosphere
+and associations were conducive to study, while
+inspiration was to be drawn from the courts at Westminster,
+where the student attended and took notes of
+the arguments and decisions. Such notebooks were, in
+those days of scanty reporting, the treasured possessions
+of lawyer and judge and carefully consulted in the
+preparation of important arguments and decisions. In
+<i>Clayton</i> v. <i>Clayton</i>,&#x2060;<a id="FNanchor_282_282" href="#Footnote_282_282" class="fnanchor">[282]</a> the manuscript notes of one of these
+students were cited in the supreme court of Pennsylvania.
+The case was one involving the question as to
+whether certain devisees under a will took an estate
+in fee or for life, there being no words of inheritance,
+but a direction to divide. Mansfield’s decision in <i>Wigfall</i>
+v. <i>Brydon</i>,&#x2060;<a id="FNanchor_283_283" href="#Footnote_283_283" class="fnanchor">[283]</a> was cited in favor of a fee. It being
+difficult to reconcile this decision with other authorities,
+the case was explained as turning on a direction to sell
+and divide, which appeared from the manuscript notes
+of the case of <i>Goodright</i> v. <i>Patch</i>, decided in the King’s
+Bench, June 20, 1773, taken by Edward Tilghman while
+a student at law. So, too, in the political capital of the
+kingdom, the student studied the conflicting doctrines
+of the Tory and the Whig and prepared his mind for
+the momentous changes about to occur in his home
+across the sea.</p>
+
+<p>Those who could not go abroad for a legal education
+served a clerkship in the office of a practitioner in the
+courts. Just what were the qualifications for admission
+do not seem to be recorded. At the earliest period
+sufficient assurance seems to have been all that was
+required, but, as the legal fraternity became better
+<span class="pagenum" id="Page_119">[Pg 119]</span>organized, it may be presumed that the courts gave
+more consideration to the fitness of applicants. In
+1759 the supreme court made an order—</p>
+
+<blockquote>
+<p>“That for the future no persons be admitted attorneys or
+council of this court without being previously examined as to
+their qualifications to practice, nor without having taken the
+oaths or affirmations of allegiance to his Majesty and subscribed
+the usual Declaration.”&#x2060;<a id="FNanchor_284_284" href="#Footnote_284_284" class="fnanchor">[284]</a>&#x2060;</p>
+</blockquote>
+
+<p>At September term, 1760, Mr. Chew and Mr. Ross
+were appointed to examine an applicant and at April
+term, 1761, Francis Hopkinson was examined by Mr.
+Ross and Mr. Dickinson. Later admissions do not
+recite an examination, and, perhaps, this duty was delegated
+to the local bar, but the fact that there are no
+common pleas dockets for Philadelphia County on file
+prior to the Revolution renders the subject obscure.
+From the few minute books of the Philadelphia common
+pleas that have escaped destruction we find that by
+1790 it was the established practice for a member of
+the bar to move in open court for the admission of the
+candidate. The court would then appoint a special
+committee of three members of the bar to conduct the
+examination, and, if the result was favorable to the
+applicant, he was admitted and sworn.&#x2060;<a id="FNanchor_285_285" href="#Footnote_285_285" class="fnanchor">[285]</a>&#x2060;</p>
+
+<p>Prior to the Revolution the path of the law student
+was made easier by the publication of Blackstone’s
+Commentaries, a work that was said by Edmund Burke
+to have had a larger sale in America than in England, a
+statement that would seem to be justified, for hardly
+had the first complete edition appeared in England
+before an American edition was printed at Philadelphia
+(1771) of which about fourteen hundred copies were
+<span class="pagenum" id="Page_120">[Pg 120]</span>subscribed for in advance, and this although one thousand
+copies of the English edition had been imported
+and sold in America.&#x2060;<a id="FNanchor_286_286" href="#Footnote_286_286" class="fnanchor">[286]</a> The subscription list to the local
+edition is headed by seven colonial governors and lieutenant-governors,
+including Richard Penn of Pennsylvania
+and William Franklin of New Jersey. The alphabetical
+list, headed by “John Adams, Esq., Barrister at Law,
+Boston,” includes many distinguished names, while of
+the local subscribers, many were from the interior parts
+of the state; John Creigh, bookseller of Carlisle, alone
+subscribing for forty-five sets. It is hardly possible to
+overestimate Blackstone’s influence upon American
+private law. His Commentaries became at once the
+<i>vade mecum</i> of the lay judge and the pioneer lawyer, in
+regions where libraries were unknown. The work in
+fact long stood for the common law itself in many
+communities, but it may be questioned whether the
+Commentaries were not, for a period, detrimental to
+legal scholarship, whether their flowing sentences did
+not carry the superficial student too easily over the
+submerged rocks of the common law, whether learned
+jurists have not wasted time in the discussion and
+criticism of Blackstone’s theories and errors that might
+have been better spent in a reexamination of his
+sources.</p>
+
+<p>As the Revolution approaches we find an able group
+leading the bar, Moland, Chew, Ross, Waln, Tilghman,
+Galloway and Dickinson. Time was no object to the
+courts in those peaceful and slumberous days. In a
+manuscript book of reports giving some cases of that
+time the reporter says, in noting <i>Haldane</i> v. <i>Duffield</i>,
+April Term, 1768, “The remainder of Mr. Chew’s argument
+I did not hear nor did I wait Mr. Dickinson’s and
+Mr. Tilghman’s conclusion, this case having continued
+<span class="pagenum" id="Page_121">[Pg 121]</span>twelve hours.”&#x2060;<a id="FNanchor_287_287" href="#Footnote_287_287" class="fnanchor">[287]</a> In 1774 Chew succeeded Allen as chief
+justice,&#x2060;<a id="FNanchor_288_288" href="#Footnote_288_288" class="fnanchor">[288]</a> and in September of that year hospitably entertained
+the members of the Continental Congress then
+assembled in Philadelphia. Washington and John Adams
+both mention dining with him on the twenty-second of
+that month. Adams writes in his diary:—</p>
+
+<blockquote>
+<p>“Dined with Mr. Chew Chief Justice of the Province with all
+the gentlemen from Virginia, Dr. Shippen, Mr. Tilghman and
+many others. We were shown into a grand entry and staircase
+and into an elegant and magnificent chamber until dinner.
+About 4 o’clock we were called down to dinner. The furniture
+was all rich. Turtle and every other thing, flummery, jellies,
+sweetmeats, of 20 sorts, trifles, whipped sillabubs, floating
+islands, fools, &amp;ct., and then a dessert of fruits, raisins, almonds,
+pears, peaches. Wines most excellent and admirable. I drank
+Madeira at a great rate, &amp; found no inconvenience in it.”&#x2060;<a id="FNanchor_289_289" href="#Footnote_289_289" class="fnanchor">[289]</a>&#x2060;</p>
+</blockquote>
+
+<p>The stately mansion of the chief justice yet stands,
+the fine old colonial hospitality a treasured memory.
+The smoke and dust of fratricidal war darkened it, its
+walls were battered with shot and its floor stained with
+blood; bench and bar were scattered, some to attain
+distinction in the camps and councils of the new nation,
+others to live obscurely through weary years of suspicion
+or to fly from the country of their birth as
+attainted traitors, their lands forfeited and their names
+soon forgotten.</p>
+
+
+<div class="footnotes">
+<h3>FOOTNOTES:</h3>
+
+<div class="footnote"><p><a id="Footnote_171_171" href="#FNanchor_171_171" class="label">[171]</a> II Statutes at Large, 461.</p></div>
+
+<div class="footnote"><p><a id="Footnote_172_172" href="#FNanchor_172_172" class="label">[172]</a> II Statutes at Large, 148; Charter and Laws of Pennsylvania,
+311.</p></div>
+
+<div class="footnote"><p><a id="Footnote_173_173" href="#FNanchor_173_173" class="label">[173]</a> II Statutes at Large, 456, 482.</p></div>
+
+<div class="footnote"><p><a id="Footnote_174_174" href="#FNanchor_174_174" class="label">[174]</a> II Colonial Records, 185, 19, 11 mo. 1704. Penn &amp; Logan
+Correspondence, Memoirs of Historical Society of Pennsylvania,
+Vol. X, 5. Lloyd attempted to regulate the practice in ejectment
+in his bill of 1706 which was rejected by the governor.
+His idea was to require a real lease, entry and ouster and to do
+away with the fictitious proceeding—“A new practice, allowed
+only in Westminster Hall.” II Colonial Records, 354, February
+24, 1706-7.</p></div>
+
+<div class="footnote"><p><a id="Footnote_175_175" href="#FNanchor_175_175" class="label">[175]</a> II Colonial Records, 261, September 19, 1706.</p></div>
+
+<div class="footnote"><p><a id="Footnote_176_176" href="#FNanchor_176_176" class="label">[176]</a> II Colonial Records, 271, 14, 9 mo. 1706. In a speech the
+governor refers to it as “the longest perhaps that ever was
+drawn up in America.” II Colonial Records, 313.</p></div>
+
+<div class="footnote"><p><a id="Footnote_177_177" href="#FNanchor_177_177" class="label">[177]</a> Penn &amp; Logan Correspondence, Memoirs of Historical
+Society of Pennsylvania, Vol. X, 180.</p></div>
+
+<div class="footnote"><p><a id="Footnote_178_178" href="#FNanchor_178_178" class="label">[178]</a> II Colonial Records, 268, 3, 8 mo. 1706.</p></div>
+
+<div class="footnote"><p><a id="Footnote_179_179" href="#FNanchor_179_179" class="label">[179]</a> II Colonial Records, 263, 23, 7 mo. 1706; 266, 25, 7 mo.
+1706; 276, 27, 9 mo. 1706.</p></div>
+
+<div class="footnote"><p><a id="Footnote_180_180" href="#FNanchor_180_180" class="label">[180]</a> II Colonial Records, 272, 16, 9 mo. 1706.</p></div>
+
+<div class="footnote"><p><a id="Footnote_181_181" href="#FNanchor_181_181" class="label">[181]</a> II Colonial Records, 298, 23, 10 mo. 1706.</p></div>
+
+<div class="footnote"><p><a id="Footnote_182_182" href="#FNanchor_182_182" class="label">[182]</a> II Colonial Records, 304, January 15, 1706-7.</p></div>
+
+<div class="footnote"><p><a id="Footnote_183_183" href="#FNanchor_183_183" class="label">[183]</a> II Colonial Records, 326, February 6, 1706-7.</p></div>
+
+<div class="footnote"><p><a id="Footnote_184_184" href="#FNanchor_184_184" class="label">[184]</a> II Statutes at Large, 500; Charter and Laws of Pennsylvania,
+319; II Colonial Records, 349, February 21, 1706-7.</p></div>
+
+<div class="footnote"><p><a id="Footnote_185_185" href="#FNanchor_185_185" class="label">[185]</a> In the list of acts before the Commissioners of Trade in
+1694 is one purporting to be entitled, “Law about appeals to
+the Supream Court,” but if this is the Act of 1693 it should
+have been Provincial Court. Board of Trade Journals, Mss.
+Historical Society of Pennsylvania, Vol. VII, 309.</p></div>
+
+<div class="footnote"><p><a id="Footnote_186_186" href="#FNanchor_186_186" class="label">[186]</a> II Colonial Records, 362, March 4, 1707.</p></div>
+
+<div class="footnote"><p><a id="Footnote_187_187" href="#FNanchor_187_187" class="label">[187]</a> February 28, 1710-11, II Statutes at Large, 301; II Colonial
+Records, 552, February 28, 1710-11.</p></div>
+
+<div class="footnote"><p><a id="Footnote_188_188" href="#FNanchor_188_188" class="label">[188]</a> II Colonial Records, 549, February 10, 1710-11.</p></div>
+
+<div class="footnote"><p><a id="Footnote_189_189" href="#FNanchor_189_189" class="label">[189]</a> II Statutes at Large, 331. Twenty shillings was the sum
+which Governor Evans considered “too small for any person
+duly qualified to accept of.” II Colonial Records, 273, 16, 9 mo.
+1706.</p></div>
+
+<div class="footnote"><p><a id="Footnote_190_190" href="#FNanchor_190_190" class="label">[190]</a> II Statutes at Large, 548; I Pennsylvania Archives (1st
+Series), 157.</p></div>
+
+<div class="footnote"><p><a id="Footnote_191_191" href="#FNanchor_191_191" class="label">[191]</a> II Statutes at Large, 554; III Statutes at Large, 441, 467.
+On the other hand, Penn complained of the expense to which
+he was put in endeavoring to have the acts approved by the
+crown officers.</p></div>
+
+<div class="footnote"><p><a id="Footnote_192_192" href="#FNanchor_192_192" class="label">[192]</a> III Statutes at Large, 32, 440, 466.</p></div>
+
+<div class="footnote"><p><a id="Footnote_193_193" href="#FNanchor_193_193" class="label">[193]</a> Charter and Laws of Pennsylvania, 395; I Pennsylvania
+Archives (1st Series), 196.</p></div>
+
+<div class="footnote"><p><a id="Footnote_194_194" href="#FNanchor_194_194" class="label">[194]</a> II Pennsylvania Archives (1st Series), 107, see also, VIII
+New Jersey Archives (1st Series) 190. For appeals in other
+colonies, see <i>Winthrop</i> v. <i>Lechmere</i>, 1 Thayer’s Cases on Constitutional
+Law, 34; VII Connecticut Colonial Records, 571
+(1727); <i>Frost</i> v. <i>Leighton</i> (Mass. 1738), II American Historical
+Review, 229; <i>Perry</i> v. <i>Randolph</i>, Barradal’s Reports, 2 Virginia
+Colonial Decisions, 22 (1726). In the introduction to Volume
+II of Acts of the Privy Council of England, Colonial Series (1910),
+will be found an interesting account of the practice of the
+council on appeal, while in the text are numerous examples of
+appeals from the West India Islands as well as from the colonies
+on the American Continent between 1680 and 1720.</p></div>
+
+<div class="footnote"><p><a id="Footnote_195_195" href="#FNanchor_195_195" class="label">[195]</a> III Colonial Records, 30, May 8, 1718.</p></div>
+
+<div class="footnote"><p><a id="Footnote_196_196" href="#FNanchor_196_196" class="label">[196]</a> 1 Dallas’s Reports, 6 (1763).</p></div>
+
+<div class="footnote"><p><a id="Footnote_197_197" href="#FNanchor_197_197" class="label">[197]</a> April Term, 1763, Docket No. 3, page 450.</p></div>
+
+<div class="footnote"><p><a id="Footnote_198_198" href="#FNanchor_198_198" class="label">[198]</a> April Term, 1763, Docket No. 3, page 448.</p></div>
+
+<div class="footnote"><p><a id="Footnote_199_199" href="#FNanchor_199_199" class="label">[199]</a> April Term, 1765, Docket No. 4, page 93.</p></div>
+
+<div class="footnote"><p><a id="Footnote_200_200" href="#FNanchor_200_200" class="label">[200]</a> September Term, 1765, Docket No. 4, pages 120, 181.</p></div>
+
+<div class="footnote"><p><a id="Footnote_201_201" href="#FNanchor_201_201" class="label">[201]</a> <i>Swift</i> v. <i>Hawkins, Lightfoot and Jones</i>, Docket No. 4, page
+591.</p></div>
+
+<div class="footnote"><p><a id="Footnote_202_202" href="#FNanchor_202_202" class="label">[202]</a> Finlason’s History of the Judicial Committee of the Privy
+Council, 39; V Pennsylvania Archives (2d Series), 436, 658.
+While there was a standing committee for hearing appeals,
+these petitions seem to have been frequently referred to special
+committees. The present judicial committee dates from the
+Act of 3 &amp; 4 William IV, chapter 41.</p></div>
+
+<div class="footnote"><p><a id="Footnote_203_203" href="#FNanchor_203_203" class="label">[203]</a> Mansfield’s speech on the Stamp Act, reprinted in Library
+of Original Sources, Vol. VII, 84.</p></div>
+
+<div class="footnote"><p><a id="Footnote_204_204" href="#FNanchor_204_204" class="label">[204]</a> II Colonial Records, 38, 17, 3 mo. 1703.</p></div>
+
+<div class="footnote"><p><a id="Footnote_205_205" href="#FNanchor_205_205" class="label">[205]</a> Shepherd’s Proprietary Government in Pennsylvania,
+chapter VII, 351.</p></div>
+
+<div class="footnote"><p><a id="Footnote_206_206" href="#FNanchor_206_206" class="label">[206]</a> III Statutes at Large, 199; III Colonial Records, 63.</p></div>
+
+<div class="footnote"><p><a id="Footnote_207_207" href="#FNanchor_207_207" class="label">[207]</a> III Statutes at Large, 427.</p></div>
+
+<div class="footnote"><p><a id="Footnote_208_208" href="#FNanchor_208_208" class="label">[208]</a> IV Statutes at Large, 337, 483.</p></div>
+
+<div class="footnote"><p><a id="Footnote_209_209" href="#FNanchor_209_209" class="label">[209]</a> March 21, 1772, VIII Statutes at Large, 239.</p></div>
+
+<div class="footnote"><p><a id="Footnote_210_210" href="#FNanchor_210_210" class="label">[210]</a> See III Colonial Records, 35, June 15, 1718.</p></div>
+
+<div class="footnote"><p><a id="Footnote_211_211" href="#FNanchor_211_211" class="label">[211]</a> IV Colonial Records, 276, Feb. 3, 1737-8. A full report
+of this affair will be found in the Pennsylvania Gazette, February
+7, 1737-8. It appears that the parties concerned were not Free
+Masons, but practical jokers.</p></div>
+
+<div class="footnote"><p><a id="Footnote_212_212" href="#FNanchor_212_212" class="label">[212]</a> III Colonial Records, 274, October 4, 1726.</p></div>
+
+<div class="footnote"><p><a id="Footnote_213_213" href="#FNanchor_213_213" class="label">[213]</a> As early as 1685 an ecclesiastical offender was offered an
+opportunity to emigrate to the new colony, as appears by the
+Privy Council minutes: “Whereas it has been this day represented
+to his majesty that Christopher Sibthorpe, brazier, is a
+prisoner in Woodstreet compter upon a capias on the Writt
+de excomunicato capiendo, his majesty was pleased to order the
+sheriffs of the city of London (taking good security that the
+said Christopher do forthwith transport himself and family to
+Pennsylvania in America and paying the charges of the court)
+sett him at liberty in order to his sayd voyage.” Acts of the
+Privy Council of England, Colonial Series (1910), Vol. II, p. 79,
+§ 176. The exile was an active Friend.</p></div>
+
+<div class="footnote"><p><a id="Footnote_214_214" href="#FNanchor_214_214" class="label">[214]</a> The Forum, Vol. I, 231. It is a matter of some doubt as to
+whether the ducking-stool ever was actually used in Philadelphia.
+In 1769 a woman was sentenced to be ducked at the end of
+Market street wharf, but we are not informed whether the
+sentence was carried into execution. In 1779 Ann Mease was
+sentenced to the same punishment but the council remitted
+the ducking January 26, 1780. XII Colonial Records, 235.
+In 1781 there was another conviction but the sentence was not
+carried out. In 1824 the supreme court held that the ducking-stool
+was not the punishment for a common scold in Pennsylvania.
+<i>James</i> v. <i>Commonwealth</i>, 12 Sergeant &amp; Rawle, 221
+(1824). The Act of March 10, 1683, reënacted in 1693, provided
+that a scold should stand one hour in a public place with
+a gag in the mouth. Charter and Laws of Pennsylvania, 144,
+198. This was supplied by the Act of November 27, 1700,
+II Statutes at Large, 85, which provided that the gagged
+person should stand in some public place at the discretion of
+the magistrate. The act was repealed in council because it was
+not stated how long the person should stand gagged and the
+penalty was too great. II Statutes at Large, 466.</p></div>
+
+<div class="footnote"><p><a id="Footnote_215_215" href="#FNanchor_215_215" class="label">[215]</a> Quotations from Mss. Docket, given in Appendix to Vol. I
+of David Paul Brown’s Forum, 573.</p></div>
+
+<div class="footnote"><p><a id="Footnote_216_216" href="#FNanchor_216_216" class="label">[216]</a> Such executions were not unusual in England. Sidney refers
+to a number, mentioned in the newspapers, including two
+in 1735, one in 1737, two in 1739 and one as late as 1789. Sidney’s
+England in the Eighteenth Century, Vol. II, 299.</p></div>
+
+<div class="footnote"><p><a id="Footnote_217_217" href="#FNanchor_217_217" class="label">[217]</a> III Statutes at Large, 298.</p></div>
+
+<div class="footnote"><p><a id="Footnote_218_218" href="#FNanchor_218_218" class="label">[218]</a> III Statutes at Large, 488.</p></div>
+
+<div class="footnote"><p><a id="Footnote_219_219" href="#FNanchor_219_219" class="label">[219]</a> IV Statutes at Large, 84.</p></div>
+
+<div class="footnote"><p><a id="Footnote_220_220" href="#FNanchor_220_220" class="label">[220]</a> November 27, 1731, IV Statutes at Large, 229.</p></div>
+
+<div class="footnote"><p><a id="Footnote_221_221" href="#FNanchor_221_221" class="label">[221]</a> IV Statutes at Large, 425, 430.</p></div>
+
+<div class="footnote"><p><a id="Footnote_222_222" href="#FNanchor_222_222" class="label">[222]</a> IV Statutes at Large, 431.</p></div>
+
+<div class="footnote"><p><a id="Footnote_223_223" href="#FNanchor_223_223" class="label">[223]</a> IV Statutes at Large, 443.</p></div>
+
+<div class="footnote"><p><a id="Footnote_224_224" href="#FNanchor_224_224" class="label">[224]</a> IV Statutes at Large, 421, 449; III Colonial Records, 446,
+November 23, 1731. The assembly stated that the aspersions
+on the inferior courts were false and scandalous. Votes of
+Assembly, Vol. III, 168, 169.</p></div>
+
+<div class="footnote"><p><a id="Footnote_225_225" href="#FNanchor_225_225" class="label">[225]</a> 4 Binney’s Reports, 117 (1811).</p></div>
+
+<div class="footnote"><p><a id="Footnote_226_226" href="#FNanchor_226_226" class="label">[226]</a> V Statutes at Large, 462, 722.</p></div>
+
+<div class="footnote"><p><a id="Footnote_227_227" href="#FNanchor_227_227" class="label">[227]</a> May 20, 1767, VII Statutes at Large, 107.</p></div>
+
+<div class="footnote"><p><a id="Footnote_228_228" href="#FNanchor_228_228" class="label">[228]</a> Charter and Laws of Pennsylvania, 63.</p></div>
+
+<div class="footnote"><p><a id="Footnote_229_229" href="#FNanchor_229_229" class="label">[229]</a> Kent’s Commentaries, Vol. II, 97.</p></div>
+
+<div class="footnote"><p><a id="Footnote_230_230" href="#FNanchor_230_230" class="label">[230]</a> Charter and Laws of Pennsylvania, 109.</p></div>
+
+<div class="footnote"><p><a id="Footnote_231_231" href="#FNanchor_231_231" class="label">[231]</a> Charter and Laws of Pennsylvania, 194.</p></div>
+
+<div class="footnote"><p><a id="Footnote_232_232" href="#FNanchor_232_232" class="label">[232]</a> Act of November 27, 1700, II Statutes at Large, 5.</p></div>
+
+<div class="footnote"><p><a id="Footnote_233_233" href="#FNanchor_233_233" class="label">[233]</a> II Statutes at Large, 490.</p></div>
+
+<div class="footnote"><p><a id="Footnote_234_234" href="#FNanchor_234_234" class="label">[234]</a> II Statutes at Large, 180. By another act, of the same date,
+a divorce from bed and board was allowed to the first husband
+or wife of a bigamist. II Statutes at Large, 181.</p></div>
+
+<div class="footnote"><p><a id="Footnote_235_235" href="#FNanchor_235_235" class="label">[235]</a> Rawle’s Equity in Pennsylvania, Appendix, 25.</p></div>
+
+<div class="footnote"><p><a id="Footnote_236_236" href="#FNanchor_236_236" class="label">[236]</a> “As a matter of fact, for the century and a half during which
+the practice prevailed perhaps not more than two hundred
+such separations were granted.” Howard, Matrimonial Institutions,
+Vol. II, 106.</p></div>
+
+<div class="footnote"><p><a id="Footnote_237_237" href="#FNanchor_237_237" class="label">[237]</a> VII Statutes at Large, 263.</p></div>
+
+<div class="footnote"><p><a id="Footnote_238_238" href="#FNanchor_238_238" class="label">[238]</a> IX Colonial Records, 564, 566, 567, 580.</p></div>
+
+<div class="footnote"><p><a id="Footnote_239_239" href="#FNanchor_239_239" class="label">[239]</a> VII Statutes at Large, 626.</p></div>
+
+<div class="footnote"><p><a id="Footnote_240_240" href="#FNanchor_240_240" class="label">[240]</a> VIII Statutes at Large, 243.</p></div>
+
+<div class="footnote"><p><a id="Footnote_241_241" href="#FNanchor_241_241" class="label">[241]</a> VIII Statutes at Large, 597, 600; Votes of Assembly of
+Pennsylvania, Vol. VI, 485, 488; X Colonial Records, 104.</p></div>
+
+<div class="footnote"><p><a id="Footnote_242_242" href="#FNanchor_242_242" class="label">[242]</a> November 24, 1773, O’Callahan’s Documents relative to
+the Colonial History of New York, Vol. VIII, 402; New Jersey
+Archives, Vol. X, 411, 412.</p></div>
+
+<div class="footnote"><p><a id="Footnote_243_243" href="#FNanchor_243_243" class="label">[243]</a> X Colonial Records, 40, 53, 54.</p></div>
+
+<div class="footnote"><p><a id="Footnote_244_244" href="#FNanchor_244_244" class="label">[244]</a> IX Statutes at Large, 433.</p></div>
+
+<div class="footnote"><p><a id="Footnote_245_245" href="#FNanchor_245_245" class="label">[245]</a> XII Statutes at Large, 94.</p></div>
+
+<div class="footnote"><p><a id="Footnote_246_246" href="#FNanchor_246_246" class="label">[246]</a> Eighteen private acts were passed in 1873. For the present
+law see the Act of March 13, 1815, 6 Smith’s Laws of Pennsylvania,
+286; Pepper &amp; Lewis’s Digest of Decisions, Vol. V,
+col. 7075; Stewart’s Purdon’s Digest, Vol. I, 1230.</p></div>
+
+<div class="footnote"><p><a id="Footnote_247_247" href="#FNanchor_247_247" class="label">[247]</a> See examples in VIII Pennsylvania Archives (3d Series), 23.</p></div>
+
+<div class="footnote"><p><a id="Footnote_248_248" href="#FNanchor_248_248" class="label">[248]</a> III Colonial Records, 23, February 14, 1717.</p></div>
+
+<div class="footnote"><p><a id="Footnote_249_249" href="#FNanchor_249_249" class="label">[249]</a> Charter and Laws of Pennsylvania, 382, 385; VIII and IX
+Pennsylvania Archives (3d Series), <i>passim</i>.</p></div>
+
+<div class="footnote"><p><a id="Footnote_250_250" href="#FNanchor_250_250" class="label">[250]</a> So, also, on the accession of a new sovereign, III Colonial
+Records, 298, September 1, 1727. Chronological lists of the
+judges of the supreme court and of the court of common pleas
+and the orphans’ court of Philadelphia County will be found
+in John H. Martin’s Bench &amp; Bar of Philadelphia (1883).
+Another list, slightly different, will be found in IX Pennsylvania
+Archives (2d Series), 629.</p></div>
+
+<div class="footnote"><p><a id="Footnote_251_251" href="#FNanchor_251_251" class="label">[251]</a> II Colonial Records, 247, April 17, 1706.</p></div>
+
+<div class="footnote"><p><a id="Footnote_252_252" href="#FNanchor_252_252" class="label">[252]</a> III Statutes at Large, 369; same in Act of August 22, 1752;
+V Statutes at Large, 161.</p></div>
+
+<div class="footnote"><p><a id="Footnote_253_253" href="#FNanchor_253_253" class="label">[253]</a> X Colonial Records, 53, September 19, 1772.</p></div>
+
+<div class="footnote"><p><a id="Footnote_254_254" href="#FNanchor_254_254" class="label">[254]</a> IX Statutes at Large, 29.</p></div>
+
+<div class="footnote"><p><a id="Footnote_255_255" href="#FNanchor_255_255" class="label">[255]</a> Justice Moll is described as “president of the court at New
+Castle.” Records of Court at New Castle, 496; see, also, I
+Colonial Records, 18, 23, 3 mo. 1683.</p></div>
+
+<div class="footnote"><p><a id="Footnote_256_256" href="#FNanchor_256_256" class="label">[256]</a> II Statutes at Large, 233.</p></div>
+
+<div class="footnote"><p><a id="Footnote_257_257" href="#FNanchor_257_257" class="label">[257]</a> III Statutes at Large, 63.</p></div>
+
+<div class="footnote"><p><a id="Footnote_258_258" href="#FNanchor_258_258" class="label">[258]</a> P. L. 208.</p></div>
+
+<div class="footnote"><p><a id="Footnote_259_259" href="#FNanchor_259_259" class="label">[259]</a> Benjamin Franklin’s Autobiography, chapter ix. A bill
+of exceptions signed by Franklin with the other judges of the
+common pleas is printed in Appendix B, Vol. I, of the Forum,
+by David Paul Brown.</p></div>
+
+<div class="footnote"><p><a id="Footnote_260_260" href="#FNanchor_260_260" class="label">[260]</a> David Lloyd was born in 1656 in Montgomery County,
+North Wales, and was appointed attorney-general by Penn in
+1686. At the time of his death in 1731 he resided at Chester.
+He left no descendants.</p></div>
+
+<div class="footnote"><p><a id="Footnote_261_261" href="#FNanchor_261_261" class="label">[261]</a> It is said that Chief Justice Allen refused to issue Writs
+of Assistance to the customs officers at the time of the memorable
+agitation on that subject. Quincy’s Reports (Mass.), 509.</p></div>
+
+<div class="footnote"><p><a id="Footnote_262_262" href="#FNanchor_262_262" class="label">[262]</a> Watson’s Annals of Philadelphia (1850), Vol. I, 350; Sharp &amp;
+Westcott’s History of Philadelphia, Vol. II, 857, Vol. III,
+page 1819.</p></div>
+
+<div class="footnote"><p><a id="Footnote_263_263" href="#FNanchor_263_263" class="label">[263]</a> II Colonial Records, 425, April 5, 1708. The building was
+finished in 1710.</p></div>
+
+<div class="footnote"><p><a id="Footnote_264_264" href="#FNanchor_264_264" class="label">[264]</a> The Pennsylvania Gazette of December 14, 1769, states
+that Governor John Penn’s commission was read from the
+Court House in the presence of a concourse of people. An
+election riot took place on the staircase leading to the balcony
+in 1742.</p></div>
+
+<div class="footnote"><p><a id="Footnote_265_265" href="#FNanchor_265_265" class="label">[265]</a> Act of February 12, 1762; VI Statutes at Large, 177.</p></div>
+
+<div class="footnote"><p><a id="Footnote_266_266" href="#FNanchor_266_266" class="label">[266]</a> There are attorneys mentioned in the Records of the Court
+of New Amsterdam, Vol. I, 190. Peter Alrichs, writing to
+Governor Stuyvesant March 30, 1658, says: “I have also to
+pay the attorney Schelluyn for salary earned by him in a suit
+against Dirck Cornelissen Heunich.” VII Pennsylvania Archives
+(2d Series), 528.</p></div>
+
+<div class="footnote"><p><a id="Footnote_267_267" href="#FNanchor_267_267" class="label">[267]</a> Records of the Court of New Castle, 9. Spry was also a
+doctor. In the same year he got into trouble by assaulting
+Captain Collier with a cane while “overcome w<sup>th</sup> drinke” and
+was fined two hundred guilders by the court. Records of Court
+of New Castle, 103.</p></div>
+
+<div class="footnote"><p><a id="Footnote_268_268" href="#FNanchor_268_268" class="label">[268]</a> Hazard’s Annals of Pennsylvania, 438; Records of the Court
+of New Castle, 111; Records of Court at Upland, 82.</p></div>
+
+<div class="footnote"><p><a id="Footnote_269_269" href="#FNanchor_269_269" class="label">[269]</a> Records of the Court of New Castle, 83.</p></div>
+
+<div class="footnote"><p><a id="Footnote_270_270" href="#FNanchor_270_270" class="label">[270]</a> Records of the Court of New Castle, 101.</p></div>
+
+<div class="footnote"><p><a id="Footnote_271_271" href="#FNanchor_271_271" class="label">[271]</a> Charter and Laws, 507; I Colonial Records 123, 2, 2 mo.
+1686. This was not a new idea, as Massachusetts in 1641 and
+Virginia in 1645 had attempted by legislation to prevent attorneys
+from pleading for remuneration. Baldwin on Constitutional
+Law in Two Centuries’ Growth of American Law, 14;
+see also, II Connecticut Colonial Records, 59.</p></div>
+
+<div class="footnote"><p><a id="Footnote_272_272" href="#FNanchor_272_272" class="label">[272]</a> III Statutes at Large, 379.</p></div>
+
+<div class="footnote"><p><a id="Footnote_273_273" href="#FNanchor_273_273" class="label">[273]</a> II Colonial Records, 423, April 2, 1708.</p></div>
+
+<div class="footnote"><p><a id="Footnote_274_274" href="#FNanchor_274_274" class="label">[274]</a> II Colonial Records, 447, March 1, 1708-9.</p></div>
+
+<div class="footnote"><p><a id="Footnote_275_275" href="#FNanchor_275_275" class="label">[275]</a> <i>Heather</i> v. <i>Frankfort Co.</i>, Pennypacker’s Colonial Cases, 142;
+II Colonial Records, 447, March 1, 1708-9. That the “cornering”
+of the bar was not a new experiment would appear from
+an incident mentioned by Barrington in his “Observations
+on the Statutes,” page 294n. “There is also —— a petition of
+Robert Pickerell, exhibited to the king in parliament the second
+year of Richard the Second; by which he complains that
+Alice Perrers had retained all the advocates in Westminster
+Hall, so that he could have no advice; ‘si il ne donneroit si
+grande summe d’or, quil ne poit attainder.’”</p></div>
+
+<div class="footnote"><p><a id="Footnote_276_276" href="#FNanchor_276_276" class="label">[276]</a> 9 Sergeant &amp; Rawle’s Reports, 322 (1823).</p></div>
+
+<div class="footnote"><p><a id="Footnote_277_277" href="#FNanchor_277_277" class="label">[277]</a> Watson’s Annals of Philadelphia (1850), Vol. I, 316.</p></div>
+
+<div class="footnote"><p><a id="Footnote_278_278" href="#FNanchor_278_278" class="label">[278]</a> VII Pennsylvania Archives (2d Series), 94. See sketch of his
+life in Vol. I, Lewis’s Great American Lawyers (1907), 1.</p></div>
+
+<div class="footnote"><p><a id="Footnote_279_279" href="#FNanchor_279_279" class="label">[279]</a> Howell’s State Trials, Vol. 17, 575. In Pennsylvania the
+quarter sessions of Philadelphia had in 1692 allowed the question
+of the seditious character of a publication to go to the jury.
+<i>Proprietor</i> v. <i>Bradford</i>, Pennypacker’s Colonial Cases, 117.</p></div>
+
+<div class="footnote"><p><a id="Footnote_280_280" href="#FNanchor_280_280" class="label">[280]</a> It is a curious fact that a number of the bar leaders came
+from Maryland to Pennsylvania—Andrew Hamilton, Tench
+Francis, Benjamin Chew and the Tilghmans.</p></div>
+
+<div class="footnote"><p><a id="Footnote_281_281" href="#FNanchor_281_281" class="label">[281]</a> Life and Times of John Dickinson, 28.</p></div>
+
+<div class="footnote"><p><a id="Footnote_282_282" href="#FNanchor_282_282" class="label">[282]</a> 3 Binney’s Reports, 476 (1811).</p></div>
+
+<div class="footnote"><p><a id="Footnote_283_283" href="#FNanchor_283_283" class="label">[283]</a> 3 Burrough’s Reports, 1895 (1766).</p></div>
+
+<div class="footnote"><p><a id="Footnote_284_284" href="#FNanchor_284_284" class="label">[284]</a> April Term, 1759, Supreme Court Docket No. 3, page 83.</p></div>
+
+<div class="footnote"><p><a id="Footnote_285_285" href="#FNanchor_285_285" class="label">[285]</a> Minute Book, Court of Common Pleas, Philadelphia County,
+March Term, 1790.</p></div>
+
+<div class="footnote"><p><a id="Footnote_286_286" href="#FNanchor_286_286" class="label">[286]</a> Hammond’s Blackstone’s Commentaries, Preface, page viii.</p></div>
+
+<div class="footnote"><p><a id="Footnote_287_287" href="#FNanchor_287_287" class="label">[287]</a> Keith’s Provincial Councillors, 328.</p></div>
+
+<div class="footnote"><p><a id="Footnote_288_288" href="#FNanchor_288_288" class="label">[288]</a> X Pennsylvania Colonial Records, 173, April 29, 1774.</p></div>
+
+<div class="footnote"><p><a id="Footnote_289_289" href="#FNanchor_289_289" class="label">[289]</a> Keith’s Provincial Councillors, 329.</p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_122">[Pg 122]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_III">
+    CHAPTER III.
+  </h2>
+</div>
+
+
+<p>The appearance docket of the supreme court for April
+Term, 1776, contains the following entry:—</p>
+
+<blockquote>
+<p>“Philadelphia, s. s.</p>
+
+<p>“At a Supream Court held at Philadelphia for the Province
+of Pennsylvania the tenth day of April in the sixteenth year
+of the reign of our Sovereign Lord George the third King of
+Great Britain France and Ireland, Defender of the Faith &amp;c and
+in the year of our Lord one thousand seven hundred and seventy
+six: and continued by adjournment until—”</p>
+</blockquote>
+
+<p>Until when? Doomsday no doubt; for this was the
+last court held under our “Sovereign Lord George” and
+the date of continuance was never filled in. Independence,
+however, was not welcomed in Pennsylvania with
+the same enthusiasm as in the New England states. At
+the beginning of the conflict the influential and conservative
+element in the province while opposed to the measures
+of parliament was exceedingly adverse to the idea
+of a separation from Great Britain. The grievances of
+the Pennsylvanians were not as great as those of the
+other colonists; they had a liberal charter and a satisfactory
+system of local government, while the proprietary
+family stood between them and the Crown to
+soften controversies and prevent conflicts of authority;
+many earnestly hoped for reconciliation and were carried
+on the tide of revolution sorely against their wills. To
+accelerate the movement and to get rid of the conservatives,
+a bold, radical minority, with the moral
+support of congress, organized and carried through a
+revolution in the government of Pennsylvania. A convention
+called in July, 1776, and presided over by
+Franklin, drew up a new constitution, which, after
+considerable opposition, was declared to have been
+<span class="pagenum" id="Page_123">[Pg 123]</span>adopted. Penn’s charter was discarded, the proprietary
+government ceased to exist, the old officials and
+assembly retired and new men took their places.</p>
+
+<p>The Constitution of 1776 was not a satisfactory instrument
+and was discarded after a fourteen years’ trial,
+but some of its features are worth noticing. The
+executive power was vested in a supreme executive
+council composed of twelve members, one from the
+city of Philadelphia and eleven from the respective
+counties. The term of office was three years, and the
+president and vice-president were chosen from the
+council by joint ballot of the assembly and council.
+The president and council were empowered to choose
+and commission all judges and other officers and fill
+vacancies in office. Every officer of the state was
+subject to impeachment by the assembly, the impeachments
+to be heard before the president and council.
+The principal judiciary clauses were as follows:—</p>
+
+<blockquote>
+<p>“Sec. 23. The judges of the supreme court of judicature
+shall have fixed salaries, be commissioned for seven years only,
+though capable of reappointment at the end of that term, but
+removable for misbehaviour at any time by the general assembly;
+they shall not be allowed to sit as members in the continental
+congress, executive council or general assembly, nor to hold any
+other office, civil or military, nor take or receive fees or perquisites
+of any kind.</p>
+
+<p>“Sec. 25. Trials shall be by jury as heretofore, and it is recommended
+to the legislature of this state to provide by law against
+every corruption or partiality in the choice, return or appointment
+of juries.</p>
+
+<p>“Sec. 26. Courts of sessions, common pleas and orphans’ courts
+shall be held quarterly in each city and county, and the legislature
+shall have power to establish all such other courts as they
+may judge for the good of the inhabitants of the state; all courts
+shall be open, and justice shall be impartially administered without
+corruption or unnecessary delay: All their officers shall be
+paid an adequate but moderate compensation for their services,
+and if any officer shall take greater or other fees than the laws
+allow him, either directly or indirectly, it shall ever after disqualify
+him from holding any office in this state.</p>
+
+<p><span class="pagenum" id="Page_124">[Pg 124]</span></p>
+
+<p>“Sec. 27. All prosecutions shall commence in the name and by
+the authority of the freemen of the commonwealth of Pennsylvania,
+and all indictments shall conclude with these words—<i>against
+the peace and dignity of the same</i>. The stile of all process
+hereafter in this state shall be <i>The commonwealth of Pennsylvania</i>.”&#x2060;<a id="FNanchor_290_290" href="#Footnote_290_290" class="fnanchor">[290]</a>&#x2060;</p>
+</blockquote>
+
+<p>The office of justice of the peace was made elective, the
+voters of the respective districts to choose two, one of
+whom was to be commissioned by the president for the
+term of seven years.</p>
+
+<p>A peculiar feature of the constitution was the provision
+for the election every seven years of a council of
+censors who were to meet and inquire whether the constitution
+had been preserved inviolate, whether the
+laws were duly executed, and, if there appeared any
+necessity to amend the constitution, to call a convention
+for that purpose. While these changes were in
+progress and while most of the active citizens were
+engaged in war or political strife, the administration
+of justice was sadly neglected.</p>
+
+<p>By an act of January 28, 1777,&#x2060;<a id="FNanchor_291_291" href="#Footnote_291_291" class="fnanchor">[291]</a> passed for the purpose
+of putting into effect such and so much of the laws of
+the province as were necessary in the commonwealth,
+it was provided, that the courts of quarter sessions and
+gaol delivery, petty sessions, common pleas, orphans’
+courts, supreme court, courts of oyer and terminer and
+general gaol delivery should be held and kept in each
+respective county at the times and places appointed
+by law, with all the powers, authority and jurisdiction
+which by law such justices and judges theretofore had
+had and exercised and such as were given by the constitution.
+It was further provided that the president
+and council should appoint one justice in each county
+<span class="pagenum" id="Page_125">[Pg 125]</span>to preside in the respective courts and in his absence
+the justices who should attend were to choose a president.
+All actions in the provincial courts were continued
+in the same state as if the authority of such
+courts had never ceased.</p>
+
+<p>The chief justice of the new supreme court was Thomas
+McKean, a signer of the Declaration of Independence
+and one of the most active of the patriot party. The
+associate justices were William A. Atlee and John
+Evans. The suspension of the courts caused considerable
+inconvenience and letters and petitions complaining
+of the prevailing conditions were presented to the
+council.&#x2060;<a id="FNanchor_292_292" href="#Footnote_292_292" class="fnanchor">[292]</a> In the counties the same trouble was had
+with regard to the justices, many of whom were away,
+or unwilling to act in the unsettled state of affairs; in
+some parts of the state the local committees of safety
+assumed judicial power and took cognizance of minor
+crimes.</p>
+
+<p>The first session of the common pleas, at Philadelphia,
+when the style of process was altered from king to commonwealth,
+was held in September, 1777, when six
+attorneys were admitted to practice,&#x2060;<a id="FNanchor_293_293" href="#Footnote_293_293" class="fnanchor">[293]</a> but the British
+were already marching on Philadelphia, and before the
+end of the month the army of King George had expelled
+the new government.</p>
+
+<p>During the occupation of Philadelphia by General
+Howe, from September, 1777, to June, 1778, the seat
+of government was in Lancaster. With the return of
+the state officials to Philadelphia the various agencies
+of proscription became active. Many persons were
+declared traitors and their estates forfeited to the
+<span class="pagenum" id="Page_126">[Pg 126]</span>commonwealth.&#x2060;<a id="FNanchor_294_294" href="#Footnote_294_294" class="fnanchor">[294]</a> The most important cases tried before
+the newly organized supreme court were treason trials,
+among which those of Roberts and Carlisle, which are
+very briefly reported, aroused great popular interest.&#x2060;<a id="FNanchor_295_295" href="#Footnote_295_295" class="fnanchor">[295]</a>
+Roberts, a miller of Lower Merion Township, was accused
+of acting as a guide to Sir William Howe and of persuading
+various persons to enlist in the British army.
+Carlisle was charged with having accepted a commission
+to keep watch over the gate of the city of Philadelphia,
+established by Howe to prevent the ingress and egress
+of persons not provided with passes. The accused were
+tried on the twenty-fifth and thirtieth of September,
+1778, found guilty and sentenced to be hanged. Earnest
+appeals for executive clemency were made on behalf
+of the prisoners by petitions, but the council was firm
+and both men were hanged. In these, as in most of the
+other treason trials, James Wilson appeared for the
+defendants and acquired such unpopularity through his
+faithful efforts in behalf of his clients that his house was
+attacked by a mob, which was driven off only after a
+fight that cost several persons their lives.</p>
+
+<p>The Revolution brought to an end the court of vice
+admiralty, of which Edward Shippen was judge, and it
+became necessary to create a tribunal to take its place.
+The Continental Congress advised the several legislatures
+to establish courts of admiralty and, accordingly, the
+assembly, on March 26, 1776, passed a resolution creating
+a court of admiralty to be held in the city of Philadelphia
+to try cases of captured vessels brought into that
+port, with the right of appeal to congress or to such
+person or persons as they should appoint to hear appeals.&#x2060;<a id="FNanchor_296_296" href="#Footnote_296_296" class="fnanchor">[296]</a>
+<span class="pagenum" id="Page_127">[Pg 127]</span>For this last purpose a committee was appointed by
+congress, whose feeble and unsupported authority was
+openly defied by George Ross, the Pennsylvania judge of
+admiralty, in the case of the “Active,” giving rise to a
+memorable controversy carried on in the courts long
+after the adoption of the constitution of the United
+States, and nearly resulting in an armed conflict between
+the federal and state authorities. This case, or rather
+series of cases, pointedly illustrates the growth of the
+federal power, the decree of the helpless commissioners
+of admiralty of the Continental Congress, long flouted by
+the state judges, prevailing, after many years, by virtue
+of a judgment of the supreme court of the United States,
+to whose authority the state officials, after calling out
+the militia to resist the marshal, yielded a sullen obedience.&#x2060;<a id="FNanchor_297_297" href="#Footnote_297_297" class="fnanchor">[297]</a>&#x2060;</p>
+
+<p>Francis Hopkinson, the distinguished writer, who
+succeeded Ross in 1779, was the first state judge to
+undergo the unpleasant experience of an impeachment
+by the assembly. This proceeding, which took place
+in December, 1780, was the result of a complaint by the
+judge against Mathew Clarkson, the marshal of the
+court, which resulted in his dismissal. Clarkson in
+revenge made charges against the judge before the
+assembly, which voted for his impeachment. The court
+consisted of President Reed and the council. Smith and
+Galbraith managed for the house with Attorney-General
+Bradford, while Judge Hopkinson was represented by
+James Wilson. The principal charges against the judge
+were that he had wrongfully issued a writ for the sale
+of the cargo of a ship, and that he had exacted illegal
+<span class="pagenum" id="Page_128">[Pg 128]</span>fees in a prize case. The judgment of the council, as
+pronounced by the president, was an acquittal upon all
+the charges, although it seemed to the council that the
+fees, which were charged according to the recognized
+practice of the court, were excessive.&#x2060;<a id="FNanchor_298_298" href="#Footnote_298_298" class="fnanchor">[298]</a> Upon the adoption
+of the constitution of the United States admiralty
+jurisdiction passed to the federal district courts and
+Judge Hopkinson was appointed the first district judge
+for Pennsylvania under the Act of Congress of September
+14, 1789.</p>
+
+<p>The necessity for a court of last resort to take the
+place of the privy council of Great Britain was met by
+the creation of the High Court of Errors and Appeals,
+under the act of February 28, 1780,&#x2060;<a id="FNanchor_299_299" href="#Footnote_299_299" class="fnanchor">[299]</a> to hear appeals
+from the supreme court, the register’s courts and the
+court of admiralty.</p>
+
+<p>This act, after reciting that the laws of the late
+province gave a very precarious, difficult and expensive
+remedy to parties injured by erroneous judgments, by
+appeal to the king in council, and that as “the good
+people of this commonwealth, by their happy deliverance
+from their late dependent condition, and by becoming
+free and sovereign are released from this badge of
+slavery and have acquired the transcendent benefit of
+having justice administered to them at home and at
+moderate costs and charges,” enacted that a court of
+error should be established composed of the president
+of the supreme executive council, the judges of the
+supreme court, the judge of the admiralty, together with
+three persons of known integrity and ability commissioned
+for seven years, any four or more of them to
+constitute a quorum. The court in this form had but a
+brief existence, its composition being materially changed
+<span class="pagenum" id="Page_129">[Pg 129]</span>by the Act of April 13, 1791.&#x2060;<a id="FNanchor_300_300" href="#Footnote_300_300" class="fnanchor">[300]</a> Of the presidents of the
+council, Reed and Dickinson were leading lawyers and
+Dickinson rendered at least one very able decision in
+the admiralty case of <i>Talbot</i> v. <i>Three Brigs</i>.&#x2060;<a id="FNanchor_301_301" href="#Footnote_301_301" class="fnanchor">[301]</a> Benjamin
+Franklin, although he had once sat for a brief period
+in the common pleas, was wise enough to know that
+the administration of law required a special education,
+at least there is no reported opinion by him while president.
+Of the extra members of the court, Edward
+Shippen, judge of vice admiralty under the Crown,
+subsequently became chief justice of the supreme court;
+Francis Hopkinson has been mentioned and Henry
+Wynkoop was president judge of Bucks County.</p>
+
+<p>That the Constitution of 1776 was not working
+smoothly was the opinion of a majority of the council
+of censors which met in 1783 to consider whether the
+constitution was being observed and whether it needed
+amendment. The committee on defects reported that
+the commissioning of the judges of the supreme court
+for seven years only was a material defect, because it
+rendered the tenure of judges dependent on the will of
+the council, while the committee on abuses reported
+that the section requiring fixed salaries for the judiciary
+had not been complied with as it ought and that permanent
+salaries should without delay be established for the
+judges during their continuance in office.&#x2060;<a id="FNanchor_302_302" href="#Footnote_302_302" class="fnanchor">[302]</a> The findings
+of the censors on these and other points were to bear
+fruit in the Constitution of 1790.</p>
+
+<p>In 1786 an addition was made to the jurisdiction of
+the supreme court, which hitherto had exercised no
+original jurisdiction in civil cases except in fines and
+common recoveries. By an act of that year issues of
+<span class="pagenum" id="Page_130">[Pg 130]</span>fact were allowed to be tried <i>in banc</i> or at <i>nisi prius</i> by
+that court in the county of Philadelphia.&#x2060;<a id="FNanchor_303_303" href="#Footnote_303_303" class="fnanchor">[303]</a>&#x2060;</p>
+
+<p>A case that excited considerable interest at the time
+was the outlawry of Aaron Doan, one of the famous
+brothers who terrorized Bucks County and the surrounding
+country. The defendant, having been attainted of
+robbery, was brought into the supreme court on September
+24, 1784, and after hearing before the court upon
+several exceptions to the outlawry, all of which were
+overruled, execution was awarded. When the transcript
+of the record was remitted to the supreme executive
+council, in order that a warrant for the execution should
+issue, the humanity of President Dickinson seems to
+have been shocked that a man should be deprived of his
+life without a trial by jury and, accordingly, a letter was
+addressed to the supreme court inquiring whether there
+were any modern instances in England of persons being
+executed upon outlawry, or whether that had ever
+occurred in Pennsylvania, and was compatible with the
+constitution. Technical objections to the record were
+also raised.&#x2060;<a id="FNanchor_304_304" href="#Footnote_304_304" class="fnanchor">[304]</a> The court replied that, while not bound
+to give reasons for their judgment and desiring that this
+should not be construed as a precedent, they gave it as
+their opinion that under the laws of the commonwealth
+and the common law they had no doubt that the prisoner
+had been properly outlawed and had forfeited his life,
+but could mention no case in Pennsylvania of a person
+executed upon outlawry by judicial proceedings alone,
+except that of one Daniel Dawson, who had been executed
+since the Declaration of Independence, in consequence
+of an attainder, by virtue of a proclamation of
+the supreme executive council and judicial proceedings
+<span class="pagenum" id="Page_131">[Pg 131]</span>thereon, in which the court awarded execution by sentence
+of death, no judgment having been given before.
+Dickinson was still dissatisfied and addressed a special
+message to the assembly on the subject, but no action
+was taken at that time and the humane scruples of
+Dickinson did not influence his successors, Franklin
+and Muhlenberg, upon the outlawry of the other Doans,
+Abraham and Levi.&#x2060;<a id="FNanchor_305_305" href="#Footnote_305_305" class="fnanchor">[305]</a> In fact except for the objections
+to the proceedings, as out of harmony with modern ideas,
+little sympathy would have been wasted on these desperadoes
+who, from all accounts, richly deserved their
+sentences. By an Act of September 23, 1791,&#x2060;<a id="FNanchor_306_306" href="#Footnote_306_306" class="fnanchor">[306]</a> the
+process of outlawry was better regulated, and by the
+Act of April 22, 1794,&#x2060;<a id="FNanchor_307_307" href="#Footnote_307_307" class="fnanchor">[307]</a> the death penalty was abolished
+for all crimes except murder in the first degree.</p>
+
+<p>This reform was largely due to the efforts of William
+Bradford, who in that year became a judge of the
+supreme court, resigning a few years later to accept the
+office of attorney-general of the United States in Washington’s
+cabinet, whose brilliant career was cut short
+by an early death. Prior to this time the minutes of the
+supreme executive council are burdened with appeals
+for executive clemency and numerous orders appear
+for the remission of corporal punishment, as well as of
+death sentences. That the council had an eye to
+dramatic effect, or were convinced of the value of mental
+suggestions, is indicated by one order in which a reprieve
+is granted to a prisoner “which the sheriff is not to
+make known to him until he be taken under the gallows.”&#x2060;<a id="FNanchor_308_308" href="#Footnote_308_308" class="fnanchor">[308]</a>
+Executions were still public and were attended by vast
+crowds, drawn by the same morbid curiosity as is
+<span class="pagenum" id="Page_132">[Pg 132]</span>exhibited by their descendants who feast on the published
+details of the so-called private executions.&#x2060;<a id="FNanchor_309_309" href="#Footnote_309_309" class="fnanchor">[309]</a>&#x2060;</p>
+
+<p>In 1790 a new constitution for the state was drafted
+and adopted by a convention called for that purpose.
+The old constitution had many defects and the newly
+adopted constitution of the United States offered a
+model which many were eager to imitate. In the new
+constitution the legislative, executive and judicial powers
+were distinguished and defined according to the now
+classic American method, and the state was provided
+with a governor and a senate as well as an assembly.
+In remodeling the judiciary, the subject with which we
+are concerned, an earnest but unsuccessful effort was
+made to establish a court of chancery. The principal
+changes in the judiciary were embodied in the following
+clauses of Article V relating to the judiciary:&#x2060;<a id="FNanchor_310_310" href="#Footnote_310_310" class="fnanchor">[310]</a>&#x2060;—</p>
+
+<blockquote>
+<p>“Sec. 2. The judges of the supreme court, and of the several
+courts of common pleas, shall hold their offices during good
+behaviour: But for any reasonable cause, which shall not be
+sufficient ground for impeachment, the governor may remove
+any of them, on the address of two-thirds of each branch of the
+legislature. The judges of the supreme court, and the presidents
+of the several courts of common pleas shall, at stated times,
+receive, for their services, an adequate compensation, to be
+fixed by law; which shall not be diminished during their continuance
+<span class="pagenum" id="Page_133">[Pg 133]</span>in office; but they shall receive no fees or perquisites
+of office, nor hold any other office of profit under this commonwealth.</p>
+
+<p>“Sec. 3. The jurisdiction of the supreme court shall extend over
+the state; and the judges thereof shall, by virtue of their offices,
+be justices of oyer and terminer and general gaol delivery in the
+several counties.</p>
+
+<p>“Sec. 4. Until it shall be otherwise directed by law, the several
+courts of common pleas shall be established in the following
+manner: The governor shall appoint in each county, not fewer
+than three, not more than four judges, who, during their continuance
+in office, shall reside in such county: The state shall
+be, by law, divided into circuits, none of which shall include
+more than six, nor fewer than three counties. A president shall
+be appointed of the courts in each circuit, who, during his continuance
+in office, shall reside therein. The president and judges,
+any two of whom shall be a quorum, shall compose the respective
+courts of common pleas.</p>
+
+<p>“Sec. 5. The judges of the court of common pleas in each county
+shall, by virtue of their offices, be justices of oyer and terminer
+and general gaol delivery, for the trial of capital and other
+offenders therein; and two of the said judges, the president
+being one, shall be a quorum; but they shall not hold a court of
+oyer and terminer or gaol delivery in any county, when the
+judges of the supreme court, or any of them, shall be sitting in
+the same county. The party accused, as well as the commonwealth,
+may, under such regulations as shall be prescribed by
+law, remove the indictment and proceedings, or a transcript
+thereof, into the supreme court.”</p>
+</blockquote>
+
+<p>The most important changes, as will readily be seen,
+were the restoration of life tenure to the judges and the
+grouping of the counties into circuits with a president
+for the common pleas courts therein, a measure rendered
+necessary by the growth of the state, particularly in the
+West. By the appointment of judges learned in the
+law to preside over the lower courts in the respective
+circuits some measure of relief was afforded to the
+supreme court, whose work was becoming increasingly
+arduous.</p>
+
+<p><span class="pagenum" id="Page_134">[Pg 134]</span></p>
+
+<p>By the Act of April 13, 1791,&#x2060;<a id="FNanchor_311_311" href="#Footnote_311_311" class="fnanchor">[311]</a> the courts were established
+in conformity with the new constitution. The
+supreme court was required to hold three terms a year
+and courts of <i>nisi prius</i> in the intervals. The state was
+divided into five circuits or districts (increased in 1806
+to ten), each comprising a group of counties, and for
+each district a president judge learned in the law was
+appointed by the governor who, with not less than
+three, or more than four other persons, commissioned as
+judges for each of the counties in the circuit, formed
+for such counties, respectively, the courts of common
+pleas, oyer and terminer, quarter sessions and orphans’
+court. The president and any two of the judges, with
+the register of wills, comprised the register’s court.</p>
+
+<p>In cases involving more than four hundred dollars, a
+writ of error lay from the supreme court and the register’s
+court to the high court of errors and appeals, which
+was also remodeled, and, under this act, comprised the
+judges of the supreme court and the presidents of the
+common pleas, with three other persons of known legal
+ability commissioned in the same manner as the judges
+of the supreme court. It was further provided that such
+judges as should have given judgment below should be
+excluded from sitting on the hearing of that cause on
+appeal. The high court of errors and appeals sat once
+a year in Philadelphia. On the organization of this
+court Benjamin Chew, the former provincial chief justice,
+was named as an extra member and was made president
+of the court, the other extra places not being
+filled.</p>
+
+<p>By another act of the same date the salaries of the
+judges were fixed as follows: Chief justice of the supreme
+court £1000, associate justices and president judge of
+first district £600, presidents of other districts £500.&#x2060;<a id="FNanchor_312_312" href="#Footnote_312_312" class="fnanchor">[312]</a>
+<span class="pagenum" id="Page_135">[Pg 135]</span>When it is remembered that these are not pounds
+sterling, but Pennsylvania currency, the modesty of
+the salaries is but too evident. Thirty shillings a day
+were allowed to each justice of the supreme court for
+traveling expenses when on circuit. In 1796 the salaries
+of the associate justices and the president of the first
+district were raised $400 and of the other presidents
+$266.67. At the time of the Constitutional Convention
+of 1837, the salary of the chief justice of the supreme
+court was $2666 and of the associate justices $2000 each,
+with an allowance for mileage and expenses on circuit.
+The judges of the district courts were paid $2000 each,
+as well as the judges of the common pleas for the first
+judicial district. In the other districts the president
+judges of the common pleas received $1600 and the
+associates $140 with mileage.&#x2060;<a id="FNanchor_313_313" href="#Footnote_313_313" class="fnanchor">[313]</a>&#x2060;</p>
+
+<p>In 1799, further changes were made in the jurisdiction
+of the courts, which for some time were the subject of
+constant legislative experiments. As the population
+grew, the impracticability of keeping up the system of
+<i>nisi prius</i> sessions of the supreme court became more
+and more obvious, while to the suitors and the bar, the
+hardship and expense of crossing the Alleghenies to
+attend a session of the court <i>in banc</i>, at Philadelphia,
+in the days before railroads, amounted to a denial of
+justice. But the bar was not yet prepared to give up its
+inherited fondness for itinerant justice, and the courts
+of common pleas of the newly established judicial districts
+had not been long enough in operation to be
+recognized as the true solution of the problem. The
+Act of March 20, 1799,&#x2060;<a id="FNanchor_314_314" href="#Footnote_314_314" class="fnanchor">[314]</a> therefore provided that
+instead of <i>nisi prius</i> courts, there should be held, except
+in the county of Philadelphia, circuit courts which were
+<span class="pagenum" id="Page_136">[Pg 136]</span>of the same nature as the court of <i>nisi prius</i> except that
+the judges holding the same were empowered to give
+judgment, pass decrees and award execution in as ample
+a manner on circuit as when sitting <i>in banc</i>. The right
+of appeal to the supreme court was preserved under
+special conditions.</p>
+
+<p>Although not required by the act by which these
+courts were constituted, it continued to be the practice,
+as before, for two judges to ride on circuit and sit together
+at trials in these courts. This was unnecessary, as the
+time of the judges could have been better distributed by
+sitting singly on jury trials, while trials conducted by
+two judges were subject to the same inconvenience as
+when conducted by the four judges sitting <i>in banc</i>,
+which, as Judge Brackenridge has remarked,&#x2060;<a id="FNanchor_315_315" href="#Footnote_315_315" class="fnanchor">[315]</a> caused
+great delay, as documents offered in evidence had to be
+read by all the judges in turn and a note taken by each.</p>
+
+<p>Trials <i>in banc</i> were abolished in Philadelphia by the
+Act of February 24, 1806,&#x2060;<a id="FNanchor_316_316" href="#Footnote_316_316" class="fnanchor">[316]</a> which also established a
+western district for the supreme court, which was required
+to hold its September term at Pittsburg. It
+was also provided that in the future circuit courts
+should be held by one judge and that the judges should
+alternate so that the same judge would not sit oftener
+than once in the same county in every fourth successive
+term. The act also abolished the high court of errors
+and appeals and vested its powers in the supreme court.
+As respects the common pleas, the state was divided
+into ten judicial districts and a president judge appointed
+in each of the new districts. It was further provided
+that whenever required by either party or counsel
+the judge should reduce his opinion to writing with his
+reasons and file the same of record in the cause.&#x2060;<a id="FNanchor_317_317" href="#Footnote_317_317" class="fnanchor">[317]</a>&#x2060;</p>
+
+<p><span class="pagenum" id="Page_137">[Pg 137]</span></p>
+
+<p>By an act of April 10, 1807,&#x2060;<a id="FNanchor_318_318" href="#Footnote_318_318" class="fnanchor">[318]</a> a middle district was
+established for the supreme court, the term to be held at
+Sunbury, and again in 1809&#x2060;<a id="FNanchor_319_319" href="#Footnote_319_319" class="fnanchor">[319]</a> two additional districts
+were established, the Lancaster district, and the southern
+to be held at Chambersburg. By this act the circuit
+courts were abolished, and the cases undetermined
+therein relegated to the common pleas or, where appeals
+were pending, to the supreme court. The number of
+judges of the supreme court was reduced from four to
+three. By another supplement to the Act of 1806,
+enacted in 1810,&#x2060;<a id="FNanchor_320_320" href="#Footnote_320_320" class="fnanchor">[320]</a> the original jurisdiction of the supreme
+court was restored in Philadelphia County in cases
+involving over $500, the judges being required to hold
+<i>nisi prius</i> courts there thirty-three weeks in the year.</p>
+
+<p>To dispose of the accumulation of business a new
+court called the district court was created for the city
+and county of Philadelphia, by the Act of March 30,
+1811,&#x2060;<a id="FNanchor_321_321" href="#Footnote_321_321" class="fnanchor">[321]</a> to consist of a president and two assistant judges
+with power to hear and determine all civil pleas and
+actions where the sum in controversy exceeded one
+hundred dollars. The act was experimental and limited
+to six years, but the court was such an unqualified
+success that it was continued, made permanent, and
+similar courts established later in Pittsburg and Lancaster.
+From the first this court absorbed the most
+important legal business of the county and acquired
+an “enduring reputation as a great law court for the
+trial of civil issues,”&#x2060;<a id="FNanchor_322_322" href="#Footnote_322_322" class="fnanchor">[322]</a> the greatest this commonwealth
+has ever seen; but the names of its most famous judges
+belong to a later period.</p>
+
+<p>No further experiments were tried with the supreme
+court until 1826, when an act was passed increasing the
+<span class="pagenum" id="Page_138">[Pg 138]</span>number of justices to five and restoring the circuit
+courts.&#x2060;<a id="FNanchor_323_323" href="#Footnote_323_323" class="fnanchor">[323]</a> The cup of that overworked body was now
+full. They were required to hear all cases of error and
+appeal sitting in six districts, to hold a court of <i>nisi
+prius</i> in Philadelphia, to go on circuit through the
+counties, beside exercising original jurisdiction in cases
+of <i>quo warranto</i> and <i>mandamus</i>. Relief came in the
+Act of April 14, 1834,&#x2060;<a id="FNanchor_324_324" href="#Footnote_324_324" class="fnanchor">[324]</a> passed on the recommendation
+of the commissioners appointed to revise the civil code.
+Circuit courts were finally abolished and the number of
+districts reduced to four (the eastern at Philadelphia,
+northern at Sunbury, middle at Harrisburg and western
+at Pittsburg); courts of <i>nisi prius</i> continued to be held
+twice a year in Philadelphia by a single justice for the
+trial of civil actions involving more than five hundred
+dollars, reviewable by the court <i>in banc</i> upon motions
+for new trial or in arrest of judgment.</p>
+
+<p>At the risk of being tedious we have briefly reviewed
+the many changes in the judiciary system between the
+Revolution and the revision of the civil code in 1834-36,
+touching on these acts in but a cursory manner
+without attempting to point out many important features
+which were incorporated into later legislation and
+became a permanent part of the system. The changes
+made were many of them experimental, some met with
+success, others were doomed to failure; they were forced
+by the extraordinary growth of the commonwealth in
+population and wealth and the increase in the amount
+and importance of the business of the courts. The
+law of real estate still had first place, land was the principal
+asset of the inhabitants, and the loose methods
+of the land office were an invitation to litigation, not to
+<span class="pagenum" id="Page_139">[Pg 139]</span>speak of the additional complications arising from
+Connecticut and Virginia titles. Ejectments innumerable
+occupied the attention of the courts. But commercial
+law was every day becoming more important,
+particularly in Philadelphia, then the first city in the
+country and for some years the nation’s capital. The
+legal profession enjoyed great prosperity during the
+early days of independence; recklessness and paper
+money inflation had increased private debts to an
+enormous extent and this, with the settlement of the
+loyalists’ estates, filled the dockets with more cases than
+could be tried. This naturally led to envy and jealousy
+of the bar, which in Massachusetts culminated in riots
+directed against the courts, an incident referred to in
+history as Shays’ rebellion.&#x2060;<a id="FNanchor_325_325" href="#Footnote_325_325" class="fnanchor">[325]</a>&#x2060;</p>
+
+<p>In Pennsylvania there was no open attack on the
+courts while McKean was chief justice, whose stern
+judicial deportment and inflexible courage were sufficient
+to awe the mob. No one could doubt his devotion to
+the cause of independence, but if a democrat in theory
+he was an aristocrat in bearing. David Paul Brown
+relates&#x2060;<a id="FNanchor_326_326" href="#Footnote_326_326" class="fnanchor">[326]</a> that “shortly after his appointment, a petition
+was presented to him directed to the Right Honorable
+Thomas McKean, Esq., lord chief justice of Pennsylvania,
+upon which he complacently observed—‘these
+are, perhaps, more titles than I can fairly lay claim to,
+but at all events the petitioner has erred on the right
+side.’” Court was, in his time, opened with great
+ceremony and form, and the chief justice held the
+attendants to a rigid observance of duty. There are
+several cases which illustrate this jealousy of the authority
+of the court, of which the famous libel case <i>Respublica</i>
+<span class="pagenum" id="Page_140">[Pg 140]</span>v. <i>Oswald</i>,&#x2060;<a id="FNanchor_327_327" href="#Footnote_327_327" class="fnanchor">[327]</a> may be taken as an example, as well as the
+following incident stated by Brown to have occurred
+in 1778. The chief justice had issued a warrant for the
+arrest of Colonel Robert L. Hooper, a deputy quartermaster,
+on a charge of libel. Colonel Hooper informed
+General Greene, who wrote to the chief justice stating
+that there was no one to fill the colonel’s place and
+requesting that he might be permitted to enter into a
+recognizance to appear at court later. The chief justice
+replied as follows:—</p>
+
+<blockquote>
+<p class="author">
+  “Yorktown, June 9th, 1778.
+</p>
+
+<p>“Sir:—I have just now received your favor of the 3d inst.,
+and am not a little surprised that the sheriff of Northampton
+county should have permitted Colonel Robert L. Hooper, after
+he was arrested by virtue of my precept, to wait upon <i>you</i> until
+he appeared before <i>me</i>.</p>
+
+<p>“You say, sir, ‘Colonel Hooper waited upon me to communicate
+his situation, and to know if the circumstances of the army
+would admit of his absence; but, as the army is just upon the
+wing, and part of it will, in all probability, march through his
+district, I could not, without great necessity, consent to his
+being absent, as there is no other person that can give the
+necessary aid upon this occasion.’</p>
+
+<p>“I do not think, sir, that the absence, sickness, or even death
+of Mr. Hooper could be attended with such a consequence, that
+no other person could be found who could give the necessary
+aid upon this occasion; but what attracts my attention the
+most, is your observation that <i>you</i> cannot, without great necessity
+consent to his being absent. As to that, sir, I shall not <i>ask</i>
+your consent, nor that of any other person, in or out of the army,
+whether <i>my precept</i> shall be obeyed or not in Pennsylvania.</p>
+
+<p>“The warrant for the arrest of Mr. Hooper being special, no other
+magistrate can take cognizance thereof but myself. The mode
+you propose, of giving bail, cannot be adopted, for many reasons.</p>
+
+<p>“I should be very sorry to find that the execution of criminal
+law should impede the operations of the army, in any instance;
+but much more so to find the latter impede the former.</p>
+
+<p class="author">
+  “I am, sir, with much respect,<br>
+  “Your most obedient, humble servant,<br>
+  Thomas M’Kean.”&#x2060;<a id="FNanchor_328_328" href="#Footnote_328_328" class="fnanchor">[328]</a>
+</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_141">[Pg 141]</span></p>
+
+<p>In 1799 McKean was elected governor and was succeeded
+on the bench by Judge Shippen, then seventy
+years old, who had studied under Tench Francis and at
+the Middle Temple. Chief Justice Shippen was a patient,
+practical and discriminating lawyer and it was from his
+notes that the first reported cases in Pennsylvania were
+taken. He indeed formed a connecting link between
+the courts of the province and those of the commonwealth,
+having sat on the bench during both periods.
+This very fact, which caused him to be venerated by
+the bar, was calculated to increase the hatred with
+which he and his colleagues, Yeates and Smith, were
+regarded by the radical politicians. The three judges
+from their wealth and social connections were regarded
+as representatives of the old aristocracy, while the defeat
+of the Federalist party, in 1799, left those who had
+taken office in its day of power exposed to all the dangers
+of political revenge. The tenure of the judiciary was
+for life and it filled the earnest partisans of the new
+democracy with rage to see all the places on the bench
+filled with those whose sentiments were scarcely less
+detested than those of the Tories.</p>
+
+<p>The first to be marked for attack was Alexander
+Addison, president judge of the fifth judicial district,
+which, when formed in 1791, comprised Westmoreland,
+Fayette, Washington and Allegheny Counties, all of
+the western part of the state. Addison, a Scotchman
+by birth, had been educated for the ministry, but had
+changed to the law, and while practicing in the western
+counties had served as a member of the convention that
+framed the Constitution of 1790. An aggressive Federalist,
+his views were out of harmony with those of the
+greater portion of the local population, while his strong
+opposition to the Whiskey Insurrection did not increase
+his popularity with the rough inhabitants of that wild
+region. It was Addison’s habit to deliver political sermons
+<span class="pagenum" id="Page_142">[Pg 142]</span>from the bench under the guise of charges to the
+grand jury. These interminable discourses were published
+and greatly admired by the Federalists, but
+detested by the Democrats, who, in attending court as
+parties or jurors, were obliged to listen respectfully to
+the heavy campaign literature of their opponents.&#x2060;<a id="FNanchor_329_329" href="#Footnote_329_329" class="fnanchor">[329]</a>
+Judge Addison was particularly fond of dwelling upon
+the enormities of the French revolutionists as a warning
+to good citizens against those admirers of that revolution
+who were prominent among the Anti-Federalists. Aside
+from these foibles, Addison was an able, upright and
+energetic judge, and had toiled ceaselessly to bring
+order out of confusion in the western district. His
+learning was regarded with respect by the bar and his
+firmness had won the confidence of the better class of
+citizens. When the party of Jefferson triumphed in
+1799, Addison was the first victim of their revenge. His
+leading enemy was, like himself, a theologian who had
+turned to the law, had built up an extensive practice
+and had just been appointed to the supreme court,
+Hugh Henry Brackenridge, of whom more hereafter.</p>
+
+<p>Instigated by Brackenridge, John B. C. Lucas, a
+justice of the peace, unlearned in the law, at the court
+of quarter sessions of Allegheny County, attempted
+to address the grand jury and was prevented by Judge
+Addison on the ground that in such matters the president
+judge was the mouthpiece of the court. Lucas
+brought the matter before the supreme court on a motion
+for leave to file an information against Addison for
+misconduct on the bench, but the court declined to
+interfere, although of opinion that the associate judges
+had a right to express their opinions.&#x2060;<a id="FNanchor_330_330" href="#Footnote_330_330" class="fnanchor">[330]</a> Lucas again
+attempted, at the court held June 22, 1801, to address
+<span class="pagenum" id="Page_143">[Pg 143]</span>the grand jury and was again prevented by Judge Addison
+with the concurrence of another colleague. The
+paper Lucas intended to read had nothing to do with
+the duties of the jury, but contained some trifling
+remarks of a semi-political nature, composed perhaps
+by Brackenridge.&#x2060;<a id="FNanchor_331_331" href="#Footnote_331_331" class="fnanchor">[331]</a> For this act Addison was
+impeached by the house of representatives on January
+26, 1803, convicted by the senate, by a vote of
+twenty to four, and sentenced to be removed from office
+and forever disqualified from holding the office of judge
+in the commonwealth. Judge Agnew has described this
+trial as “the most flagitious ever urged on by vicious
+hate and obnoxious partisanship,”&#x2060;<a id="FNanchor_332_332" href="#Footnote_332_332" class="fnanchor">[332]</a> and the conduct
+of the legislature in this matter has met with general
+reprobation. Under the circumstances Addison had
+acted perhaps injudiciously, but his purpose was to
+preserve the dignity of the court and the punishment
+he received was unreasonably harsh.</p>
+
+<p>Having tasted blood, the legislature next turned its
+attention to the supreme court. In February, 1803, a
+petition was presented to the house of representatives
+by one Thomas Passmore, complaining that he had
+been arbitrarily fined and imprisoned for a constructive
+contempt of court in violation of the bill of rights and
+praying for the impeachment of the judges who had
+taken part in the proceedings. The matter went over
+to the following session when it was referred to a committee
+which recommended the impeachment of Chief
+Justice Shippen and Justices Yeates and Smith, and
+accordingly, articles of impeachment, adopted on March
+23, 1804, were presented to the senate. On January 5,
+1805, at Lancaster, then the capital of the state, the
+<span class="pagenum" id="Page_144">[Pg 144]</span>trial began. The cause of this impeachment was a
+proceeding in the supreme court, which will be found
+reported in the case of <i>Bayard</i> v. <i>Passmore</i>.&#x2060;<a id="FNanchor_333_333" href="#Footnote_333_333" class="fnanchor">[333]</a> The brig
+<i>Minerva</i> belonging to Passmore, which had been insured
+in 1801 by certain underwriters including the firm of
+Petit and Bayard, sprang a-leak and put into New
+Brunswick where Passmore abandoned her to the
+underwriters. Some of the latter refused to pay on the
+ground that the vessel was unseaworthy when she
+sailed. An amicable action was entered and the matter
+referred to arbitrators, who made an award in favor
+of the plaintiff. Judgment was entered on the award
+and a <i>fi. fa.</i> issued, but, on motion, the execution was
+set aside, and a rule granted to set aside the award, on
+exceptions filed by the defendant. These exceptions
+were based partly on irregularities in the proceedings
+and partly on the merits of the case. While the exceptions
+were pending, Passmore, who seems to have been
+exasperated at the delay, posted on a board in the
+exchange room of the city tavern the following notice:—</p>
+
+<blockquote>
+<p>“The subscriber publicly declares, that Petit and Bayard, of
+this city, merchants and quibbling underwriters, has basely
+kept from me the said subscriber for nine months about 500
+dollars, and that Andrew Bayard, the partner of Andrew Petit,
+did on the 3d or 4th inst. go before John Inskeep, esq., aldermen,
+and swore to that which is not true, by which the said Bayard
+and Petit is enabled to keep the subscriber out of his money
+for about three months longer, and the said Bayard has meanly
+attempted to prevent others from paying the subscriber about
+2500 dollars but in this mean and dirty action he was disappointed
+in; I therefore do publickly declare, that Andrew Bayard is
+a liar, a rascal and a coward, and do offer two and a half per
+cent. to any good person or persons to insure the solvency of
+the said Bayard and Petit for about four months from this date.</p>
+
+<p>“Philadelphia, September 8, 1802.</p>
+
+<p class="author">
+  “Thomas Passmore.”
+</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_145">[Pg 145]</span></p>
+
+<p>Thereupon Mr. Dallas, the attorney for Bayard and
+Petit, moved for an attachment against Passmore for
+contempt of court, which was granted and interrogatories
+filed, which Passmore answered. On the issuing of the
+attachment the court expressed its opinion that an
+apology was due to the defendants. The answer of
+Passmore disclaimed any intention to treat the court
+with contempt and admitted that the paper had been
+posted in a moment of irritation but declined to make
+an apology to the defendants. It was argued that there
+was no suit pending when the notice was posted, the
+proceedings having closed with the award of the arbitrators,
+but the court held otherwise, being of the opinion
+that a contempt had been committed. As Passmore
+declined to make any atonement to the injured individuals
+which would influence the court to leniency, he
+was sentenced to pay a fine of fifty dollars and suffer
+imprisonment for thirty days. This sentence was
+carried out.</p>
+
+<p>As the law then stood Passmore was clearly guilty,
+and even if not, the sentence was given after a patient
+hearing and full argument and amounted at most to an
+error of law, for which Passmore had a remedy by appeal
+to the high court of errors and appeals, a point upon
+which he was advised by William Lewis, one of the
+leaders of the bar. But this remedy was not pursued.
+Passmore paid his fine, served his sentence and sought
+revenge by the aid of a partisan assembly.</p>
+
+<p>When the time of the trial arrived public feeling had
+turned in favor of the judges, the better class of newspapers
+took their side and the bar rallied to their defense;
+in fact the assembly found it impossible to procure
+eminent local counsel to assist them in their odious task
+and Cæsar A. Rodney of Delaware, was retained for the
+prosecution. The defendants were represented by Jared
+Ingersoll and Alexander J. Dallas.</p>
+
+<p><span class="pagenum" id="Page_146">[Pg 146]</span></p>
+
+<p>The trial began on the eighth of January, 1805, and
+lasted until the twenty-eighth of the month.&#x2060;<a id="FNanchor_334_334" href="#Footnote_334_334" class="fnanchor">[334]</a> Many
+witnesses were called and all the litigation which gave
+rise to Passmore’s commitment was minutely reviewed.
+In summing up Mr. Boileau, one of the managers for the
+house, argued that Passmore had not been punished
+because he had committed a contempt of court but
+because he would not apologize to Bayard, and declared
+that the court had no authority to direct one individual
+to apologize to another. His address was a violent
+attack on English precedents and the legal profession
+in general, with the usual platitudes on the rights of
+man and the principles of the Revolution. Mr. Rodney’s
+speech was more dignified and it is apparent that
+his task was uncongenial. For the defense the speeches
+of Dallas and Ingersoll were brilliant and exhaustive,
+replete with reported precedents as well as manuscript
+records, which their industry had discovered and which
+throw much light on the early practice of the courts
+in attachments. That any doubt could be felt as to the
+issue of this trial is a matter for wonder, and that
+thirteen out of twenty-four senators voted for conviction
+is a lasting disgrace to their names. Fortunately,
+the prosecutors failed by three votes to obtain a two-thirds
+vote, and the judges were declared acquitted.</p>
+
+<p>One incident of the trial deserves mention. Judge
+Brackenridge was not on the bench when the motion
+for the attachment of Passmore was made, and at the
+time of the argument was returning from a special court
+in Northumberland County, but was present when sentence
+was passed. He was not included in the impeachment,
+but at once wrote to the house of representatives
+stating that he concurred in the opinion of his brethren,
+and while not courting prosecution, could see no distinction
+<span class="pagenum" id="Page_147">[Pg 147]</span>in his case and asked to be included in the impeachment.
+The house sent up an address to Governor McKean
+for his removal, which was refused, and when a
+committee urged that the term in the constitution “may
+remove” meant “must remove,” he replied that he would
+have them know that “may” sometimes meant “won’t.”&#x2060;<a id="FNanchor_335_335" href="#Footnote_335_335" class="fnanchor">[335]</a>&#x2060;</p>
+
+<p>This offer to stand impeachment with his colleagues
+was the most courageous act in the public career of the
+most eccentric genius that ever sat on our supreme bench,
+about whom a few words may be interesting. Hugh
+Henry Brackenridge, born in Scotland, of poor parents,
+was brought as a child to this country. By teaching
+school he saved enough to attend Princeton College,
+where he became a tutor, studied divinity and later
+served as a chaplain in the Revolutionary army. In
+1778 he commenced the study of law with Samuel Chase,
+afterwards a justice of the supreme court of the United
+States, and, locating at Pittsburg, soon became a leader
+of the western bar. During the whiskey insurrection
+Brackenridge’s conduct was not free from suspicion.
+His opinions were opposed to the excise tax, and, if he
+did not join the insurgents, he did not take a very firm
+stand against them. He was marked for arrest by
+Hamilton, but was saved, it is said, by James Ross,
+the rival bar leader of the western district, afterwards
+United States senator. At the bar Brackenridge was
+noted for his shrewdness, wit and eloquence, and was a
+writer of considerable talent; “Modern Chivalry,” a
+satirical work from his pen, has gone through several
+editions. On the bench he did not display the same
+power as at the bar; his opinions were racy, but not
+profound and failed to do justice to his real learning; an
+untiring student, his dislike of convention led him at
+times into a show of flippancy. The enmity between
+<span class="pagenum" id="Page_148">[Pg 148]</span>Judges Yeates and Brackenridge was a curious incident
+of the times. It probably dated from the time of the
+whiskey insurrection when Yeates served as one of the
+commissioners to deal with the insurgents. No two
+men were ever more dissimilar in appearance, habits
+and opinions: Judge Yeates a tall, florid, portly man,
+rich, aristocratic and fond of society; Brackenridge dark
+and sallow, of moderate means, a bookworm and recluse,
+and absolutely indifferent to his appearance. An examination
+of the reports will show that the associates
+rarely agreed, and the position of Chief Justice Tilghman
+must have been peculiarly difficult. Indeed the eccentricities
+of Brackenridge, if half the traditions are true,
+would almost amount to insanity, but it is difficult at
+this day to say whether his want of judicial decorum
+arose from this cause or from his utter contempt for
+social conventions. Among the odd stories told of him
+is one narrated by David Paul Brown:&#x2060;<a id="FNanchor_336_336" href="#Footnote_336_336" class="fnanchor">[336]</a>&#x2060;—</p>
+
+<blockquote>
+<p>“During the time, as has been said, the circuits existed, a
+friend of the judge, riding in his carriage in the western part
+of the state, while a prodigious storm of wind and rain prevailed,
+saw a figure approaching, which resembled, what might be conceived
+of Don Quixote, in one of his wildest moods; a man,
+with nothing on but his hat and boots, mounted upon a tall,
+raw-boned Rosenant, and riding deliberately through the
+tempest. On nearer approach he discovered it to be Judge
+Brackenridge, and upon inquiring what was the cause of the
+strange phenomenon, Brackenridge informed him, that seeing
+the storm coming on, he had stripped himself and put the
+clothes under the saddle; ‘because,’ said he, ‘though I am a
+judge, I have but one suit, and the storm, you know, would
+spoil the clothes; but it couldn’t spoil me.’”</p>
+</blockquote>
+
+<p>The interminable criticism of and complaints against
+the judiciary during the early years of the nineteenth
+century were in a large measure due to the fact that
+<span class="pagenum" id="Page_149">[Pg 149]</span>judges held office for life. The same processes were
+to be seen at work in the other states, culminating in the
+abolition of life tenure and the substitution of a term of
+office varying, under the different constitutions, from
+one to twenty years. In Pennsylvania this result was
+accomplished by one of the constitutional amendments
+adopted in 1838, by which the terms of the supreme
+court judges were fixed at fifteen years and those of the
+common pleas judges at ten. This change was not
+adopted without vigorous opposition on the part of the
+leaders of the bar&#x2060;<a id="FNanchor_337_337" href="#Footnote_337_337" class="fnanchor">[337]</a> and is a subject upon which opinions
+differ today. We may suspect that, however loudly
+the political leaders who advocated the change may
+have declaimed against the dangers of caste prejudice,
+favoritism and despotic conduct, they were really looking
+at the offices with envious eyes and plotting to divert
+the meagre salaries to partisan purposes. This was the
+period when American political life, in its outward
+aspects at least, reached its lowest depths of degradation,
+and that the judiciary should suffer thereby was
+inevitable. Americans had yet to learn that democracy
+was not synonymous with vulgarity and provincialism,
+that the American Revolution had not severed us from
+the traditions of our race, and that the French Revolution
+had not emancipated us from the rules of social
+decorum. The American “Sans Culotte” was an unlovely
+type, an iconoclast and a bitter partisan, and
+that he should have done his best to add the judiciary
+to the spoils system is not the least count in his indictment.</p>
+
+<p>The citation of English decisions in the opinions of the
+courts greatly exasperated the radical element. What
+were these precedents but the rags of despotism, who
+were the judges that had rendered them but tyrants,
+<span class="pagenum" id="Page_150">[Pg 150]</span>sycophants, oppressors of the people and enemies of
+liberty! There was danger that our courts might be
+contaminated by the source from which they drew their
+inspiration, so an act was passed March 19, 1810,&#x2060;<a id="FNanchor_338_338" href="#Footnote_338_338" class="fnanchor">[338]</a> which
+provided that it should not be lawful to read or quote
+in any court of this commonwealth, any British precedent
+or adjudication which had been given or made
+subsequent to the fourth of July, 1776, except those
+relating to maritime law or the law of nations. Upon
+this act Judge Brackenridge wittily remarked:&#x2060;<a id="FNanchor_339_339" href="#Footnote_339_339" class="fnanchor">[339]</a>&#x2060;—</p>
+
+<blockquote>
+<p>“Were it not that I should be unwilling to enter into a contest
+with the legislature, where public opinion, or prejudice is on
+their side, I might be disposed to question the constitutionality
+of this act. It would seem to be abridging the right of the
+judiciary, to hear all reason on a question before them.</p>
+
+<div class="poetry-container">
+  <div class="poetry">
+    <div class="stanza">
+      <div class="verse indent9">——What is’t to us</div>
+      <div class="verse indent0">Though it were said by Trismegistus?</div>
+    </div>
+  </div>
+</div>
+
+<p>“But if we are to hear the saying of a lord, years, or centuries
+ago; and before the 4th July, 1776, why not what another lord
+has said since, to explain or contradict the adjudication? The
+fact is, early decisions were, many of them narrow; and why
+drink out of the neck of a gourd, rather than out of an open
+goblet; more especially if the fountain was muddy, out of which
+the gourd was filled; the stream of law in that country, now
+runs more clear in particular cases than centuries ago; and it
+will always remain so, the law being an improvable science.”</p>
+</blockquote>
+
+<p>This act was repealed in 1836.&#x2060;<a id="FNanchor_340_340" href="#Footnote_340_340" class="fnanchor">[340]</a>&#x2060;</p>
+
+<hr class="tb">
+
+<p>It may be said, however, for those who railed against
+the courts, that many of the lay associate judges set
+anything but a good example of judicial dignity, and
+quarreled even to the point of coming to blows and dragging
+<span class="pagenum" id="Page_151">[Pg 151]</span>each other from the bench.&#x2060;<a id="FNanchor_341_341" href="#Footnote_341_341" class="fnanchor">[341]</a> The law judges, who
+rode the circuits, manfully attempted to preserve in the
+log court houses of remote counties the dignity of Westminster
+Hall, and added to their unpopularity with the
+uncouth inhabitants by instructing them in manners as
+well as in the law. In his “Recollections of the West,”&#x2060;<a id="FNanchor_342_342" href="#Footnote_342_342" class="fnanchor">[342]</a>
+Judge Brackenridge’s son, himself also a judge, gives an
+amusing picture of the first court held in Butler County.
+The court house was a log cabin into which bench, bar
+and the entire village population were crowded. The
+audience hung from the rafters like bats, and when these
+were cleared away by the sheriff, a big Irishman objected
+to being removed. The Court sentenced him to an
+hour’s imprisonment for contempt, whereupon the sheriff
+was greatly puzzled as to what he should do with his
+prisoner, as there was no jail. It was finally decided
+that he should be incarcerated in a pig pen, emptied to
+prepare a feast for the court, but the prisoner was too
+much for his captors and made his escape into the brush.</p>
+
+<p>Rapid as was the tide of immigration into western
+Pennsylvania it was only by slow degrees that a well
+organized system of local government was introduced.
+Westmoreland County, comprising most of the western
+district, was established in 1773 with a county seat at
+Hannastown, but the confusion incident to the Revolution
+and the boundary dispute between Pennsylvania
+and Virginia retarded the growth of local institutions.
+Court was held at the house of Robert Hanna where
+petty offenders were sentenced to the pillory, stocks and
+whipping post, erected before the log jail. The first
+person, it is said, convicted of murder and hanged west
+of the Alleghenies was an Indian of the Delaware tribe
+<span class="pagenum" id="Page_152">[Pg 152]</span>named Mamachatoga, who in 1785, while drunk, killed
+a white man near Pittsburg. At the trial at Hannastown
+he was defended by Brackenridge, but Chief
+Justice McKean who presided held that drunkenness was
+no excuse and the defendant suffered the extreme
+penalty of the law.&#x2060;<a id="FNanchor_343_343" href="#Footnote_343_343" class="fnanchor">[343]</a> In the early days when the fifth
+judicial district embraced practically all of western
+Pennsylvania litigation was slow, owing to the long
+intervals between the terms of court and the difficulty
+in procuring the attendance of witnesses. The law
+judge rode the circuit from county to county, attended
+or followed by the members of the bar, who, during the
+sessions of court, generally put up at one tavern and
+made a lively time of it.</p>
+
+<p>During the early years of the nineteenth century the
+supreme court was presided over by chief justices of
+reputation equal to any, and superior to most of those
+who have sat in American state courts, Tilghman and
+Gibson. William Tilghman came of a family of distinguished
+lawyers; his father was secretary of the provincial
+land office, and his maternal grandfather, Tench
+Francis, the bar leader of the provincial court of his
+time. His first judicial appointment was by President
+Adams on March 3, 1801, to the circuit court of the
+United States for this circuit; hence he was one of the
+so-called “midnight judges,” commissioned a few hours
+before Jefferson took office, and legislated out of office
+in the following year. In 1806 he was appointed chief
+justice by Governor McKean on the recommendation
+of his cousin, Edward Tilghman, who declined the office.
+His appointment gave offense to some of the minor
+Democrats, but the governor, although a leading member
+of that party, having once made up his mind on the
+subject, was not to be moved.</p>
+
+<p><span class="pagenum" id="Page_153">[Pg 153]</span></p>
+
+<blockquote>
+<p>“A committee, consisting of Duane, Lieper, and others, were
+appointed by a town meeting to wait upon him, to inform him
+that the democracy of Philadelphia were utterly opposed to the
+nomination of William Tilghman as chief justice of Pennsylvania.
+The committee were introduced into the executive apartments,
+and the governor received them in his civil but reserved and
+aristocratic manner, treating them simply as his constitutents;
+when, however, they announced themselves as the representatives
+from the democratic party—the sovereign people—he
+bowed most profoundly, and inquired of them what the great
+democracy of Philadelphia required of him. They proceeded,
+and stated the purposes of their delegation, and in pretty plain
+terms gave him to understand that the appointment of Mr.
+Tilghman would never meet the approval of the democratic
+party. ‘Indeed,’ said the governor, ‘inform your constitutents
+that I bow with submission to the will of the great democracy
+of Philadelphia; but by G—d, William Tilghman <i>shall be</i> chief
+justice of Pennsylvania.’”&#x2060;<a id="FNanchor_344_344" href="#Footnote_344_344" class="fnanchor">[344]</a>&#x2060;</p>
+</blockquote>
+
+<p>The confidence of the governor was justified by the
+long and distinguished career of his appointee, whose
+judicial decisions are marked by a comprehensive knowledge
+of the common law and an unusual clearness of
+diction. “Other Judges,” says Binney, “may have had
+more learning under their immediate command,—none
+have had their learning under better discipline, or in a
+condition more effective for the duty upon which it was
+employed.”&#x2060;<a id="FNanchor_345_345" href="#Footnote_345_345" class="fnanchor">[345]</a>&#x2060;</p>
+
+<p>An adequate life of his great successor, John Bannister
+Gibson, has still to be written.&#x2060;<a id="FNanchor_346_346" href="#Footnote_346_346" class="fnanchor">[346]</a> Appointed to the common
+pleas in 1812 and to the supreme court in 1816,
+of which he became chief justice in 1827, his reputation
+increased with years, and common consent assigns to
+<span class="pagenum" id="Page_154">[Pg 154]</span>him the first place in our judicial history. “Abroad,”
+said Chief Justice Black, “he has for many years been
+thought the great glory of his native state.” Chief
+Justice Gibson has been credited with an abhorrence of
+the petty and prosaic details and drudgery of the law,
+qualities that would have militated against a successful
+career as an advocate, but given a problem, no judge
+could grasp it more firmly or dispose of it more readily,
+and he was master of a style which in vigor of expression
+and condensation of thought is unrivalled. “When he
+brought the lens of his mind to a focus, its power was
+resistless.” For one act in his career he was subjected
+to some criticism. The constitutional amendments of
+1838 substituted a term of fifteen years for life appointment
+and the commissions of the judges on the bench
+were to expire at intervals of three years. At the suggestion
+of his colleagues, the chief justice resigned in
+1838, and was immediately reappointed, and thus,
+instead of holding for the shortest term, enjoyed the
+longest. The necessity for this action was no doubt
+humiliating to him, who could hardly have resumed
+practice at that period of his life, but on the other hand
+his loss to the state would, at that time of transition,
+have been irreparable, and when his term expired in
+1851, he was re-elected almost without opposition.</p>
+
+<p>If space permitted, it would be proper to say something
+of the bar at this time, which was particularly
+distinguished.</p>
+
+<p>During the greater part of this period Philadelphia was
+the leading city of the nation, both in population and
+wealth, and the achievements of the local bar attracted
+national attention.&#x2060;<a id="FNanchor_347_347" href="#Footnote_347_347" class="fnanchor">[347]</a> Such leaders as William Lewis,
+<span class="pagenum" id="Page_155">[Pg 155]</span>Edward Tilghman, Jared Ingersoll, William Rawle,
+William Bradford, Alexander James Dallas, and Horace
+Binney, both in private practice and public office, exhibited
+talents that were admired and esteemed by their
+contemporaries and served as models for their students
+and successors, while in the West Albert Gallatin, James
+Ross and H. H. Brackenridge attained high distinction.
+Indeed, so much has been said about the good old times,
+that we are often in danger of minimizing professional
+progress, which, in the nineteenth century, has been in
+the nature of a world-wide forced march to keep pace
+with the flying wheels of Father Time’s steam and electric
+chariots.</p>
+
+<p>The first bar after the Revolution was a very remarkable
+body; most of its leaders had been educated at the
+Inns of Court or in offices steeped in black-letter traditions.
+Devoted to the common law, they endeavored to
+inspire their pupils with the same spirit. Deprived by
+legislative shortsightedness of a court of equity they
+applied to the problem of working out equitable relief
+through common law forms the same sort of ingenuity
+that their ancestors had exercised in the invention of
+fictions to overcome the inelasticity of common law
+actions. Masters of their profession, they were jealous
+of all innovation, and the less important members of
+the bar took their cue from the leaders, in blissful ignorance
+of the issues involved. As a result the agitation
+for codification that subsequently swept over the country
+was but faintly echoed in Pennsylvania.</p>
+
+<p>In pursuance of resolutions adopted by the legislature
+in 1830 a commission was appointed by the governor
+consisting of William Rawle, T. I. Wharton and Joel
+Jones, to revise, collate and digest all such public acts
+and statutes of the civil code of the state and all such
+British statutes in force in the state as were general and
+permanent in their nature. The commission made a
+<span class="pagenum" id="Page_156">[Pg 156]</span>series of reports between 1831 and 1836 with drafts of
+proposed acts, most of which were, with some modifications,
+enacted into law.&#x2060;<a id="FNanchor_348_348" href="#Footnote_348_348" class="fnanchor">[348]</a> That the members did their
+work thoroughly and well is proved by the fact that the
+acts passed on their recommendation are the basis of
+the present jurisdiction of and practice in the courts of
+the commonwealth. Their work, however, consisted
+mainly in repairing, restoring and strengthening the
+existing structure, a statutory system supplemented
+by so much of the common law as it had been found
+expedient to incorporate into the jurisprudence of a
+new community. Their cautious recommendations accorded
+with conservative public opinion, and the house-cleaning
+then done tended, undoubtedly, to check the
+sentiment for codification which has had such extraordinary
+results in England as well as in many of the
+states.&#x2060;<a id="FNanchor_349_349" href="#Footnote_349_349" class="fnanchor">[349]</a> Whether this is a blessing or a curse is a question
+upon which opinions may differ. At least, it may
+be suggested that three-quarters of a century has passed
+since this revision, during which time many statutes
+have been enacted which do not add clarity to the law,
+and that it may be worth while to examine some of the
+more notable procedural reforms, with a view to the
+introduction of such methods as have proved unqualifiedly
+successful elsewhere and the ultimate simplification
+of our procedure, in the interest of common sense
+and social and economic progress. Self-laudation is one
+of our professional faults that frequently leads to narrow
+views and unprogressive provincialism. A peep over
+our neighbors’ fences may lead us to the horrifying discovery
+that we are provincial in many respects.</p>
+
+<p>The revision of the civil code has been fixed as the
+limit of this discussion for the reason that there are
+<span class="pagenum" id="Page_157">[Pg 157]</span>members of the bar who can speak with authority from
+personal recollection upon the occurrences during the
+middle nineteenth century, and for the further reason
+that the judicial system had by that time assumed a
+form which in its main outlines, it still retains, subject
+to the changes introduced by the constitution of 1874.&#x2060;<a id="FNanchor_350_350" href="#Footnote_350_350" class="fnanchor">[350]</a>
+Relief has since been afforded to the supreme court by
+the establishment of an intermediate court of appeal,
+the superior court, and the transfer to the latter of a
+part of the appellate business.&#x2060;<a id="FNanchor_351_351" href="#Footnote_351_351" class="fnanchor">[351]</a> Both are courts for
+the hearing of appeals, none of the judges sitting at
+<i>nisi prius</i>, an arrangement that has been criticised as
+tending to disassociate the appellate judges from the
+main body of the judiciary, in contradistinction to the
+federal system. The number of common pleas judges
+has been greatly increased and the lay associate has
+almost disappeared.&#x2060;<a id="FNanchor_352_352" href="#Footnote_352_352" class="fnanchor">[352]</a>&#x2060;</p>
+
+<p>The most glaring defect in the system is in the minor
+judiciary. The magistrate, or justice of the peace, is a
+relic of the eighteenth century whose intelligence, education
+and social position have not kept pace with the
+general improvement. The holding of courts at this
+day by men unlearned in the law is an anachronism, a
+nuisance to those having to do with the collection of
+small debts and, frequently, a source of oppression to
+the poor. It is to be hoped that reform in this respect
+will not be unduly delayed by the necessity for the
+adoption of amendments to the constitution to make it
+complete.</p>
+
+<p><span class="pagenum" id="Page_158">[Pg 158]</span></p>
+
+<p>The early division of the state into judicial districts
+has had some unfortunate consequences. The bar of
+the state became divided into a number of local bars,
+mutually jealous and exclusive, practicing under dissimilar
+rules, without common interests or <i>espirit de
+corps</i>. The tendency to disunion has been checked by
+the formation of the State Bar Association, an organization
+that has already done much to promote uniform
+legislation as well as to encourage good fellowship in the
+legal fraternity. The appointment, too, by the supreme
+court of a state board to examine candidates for admission
+to the bar has done much to standardize legal
+education in the state.</p>
+
+<p>Owing largely to her great natural resources Pennsylvania
+has enjoyed a prosperity in which both bench and
+bar have shared, but the first stages of that prosperity
+were attained through the liberal and farsighted
+policy of William Penn, the founder. His adopted
+sons should at least be willing to view with open
+minds the innovations demanded by progress. The
+panorama from the housetop does not necessarily lead
+to a suicidal leap or a broomstick ride.</p>
+
+
+<div class="footnotes">
+<h3>FOOTNOTES:</h3>
+
+<div class="footnote"><p><a id="Footnote_290_290" href="#FNanchor_290_290" class="label">[290]</a> Proceedings of the Constitutional Conventions of Pennsylvania
+of 1776 and 1790, 61. The equity clause will be referred
+to later.</p></div>
+
+<div class="footnote"><p><a id="Footnote_291_291" href="#FNanchor_291_291" class="label">[291]</a> IX Statutes at Large, 29.</p></div>
+
+<div class="footnote"><p><a id="Footnote_292_292" href="#FNanchor_292_292" class="label">[292]</a> VI Pennsylvania Archives (1st Series), 228, 245, 294; VII
+Pennsylvania Archives (1st Series), 72; IX Colonial Records,
+214, 260.</p></div>
+
+<div class="footnote"><p><a id="Footnote_293_293" href="#FNanchor_293_293" class="label">[293]</a> Biography of William Lewis, Pennsylvania Magazine, Vol.
+XX, 30.</p></div>
+
+<div class="footnote"><p><a id="Footnote_294_294" href="#FNanchor_294_294" class="label">[294]</a> X Colonial Records, 610, 745.</p></div>
+
+<div class="footnote"><p><a id="Footnote_295_295" href="#FNanchor_295_295" class="label">[295]</a> <i>Respublica</i> v. <i>Carlisle</i>, 1 Dallas’s Reports, 35 (1778); <i>Respublica</i>
+v. <i>Roberts</i>, 1 Dallas’s Reports, 39 (1778); and see IX Colonial
+Records, 600, 613.</p></div>
+
+<div class="footnote"><p><a id="Footnote_296_296" href="#FNanchor_296_296" class="label">[296]</a> Journal of Congress, Vol. 1, 260; VIII Statutes at Large, 519.</p></div>
+
+<div class="footnote"><p><a id="Footnote_297_297" href="#FNanchor_297_297" class="label">[297]</a> <i>Ross</i> v. <i>Rittenhouse</i>, 2 Dallas’s Reports, 160 (1792); Olmstead’s
+Case, Brightly’s Nisi Prius Reports, 9 (1809); <i>United
+States</i> v. <i>Peters</i>, 5 Cranch (U. S.) 115 (1809); Trial of General
+Bright; Federal Courts before the Constitution, 131 United
+States Reports, appendix at page xxix.</p></div>
+
+<div class="footnote"><p><a id="Footnote_298_298" href="#FNanchor_298_298" class="label">[298]</a> Pennsylvania State Trial (Hogan, 1794), 3; XII Colonial
+Records, 584, December 26, 1780.</p></div>
+
+<div class="footnote"><p><a id="Footnote_299_299" href="#FNanchor_299_299" class="label">[299]</a> X Statutes at Large, 52.</p></div>
+
+<div class="footnote"><p><a id="Footnote_300_300" href="#FNanchor_300_300" class="label">[300]</a> 3 Smith’s Laws of Pennsylvania, 28.</p></div>
+
+<div class="footnote"><p><a id="Footnote_301_301" href="#FNanchor_301_301" class="label">[301]</a> 1 Dallas’s Reports, 95 (1784).</p></div>
+
+<div class="footnote"><p><a id="Footnote_302_302" href="#FNanchor_302_302" class="label">[302]</a> Proceedings of the Constitutional Conventions of Pennsylvania
+of 1776 and 1790, 70, 107.</p></div>
+
+<div class="footnote"><p><a id="Footnote_303_303" href="#FNanchor_303_303" class="label">[303]</a> XII Statutes at Large, 308; 2 Smith’s Laws of Pennsylvania.
+392.</p></div>
+
+<div class="footnote"><p><a id="Footnote_304_304" href="#FNanchor_304_304" class="label">[304]</a> <i>Respublica</i> v. <i>Doan</i>, 1 Dallas’s Reports (Wharton’s Edition),
+86 (1784).</p></div>
+
+<div class="footnote"><p><a id="Footnote_305_305" href="#FNanchor_305_305" class="label">[305]</a> XV Colonial Records, 505, 544; Watson’s Annals of Philadelphia
+(1850), Vol. II, 330.</p></div>
+
+<div class="footnote"><p><a id="Footnote_306_306" href="#FNanchor_306_306" class="label">[306]</a> 3 Smith’s Laws of Pennsylvania, 37.</p></div>
+
+<div class="footnote"><p><a id="Footnote_307_307" href="#FNanchor_307_307" class="label">[307]</a> 3 Smith’s Laws of Pennsylvania, 186.</p></div>
+
+<div class="footnote"><p><a id="Footnote_308_308" href="#FNanchor_308_308" class="label">[308]</a> XV Colonial Records, 31.</p></div>
+
+<div class="footnote"><p><a id="Footnote_309_309" href="#FNanchor_309_309" class="label">[309]</a> 12 Hazard’s Pennsylvania Register, 117; 13 Hazard’s
+Pennsylvania Register, 4. When, in 1783, it was proposed in
+England to do away with the public procession to Tyburn, Dr.
+Samuel Johnson remarked, in his vigorous manner, to Sir
+William Scott: “Sir, executions are intended to draw spectators.
+If they do not draw spectators, they don’t answer their purpose.
+The old method was most satisfactory to all parties; the public
+was gratified by a procession; the criminal was supported by it.
+Why is all this to be swept away?” Boswell’s Life of Johnson,
+chapter 56.</p></div>
+
+<div class="footnote"><p><a id="Footnote_310_310" href="#FNanchor_310_310" class="label">[310]</a> Proceedings of the Constitutional Conventions of Pennsylvania
+of 1776 and 1790, 301, and 3 Smith’s Laws of Pennsylvania,
+xxxix.</p></div>
+
+<div class="footnote"><p><a id="Footnote_311_311" href="#FNanchor_311_311" class="label">[311]</a> 3 Smith’s Laws of Pennsylvania, 28.</p></div>
+
+<div class="footnote"><p><a id="Footnote_312_312" href="#FNanchor_312_312" class="label">[312]</a> April 13, 1791, 3 Smith’s Laws of Pennsylvania, 26.</p></div>
+
+<div class="footnote"><p><a id="Footnote_313_313" href="#FNanchor_313_313" class="label">[313]</a> Debates of Pennsylvania Constitutional Convention of
+1837, Vol. 1, 263.</p></div>
+
+<div class="footnote"><p><a id="Footnote_314_314" href="#FNanchor_314_314" class="label">[314]</a> 5 Carey &amp; Bioren’s Laws of Pennsylvania, 694.</p></div>
+
+<div class="footnote"><p><a id="Footnote_315_315" href="#FNanchor_315_315" class="label">[315]</a> Brackenridge’s Law Miscellanies, 283.</p></div>
+
+<div class="footnote"><p><a id="Footnote_316_316" href="#FNanchor_316_316" class="label">[316]</a> 4 Smith’s Laws of Pennsylvania, 270.</p></div>
+
+<div class="footnote"><p><a id="Footnote_317_317" href="#FNanchor_317_317" class="label">[317]</a> See also the Act of March 6, 1812 (5 Smith’s Laws of Pennsylvania,
+308).</p></div>
+
+<div class="footnote"><p><a id="Footnote_318_318" href="#FNanchor_318_318" class="label">[318]</a> 4 Smith’s Laws of Pennsylvania, 448.</p></div>
+
+<div class="footnote"><p><a id="Footnote_319_319" href="#FNanchor_319_319" class="label">[319]</a> March 11, 1809, 5 Smith’s Laws of Pennsylvania, 15.</p></div>
+
+<div class="footnote"><p><a id="Footnote_320_320" href="#FNanchor_320_320" class="label">[320]</a> March 10, 1810, 5 Smith’s Laws of Pennsylvania, 158.</p></div>
+
+<div class="footnote"><p><a id="Footnote_321_321" href="#FNanchor_321_321" class="label">[321]</a> 5 Smith’s Laws of Pennsylvania, 223.</p></div>
+
+<div class="footnote"><p><a id="Footnote_322_322" href="#FNanchor_322_322" class="label">[322]</a> Martin’s Bench &amp; Bar, 78.</p></div>
+
+<div class="footnote"><p><a id="Footnote_323_323" href="#FNanchor_323_323" class="label">[323]</a> April 8, 1826, P. L. 265.</p></div>
+
+<div class="footnote"><p><a id="Footnote_324_324" href="#FNanchor_324_324" class="label">[324]</a> P. L. 341. See Fourth Report of the Commission to Revise
+the Civil Code (1834). The northern district of the supreme
+court was afterwards abolished.</p></div>
+
+<div class="footnote"><p><a id="Footnote_325_325" href="#FNanchor_325_325" class="label">[325]</a> McMaster’s History of the American People, Vol. I, 302,
+<i>et seq.</i></p></div>
+
+<div class="footnote"><p><a id="Footnote_326_326" href="#FNanchor_326_326" class="label">[326]</a> The Forum, Vol. I, 327.</p></div>
+
+<div class="footnote"><p><a id="Footnote_327_327" href="#FNanchor_327_327" class="label">[327]</a> 1 Dallas’s Reports, 319 (1788).</p></div>
+
+<div class="footnote"><p><a id="Footnote_328_328" href="#FNanchor_328_328" class="label">[328]</a> The Forum, Vol. I, 330.</p></div>
+
+<div class="footnote"><p><a id="Footnote_329_329" href="#FNanchor_329_329" class="label">[329]</a> See specimens of these charges in Appendix to Addison’s
+Report.</p></div>
+
+<div class="footnote"><p><a id="Footnote_330_330" href="#FNanchor_330_330" class="label">[330]</a> <i>Commonwealth</i> v. <i>Addison</i>, 4 Dallas’s Reports, 225 (1801).</p></div>
+
+<div class="footnote"><p><a id="Footnote_331_331" href="#FNanchor_331_331" class="label">[331]</a> See the printed report of Addison’s Trial (1803).</p></div>
+
+<div class="footnote"><p><a id="Footnote_332_332" href="#FNanchor_332_332" class="label">[332]</a> Address before the Allegheny Bar Association, Pennsylvania
+Magazine, Vol. xvi, 1.</p></div>
+
+<div class="footnote"><p><a id="Footnote_333_333" href="#FNanchor_333_333" class="label">[333]</a> 3 Yeates’s Reports, 438 (1802).</p></div>
+
+<div class="footnote"><p><a id="Footnote_334_334" href="#FNanchor_334_334" class="label">[334]</a> See printed report of the Judges’ Trial (1805).</p></div>
+
+<div class="footnote"><p><a id="Footnote_335_335" href="#FNanchor_335_335" class="label">[335]</a> The Forum, Vol. I, 408.</p></div>
+
+<div class="footnote"><p><a id="Footnote_336_336" href="#FNanchor_336_336" class="label">[336]</a> The Forum, Vol. I, 404.</p></div>
+
+<div class="footnote"><p><a id="Footnote_337_337" href="#FNanchor_337_337" class="label">[337]</a> Debates of Pennsylvania Constitutional Convention of 1837,
+Vol. X, 148 <i>et seq.</i></p></div>
+
+<div class="footnote"><p><a id="Footnote_338_338" href="#FNanchor_338_338" class="label">[338]</a> P. L. 136. See similar Act in New Jersey passed in 1799.
+New Jersey Statutes (1800), 436.</p></div>
+
+<div class="footnote"><p><a id="Footnote_339_339" href="#FNanchor_339_339" class="label">[339]</a> Brackenridge’s Law Miscellanies, 525.</p></div>
+
+<div class="footnote"><p><a id="Footnote_340_340" href="#FNanchor_340_340" class="label">[340]</a> Act of March 29, 1836, P. L. 224.</p></div>
+
+<div class="footnote"><p><a id="Footnote_341_341" href="#FNanchor_341_341" class="label">[341]</a> McMaster’s History of the American People, Vol. III, 154.</p></div>
+
+<div class="footnote"><p><a id="Footnote_342_342" href="#FNanchor_342_342" class="label">[342]</a> Recollections of the West, H. M. Brackenridge. See extract
+in Hazard’s Pennsylvania Register, Vol. XIV, 172.</p></div>
+
+<div class="footnote"><p><a id="Footnote_343_343" href="#FNanchor_343_343" class="label">[343]</a> History of Allegheny County (Errett), chapter xiv.</p></div>
+
+<div class="footnote"><p><a id="Footnote_344_344" href="#FNanchor_344_344" class="label">[344]</a> The Forum, Vol. I, 343.</p></div>
+
+<div class="footnote"><p><a id="Footnote_345_345" href="#FNanchor_345_345" class="label">[345]</a> See Binney’s Eulogy on Chief Justice Tilghman, 16 Sergeant
+&amp; Rawle’s Reports, 444.</p></div>
+
+<div class="footnote"><p><a id="Footnote_346_346" href="#FNanchor_346_346" class="label">[346]</a> See Eulogies in Appendix to 19 Pennsylvania Reports;
+W. A. Porter’s Essay and article in Great American Lawyers,
+Vol. III, 353.</p></div>
+
+<div class="footnote"><p><a id="Footnote_347_347" href="#FNanchor_347_347" class="label">[347]</a> See the reprints and papers contained in the volume commemorative
+of the One Hundredth Anniversary of the Philadelphia
+Law Association.</p></div>
+
+<div class="footnote"><p><a id="Footnote_348_348" href="#FNanchor_348_348" class="label">[348]</a> The reports of the commissioners form a most instructive
+commentary upon the early statute law of Pennsylvania.</p></div>
+
+<div class="footnote"><p><a id="Footnote_349_349" href="#FNanchor_349_349" class="label">[349]</a> Hepburn’s Historical Development of Code Pleading (1897).</p></div>
+
+<div class="footnote"><p><a id="Footnote_350_350" href="#FNanchor_350_350" class="label">[350]</a> The Judiciary Article of the Constitution of 1874 is printed
+in the Appendix to this volume. Special pleading was abolished
+by the Act of May 25, 1887, P. L. 271, which substituted a
+hybrid system that is neither common law nor good code pleading.</p></div>
+
+<div class="footnote"><p><a id="Footnote_351_351" href="#FNanchor_351_351" class="label">[351]</a> Act of June 25, 1895, P. L. 212, and its supplements.</p></div>
+
+<div class="footnote"><p><a id="Footnote_352_352" href="#FNanchor_352_352" class="label">[352]</a> For the present personnel of the courts, see Smull’s Legislative
+Handbook, current issue.</p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_159">[Pg 159]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_IV">
+    CHAPTER IV.
+  </h2>
+</div>
+
+
+<p>One of the most troublesome questions with which the
+colonial administrator had to deal was equity jurisprudence.
+In the early years of the seventeenth century
+politics entered into the contest for jurisdiction between
+the English court of chancery and the courts of common
+law, beclouding the issues and retarding a settlement
+of their respective spheres of action. Popular dislike
+pictured the chancellorship as a great political office
+closely identified with the Crown, and grudgingly admitted
+its importance in the complex judicial system
+of England. On the other hand, the chancellor too frequently
+subordinated the judicial functions of his office
+to ministerial policy and permitted abuses in the organization
+and administration of his court that impaired its
+usefulness and checked the growth of its business. At
+this early period chancery practice was concerned
+chiefly with questions connected with the devolution
+and management of real property and property held in
+trust, and many of the broader doctrines of equity were
+still in process of growth. Lord Nottingham, the
+father of modern equity, held the office of chancellor
+from 1673 to 1682, but was succeeded by several chancellors
+of inferior capacity who added nothing to the
+prestige of the court, while the masters and inferior
+officers were chiefly distinguished for rapacity and extortion,
+not to speak of incompetency and dishonesty, in the
+management of property committed to their care.&#x2060;<a id="FNanchor_353_353" href="#Footnote_353_353" class="fnanchor">[353]</a> Reform
+came, but too late to convince the more democratic
+communities of the positive advantages of chancery
+procedure, while the prevailing fanatical devotion to
+<span class="pagenum" id="Page_160">[Pg 160]</span>trial by jury operated as a check upon any system that
+seemed to interfere with that palladium of liberty.</p>
+
+<p>It was manifestly impossible to administer complete
+justice according to the English system without the assertion
+of equitable rights and the enforcement of equitable
+remedies. Anything less would have amounted to
+a denial of justice, and in so far as some few equitable
+rights were concerned, this was vaguely recognized. But
+a true appreciation of the necessity for the introduction
+of chancery procedure was obscured by a common and
+popular error which confused equity with so-called
+natural justice; an error for which chancery literature
+was, perhaps, itself in a measure responsible, in basing
+its claims to override the strict rules of the common
+law upon the strength of an intrinsic ethical superiority.&#x2060;<a id="FNanchor_354_354" href="#Footnote_354_354" class="fnanchor">[354]</a>&#x2060;</p>
+
+<p>Another obstacle to the introduction of equity jurisprudence
+was the primitive social conditions that prevailed
+in the sparsely populated settlements. There
+was sufficient difficulty in the conduct of an ordinary
+lawsuit in the local courts without adding to the embarrassment
+of the magistracy by requiring them to solve
+the mysteries of the unreformed chancery pleading and
+practice. The colonial judge of the seventeenth and
+eighteenth centuries was in knowledge and training
+about on a par with the English justice of the peace
+and it would have been as preposterous to expect
+the former to undertake the office of chancellor as
+to impose similar duties on the English quarter
+sessions. When, in the eighteenth century, trained
+lawyers began to make their influence felt in the colonies,
+disputes and misunderstandings between the assemblies
+and the governors prevented the creation of or retarded
+the growth of courts of chancery, resulting in a conflict
+of principles and practice in the several provinces far
+<span class="pagenum" id="Page_161">[Pg 161]</span>too intricate to be briefly described.&#x2060;<a id="FNanchor_355_355" href="#Footnote_355_355" class="fnanchor">[355]</a> The theory
+upheld by the crown lawyers, and put in practice in the
+more tractable colonies, was that the governor, as custodian
+of the great seal, was the proper person to act as
+chancellor, assisted if necessary by the council. To
+this the more democratic communities were opposed,
+as an undue extension of the prerogative, but they
+had no substitute to offer except the direct exercise of
+equitable relief by legislative resolution or the delegation
+of limited equity powers to the ordinary courts,
+such as giving relief from the penal clauses of bonds and
+mortgages. It did not seem difficult to the uninitiated
+to inject into the law such equitable principles as would
+mitigate the harshness of its stricter rules. The limited
+scope of such an experiment and the deprivation involved,
+in the elimination of the powerful preventive
+measures afforded by chancery process, became apparent
+only when the commercial and industrial expansion of
+the American commonwealths had brought about more
+complicated social relations.</p>
+
+<p>The reform of procedure in the more progressive jurisdictions,
+has buried chancery and common law practice
+in a common tomb and if it were safe to hazard an
+opinion upon the parentage of the modern complaint,
+or statement, the inclination would be to favor the bill
+in equity rather than the common law declaration. But
+it would seem that before these momentous changes
+could well be brought about, it was necessary that both
+systems should reach the limits of their development,
+that there should be a thoroughly scientific demonstration
+<span class="pagenum" id="Page_162">[Pg 162]</span>of the economic waste involved in a dual and highly
+artificial procedure, before one more simple and rational
+could be evolved. Conservative opinion hesitates to
+endorse these changes, and the tendency, displayed in
+many jurisdictions, to overload procedure with petty
+statutory details, that ought to be left to the rules of
+court, shows an immature conception of the principles
+of law reform. If this is true today, how poorly prepared
+was the eighteenth century for experiments in
+jurisprudence, with a bar nourished on technicalities
+and trained to state almost every legal right in procedural
+terms.</p>
+
+<p>Pennsylvania was one of the most persistent of the
+colonies in its opposition to the introduction of a court
+of chancery, and its courts were the most fertile in
+devising expedients to decrease the inconveniences
+resulting from such opposition, and this, although in
+the immediately adjoining colonies chancery had a
+fairly successful development. In the early period,
+political conditions had much to do with the failure of
+the only serious attempt to establish such a court.
+After the Revolution, opposition to the extension of
+equity jurisdiction long continued as a political tradition,
+in spite of the changed attitude of the leaders of the
+bar.</p>
+
+<p>While the territory on the Delaware was under the
+government of the Duke of York it would seem to have
+been the intention to administer equity, in the popular
+sense of that word, through the court of assizes. Among
+the laws of April 2, 1664, was one that provided:—</p>
+
+<blockquote>
+<p>“In regard it is almost impossible to provide Sufficient Lawes
+in all Cases, or proper Punishments for all Crimes the Court of
+Sessions shall not take further Cognizance of any Case or Crimes,
+whereof there is not provition made in some Lawes but to remit
+the case or Crime, with the due Examination and proof to the
+Next Court of Assizes where matters of Equity shall be decided,
+<span class="pagenum" id="Page_163">[Pg 163]</span>or punishment awarded according to the discretion of the
+Bench and not Contrary to the known Laws of England.”&#x2060;<a id="FNanchor_356_356" href="#Footnote_356_356" class="fnanchor">[356]</a>&#x2060;</p>
+</blockquote>
+
+<p>This was amended at the court of assizes held in
+September, 1665, as follows:—</p>
+
+<blockquote>
+<p>“Where the Originall Point is matter of equity the proceedeings
+shall bee by way of Bill and delivering in Answers upon
+Oath and by the Examination of witnesses, in like manner as is
+used in the Court of Chancery in England. And due regard
+must be had that the Defendant have timely notice thereof, as
+is appointed at Common Law; which is eight dayes warning
+before the Court shall sitt.”&#x2060;<a id="FNanchor_357_357" href="#Footnote_357_357" class="fnanchor">[357]</a>&#x2060;</p>
+</blockquote>
+
+<p>In the following February it was ordained that
+“matters of Equity under five pounds may be tried in
+Town Courts and if under twenty at Sessions.” This
+investing of the lower courts with equitable powers was
+undoubtedly intended to lessen the hardship of seeking
+relief in a distant court meeting but once a year, and its
+practical application was probably limited to giving
+effect to the more obvious equities of defendants. That
+such was the case, would appear from the instructions
+of Governor Andros to the justices of the court at New
+Castle dated August 14, 1677, in reply to a query on
+their part.</p>
+
+<blockquote>
+<p>“As to penal Bonds or such like cases of Equity it is the custom
+&amp; practice of Courts here, to hear &amp; judge thereof according
+to Equity, w<sup>ch</sup> you may also observe as Allowed by Law.”&#x2060;<a id="FNanchor_358_358" href="#Footnote_358_358" class="fnanchor">[358]</a>&#x2060;</p>
+</blockquote>
+
+<p>At the court for Deal, afterwards Sussex, County held
+Tune 13 and 14, 1682, Henry Stracher obtained a verdict
+against Peter Groundyk in an “action of the case,”
+the nature of which is not disclosed, whereupon—</p>
+
+<p><span class="pagenum" id="Page_164">[Pg 164]</span></p>
+
+<blockquote>
+<p>“Peter Groundyk peticon the Court that he may have That
+was this day Tryd betwene Henry Stracher Ant this peticoner to
+be Tryd in Equiety, the next Court by bill and Answer as is use in
+the Court of Chancrey in England which the Court would A
+perswaded him to A dissisted in it; and rest himselfe satisfied
+in what was allready done; but through his perswading the
+Court grant the peticoner his request; provided that the proceeding
+be put in in due time According to Law.”&#x2060;<a id="FNanchor_359_359" href="#Footnote_359_359" class="fnanchor">[359]</a>&#x2060;</p>
+</blockquote>
+
+<p>At the September court, however, nothing is recorded
+as to the “Tryal in Equiety” which the justices seem to
+have been reluctant to undertake.</p>
+
+<p>There are also instances where the governor at New
+York assumed the equitable power of granting relief
+against oppressive judgments at law, of which the following
+order is an illustration:—</p>
+
+<blockquote>
+<p>
+  “By the Governo<sup>r</sup>
+</p>
+
+<p>Whereas Hendrick Jansen Van Bremen, of Swanyck or
+Paerden Hook, near Newcastle in Delaware River, hath preferr’d
+a Petition unto me setting forth, that having heretofore, in the
+Time of the Dutch, received great Damage in his Corne, by
+M<sup>r</sup> W<sup>m</sup> Toms Horses, by Reason of his insufficient Fence; It was
+Ordered, that M<sup>r</sup> Toms Land there, should be Sold in Vendue,
+which said Order being not effected, The Petitioner since the
+Restoration of the English Government, took the said Horses
+off his Land, and sent them to M<sup>r</sup> Tom at New Castle, desiring
+they might be kept from his Corne; But the Petitioner still sustaining
+Damage, without Relief, he acknowledges that in Passion,
+he rashly and unadvisedly, shot one of the said Horses,
+with small shot, whereof he not long after dyed; Whereupon
+M<sup>r</sup> Tom Sued the Peticon<sup>r</sup> in the Court of Newcastle, from the
+which Appealing to the High Court, Judgment past against the
+Peticon<sup>r</sup> there for Six Hundred Guild<sup>rs</sup> to be paid by him to M<sup>r</sup>
+Tom, for his Horse, besides One Hundred Guild<sup>rs</sup> Charges; But
+was neither call’d, nor heard there; Wherefore I have thought
+fitt, &amp; do hereby Order, that the said Hendrick Jansen giving
+Security, by binding over his Person and Estate, to make good
+his Complaint, That Execucon be Suspended; And that all the
+<span class="pagenum" id="Page_165">[Pg 165]</span>Proceedings, Papers, Writings, Passages or Proofs, both in Dutch
+and English Time, beforthwith Transmitted hither, for a final
+Determinacon in Equity.</p>
+
+<p>Given under my Hand in New Yorke this 25th day of May
+1676.</p>
+
+<p class="author">
+  E. ANDROS.
+</p>
+
+<p>To the Justices of the Peace of Newcastle in Deleware.”&#x2060;<a id="FNanchor_360_360" href="#Footnote_360_360" class="fnanchor">[360]</a>&#x2060;</p>
+</blockquote>
+
+<p>A petition for equitable relief preferred by Arnoldus
+la Grange to Governor Andros in connection with the
+litigation concerning the title to Tinicum Island will be
+found in the archives, but the action taken thereon by
+the governor is not recorded.&#x2060;<a id="FNanchor_361_361" href="#Footnote_361_361" class="fnanchor">[361]</a>&#x2060;</p>
+
+<p>With the further history of equity in New York we
+are not directly concerned. By an act passed soon after
+the separation from Pennsylvania a court of chancery
+was authorized but the law seems to have been disregarded.&#x2060;<a id="FNanchor_362_362" href="#Footnote_362_362" class="fnanchor">[362]</a>
+Lord Bellomont, the governor, writing to the
+lords of trade October 19, 1700, says: “There is a great
+want of a court of chancery here, but nobody here understanding
+it rightly I delay appointing one till the judge
+and attorney general’s coming from England.”&#x2060;<a id="FNanchor_363_363" href="#Footnote_363_363" class="fnanchor">[363]</a> The
+lords, in reply, directed him to establish the court at
+once and in the following year the court was proclaimed
+by ordinance of his successor, Lieutenant Governor
+Nanfan. Nothing, however, of importance seems to
+have been done and it would appear that some of the
+governors disliked the responsibility. Lord Cornbury,
+who was also appointed royal governor of New Jersey,
+wrote to the lords of trade on May 7, 1711:—</p>
+
+<p><span class="pagenum" id="Page_166">[Pg 166]</span></p>
+
+<blockquote>
+<p>“In both plantations I have been pelted with petitions for a
+Court of Chancery; and I have been made acquainted with some
+cases which very much require such a court, there being no
+relief at common law, I had ordered the committee of both
+Councils to form a scheme for such a court, but to no purpose;
+the trust of the seals they say constitute a chancellor, and unless
+the Governor can part with the seals there can be no chancellor
+but himself. I have already more business than I can
+attend to, besides I am very ignorant in matters, having never
+in my life been concerned in any one suit. So I earnestly beg
+your lordship’s directions as to that Court.”&#x2060;<a id="FNanchor_364_364" href="#Footnote_364_364" class="fnanchor">[364]</a>&#x2060;</p>
+</blockquote>
+
+<p>The court was also a favorite object of attack by the
+popular party. Governor Hunter on January 1, 1712,
+wrote:—</p>
+
+<blockquote>
+<p>“The country here, in general, groaned for a Court of Chancery
+which had been discontinued for some time before my
+arrival in these parts. * * * I gave a public notification of
+that court being opened, and the House of Representatives, in
+their angry mood resolved that the erecting of such a court
+without their consent was against law.”&#x2060;<a id="FNanchor_365_365" href="#Footnote_365_365" class="fnanchor">[365]</a>&#x2060;</p>
+</blockquote>
+
+<p>In spite of this and similar attacks the court maintained
+its existence until reorganized after the Revolution
+and adoption of the constitution of 1777, but the
+amount of business transacted was comparatively small
+until the time of Chancellors Livingston and Kent.</p>
+
+<p>In Pennsylvania and Delaware, as we have seen,
+Penn took over the local courts very much as he found
+them, exercising a supervisory jurisdiction through the
+provincial council. On the hearing of appeals before the
+latter body equitable principles were applied as is illustrated
+by the case of <i>Bellamy</i> v. <i>Watson</i>, described in
+the court below as “an action of Trasspase and ejectment”
+for land on Prime Hook. The case was tried at
+Lewes on May 27, 1683, before a jury who found a verdict
+<span class="pagenum" id="Page_167">[Pg 167]</span>for the defendant.&#x2060;<a id="FNanchor_366_366" href="#Footnote_366_366" class="fnanchor">[366]</a> The plaintiff appealed to the
+governor and council who heard the case in July and
+were unanimously of the opinion that one Smith, under
+whom the defendant claimed, had no title in law or
+equity. They entered judgment for the plaintiff, he
+to pay the defendant for his improvements, the value
+of which was to be fixed by appraisers, and gave the
+defendant four months’ time in which to remove his
+crops, stock and “other moveable concernes.”&#x2060;<a id="FNanchor_367_367" href="#Footnote_367_367" class="fnanchor">[367]</a> A year
+later it is recorded that the difference between Watson
+and Bellamy was amicably settled by mutual conveyances,
+“and thus they agreed &amp; shaked hands.”&#x2060;<a id="FNanchor_368_368" href="#Footnote_368_368" class="fnanchor">[368]</a> In
+another case that came before the council, that body
+seems to have been in doubt whether they ought to
+proceed in law or equity, but the nature of the business
+is not given.&#x2060;<a id="FNanchor_369_369" href="#Footnote_369_369" class="fnanchor">[369]</a>&#x2060;</p>
+
+<p>By the Act of May 10, 1684, passed at New Castle, it
+was provided that the “Quarter Sessions be as well a
+court of Equity as Law, Concerning any Judgment given
+in Cases by Law capable of Triall in the respective
+County Sessions and Courts,”&#x2060;<a id="FNanchor_370_370" href="#Footnote_370_370" class="fnanchor">[370]</a> and by another chapter
+of the same act a provincial court was constituted, the
+judges of which were given cognizance of appeals and
+all causes both in law and equity not determinable by
+the county courts. This enactment seems to have caused
+some misgivings for in 1685 the council “Ordered that a
+bill be drawn up That y<sup>e</sup> Word Equity be left out in ye
+Law off County Courts.”&#x2060;<a id="FNanchor_371_371" href="#Footnote_371_371" class="fnanchor">[371]</a> The conception of equity
+then entertained is illustrated by the following case
+taken from the minutes of the court of common pleas of
+<span class="pagenum" id="Page_168">[Pg 168]</span>Chester County, where the court sitting in equity, modified
+its own judgment previously entered at law.</p>
+
+<blockquote>
+<p>“Josua Hastings v. Francis Yarnall. The Declaration was
+read—the answer was read. Judgment for plaintiff 25 shillings
+with costs of suit. Upon which the defendant makes his appeal
+to the next court of equity for this county.</p>
+
+
+<table class="autotable">
+<tr>
+<td class="tdl">
+1686 at a court of equity
+</td>
+<td class="tdl">
+}
+</td>
+<td class="tdl">
+Commissioners present, John
+</td>
+</tr>
+<tr>
+<td class="tdl">
+held at Chester ye 5th day
+</td>
+<td class="tdl">
+}
+</td>
+<td class="tdl">
+Bluston, Samuel Lewis, John
+</td>
+</tr>
+<tr>
+<td class="tdl">
+of the 1st week of ye 10th
+</td>
+<td class="tdl">
+}
+</td>
+<td class="tdl">
+Simcocke, Robert Wade, Geo.
+</td>
+</tr>
+<tr>
+<td class="tdl">
+month, 1686
+</td>
+<td class="tdl">
+}
+</td>
+<td class="tdl">
+Maris, Robert Pile, Bartholomew
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+}
+</td>
+<td class="tdl">
+Coppoche, Robert Eyre Clech.
+</td>
+</tr>
+</table>
+
+
+<p>Francis Yarnall of this county preferred a bill to this court
+wherein he required a remedy against ye verdickt of Jury and
+Judgment of court obtained against him by Joshua Hastings of
+ye same county, at the last court of Common Pleas held for this
+county, at Chester, the 3rd and 4th days of this present weeke.
+Upon which it was decreed that Francis Yarnall should pay 10
+shillings and bear half the charges of that court.”&#x2060;<a id="FNanchor_372_372" href="#Footnote_372_372" class="fnanchor">[372]</a>&#x2060;</p>
+</blockquote>
+
+<p>Such proceedings gave offense to the people, as unduly
+interfering with the verdicts of juries, and in 1687 the
+assembly asked for a conference with the council upon
+certain questions, among them “how far y<sup>e</sup> County
+Quarter Sessions may be Judges of Equity as well as
+Law and if after a judgment in Law whether the same
+Court hath power to Resolve itselfe into a Court of
+Equity, and Either Mitigate, alter, or Revers y<sup>e</sup> said
+Judgment.”&#x2060;<a id="FNanchor_373_373" href="#Footnote_373_373" class="fnanchor">[373]</a> The council answered evasively that the
+law made at New Castle “doth supply and answer all
+occasions of appeal, and is a plainer rule to proceed by.”&#x2060;<a id="FNanchor_374_374" href="#Footnote_374_374" class="fnanchor">[374]</a>&#x2060;</p>
+
+<p>By the Act of May 10, 1690, it was provided that the
+county courts “shall be Courts of equitie for the hearing
+<span class="pagenum" id="Page_169">[Pg 169]</span>and determining all matters and causes cognizable in
+the said Court, under the value of ten pounds,” and that
+the provincial court should have the hearing and determining
+of all appeals from the county courts both in
+law and equity.&#x2060;<a id="FNanchor_375_375" href="#Footnote_375_375" class="fnanchor">[375]</a> This statute was substantially reënacted
+in 1693 during the administration of Governor
+Fletcher of New York.&#x2060;<a id="FNanchor_376_376" href="#Footnote_376_376" class="fnanchor">[376]</a> During all this time there were
+frequent petitions to the council, for relief against judgments
+of the courts, several of which were relegated to
+the county or provincial courts for a hearing in equity.&#x2060;<a id="FNanchor_377_377" href="#Footnote_377_377" class="fnanchor">[377]</a>&#x2060;</p>
+
+<p>The relief given under the name of equity would seem
+to have been similar to the discretionary powers of the
+courts now exercised on rules to open judgments, or in
+controlling verdicts on motions for new trials, and there
+is no trace of formal chancery proceedings. Nevertheless
+the popular dislike of any interference with verdicts
+is voiced in a further complaint of the assembly, in
+1694, stating that the judges had too great liberty to
+destroy or make void the verdicts of juries and praying
+that they might be instructed not to decree anything in
+equity to the prejudice of judgments before given in
+law.&#x2060;<a id="FNanchor_378_378" href="#Footnote_378_378" class="fnanchor">[378]</a> Even more vigorous would have been their
+remonstrance if there had been an attempt to introduce
+real chancery pleading, but this was foreign to the
+spirit of Penn’s legislation, which permitted “all persons
+to freely appear in their own way and personally plead
+their own cases themselves, or if unable, by their
+friends.”&#x2060;<a id="FNanchor_379_379" href="#Footnote_379_379" class="fnanchor">[379]</a>&#x2060;</p>
+
+<p><span class="pagenum" id="Page_170">[Pg 170]</span></p>
+
+<p>The prolonged controversy between the assembly, the
+governors and the home government over the court
+laws that took place in the early years of the eighteenth
+century has been sufficiently discussed and will be referred
+to here only in so far as it affected equity jurisdiction.
+The Act of October 28, 1701,&#x2060;<a id="FNanchor_380_380" href="#Footnote_380_380" class="fnanchor">[380]</a> believed to have
+been drafted by David Lloyd, contained this provision:—</p>
+
+<blockquote>
+<p>“That the said justices in the respective county courts shall
+have full power, and are hereby empowered and authorized to
+hear and decree all such matters and causes of equity as shall
+come before them in the said courts, wherein the proceedings
+shall be by bill and answer, with such other pleadings as are
+necessary in chancery courts and proper in these parts, with
+power also for the said justices to force obedience to their
+decrees in equity, by imprisonment or sequestration of lands,
+as the case may require.”</p>
+</blockquote>
+
+<p>An appeal was given to the provincial court, which
+was empowered to revoke, alter and confirm decrees
+according to equity and justice.</p>
+
+<p>This act, which was repealed by the queen in council
+on February 7, 1705, because the lords commissioners
+for trade conceived that so far from expediting the
+determination of lawsuits it would impede the same,&#x2060;<a id="FNanchor_381_381" href="#Footnote_381_381" class="fnanchor">[381]</a>
+attempted to introduce a more elaborate procedure
+without actually committing the courts to the English
+practice, and, like all half measures, would have led to
+confusion and litigation. One can imagine the unlearned
+judges of the county courts deciding how much chancery
+pleading was “proper in these parts.” There is no
+trace of any proceedings had under its authority; in fact
+Chief Justice Guest in 1703 made a complaint to the
+council—</p>
+
+<p><span class="pagenum" id="Page_171">[Pg 171]</span></p>
+
+<blockquote>
+<p>“That notwithstanding y<sup>e</sup> Laws of this Govmt had erected
+Courts of Equity &amp; y<sup>e</sup> Justices, have a power also in their
+Commission for y<sup>e</sup> same: Yet that to y<sup>e</sup> great oppression of y<sup>e</sup>
+People, there have been no such courts as yet held in pursuance
+of y<sup>e</sup> present Law, the Rules of y<sup>e</sup> said Court not having
+yet recev<sup>d</sup> so full a sanction as tis thought may be requisite.”&#x2060;<a id="FNanchor_382_382" href="#Footnote_382_382" class="fnanchor">[382]</a>&#x2060;</p>
+</blockquote>
+
+<p>It was ordered that the rules should be produced at
+the next session of the council, but nothing further
+appears to have been done until September, 1704, when
+Guest moved that the rules agreed on by the county
+court should be enforced in all the courts.&#x2060;<a id="FNanchor_383_383" href="#Footnote_383_383" class="fnanchor">[383]</a> Finally in
+the following April the rules prepared by “certain persons
+skilled in the law” were laid before the council and
+approved,&#x2060;<a id="FNanchor_384_384" href="#Footnote_384_384" class="fnanchor">[384]</a> but not long afterwards the governor was
+notified of the repeal of the act.</p>
+
+<p>The controversy that followed between the governor
+and council on the one side and the speaker and assembly
+on the other was the first real crisis in the history of
+equity in Pennsylvania. Lasting as it did for three
+sessions of the legislature we can gather some information
+as to the respective plans submitted for the organization
+of the courts, although the text of the bills has
+not come down to us. Chancery was the chief bone of
+contention. Governor Evans wished to act as chancellor
+assisted by the council, in accordance with the practice
+recently established in the crown colonies, and it would
+seem that the assembly was at first inclined to yield
+this point “provided that the court meddle not with
+matters wherein sufficient remedy may be had in any
+other court”&#x2060;<a id="FNanchor_385_385" href="#Footnote_385_385" class="fnanchor">[385]</a> whether by the rules of the common law
+or the laws of the province. But the country members
+were afraid that too much of the business of the courts
+<span class="pagenum" id="Page_172">[Pg 172]</span>would be drawn to Philadelphia, and after some fruitless
+discussion the house was dismissed and the matter
+postponed until the meeting of the new assembly. This
+assembly was even more completely dominated by
+David Lloyd, the speaker, than its predecessor and replied
+to the bill of the governor, drawn up by the “practitioners
+of the law,” with a “long and tedious bill”&#x2060;<a id="FNanchor_386_386" href="#Footnote_386_386" class="fnanchor">[386]</a>
+of its own which appears to have been a modified
+form of David Lloyd’s act of 1701 that had been rejected
+by the Crown. The governor at once objected to the
+administration of equity by county justices who had
+previously decided the same question at law, to which
+the assembly replied that the council should devote
+their attention to public affairs and leave private causes
+to the justices—</p>
+
+<blockquote>
+<p>“That the Court of Equity as proposed by the Bill, gives no
+Colour of authority for the same persons to Judge twice of the
+same cause, for that matters of Equity being originally begun
+there, and a Clause particularly obliging them not to intermeddle
+with matters of Law in the said Courts of Equity, and our Bill
+being warranted in that point by an act of Parlia<sup>mt</sup> which gives
+the Judges of the Common Law Power to determine matters
+of Equity in the same Sessions throughout the Dominion of
+Wales, We find no cause to Recede from what we have already
+proposed.”&#x2060;<a id="FNanchor_387_387" href="#Footnote_387_387" class="fnanchor">[387]</a>&#x2060;</p>
+</blockquote>
+
+<p>To this the council quickly replied that it was wiser
+to follow the practice of the “others of the Queen’s
+colonies” than to draw from the court of the “Marches
+of Wales, which for its inconveniency, ’tis said has been
+abrogated by act of Parliament.”&#x2060;<a id="FNanchor_388_388" href="#Footnote_388_388" class="fnanchor">[388]</a>&#x2060;</p>
+
+<p>This aroused the ire of the Welsh Speaker and back
+came the hot reply that whoever had advised that any
+<span class="pagenum" id="Page_173">[Pg 173]</span>part of the law which established courts in Wales was
+abrogated gave pernicious counsel to the governor.
+Only that portion of the ordinance of Wales which gave
+the president and council chancery powers had been
+suppressed, but the settlement of chancery in the respective
+counties of Wales, the foundation of the assembly’s
+bill had “had constant allowance since the time of King
+Henry ye 8th.”&#x2060;<a id="FNanchor_389_389" href="#Footnote_389_389" class="fnanchor">[389]</a>&#x2060;</p>
+
+<p>The governor rejoined that “if there were any mistake
+in a matter that is so foreign to us as the Courts of
+Wales, it might have been hinted to the Gov<sup>r</sup> in another
+language than calling it pernicious council,” and again
+urged that the court of chancery be settled as in other
+parts of the queen’s dominions.&#x2060;<a id="FNanchor_390_390" href="#Footnote_390_390" class="fnanchor">[390]</a> The assembly remained
+firm and were in a fair way to win this point, but the discussion
+of other features of the bill became so acrimonious
+that finally the house adjourned without passing any
+court law and the governor established the courts by an
+ordinance which, incidentally, conferred equity powers
+upon the county courts of common pleas and the supreme
+provincial court.&#x2060;<a id="FNanchor_391_391" href="#Footnote_391_391" class="fnanchor">[391]</a> The assembly vigorously protested
+that the ordinance was illegal but no compromise could
+be effected and the courts continued to sit by authority
+of the ordinance during the remainder of Evans’s administration.</p>
+
+<p>So far as equity was concerned, the anti-proprietary
+party had achieved a distinct success and it is not a
+little curious that this was, at least in part, due to the
+fact that their leader, a Welsh lawyer, could cite the
+courts of his native principality as a precedent for what
+he offered for adoption in Pennsylvania. Although the
+<span class="pagenum" id="Page_174">[Pg 174]</span>subject is inadequately treated by text writers it would
+seem that David Lloyd’s assertions were correct; that
+the court of the lord president and the council in the
+principality of Wales and the Marches had jurisdiction
+in cases of equity by force of the king’s commission and
+instructions;&#x2060;<a id="FNanchor_392_392" href="#Footnote_392_392" class="fnanchor">[392]</a>
+    that this court was abolished in 1689,&#x2060;<a id="FNanchor_393_393" href="#Footnote_393_393" class="fnanchor">[393]</a>
+and that equity jurisdiction was exercised thereafter by
+the court of great sessions, the principal law court of
+Wales, which was not visited by the English judges of
+assize.&#x2060;<a id="FNanchor_394_394" href="#Footnote_394_394" class="fnanchor">[394]</a> The procedure on the equity side of this court
+was by bill, answer and demurrer in accordance with
+ordinary chancery practice, although somewhat more
+dilatory than in the high court of chancery, owing to
+the long intervals between circuit and circuit.&#x2060;<a id="FNanchor_395_395" href="#Footnote_395_395" class="fnanchor">[395]</a> The
+jurisdiction of this court was, however, not exclusive
+either at law or in equity.&#x2060;<a id="FNanchor_396_396" href="#Footnote_396_396" class="fnanchor">[396]</a>&#x2060;</p>
+
+<p>It is unfortunate that the early records of our courts
+have not been preserved in such a condition as to
+afford much information regarding the extent that equity
+was administered under this system, if at all. In 1710
+an “act for establishing courts of judicature” was passed,
+<span class="pagenum" id="Page_175">[Pg 175]</span>which conferred appellate equity jurisdiction on the
+supreme court, and original equity jurisdiction on the
+county courts of common pleas with a proviso that—</p>
+
+<blockquote>
+<p>“When matters of fact shall happen to arise upon their
+examination, or hearing of the matters and causes to be heard
+and determined in the said court, then and in every such case,
+they shall order the matter of fact to issue and trial at the
+court of common pleas, for the proper county, where the fact
+ariseth, before they proceed to sentence or decree in the said
+court of equity.”&#x2060;<a id="FNanchor_397_397" href="#Footnote_397_397" class="fnanchor">[397]</a>&#x2060;</p>
+</blockquote>
+
+<p>This clause was largely responsible for the repeal of
+the act by the queen in council, Lord Raymond, the
+solicitor general, having given an opinion that it would
+“make proceedings in equity insufferably dilatory and
+multiply trials at law in the plain cases to no manner
+of purpose.”&#x2060;<a id="FNanchor_398_398" href="#Footnote_398_398" class="fnanchor">[398]</a> Upon notification of the repeal Governor
+Gookin revived the courts by an ordinance drafted by
+Robert Assheton which contained the substance of the
+repealed act in a more concise form.&#x2060;<a id="FNanchor_399_399" href="#Footnote_399_399" class="fnanchor">[399]</a> When the
+assembly took into consideration the reenactment of
+the court laws it was decided that separate laws should
+be passed for each of the courts and further resolved
+“that all matters of Equity, shall begin originally in
+the Provincial Court with Power to grant Injunctions
+and to have general jurisdiction over the Province.”&#x2060;<a id="FNanchor_400_400" href="#Footnote_400_400" class="fnanchor">[400]</a>
+What brought about this change of opinion on the part
+of David Lloyd, who was again speaker and principal
+draftsman of the acts passed in accordance with the
+<span class="pagenum" id="Page_176">[Pg 176]</span>resolution on May 28, 1715,&#x2060;<a id="FNanchor_401_401" href="#Footnote_401_401" class="fnanchor">[401]</a> must be left to conjecture.
+Experience had perhaps taught him by this time that
+the county courts were incapable of administering formal
+equity. At any rate the county courts of common pleas
+ceased to exercise chancery powers and the perpetuation
+of the Welsh system was left to depend on the supreme
+provincial court, which received the following chancery
+powers:—</p>
+
+<blockquote>
+<p>“Section III. And be it further enacted by the authority
+aforesaid, That the said judges of the supreme court are hereby
+also authorized and enabled to hold plea in equity, by bill,
+appeal, petition or suit, to be brought or exhibited in the said
+court by, for or against any person or persons whatsoever, for
+any discovery, or other matters relievable in equity; and thereupon
+to issue out process of subpœna or <i>distringas</i>, and all other
+usual process for compelling the parties defendants in such suits
+to appear, put in their answers and make their defenses to such
+bills, appeals, petitions (or) suits; and for the parties to proceed
+therein and thereupon according to such rules or orders, and in
+such manner and form as the courts of chancery and exchequer
+in Great Britain have used to proceed by.</p>
+
+<p>“And upon issues joined in any of the said causes or suits in
+equity, the said court is to cause witnesses to be examined if
+desired, on either side, by commissions to be awarded for that
+purpose, or by sworn or attested examiners; and after the publication
+of the depositions of the witnesses, to proceed to the
+hearing of the said causes, and upon proofs and evidences therein
+or thereupon, or upon bill and answer, where no witnesses shall
+be examined, or proofs made, to make such orders and decrees
+either for the r(elief of) the plaintiffs or for the directing any
+issue or issues at law to be (tried) for the information of the
+court, or for the dismissing of the said plaintiff’s bills or otherwise,
+as the said court shall see just and reasonable, and as is
+or hath been used in the said courts of chancery or exchequer in
+Great Britain.</p>
+
+<p>“And the said court shall award such process for the enforcing
+the parties, in the said suits, to yield obedience to such orders
+or decrees as shall be made in the said causes, and in case of
+non-performance thereof, or disobedience thereto, the said
+<span class="pagenum" id="Page_177">[Pg 177]</span>court shall award all such process of contempt against the persons
+and estates of him or them that shall be in contempt or
+refuse obedience to any of the said orders or decrees, and make
+and execute like process, orders and proceedings thereupon, as
+are and hath been used in like cases in or by the said courts of
+chancery or exchequer in Great Britain; and that the prothonotary
+of the supreme court shall be register of the said court of
+equity.”</p>
+</blockquote>
+
+<p>Unfortunately, the Act of 1715 received scant consideration
+from the lords commissioners of trade and
+was repealed by the king in council on July 21, 1719.&#x2060;<a id="FNanchor_402_402" href="#Footnote_402_402" class="fnanchor">[402]</a>&#x2060;</p>
+
+<p>The notification of the repeal of this law was received
+at a time when good feeling prevailed in the province.
+David Lloyd had been appointed chief justice and had
+ceased to be a disturbing factor, Andrew Hamilton, the
+bar leader of his time, was attorney general, while Sir
+William Keith, the governor, was at the height of his
+popularity. On May 3, 1720, the governor addressed a
+message to the assembly in which he stated that, having
+consulted gentlemen learned in the law, he was satisfied
+“that no representative body, in any of his Majesty’s
+colonies, is invested with the power to erect such a
+court, or that the office of chancellor can be lawfully
+executed by any person whatsoever, except him, who,
+by virtue of the great seal of England, may be understood
+to act as the King’s representative in the place.”
+On the following day the message was considered by the
+assembly and it was resolved, “that, considering the
+present circumstances of this Province, this House is of
+opinion, that, for the present, the Governor be desired
+to open and hold a court of equity for this Province,
+with the assistance of such of his council as he shall
+think fit, except such as have heard the same cause in
+any inferior court.”&#x2060;<a id="FNanchor_403_403" href="#Footnote_403_403" class="fnanchor">[403]</a>&#x2060;</p>
+
+<p><span class="pagenum" id="Page_178">[Pg 178]</span></p>
+
+<p>At a meeting of the council on August 6, 1720, the
+governor brought the matter to the attention of the
+members who resolved:—</p>
+
+<blockquote>
+<p>“That it is the Opinion of this Board, that by virtue of the
+Powers granted by the Royal Charter to the late Proprietor,
+his Heirs and Assigns, and to his and their Lieutents. or Deputies,
+being regularly appointed, the present Governour William
+Keith, Esqr., safely may comply with the Desire of the Representatives
+of the ffreemen of this Province, signified to him by an
+unanimous Resolution of their House, dated at Philadelphia
+the 4th day of May last, And that the holding of such a Court
+of Chancery in the manner aforesaid, may be of great Service
+to the Inhabitants of this Colony, and appears agreeable to the
+practice which has been approved of in the neighbouring Governments.</p>
+
+<p>“But the Governour speaking to his own want of Experience
+in Judicial Affairs, and representing to the Board the great
+Addition of Attendance and Fatigue in the public Business
+which would be thereby laid upon him, He was pleased to add
+nevertheless, that considering the many marks the House of
+Representatives and this Board had shewn of their Confidence
+in him in this as well as divers other respects, He should not
+decline to serve the Publick in that Station, but insisted on this,
+that as no Court of Chancery could by the method proposed be
+held without him, So that He, on the other hand, should not
+fail of having a due assistance from the Council on their parts;
+And it was thereupon, at the Governours desire, established and
+declared.</p>
+
+<p>“That as often as the Governour is to sit in Chancery and hold
+a Court, All the members of Council in or near Philadelphia,
+shall be summoned to attend the Governour as his assistants
+upon that Bench, and that there shall not any Decree be pronounced
+or made in Chancery but by the Governour as Chancellor,
+with the assent and concurrence of any two or more of the
+Six eldest of the Council for the time being, And that those Six
+eldest Counsellors or assistants, or any of them, may be employed
+by the Governour as Masters in Chancery, as often as
+Occasion shall require.</p>
+
+<p>“And that the Inhabitants may have due notice of the said
+Court, it is ordered that A Proclamation be issued certifying
+all his Majestys Liege People of this Province, that for the
+more equal Distribution of Justice and the Conveniency of the
+<span class="pagenum" id="Page_179">[Pg 179]</span>Subject, a Court of Equity or Chancery will be opened by the
+Governour, at the Court House in Philadelphia, upon the 25th
+day of this instant, August, in order to hear and judge of all
+such matters within this province, as are regularly cognizable
+before any Court of Chancery, according to the Laws and Constitutions
+of that part of Great Britain called England, and
+that the said Court will be always open for the Relief of the
+Subject; Whereof his Majestys Judges of the Supreme Court,
+and the Justices of the inferiour Courts, and all others whom it
+may concern are to take Notice, and to govern themselves
+accordingly.”&#x2060;<a id="FNanchor_404_404" href="#Footnote_404_404" class="fnanchor">[404]</a>&#x2060;</p>
+</blockquote>
+
+<p>Four days later the following proclamation was made:—</p>
+
+<blockquote>
+<p class="center">“COURT OF CHANCERY.</p>
+
+<p>“By William Keith Esqr. Govern<sup>r</sup> Of the Province of Pensivania
+&amp; Counties of New Castle, Kent &amp; Sussex, upon Delaware.
+A. Proclamation.</p>
+
+<p>“Whereas Complaint has been made, That Courts of Chancery
+or Equity are absolutely necessary in the Administration of
+Justice, for mitigating in many cases the Rigour of ye Laws,
+whose Judgments are tied down to fixed and unalterable Rules,
+and for Opening away to the Right and Equity Of a Cause for
+which the Law cannot in all cases make a Sufficient Provision.
+Have notwithstanding been but toe seldom regularly held in this
+Province, in such a manner as ye aggrieved Subject might obtain
+the Reliefe which by such Courts ought to be Granted. And
+Where as, the Representatives of ye Freemen of this Province
+taking ye same into Consideration, did at their last meeting
+in Assembly request me that I would with ye assistance of ye
+Council, Open and hold such a Court of Equity for this Province,
+To ye end therefore that his Majesties good Subjects may no
+longer Labour under these inconveniences which are now Complained
+Of, I have thought fitt, by and with the advice of the
+Council, hereby to Publish and Declare, That with their assistance
+I Purpose (God willing) to open and hold a Court of Chancery
+or Equity, for this Province of Pensilvania, at ye Court
+House of Philadelphia, on Thursday the Twenty fifth day of
+this instant August, From which Date the Said Court will be
+and remain Always Open for the Reliefe of ye Subject, to hear
+and Determine all such matters arrising within the Province
+<span class="pagenum" id="Page_180">[Pg 180]</span>afores<sup>d</sup>, as are regularly Cognizable before any Court of Chancery,
+According to ye Laws and Constitution of that part of
+Great Britain called England. And his Majesties Judges of his
+Supream Court, as well as ye Justices of the Inferior Courts,
+and all others whom it may Concern, are required to take Notice
+hereof, and to govern themselves Accordingly. Given at Philadelphia,
+ye tenth day of August, in the Seventh year of the
+Reign of our Sovereign Lord George King of Great Britain,
+France &amp; Ireland, Defender of the Faith &amp;c. Annoq. Domini
+1720.</p>
+
+<p>“God Save the King.</p>
+
+<p class="author">
+  “W. Keith.”&#x2060;<a id="FNanchor_405_405" href="#Footnote_405_405" class="fnanchor">[405]</a>
+</p>
+</blockquote>
+
+<p>A few days later the assembly took into consideration
+the governor’s proclamation and on the twenty-eighth
+of August extended to him their thanks for his message
+and requested that he should choose as his assistants
+those who had not heard the cases before in the inferior
+courts, to which the governor readily assented and in
+this auspicious manner was established the first and
+only separate court of chancery in Pennsylvania. When
+the common law courts were once more established by
+the Act of May 22, 1722,&#x2060;<a id="FNanchor_406_406" href="#Footnote_406_406" class="fnanchor">[406]</a> no equity jurisdiction was
+conferred upon either the supreme or county courts.</p>
+
+<p>On the twenty-fifth of August, 1720, Sir William Keith
+qualified as chancellor and appointed Charles Brockden
+registrar. James Logan and five other members of the
+council were named as masters and from time to time
+thereafter other appointments both of masters and examiners
+were made. The proceedings of the court,
+long buried in oblivion, are not referred to in the
+reported cases, and the only allusion to them by an early
+historian is a statement by Proud that John Kinsey,
+afterwards chief justice, was compelled by Sir William
+to take off his hat when addressing the court, an act
+<span class="pagenum" id="Page_181">[Pg 181]</span>which brought upon the governor a remonstrance by
+the quarterly meeting of Friends.&#x2060;<a id="FNanchor_407_407" href="#Footnote_407_407" class="fnanchor">[407]</a> Thanks to the
+perseverance of William Henry Rawle, Esq., a portion
+of the records of the court were found in a folio volume
+that had lain neglected for many years among the unpublished
+archives of the state department and which proved
+to be the registrar’s book. A critical examination of
+the cases contained in the register will be found in Mr.
+Rawle’s admirable address on Equity in Pennsylvania,
+delivered before the Law Academy of Philadelphia in
+1868.&#x2060;<a id="FNanchor_408_408" href="#Footnote_408_408" class="fnanchor">[408]</a> Among the cases in which the court of chancery
+exercised jurisdiction were bills for account and
+for partition; to subject land to the payment of debts
+and legacies; to stay waste; to restrain proceedings at
+law; to take the testimony of witnesses in foreign parts;
+to settle differences between partners; petitions for writs
+<i>de lunatico inquirendo</i>, and for writs <i>ne exeat provincia</i>.&#x2060;<a id="FNanchor_409_409" href="#Footnote_409_409" class="fnanchor">[409]</a>
+The frequent use of the last named writ is interesting.
+Confined in its original application to cases involving
+the safety of the realm, its use had, in time, extended
+to private causes as a means of procuring equitable
+bail. The departure of a litigant out of the jurisdiction
+of the court without security for his appearance was a
+serious matter indeed in days when communication
+between Europe and America was slow and difficult.</p>
+
+<p>The case of <i>Cole</i> v. <i>Wathell</i>&#x2060;<a id="FNanchor_410_410" href="#Footnote_410_410" class="fnanchor">[410]</a> is curious, as an application
+to chancery in an admiralty cause. The complainants,
+part owners of a ship, filed a petition setting
+forth that the defendant, also a part owner, had refused
+to join with them in fitting out and loading the vessel
+for a proposed voyage, that she was about to sail for the
+<span class="pagenum" id="Page_182">[Pg 182]</span>Barbadoes and there being no person in this government
+acting as judge of vice-admiralty, they were obliged
+to apply to the governor, as chancellor, for equitable
+relief and praying that, “according to the custom and
+usage in such cases,” the chancellor would appoint
+appraisers, to value the defendant’s interest, they being
+willing to account to him for the appraised value. The
+defendant was given time to dispose of his interest or
+join in fitting out the ship, but he left town without
+leaving any notice of what he had done or intended to
+do, whereupon an order was made appointing three
+appraisers, who filed a return valuing the defendant’s
+interest at “two hundred and forty pounds current
+money of Pennsylvania.” In <i>Blad</i> v. <i>Bamfield</i>,&#x2060;<a id="FNanchor_411_411" href="#Footnote_411_411" class="fnanchor">[411]</a> Lord
+Nottingham said: “I took this occasion to show that,
+the court of chancery hath always had an admiral
+jurisdiction, not only <i>per viam appellationis</i>, but <i>per viam
+evocationis</i> too, and may send for any cause out of the
+admiralty to determine it here.” On several other occasions
+the lord chancellor asserted and enforced this concurrent
+jurisdiction, which extended at least to cases of
+depredations on the sea, and has long been deemed
+obsolete, so that it is quite possible, although by no
+means certain, that a knowledge of these seventeenth
+century precedents may have induced the complainants
+in <i>Cole</i> v. <i>Wathell</i> to seek relief in chancery.</p>
+
+<p>From the minutes in the register it would appear that
+the cases did not proceed with much rapidity, in fact
+many of them were before the court for several years,
+delayed by all sorts of dilatory motions. In a partition
+case&#x2060;<a id="FNanchor_412_412" href="#Footnote_412_412" class="fnanchor">[412]</a> one of the defendants was particularly obstinate.
+<span class="pagenum" id="Page_183">[Pg 183]</span>Having refused to appear in response to a subpœna and
+<i>alias</i> subpœna, he was attached and remained in jail
+from June, 1733, to November, 1734, when counsel for
+complainants moved that the bill be taken <i>pro confesso</i>
+against him. He was then set at liberty and ordered
+to prepare an answer within a month, which he declined
+to do, whereupon the court proceeded to a hearing and
+entered a decree for partition and mutual conveyances.
+This he declined to obey and in the archives will be
+found the proof of service of notice on him, with his
+answer that “he had been informed that there was a
+decree against him but that he did not care.”&#x2060;<a id="FNanchor_413_413" href="#Footnote_413_413" class="fnanchor">[413]</a> A writ
+of partition then issued, the nature of which is not
+explained.</p>
+
+<p>The counsel practicing most frequently in the court
+were Andrew Hamilton, Joseph Growdon, John Kinsey
+and Peter Evans. Of the cases recorded only two were
+decided by Sir William Keith, who was removed by the
+proprietors from the office of governor in 1726 after a
+quarrel with Logan. His successor, Patrick Gordon,
+upon being applied to by the parties to proceed with
+several cases before the court, hesitated to act until he
+had consulted with the council as to his authority. The
+matter was debated and the governor assured that he
+might legally assume the duties of the office, whereupon
+he took the oath as chancellor.&#x2060;<a id="FNanchor_414_414" href="#Footnote_414_414" class="fnanchor">[414]</a> It was further proposed
+that rules should be drawn up for the better
+regulation of the court and the speedier dispatch of
+business, and David Lloyd, the chief justice, and Andrew
+Hamilton were named for that purpose.</p>
+
+<p>So far as can be discovered the practice in the court
+followed that of England. Suit was commenced by
+bill; a <i>subpœna ad respondendum</i> then issued; an answer
+<span class="pagenum" id="Page_184">[Pg 184]</span>or demurrer was filed by the respondents; testimony was
+taken before examiners, or the matter referred to one
+of the masters; injunctions were issued and decrees
+enforced by attachment. On the whole, considering
+the number of years the court was in existence, the
+amount of business brought before it was small. Undoubtedly
+the tedious and technical character of the proceedings,
+their expense and the fact that the sittings of
+the court were dependent upon the convenience of the
+governor, tended to discourage litigants from seeking
+legal redress through such a channel.</p>
+
+<p>In 1736 the silent dislike with which the court was
+regarded changed into open hostility. Perhaps the contagion,
+if it may be so described, spread from New York,
+where, in 1735, the general assembly had resolved that
+the court of chancery held by the governor without their
+consent was “contrary to law, unwarrantable, and of
+dangerous consequence to the liberties and properties of
+the people.”&#x2060;<a id="FNanchor_415_415" href="#Footnote_415_415" class="fnanchor">[415]</a> Petitions were presented, signed by inhabitants
+of Philadelphia, Bucks and Chester counties,
+complaining to the assembly that the holding of a court
+of chancery before the governor and council was contrary
+to a clause in Penn’s charter of privileges which provided—</p>
+
+<blockquote>
+<p>“That no person or persons shall or may, at any time hereafter,
+be obliged to answer any Complaint, matter or thing
+Whatsoever Relating to Property before the Govern<sup>r</sup> and Council,
+or in any other place but in the ordinary Courts of Justice,
+unless appeals thereunto shall be hereafter by Law appointed.”&#x2060;<a id="FNanchor_416_416" href="#Footnote_416_416" class="fnanchor">[416]</a>&#x2060;</p>
+</blockquote>
+
+<p>Even before the meeting of the assembly the subject
+had been taken up by the press and a spirited controversy
+had been carried on by contributors to the <i>Mercury</i>
+<span class="pagenum" id="Page_185">[Pg 185]</span>and the <i>Gazette</i>.&#x2060;<a id="FNanchor_417_417" href="#Footnote_417_417" class="fnanchor">[417]</a> The assembly sent a message to the
+governor requesting information as to how the court of
+chancery was constituted,&#x2060;<a id="FNanchor_418_418" href="#Footnote_418_418" class="fnanchor">[418]</a> and on March 27, 1736,
+resolved, “That the court of chancery as it is at present
+established is contrary to the charter of privileges granted
+to the freemen of this province.”&#x2060;<a id="FNanchor_419_419" href="#Footnote_419_419" class="fnanchor">[419]</a> It was then resolved
+that the justices of the county courts be given power
+to determine all suits in equity under one hundred
+pounds, that a supreme court of equity should also be
+established, to which appeals might be taken from the
+inferior courts and which should also have original jurisdiction
+in all matters of equity “<i>prima instantia</i>” when
+the value of the claim exceeded one hundred pounds.
+The judges of this court were to consist of three persons,
+to be commissioned by the governor out of any
+six that should be nominated by the house. A bill was
+framed to this effect.&#x2060;<a id="FNanchor_420_420" href="#Footnote_420_420" class="fnanchor">[420]</a>&#x2060;</p>
+
+<p>The charge that he was violating the charter angered
+Governor Gordon and it was ordered that a vindication
+of the proceedings of the governor and council be prepared
+and published. Accordingly a voluminous report
+was drawn up by James Logan, giving a history of the
+establishment of the court, which, he said, was erected
+at the request of the assembly upon the best legal advice
+that could be procured, “particularly that of our then
+Attorney General, Andrew Hamilton, Esq., who was
+<span class="pagenum" id="Page_186">[Pg 186]</span>esteemed and allowed to be as able in that Profession
+as any on the Continent of America,”—a fling at Hamilton,
+who as speaker of the assembly was now leading the
+opposition to the court. The report went on to argue
+that the word “property” as used in the charter had
+reference to the proprietary grants and that a court of
+chancery was an “ordinary court of justice.” It concluded—</p>
+
+<blockquote>
+<p>“The Assembly however may be assured, that none of the
+Council are fond, or in the least desirous, of the Employment,
+and if the Governor shews any Inclination the Court should be
+continued on the same Foot, we are perswaded it can be from
+no other Inducement than his Desire to preserve Decency and
+Order, and some Resemblance between this Government and all
+the other British Ones in America.”&#x2060;<a id="FNanchor_421_421" href="#Footnote_421_421" class="fnanchor">[421]</a>&#x2060;</p>
+</blockquote>
+
+<p>The assembly replied that they intended no offense
+to the governor or his council and were surprised at their
+resentment; that a vote of the house was not sufficient
+to raise a court nor was the opinion of one or more
+lawyers, who were left to answer for themselves, or the
+silence of subsequent assemblies of any consideration in
+the case; that they were sorry to see gentlemen of such
+penetration as the members of the council resigning
+away the common sense of the charter; that great men
+and even courts were often mistaken as to their own
+jurisdiction; that it had been decided in England that a
+court of equity could not be established except by act
+of parliament, and if the king could not raise such a
+court how could the deputy of the king’s patentee do so?
+They further hoped to be pardoned for saying that, in
+their opinion it would have been more reasonable if
+notice had been taken of their resolution in time to save
+them the trouble of preparing the bill relating to courts
+of equity, which had long lain before the governor unapproved
+<span class="pagenum" id="Page_187">[Pg 187]</span>although the session of the assembly was
+drawing to a close.&#x2060;<a id="FNanchor_422_422" href="#Footnote_422_422" class="fnanchor">[422]</a>&#x2060;</p>
+
+<p>Here the controversy was dropped, the assembly soon
+after adjourned and the governor continued to act as
+chancellor until his death in the following summer.
+The matter seems to have disturbed the proprietary
+party, for a case was stated presenting all the facts and
+the opinions taken of the Solicitor General, Sir Dudley
+Ryder, and the Attorney General, Sir John Willes, upon
+the legality of the court. They held, in effect, that the
+king had power, in erecting a new form of government
+in Pennsylvania, to authorize Penn to erect courts of
+equity and that the consent of the legislature was not
+necessary until Penn had made it so by the charter of
+1701; that the unanimous resolution of 1720 was a sufficient
+declaration of the assent of the legislature to the
+erection of the court, and that the court could be lawfully
+held until the whole legislature passed an act to
+the contrary.&#x2060;<a id="FNanchor_423_423" href="#Footnote_423_423" class="fnanchor">[423]</a> Nevertheless, Logan, who as president
+of the council administered the government for two
+years, probably felt that the office of chancellor was outside
+of the scope of his temporary duties and when
+Thomas was appointed lieutenant governor, in 1738,
+the court was not revived. The proprietors were unwilling
+to give up the court and refer to the matter several
+times in their correspondence. “We desire,” wrote
+Thomas Penn to Mr. Peters, September 28, 1751, “that
+the court of chancery may be established in a manner
+most favorable to the people, without giving up the
+king’s prerogative with which we are entrusted, we
+should have some share of influence, else the trial would
+not be equal. We are willing, however, that the assembly
+<span class="pagenum" id="Page_188">[Pg 188]</span>should regulate the court.”&#x2060;<a id="FNanchor_424_424" href="#Footnote_424_424" class="fnanchor">[424]</a> Nevertheless the assembly
+continued its opposition until the end of the proprietary
+government.</p>
+
+<p>Thus, in the words of Horace Binney, Pennsylvania
+lost this system of justice because “her governors and
+representatives could not agree by whom the office
+of chancellor should be held.”&#x2060;<a id="FNanchor_425_425" href="#Footnote_425_425" class="fnanchor">[425]</a> The same dispute
+occurred in the other colonies and was settled according
+to the exigencies of local politics. There is no indication,
+however, of any real dislike on the part of the people
+to the principles of equity; in fact the petition from
+Bucks County against the governor’s court distinctly
+demanded that some provision be made for such as
+want relief in equity, by the erection of courts of equity
+“more convenient for their attendance and less expensive
+to those who may have business there.” While
+that from Chester County requested—</p>
+
+<blockquote>
+<p>“That some Provision suitable to the Circumstances of the
+people may be made for such as want Relief in Equity, without
+being obliged to travel from the remotest parts of the Province
+to Philadelphia, &amp; there to attend that Court at a very great &amp;
+heavy Expence, Which Proceedings, as the Business of that
+Court does Increase, will undoubtedly become a very great
+Grievance to the People.”&#x2060;<a id="FNanchor_426_426" href="#Footnote_426_426" class="fnanchor">[426]</a>&#x2060;</p>
+</blockquote>
+
+<p>It has been suggested that the opposition to the court
+of chancery would not have taken concrete form but
+for the influence of Andrew Hamilton who had recently
+been one of the defendants in an important equity suit
+brought in the high court of chancery of England where
+a decree had been entered against him.&#x2060;<a id="FNanchor_427_427" href="#Footnote_427_427" class="fnanchor">[427]</a> But this is
+<span class="pagenum" id="Page_189">[Pg 189]</span>hardly probable. Hamilton was a man of wealth and
+influence enjoying a large practice, with a reputation for
+political independence; he had represented the proprietors
+in their controversy with Lord Baltimore and
+had defended the printer, Peter Zenger, in his famous
+trial at New York, and his activity was probably due to
+a desire to see the court put on a sound and popular
+basis. It is fascinating to read into history the characters
+of the chief actors, and particularly tempting
+when, as here, the strong personalities of such men as
+David Lloyd and Andrew Hamilton are found asserting
+themselves at the critical periods for equity in Pennsylvania.
+But too much may easily be made of this side
+of the story; the inhabitants were jealous of the power
+of the proprietors, they distrusted the governors and
+suspected the purposes of the Crown, they wanted cheap
+justice and demanded that it be brought to their doors,
+the very name “chancery” was odious and they would
+have none of it, while the governors and councilors, in
+their zeal for uniformity of practice in the British
+dominions, sacrificed the substance, equity, for the
+shadow, the chancellorship.</p>
+
+<p>As a man, after an amputation, makes shift as best
+he can with an artificial limb, so Pennsylvania proceeded
+slowly to construct a substitute for the discarded court.
+That the loss was not acutely felt, or at least realized, may
+be inferred from the fact that we hear no more on the
+subject from the legislature, where real or fancied
+grievances were then aired with greater persistency than
+in these days of unlimited appropriations and limited
+debates. The court act of 1722, previously quoted,
+conferred upon the supreme court the power to exercise
+its jurisdiction as fully as the justices of the king’s
+bench, common pleas and exchequer at Westminster
+might do, and a plea might have been made for the
+exercise by the supreme court of the chancery powers
+<span class="pagenum" id="Page_190">[Pg 190]</span>of the barons of the exchequer. But the ill success that
+finally attended the efforts of Governor Cosby of New
+York to maintain this position, in his celebrated suit
+against his predecessor, Rip Van Dam, would have discouraged
+any one from urging a view so unpopular.&#x2060;<a id="FNanchor_428_428" href="#Footnote_428_428" class="fnanchor">[428]</a>
+The orphans’ court was, within its field, a court of equity,
+and, in regard to the estates of minors, exercised the
+functions of the chancellor.</p>
+
+<p>The fact that our pre-revolutionary reports are confined
+to the notes of a few lawyers makes it doubly difficult
+to investigate the beginning of the system by which
+equitable principles were worked out through common
+law forms. The first case in which the subject is mentioned
+is <i>Swift</i> v. <i>Hawkins</i>,&#x2060;<a id="FNanchor_429_429" href="#Footnote_429_429" class="fnanchor">[429]</a> where, in an action of debt
+on a bond, the court under the plea of payment, admitted
+evidence of want (probably a misprint for failure) of
+consideration, which, said Chief Justice Allen, was a
+necessity, to prevent a failure of justice, there being no
+court of chancery in the province; and this, he said, he
+had known to be the constant practice of the courts for
+thirty-nine years past. If the chief justice is accurately
+reported this would carry the practice back to 1729,
+before the abolition of the court of chancery, but Chief
+Justice Allen was in a position to speak with authority,
+having sat in the common pleas as early as 1732.</p>
+
+<p>In <i>Wharton</i> v. <i>Morris</i>,&#x2060;<a id="FNanchor_430_430" href="#Footnote_430_430" class="fnanchor">[430]</a> Chief Justice McKean, in
+charging the jury on the question as to whether a bond
+payable in “lawful current money of Pennsylvania”
+could be paid in depreciated currency, remarked that—</p>
+
+<blockquote>
+<p>“The want of a court with equitable powers, like those of
+the chancery in England, had long been felt in Pennsylvania.
+The institution of such a court, he observed, had once been
+agitated here, but the houses of assembly, antecedent to the
+<span class="pagenum" id="Page_191">[Pg 191]</span>revolution, successfully opposed it; because they were apprehensive
+of increasing, by that means, the power and influence
+of the governor, who claimed it as a right to be chancellor. For
+this reason, many inconveniences have been suffered. No adequate
+remedy is provided for a breach of trust; no relief can be
+obtained in cases of covenants with a penalty, &amp;c. This defect
+of jurisdiction has necessarily obliged the court, upon such
+occasions, to refer the question to the jury, under an equitable
+and conscientious interpretation of the agreement of the parties.”</p>
+</blockquote>
+
+<p>In the same year, the court of common pleas of Philadelphia
+County in <i>Dorrow</i> v. <i>Kelly</i>,&#x2060;<a id="FNanchor_431_431" href="#Footnote_431_431" class="fnanchor">[431]</a> held that a simple
+contract debt could not be tacked to a mortgage, President
+Judge Shippen saying, that while the courts of the
+state had in some instances adopted chancery rules to
+prevent an absolute failure of justice, there was no
+necessity in this case to usurp the powers of a court
+of chancery, an act of assembly having directed the
+mode of proceeding on mortgages and confined the
+recovery to principal and interest.</p>
+
+<p>The first statutory efforts to give relief as in equity
+were, naturally, by private acts, where the interests
+involved were sufficiently important to warrant a direct
+interference by the legislature. Among these was an
+act passed in 1757&#x2060;<a id="FNanchor_432_432" href="#Footnote_432_432" class="fnanchor">[432]</a> to enable certain testamentary
+trustees to carry out an agreement of the testator by
+the execution of deeds of conveyance; another in 1761&#x2060;<a id="FNanchor_433_433" href="#Footnote_433_433" class="fnanchor">[433]</a>
+to enable trustees to sell lands settled in trust for the
+Oxford church and with the money arising therefrom
+to purchase other lands; a third in 1772&#x2060;<a id="FNanchor_434_434" href="#Footnote_434_434" class="fnanchor">[434]</a> confirming the
+title to land where the deed had, by some accident, been
+torn and defaced, and a fourth in the same year where
+the deed had been lost.&#x2060;<a id="FNanchor_435_435" href="#Footnote_435_435" class="fnanchor">[435]</a> One act will serve as an illustration.
+<span class="pagenum" id="Page_192">[Pg 192]</span>Godfrey Brown mortgaged land in Cheltenham
+township to the Trustees of the General Loan Office
+of the Province and subsequently conveyed to Philip
+Fox. Fox paid the mortgage and then it was found
+that two deeds in the chain of title, that had been
+pledged to the trustees according to the custom of their
+office, were lost, and, although diligent search had been
+made in the loan office and elsewhere, they could not
+be found. Therefore “to prevent the damages and
+mischiefs which may arise from the loss of the said
+deeds,” on petition of Philip Fox, it was enacted that
+the grantors in said deeds and their heirs be barred
+and forever excluded from all claims to the said premises
+which should vest in the petitioner absolutely, saving
+the rights of others than the said grantors.&#x2060;<a id="FNanchor_436_436" href="#Footnote_436_436" class="fnanchor">[436]</a>&#x2060;</p>
+
+<p>The first legislative attempt to give equitable relief
+by a general act, was contained in the Act of January
+22, 1774,&#x2060;<a id="FNanchor_437_437" href="#Footnote_437_437" class="fnanchor">[437]</a> to compel trustees and assignees of insolvent
+debtors to execute their trusts. By this law the courts
+of common pleas were empowered, on petition, to appoint
+commissioners to audit the accounts of such trustees
+and upon their report to order the trustees to forthwith
+pay the creditors their just proportions of the funds with
+which they were charged.</p>
+
+<p>The next halting step was taken in the constitution of
+1776 which contained the following clause:—</p>
+
+<blockquote>
+<p>“The supreme court and the several courts of common pleas
+of this commonwealth shall, besides the powers usually exercised
+<span class="pagenum" id="Page_193">[Pg 193]</span>by such courts, have the powers of a court of chancery, so
+far as relates to the perpetuating testimony, obtaining evidence
+from places not within this state, and the care of the persons
+and estates of those who are <i>non compotes mentis</i>, and such
+other powers as may be found necessary by future general assemblies,
+not inconsistent with this constitution.”&#x2060;<a id="FNanchor_438_438" href="#Footnote_438_438" class="fnanchor">[438]</a>&#x2060;</p>
+</blockquote>
+
+<p>No such other powers were conferred except by the
+Act of March 28, 1786,&#x2060;<a id="FNanchor_439_439" href="#Footnote_439_439" class="fnanchor">[439]</a> which authorized the supreme
+court upon bill setting forth the loss of deeds or other
+writings, to issue a subpœna, requiring the persons named
+to appear and answer; to refer the matter to a master
+and upon his report to make such order and decree as
+to justice and equity should appertain. This statute
+appears to have been occasioned by the frequent complaints
+of the loss of deeds which could only be remedied
+by private acts such as those already referred to. By
+the Act of September 28, 1789,&#x2060;<a id="FNanchor_440_440" href="#Footnote_440_440" class="fnanchor">[440]</a> proceedings akin to
+discovery were authorized in foreign attachment. The
+plaintiff after judgment against the defendant was permitted
+to exhibit interrogatories to the garnishees, who
+were required to answer under oath.</p>
+
+<p>On the twenty-fourth of November, 1789, there met
+at Philadelphia a convention to draft a new constitution
+for the state. The members were abler and more
+representative men than those who had framed the short-lived
+constitution of 1776. The committee of nine who
+prepared the first draft of the proposed constitution
+included James Wilson, William Lewis, Alexander Addison
+<span class="pagenum" id="Page_194">[Pg 194]</span>and James Ross. The plan submitted by them
+included a high court of chancery presided over by a
+chancellor with state-wide jurisdiction, and a court of
+chancery in each judicial district, or circuit, except that
+in which the high court should be held, presided over
+by the president judge of the court of common pleas
+with the same power as the chancellor except that of
+granting injunctions to stay proceedings or suspend
+judgments at law. From a decree in chancery in
+any circuit an appeal was allowed to the chancellor of
+the state. Determined opposition to this plan developed
+in the convention and after a prolonged contest in committee
+of the whole, the provision for a court of chancery
+was struck out of the judiciary article and limited
+equity powers were conferred on the existing courts in
+the following words:—</p>
+
+<blockquote>
+<p>Art. V. Section VI. “The supreme court and the several
+courts of common pleas shall, beside the powers heretofore
+usually exercised by them, have the powers of a court of chancery
+so far as relates to the perpetuating of testimony, the
+obtaining of evidence from places not within the state, and the
+care of the persons and estates of those who are <i>non compotes
+mentis</i>. And the legislature shall vest in the said courts such
+other powers to grant relief in equity as shall be found necessary;
+and may, from time to time, enlarge or diminish those powers;
+or vest them in such other courts as they shall judge proper for
+the due administration of justice.”&#x2060;<a id="FNanchor_441_441" href="#Footnote_441_441" class="fnanchor">[441]</a>&#x2060;</p>
+</blockquote>
+
+<p>So ended the last effort to obtain a separate court of
+chancery in Pennsylvania. This much was conceded,
+the legislature was authorized not only to extend the
+equity powers of the existing courts, but to vest them
+in such other courts as they should judge proper. But
+the latter power was not exercised by the creation of a
+separate court, nor were equity powers conferred upon
+<span class="pagenum" id="Page_195">[Pg 195]</span>the ordinary courts in a systematic manner. From time
+to time, under the compulsion of sheer necessity, equitable
+jurisdiction was extended by a series of acts the
+mere recital of which is wearisome.&#x2060;<a id="FNanchor_442_442" href="#Footnote_442_442" class="fnanchor">[442]</a> Delaware, however,
+whose political and judicial history was so long
+and so intimately associated with that of Pennsylvania,
+took the step declined by her sister commonwealth and
+established a separate court of chancery by the constitution
+of June 12, 1792.&#x2060;<a id="FNanchor_443_443" href="#Footnote_443_443" class="fnanchor">[443]</a>&#x2060;</p>
+
+<p>As we have seen, the constitutions of 1776 and 1790
+expressly conferred upon the courts the power to grant
+relief in certain cases. Of these, the first, the perpetuation
+of testimony, was exercised directly under the constitution
+in accordance with chancery practice; the
+second, the obtaining of evidence from places out of the
+state, by commissions and rule of court;&#x2060;<a id="FNanchor_444_444" href="#Footnote_444_444" class="fnanchor">[444]</a> as to the
+third, the care of idiots and lunatics, the power of determining
+the question of insanity was exercised through
+the medium of a commissioner and inquest according
+to chancery practice.&#x2060;<a id="FNanchor_445_445" href="#Footnote_445_445" class="fnanchor">[445]</a> In addition the legislature by a
+series of acts, prior to 1836, conferred additional powers
+the most important of which were to compel trustees
+to account, to discharge and dismiss them, to compel
+the conveyance of the legal estate where the trust had
+expired, to compel discovery in aid of execution in certain
+cases relating to corporations and corporate stock,
+and to compel the specific performance of a contract
+<span class="pagenum" id="Page_196">[Pg 196]</span>for the sale of lands, where the vendor had died, by an
+order empowering the executors or administrators to
+execute a deed.&#x2060;<a id="FNanchor_446_446" href="#Footnote_446_446" class="fnanchor">[446]</a>&#x2060;</p>
+
+<p>If the sum total of legislation seems meagre today, it
+can only be said that public opinion in regard to law
+reform moves slowly, and the bar, while dissatisfied
+with some features of the system, was not clear as to the
+direction reform should take. As will be seen presently,
+the simpler equities had been worked out through the
+common law actions and it was thought practicable to
+extend this method by the revival of neglected actions
+and an extension of their remedial effects. Such was
+the thesis maintained by Mr. Laussat in his brilliant
+essay&#x2060;<a id="FNanchor_447_447" href="#Footnote_447_447" class="fnanchor">[447]</a> and the favorable reception it received shows
+how obstinately loyal a bar may become to an inadequate
+system that they have been taught to revere.
+These views were respected by the commissioners to
+revise the civil code when, in 1835, they took up the
+question of equity. Some of the subjects ordinarily
+dealt with in a court of chancery, such as mortgages,
+they found had been fully covered by statutes; others
+could be covered in the same manner by acts that they
+had prepared; others were within the sphere of the
+orphans’ courts. It was in the peculiar means of administering
+preventive justice that the courts of equity
+possessed a decided superiority over the courts of law,
+and it was here that the Pennsylvania system was most
+defective and the recommendations of the commissioners
+most radical. The commissioners were opposed to
+a separate court of chancery as unnecessary, and
+also opposed to keeping up a separate chancery
+organization in the existing tribunals. The courts, they
+<span class="pagenum" id="Page_197">[Pg 197]</span>said, had pursued certain established modes of practice
+which now for more than a century had become familiar
+to the community. “To recast the whole system then,
+to establish a class of equitable remedies for all equitable
+cases, and to confine the common law procedure to
+common law subjects,” would produce, they thought,
+“greater inconveniences than any benefit which might
+be supposed in theory to arise from the change.”&#x2060;<a id="FNanchor_448_448" href="#Footnote_448_448" class="fnanchor">[448]</a> Upon
+the whole, they thought that the safest plan to pursue
+was to give relief whenever possible by some familiar
+common law remedy, and when full relief could not be
+given by such process, to resort by statute to the methods
+of the chancery courts.</p>
+
+<p>Upon the recommendation of the commissioners the
+legislature extended the equity powers of the courts as
+follows in the Act of June 13, 1836:&#x2060;<a id="FNanchor_449_449" href="#Footnote_449_449" class="fnanchor">[449]</a>&#x2060;—</p>
+
+<blockquote>
+<p>“The Supreme court, and the several courts of Common
+Pleas, shall have the jurisdiction and powers of a court of Chancery,
+so far as relates to—</p>
+
+<p>“I. The perpetuation of testimony:</p>
+
+<p>“II. The obtaining of evidence from places not within the
+state:</p>
+
+<p>“III. The care of the persons and estate of those who are <i>non
+compos mentis</i>:</p>
+
+<p>“IV. The control, removal and discharge of trustees, and the
+appointment of trustees, and the settlement of their accounts:</p>
+
+<p>“V. The supervision and control of all corporations other
+than those of a municipal character, and unincorporated societies
+or associations, and partnerships:</p>
+
+<p>“VI. The care of trust monies and property, and other
+monies and property made liable to the control of the said
+courts.</p>
+
+<p><span class="pagenum" id="Page_198">[Pg 198]</span></p>
+
+<p>“And in such other cases, as the said courts have heretofore
+possessed such jurisdiction and powers, under the constitution
+and laws of this commonwealth.</p>
+
+<p>“And in every case in which any court as aforesaid, shall
+exercise any of the powers of a court of Chancery, the same
+shall be exercised according to the practice in equity, prescribed
+or adopted by the Supreme court of the United States, unless it
+be otherwise provided by act of assembly, or the same shall
+be altered by the Supreme court of this commonwealth, by
+general rules and regulations, made and published as is hereinbefore
+provided; and the Supreme court when sitting in banc,
+in the city of Philadelphia, and the court of Common Pleas for
+the said city and county, shall besides the powers and jurisdiction
+aforesaid, have the power and jurisdiction of courts of
+Chancery so far as relates to—</p>
+
+<p>“I. The supervision and controul of partnerships, and corporations
+other than municipal corporations.</p>
+
+<p>“II. The care of trust monies and property, and other monies
+and property made liable to the controul of the said courts.</p>
+
+<p>“III. The discovery of facts material to a just determination
+of issues, and other questions arising or depending in the said
+courts.</p>
+
+<p>“IV. The determination of rights to property or money
+claimed by two or more persons in the hands or possession of a
+person claiming no right of property therein.</p>
+
+<p>“V. The prevention or restraint of the commission or continuance
+of acts contrary to law, and prejudicial to the interests
+of the community or the rights of individuals.</p>
+
+<p>“VI. The affording specific relief, when a recovery in damages
+would be an inadequate remedy: <i>Provided</i>, That in relation
+to the discovery of facts material to a just determination of
+issues, and other questions, the District court for the city and
+county of Philadelphia, shall have the same power and authority,
+within its jurisdiction, as is hereby conferred on the court of
+Common Pleas for the said city and county: <i>And provided further</i>,
+That no process to be issued by the said courts of the city and
+county of Philadelphia, or the Supreme court sitting therein,
+under the chancery powers herein specially granted, excepting
+such as have heretofore been exercised shall at any time be
+executed beyond the limits of the city and county aforesaid.”</p>
+</blockquote>
+
+<p>In conferring these powers the legislature did not
+adopt in full the recommendations of the commissioners,
+<span class="pagenum" id="Page_199">[Pg 199]</span>who in the bill reported by them embraced the whole
+state as the field for the operation of chancery remedies,
+but confined a portion to Philadelphia County, yielding
+to the prejudices of the interior counties where want of
+familiarity with the forms of chancery procedure had
+created a special distaste for a change in practice. The
+unqualified success of the extension of equity jurisdiction
+in Philadelphia County led to a rapid change of opinion;
+in twenty years the wisdom of the commission’s recommendations
+was vindicated and the courts of common
+pleas of all the counties were invested with the same
+equity powers that the courts of Philadelphia possessed.&#x2060;<a id="FNanchor_450_450" href="#Footnote_450_450" class="fnanchor">[450]</a>
+These powers had in the meantime been increased by an
+extension to all cases of fraud, accident, mistake, account,&#x2060;<a id="FNanchor_451_451" href="#Footnote_451_451" class="fnanchor">[451]</a>
+discovery,&#x2060;<a id="FNanchor_452_452" href="#Footnote_452_452" class="fnanchor">[452]</a> dower and partition.&#x2060;<a id="FNanchor_453_453" href="#Footnote_453_453" class="fnanchor">[453]</a>
+    The extension
+of equity jurisdiction to partition was most advantageous,
+since the court could upon bill determine the
+rights of the parties in a far more satisfactory manner
+than by a common law action, which would rarely be
+resorted to now were it not for the fear of the expense
+involved in a reference to a master.</p>
+
+<p>A catalogue of the statutory additions to the equity
+powers of the courts would unnecessarily prolong this
+discussion. They will be found in the digests and books
+on practice. In one important particular it became
+necessary to rectify the opinion of the commissioners
+that the remedy by <i>scire facias sur</i> mortgage was adequate
+by an extension of the equity powers of the
+common pleas to corporation mortgages. It having
+been held that the trustee named in a corporation mortgage
+<span class="pagenum" id="Page_200">[Pg 200]</span>could not maintain a bill to foreclose, an act was
+passed conferring this necessary power.&#x2060;<a id="FNanchor_454_454" href="#Footnote_454_454" class="fnanchor">[454]</a> With respect
+to charities, legislation also became necessary to give
+effect in a limited extent to the doctrine of <i>cy-pres</i>.&#x2060;<a id="FNanchor_455_455" href="#Footnote_455_455" class="fnanchor">[455]</a>&#x2060;</p>
+
+<p>As important as any clause in the Act of 1636 was
+that which empowered the supreme court to adopt
+equity rules for the whole state which the courts of
+common pleas could neither disregard nor suspend.&#x2060;<a id="FNanchor_456_456" href="#Footnote_456_456" class="fnanchor">[456]</a>
+The power has been wisely exercised by the adoption of
+clear and concise rules that have operated as a check
+upon slovenly practice and furthered that uniformity
+which should characterize the administration of justice.
+In the interest of economy, regularity and certainty it is
+unfortunate that the same course has not been adopted
+in regard to actions at law. A recent act&#x2060;<a id="FNanchor_457_457" href="#Footnote_457_457" class="fnanchor">[457]</a> provides that
+where a bill in equity has been filed, if the defendant
+desires to question the jurisdiction of the court, he must
+do so by demurrer or answer, explicitly so stating, or
+praying for an issue; otherwise the right of trial by jury
+shall be deemed to have been waived. If the demurrer
+or answer avers that the suit should have been brought
+at law, that issue shall be decided <i>in limine</i> before hearing
+on the merits, and if the court decide that the suit
+should have been brought at law it shall certify the
+case to the law side of the court at the cost of the plaintiff.
+So, on appeal, if the decision of the appellate
+<span class="pagenum" id="Page_201">[Pg 201]</span>court is that the suit should have been brought at law it
+shall remit the cause with directions to transfer it to the
+law side of the court.</p>
+
+<p>It is necessary to say something in reference to the
+nature of the equitable relief administered through
+common law forms, a subject of unusual interest inasmuch
+as it has had a profound influence upon the development
+of legal procedure in the commonwealth. Independently
+of the form of action, it has been said, “our
+courts will advance the equitable rights of plaintiffs,
+where, through some accident that occurred anterior
+to the institution of his suit, or that happens during its
+pendency his common law remedy would be taken away
+or rendered nugatory.”&#x2060;<a id="FNanchor_458_458" href="#Footnote_458_458" class="fnanchor">[458]</a> An early case illustrating this
+principle is <i>Respublica</i> v. <i>Coates</i>,&#x2060;<a id="FNanchor_459_459" href="#Footnote_459_459" class="fnanchor">[459]</a> an action of debt on a
+bond brought in the supreme court against the defendant
+as surety. Levy, for the plaintiff, moved for a rule
+to show cause why the declaration should not be amended
+by striking out the <i>profert</i> and averring the loss of the
+obligation. Lewis and Sergeant, for the defendant, declared
+that they would not object to the rule being made
+absolute, as they apprehended a late authority had
+settled the practice in England.&#x2060;<a id="FNanchor_460_460" href="#Footnote_460_460" class="fnanchor">[460]</a> The court made the
+rule absolute, declaring that it was absolutely necessary
+such practice should be adopted here to prevent a
+failure of justice, there being no court of chancery to
+protect against such accident.</p>
+
+<p>The common law actions that were made the vehicles
+of equitable rights were assumpsit, debt, covenant,
+replevin, ejectment and partition; in fact nearly all the
+personal actions have been employed to support equitable
+<span class="pagenum" id="Page_202">[Pg 202]</span>claims. “I do not like the idea,” said Mr. Justice
+Huston, “that our equitable powers are more extensive
+in one form of action than another.”&#x2060;<a id="FNanchor_461_461" href="#Footnote_461_461" class="fnanchor">[461]</a> Assumpsit is an
+equitable action and lies, according to the familiar
+phrase, in all cases where the defendant has money
+which <i>ex æquo et bono</i> belongs to the plaintiff.&#x2060;<a id="FNanchor_462_462" href="#Footnote_462_462" class="fnanchor">[462]</a> Thus
+where there had been a recovery in ejectment against
+tenants and the landlord died, it was held indebitatus
+assumpsit would lie against the landlord’s executors to
+recover rents received, from the time the plaintiffs’ title
+accrued, as a substitute for a bill in equity, and the
+question was submitted to the jury as to whether the
+defendant’s testator had misrepresented their title to
+the plaintiffs and concealed the defects in his own.&#x2060;<a id="FNanchor_463_463" href="#Footnote_463_463" class="fnanchor">[463]</a>&#x2060;</p>
+
+<p>An illustration of the free use of the equitable
+powers of the court will be found in <i>Bixler</i> v. <i>Kunkle</i>,&#x2060;<a id="FNanchor_464_464" href="#Footnote_464_464" class="fnanchor">[464]</a>
+an action of assumpsit for money had and received by
+the defendants to the use of the plaintiff. It appeared
+that plaintiff’s father had by his will directed his executors
+to lay out a certain sum in land for the plaintiff’s
+separate use and that the executors had procured a
+release from her by fraud on payment of about one half
+of what was due. Judgment was entered for the plaintiff,
+the money to be paid into court and expended under
+the court’s direction in the purchase of land according
+to the will. Chief Justice Gibson, however, thought
+that the judgment exceeded the powers of the court,
+although jurisdiction to decree a trust would be most
+salutary.</p>
+
+<p>So also, where by articles of agreement for the sale of
+land a deed was to have been delivered on a certain
+<span class="pagenum" id="Page_203">[Pg 203]</span>date, and in covenant on the articles it appeared that
+it had been verbally agreed that delivery should take
+place on a subsequent date. Chief Justice Tilghman was
+of the opinion that the action could have been supported
+if the declaration had been amended so as to set forth
+the alteration of the agreement. “I see,” he said, “no
+certain mode of doing equity to both parties, but by
+issuing a writ of covenant in the usual form and permitting
+the declaration to partake so much of the nature
+of a bill of equity as to set forth the truth of the case.
+To this the defendant may plead anything which in
+law or equity will serve him, and thus the parties may
+go to trial on the merits of the case.” And Mr. Justice
+Gibson added: “The declaration is in effect a bill in
+equity; for in England the plaintiff could not recover in
+a court of law: I cannot, therefore, see why those equitable
+circumstances that are the very foundation of
+the action, should not be set forth. Performance by
+the plaintiff at a subsequent day, and acceptance by the
+defendant, is in equity equivalent to performance
+strictly at the day, and ought to have been alleged here.
+Principles of equity cannot be administered through
+common law forms, strictly such, without having recourse
+to fiction, which leads to serious inconvenience.
+The facts as they exist ought, in all cases where it is
+practicable, to be set forth.”&#x2060;<a id="FNanchor_465_465" href="#Footnote_465_465" class="fnanchor">[465]</a>&#x2060;</p>
+
+<p>Replevin had from the earliest times a wider scope
+than in England, being applicable in every case in which
+goods and chattels in the possession of one person were
+claimed by another.&#x2060;<a id="FNanchor_466_466" href="#Footnote_466_466" class="fnanchor">[466]</a> So too, in partition an equitable
+estate was held sufficient to support the action, as in
+<span class="pagenum" id="Page_204">[Pg 204]</span><i>Stewart</i> v. <i>Brown</i>,&#x2060;<a id="FNanchor_467_467" href="#Footnote_467_467" class="fnanchor">[467]</a>
+    where it was held that if a person
+purchase land at a tax sale under an agreement that
+another should be equally concerned, he would be considered
+as holding for the plaintiff and himself as tenants
+in common. The technical and nearly obsolete action
+of account render was frequently resorted to as a substitute
+for the bill in equity for an account. The action
+of ejectment became at an early date, through the
+ingenuity of the courts, the most important mode of
+enforcing the equity of a plaintiff in real property. In
+<i>Hawthorn</i> v. <i>Bronson</i>,&#x2060;<a id="FNanchor_468_468" href="#Footnote_468_468" class="fnanchor">[468]</a> it is thus described by Mr.
+Justice Duncan:—</p>
+
+<blockquote>
+<p>“The equitable action of ejectment, in this state, forms a
+considerable branch of the law. From the nature of our original
+titles, settlement-rights, warrants and applications, all imperfect
+rights, so variant in their circumstances from other countries,
+our courts of justice have been obliged to form a system
+of laws adapted to this species of title, and accommodated to
+all its circumstances, and which, perhaps, could not, after all
+our experience, be changed to advantage; and which, indeed,
+ought not to be changed, however specious the reason might be,
+as it would tend to destroy all security of title, and introduce
+new confusion, which nothing but a steady adherence to decisions
+can prevent. And when to this is added, that in general,
+the people contract by articles for payment by instalments,
+and the legal title is seldom made, until all the purchase-money
+is paid, and the frequent essignment of these articles, we ought
+not to be surprised at the numerous complicated cases which
+arise in our courts of law and equity; for they are courts of law
+and equity distributing justice by the same medium—the instrumentality
+of a jury. In Pennsylvania, equity is law. Courts
+give the equitable principles to the jury, as they lay down the
+legal principles. The facts are for the decision of the jury, as
+all contested facts must be; but whether, on any state of facts
+found by the jury, the party is entitled to equity, and the mode,
+manner and extent of relief, is for the court.”</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_205">[Pg 205]</span></p>
+
+<p>Wherever chancery would enforce specifically a contract
+for the sale of land, it is said, the same relief will be
+granted in Pennsylvania by ejectment.&#x2060;<a id="FNanchor_469_469" href="#Footnote_469_469" class="fnanchor">[469]</a> Thus ejectment
+lies by the vendor against the vendee in possession
+under articles who has paid part of the purchase money
+and defaulted on the remainder.&#x2060;<a id="FNanchor_470_470" href="#Footnote_470_470" class="fnanchor">[470]</a> So also by the vendee,
+upon tendering the purchase money.&#x2060;<a id="FNanchor_471_471" href="#Footnote_471_471" class="fnanchor">[471]</a> Difficulties were
+encountered, as might be expected, in cases involving a
+construction of the statute of frauds which are too technical
+for discussion here.&#x2060;<a id="FNanchor_472_472" href="#Footnote_472_472" class="fnanchor">[472]</a>&#x2060;</p>
+
+<p>The interest of the assignee of a chose in action was
+also recognized and protected in actions at law, and on
+the other hand, the assignee made liable to set-offs and
+costs in the same manner as if the suit had been instituted
+in his own name. The practice which prevailed
+from a time antedating the Revolution was to bring the
+suit in the name of the assignor and mark it to the use
+of the assignee.&#x2060;<a id="FNanchor_473_473" href="#Footnote_473_473" class="fnanchor">[473]</a>&#x2060;</p>
+
+<p>It was a somewhat simpler matter to give effect to the
+equities of a defendant, since this did not involve an
+extension of the scope of common law writs or the revival
+of obsolete actions as substitutes for chancery procedure.
+The rules of pleading and evidence interposed
+the chief barrier to the admission of equitable defenses
+<span class="pagenum" id="Page_206">[Pg 206]</span>and these were broken down at an early period. And
+whatever may be said as to the insufficiency of the
+remedies afforded to a plaintiff, it must be admitted, as
+observed by Mr. Rawle,&#x2060;<a id="FNanchor_474_474" href="#Footnote_474_474" class="fnanchor">[474]</a> that the protection given to a
+defendant in Pennsylvania was in advance of the law
+as elsewhere administered. There were two ways in
+which it was possible to present the equity of a defendant,
+first by giving evidence of equitable matter, under
+a general plea, and second, where from the nature
+of the case it was improper to make a defense under a
+general plea by pleading specially the facts constituting
+the equitable grounds of defense.&#x2060;<a id="FNanchor_475_475" href="#Footnote_475_475" class="fnanchor">[475]</a>&#x2060;</p>
+
+<p>The first reported case describing the practice of giving
+in evidence, under the plea of payment, matters of equitable
+defense is <i>Swift</i> v. <i>Hawkins</i>&#x2060;<a id="FNanchor_476_476" href="#Footnote_476_476" class="fnanchor">[476]</a> already referred to,
+“the Magna Charta,” says Mr. Justice Duncan, “of this
+branch of equity.”&#x2060;<a id="FNanchor_477_477" href="#Footnote_477_477" class="fnanchor">[477]</a> Seven years later, in 1775, the
+supreme court, to prevent surprise at trials, adopted a
+rule that every person, intending to give special matter
+in evidence under the general issue, must give notice in
+writing ten days before trial of the special facts he intended
+to rely on and, because it had been adjudged
+that under the plea of payment the defendant might
+give evidence that a bond or specialty was given “without
+any or good consideration,” for the future in all
+such cases, the defendant should thirty days before trial
+give notice in writing of his intention to offer such evidence.&#x2060;<a id="FNanchor_478_478" href="#Footnote_478_478" class="fnanchor">[478]</a>
+<span class="pagenum" id="Page_207">[Pg 207]</span>From that day every practicing attorney in
+Pennsylvania has, at some time in his career, started
+from his sleep in the middle of the night in a cold sweat,
+wondering if he <i>did</i> give notice in that case on tomorrow’s
+list.</p>
+
+<p>Where an equitable defense is set up under the plea
+of payment with notice of special matter, the plea is a
+substitute for a bill in equity, and under it the jury may
+and should presume everything to have been paid which
+in equity and good conscience the defendant ought not
+to be compelled to pay. The nature of the plea, says
+Chief Justice Gibson,&#x2060;<a id="FNanchor_479_479" href="#Footnote_479_479" class="fnanchor">[479]</a> has frequently been misunderstood.
+It is not the general issue. As an equitable
+plea it makes room only for what would sustain a bill
+in chancery, and as a legal plea it makes room only for
+evidence of direct payment, or what is the equivalent
+of payment where the plea is directed by act of assembly.
+The various equitable defenses permitted under the
+plea may be classed under the familiar heads of fraud,
+accident, mistake, and failure of consideration.&#x2060;<a id="FNanchor_480_480" href="#Footnote_480_480" class="fnanchor">[480]</a> The
+same liberality as to evidence was not favored under
+the plea of non assumpsit. It was said by Chief Justice
+Tilghman&#x2060;<a id="FNanchor_481_481" href="#Footnote_481_481" class="fnanchor">[481]</a> that if the circumstances afforded grounds
+for relief in equity, the defendant should give notice
+of special matter under the plea of payment.</p>
+
+<p>In the action of covenant, the plea of performance, or
+covenants performed, almost obsolete in England, was,
+<span class="pagenum" id="Page_208">[Pg 208]</span>with notice of special matter held sufficient to support
+any evidence which would discharge the defendant in
+equity.&#x2060;<a id="FNanchor_482_482" href="#Footnote_482_482" class="fnanchor">[482]</a> In ejectment an equitable defense would protect
+the defendant’s possession, but by statute&#x2060;<a id="FNanchor_483_483" href="#Footnote_483_483" class="fnanchor">[483]</a> the plea
+of “not guilty” was the only one allowed. There was
+also permitted, in addition to the statutory set-off, an
+equitable defense in the nature of set-off applicable to
+acts of nonfeasance or misfeasance by the plaintiff
+connected with his cause of action, not matter of defalcation
+but directed to the defeat of the claim in whole
+or part. As to replications and subsequent pleadings,
+if a plea was put in founded in equity the plaintiff was
+permitted in reply to set up any special facts sufficient
+to destroy that equity.&#x2060;<a id="FNanchor_484_484" href="#Footnote_484_484" class="fnanchor">[484]</a>&#x2060;</p>
+
+<p>Another powerful instrument in the administration of
+equity under common law forms was the conditional
+verdict frequently used as a substitute for an injunction
+or a bill for specific performance. In such a case, where
+the plaintiff had set out in his declaration the whole
+ground of his equitable right, the jury under the direction
+of the court might find large damages to be released
+on condition of compliance with the terms prescribed
+by the verdict, which terms were for the jury alone to
+impose.&#x2060;<a id="FNanchor_485_485" href="#Footnote_485_485" class="fnanchor">[485]</a> So also the power of the court to control or
+open judgments has been exercised according to equitable
+principles and with a view to preventing injustice
+under color of law.</p>
+
+<p>Such then is the system which Horace Binney contemptuously
+described as “a spurious equity compounded
+<span class="pagenum" id="Page_209">[Pg 209]</span>of the temper of the judge and the feelings of the jury,
+with nothing but a strong infusion of integrity to prevent
+it from becoming as much the bane of personal security
+as it was the bane of science.”&#x2060;<a id="FNanchor_486_486" href="#Footnote_486_486" class="fnanchor">[486]</a> The early bar, however,
+regarded it much as a mother does a deformed child;
+they loved it, they doctored it and resented reflections
+upon its symmetry and efficiency.&#x2060;<a id="FNanchor_487_487" href="#Footnote_487_487" class="fnanchor">[487]</a> Extravagant notions
+were at one time entertained as to the possibility of
+extending the system by the employment of long forgotten
+actions, such as the assize of nuisance,&#x2060;<a id="FNanchor_488_488" href="#Footnote_488_488" class="fnanchor">[488]</a> and by
+widening the scope of the writ of <i>scire facias</i>.&#x2060;<a id="FNanchor_489_489" href="#Footnote_489_489" class="fnanchor">[489]</a> As has
+been shown, more sensible counsel prevailed and limited
+chancery powers were extended to the courts by statute.</p>
+
+<p>If the court of chancery had been excluded in the
+eighteenth century from our system of justice as the
+first step in a movement for the scientific reform of procedure,
+the result might have been far-reaching. But it
+was not. Political considerations dictated the change
+and the best legal opinion of the day was adverse to the
+innovation. Anglo-American jurisprudence was founded
+on the inherited conception of a dual system, law and
+equity, each with its distinct functions. The excision
+of equity crippled and paralysed the administration of
+justice. Having destroyed chancery forms, the next
+logical step should have been to abolish all distinctions
+between common law forms and substitute one simple
+<span class="pagenum" id="Page_210">[Pg 210]</span>method of proceeding, under which equity and law alike
+could be administered. But such a conception was in
+advance of the times. Instead, from time to time under
+the pressure of necessity, efforts were made to administer
+equitable principles through forms that even for
+their own legitimate purposes were fast becoming
+archaic. The result was to create a new series of technicalities
+requiring a glossary of their own. When
+chancery powers were conferred upon the courts, the
+fact that relief was given in common law forms might
+have presented an obstacle to the exercise of equity
+jurisdiction in many instances, had not the courts, by a
+liberal construction of the acts conferring such jurisdiction,
+insisted that it was not sufficient to oust the
+jurisdiction of equity that complainant had a remedy at
+law, unless that remedy was as complete, adequate,
+practical, efficient and convenient to the ends of justice
+as that in equity. Nevertheless there are cases where
+the distinction is still far from clear, a situation that
+would be ridiculous were it not so serious to prospective
+litigants.</p>
+
+<p>Another disadvantage that attended the system was
+that the equities of the respective parties were to a large
+extent left to the chance decision of a jury, which is
+more likely to be guided by sympathy or prejudice than
+the law of the case, or, with the best intentions in the
+world, is an unsatisfactory tribunal for the determination
+of complicated questions of fact. No doubt this is one
+reason for the great number of references to arbitrators
+to be found on the early dockets.</p>
+
+<p>It is true that for purely defensive purposes the
+system had decided advantages. It permitted a defendant
+to put in an equitable defense without resorting to
+another jurisdiction for relief. But on the offensive it
+broke down. The common law offered no adequate
+substitute for the bill for an injunction, to enforce
+<span class="pagenum" id="Page_211">[Pg 211]</span>specific performance of contracts, to reform or cancel
+instruments, to obtain a receiver, for the bill <i>quia timet</i>
+and the bill of peace. Present social and commercial
+conditions tend to increase rather than diminish the
+importance of equity jurisdiction. Such matters as
+trade-marks, copyrights and patents; corporations, associations
+and trusts; trade disputes and interstate commerce,
+present problems that would seem almost incapable
+of solution except through chancery procedure, either
+in its original form or as assimilated by code practice,
+without a revolutionary reconstruction of the entire
+legal system.</p>
+
+<p>Some reformation of our procedure belongs to the
+future. Of that we may be certain. It is impossible
+to imagine that our technical and complicated practice
+will not fall some day of its own weight and be replaced
+by a procedure clearer, simpler and more scientific. In
+that golden age, when the practice of law will be a pleasant
+diversion and the bringing of a suit the opening bar
+of a symphony, if one of our learned profession now living
+is permitted, as a shade, to revisit the scene of his earthly
+struggles, he will be able, perhaps, to recognize traces
+of equity procedure, but the common law actions will
+belong as completely to the past as himself, or, to put it
+more humanely, as the <i>actio sacramenti</i> of the Roman
+or the weregeld of the Saxon.</p>
+
+
+<div class="footnotes">
+<h3>FOOTNOTES:</h3>
+
+<div class="footnote"><p><a id="Footnote_353_353" href="#FNanchor_353_353" class="label">[353]</a> Parkes’s History of the High Court of Chancery.</p></div>
+
+<div class="footnote"><p><a id="Footnote_354_354" href="#FNanchor_354_354" class="label">[354]</a> Maine’s Ancient Law, chapter 3.</p></div>
+
+<div class="footnote"><p><a id="Footnote_355_355" href="#FNanchor_355_355" class="label">[355]</a> Courts of Chancery in the American Colonies, S. D. Wilson,
+American Law Review, Vol. XVIII, 226, reprinted in Select
+Essays in Anglo-American Legal History, Vol. II, 779; Story’s
+Miscellaneous Writings, 151. History of Equity in the American
+Colonies, E. B. Gager, in Two Centuries’ Growth of American
+Law, chapter 6.</p></div>
+
+<div class="footnote"><p><a id="Footnote_356_356" href="#FNanchor_356_356" class="label">[356]</a> Charter and Laws of Pennsylvania, 35.</p></div>
+
+<div class="footnote"><p><a id="Footnote_357_357" href="#FNanchor_357_357" class="label">[357]</a> Charter and Laws of Pennsylvania, 61.</p></div>
+
+<div class="footnote"><p><a id="Footnote_358_358" href="#FNanchor_358_358" class="label">[358]</a> V Pennsylvania Archives (2d series), 697.</p></div>
+
+<div class="footnote"><p><a id="Footnote_359_359" href="#FNanchor_359_359" class="label">[359]</a> Sussex County Records (Turner), 76.</p></div>
+
+<div class="footnote"><p><a id="Footnote_360_360" href="#FNanchor_360_360" class="label">[360]</a> V Pennsylvania Archives (2d series), 679.</p></div>
+
+<div class="footnote"><p><a id="Footnote_361_361" href="#FNanchor_361_361" class="label">[361]</a> VII Pennsylvania Archives (2d series), 799.</p></div>
+
+<div class="footnote"><p><a id="Footnote_362_362" href="#FNanchor_362_362" class="label">[362]</a> Broadhead’s History of New York, Vol. II, 385, gives the
+date of the act as November 1, 1683. It appears in the laws of
+1694 as of 1691. Compare preface to 1 Johnson’s Chancery
+Reports (N. Y.).</p></div>
+
+<div class="footnote"><p><a id="Footnote_363_363" href="#FNanchor_363_363" class="label">[363]</a> New York Colonial Documents, Vol. IV, 882.</p></div>
+
+<div class="footnote"><p><a id="Footnote_364_364" href="#FNanchor_364_364" class="label">[364]</a> IV New Jersey Archives, 70.</p></div>
+
+<div class="footnote"><p><a id="Footnote_365_365" href="#FNanchor_365_365" class="label">[365]</a> New York Colonial Documents, Vol. V, 298.</p></div>
+
+<div class="footnote"><p><a id="Footnote_366_366" href="#FNanchor_366_366" class="label">[366]</a> Sussex County Records (Turner), 97.</p></div>
+
+<div class="footnote"><p><a id="Footnote_367_367" href="#FNanchor_367_367" class="label">[367]</a> I Colonial Records, 21, 4, 5 mo. 1683.</p></div>
+
+<div class="footnote"><p><a id="Footnote_368_368" href="#FNanchor_368_368" class="label">[368]</a> I Colonial Records, 65, 14, 6 mo. 1684.</p></div>
+
+<div class="footnote"><p><a id="Footnote_369_369" href="#FNanchor_369_369" class="label">[369]</a> I Colonial Records, 63, 20 4 mo. 1684.</p></div>
+
+<div class="footnote"><p><a id="Footnote_370_370" href="#FNanchor_370_370" class="label">[370]</a> Charter and Laws of Pennsylvania, 167.</p></div>
+
+<div class="footnote"><p><a id="Footnote_371_371" href="#FNanchor_371_371" class="label">[371]</a> I Colonial Records, 75, 3, 2 mo. 1685.</p></div>
+
+<div class="footnote"><p><a id="Footnote_372_372" href="#FNanchor_372_372" class="label">[372]</a> Chester County Records, 3, 10 mo. 1686, quoted by Peter
+McCall in his address before the Law Academy, 21.</p></div>
+
+<div class="footnote"><p><a id="Footnote_373_373" href="#FNanchor_373_373" class="label">[373]</a> I Colonial Records, 159, 12, 3 mo. 1687.</p></div>
+
+<div class="footnote"><p><a id="Footnote_374_374" href="#FNanchor_374_374" class="label">[374]</a> I Votes of the Assembly, 41.</p></div>
+
+<div class="footnote"><p><a id="Footnote_375_375" href="#FNanchor_375_375" class="label">[375]</a> Charter and Laws of Pennsylvania, 184. The assembly
+tried to strike out the word equity, I Votes of the Assembly, 57.</p></div>
+
+<div class="footnote"><p><a id="Footnote_376_376" href="#FNanchor_376_376" class="label">[376]</a> Charter and Laws of Pennsylvania, 214, 225. See also Act
+of November 27, 1700, II Statutes at Large, 134.</p></div>
+
+<div class="footnote"><p><a id="Footnote_377_377" href="#FNanchor_377_377" class="label">[377]</a> I Colonial Records, 161, 18, 3 mo. 1687; I Colonial Records
+441, April 24, 1695; I Colonial Records, 442, May 25, 1695; I
+Colonial Records, 478, May 24, 1697.</p></div>
+
+<div class="footnote"><p><a id="Footnote_378_378" href="#FNanchor_378_378" class="label">[378]</a> I Votes of the Assembly, 79.</p></div>
+
+<div class="footnote"><p><a id="Footnote_379_379" href="#FNanchor_379_379" class="label">[379]</a> Charter and Laws of Pennsylvania, 100, re-enacted November
+27, 1700; II Statutes at Large, 128.</p></div>
+
+<div class="footnote"><p><a id="Footnote_380_380" href="#FNanchor_380_380" class="label">[380]</a> II Statutes at Large, 148. See Charter and Laws of Pennsylvania,
+300.</p></div>
+
+<div class="footnote"><p><a id="Footnote_381_381" href="#FNanchor_381_381" class="label">[381]</a> II Statutes at Large, 481.</p></div>
+
+<div class="footnote"><p><a id="Footnote_382_382" href="#FNanchor_382_382" class="label">[382]</a> II Colonial Records, 115, 29, 11 mo. 1703-4.</p></div>
+
+<div class="footnote"><p><a id="Footnote_383_383" href="#FNanchor_383_383" class="label">[383]</a> II Colonial Records, 164, 15, 7 mo. 1704.</p></div>
+
+<div class="footnote"><p><a id="Footnote_384_384" href="#FNanchor_384_384" class="label">[384]</a> II Colonial Records, 189, 13, 2 mo. 1704-5.</p></div>
+
+<div class="footnote"><p><a id="Footnote_385_385" href="#FNanchor_385_385" class="label">[385]</a> II Colonial Records, 263, 23, 7 mo. 1706.</p></div>
+
+<div class="footnote"><p><a id="Footnote_386_386" href="#FNanchor_386_386" class="label">[386]</a> II Colonial Records, 266, 25, 7 mo. 1706.</p></div>
+
+<div class="footnote"><p><a id="Footnote_387_387" href="#FNanchor_387_387" class="label">[387]</a> II Colonial Records, 280, 27, 9 mo. 1706.</p></div>
+
+<div class="footnote"><p><a id="Footnote_388_388" href="#FNanchor_388_388" class="label">[388]</a> II Colonial Records, 282, November 28, 1706.</p></div>
+
+<div class="footnote"><p><a id="Footnote_389_389" href="#FNanchor_389_389" class="label">[389]</a> II Colonial Records, 288, 2, 10 mo. 1706.</p></div>
+
+<div class="footnote"><p><a id="Footnote_390_390" href="#FNanchor_390_390" class="label">[390]</a> II Colonial Records, 295, 23, 10 mo. 1706.</p></div>
+
+<div class="footnote"><p><a id="Footnote_391_391" href="#FNanchor_391_391" class="label">[391]</a> Charter and Laws of Pennsylvania, 319. The remonstrance
+of the Assembly will be found in II Colonial Records, 362.
+March 4, 1706-7.</p></div>
+
+<div class="footnote"><p><a id="Footnote_392_392" href="#FNanchor_392_392" class="label">[392]</a> IV Coke’s Institutes, 242; Pembrokeshire by Owen of
+Heullys (1603), Folio 74a, edition of 1892, page 155; History of
+Radnorshire by Rev. Jonathan Williams, 72; Archæologia Cambrensis,
+Vol. III (series 3), 29; Bacon’s Law Tracts, Jurisdiction
+of the Marches.</p></div>
+
+<div class="footnote"><p><a id="Footnote_393_393" href="#FNanchor_393_393" class="label">[393]</a> I William and Mary, chapter 27.</p></div>
+
+<div class="footnote"><p><a id="Footnote_394_394" href="#FNanchor_394_394" class="label">[394]</a> The court of great sessions was abolished by the act of I William
+IV, chapter 70; Stephen’s Commentaries on the Law of
+England (1st edition), Introduction, § 4.</p></div>
+
+<div class="footnote"><p><a id="Footnote_395_395" href="#FNanchor_395_395" class="label">[395]</a> Abbot’s Jurisdiction and Practice of the Court of Great
+Sessions of Wales (1795), 94 and introduction, xxviii.</p></div>
+
+<div class="footnote"><p><a id="Footnote_396_396" href="#FNanchor_396_396" class="label">[396]</a> Viner’s Abridgment, title, Wales, D., <i>Morgan</i> v. ——, I
+Atkins’ Reports, 408 (1737); <i>Griffith</i> v. <i>Joanes</i>, Choyce Cases in
+Chancery, 129 (1578); Prohibitions might issue from the King’s
+Bench directed to the Court of Great Sessions, <i>Vaughn</i> v. <i>Evans</i>,
+8 Modern Reports, 374 (1725), <i>Trantor</i> v. <i>Duggan</i>, 12 Modern
+Reports, 138 (1698).</p></div>
+
+<div class="footnote"><p><a id="Footnote_397_397" href="#FNanchor_397_397" class="label">[397]</a> February 28, 1710-11, II Statutes at Large, 301; Charter and
+Laws of Pennsylvania, 323.</p></div>
+
+<div class="footnote"><p><a id="Footnote_398_398" href="#FNanchor_398_398" class="label">[398]</a> II Statutes at Large, 549, 1 Pennsylvania Archives (1st
+Series), 157.</p></div>
+
+<div class="footnote"><p><a id="Footnote_399_399" href="#FNanchor_399_399" class="label">[399]</a> II Statutes at Large, 556; Charter and Laws of Pennsylvania,
+351; The Assembly, as usual, protested against this ordinance,
+II Colonial Records, 599, August 4, 1714.</p></div>
+
+<div class="footnote"><p><a id="Footnote_400_400" href="#FNanchor_400_400" class="label">[400]</a> II Votes of the Assembly, 161, 20, 11 mo. 1714-15.</p></div>
+
+<div class="footnote"><p><a id="Footnote_401_401" href="#FNanchor_401_401" class="label">[401]</a> III Statutes at Large, 65.</p></div>
+
+<div class="footnote"><p><a id="Footnote_402_402" href="#FNanchor_402_402" class="label">[402]</a> III Statutes at Large, 439, 464.</p></div>
+
+<div class="footnote"><p><a id="Footnote_403_403" href="#FNanchor_403_403" class="label">[403]</a> Charter and Laws of Pennsylvania, 305; II Votes of the
+Assembly, 271; III Colonial Records, 84, June 8, 1720.</p></div>
+
+<div class="footnote"><p><a id="Footnote_404_404" href="#FNanchor_404_404" class="label">[404]</a> III Colonial Records, 100, August 6, 1720.</p></div>
+
+<div class="footnote"><p><a id="Footnote_405_405" href="#FNanchor_405_405" class="label">[405]</a> Charter and Laws of Pennsylvania, 386, II Votes of the
+Assembly, 274.</p></div>
+
+<div class="footnote"><p><a id="Footnote_406_406" href="#FNanchor_406_406" class="label">[406]</a> II Statutes at Large, 298.</p></div>
+
+<div class="footnote"><p><a id="Footnote_407_407" href="#FNanchor_407_407" class="label">[407]</a> Proud’s History of Pennsylvania, Vol. II, 200.</p></div>
+
+<div class="footnote"><p><a id="Footnote_408_408" href="#FNanchor_408_408" class="label">[408]</a> The lecture was published by the Law Academy of Philadelphia
+in 1868 with the register as an appendix.</p></div>
+
+<div class="footnote"><p><a id="Footnote_409_409" href="#FNanchor_409_409" class="label">[409]</a> Rawle’s Equity in Pennsylvania, 26.</p></div>
+
+<div class="footnote"><p><a id="Footnote_410_410" href="#FNanchor_410_410" class="label">[410]</a> Rawle’s Equity in Pennsylvania, 38, appendix 23 (1728).</p></div>
+
+<div class="footnote"><p><a id="Footnote_411_411" href="#FNanchor_411_411" class="label">[411]</a> 3 Swanston’s Reports, 604 (1674); <i>Blad’s Case</i>, 3 Swanston’s
+Reports, 603 (1673); <i>Denew</i> v. <i>Stock</i>, 3 Swanston’s Reports, 662
+(1677); <i>Rex</i> v. <i>Carew</i>, 3 Swanston’s Reports, 699 (1682);
+Spence’s Equity, Vol. I, 703.</p></div>
+
+<div class="footnote"><p><a id="Footnote_412_412" href="#FNanchor_412_412" class="label">[412]</a> <i>Ellis</i> v. <i>Ellis</i>, Rawle’s Equity in Pennsylvania, appendix,
+34.</p></div>
+
+<div class="footnote"><p><a id="Footnote_413_413" href="#FNanchor_413_413" class="label">[413]</a> I Pennsylvania Archives (1st Series), 442.</p></div>
+
+<div class="footnote"><p><a id="Footnote_414_414" href="#FNanchor_414_414" class="label">[414]</a> III Colonial Records, 281, February 2, 1726-7.</p></div>
+
+<div class="footnote"><p><a id="Footnote_415_415" href="#FNanchor_415_415" class="label">[415]</a> Smith’s History of New York, Vol. II, 24.</p></div>
+
+<div class="footnote"><p><a id="Footnote_416_416" href="#FNanchor_416_416" class="label">[416]</a> II Colonial Records, 56, 28, 8 mo. 1701.</p></div>
+
+<div class="footnote"><p><a id="Footnote_417_417" href="#FNanchor_417_417" class="label">[417]</a> See particularly the Pennsylvania Mercury, December 18,
+1735, and the Pennsylvania Gazette, December 24, 1735.
+Thomas Penn wrote to John Penn on January 14, 1735: “The
+late newspapers have been filled with arguments for and against
+the legality of the Court of Chancery and some people whisper
+that we intend to make use of that court to recover our arrears.”
+VII Pennsylvania Archives (2d Series), 166.</p></div>
+
+<div class="footnote"><p><a id="Footnote_418_418" href="#FNanchor_418_418" class="label">[418]</a> III Colonial Records, 670, January 23, 1735-6.</p></div>
+
+<div class="footnote"><p><a id="Footnote_419_419" href="#FNanchor_419_419" class="label">[419]</a> III Votes of the Assembly, 253.</p></div>
+
+<div class="footnote"><p><a id="Footnote_420_420" href="#FNanchor_420_420" class="label">[420]</a> III Votes of the Assembly, 258-261.</p></div>
+
+<div class="footnote"><p><a id="Footnote_421_421" href="#FNanchor_421_421" class="label">[421]</a> IV Colonial Records, 27, February 16, 1735-6.</p></div>
+
+<div class="footnote"><p><a id="Footnote_422_422" href="#FNanchor_422_422" class="label">[422]</a> IV Colonial Records, 41, February 21, 1735-6. The case
+cited to support their view is <i>Stephney</i> v. <i>Lloyd</i>, Croke’s Reports
+(Elizabeth), 647 (1598).</p></div>
+
+<div class="footnote"><p><a id="Footnote_423_423" href="#FNanchor_423_423" class="label">[423]</a> Appendix to Wharton’s Edition of 1 Dallas’s Reports, 514.</p></div>
+
+<div class="footnote"><p><a id="Footnote_424_424" href="#FNanchor_424_424" class="label">[424]</a> Penn MSS. quoted in Shepherd’s Proprietary Government
+in Pennsylvania, 395.</p></div>
+
+<div class="footnote"><p><a id="Footnote_425_425" href="#FNanchor_425_425" class="label">[425]</a> Eulogy on Chief Justice Tilghman, 16 Sergeant &amp; Rawle’s
+Reports, 448.</p></div>
+
+<div class="footnote"><p><a id="Footnote_426_426" href="#FNanchor_426_426" class="label">[426]</a> IV Colonial Records, 37, February 19, 1735-6.</p></div>
+
+<div class="footnote"><p><a id="Footnote_427_427" href="#FNanchor_427_427" class="label">[427]</a> III Statutes at Large, 472; VIII Pennsylvania Archives (2d
+Series), 69.</p></div>
+
+<div class="footnote"><p><a id="Footnote_428_428" href="#FNanchor_428_428" class="label">[428]</a> Lamb’s History of New York, Vol. I, 536, Vol. II, 54.</p></div>
+
+<div class="footnote"><p><a id="Footnote_429_429" href="#FNanchor_429_429" class="label">[429]</a> 1 Dallas’s Reports, 17 (1768).</p></div>
+
+<div class="footnote"><p><a id="Footnote_430_430" href="#FNanchor_430_430" class="label">[430]</a> 1 Dallas’s Reports, 125 (1785).</p></div>
+
+<div class="footnote"><p><a id="Footnote_431_431" href="#FNanchor_431_431" class="label">[431]</a> 1 Dallas’s Reports, 142 (1785).</p></div>
+
+<div class="footnote"><p><a id="Footnote_432_432" href="#FNanchor_432_432" class="label">[432]</a> September 27, 1757, V Statutes at Large, 315.</p></div>
+
+<div class="footnote"><p><a id="Footnote_433_433" href="#FNanchor_433_433" class="label">[433]</a> March 14, 1761, VI Statutes at Large, 100.</p></div>
+
+<div class="footnote"><p><a id="Footnote_434_434" href="#FNanchor_434_434" class="label">[434]</a> March 21, 1772, VIII Statutes at Large, 245.</p></div>
+
+<div class="footnote"><p><a id="Footnote_435_435" href="#FNanchor_435_435" class="label">[435]</a> March 21, 1772, VIII Statutes at Large, 254.</p></div>
+
+<div class="footnote"><p><a id="Footnote_436_436" href="#FNanchor_436_436" class="label">[436]</a> May 20, 1767, VII Statutes at Large, 122. There is an interesting
+act of September 29, 1781, X Statutes at Large, 366, by
+which a title was confirmed to an equitable grantee who had
+failed to get a legal title, owing to the error of a conveyancer,
+but the commonwealth had a direct interest in the case because
+the legal title had, by the error referred to, become vested in an
+attainted traitor whose lands had been forfeited.</p></div>
+
+<div class="footnote"><p><a id="Footnote_437_437" href="#FNanchor_437_437" class="label">[437]</a> VII Statutes at Large, 382. Supplied March 24, 1818.
+7 Smith’s Laws of Pennsylvania, 131.</p></div>
+
+<div class="footnote"><p><a id="Footnote_438_438" href="#FNanchor_438_438" class="label">[438]</a> Chapter II, section 24 of the Constitution of 1776, Proceedings
+of the Constitutional Conventions of 1776 and 1790, 61;
+Act of January 28, 1777, § 4; 1 Smith’s Laws of Pennsylvania,
+427.</p></div>
+
+<div class="footnote"><p><a id="Footnote_439_439" href="#FNanchor_439_439" class="label">[439]</a> 2 Smith’s Laws of Pennsylvania, 375. This act was limited
+to five years, but was revived and extended to the court of
+common pleas in 1793 and made perpetual by the act of February
+16, 1866, P. L. 50.</p></div>
+
+<div class="footnote"><p><a id="Footnote_440_440" href="#FNanchor_440_440" class="label">[440]</a> 2 Smith’s Laws of Pennsylvania, 500.</p></div>
+
+<div class="footnote"><p><a id="Footnote_441_441" href="#FNanchor_441_441" class="label">[441]</a> Proceedings of the Constitutional Conventions of 1776 and
+1790, 159, 301, 350, 354, 362, 364.</p></div>
+
+<div class="footnote"><p><a id="Footnote_442_442" href="#FNanchor_442_442" class="label">[442]</a> Troubat and Haly’s Practice, chapter II.</p></div>
+
+<div class="footnote"><p><a id="Footnote_443_443" href="#FNanchor_443_443" class="label">[443]</a> American Constitutions, 179.</p></div>
+
+<div class="footnote"><p><a id="Footnote_444_444" href="#FNanchor_444_444" class="label">[444]</a> In <i>Taylor</i> v. <i>Jolly</i>, Supreme Court of Pennsylvania, September
+Term, 1773, Docket 6, 365, there is a rule to take the depositions
+of a witness in New Jersey “before any magistrate there,”
+on three weeks’ notice.</p></div>
+
+<div class="footnote"><p><a id="Footnote_445_445" href="#FNanchor_445_445" class="label">[445]</a> This practice as well as the whole subject of lunatics and
+habitual drunkards was soon afterwards regulated by the act
+of June 13, 1836, P. L. 592, and its supplements.</p></div>
+
+<div class="footnote"><p><a id="Footnote_446_446" href="#FNanchor_446_446" class="label">[446]</a> Rawle’s Equity in Pennsylvania, 61.</p></div>
+
+<div class="footnote"><p><a id="Footnote_447_447" href="#FNanchor_447_447" class="label">[447]</a> Laussat’s Equity in Pennsylvania (1826). This essay was
+prepared as a student’s dissertation for the Law Academy.</p></div>
+
+<div class="footnote"><p><a id="Footnote_448_448" href="#FNanchor_448_448" class="label">[448]</a> Report of the Commissioners to Revise the Civil Code on the
+Administration of Justice, January 9, 1835.</p></div>
+
+<div class="footnote"><p><a id="Footnote_449_449" href="#FNanchor_449_449" class="label">[449]</a> § 13, P. L. 784. Article V, § 3 of the Constitution of 1874
+deprived the Supreme Court of original jurisdiction in Equity,
+except in cases of injunction where a corporation was a party
+defendant. The district court was abolished.</p></div>
+
+<div class="footnote"><p><a id="Footnote_450_450" href="#FNanchor_450_450" class="label">[450]</a> Act of February 14, 1857, P. L. 89.</p></div>
+
+<div class="footnote"><p><a id="Footnote_451_451" href="#FNanchor_451_451" class="label">[451]</a> Acts of June 13, 1840, § 39, P. L. 671, April 16, 1845, § 3,
+P. L. 542.</p></div>
+
+<div class="footnote"><p><a id="Footnote_452_452" href="#FNanchor_452_452" class="label">[452]</a> Act of April 10, 1845, § 4, P. L. 449.</p></div>
+
+<div class="footnote"><p><a id="Footnote_453_453" href="#FNanchor_453_453" class="label">[453]</a> Act of March 17, 1845, § 3, P. L. 158, made general by the
+Act of July 7, 1885, § 1, P. L. 257.</p></div>
+
+<div class="footnote"><p><a id="Footnote_454_454" href="#FNanchor_454_454" class="label">[454]</a> <i>Ashurst</i> v. <i>Iron Company</i>, 35 Pennsylvania Reports, 30
+(1860). Act of April 11, 1862, P. L. 477; Act of May 5, 1876,
+P. L. 123.</p></div>
+
+<div class="footnote"><p><a id="Footnote_455_455" href="#FNanchor_455_455" class="label">[455]</a> Act of April 26, 1855, P. L. 331.</p></div>
+
+<div class="footnote"><p><a id="Footnote_456_456" href="#FNanchor_456_456" class="label">[456]</a> <i>Chester Traction Co.</i> v. <i>Philadelphia W. &amp; B. R. Co.</i>, 180
+Pennsylvania Reports, 432 (1897).</p></div>
+
+<div class="footnote"><p><a id="Footnote_457_457" href="#FNanchor_457_457" class="label">[457]</a> June 7, 1907, P. L. 440; <i>Naomi Coal Co.</i> v. <i>Moore</i>, 18 Pennsylvania
+District Reports, 616 (1908); <i>Harton</i> v. <i>Hildebrand</i>,
+57 Pittsburg Legal Journal, 129 (1909); <i>Kingston Coal Co.</i> v.
+<i>Coal Company</i>, 14 Luzerne Legal Register, 267 (1909).</p></div>
+
+<div class="footnote"><p><a id="Footnote_458_458" href="#FNanchor_458_458" class="label">[458]</a> Troubat and Haly’s Practice (edition of 1837), 55.</p></div>
+
+<div class="footnote"><p><a id="Footnote_459_459" href="#FNanchor_459_459" class="label">[459]</a> 1 Yeates’s Reports, 2 (1791).</p></div>
+
+<div class="footnote"><p><a id="Footnote_460_460" href="#FNanchor_460_460" class="label">[460]</a> <i>Read</i> v. <i>Brookman</i>, 3 Term Reports (1789), where it was held
+by a majority of the court that a deed might be pleaded as lost
+without a <i>profert</i>.</p></div>
+
+<div class="footnote"><p><a id="Footnote_461_461" href="#FNanchor_461_461" class="label">[461]</a> <i>Pidcock</i> v. <i>Bye</i>, 3 Rawle’s Reports, 183 (1831) at page 195.</p></div>
+
+<div class="footnote"><p><a id="Footnote_462_462" href="#FNanchor_462_462" class="label">[462]</a> See the cases collected in Pepper and Lewis’s Digest of Decisions,
+Vol. II, col. 1632.</p></div>
+
+<div class="footnote"><p><a id="Footnote_463_463" href="#FNanchor_463_463" class="label">[463]</a> <i>Haldane</i> v. <i>Fisher</i>, 1 Yeates’s Reports, 121 (1792).</p></div>
+
+<div class="footnote"><p><a id="Footnote_464_464" href="#FNanchor_464_464" class="label">[464]</a> 17 Sergeant &amp; Rawle’s Reports, 298 (1828).</p></div>
+
+<div class="footnote"><p><a id="Footnote_465_465" href="#FNanchor_465_465" class="label">[465]</a> <i>Jordan</i> v. <i>Cooper</i>, 3 Sergeant &amp; Rawle’s Reports, 564 (1818).
+For an action of debt see <i>Huber</i> v. <i>Burke</i>, 11 Sergeant &amp; Rawle’s
+Reports, 238 (1824).</p></div>
+
+<div class="footnote"><p><a id="Footnote_466_466" href="#FNanchor_466_466" class="label">[466]</a> <i>Weaver</i> v. <i>Lawrence</i>, 1 Dallas’s Reports, 156 (1785).</p></div>
+
+<div class="footnote"><p><a id="Footnote_467_467" href="#FNanchor_467_467" class="label">[467]</a> 2 Sergeant &amp; Rawle’s Reports, 461 (1816).</p></div>
+
+<div class="footnote"><p><a id="Footnote_468_468" href="#FNanchor_468_468" class="label">[468]</a> 16 Sergeant &amp; Rawle’s Reports, 269 (1827).</p></div>
+
+<div class="footnote"><p><a id="Footnote_469_469" href="#FNanchor_469_469" class="label">[469]</a> Laussat’s Equity in Pennsylvania, Troubat and Haly’s
+Practice, chapter on Ejectment.</p></div>
+
+<div class="footnote"><p><a id="Footnote_470_470" href="#FNanchor_470_470" class="label">[470]</a> <i>Mitchell</i> v. <i>De Roche</i>, 1 Yeates’s Reports, 12 (1791).</p></div>
+
+<div class="footnote"><p><a id="Footnote_471_471" href="#FNanchor_471_471" class="label">[471]</a> <i>Hawn</i> v. <i>Norris</i>, 4 Binney’s Reports, 77 (1811).</p></div>
+
+<div class="footnote"><p><a id="Footnote_472_472" href="#FNanchor_472_472" class="label">[472]</a> The Pennsylvania Statute of Frauds, Act of March 21,
+1772, 1 Smith’s Laws of Pennsylvania, 389, omitted the fourth
+section of the Act of 29, Charles II, chapter 3, making it possible
+to bring an action for damages for breach of parol contracts
+relating to land. <i>Wilson</i> v. <i>Clarke</i>, 1 Watts &amp; Sergeant’s Reports,
+554 (1841). Lewis’s Cases on Specific Performance, 128.
+Pepper and Lewis’s Digest of Decisions, Vol. 20, col. 34592.</p></div>
+
+<div class="footnote"><p><a id="Footnote_473_473" href="#FNanchor_473_473" class="label">[473]</a> <i>McCullum</i> v. <i>Coxe</i>, 1 Dallas’s Reports, 150 (1785). <i>Wheeler</i> v.
+<i>Hughes</i>, 1 Dallas’s Reports, 23 (1776).</p></div>
+
+<div class="footnote"><p><a id="Footnote_474_474" href="#FNanchor_474_474" class="label">[474]</a> Rawle’s Equity in Pennsylvania, 63.</p></div>
+
+<div class="footnote"><p><a id="Footnote_475_475" href="#FNanchor_475_475" class="label">[475]</a> Laussat’s Equity in Pennsylvania, 66. Of the second class
+of cases, <i>Pollard</i> v. <i>Shaffer</i>, 1 Dallas’s Reports, 210 (1787), is an
+example.</p></div>
+
+<div class="footnote"><p><a id="Footnote_476_476" href="#FNanchor_476_476" class="label">[476]</a> 1 Dallas’s Reports, 17 (1768).</p></div>
+
+<div class="footnote"><p><a id="Footnote_477_477" href="#FNanchor_477_477" class="label">[477]</a> <i>Mackey</i> v. <i>Brownfield</i>, 13 Sergeant &amp; Rawle’s Reports, 240
+(1825).</p></div>
+
+<div class="footnote"><p><a id="Footnote_478_478" href="#FNanchor_478_478" class="label">[478]</a> Rule of Supreme Court of Pennsylvania, April 10, 1775,
+Docket No. 7, page 291. Section 7 of the procedure act of May
+25, 1887, P. L. 271, provides: “The pleadings in all courts to be
+subject to the rules of the respective courts as to notice of special
+matter.”</p></div>
+
+<div class="footnote"><p><a id="Footnote_479_479" href="#FNanchor_479_479" class="label">[479]</a> <i>Lewis</i> v. <i>Morgan</i>, 11 Sergeant &amp; Rawle’s Reports, 234 (1823).
+Compare <i>Hollingsworth</i> v. <i>Ogle</i>, 1 Dallas’s Reports, 257 (1788).</p></div>
+
+<div class="footnote"><p><a id="Footnote_480_480" href="#FNanchor_480_480" class="label">[480]</a> Pepper and Lewis’s Digest of Decisions, Vol. 16, col. 27376.</p></div>
+
+<div class="footnote"><p><a id="Footnote_481_481" href="#FNanchor_481_481" class="label">[481]</a> <i>Dunlap</i> v. <i>Miles</i>, 4 Yeates’s Reports, 366 (1807).</p></div>
+
+<div class="footnote"><p><a id="Footnote_482_482" href="#FNanchor_482_482" class="label">[482]</a> <i>Bender</i> v. <i>Fromberger</i>, 4 Dallas’s Reports, 436 (1806).</p></div>
+
+<div class="footnote"><p><a id="Footnote_483_483" href="#FNanchor_483_483" class="label">[483]</a> Act of April 13, 1807, 4 Smith’s Laws of Pennsylvania, 476.</p></div>
+
+<div class="footnote"><p><a id="Footnote_484_484" href="#FNanchor_484_484" class="label">[484]</a> <i>McCutchen</i> v. <i>Nigh</i>, 10 Sergeant &amp; Rawle’s Reports, 344
+(1823).</p></div>
+
+<div class="footnote"><p><a id="Footnote_485_485" href="#FNanchor_485_485" class="label">[485]</a> <i>Clyde</i> v. <i>Clyde</i>, 1 Yeates’s Reports, 92 (1791); <i>Decamp</i> v.
+<i>Feay</i>, 5 Sergeant &amp; Rawle’s Reports, 323; <i>Moyer</i> v. <i>Germantown
+Railroad Co.</i>, 3 Watts &amp; Sergeant’s Reports, 91 (1841).</p></div>
+
+<div class="footnote"><p><a id="Footnote_486_486" href="#FNanchor_486_486" class="label">[486]</a> Eulogy on Chief Justice Tilghman, 16 Sergeant &amp; Rawle’s
+Reports, 448; <i>Gochenauer</i> v. <i>Cooker</i>, 8 Sergeant &amp; Rawle’s
+Reports, 187 (1822), Gibson, J., at page 192.</p></div>
+
+<div class="footnote"><p><a id="Footnote_487_487" href="#FNanchor_487_487" class="label">[487]</a> Opinion of Chief Justice Black in <i>Finley</i> v. <i>Aitken</i>, 1 Grant’s
+Reports (Pa.), 83 (1854), at page 95.</p></div>
+
+<div class="footnote"><p><a id="Footnote_488_488" href="#FNanchor_488_488" class="label">[488]</a> <i>Livezey</i> v. <i>Gorgas</i>, 2 Binney’s Reports, 192 (1809). The record
+of the trial will be found in Brackenridge’s Law Miscellanies,
+438. See also <i>Barnet</i> v. <i>Ihrie</i>, 17 Sergeant &amp; Rawle’s Reports,
+174 (1828).</p></div>
+
+<div class="footnote"><p><a id="Footnote_489_489" href="#FNanchor_489_489" class="label">[489]</a> Laussat’s Equity in Pennsylvania, 136.</p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_212">[Pg 212]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_V">
+    CHAPTER V.
+  </h2>
+</div>
+
+
+<p>In the preceding pages brief references were made to
+the register’s court and orphans’ court. The rise of the
+latter tribunal from a humble beginning to its present
+important position is sufficiently interesting to warrant
+a more detailed account of its functions and growth.
+However unobtrusively the work of its judges may be
+performed, it should not be permitted to escape attention,
+for, as Judge Duncan grimly puts it, “as sure as
+we descend into our graves, so sure into this court we
+must come.”&#x2060;<a id="FNanchor_490_490" href="#Footnote_490_490" class="fnanchor">[490]</a>&#x2060;</p>
+
+<p>During the American colonial period the settlement
+of the estates of decedents belonged, in England, principally
+to the ecclesiastical courts. Briefly, the territory
+of England was divided into two provinces, Canterbury
+and York, each presided over by an archbishop or
+metropolitan. Each of the provinces was divided into
+dioceses. With exceptions, which it is unnecessary to
+particularize here,&#x2060;<a id="FNanchor_491_491" href="#Footnote_491_491" class="fnanchor">[491]</a> the bishop of the diocese where the
+decedent had his last domicile had the power to appoint
+the administrator and settle his accounts, and where
+there was a will, it was proved before him and letters
+testamentary issued thereon. When so acting, he was
+called the “ordinary” and held what was called the
+“consistory court,” either in person or by a deputy
+styled his commissary. From this court an appeal
+would lie to that of the archbishop and thence to the
+king in chancery, that is, to the “court of delegates,”
+appointed by the king’s commission under the great
+seal.</p>
+
+<p><span class="pagenum" id="Page_213">[Pg 213]</span></p>
+
+<p>Here and there were districts called “peculiars,” exempt
+from the jurisdiction of the ordinary and subject
+to the metropolitan only. The court of appeal of the
+Archbishop of Canterbury was called the Court of the
+Arches, because formerly held in the church of Saint
+Mary le bow (<i>Sancta Maria de arcubus</i>), and was presided
+over by the “dean of the arches.” If the decedent
+left <i>bona notabilia</i> or chattels to the value of one hundred
+shillings in two different dioceses or jurisdictions,
+then probate or administration belonged to the archbishop,
+by way of special prerogative, and the matter
+was cognizable in the “prerogative court” before a judge
+appointed by the archbishop.&#x2060;<a id="FNanchor_492_492" href="#Footnote_492_492" class="fnanchor">[492]</a>&#x2060;</p>
+
+<p>Such a system was wholly impractical in America,
+where the principle of an established church, even in
+the most loyal colonies, never gained more than a precarious
+foothold. It would have met with the opposition
+not only of the many sects into which the emigrants
+were divided, but also with that, probably, of the
+common lawyers, whose jealousy of the canonists and
+civilians was then at its height. But the feeling that
+probate and administration were something separate
+and apart from the common law was sufficiently strong
+in most of the colonies to lead to the creation of separate
+tribunals for the exercise of jurisdiction over decedents’
+estates, and to the retention of, at least, a supervision
+over such matters by the governor and council.&#x2060;<a id="FNanchor_493_493" href="#Footnote_493_493" class="fnanchor">[493]</a> By a
+law of the colony at Plymouth of 1633 wills were to be
+probated before the governor and council,&#x2060;<a id="FNanchor_494_494" href="#Footnote_494_494" class="fnanchor">[494]</a> while in
+Maryland in the records of the court held at St. Mary’s
+by the proprietor and his council, beginning 1637, are
+<span class="pagenum" id="Page_214">[Pg 214]</span>many instances of the grant of probate or administration
+as well as of the settlement of executors’ accounts.&#x2060;<a id="FNanchor_495_495" href="#Footnote_495_495" class="fnanchor">[495]</a>
+In the Massachusetts Colony probate of wills was to be
+made at the county court, but by an act of 1652 two
+magistrates with the recorder or clerk of the county
+court meeting together were authorized to allow wills
+and grant administration, reporting to the county court.&#x2060;<a id="FNanchor_496_496" href="#Footnote_496_496" class="fnanchor">[496]</a>
+The charter of 1692 made the governor and council a
+court of probate, although these officials seem to have
+exercised their jurisdiction through the county judges,
+with an appeal reserved to the governor and council as a
+supreme court of probate.</p>
+
+<p>As we have previously seen, the Duke of York’s laws
+for the government of New York were in 1676 put in
+force in the settlements on the Delaware by Governor
+Andros. These laws contained minute provisions for
+the care of the property of decedents. Upon the death
+of any person it was made the duty of the constable
+with two overseers of the parish to “repair to the house
+of the deceased party to enquire after the manner of his
+death and of his will and testament and in case none
+doth appear or shall be produced, it may be taken for
+granted that the person died intestate,” whereupon
+security was to be taken for the care of the estate until
+the next court of sessions, where all cases of probate and
+administration were to be adjudged. Administration
+was to be granted to the widow or children upon the
+entry of security and an inventory filed.</p>
+
+<blockquote>
+<p>“But in case the deceased Dye without widow or Child,
+then the estate, for the better improvement thereof shall be
+sould by order of the Court at an Outcry, and the purchasers
+all puting Security, and Acknowledging Judgment for their
+debt which by the Court shall be Assigned to the several Creditors
+<span class="pagenum" id="Page_215">[Pg 215]</span>of the decendant, and paid according to the priority of Law
+and the Surplusage remaining, if any, to be delivered to the
+next kinsman of the descendant, if he appears or if none prove
+himself such within one year and six week, Then the Court to
+give an accompt of the said Surplusage to the Governour. And
+when the widow or Child Administers the surplusage after debts
+paid and the funerall Charges according to the quality of the
+person allowed for, shall be equally divided between the Widow
+and Children, viz. one third of the personall Estate to the
+widow and the other two thirds amongst the Children, provided
+the Eldest Sonne shall have a double portion, and where there
+are no Sonnes the daughters shall Inherit as Copartners, and
+if any of the Children shall happen to dye before it come to
+age his portion shall be divided amongst the surviving Children.</p>
+
+<p>“If any person shall renounce his Executorship or that
+none of the friends or kindred of the deceased party that shall
+die intestate shall seeke for Administration of such persons
+Estate, then the Constable of the Town where any such person
+shall die, shall give notice thereof to the next Court of Sessions;
+that so the Court may take order therein, as they shall think
+meet, who shall also allow such Constable due recompence for
+his pains. But if the Constable shall fail therein, he shall forfeit
+forty Shillings to the publigue Treasury.</p>
+
+<p>“That the Clarke of the sessions when he carries the Probates
+or Commissions of Administration to be signed do then also
+Certify unto the recorders Office at New York, the name of
+the testator or the party deceased the Executors or Administrators
+and their Security, the County and Parrish where they
+dwelt And the Court wherein the Administration is granted to
+the end that strangers and other Creditors invested in the
+Estate may be the better Enabled to find out the Records in
+which the accompts of the estate is entered and be informed
+how they may come to their just dues.”&#x2060;<a id="FNanchor_497_497" href="#Footnote_497_497" class="fnanchor">[497]</a>&#x2060;</p>
+</blockquote>
+
+<p>Executors failing to probate wills and persons intermeddling
+with the goods of a decedent were made liable
+for the debts of the decedent whether the estate was
+sufficient for that purpose or not.</p>
+
+<p>The conferring of probate jurisdiction upon the courts
+of sessions is an indication of New England influence in
+<span class="pagenum" id="Page_216">[Pg 216]</span>the framing of the laws. About 1686 instructions from
+the home government reserved to the governor the
+probate of wills, after which the governor or the secretary
+of the province exercised this jurisdiction, and a
+department grew up in the secretary’s office known as
+the prerogative court, whose jurisdiction was exercised
+in minor matters by local delegates. The prerogative
+court was not succeeded by a court of probate until 1778.</p>
+
+<p>In the territories on the Delaware the ordinance of
+1676, putting in force the Duke of York’s laws, did not
+expressly concede to the local courts the right to grant
+administration or probate wills, and such matters were
+in the hands of the authorities at the seat of government.
+A case in New Castle against a deceased person was on
+April 4, 1677, continued until the “letter of administration
+bee come from New York.”&#x2060;<a id="FNanchor_498_498" href="#Footnote_498_498" class="fnanchor">[498]</a> Prior to this, the
+justices of the court at New Castle, in a letter to Governor
+Andros, dated February 8, 1677, giving an account of
+local affairs, made the following request:—</p>
+
+<blockquote>
+<p>“That yo<sup>r</sup> Honor will bee pleased soe far to Impower the
+Commander Capt<sup>n</sup> John Colier or the Court that wills may bee
+proved before them and Letters of Administracon granted
+accordingly w<sup>th</sup> ye fees for the estates of the most part of the
+People in these parts are so Inconciderable that otherwyse
+the Charges &amp; Expenses of going to yo<sup>r</sup> honor Att New Yorke
+for to obtaine the same may Prove mutch to the hinderance of
+such Estates.”&#x2060;<a id="FNanchor_499_499" href="#Footnote_499_499" class="fnanchor">[499]</a>&#x2060;</p>
+</blockquote>
+
+<p>To which the governor replied in a letter dated April 6,
+1677, and read at the court held June 8, 1677:—</p>
+
+<blockquote>
+<p>“The severall Co<sup>rts</sup> May att a session take proofes and security
+and grant administracon of wills but if above twenty pounds
+to remit the same here to the secretary’s office to bee recorded.”&#x2060;<a id="FNanchor_500_500" href="#Footnote_500_500" class="fnanchor">[500]</a>&#x2060;</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_217">[Pg 217]</span></p>
+
+<p>The court availed itself of this permission at once and
+several wills were proved at this term of court. The
+procedure in one case will serve as an illustration.
+Rebecca Eghberts, widow of Barent Eghberts, deceased,
+produced the will of her husband dated October 20,
+1674. The two witnesses swore that they were present
+and saw the testator sign the will. The court then
+granted “administration” according to the will and
+directed that it be recorded. In other estates, where
+the decedents died intestate, administration in the
+proper sense was granted.</p>
+
+<p>Under the power conferred upon William Penn in the
+charter of Pennsylvania, to appoint judges, magistrates
+and other officers, it was provided in the laws agreed
+upon in England that there should be a register for
+births, marriages, burials, wills and letters of administration
+distinct from the office for enrolling deeds.&#x2060;<a id="FNanchor_501_501" href="#Footnote_501_501" class="fnanchor">[501]</a> This
+provision was incorporated in the “Great Law” or body
+of laws passed at Upland, December 7, 1682,&#x2060;<a id="FNanchor_502_502" href="#Footnote_502_502" class="fnanchor">[502]</a> and
+Christopher Taylor was appointed Register General for
+the province and territories. The register general kept
+his office at Philadelphia and commissioned deputies
+to act in the respective counties. Taylor, according to
+Proud,&#x2060;<a id="FNanchor_503_503" href="#Footnote_503_503" class="fnanchor">[503]</a> was a well educated Yorkshireman, an eminent
+Quaker preacher and the author of several tracts in
+defense of their principles. He was also a member of
+the first provincial council, but did not live long to enjoy
+his honors, dying in the early part of 1686. His own
+will is No. 26 on the register.</p>
+
+<p>The first will on record is that of Thomas Fream,
+proved, apparently, October 10, 1682. Wills and administrations
+were kept in separate volumes, as is still the
+<span class="pagenum" id="Page_218">[Pg 218]</span>practice. The first entries are brief and informal and it
+probably took some time to settle the forms and practice
+of the office. The following entry will serve as an example:—</p>
+
+<blockquote>
+<p>“Philadelphia in the Province of Pennsylvania 2 mo/6 1683.</p>
+
+<p>“Wheras Mary Mason Relict of the deceased, John Mason
+did the day of the date thereof appear before me, Christopher
+Taylor, Register Gen<sup>ll</sup> of the said Province, &amp;c. desiring to
+take out Letters of Administration upon the estate of the said
+John Mason and having given in and attested an Inventory of
+the said estate with sufficient security to pay his debts and
+dispose of the remainder according to law I do by virtue of my
+Commission from William Penn, Proprietary and Govern<sup>r</sup> of the
+said Province and Territories grant Letters of Administration
+to the said Mary Mason for the ends and purposes aforesaid.
+Under my hand and the seal of my office.</p>
+
+<p class="author">
+  “Christopher Taylor,<br>
+  “Regist. Gen<sup>ll</sup> (SEAL)”
+</p>
+</blockquote>
+
+<p>William Clark, the deputy register for Kent and
+Sussex counties, had served as a justice in the court at
+the Whorekills under the previous government and
+became chief justice of the provincial court in 1703.
+One of his entries is as follows:—</p>
+
+<blockquote>
+<p>“Whereas William Darnall of the County of Kent, Marchant,
+did the day of the date hereof appeare before me, William
+Clark, deputy Register of the Countys of Sussex and Kent in
+the territories of the Provience of Pensilvania; and desireth
+as princable Creditor to take out Letters of Administracon
+upon the estate of Andrew Stocker, deceased, And haveing
+Given me Good and sufficient securiety to bring in unto me a
+true inventory of the estate that the said Andrew Stocker dyd
+possessed of within one moneth after the date hereof soe fer
+as the same shall com to his knowlidge And also to pay his debts
+soe fer as the Estate will extend and dispose of the Remayner
+According to Law, I doe therefor by the authority of William
+Penn, Proprietary and Govern<sup>r</sup> of the Provience of Pensilvania
+and the Territories thereunto belonging &amp; by commicon from
+Christopher Taylor, Register General of the provience of Pensilvania
+<span class="pagenum" id="Page_219">[Pg 219]</span>and the Counties of Sussex and Kent Grant Letters
+of Administracon to the said William Darnall for the ends and
+purposes A for said. Given under my hand and seale of my
+office the 18th day of mo/7 In the year of our Lord according to
+the English account 1683.</p>
+
+<p class="author">
+  “William Clark.”&#x2060;<a id="FNanchor_504_504" href="#Footnote_504_504" class="fnanchor">[504]</a>
+</p>
+</blockquote>
+
+<p>In the same volume are recorded inventories of estates
+as well as records of births, deaths and marriages. The
+following is curious:—</p>
+
+<blockquote>
+<p>“These are to give notice unto all persons whatsoever that
+there is a Marriage shortly intended to be solmonized Betwene
+Abraham Westron, widdower, and Mary Smith, widdow, if any
+person have anything justly to object wherefor the said parties
+should not be Joyned together in marriage Let them Give in
+there Exceptions unto me to the end that the same may be
+prevented or elce forever after to be silant in that case, dated
+at Lewis the 5 day of the mo/8 1683.</p>
+
+<p class="author">
+  William Clark.”
+</p>
+</blockquote>
+
+<p>During its existence the office of register general was
+held by men of importance, including Governors Blackwell,
+Markham, Evans and Gookin, who probably kept it
+themselves on account of the fees, while among the
+deputy registers were Patrick Robinson and David
+Lloyd whose activities in political and legal affairs have
+been referred to before.</p>
+
+<p>The duties of the register general and his deputies
+were not defined by legislation until the passage of the
+Act of January 12, 1705,&#x2060;<a id="FNanchor_505_505" href="#Footnote_505_505" class="fnanchor">[505]</a> an elaborate measure relating
+to the probate of written and nuncupative wills. This
+act in its last section provided for the appointment of
+the register general by the governor and required him
+<span class="pagenum" id="Page_220">[Pg 220]</span>to keep an office at Philadelphia and appoint deputies
+for the other counties, as had been the practice. All
+of these officers were required to give bonds for the
+faithful performance of their duties, which were to be
+recorded in the orphans’ court and to be for the use of
+parties aggrieved.</p>
+
+<p>Failure to keep these positions filled seems to have
+caused dissatisfaction, for an act was passed June 7,
+1712,&#x2060;<a id="FNanchor_506_506" href="#Footnote_506_506" class="fnanchor">[506]</a> which, after reciting that “no register has been
+commissioned and deputies constituted in each county
+as the act (of 1705) directs,” goes on to enact that in
+case of the removal of the register general by death, or
+otherwise, another fit person should be commissioned
+within three weeks; that if the governor failed to act,
+the agents of the proprietor should appoint, and if they
+too failed, the judges of the common pleas of Philadelphia
+should make the appointment. Governor Gookin
+thought that two months’ time was little enough to
+appoint the officer, and that the office should be kept at
+Philadelphia for the whole province, for the greater
+security of the public. The distance, he said, was no
+objection, for it was well known that people in England
+traveled much farther on such occasions.&#x2060;<a id="FNanchor_507_507" href="#Footnote_507_507" class="fnanchor">[507]</a> Nevertheless
+he finally agreed to the bill which became a law and
+was approved by the queen in council February 20,
+1713-4.&#x2060;<a id="FNanchor_508_508" href="#Footnote_508_508" class="fnanchor">[508]</a>&#x2060;</p>
+
+<p>In this statute it was also enacted—</p>
+
+<blockquote>
+<p>“That where objections are made or caveats entered against
+the proving of any will or granting letters of administration,
+and where there is or shall be occasion to take the final accounts
+of executors or administrators, or make distribution of decedents’
+estates, the register-general and his deputies, respectively,
+shall, in every such case, call to their assistance two or
+<span class="pagenum" id="Page_221">[Pg 221]</span>more of the justices of the said court of common pleas for the
+county where they are concerned, who are hereby empowered
+and required to give their assistance accordingly to decide the
+said caveats and matters in controversy, settle the said accounts,
+make distributions, and do all such other judicial acts as do or
+shall belong or ought of right to be done by any person or
+persons having power by law to take probate of wills and grant
+administration.”&#x2060;<a id="FNanchor_509_509" href="#Footnote_509_509" class="fnanchor">[509]</a>&#x2060;</p>
+</blockquote>
+
+<p>This is the origin of the register’s court, as to which
+more will be said hereafter. It will be noticed that the
+act seems to contemplate the taking of accounts of
+executors and administrators before this court, but this
+jurisdiction, if ever exercised, must have been very
+limited, for the orphans’ court already had jurisdiction
+of such accounts in cases of intestacy&#x2060;<a id="FNanchor_510_510" href="#Footnote_510_510" class="fnanchor">[510]</a> and where the
+interests of minors were involved, a jurisdiction defined
+and amplified by an act passed in the following year.&#x2060;<a id="FNanchor_511_511" href="#Footnote_511_511" class="fnanchor">[511]</a>
+When, more than one hundred years later, the act of
+1712 was invoked as authority for an attachment issued
+by the register’s court to compel an administrator to
+account, the supreme court in discharging the prisoner
+on a writ of habeas corpus said, per Tilghman, C. J.:—</p>
+
+<blockquote>
+<p>“This law has never been expressly repealed, and so far
+as concerns caveats, it has been always in force. But the final
+settlement of the accounts of executors and administrators,
+and making distribution of the estates of intestates, having
+been expressly given to the Orphans’ Court by the Act of
+27 March, 1713, the jurisdiction of the Register’s Court, on
+these subjects, has been supposed to be taken away by implication,
+and for a long course of time the practice has been
+to settle final accounts in the Orphans’ Court and not in the
+Register’s Court. * * * We are of opinion, that at the time
+of the adoption of this constitution, the Act of 1712, so far as
+concerned the final settlement of accounts of executors and
+<span class="pagenum" id="Page_222">[Pg 222]</span>administrators, was not in force, being either repealed by implication
+or obsolete.”&#x2060;<a id="FNanchor_512_512" href="#Footnote_512_512" class="fnanchor">[512]</a>&#x2060;</p>
+</blockquote>
+
+<p>As a matter of fact the Orphans’ Court Act of 1713 was
+introduced in the assembly on February 10, 1712, and
+passed on the sixteenth of the same month, before the
+register’s act, but was held over by the governor, as too
+important to be hurried, and submitted to Judge
+Mompesson for his opinion. The judge returned the
+bill to the governor March 25, 1713, with several proposed
+amendments. To these the assembly refused to
+accede and the governor, considering the amendments
+not essential, agreed to the passage of the bill, which
+became a law on March 27, 1713.&#x2060;<a id="FNanchor_513_513" href="#Footnote_513_513" class="fnanchor">[513]</a>&#x2060;</p>
+
+<p>During the administration of Governor Fletcher the
+council heard an informal appeal from the probate of a
+will by Markham, as appears in the minutes of the
+council for June 5, 1694.</p>
+
+<blockquote>
+<p>
+  “His Excellie BENJAMIN FLETCHER.
+</p>
+
+<p>“Wm. Markham, Esq<sup>r</sup>., Leiv<sup>t</sup> Governo<sup>r</sup>.</p>
+
+
+<table class="autotable">
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+And<sup>r</sup> Robeson,
+</td>
+<td class="tdl">
+}
+</td>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+pat. Robinson,
+</td>
+<td class="tdl">
+} Esq<sup>rs</sup>.
+</td>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+Wm. Clarke,
+</td>
+<td class="tdl">
+}
+</td>
+<td class="tdl">
+Esq<sup>rs</sup>.
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+Wm. Salway,
+</td>
+<td class="tdl">
+}
+</td>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+Geo. forman,
+</td>
+<td class="tdl">
+}
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+</table>
+
+
+<p>“His Excellie Having ordered the Hearing of what might be
+offered ag<sup>t</sup> the will of peter de buc, deceased, and severall
+things being offered by sundrie persons, wherein they seem to
+insinuate there was fraud and Collusion in the making thereof,
+His Excellie did, upon hearing therof, dismiss the people, and
+desired the Councill to give their opinions upon the whole
+matter, Whether or not the will, which was proved befor the
+Leiv<sup>t</sup> Governo<sup>r</sup>, Can be allowed or not; Which being putt to the
+vote amongst the members of Councill, was caried in the affirmative,
+&amp; his Excellie did allow yrof.”&#x2060;<a id="FNanchor_514_514" href="#Footnote_514_514" class="fnanchor">[514]</a>&#x2060;</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_223">[Pg 223]</span></p>
+
+<p>The care of the persons and property of orphans was
+a subject that seems to have particularly appealed to
+the philanthropic founder of the commonwealth. In
+England, the lord chancellor was the supreme guardian
+of all infants and the conduct of both guardian and
+ward was within the controlling jurisdiction of chancery.&#x2060;<a id="FNanchor_515_515" href="#Footnote_515_515" class="fnanchor">[515]</a>
+As we have already seen, that court was not in
+favor with Penn or his fellow colonists, and, in respect
+to this branch of its jurisdiction, they were lucky enough
+to establish a substitute founded on precedent and successful
+in operation, the orphans’ court.</p>
+
+<p>The name as well as the early jurisdiction of this
+court was borrowed from the Court of Orphans of the
+city of London.&#x2060;<a id="FNanchor_516_516" href="#Footnote_516_516" class="fnanchor">[516]</a>&#x2060;</p>
+
+<p>“It has been resolved,” says Bohun,—</p>
+
+<blockquote>
+<p>“That there hath been a Court of Orphans time out of mind
+in London; and that there hath been a Custom, if any Freeman
+or Freewoman die, leaving Orphans within age unmarried, that
+the said Court have had the custody of their Body and Goods:
+And that the Executors and Administrators have used, and
+ought to exhibit true Inventories before them; and if any Debt
+appear due, to become bound to the Chamberlain to the use of
+the Orphans in a reasonable Sum to make a true Account upon
+Oath of them, after they have been received and if they refuse, to
+commit them till they will become bound; and this was adjudged
+to be a reasonable Custom.”&#x2060;<a id="FNanchor_517_517" href="#Footnote_517_517" class="fnanchor">[517]</a>&#x2060;</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_224">[Pg 224]</span></p>
+
+<p>The court, it is further said, was held before the lord
+mayor and aldermen of the city of London. The common
+sergeant of the city took the inventories and
+accounts, while all securities for the orphans’ portions
+were taken in the name of the city chamberlain. The
+court could commit the custody of an orphan to such
+person as they thought fit, even when the father had
+devised the custody, and if any person married an
+orphan without the consent of the court, such person
+might be “fined by them according to the Quality and
+Portion of the Orphan; and unless such Person do pay
+the Fine, or give Security to pay it, the Court may
+commit him to Newgate, to remain there till he submit
+to their Orders.”</p>
+
+<p>Upon the death of a freeman the widow or executor
+was summoned to bring in an inventory and appraisement,
+and when the inventory was so exhibited, the
+executor was bound either to pay the money due the
+orphans into the chamber of London, where interest
+was allowed, or to find security by bond or recognizance
+to pay the amount due. When the orphans came of
+age or married, with the consent of the court, they were
+brought into court with a person to prove their age and
+there acknowledged satisfaction for their respective portions.</p>
+
+<p>Although somewhat paternal, according to our view,
+the system was an undoubted privilege when compared
+with the burdensome incidents of feudal wardship, and,
+even in 1682, when wardship had been abolished over
+twenty years,&#x2060;<a id="FNanchor_518_518" href="#Footnote_518_518" class="fnanchor">[518]</a> the citizen preferred his own court, to
+chancery, with its aggravating delays and extortionate
+fees. Once indeed, the city fathers betrayed their trust.
+King Charles II succeeded in obtaining from the city a
+loan of the orphans’ moneys, paying interest thereon
+<span class="pagenum" id="Page_225">[Pg 225]</span>until 1671, when he closed the Exchequer “and thereby
+became not only Bankrupt himself, but occasioned the
+Chamber of the said City to be so also: whereby many
+Thousand of City Orphans (<i>heu Pietas Regum!</i>) were
+reduced to misery and want,”&#x2060;<a id="FNanchor_519_519" href="#Footnote_519_519" class="fnanchor">[519]</a>&#x2060;—a wrong that remained
+unredressed until the reign of William and Mary.&#x2060;<a id="FNanchor_520_520" href="#Footnote_520_520" class="fnanchor">[520]</a>&#x2060;</p>
+
+<p>At the second session of the legislature under the proprietorship
+of Penn, March 10, 1683, it was enacted—</p>
+
+<blockquote>
+<p>“That the Justices of each respective County Court, shall
+sitt twice every year, to inspect and take Care of the Estates,
+usage, and Employment of Orphans, which shall be called The
+Orphans’ Court, and sitt the first third day of ye week, in the
+first and eighth month yearly; That Care may be taken for those,
+that are not able to take care for themselves.”&#x2060;<a id="FNanchor_521_521" href="#Footnote_521_521" class="fnanchor">[521]</a>&#x2060;</p>
+</blockquote>
+
+<p>The same assembly also provided that executors and
+guardians should give bonds and—</p>
+
+<blockquote>
+<p>“If any man shall refuse this honest Care and Charge in
+the government, Unless hee hath five children to take care of,
+or is already executor to one Will or hath persons nearer related
+to him, who in all likelihood will impose that Charge
+upon him; hee shall be fined at the Discretion of the Governor
+and Provincial Council.”&#x2060;<a id="FNanchor_522_522" href="#Footnote_522_522" class="fnanchor">[522]</a>&#x2060;</p>
+</blockquote>
+
+<p>Whether this court was suggested by Penn himself or
+by one of his followers the minutes of the council do not
+show. But, at any rate, the idea commended itself to
+the proprietor, for he mentions it in a letter to the Free
+Society of Traders dated August 16, 1683. “Spring and
+fall,” he writes, “there is an orphans’ court in each
+county to inspect and regulate the affairs of orphans
+and widows.” In fact the minutes of the Bucks County
+<span class="pagenum" id="Page_226">[Pg 226]</span>court show Penn presiding in an orphans’ court contemporaneous
+with if not prior to the passage of the act.</p>
+
+<blockquote>
+<p>“Pennsilvania Bucks SS. At an orphans’ court held by the
+King’s authority in the name of William Penn, Proprietary and
+Governor of the said Province and territory thereto belonging
+at Gilbert Wheelers’ for the aforesaid County, the 4th day of
+the first month 1683, to take account of improvements and
+usage of estates of Orphans.</p>
+
+<p>“Present, the Governor, William Penn, Justices—James
+Harrison, Jona Otter, Wm. Yardley, Wm. Berks, Thomas
+Fitzwater and Phineas Pemberton Clark.</p>
+
+<p>“The next meeting held by adjournment 11, 1 mo. 1683,
+Present—Wm. Penn, Governor, James Harrison and Wm.
+Berks, Justices.”&#x2060;<a id="FNanchor_523_523" href="#Footnote_523_523" class="fnanchor">[523]</a>&#x2060;</p>
+</blockquote>
+
+<p>At this time some of the business that belonged to the
+register general and much that afterwards fell to the
+orphans’ court was transacted in the provincial council.
+In several instances administrators were appointed.&#x2060;<a id="FNanchor_524_524" href="#Footnote_524_524" class="fnanchor">[524]</a>
+One estate that seems to have given some trouble was
+that of Christopher Taylor, the former register. It
+appeared that he had named the proprietor and another
+as his executors, both of whom were absent at the time
+of his death. Administration was refused to the son as
+contrary to the intention of the will and a temporary
+administrator was appointed, who was to account to
+the executors or the council.&#x2060;<a id="FNanchor_525_525" href="#Footnote_525_525" class="fnanchor">[525]</a>&#x2060;</p>
+
+<p>The most frequent applications to the council were
+those for the sale of land for the payment of decedents’
+debts. Penn in the laws agreed upon in England had
+incorporated a provision that lands and goods should be
+<span class="pagenum" id="Page_227">[Pg 227]</span>liable for debts except where there was legal issue and
+then all the goods and one third of the land only,&#x2060;<a id="FNanchor_526_526" href="#Footnote_526_526" class="fnanchor">[526]</a> which
+provision was incorporated in the Act of December 10,
+1682.&#x2060;<a id="FNanchor_527_527" href="#Footnote_527_527" class="fnanchor">[527]</a> The orphans’ court was by the Act of 10, 3 mo.,
+1688, empowered, with the approval of the governor and
+council, to permit the widow or administrator to sell
+lands to defray debts, educate the children, support the
+widow and improve the remainder of the estate.&#x2060;<a id="FNanchor_528_528" href="#Footnote_528_528" class="fnanchor">[528]</a> After
+passing through minor changes of form this act was
+supplied by the Act of November 27, 1700,&#x2060;<a id="FNanchor_529_529" href="#Footnote_529_529" class="fnanchor">[529]</a> which gave
+the jurisdiction to the orphans’ court without the intervention
+of the council. This act was disapproved by
+the queen, on the advice of the attorney general, as not
+sufficiently protecting marriage settlements and the
+interests of the children,&#x2060;<a id="FNanchor_530_530" href="#Footnote_530_530" class="fnanchor">[530]</a> but the same provisions were
+incorporated in the intestate Act of January 12, 1705,&#x2060;<a id="FNanchor_531_531" href="#Footnote_531_531" class="fnanchor">[531]</a>
+in terms carefully framed to meet these objections and
+the act became a law. It is interesting to note that what
+was perhaps the first order of sale for debts was verbal,
+as would appear from the following extract from the
+minutes of the council:—</p>
+
+<blockquote>
+<p>“The Petition of Mary Mason, Widdow, was Read; Requesting
+y<sup>e</sup> Councill to Confirme y<sup>e</sup> Sale of Lotts and Lands sold by y<sup>e</sup>
+said Widdow, by y<sup>e</sup> Gov<sup>rs</sup> Verball order, to pay her Deceased
+husband’s Debts, and for subsistence of herselfe and Children.</p>
+
+<p>“James Harrison being prosent &amp; attesting y<sup>e</sup> truth of y<sup>e</sup>
+Order, and she declaring y<sup>t</sup> y<sup>e</sup> Land sould was y<sup>e</sup> Citty Lotts,
+and y<sup>e</sup> Liberty Land, and but two hundred Acres out of one
+thousand, and not y<sup>e</sup> Land y<sup>t</sup> was Improved; y<sup>e</sup> Councill ordered
+a Confirmation.”&#x2060;<a id="FNanchor_532_532" href="#Footnote_532_532" class="fnanchor">[532]</a>&#x2060;</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_228">[Pg 228]</span></p>
+
+<p>It will be noticed that the widow took the precaution
+to have the verbal order confirmed. Another illustration
+may be given which leaves the reader in some doubt
+as to the miracle proposed to be accomplished with the
+fund:—</p>
+
+<blockquote>
+<p>“Att a Council Held att Philad. die Lunæ, 1st July, 1700.</p>
+
+
+<p class="center">Present:</p>
+
+
+<p>“WM. PENN, pro<sup>r</sup> and Governo<sup>r</sup></p>
+
+
+<table class="autotable">
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+Edw<sup>d</sup> Shippin,
+</td>
+<td class="tdl">
+Wm. Clark,
+</td>
+<td class="tdl">
+Thomas Storie.
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+Rt. Turner,
+</td>
+<td class="tdl">
+John Moll,
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+</table>
+
+
+<p>“Upon reading the petion of Sarah Gibbs, widdow, setting
+forth y<sup>t</sup> Her Husband Latelie dyed, Leaving her much in debt,
+&amp; the charge of a sucking child, &amp; having nothing wherwt to
+pay y<sup>e</sup> sd debts but y<sup>e</sup> shell of a smal house, unfinisht, &amp; a
+Lott valued att 50£, yrfor, requesting y<sup>e</sup> Go<sup>r</sup> &amp; Council to
+allow, permitt, &amp; authorize her to make sale yrof, towards y<sup>e</sup>
+defraying of sd debts, educaon of sd infant &amp; her support,
+according to the Laws and Customs of sd province. Wheron
+Rt. turner signified y<sup>t</sup> y<sup>e</sup> sd allegaons wer true, y<sup>e</sup> circumstances
+qrof being to him well known.</p>
+
+<p>“Itt was yrfor Ordered y<sup>t</sup> sd Sarah Gibbs be pmitted, allowed &amp;
+authorized, &amp; is hereby by y<sup>e</sup> Go<sup>r</sup> &amp; Council pmitted, allowed &amp;
+authorized, to make sale &amp; conveyance to anie pson qtsoever,
+of y<sup>e</sup> sd house &amp; Lott, wt its improvments and apptenances, &amp;
+to ym &amp; y<sup>r</sup> Heirs &amp; assigns for ever, towards y<sup>e</sup> defraying her
+just debts, y<sup>e</sup> educaon &amp; maintainance of sd infant &amp; her owne
+support, according to y<sup>e</sup> Laws &amp; Customs of sd province, to
+Hold to y<sup>e</sup> sd pchasers yrof &amp; y<sup>r</sup> heirs &amp; assigns, &amp; to y<sup>r</sup> use &amp;
+behoofe, in fee simple &amp; estate of inheritance forever.”&#x2060;<a id="FNanchor_533_533" href="#Footnote_533_533" class="fnanchor">[533]</a>&#x2060;</p>
+</blockquote>
+
+<p>There does not appear to have been any express
+statutory directions as to the distribution of decedents’
+estates in general until June 4, 1693, when at the stormy
+session of that year a bill was passed relating to the
+distribution of decedents’ estates, the order of payment
+of debts and the disposition of the residue of real and
+<span class="pagenum" id="Page_229">[Pg 229]</span>personal estate, all of which distributions “as well of the
+Testate’s as intestate’s estate are to be made by the
+Register General for the time being, within twelve
+months after the Decedent’s Death.”&#x2060;<a id="FNanchor_534_534" href="#Footnote_534_534" class="fnanchor">[534]</a> The distributees
+were required to give refunding bonds to the register
+general. It was further provided that all executors
+and guardians of persons under age should give bond
+to the orphans’ court. All of these provisions were substantially
+re-enacted in the Acts of May 24, 1697,&#x2060;<a id="FNanchor_535_535" href="#Footnote_535_535" class="fnanchor">[535]</a> and
+of November 27, 1700,&#x2060;<a id="FNanchor_536_536" href="#Footnote_536_536" class="fnanchor">[536]</a> except that in the latter act the
+distribution was to be made by the “registers of the
+counties.” The last act was disapproved by the queen.</p>
+
+<p>The jurisdiction of the orphans’ court, in matters of
+accounts, was in some degree widened by the judiciary
+Act of October 28, 1701,&#x2060;<a id="FNanchor_537_537" href="#Footnote_537_537" class="fnanchor">[537]</a> an act which we have already
+seen failed to meet the approval of the privy council.
+By this act the orphans’ court was not only given jurisdiction
+over all executors, administrators and trustees
+accountable for lands or chattels belonging to orphans
+or minors, but it was further provided that those who
+filed inventories, gave bond or made accounts in the
+orphans’ court should not be obliged to account to the
+register general’s office. By the Act of January 12,
+1705-6,&#x2060;<a id="FNanchor_538_538" href="#Footnote_538_538" class="fnanchor">[538]</a> relating to intestate estates, complete jurisdiction
+over the settlement of administrators’ accounts
+and the distribution of the surplus after payment of debts
+was conferred upon the orphans’ court. By this statute,
+which was allowed to become a law, the orphans’ court
+may be said to have finally departed from the limited
+<span class="pagenum" id="Page_230">[Pg 230]</span>scope of its London prototype to enter upon a constantly
+widening field of activities.</p>
+
+<p>The act, however, which is the principal source of
+orphans’ court jurisdiction is that of March 27, 1712-3,&#x2060;<a id="FNanchor_539_539" href="#Footnote_539_539" class="fnanchor">[539]</a>
+passed, as stated in the preamble, to take the place of
+the prior acts repealed by the queen. It is too long to
+give in full, but, briefly stated, the justices of the court
+of quarter sessions were empowered to hold a court of
+record called the orphans’ court, with jurisdiction over
+the accounts of such persons who as guardians, trustees,
+tutors, executors or administrators were entrusted with
+the property, real or personal, of orphans or persons
+under age, to see that the surety for such persons was
+sufficient, to revoke their letters, if necessary, to see
+that funds were invested, appoint guardians or bind the
+minors out as apprentices, and upon a settlement of an
+account to require a proper discharge for the accountant,
+“and if any person or persons, being duly summoned
+to appear in any of the said orphans’ courts,
+ten days before the time appointed for their appearance,
+shall make default, the justices may send their attachments
+for contempts, and may force obedience to their
+warrants, sentences and orders concerning any matter or
+thing cognizable in the same courts, by imprisonment of
+body, or sequestration of lands or goods, as fully as any
+court of equity may or can do. Provided always, That
+if any person or persons shall be aggrieved with any
+definitive sentence or judgment of the said orphans’
+court, it shall be lawful for them to appeal from the
+same to the supreme court; which appeal, upon security
+given, as is usual in such cases, shall be granted accordingly.”</p>
+
+<p>This act, with some amendments, remained in force
+until supplied in 1832 by the act drafted by commissioners
+<span class="pagenum" id="Page_231">[Pg 231]</span>to revise the civil code. We have already seen
+that an act of September 29, 1759,&#x2060;<a id="FNanchor_540_540" href="#Footnote_540_540" class="fnanchor">[540]</a> which failed of approval
+by the Crown, appointed the judges of the common
+pleas to hold the orphans’ court. This, however, was a
+matter of form rather than substance, for the judges of
+the common pleas were selected from the general commission
+of the peace and none, at this period, was learned
+in the law. The dockets of the orphans’ court of Philadelphia
+County, which are complete from 1719, show a
+long list of worthy citizens presiding in this tribunal.
+The court did not have any special president but certain
+justices of the peace to whom the service was congenial
+usually attended its sessions. John Hill Martin notes&#x2060;<a id="FNanchor_541_541" href="#Footnote_541_541" class="fnanchor">[541]</a>
+that whenever the mayor of the city was present he
+always presided, and on all other occasions the order of
+seniority of justices was rigidly observed, erasures being
+made in the minutes to correct errors in this respect.</p>
+
+<p>The oldest docket in the Philadelphia office opens the
+ninth of April, 1719, with the following justices present:
+Jonathan Dickinson, Robert Assheton and Clement
+Plumstead. The first case is a petition for the appointment
+of a guardian and these cases are the most numerous
+in the early records.</p>
+
+<p>There are also many petitions for the sale of land for
+the payment of debts or to support minors, to partition
+real estate, to compel the filing of accounts and for the
+appointment of auditors. At the court held February
+12, 1738, there is a petition by the widow and executrix
+of Abel Cain for leave to sell “a negro woman Mumbo
+and her increase” for the support of the testator’s children.
+The return shows that forty pounds was realized
+at the sale, of which, fifteen pounds was directed to be
+paid to the widow, to reimburse her for expenditures
+<span class="pagenum" id="Page_232">[Pg 232]</span>made, fifteen pounds to be expended in purchasing clothing
+for the son and putting him out as an apprentice, and
+the balance was directed to remain in court until further
+order.&#x2060;<a id="FNanchor_542_542" href="#Footnote_542_542" class="fnanchor">[542]</a>&#x2060;</p>
+
+<p>The proceedings are usually by petition and answer
+and the judgment of the court is entered in the form of
+an order. In 1738 a subpœna was issued to an executor
+to appear and exhibit his account, and on his failure to
+do so an attachment was awarded.&#x2060;<a id="FNanchor_543_543" href="#Footnote_543_543" class="fnanchor">[543]</a> But ten years later
+the citation is in use. Thus, on June 20, 1748, on petition
+by the guardian of a minor and heir at law of a
+decedent averring that the widow and administratrix
+had married again and was wasting the estate, a citation
+was directed to the administratrix and her husband,
+requiring them to appear and render an account, returnable
+the tenth day of July next.&#x2060;<a id="FNanchor_544_544" href="#Footnote_544_544" class="fnanchor">[544]</a>&#x2060;</p>
+
+<p>The most important audit of these early days was that
+of the accounts of the trustees for the sale of the lands
+of the Society of Free Traders, which by an Act of
+Assembly of March 2, 1722-3,&#x2060;<a id="FNanchor_545_545" href="#Footnote_545_545" class="fnanchor">[545]</a> was referred to this court,
+which was also directed to hear and pass upon all claims
+for a share in the funds. This society, an association in
+the nature of a joint stock company, which had purchased
+twenty thousand acres of land from Penn in
+1681, had not proved a success, its affairs had been
+neglected and at the instance of the certificate holders
+and their heirs the act was passed under which its business
+was wound up. The court first met for this audit
+on March 10, 1724, and the meetings continued at intervals
+for a number of years.</p>
+
+<p>It is now, of course, well settled that the orphans’
+court while a court of equity with respect to subjects
+<span class="pagenum" id="Page_233">[Pg 233]</span>within its jurisdiction, has no general chancery powers,
+but only such as are derived from statute or are necessary
+to make its statutory powers effective.&#x2060;<a id="FNanchor_546_546" href="#Footnote_546_546" class="fnanchor">[546]</a> In 1745
+there is recorded a curious effort to extend its jurisdiction.
+William Good, by his guardian, Ralph Assheton,
+filed a petition averring that petitioner was the owner
+of ten acres of land in the township of Passyunk which
+had “by the extraordinary rise of the price of lands
+thereabouts become of considerable value;” that one
+Joseph Scull, brickmaker, taking advantage of the fact
+that petitioner was a minor, had entered on said
+land, dug pits and was about to set up a brick yard to
+the damage of petitioner, pretending that he had a
+lease from petitioner’s father, although that lease had
+expired and contained no clause permitting him to commit
+waste, and praying that the said Scull might be
+cited to appear and answer the complaint and, if the
+facts prove true, then that Scull be restrained from
+committing waste or that petitioner have such other
+relief “as is agreeable to equity and good conscience.”
+Whereupon it was ordered that the said Joseph Scull
+be served with a copy of the petition and cited to appear
+and answer the same.&#x2060;<a id="FNanchor_547_547" href="#Footnote_547_547" class="fnanchor">[547]</a> The answer filed July 29, 1745,
+averred that any demand William Good might have had
+against the respondent for waste, damages or otherwise
+was not cognizable in this court, but in the courts of
+common law duly constituted and settled in said province,
+and further that the tract referred to did not
+belong to petitioner but to his mother, who had leased
+it to respondent, and that the present right and title
+to the same was not to be impeached, tried and determined
+in this court but in the ordinary course of law.
+<span class="pagenum" id="Page_234">[Pg 234]</span>There is no entry of a decree, and perhaps the answer
+was regarded by the parties as conclusive, inasmuch as a
+question of title was raised. After the closing of the
+governor’s court of chancery there was no court with
+jurisdiction to enjoin the commission of waste, and the
+attempt to persuade the orphans to exercise that power
+indicates the need of such a remedy, at least to the
+mind of the guardian, who was himself a justice, and
+to that of the presiding judge, William Allen, afterwards
+chief justice of the province.&#x2060;<a id="FNanchor_548_548" href="#Footnote_548_548" class="fnanchor">[548]</a>&#x2060;</p>
+
+<p>The constitution of 1776 provided that the orphans’
+court should be held quarterly in each city and county,
+while the Act of January 28, 1777,&#x2060;<a id="FNanchor_549_549" href="#Footnote_549_549" class="fnanchor">[549]</a> passed for the purpose
+of putting into effect so much of the provincial
+law as was necessary in the commonwealth, conferred
+upon these courts the powers and jurisdiction which
+they had theretofore exercised. By the Act of March 14,
+1777,&#x2060;<a id="FNanchor_550_550" href="#Footnote_550_550" class="fnanchor">[550]</a> registers of wills were directed to be appointed for
+each county by the general assembly and the office of
+register general was abolished. The constitution of
+1790 vested the appointment of registers in the governor,
+but the office was made elective by the amended constitution
+of 1838.&#x2060;<a id="FNanchor_551_551" href="#Footnote_551_551" class="fnanchor">[551]</a>&#x2060;</p>
+
+<p>By the constitution of 1790&#x2060;<a id="FNanchor_552_552" href="#Footnote_552_552" class="fnanchor">[552]</a> it was provided that the
+judges of the court of common pleas of each county,
+<span class="pagenum" id="Page_235">[Pg 235]</span>any two of whom should be a quorum, should compose
+the orphans’ court thereof, and the register of wills
+together with the said judges or any two of them should
+compose the register’s court. By the Act of April 13,
+1791,&#x2060;<a id="FNanchor_553_553" href="#Footnote_553_553" class="fnanchor">[553]</a> the courts were established in conformity with
+the constitution.</p>
+
+<p>The orphans’ court, although called a court of record
+in the Act of 1713, was not, at first, accorded that dignity.
+In 1786 it was held that the settlement of an
+executor’s account was not conclusive&#x2060;<a id="FNanchor_554_554" href="#Footnote_554_554" class="fnanchor">[554]</a> and this decision
+was followed in 1818.&#x2060;<a id="FNanchor_555_555" href="#Footnote_555_555" class="fnanchor">[555]</a> In other cases there was shown
+a tendency to discredit proceedings before these tribunals
+which, perhaps on this very account, had become loose
+and irregular. Judge Duncan in <i>McPherson</i> v. <i>Cunliff</i>&#x2060;<a id="FNanchor_556_556" href="#Footnote_556_556" class="fnanchor">[556]</a>
+gives a melancholy picture of the careless practice; the
+orders written on loose scraps of paper and deposited
+in untitled pigeon holes, or packed up as useless lumber
+in old trunks. Nevertheless, his opinion in that case,
+vindicating the authority of decrees of orphans’ courts,
+checked their decline, while his criticism, added to complaints
+from the bench and bar, moved the legislature
+in the resolution for the revision of the civil code passed
+March 23, 1830, to require the commissioners “to revise
+the several statutes relative to the settlement of accounts
+before registers and proceedings in the orphans’ courts,
+as soon as conveniently may be, and report the same for
+the determination of the general assembly at their next
+session.” Accordingly the commissioners made their
+first report to the legislature on January 31, 1831, and
+<span class="pagenum" id="Page_236">[Pg 236]</span>presented two bills, one relating to registers and registers’
+courts and the other relating to orphans’ courts.
+Upon the latter bill the commissioners observed:—</p>
+
+<blockquote>
+<p>“The bill relating to the Orphans’ Court has occupied a
+large share of our time and reflections. The peculiar structure
+of that court, its extensive but ill-defined sphere of jurisdiction,
+the magnitude of the interest upon which it operates, the
+uncertainty of the code of law by which it is regulated, and its
+equally uncertain and insufficient practice and process, serve
+to surround with difficulties every attempt to frame a regular
+system for it. So convinced are we of the arduousness of the
+task of compiling a complete system, which shall embrace
+the constitution, jurisdiction, powers, and practice, of this
+court, that had it not been for the express directions of the
+legislature to report upon it at the present session, we should
+probably have reserved this subject to the last, and given it
+the utmost deliberation that our limits allowed. Of the necessity
+however of an early as well as thorough examination and revision
+of the acts of assembly relating to this tribunal, we are fully
+convinced.”&#x2060;<a id="FNanchor_557_557" href="#Footnote_557_557" class="fnanchor">[557]</a>&#x2060;</p>
+</blockquote>
+
+<p>The bills recommended by the commissioners were
+enacted into laws at the session of 1832, that relating
+to registers and registers’ courts being approved March
+15, 1832,&#x2060;<a id="FNanchor_558_558" href="#Footnote_558_558" class="fnanchor">[558]</a> and that relating to orphans’ courts on
+March 29, 1832.&#x2060;<a id="FNanchor_559_559" href="#Footnote_559_559" class="fnanchor">[559]</a>&#x2060;</p>
+
+<p>Under these acts the register was given jurisdiction
+within the county for which he was appointed, “of the
+probate of wills and testaments, of the granting of
+letters testamentary, and of administration, of the
+passing and filing of the accounts of executors; administrators
+and guardians, and of any other matter whereof
+jurisdiction may be at any time expressly annexed to his
+office.”</p>
+
+<p><span class="pagenum" id="Page_237">[Pg 237]</span></p>
+
+<p>When a caveat was filed, objection made to the
+granting of letters of administration, or when any disputable
+or difficult matter came into controversy, the
+register, at the request of any person interested, was
+required to call a register’s court for the decision thereof.
+So also, an appeal might be taken to the register’s court
+from all the judicial acts and decisions of the register.
+The register’s court comprised the register of wills and
+the judges of the court of common pleas of the county
+or any two of said judges.</p>
+
+<p>After the register had allowed and filed any account in
+his office, he was required to prepare and present a
+certified copy thereof to the orphans’ court at its next
+stated meeting and give notice by public advertisement
+that said accounts would be presented to the orphans’
+court for confirmation.</p>
+
+<p>The judges of the court of common pleas of each
+county or any two of them composed the orphans’ court,
+which was declared a court of record, the decrees of
+which were not to be reversed or avoided collaterally in
+any other court. The jurisdiction of the court was
+summarized in the act as follows:—</p>
+
+<blockquote>
+<p>“The jurisdiction of the several Orphans’ Courts of this
+Commonwealth shall extend to and embrace the appointment,
+control, removal and discharge of guardians, the settlement of
+their accounts, the removal and discharge of executors and
+administrators deriving their authority from the register of
+the respective county, the settlement of the accounts of such
+executors and administrators and the distribution of the assets
+or surplusage of the estates of decedents, after such settlements
+among creditors or others interested in the sale or partition of
+the real estate of decedents among the heirs, and generally
+to all cases within their respective counties, wherein executors,
+administrators, guardians or trustees are or may be possessed
+of or undertake the care and management of, or are in any way
+accountable for any real or personal estate of a decedent, and
+such jurisdiction shall be exercised in the manner hereinafter
+provided.”&#x2060;<a id="FNanchor_560_560" href="#Footnote_560_560" class="fnanchor">[560]</a>&#x2060;</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_238">[Pg 238]</span></p>
+
+<p>No account of an executor, administrator or guardian
+was to be confirmed and allowed by the court unless
+advertised by the register of wills as provided in the
+prior act and all accounts, except partial accounts by
+guardians, were to be examined by the court or referred
+to auditors, unless otherwise agreed by all parties in
+interest. These provisions were adopted to compel a
+more thorough audit of accounts. Under the prior
+practice the settlement of accounts in the register’s
+office was generally a perfunctory matter and no more
+than a mere vouching of the items of the account, while
+the confirmation in the orphans’ court was largely a
+matter of form. A reform in these matters was absolutely
+necessary if the decrees of the orphans’ court
+were to be made conclusive. Finally the practice and
+process of the orphans’ court were defined and strengthened.
+Writing in 1847, Mr. Hood observed:—</p>
+
+<blockquote>
+<p>“The orphans’ court, as at present constituted, is a court
+of a peculiar nature both as respects its jurisdiction, powers,
+and the forms of its proceedings, partaking of the characters
+of a court of common law, a court of equity, and an ecclesiastical
+court. The process of the orphans’ court would seem, in some
+respects, to resemble that of the English ecclesiastical courts,
+whose proceedings are regulated according to the practice of the
+civil and canon law; or rather according to a mixture of both
+collected and new-modelled by their own particular usages and
+the interpretation of the courts of common law. It was this
+establishment of the civil law process in the ecclesiastical courts
+that made a coalition impracticable between them and the
+national tribunals of England. The act of 1832 has remodelled
+the forms of proceeding in the orphans’ court, making them
+approximate more nearly to the common law. Hence, in the
+orphans’ court practice, are found the <i>motion</i>, <i>rule</i>, <i>fieri facias</i>,
+and <i>subpœna</i> of the common law courts, the <i>petition</i> of chancery,
+and the <i>citation</i> of doctors commons; and mingled with them,
+the <i>order</i>, <i>decree</i>, and <i>sequestration</i> derived through these equity
+and ecclesiastical tribunals, from the civil and canon laws.
+In one respect the orphans’ court may be said to be of a higher
+nature than the court of chancery and the ecclesiastical courts of
+<span class="pagenum" id="Page_239">[Pg 239]</span>England: for the court of chancery, when proceeding by
+subpœna, is not a court of record, nor are the ecclesiastical
+tribunals, courts of record.”&#x2060;<a id="FNanchor_561_561" href="#Footnote_561_561" class="fnanchor">[561]</a>&#x2060;</p>
+</blockquote>
+
+<p>Under the Act of 1832, and some additional acts
+relating to decedents’ estates subsequently passed on
+the recommendation of the commissioners, the orphans’
+courts reached their full dignity as courts of record and
+have justified their creation by a long career of usefulness.
+The confidence of the community has been
+further marked by the extension of their jurisdiction in
+numerous cases as, for example, under the Price Act.&#x2060;<a id="FNanchor_562_562" href="#Footnote_562_562" class="fnanchor">[562]</a>
+To fully describe the powers of the court would exceed
+the limits of this chapter and indeed open up the whole
+subject of orphans’ court practice, a matter that has
+been thoroughly discussed in several text books.&#x2060;<a id="FNanchor_563_563" href="#Footnote_563_563" class="fnanchor">[563]</a> It is
+necessary, however, to refer to certain changes brought
+about by the constitution of 1874 which abolished the
+register’s court and conferred its jurisdiction on the
+orphans’ court, provided for the establishment of separate
+orphans’ courts in counties having a population
+exceeding one hundred and fifty thousand, and directed
+that all accounts filed with the register of wills, as clerk
+of a separate orphans’ court, should be audited by the
+court without expense to the parties, unless the parties
+themselves nominated an auditor.&#x2060;<a id="FNanchor_564_564" href="#Footnote_564_564" class="fnanchor">[564]</a>&#x2060;</p>
+
+<p>These changes have proved most beneficial. The
+registers’ court was unnecessary and was wisely abolished,
+while the creation of separate orphans’ courts in the
+larger communities has been particularly advantageous
+in furnishing to the judiciary of the state a corps of
+<span class="pagenum" id="Page_240">[Pg 240]</span>experts, specially trained in the handling of those
+difficult and intricate problems arising out of the devolution
+of property by death. The name of the court
+today indicates but a small part of its functions, but is
+an historic illustration of the way in which great institutions
+sometimes grow from small beginnings.</p>
+
+
+<div class="footnotes">
+<h3>FOOTNOTES:</h3>
+
+<div class="footnote"><p><a id="Footnote_490_490" href="#FNanchor_490_490" class="label">[490]</a> <i>McPherson</i> v. <i>Cunliff</i>, 11 Sergeant &amp; Rawle’s Reports, 431
+(1824).</p></div>
+
+<div class="footnote"><p><a id="Footnote_491_491" href="#FNanchor_491_491" class="label">[491]</a> Williams on Executors, Part I, Book 4, chapter 1.</p></div>
+
+<div class="footnote"><p><a id="Footnote_492_492" href="#FNanchor_492_492" class="label">[492]</a> Blackstone’s Commentaries, Vol. II, 590, Vol. III, 64.</p></div>
+
+<div class="footnote"><p><a id="Footnote_493_493" href="#FNanchor_493_493" class="label">[493]</a> Article on Wills by L. M. Dagget in Two Centuries’ Growth
+of American Law, 167.</p></div>
+
+<div class="footnote"><p><a id="Footnote_494_494" href="#FNanchor_494_494" class="label">[494]</a> Laws of the Colony of New Plymouth (Edition of 1836), 32.</p></div>
+
+<div class="footnote"><p><a id="Footnote_495_495" href="#FNanchor_495_495" class="label">[495]</a> Maryland Archives, Judicial and Testamentary Business of
+the Provincial Court, 12.</p></div>
+
+<div class="footnote"><p><a id="Footnote_496_496" href="#FNanchor_496_496" class="label">[496]</a> Laws of the Colony of Massachusetts (1672), 157.</p></div>
+
+<div class="footnote"><p><a id="Footnote_497_497" href="#FNanchor_497_497" class="label">[497]</a> Charter and Laws of Pennsylvania, 5, 6.</p></div>
+
+<div class="footnote"><p><a id="Footnote_498_498" href="#FNanchor_498_498" class="label">[498]</a> Records of the Court of New Castle, 74.</p></div>
+
+<div class="footnote"><p><a id="Footnote_499_499" href="#FNanchor_499_499" class="label">[499]</a> Records of the Court of New Castle, 66.</p></div>
+
+<div class="footnote"><p><a id="Footnote_500_500" href="#FNanchor_500_500" class="label">[500]</a> Records of the Court of New Castle, 98.</p></div>
+
+<div class="footnote"><p><a id="Footnote_501_501" href="#FNanchor_501_501" class="label">[501]</a> Charter and Laws of Pennsylvania, 101.</p></div>
+
+<div class="footnote"><p><a id="Footnote_502_502" href="#FNanchor_502_502" class="label">[502]</a> Charter and Laws of Pennsylvania, 119.</p></div>
+
+<div class="footnote"><p><a id="Footnote_503_503" href="#FNanchor_503_503" class="label">[503]</a> Proud’s History of Pennsylvania, Vol. I, 236.</p></div>
+
+<div class="footnote"><p><a id="Footnote_504_504" href="#FNanchor_504_504" class="label">[504]</a> Sussex County Records, MSS. Historical Society of Pennsylvania.
+For similar entries, see Turner’s Sussex County Records,
+133.</p></div>
+
+<div class="footnote"><p><a id="Footnote_505_505" href="#FNanchor_505_505" class="label">[505]</a> II Statutes at Large, 194; II Colonial Records, 238, January
+12, 1705.</p></div>
+
+<div class="footnote"><p><a id="Footnote_506_506" href="#FNanchor_506_506" class="label">[506]</a> II Statutes at Large, 421.</p></div>
+
+<div class="footnote"><p><a id="Footnote_507_507" href="#FNanchor_507_507" class="label">[507]</a> II Colonial Records, 576, May 27, 1712.</p></div>
+
+<div class="footnote"><p><a id="Footnote_508_508" href="#FNanchor_508_508" class="label">[508]</a> II Statutes at Large, 541.</p></div>
+
+<div class="footnote"><p><a id="Footnote_509_509" href="#FNanchor_509_509" class="label">[509]</a> II Statutes at Large, 423, § 3.</p></div>
+
+<div class="footnote"><p><a id="Footnote_510_510" href="#FNanchor_510_510" class="label">[510]</a> Act of January 12, 1705, II Statutes at Large, 199.</p></div>
+
+<div class="footnote"><p><a id="Footnote_511_511" href="#FNanchor_511_511" class="label">[511]</a> Act of March 27, 1713, III Statutes at Large, 14.</p></div>
+
+<div class="footnote"><p><a id="Footnote_512_512" href="#FNanchor_512_512" class="label">[512]</a> <i>Commonwealth</i> v. <i>Brady</i>, 3 Sergeant &amp; Rawle’s, 309 (1817).</p></div>
+
+<div class="footnote"><p><a id="Footnote_513_513" href="#FNanchor_513_513" class="label">[513]</a> Charter and Laws of Pennsylvania, 302.</p></div>
+
+<div class="footnote"><p><a id="Footnote_514_514" href="#FNanchor_514_514" class="label">[514]</a> I Colonial Records, 407, June 5, 1694.</p></div>
+
+<div class="footnote"><p><a id="Footnote_515_515" href="#FNanchor_515_515" class="label">[515]</a> I Blackstone’s Commentaries, 463.</p></div>
+
+<div class="footnote"><p><a id="Footnote_516_516" href="#FNanchor_516_516" class="label">[516]</a> <i>Wimmer’s Appeal</i>, 1 Wharton’s Reports, 102 (1836). The
+court of the burgomaster and schepens of the city of New York
+acted as an orphans’ court during the Dutch period. To relieve
+the court of this work Stuyvesant created a separate court of
+orphan masters, which ceased to exist when the colony passed
+into the hands of the English. Scott’s History of the Courts
+of New York (1909), 40; Records of the Court of New Amsterdam,
+Vol. II, 341. There is no evidence, however, that this
+court influenced Penn in establishing orphans’ courts in Pennsylvania.</p></div>
+
+<div class="footnote"><p><a id="Footnote_517_517" href="#FNanchor_517_517" class="label">[517]</a> Bohun’s Privileges of London (Edition of 1723), 314.</p></div>
+
+<div class="footnote"><p><a id="Footnote_518_518" href="#FNanchor_518_518" class="label">[518]</a> Act of 12 Charles II, chapter 24 (1660).</p></div>
+
+<div class="footnote"><p><a id="Footnote_519_519" href="#FNanchor_519_519" class="label">[519]</a> Bohun, 336.</p></div>
+
+<div class="footnote"><p><a id="Footnote_520_520" href="#FNanchor_520_520" class="label">[520]</a> Act of 5 and 6 William &amp; Mary, chapter 10.</p></div>
+
+<div class="footnote"><p><a id="Footnote_521_521" href="#FNanchor_521_521" class="label">[521]</a> Charter and Laws of Pennsylvania, 131.</p></div>
+
+<div class="footnote"><p><a id="Footnote_522_522" href="#FNanchor_522_522" class="label">[522]</a> Charter and Laws of Pennsylvania, 142.</p></div>
+
+<div class="footnote"><p><a id="Footnote_523_523" href="#FNanchor_523_523" class="label">[523]</a> Address of Peter McCall, Esq., before the Law Academy
+(1838).</p></div>
+
+<div class="footnote"><p><a id="Footnote_524_524" href="#FNanchor_524_524" class="label">[524]</a> I Colonial Records, 39, 20, 12 mo. 1683; I Colonial Records,
+62, 18 4 mo. 1684.</p></div>
+
+<div class="footnote"><p><a id="Footnote_525_525" href="#FNanchor_525_525" class="label">[525]</a> I Colonial Records, 137, 5, 5 mo. 1686; 138, 6, 5 mo. 1686;
+143, 21 September, 1686.</p></div>
+
+<div class="footnote"><p><a id="Footnote_526_526" href="#FNanchor_526_526" class="label">[526]</a> Charter and Laws of Pennsylvania, 100. See page 28, <i>supra</i>.</p></div>
+
+<div class="footnote"><p><a id="Footnote_527_527" href="#FNanchor_527_527" class="label">[527]</a> Charter and Laws of Pennsylvania, 120, 181.</p></div>
+
+<div class="footnote"><p><a id="Footnote_528_528" href="#FNanchor_528_528" class="label">[528]</a> Charter and Laws of Pennsylvania, 180; I Colonial Records,
+176, 12, 2 mo. 1688.</p></div>
+
+<div class="footnote"><p><a id="Footnote_529_529" href="#FNanchor_529_529" class="label">[529]</a> II Statutes at Large, 51.</p></div>
+
+<div class="footnote"><p><a id="Footnote_530_530" href="#FNanchor_530_530" class="label">[530]</a> II Statutes at Large, 494.</p></div>
+
+<div class="footnote"><p><a id="Footnote_531_531" href="#FNanchor_531_531" class="label">[531]</a> II Statutes at Large, 199, §§ 3, 4.</p></div>
+
+<div class="footnote"><p><a id="Footnote_532_532" href="#FNanchor_532_532" class="label">[532]</a> I Colonial Records, 103, 16, 7 mo. 1685.</p></div>
+
+<div class="footnote"><p><a id="Footnote_533_533" href="#FNanchor_533_533" class="label">[533]</a> I Colonial Records, 552, July 1, 1700.</p></div>
+
+<div class="footnote"><p><a id="Footnote_534_534" href="#FNanchor_534_534" class="label">[534]</a> Charter and Laws of Pennsylvania, 231; I Colonial Records,
+390, May 31, 1693.</p></div>
+
+<div class="footnote"><p><a id="Footnote_535_535" href="#FNanchor_535_535" class="label">[535]</a> Charter and Laws of Pennsylvania, 261.</p></div>
+
+<div class="footnote"><p><a id="Footnote_536_536" href="#FNanchor_536_536" class="label">[536]</a> II Statutes at Large, 31, § 3.</p></div>
+
+<div class="footnote"><p><a id="Footnote_537_537" href="#FNanchor_537_537" class="label">[537]</a> II Statutes at Large, 148, § 8.</p></div>
+
+<div class="footnote"><p><a id="Footnote_538_538" href="#FNanchor_538_538" class="label">[538]</a> II Statutes at Large, 199.</p></div>
+
+<div class="footnote"><p><a id="Footnote_539_539" href="#FNanchor_539_539" class="label">[539]</a> III Statutes at Large, 14.</p></div>
+
+<div class="footnote"><p><a id="Footnote_540_540" href="#FNanchor_540_540" class="label">[540]</a> V Statutes at Large, 462.</p></div>
+
+<div class="footnote"><p><a id="Footnote_541_541" href="#FNanchor_541_541" class="label">[541]</a> Martin’s Bench and Bar of Philadelphia, 66.</p></div>
+
+<div class="footnote"><p><a id="Footnote_542_542" href="#FNanchor_542_542" class="label">[542]</a> Orphans’ Court Docket No. 2, page 78.</p></div>
+
+<div class="footnote"><p><a id="Footnote_543_543" href="#FNanchor_543_543" class="label">[543]</a> Orphans’ Court Docket No. 2, pages 59, 93.</p></div>
+
+<div class="footnote"><p><a id="Footnote_544_544" href="#FNanchor_544_544" class="label">[544]</a> Orphans’ Court Docket No. 3, page 53.</p></div>
+
+<div class="footnote"><p><a id="Footnote_545_545" href="#FNanchor_545_545" class="label">[545]</a> III Statutes at Large, 345.</p></div>
+
+<div class="footnote"><p><a id="Footnote_546_546" href="#FNanchor_546_546" class="label">[546]</a> <i>Brinker</i> v. <i>Brinker</i>, 7 Pennsylvania Reports, 53 (1847);
+<i>Steffy’s Appeal</i>, 76 Pennsylvania Reports, 94 (1874); <i>Kidder’s
+Estate</i>, 1 Kulp’s Reports, 412 (1875).</p></div>
+
+<div class="footnote"><p><a id="Footnote_547_547" href="#FNanchor_547_547" class="label">[547]</a> Orphans’ Court Docket No. 2, page 176.</p></div>
+
+<div class="footnote"><p><a id="Footnote_548_548" href="#FNanchor_548_548" class="label">[548]</a> By the Act of May 19, 1874, P. L. 206, § 7, the orphans’ court
+has power to prevent by order, in the nature of an injunction,
+acts contrary to law or equity prejudicial to the property over
+which they have jurisdiction. See Pepper and Lewis’s Digest
+of Decisions, Vol. 15, col. 24472.</p></div>
+
+<div class="footnote"><p><a id="Footnote_549_549" href="#FNanchor_549_549" class="label">[549]</a> IX Statutes at Large, 29; 1 Smith’s Laws of Pennsylvania,
+429.</p></div>
+
+<div class="footnote"><p><a id="Footnote_550_550" href="#FNanchor_550_550" class="label">[550]</a> IX Statutes at Large, 68; 1 Smith’s Laws of Pennsylvania,
+443.</p></div>
+
+<div class="footnote"><p><a id="Footnote_551_551" href="#FNanchor_551_551" class="label">[551]</a> Article V, § 11, Constitution of 1790; Article VI, § 3, Constitution
+of 1838.</p></div>
+
+<div class="footnote"><p><a id="Footnote_552_552" href="#FNanchor_552_552" class="label">[552]</a> Article V, § 7, Constitution of 1790; 3 Smith’s Laws of Pennsylvania,
+page xxxix.</p></div>
+
+<div class="footnote"><p><a id="Footnote_553_553" href="#FNanchor_553_553" class="label">[553]</a> 3 Smith’s Laws of Pennsylvania, 28.</p></div>
+
+<div class="footnote"><p><a id="Footnote_554_554" href="#FNanchor_554_554" class="label">[554]</a> <i>Marriot</i> v. <i>Davey</i>, 1 Dallas’s Report, 164 (1786).</p></div>
+
+<div class="footnote"><p><a id="Footnote_555_555" href="#FNanchor_555_555" class="label">[555]</a> <i>Kohr</i> v. <i>Fedderhaff</i>, 4 Sergeant &amp; Rawle’s Reports, 248
+(1818).</p></div>
+
+<div class="footnote"><p><a id="Footnote_556_556" href="#FNanchor_556_556" class="label">[556]</a> 11 Sergeant &amp; Rawle’s Reports, 422 (1824). So far as
+Philadelphia County is concerned the orphans’ court records are
+in a better state of preservation than those of the other courts.</p></div>
+
+<div class="footnote"><p><a id="Footnote_557_557" href="#FNanchor_557_557" class="label">[557]</a> First Report of the Commissioners to Revise the Civil Code
+(1831).</p></div>
+
+<div class="footnote"><p><a id="Footnote_558_558" href="#FNanchor_558_558" class="label">[558]</a> P. L. 135.</p></div>
+
+<div class="footnote"><p><a id="Footnote_559_559" href="#FNanchor_559_559" class="label">[559]</a> P. L. 190.</p></div>
+
+<div class="footnote"><p><a id="Footnote_560_560" href="#FNanchor_560_560" class="label">[560]</a> Section 4 of the Act of March 29, 1832, P. L. 190.</p></div>
+
+<div class="footnote"><p><a id="Footnote_561_561" href="#FNanchor_561_561" class="label">[561]</a> Hood on Executors, 103.</p></div>
+
+<div class="footnote"><p><a id="Footnote_562_562" href="#FNanchor_562_562" class="label">[562]</a> Act of April 18, 1853, P. L. 503.</p></div>
+
+<div class="footnote"><p><a id="Footnote_563_563" href="#FNanchor_563_563" class="label">[563]</a> Scott on the Intestate System of Pennsylvania, Rhone’s
+Orphans’ Court Practice, Brewster’s Orphans’ Court Practice.
+Pepper and Lewis’s Digest of Decisions, Vol. 14, col. 24234.</p></div>
+
+<div class="footnote"><p><a id="Footnote_564_564" href="#FNanchor_564_564" class="label">[564]</a> Article V. § 22, Constitution of 1874; see appendix.</p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_241">[Pg 241]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_VI">
+    CHAPTER VI.
+  </h2>
+</div>
+
+
+<p>In tracing the early history of the judicial proceedings
+by which roads and streets are laid out and opened
+in Pennsylvania, the common law of England lends
+little assistance. The physical conditions in colony and
+mother country were so radically different as to afford
+little analogy in matters of local or municipal regulation.
+In England, at the time of the settlement of the
+province, the country was traversed in every direction,
+from town to town and village to village, by ways so
+well defined by custom and so well established by reputation,
+that a complaint of want of thoroughfare was
+uncommon.&#x2060;<a id="FNanchor_565_565" href="#Footnote_565_565" class="fnanchor">[565]</a> In Pennsylvania, as in the other colonies,
+the opening of roads for public travel and for the transportation
+of commodities was an immediate and pressing
+economic necessity.</p>
+
+<p>The science of road construction was still in its infancy
+and throughout England roads were, during the seventeenth
+and eighteenth centuries, in a deplorable condition.
+In the first year of the reign of Queen Anne,
+Charles III of Spain visited England. His experiences
+on the road between Portsmouth and Petworth in
+Sussex are thus related by one of his suite:—</p>
+
+<blockquote>
+<p>“We set out at six in the morning by torchlight to go to
+Petworth and did not get out of the coaches (save only when we
+were overturned or stuck fast in the mire) till we arrived at
+our journey’s end. ’Twas a hard service for the Prince to sit
+fourteen hours in the coach that day without eating anything,
+and passing through the worst ways I ever saw in my life. We
+were thrown but once, indeed, in going, but our coach (which
+was the leading one) and his Highness’s body coach would have
+suffered very much if the nimble boors of Sussex had not
+frequently poised it or supported it with their shoulders from
+<span class="pagenum" id="Page_242">[Pg 242]</span>Godalming almost to Petworth; and the nearer we approached
+the Duke of Somerset’s house the more inaccessible it seemed
+to be. The last nine miles of the way cost us six hours to conquer
+them: and indeed we had never done it if our good master had
+not several times lent us a pair of horses out of his own coaching,
+whereby we were enabled to trace out the road for him.”&#x2060;<a id="FNanchor_566_566" href="#Footnote_566_566" class="fnanchor">[566]</a>&#x2060;</p>
+</blockquote>
+
+<p>So Defoe, in a letter written in 1722, remarks:—</p>
+
+<blockquote>
+<p>“Going to church at a country village not far from Lewes,
+I saw an ancient lady—and a lady of very good quality I assure
+you—drawn in her coach to church with six oxen; nor was it
+done in frolic or humour, but mere necessity, the way being so
+stiff and deep that no horses could go in it.”&#x2060;<a id="FNanchor_567_567" href="#Footnote_567_567" class="fnanchor">[567]</a>&#x2060;</p>
+</blockquote>
+
+<p>Few roads were more than bridle paths and a journey
+for any distance from home was a serious undertaking,
+that commonly meant the inditing of a last will and
+testament and the settlement of one’s worldly affairs.
+A country gentleman when traveling alone at this time
+usually adopted the plan called riding post; that is,
+he hired at each stage two horses and a postboy, who
+carried the portmanteau behind him and rode back
+when fresh horses were required.</p>
+
+<p>With the physical conditions thus, it is not surprising
+that the road law of the country was that of the feudal
+period, except as affected by special turnpike acts.
+Three kinds of ways were recognized—footways, horseways
+and cartways. In the language of Coke:—</p>
+
+<blockquote>
+<p>“There be three kinds of wayes whereof you shall reade
+in our ancient bookes. First a footway, which is called iter,
+quod est jus eundi vel ambulandi hominis; and this is the first
+way. The second is a footway and horseway, which is called
+actus ab agendo; and this vulgarly is called packe and prime way
+because it is both a footway, which was the first or prime way
+and a packe or drift way also. The third is via or aditus which
+contains the other two and also a cartway etc. for this is jus
+<span class="pagenum" id="Page_243">[Pg 243]</span>eundi, vehendi et vehiculum et jumentum ducendi: and
+this is two fold, viz: regia via, the king’s highway for all men,
+et communis strata, belonging to a city or town or between
+neighbors and neighbors. This is called in our bookes chimin,
+being a French word for a way, whereof cometh chiminage,
+chiminagium or chimmagium, which signifieth a toll due by
+custome for having a way through a forest, and in ancient
+records it is sometimes called pedagium.”&#x2060;<a id="FNanchor_568_568" href="#Footnote_568_568" class="fnanchor">[568]</a>&#x2060;</p>
+</blockquote>
+
+<p>Another classification divided ways into: King’s highways,
+that is, public passages for the king and his subjects;
+common ways or such as led from a village to the
+parish church or common fields, and were for the benefit
+of the particular inhabitants of the locality; and
+private ways, where particular individuals had a right
+of passage through certain land.</p>
+
+<p>The right to a public highway usually rested on an
+act of parliament, express grant, dedication, or was
+claimed by prescription, and, as already stated, complaints
+of want of thoroughfare seldom arose. If it
+became necessary to deviate from an existing way the
+new route did not become a public highway without a
+writ of <i>ad quod damnum</i> and inquisition. This was an
+ancient writ issued out of and returnable into chancery
+through the petty-bag office and was directed to the
+escheator or sheriff, who was commanded to hold an
+inquisition to determine what damage would result to
+the king or his subjects from the grant so that compensation
+could be made a condition thereof.&#x2060;<a id="FNanchor_569_569" href="#Footnote_569_569" class="fnanchor">[569]</a> Without
+this writ the public could not justify going over a new
+way, as a common highway, but were obliged to show
+their excuse specially.&#x2060;<a id="FNanchor_570_570" href="#Footnote_570_570" class="fnanchor">[570]</a> If the purpose was to change
+an old way or alter its condition, the new way, or way
+so altered, was required to be as beneficial as the old
+<span class="pagenum" id="Page_244">[Pg 244]</span>one.&#x2060;<a id="FNanchor_571_571" href="#Footnote_571_571" class="fnanchor">[571]</a> “These inquests of office,” says Blackstone,
+speaking generally of sheriffs’ and coroners’ inquisitions,
+“were devised by law, as an authentic means to give the
+king his right by solemn matter of record without which
+he, in general, can neither take nor part from anything.
+For it is of the liberties of England and greatly for
+the safety of the subject, that the king may not enter
+upon and seize any man’s possession upon bare surmises
+without the intervention of a jury.”&#x2060;<a id="FNanchor_572_572" href="#Footnote_572_572" class="fnanchor">[572]</a>&#x2060;</p>
+
+<p>The obscurity of the practice and infrequency of
+reported cases shows that <i>ad quod damnum</i> proceedings
+never played an important part in highway law. The
+writ contained great possibilities, and, with a simplified
+procedure, might have become a useful vehicle for accommodating
+the conflicting interests of the public and
+the land owner, had road matters been of importance in
+the flourishing days of petty-bag jurisdiction. But in
+those times the ancient ways were sufficient for the
+needs of the public, and where new roads were formally
+opened, they were usually either dedicated by the land
+owner or laid out over unimproved lands without compensation.
+When the pressure for highway improvements
+became greater a statutory proceeding more
+convenient and inexpensive was substituted for the
+ancient writ, preserving, however, the spirit and substance
+of the earlier procedure.&#x2060;<a id="FNanchor_573_573" href="#Footnote_573_573" class="fnanchor">[573]</a> In some of the American
+states, notably in Virginia and Kentucky, the writ
+<i>ad quod damnum</i> was introduced and applied in proceedings
+for the erection of mill dams on streams, and
+<span class="pagenum" id="Page_245">[Pg 245]</span>extended to other matters involving injury to and
+appropriation of private property.&#x2060;<a id="FNanchor_574_574" href="#Footnote_574_574" class="fnanchor">[574]</a>&#x2060;</p>
+
+<p>It was about the time of the settlement of the colonies
+that eminent domain as a distinct branch of governmental
+power began to be discussed, although it had
+long existed as a necessary attribute of sovereignty.
+Grotius, in 1625, first used and apparently originated
+the phrase which, although open to criticism, in so far
+as it implies that the basis of the power is an ultimate
+ownership in the state of all property, has been universally
+adopted as defining the power inherent in a sovereign
+state to take or authorize the taking of private
+property for public use.&#x2060;<a id="FNanchor_575_575" href="#Footnote_575_575" class="fnanchor">[575]</a> But in the seventeenth and
+eighteenth centuries the practical application of the
+principle and its relation to the constitutional restraints
+on state action had not been worked out.&#x2060;<a id="FNanchor_576_576" href="#Footnote_576_576" class="fnanchor">[576]</a>&#x2060;</p>
+
+<p>The period of Dutch supremacy was not marked by
+any special activity in road improvements. The colonists
+on both the North and South Rivers were scattered
+in villages along the banks and transportation was
+usually by water. The laying out of such highways as
+were needed came under the jurisdiction of the schout
+and schepens, while the streets of the capital were
+under the immediate supervision of the chief officials.&#x2060;<a id="FNanchor_577_577" href="#Footnote_577_577" class="fnanchor">[577]</a>
+Thus an ordinance of the director and council of New
+Amsterdam of February 25, 1656, approves a survey of
+<span class="pagenum" id="Page_246">[Pg 246]</span>the streets of the city and refers the execution to the
+burgomasters, who are to give notice to all persons, who
+may be damaged by the survey, to furnish a statement
+of their damages, and if an agreement cannot be reached,
+the matter is to be referred to two or three disinterested
+persons who are to appraise the lots.&#x2060;<a id="FNanchor_578_578" href="#Footnote_578_578" class="fnanchor">[578]</a> Various regulations
+were adopted as to the use of the village streets,
+one of which may be quoted at length:—</p>
+
+<blockquote>
+<p>“Ordinance of the Vice Director and Commisaries of Fort
+Orange Passed 10 December 1659. The Worshipful Commissary
+and Commissionaries of Fort Orange and Village of Beverswyck,
+having heard divers complaints from the Burghers of this place,
+against playing at Golf along the streets, which causes great
+damage to the windows of the Houses, and exposes people to
+danger of being wounded, and is contrary to the freedom of the
+public streets; therefore their worships, wishing to prevent
+the same, forbid all persons playing Golf in the streets, on
+pain of forfeiting fl. 25 for each person who shall be found
+doing so.”&#x2060;<a id="FNanchor_579_579" href="#Footnote_579_579" class="fnanchor">[579]</a>&#x2060;</p>
+</blockquote>
+
+<p>That some of the good people of Albany were devoting
+their time to golf at this period, is more surprising than
+that their fellow-townsmen objected to the use of the
+streets as links.</p>
+
+<p>Upon the conquest of the New Netherlands by the
+English the matter of highway regulation seems to have
+been neglected. There is no mention of the subject in
+the Duke of York’s Laws, and this is the more surprising
+in view of the fact that they were drawn largely from
+New England sources where the subject of highways had
+received early attention. By a law of the colony of
+Massachusetts passed in 1639 highways were to be laid
+out on complaint to the county court, which was directed
+to appoint “two or three men of each next town whose
+<span class="pagenum" id="Page_247">[Pg 247]</span>inhabitants had most occasion thereof,” and these,
+upon view, were to lay out such highway according to
+order and make return to the next court, compensation
+to be paid to any man damaged in his improved ground
+by estimation of those who laid out the same. If the
+viewers disagreed or the person was dissatisfied with the
+acts of the viewers, the matter was to be referred to the
+county court,&#x2060;<a id="FNanchor_580_580" href="#Footnote_580_580" class="fnanchor">[580]</a>&#x2060;—a simple and effective proceeding, and
+hard to improve upon, as long as the laying out of roads
+was regarded as a matter of local government.</p>
+
+<p>In the settlements on the Delaware the opening and
+repair of roads were matters within the jurisdiction of
+the court of sessions. Overseers of highways were
+appointed who were empowered to call upon the inhabitants
+for assistance in the construction and repair of
+highways and bridges, and persons refusing to work on
+the roads were fined by the courts.&#x2060;<a id="FNanchor_581_581" href="#Footnote_581_581" class="fnanchor">[581]</a> The following entry
+appears on the minutes of the court held at New Castle
+June 15, 1678:—</p>
+
+<blockquote>
+<p>“It being Represented to the court y<sup>t</sup> there is need of a
+highway to come from Jan Staalcops Round Christina to this
+Towne of New Castle, The court therefore ordered, that all the
+Inhabitants dwelling on the North syde of Christina, from
+brandewyn Creeke to the place or plantation of John Ogle, Doe
+with all Convenient speede make and Cleare a good and passable
+Highway from y<sup>e</sup> s<sup>d</sup> Staalcops house Round Christina Creeke to
+this Towne of New Castle, and doe appoint for overseer thereof
+Mr. Abraham Man who is desired to see the worke Effectually
+done.”&#x2060;<a id="FNanchor_582_582" href="#Footnote_582_582" class="fnanchor">[582]</a>&#x2060;</p>
+</blockquote>
+
+<p>At a court held December 3, 1679, the inhabitants
+were divided into companies under designated overseers
+<span class="pagenum" id="Page_248">[Pg 248]</span>and charged with the care of the highways in their
+respective districts. It was also ordered that—</p>
+
+<blockquote>
+<p>“Whereas for y<sup>e</sup> Common Good of the Country itt is found
+necessary that y<sup>e</sup> highwayes from place to place bee annually
+made good &amp; cleared Itt is therefore resolved viz<sup>t</sup> That Every
+respective overseer take care that betweene Every decem &amp;
+March his part of y<sup>e</sup> highway bee made good &amp; cleared, upon y<sup>e</sup>
+penalty &amp; forfeiture of 1000 lb. of tobb if proved to be y<sup>e</sup> fault
+of y<sup>e</sup> overzeer and if any Inhabitant resorting under the company
+of any overseer shall refuse upon due notice to worke att y<sup>e</sup>
+highway till it be finisht hee to forfeit for Each such neglect
+400 lb. of tobacco. The highway to be Cleared as followeth
+viz<sup>t</sup> The way to bee made cleare of standing &amp; Lying trees at
+Least 10 foot broad all stumpes &amp; shrubs to bee close cutt by y<sup>e</sup>
+ground, the trees markt yearly on boath sydes, sufficient bridges
+to be made and kept over all marshy swampy &amp; difficult dirty
+places &amp; what ever else shall be tougt more necessary in and
+about y<sup>e</sup> highwayes afores<sup>d</sup>.”&#x2060;<a id="FNanchor_583_583" href="#Footnote_583_583" class="fnanchor">[583]</a>&#x2060;</p>
+</blockquote>
+
+<p>William Penn on receiving his grant of the province
+of Pennsylvania, provided in his frame of government
+that the governor and provincial council should “at all
+times settle and order the situation of all cities, ports
+and market towns in every county, modeling therein all
+public buildings, streets and market places,” and should
+“appoint all necessary roads and highways in the
+province.”&#x2060;<a id="FNanchor_584_584" href="#Footnote_584_584" class="fnanchor">[584]</a>&#x2060;</p>
+
+<p>In the instrument executed by Penn July 11, 1681,
+known as “the conditions and concessions to the adventurers
+and purchasers,” it was agreed that—</p>
+
+<blockquote>
+<p>“Great roads from City to City not to contain less than
+forty feet in breadth shall be first laid out and declared to
+be for highways before the Dividend of acres be laid out for
+the purchaser and the like observation to be had for the streets
+in the towns and Cities that there may be convenient roads
+<span class="pagenum" id="Page_249">[Pg 249]</span>and streets preserved not to be encroached upon by any planter
+or builder that none may build irregularly to the damage of
+another.”&#x2060;<a id="FNanchor_585_585" href="#Footnote_585_585" class="fnanchor">[585]</a>&#x2060;</p>
+</blockquote>
+
+<p>“On the arrival of the adventurers in this country,”
+says Chief Justice Shippen, “it was found very practicable
+to lay out streets in one great city, which was
+accordingly done, but quite impracticable to lay out
+the great roads or highways from city to city, as only
+one city was then contemplated. But as such great
+roads were to be laid out over the land of the proprietor
+alone and the purchasers were not to contribute,
+it was at length agreed and sanctioned in lieu of the
+impracticable plan settled in England, there should be
+an additional quantity of land granted to each purchaser
+without price or rent, to enable him to contribute
+without loss to such public roads as should thereafter
+be found necessary for the use of the inhabitants.”&#x2060;<a id="FNanchor_586_586" href="#Footnote_586_586" class="fnanchor">[586]</a>
+The quantity of six per cent was fixed as the permanent
+additional allowance for that purpose and provision
+was made therefor in the Acts of November 20, 1700,&#x2060;<a id="FNanchor_587_587" href="#Footnote_587_587" class="fnanchor">[587]</a>
+and of June 7, 1712.&#x2060;<a id="FNanchor_588_588" href="#Footnote_588_588" class="fnanchor">[588]</a> Both of these acts were repealed
+by the queen in council, for reasons having nothing to
+do with this provision, but the custom was established,
+and it is the law of this state that the owner of land
+taken for the purpose of a public road, has no right to
+compensation for the land itself, but only for the improvements,
+unless such a right is expressly conferred
+by statute.&#x2060;<a id="FNanchor_589_589" href="#Footnote_589_589" class="fnanchor">[589]</a> “The six per cent,” in the words of Chief
+Justice Black, “belongs to the State and she may constitutionally
+<span class="pagenum" id="Page_250">[Pg 250]</span>appropriate it to the use it was meant for.
+I speak now of land in its natural state. Where buildings
+are pulled down, or other valuable improvements destroyed
+in the making of a new road, the right to compensation
+is guaranteed to the owner by the constitution.”&#x2060;<a id="FNanchor_590_590" href="#Footnote_590_590" class="fnanchor">[590]</a>&#x2060;</p>
+
+<p>On the eighteenth of April, 1682, Captain Thomas
+Holme was commissioned as surveyor general of the
+province and proceeded to the Delaware, where, in the
+summer of that year, a site for the city of Philadelphia
+was chosen and the ground laid out in streets and lots,
+according to the general directions of Penn as shown
+on the plan usually referred to as Holme’s map of Philadelphia.&#x2060;<a id="FNanchor_591_591" href="#Footnote_591_591" class="fnanchor">[591]</a>
+If the streets seem narrow, it must be remembered
+that the plan was conceived on a liberal scale for
+that time. When the city was laid out the standard
+width of a street in London was two perches or thirty-three
+feet. Penn determined to make the streets wider
+in Philadelphia, so as to prepare for future growth, and,
+accordingly, established the standard of fifty feet, which
+is about three perches. Market street was laid out one
+hundred feet wide, Broad street one hundred and thirteen
+feet, Arch or Mulberry street sixty-six feet or four
+perches.&#x2060;<a id="FNanchor_592_592" href="#Footnote_592_592" class="fnanchor">[592]</a>&#x2060;</p>
+
+<p>Penn, indeed, was determined that the city should
+not be cramped. “Let every house,” he said in his
+instructions to the commissioners to lay out the city,
+“be placed, if the person pleases, in the middle of its
+plat as to the breadth way of it, that so there may be
+ground on each side for gardens and orchards, or fields,
+<span class="pagenum" id="Page_251">[Pg 251]</span>that it may be a green country town, which will never
+be burnt, and always be wholesome.”&#x2060;<a id="FNanchor_593_593" href="#Footnote_593_593" class="fnanchor">[593]</a>&#x2060;</p>
+
+<p>In the charter of October 25, 1701,&#x2060;<a id="FNanchor_594_594" href="#Footnote_594_594" class="fnanchor">[594]</a> erecting the town
+into a city, Penn ordained that the streets of the city
+should forever continue as they were then laid out and
+regulated, and no special power was conferred upon the
+corporation to alter the plan. This, of course, applied
+to the old city, extending from Vine street on the north
+to Cedar (South) street on the south. The streets in
+the several outlying districts were, upon their incorporation,
+plotted under special acts.</p>
+
+<p>In accordance with the Frame of Government, the
+provincial council assumed jurisdiction of the laying
+out of the main highways, and the minutes of that
+body are full of references to such matters. At a meeting
+of the council in 1686—</p>
+
+<blockquote>
+<p>“A Petition Relating to highways was Read, upon wch the
+Councill agreed y<sup>t</sup> there should be a Sett time appointed for
+y<sup>e</sup> Councill to Inspect all y<sup>e</sup> Business relating to y<sup>e</sup> Highways,
+and to Order yt y<sup>e</sup> Roads be Laid out in y<sup>e</sup> most proper and
+Convenient Places within this Province.”&#x2060;<a id="FNanchor_595_595" href="#Footnote_595_595" class="fnanchor">[595]</a>&#x2060;</p>
+</blockquote>
+
+<p>The multiplicity of their duties, however, prevented
+them from taking entire charge of road cases, and by
+the Act of March 1, 1683,&#x2060;<a id="FNanchor_596_596" href="#Footnote_596_596" class="fnanchor">[596]</a> it was provided that each
+county court should “appoint and settle sufficient cartways
+to the most convenient landing places, in their
+respective counties, for public use and benefit.” A
+distinction was thus made between the great provincial
+roads or king’s highways and the local roads or cartways
+for the convenience of a special neighborhood.
+This is illustrated by two resolutions of the council,
+<span class="pagenum" id="Page_252">[Pg 252]</span>passed within a couple of months of each other. In
+one case the minutes read:—</p>
+
+<blockquote>
+<p>“The Petition of Henry Jones was Read, setting forth y<sup>e</sup>
+badness of the way from Moyamensin to Philadelphia. It was
+Referred to y<sup>e</sup> County Court, who it’s presumed has power to
+appoynt Roads to Landing Places, to Court, &amp; to Markett.”&#x2060;<a id="FNanchor_597_597" href="#Footnote_597_597" class="fnanchor">[597]</a>&#x2060;</p>
+</blockquote>
+
+<p>In the other case:—</p>
+
+<blockquote>
+<p>“The Councill taking into Consideration y<sup>e</sup> Unevenesse of
+y<sup>e</sup> Road from Philadelphia to y<sup>e</sup> falls of Delaware.</p>
+
+<p>“Agreed that Robt Turner &amp; John Barnes for y<sup>e</sup> County of
+Philadelphia, Arth. Cook and Tho. Janney for y<sup>e</sup> County of
+Bucks, with y<sup>e</sup> Respective Surveyrs of y<sup>e</sup> sd Counties, meet and
+Lay out a more Comodious Road from y<sup>e</sup> broad Street in Philadelphia
+to y<sup>e</sup> falls aforesaid: y<sup>e</sup> time when is Referred to y<sup>e</sup>
+members Nominated.”&#x2060;<a id="FNanchor_598_598" href="#Footnote_598_598" class="fnanchor">[598]</a>&#x2060;</p>
+</blockquote>
+
+<p>From this time on the minutes of the council contain
+many references to public highways. Petitions were
+presented, sometimes by individuals, sometimes by the
+inhabitants of a neighborhood or township, complaining
+of the want of a road and praying for an order to lay
+out the same; if the petition was approved, the usual
+practice was to order that a warrant be directed to the
+surveyor general to lay out the road. The following is a
+typical case:—</p>
+
+<blockquote>
+<p>“Upon the memorial of the Honble, Andrew Hamilton, Esqr.
+Gor of the Jersies, &amp; post master generall, &amp;c. to the Gor &amp;
+Council, Setting forth that it was formerlie with great difficultie
+that the post could goe to Philadelphia by Land, to the great
+inconvenience of Correspondence &amp; trade, and yt for remedie
+whereof, &amp; accommodaon of Travellers, a ferry had been erected
+on Jersie side att a great chairge, but that the way was not yet
+returned from the landing on pennsilvania side to the king’s
+road, wch is about three Quarters of a mile &amp; easily cleared;
+And therefore, Requesting the Governor &amp; Council to approve
+the said road, and give the necessarie orders for clearing it.</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_253">[Pg 253]</span></p>
+
+<blockquote>
+<p>“Ordered, that a warrantt be directed from the Governor
+to Thomas ffairman, Surveyor, To lay outt the king’s road from
+dunck William’s Landing, (the nearest &amp; most convenient yt may
+be had, &amp; Least prejudicial to the Lands and improvments of
+the nighbourhood,) Into the king’s great road that Leads to
+Philadelphia, and that a Return in words, of the Courses &amp;
+protracted figure thereof, be made Into the Secries office,
+in order to be filed &amp; recorded there, as a finall Confirmaon
+thereof. And that the Justices of the peace for the County
+of Bucks, be by the Governor requested to order the overseers
+of y<sup>e</sup> Highways in that County to make good &amp; clear the same
+wt all expedion.”&#x2060;<a id="FNanchor_599_599" href="#Footnote_599_599" class="fnanchor">[599]</a>&#x2060;</p>
+</blockquote>
+
+<p>The return of the surveyor general is as follows:—</p>
+
+<blockquote>
+<p>“By virtue of the Governor’s speciall warrant, bearing
+date y<sup>e</sup> 28th day of October, 1696, to mee directed, psuant to
+an order of the Govervor &amp; Council, granted upon the applicaon
+of Andrew Hamilton, esqr. Governor of y<sup>e</sup> Jersies &amp; post mr
+generall, I have surveyed &amp; Laid outt the king’s roade from
+y<sup>e</sup> Landing of dunken Williams, on delaware, in the Countie of
+Bucks &amp; province of pennsilvania, Beginning there at a Spanish
+oak att High water mark; thence sixtie foot broad, extending
+North North-west on each side the Line, dividing betwixt the
+Land of the sd duncken Williams &amp; Nathaniel Harding, Two
+Hundred pearches; Thence in the sd duncken’s Land, north
+eightie-One degrees, westerlie fourtie pearches; Thence north
+sixtie-foure degrees, westerly sixty-two pearches, Unto the
+old king’s Roade which Leads to Philadelphia, &amp; Hath been
+ancientlie Surveyed &amp; Returned.”&#x2060;<a id="FNanchor_600_600" href="#Footnote_600_600" class="fnanchor">[600]</a>&#x2060;</p>
+</blockquote>
+
+<p>Occasionally an order for the laying out of a road is
+directed to a number of individuals, usually six, but
+these roads are not always described as king’s roads, and
+would seem sometimes to belong to the class of roads
+ordinarily laid out by the courts, which the council, in a
+few instances, undertook to order, in the exercise of
+their supervisory functions still undefined. In fact
+there are instances where their order was for the confirmation
+<span class="pagenum" id="Page_254">[Pg 254]</span>of an old road merely, or to settle a disagreement
+between the parties interested and the viewers
+appointed by the county court.</p>
+
+<p>An interesting case was that of Robert Wade, the
+owner of a tract of land in Chester, the whole of which
+was taken by the grand jury for a public landing place
+and open street, without Wade’s knowledge or consent
+and without offering him any compensation. Upon his
+protesting the justices stated that they “Seazed it for
+the king,” whereupon he petitioned the council, stating—</p>
+
+<blockquote>
+<p>“That the petitionr being a freeman, cannot by Law be
+disseized of his freehold but by the Judgment of his 12 equalls,
+by a Legall tryall, and which act of the Court has been to the
+petitioner’s great Loss &amp; damage, who is daylie threatened to
+have what hee shall build on sd his Land pulled downe and
+throwen in the sd creek, and therfor, requesting such remedie
+&amp; redress in the premisses as is agreeable to Justice &amp; equitie.”&#x2060;<a id="FNanchor_601_601" href="#Footnote_601_601" class="fnanchor">[601]</a>&#x2060;</p>
+</blockquote>
+
+<p>The council sent to the court for a copy of the proceedings,
+and on further debate it was resolved that the
+action of the grand jury was unjustified and an order
+made that the petitioner be no further molested in the
+peaceable possession of his property.&#x2060;<a id="FNanchor_602_602" href="#Footnote_602_602" class="fnanchor">[602]</a>&#x2060;</p>
+
+<p>This isolated attempt by the grand jury to assume the
+right of eminent domain having been promptly frustrated,
+the real doubt as to how the Act of 1683 was
+to be interpreted was resolved by a further act defining
+the practice in road cases, passed May 10, 1699.&#x2060;<a id="FNanchor_603_603" href="#Footnote_603_603" class="fnanchor">[603]</a> This
+was re-enacted in almost the same language in the Act
+of November 27, 1700,&#x2060;<a id="FNanchor_604_604" href="#Footnote_604_604" class="fnanchor">[604]</a> as follows, the only substantial
+additions being the clauses bracketed:—</p>
+
+<blockquote>
+<p>“Section I. Be it enacted by the Proprietary and Governor,
+by and with the advice and consent of the freemen of this
+<span class="pagenum" id="Page_255">[Pg 255]</span>Province and Territories in General Assembly met, and by the
+authority of the same, That all the King’s highways or public
+roads within this province or counties annexed, shall be laid
+out by order of the governor and council for the time being;
+which roads shall be recorded in the council book, with the
+courses thereof, as near as may be done.</p>
+
+<p>“Section II. And be it further enacted by the authority
+aforesaid, That the justices of each county court within this
+government shall, and by virtue of this act have power, as
+often as they find needful, in open court to order and appoint
+six sufficient housekeepers of the neighborhood inhabiting near
+the place where complaint is made for want of a road or cartway
+unto the public road, who shall view the said place; and if the
+said housekeepers, or any four of them, are satisfied that there
+is occasion for a road or cartway to be laid out, according to
+the complainant’s or complainants’ desire, then they shall and
+may lay out the same, [in and through such convenient places as
+they shall think may be least to the damage or inconveniency
+of the neighbors or parties concerned, and least injurious to
+the settlements thereabouts;] and of such breadth as the justices
+shall order and appoint, so that it exceed not fifty feet; and
+shall make return thereof under their hands to the next county
+court after it is laid out; and if then and there the justices
+approve the same, it shall at the same court be entered upon
+record, and from thenceforth be taken, deemed and allowed to
+be a lawful road or cartway from that time forwards.</p>
+
+<p>“[Provided, That no such road shall be carried through any
+man’s improved lands but where there is a necessity for the
+same; and where that appears, the respective county courts
+shall appoint six indifferent men to view and adjudge the value
+of so much of such improved lands as shall be taken up for the
+use aforesaid, and the value thereof shall be paid to the owner
+of the said land out of the respective county stock.]</p>
+
+<p>“And to prevent any difference that may arise among neighbors
+about roads or cartways laid out by order of the governor and
+council, or any of the county courts in this government, and
+which are or shall be entered upon record, either before or
+after the making and publishing of this act:</p>
+
+<p>“Section III. Be it enacted by the authority aforesaid, That
+all such roads and cartways as before mentioned, shall be
+taken, deemed and allowed to be free, open and lawful roads
+and cartways from the time they are so laid out and recorded
+as aforesaid.”</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_256">[Pg 256]</span></p>
+
+<p>This act was the real foundation of the system of
+laying out and opening township roads in Pennsylvania.
+Its salient features were the provision for the appointment
+of six viewers to report on the necessity for the
+road before confirmation by the court, and the further
+provision that, where it became necessary to carry the
+road through improved lands, six viewers should be
+appointed to adjudge the value of the improvements so
+taken, which was to be paid for out of the county stock.</p>
+
+<p>By a supplementary act of February 20, 1735,&#x2060;<a id="FNanchor_605_605" href="#Footnote_605_605" class="fnanchor">[605]</a> the
+justices of the quarter sessions were empowered, on the
+application of any person for a road from the plantation
+or dwelling place of such person to or from a highway,
+to direct a view, and if such road be found necessary,
+to order it laid out, not exceeding thirty-three feet in
+width, the value of the improved land taken to be paid
+for by the person at whose request it was laid out, who
+was also to clear and maintain the same.</p>
+
+<p>The result of this legislation was to establish three
+kinds of roads: (1) The great provincial roads or king’s
+highways, laid out by order of the provincial council;
+(2) Cartways leading into public roads, laid out by order
+of the justices of the county courts upon the report of
+viewers, and (3) Private roads, likewise laid out by order
+of the justices upon the report of viewers.&#x2060;<a id="FNanchor_606_606" href="#Footnote_606_606" class="fnanchor">[606]</a> The last
+were common roads for the use not only of the persons
+for whom they were laid out but for all who should have
+occasion to travel to the plantations of such persons.
+Some interesting information as to the procedure may
+be gleaned from the minutes of the council, where road
+matters were frequently under consideration. Thus,
+on October 7, 1737, on consideration of a petition of
+<span class="pagenum" id="Page_257">[Pg 257]</span>sundry inhabitants of Lancaster County, setting forth
+the want of a high road from the town of Lancaster to
+Coventry Iron Works on French Creek in Chester
+County and praying for the appointment of proper
+persons to lay out the same, the council granted the
+prayer of the petition and directed that six persons
+appointed from Lancaster County or any four of them
+view and lay out a high road to the division line between
+Lancaster and Chester counties; that six persons appointed
+from Chester County, or any four of them, there
+join the others and agree on the most convenient passage
+over the division line and continue the road to the
+terminus and that the twelve, or eight of them, make
+return to the council for confirmation.&#x2060;<a id="FNanchor_607_607" href="#Footnote_607_607" class="fnanchor">[607]</a> The duties of
+the viewers, it will be noticed, were limited to their
+respective counties.</p>
+
+<p>On March 24, 1736-7, an elaborate draft of a road
+from Harris’s Ferry on the Susquehanna River to
+Kennison’s plantation in Chester County was returned
+by the viewers, eleven of whom signed the report.&#x2060;<a id="FNanchor_608_608" href="#Footnote_608_608" class="fnanchor">[608]</a> A
+petition by some inhabitants of Chester County was presented,
+objecting to the road as laid out, and praying for
+a review. Other citizens supported the report, and after
+hearing the petitioners for the review withdrew their
+petition and the road was confirmed as laid out. Nevertheless,
+the parties being still dissatisfied and the quarter
+sessions of Chester County being of opinion that the
+road as laid out was impracticable, new petitions were
+presented to the council for and against the road. After
+full argument the council, finding that all the objections
+were to that part of the road in Chester County,
+appointed six persons from that county to review the
+road from the county line and make such alterations to
+<span class="pagenum" id="Page_258">[Pg 258]</span>the best of their judgment “as may truly answer the
+intention of accommodating both Country and
+travellers.”&#x2060;<a id="FNanchor_609_609" href="#Footnote_609_609" class="fnanchor">[609]</a> Upon the report of the reviewers the following
+order was made:—</p>
+
+<blockquote>
+<p>“The Board, on due Consideration had of the said Return,
+and of the Draught accompanying it, do approve, establish, &amp;
+confirm the Road aforesaid as now laid out and reviewed,
+agreeable to which Return the Confirmation formerly made by
+an Order of Council of the twenty-fourth day of March, 1736-7,
+is directed to be amended, and the said Road is hereby declared
+to be the King’s Highway or Publick Road, and It is Recommended
+to the Justices of the Peace for the County of Chester,
+that they, at their next ensuing Quarter Sessions, issue Directions
+to the Overseers of the Highways for causing the said
+Road to be opened &amp; cleared, so that it may be rendred commodious
+for the Publick Service.”&#x2060;<a id="FNanchor_610_610" href="#Footnote_610_610" class="fnanchor">[610]</a>&#x2060;</p>
+</blockquote>
+
+<p>The foregoing record is interesting as showing the
+practice of granting reviews in the case of provincial as
+well as county roads, and other instances will be found
+in the minutes of the council. In the case of a road
+laid out by the quarter sessions it was held in 1764 that
+a review, though not taken notice of in the act of assembly,
+had always been granted and had become a matter
+of right.&#x2060;<a id="FNanchor_611_611" href="#Footnote_611_611" class="fnanchor">[611]</a>
+    By the Act of April 6, 1802,&#x2060;<a id="FNanchor_612_612" href="#Footnote_612_612" class="fnanchor">[612]</a> the quarter
+sessions were required to grant a review in all cases,
+<span class="pagenum" id="Page_259">[Pg 259]</span>provided the application was made at the next court
+after the report had been made on the first view. The
+appointment of re-reviewers is discretionary.</p>
+
+<p>The Act of April 6, 1802, just referred to, was a general
+road law which replaced the older legislation with
+greater elaboration of detail. It, in turn, was repealed
+by the general road law of June 13, 1836,&#x2060;<a id="FNanchor_613_613" href="#Footnote_613_613" class="fnanchor">[613]</a> an act, drafted
+by the commissioners to revise the civil code, which
+embodied the previous legislation and practice in a clear
+and comprehensive form. This act, with its amendments,
+is still in force and is the only general road law
+applicable to all parts of the commonwealth, but its
+operation has been greatly restricted by local and special
+acts.</p>
+
+<p>Briefly stated the Act of 1836 provides that the court
+of quarter sessions, on being petitioned to grant a view
+for a road within the county, shall appoint six viewers
+(since reduced to three),&#x2060;<a id="FNanchor_614_614" href="#Footnote_614_614" class="fnanchor">[614]</a> who, if they agree that there is
+occasion for the road, are to proceed to lay out the
+same so as to do least injury to improved property and
+also meet the desire of the petitioners. The viewers are
+required to report at the next term of court, annexing
+a draft of the road, stating the courses and distances and
+briefly noting the improvements and, when practicable,
+they are not to lay out the road at an elevation exceeding
+five degrees except at crossings of ravines and
+streams. If the court approve the report they must
+direct of what breadth the road shall be opened&#x2060;<a id="FNanchor_615_615" href="#Footnote_615_615" class="fnanchor">[615]</a> and at
+the next court the whole proceedings are to be entered
+of record and the road deemed and allowed to be a
+<span class="pagenum" id="Page_260">[Pg 260]</span>public road or highway or a private road as the case
+might be.</p>
+
+<p>Public roads were to be kept in repair at the expense
+of the township; private roads at the expense of the
+petitioner. Reviews might be granted if applied for
+at or before the next term of court after the report on
+the first view. The owner of any land through which
+the road was laid out might, within one year from the
+opening, petition for the appointment of six viewers to
+assess his damages, who were to report to the next court
+the injury done, and if their report was approved the
+amount assessed was to be paid out of the county stock.</p>
+
+<p>The Act of May 14, 1874,&#x2060;<a id="FNanchor_616_616" href="#Footnote_616_616" class="fnanchor">[616]</a> following various prior
+local acts, provides that the viewers appointed to lay
+out the road shall endeavor to procure releases from
+property owners and shall assess the damages sustained,
+thus combining the laying out of roads and the assessment
+of damages in one view, and obviating the necessity
+of a separate view for damages, except in such
+counties as may have local laws inconsistent with the
+Act of 1874. These proceedings seem simple enough,
+but a glance at the hundreds of bitterly contested cases
+would indicate otherwise. Every step, in fact, has been
+the subject of protracted litigation and voluminous
+opinions, which must be carefully studied at every stage
+of this intricate game of the law.</p>
+
+<p>The general road law of 1836 conferred no authority
+on the quarter sessions to grant a view to widen a road
+or street, but this jurisdiction was conferred by the Act
+of May 8, 1850.&#x2060;<a id="FNanchor_617_617" href="#Footnote_617_617" class="fnanchor">[617]</a>&#x2060;</p>
+
+<p>As to the vacation of roads, the Act of 1836 provided
+that the quarter sessions should have power, on petition,
+to change or vacate the whole or any part of a public or
+<span class="pagenum" id="Page_261">[Pg 261]</span>private road which had become inconvenient, useless or
+burdensome, and to vacate and annul a road laid out,
+but not opened, on petition of a majority of the original
+petitioners. No authority was given to vacate a road
+confirmed and partly opened, but this defect was remedied
+by the Act of May 3, 1855,&#x2060;<a id="FNanchor_618_618" href="#Footnote_618_618" class="fnanchor">[618]</a> which, however, expressly
+excepted state roads, authorized by special law,
+and streets in incorporated cities and boroughs. The
+Act of May 8, 1854,&#x2060;<a id="FNanchor_619_619" href="#Footnote_619_619" class="fnanchor">[619]</a> conferred jurisdiction on the
+quarter sessions to vacate any private or public lane,
+alley, road or highway whenever the same, by reason of
+forming of town plots or otherwise, had become useless
+to the public and those having lands bounding thereon.</p>
+
+<p>Whenever the whole or a part of a road is vacated,
+changed and supplied by a new one, the old road cannot
+be closed until the road laid out to supply its place is
+actually opened and made.&#x2060;<a id="FNanchor_620_620" href="#Footnote_620_620" class="fnanchor">[620]</a>&#x2060;</p>
+
+<p>With the dissolution of the provincial government in
+1776 the jurisdiction of the council in matters relating
+to the laying out of highways came to an end and the
+constitution adopted in that year conferred no special
+jurisdiction in such affairs upon its successor, the
+supreme executive council. As a consequence, the
+great roads through the sparsely inhabited sections of
+the state, where the settlers were unwilling or unable
+to bear the expense of constructing such highways as
+the public service required, were authorized by special
+acts of the legislature. Such an act was that of September
+21, 1785,&#x2060;<a id="FNanchor_621_621" href="#Footnote_621_621" class="fnanchor">[621]</a> directing the president, or in his absence
+the vice-president, in council to appoint three freeholders
+<span class="pagenum" id="Page_262">[Pg 262]</span>as commissioners to view, survey and lay out a
+state highway from Miller’s Springs in Cumberland
+County to Pittsburg, of the breadth of fifty feet, and to
+report to the president and council, who were to confirm
+the same or order a review. The highway, when so
+established, was to remain a state highway and the
+courses and distances to be entered in the council book.
+An appropriation of £2000 was made for this enterprise.
+This road was in part laid out, and confirmed by the
+council November 24, 1787,&#x2060;<a id="FNanchor_622_622" href="#Footnote_622_622" class="fnanchor">[622]</a> as far as Bedford, but a
+review was ordered of the other part from Bedford to
+Pittsburg. By a resolution of the assembly of November
+21, 1788, the council was ordered to draw for the
+expenses of the review, and, accordingly, by order of
+the council March 14, 1789,&#x2060;<a id="FNanchor_623_623" href="#Footnote_623_623" class="fnanchor">[623]</a> reviewers were appointed,
+whose report was confirmed September 28, 1790.&#x2060;<a id="FNanchor_624_624" href="#Footnote_624_624" class="fnanchor">[624]</a>&#x2060;</p>
+
+<p>Many state roads were laid out by commissioners
+under similar acts and it cannot be doubted that, in the
+early days, such proceedings were of use where a road
+was desired through several counties, whose conflicting
+demands it was difficult to reconcile. But in later years
+the power of the legislature was greatly abused and the
+constitution of 1874 has forbidden the passage of any
+local or special law authorizing the laying out, opening
+or altering of highways.&#x2060;<a id="FNanchor_625_625" href="#Footnote_625_625" class="fnanchor">[625]</a>&#x2060;</p>
+
+<p>As for the local acts containing variations from the
+general road law, it would be useless to attempt to
+summarize them. A list of such acts, published in 3
+Pennsylvania County Court Reports, 401, covers eight
+pages of small type and is really appalling. And yet
+this list does not include Philadelphia County, which,
+<span class="pagenum" id="Page_263">[Pg 263]</span>prior to the consolidation in 1854, included, besides the
+city proper, six boroughs, ten incorporated districts
+and thirteen townships, many of which had their own
+highway systems.&#x2060;<a id="FNanchor_626_626" href="#Footnote_626_626" class="fnanchor">[626]</a>&#x2060;</p>
+
+<p>In Philadelphia, as previously stated, the principal
+streets were laid down by the surveyor general on the
+original town plan and no special power was conferred
+on the corporation to change that plan. The Act of
+April 15, 1782,&#x2060;<a id="FNanchor_627_627" href="#Footnote_627_627" class="fnanchor">[627]</a> declared that streets theretofore opened
+to public use by private persons or directed to be laid
+out by the supreme executive council should be considered
+and deemed public highways. The Act of
+March 25, 1805, empowered the quarter sessions, on
+petition, to grant views for the laying out and opening
+of streets in Philadelphia. This act was supplied and
+repealed by the general road law of 1836, which instituted
+a rather cumbersome method of summoning road viewers
+and was in turn repealed and supplied by the Act of
+March 16, 1866.&#x2060;<a id="FNanchor_628_628" href="#Footnote_628_628" class="fnanchor">[628]</a> The streets in the districts first incorporated
+were directed by local acts to be surveyed and
+laid out by the commissioners of the districts, who were
+required to return a general plan (in the case of Southwark,
+to the supreme executive council; in the case of
+Spring Garden, to the quarter sessions)&#x2060;<a id="FNanchor_629_629" href="#Footnote_629_629" class="fnanchor">[629]</a>&#x2060;, which, on
+approval, was recorded. The subsequent opening of
+the streets, so laid out, was on petition of a stated
+number of freeholders to the quarter sessions. This
+system, with minor modifications, was extended to the
+other municipalities by local acts which will be found
+in Price’s Index to Local Legislation in Pennsylvania.</p>
+
+<p><span class="pagenum" id="Page_264">[Pg 264]</span></p>
+
+<p>Section 27 of the Act of February 2, 1854,&#x2060;<a id="FNanchor_630_630" href="#Footnote_630_630" class="fnanchor">[630]</a> by which
+the various municipal corporations in Philadelphia
+County were consolidated into one city, established a
+board of surveyors who, by an amendment passed in
+the following year,&#x2060;<a id="FNanchor_631_631" href="#Footnote_631_631" class="fnanchor">[631]</a> were directed to cause a survey of
+the city plot to be completed. By the Act of June 6,
+1871,&#x2060;<a id="FNanchor_632_632" href="#Footnote_632_632" class="fnanchor">[632]</a> the board of surveys is empowered to examine
+and confirm or reject all plans of survey or revision of
+plans made under direction of councils.</p>
+
+<p>Streets in Philadelphia may be opened either by ordinance
+of councils or by the quarter sessions. Under the
+Act of April 21, 1855,&#x2060;<a id="FNanchor_633_633" href="#Footnote_633_633" class="fnanchor">[633]</a> councils may order any street
+laid down on the city plan to be opened, whenever they
+deem the public exigency to demand it, giving three
+months’ notice to the owner. This act, it has been said,
+was intended only for special cases requiring speedy
+action, but, as councils are the judges as to when the
+exigency exists, there is no review of their decision,
+and, in practice, this is the usual method pursued.
+The quarter sessions has concurrent jurisdiction, by
+proceedings on petition, to order the opening of a street
+laid down on the city plan, but the court will not appoint
+viewers when the opening of the street is so inadvisable
+that confirmation of a report favorable to an opening
+would be withheld.&#x2060;<a id="FNanchor_634_634" href="#Footnote_634_634" class="fnanchor">[634]</a> When a plotted street is opened
+by ordinance, a jury of six viewers is appointed by
+the quarter sessions to assess the damages, and if the
+proceedings are begun in that court, the same viewers
+pass on the damages as report on the necessity for opening.
+<span class="pagenum" id="Page_265">[Pg 265]</span>The general Act of May 8, 1889,&#x2060;<a id="FNanchor_635_635" href="#Footnote_635_635" class="fnanchor">[635]</a> providing that
+juries of view shall consist of three persons, does not
+apply to juries appointed by the quarter sessions of
+Philadelphia nor is the jurisdiction of that court affected
+by the general Act of May 16, 1891.&#x2060;<a id="FNanchor_636_636" href="#Footnote_636_636" class="fnanchor">[636]</a> The juries appointed
+to assess damages are also to assess benefits upon
+the properties whose value is enhanced by the opening,
+which benefits are to be collected by the city as in other
+cases of municipal assessments.</p>
+
+<p>While the matter is of academic rather than practical
+interest, it is curious to note that proceedings might
+still be brought to open streets laid down on the plans
+of the old incorporated districts under the special systems
+prevailing in those districts, it having been held as late
+as 1878,&#x2060;<a id="FNanchor_637_637" href="#Footnote_637_637" class="fnanchor">[637]</a> that the clause in the Act of 1813 relating to
+the opening of streets in the district of Spring Garden
+was still in force. It is highly improbable that such a
+proceeding could be carried to a successful issue, as these
+acts constitute the forgotten lore of a previous generation,
+and the courts are increasingly inclined to leave
+such matters to the municipal authorities who must
+devise the means of paying for public improvements.</p>
+
+<p>As to changes of grade in Philadelphia, in section 27
+of the consolidation act there was a proviso that compensation
+should be made for damage to private property
+resulting from any changes in the plans adopted
+under that section, but this was held to apply only to
+alterations and revisions of grades previously established
+by the old city or other municipalities before the consolidation.
+Hence, a paper change made in a grade
+established after the consolidation gave the land owner
+no right to proceed in the quarter sessions, his remedy
+<span class="pagenum" id="Page_266">[Pg 266]</span>being under Article XVI, § 8 of the constitution of 1874
+upon the physical change. Prior to 1891 this remedy
+was enforceable by action of trespass. Since the passage
+of the Act of May 16, 1891, petitions for the assessment
+of damages for changes of grade are assigned to the
+common pleas and three viewers appointed.&#x2060;<a id="FNanchor_638_638" href="#Footnote_638_638" class="fnanchor">[638]</a>&#x2060;</p>
+
+<p>Space will not permit a reference to many other interesting
+features in Philadelphia’s local system and in the
+local systems of other parts of the state. That of Pittsburg
+has had an important influence on subsequent
+general legislation on the subject of streets in municipalities.
+By a series of acts, beginning with that of
+January 6, 1864,&#x2060;<a id="FNanchor_639_639" href="#Footnote_639_639" class="fnanchor">[639]</a> authority to lay out, open and widen
+streets in Pittsburg was vested in councils, with very
+extensive powers in the matter of assessing and collecting
+assessments for benefits. These powers, having
+been exercised in an arbitrary and reckless manner, were
+resisted by property owners, and certain acts framed to
+strengthen the hands of the municipal authorities having
+been declared unconstitutional, the whole matter
+was thrown into great confusion.&#x2060;<a id="FNanchor_640_640" href="#Footnote_640_640" class="fnanchor">[640]</a> To remedy this, a
+series of curative acts was passed, concluding with the
+Act of May 16, 1891,&#x2060;<a id="FNanchor_641_641" href="#Footnote_641_641" class="fnanchor">[641]</a> which, while in form and intent a
+general act, is but a part of the series and manifestly
+intended as a blanket supplement to the others, to
+supply deficiencies and confirm doubtful powers under
+existing legislation. This act was held applicable to
+municipal corporations generally, but does not supersede
+previous legislation or confer new rights, such as
+<span class="pagenum" id="Page_267">[Pg 267]</span>the right to damages for the vacation of a public highway
+which, ordinarily, does not exist unless conferred
+by a special law. By reason of its many practical
+features the Act of 1891 may in time become the basis
+of a uniform system.</p>
+
+<p>Boroughs incorporated under the general borough
+Act of April 3, 1851,&#x2060;<a id="FNanchor_642_642" href="#Footnote_642_642" class="fnanchor">[642]</a> are authorized to ordain and lay
+out streets within the borough limits, but in boroughs
+incorporated prior to the general borough act and
+having no special provisions on the subject in their
+charters, the jurisdiction to lay out streets is in the
+quarter sessions under the general road law. The Act
+of 1891 may be used in boroughs as an alternative
+method of proceeding.&#x2060;<a id="FNanchor_643_643" href="#Footnote_643_643" class="fnanchor">[643]</a>&#x2060;</p>
+
+<p>The counties of Erie and Bradford have under their
+local acts a system radically different from the general
+road law.&#x2060;<a id="FNanchor_644_644" href="#Footnote_644_644" class="fnanchor">[644]</a> By these acts the authority to lay out roads
+is vested in the road commissioners of the townships,
+who may be required to view a proposed route for a
+road on petition of twelve citizens of the township.
+From their action any person affected may appeal to a
+justice of the peace, who, if he finds there is good cause
+of complaint, issues a summons to six disinterested
+citizens as jurors, and the decision of the justice and
+jurors is reviewable only by <i>certiorari</i>.</p>
+
+<p>Article XVI, § 8 of the constitution of 1874 secures
+an appeal from any preliminary assessment of damages
+and a trial by jury whenever private property is taken,
+injured or destroyed by a municipal or other corporation,
+or an individual invested with the privilege of taking
+<span class="pagenum" id="Page_268">[Pg 268]</span>private property for public use. The Act of June 13,
+1874,&#x2060;<a id="FNanchor_645_645" href="#Footnote_645_645" class="fnanchor">[645]</a> is intended to carry this provision into effect,
+where no sufficient provision for a jury trial already
+existed. Counties and townships having been held not
+to be municipal corporations within the Act of 1874, it
+was provided by the Act of May 26, 1891,&#x2060;<a id="FNanchor_646_646" href="#Footnote_646_646" class="fnanchor">[646]</a> that an appeal
+might be taken to the common pleas by any party
+aggrieved by the decree of any court of quarter sessions,
+confirming the report of viewers appointed to assess
+damages for the opening, condemning or change of grade
+of any street, road or highway, for a trial of the question
+of damages by a jury according to the course of
+common law.</p>
+
+<p>As to damages, an allusion has been made to the
+effect of the six per cent allowance for roads in original
+grants by the proprietors or the commonwealth. The
+constitution of 1790 contained no restriction on the
+taking of private property for public use except that in
+Article IX, § 10, it was provided that no man’s property
+should be taken or applied to public use “without
+just compensation.”&#x2060;<a id="FNanchor_647_647" href="#Footnote_647_647" class="fnanchor">[647]</a> A similar provision was contained
+in the constitution of 1838 and is embodied in the bill
+of rights to the constitution of 1874 (Article I, § 10).
+Besides this, Article VII, § 4, of the constitution of 1838
+provided that the legislature should not invest any
+corporate body or individual with the privilege of taking
+private property for public use, without requiring compensation
+to be made or secured to the owner of such
+property. Under this clause it was held that there was
+no liability for consequential injuries.&#x2060;<a id="FNanchor_648_648" href="#Footnote_648_648" class="fnanchor">[648]</a> To remedy this
+<span class="pagenum" id="Page_269">[Pg 269]</span>the constitution of 1874, in Article XVI, § 8, added
+“injured and destroyed” to the words “property taken,”
+and compensation may now be recovered in the case of
+any property sufficiently near the improvement to make
+the injury proximate, immediate and substantial.&#x2060;<a id="FNanchor_649_649" href="#Footnote_649_649" class="fnanchor">[649]</a>&#x2060;</p>
+
+<p>In assessing damages in road cases, the measure of
+damages, stated in the briefest possible terms, is the
+difference in the market value of the property injured
+before and after the improvement. Into this labyrinth,
+externally so fair, it would be inadvisable to penetrate,
+except to remark that, as a practical question, it is
+extremely difficult to obtain expert witnesses with sufficient
+powers of generalization to state a difference in
+market values, as a psychic phenomenon or unrelated
+idea, without betraying on cross examination the inadmissible
+sources from which their estimates are derived.</p>
+
+<p>In response to the demand for good roads, which of
+late years has become more insistent, recent legislation
+has been directed to the improvement of the condition
+of the public highways throughout the state. A beginning
+was made in the Act of June 26, 1895,&#x2060;<a id="FNanchor_650_650" href="#Footnote_650_650" class="fnanchor">[650]</a> which authorized
+the county commissioners with the approval of the
+grand jury and court of quarter sessions, to cause any
+particular main highway to be improved, and for that
+purpose to re-locate, open, straighten, widen or alter
+the same, the damage to property to be assessed by
+viewers. The highway when so improved is a township
+or borough road, the duty of maintaining which
+rests on the locality. By an amendment of April
+22, 1905,&#x2060;<a id="FNanchor_651_651" href="#Footnote_651_651" class="fnanchor">[651]</a> the county commissioners are required
+first to cause to be laid out, surveyed and adopted a
+system of main thoroughfares, taking into consideration
+<span class="pagenum" id="Page_270">[Pg 270]</span>the needs of all parts of the county, a plan of such
+system is to be approved and recorded and thereafter
+all applications to the quarter sessions for the improvement
+of a road under the act are to be restricted to the
+development of such system.</p>
+
+<p>By the Act of April 15, 1903,&#x2060;<a id="FNanchor_652_652" href="#Footnote_652_652" class="fnanchor">[652]</a> a state highway department
+was established, with a commissioner at its head,
+who is authorized to co-operate with the counties and
+townships in the reconstruction and improvement of the
+principal highways according to the plans adopted by
+the department, the cost to be apportioned and borne,
+sixty-six and two thirds per cent by the state, sixteen
+and two thirds per cent each by the county and township,
+provided that amount appropriated for state aid
+shall be apportioned among the counties according to
+their road mileage. Six million five hundred thousand
+dollars was appropriated to carry out this act, to be
+expended during six years, ten per cent of which was
+to be set aside for the purpose of maintenance where the
+conditions warranted the affording of state aid for such
+purposes. All highways constructed or improved under
+the provisions of this act are to be known as State
+Highways.</p>
+
+<p>In passing rapidly over our system of road law apologies
+for the omission of much that is of interest as well
+as of importance are unnecessary. The subject has
+reached dimensions that can hardly be contained in a
+text book of reasonable size. The extraordinary number
+and variety of the statutes, with the decisions
+interpreting them, might drive a Bentham to despair,
+but has caused less inconvenience than might reasonably
+be expected, for the reason that the bar of the
+state is an aggregation of county bars, each familiar with
+the local practice and with few opportunities to test
+<span class="pagenum" id="Page_271">[Pg 271]</span>the disadvantages of its own, or the advantages of
+rival systems. Consequently no bar sentiment in favor
+of uniformity and simplicity has developed, and while
+there is no inherent difficulty in drafting a code, or series
+of codes, which, with the repeal of all local acts, would
+reduce the subject to order, local prejudices and conservatism
+would probably oppose such a movement.
+Minor reforms suggest themselves. The assignment of
+road cases to the quarter sessions, in accordance with
+colonial tradition, possesses no advantages, and is contrary
+to the modern tendency to confine the activities
+of that court to criminal matters.</p>
+
+<p>As appeals from awards of viewers to the common
+pleas for a jury trial are the rule rather than the exception,
+the proceedings should have their inception in the
+latter court, as in change of grade cases under the Act of
+1891. There is no reason why six viewers should be
+appointed to assess damages for the opening of streets
+in Philadelphia, when three are sufficient in change of
+grade cases, except to gladden the hearts and replenish
+the purses of the additional jurors. The method of
+presenting testimony as to values by expert witnesses is
+far from satisfactory, but that difficulty belongs to the
+law of evidence and is not confined to road cases.</p>
+
+<p>Time may improve our roads and our road laws, but
+for the present no attorney delighting in the sharp points
+of the law need mourn for a field for his talents.</p>
+
+<p>Criticism is frequently leveled at the adventitious
+growth of our law, at its want of system, its atavistic
+tendencies. But is this not true of other sciences as
+well? Can we not detect traces of folklore in religion,
+of magic in medicine? The deeper the foundations of a
+science the more securely is it buttressed by the rubbish
+of the ages.</p>
+
+<p>Communities do not grow according to preconceived
+plans, nor does progress necessarily point to a prison
+<span class="pagenum" id="Page_272">[Pg 272]</span>lockstep march toward a Utopia of automatic activities.
+But in law, as in other sciences, there must be periodic
+revision of the accumulated material, otherwise the principles
+of social conduct will be lost sight of in a mass of
+unrelated and arbitrary rules. Statutes that are obsolete
+should be repealed, conflicting statutes reconciled,
+and ambiguous statutes restated. Local and special
+provisions that really serve no useful purpose should,
+in the interest of orderly administration, be replaced by
+general acts.</p>
+
+<p>The present state of the statute book, representing as it
+does the accumulations of two centuries, is far from
+creditable to a community that claims to be progressive,
+and should be subjected to systematic revision, if only
+for the sake of clearness. The responsibility for this
+condition does not rest wholly upon the bar nor, in fact,
+upon any one class in the community. It results from
+the rapidity of our material development and the recurring
+necessity for immediate legislation, coupled with a
+fallacious belief in new statutes as a panacea for all the
+ills of the state. The disinclination to revise what has
+already been enacted is in part the result of an inherited
+conservatism, an unwillingness to tamper with what is
+written although imperfectly understood. Purely selfish
+interests, too, may unite to disfigure or destroy a well
+conceived plan for the unification of a branch of the
+statute law, as happened at the legislative session of
+1909 when the proposed school law was cut to pieces
+to satisfy conflicting local claims.</p>
+
+<p>Since the days of Bradford and Franklin the commonwealth
+has relied on private enterprise for compilations
+and digests of the statute law. But these, however
+creditable to their editors, cannot take the place of a
+systematic revision authorized by the state and ratified
+by legislative enactment. The private editor cannot
+say that any law is obsolete, he must print what he finds.
+<span class="pagenum" id="Page_273">[Pg 273]</span>If he undertakes to decide that an act is repealed or
+supplied by implication and omits it from his text, there
+is no assurance that his opinion will be endorsed by the
+courts.</p>
+
+<p>While road law, owing to its local development, is a
+glaring example of the confusion that in time creeps
+into the statute book, it is by no means the only title
+that requires attention. The laws relating to corporations,
+municipalities, taxation, as well as other subjects,
+are in need of revision and unification. The education
+of the public to the economy of well drafted and properly
+classified statutes may be slow, but a progressive bar
+should assist in that education and be prepared to lend
+encouragement to any reasonable and practical plan
+for a systematic analysis and rearrangement of our
+statute law.</p>
+
+<p><span class="pagenum" id="Page_274">[Pg 274]</span></p>
+
+
+<div class="footnotes">
+<h3>FOOTNOTES:</h3>
+
+<div class="footnote"><p><a id="Footnote_565_565" href="#FNanchor_565_565" class="label">[565]</a> Woolwych on Ways, 6.</p></div>
+
+<div class="footnote"><p><a id="Footnote_566_566" href="#FNanchor_566_566" class="label">[566]</a> England in the Eighteenth Century, Sidney, Vol. II, 3.</p></div>
+
+<div class="footnote"><p><a id="Footnote_567_567" href="#FNanchor_567_567" class="label">[567]</a> England in the Eighteenth Century, Sidney, Vol. II, 6.</p></div>
+
+<div class="footnote"><p><a id="Footnote_568_568" href="#FNanchor_568_568" class="label">[568]</a> Coke on Littleton, 56 A.</p></div>
+
+<div class="footnote"><p><a id="Footnote_569_569" href="#FNanchor_569_569" class="label">[569]</a> Fitzherbert’s Natura Brevium, 226.</p></div>
+
+<div class="footnote"><p><a id="Footnote_570_570" href="#FNanchor_570_570" class="label">[570]</a> <i>King</i> v. <i>Warde</i>, Croke’s Reports (Charles I), 226 (1633).</p></div>
+
+<div class="footnote"><p><a id="Footnote_571_571" href="#FNanchor_571_571" class="label">[571]</a> <i>Ex parte Armitage</i>, Ambler’s Reports, 294 (1755).</p></div>
+
+<div class="footnote"><p><a id="Footnote_572_572" href="#FNanchor_572_572" class="label">[572]</a> III Blackstone’s Commentaries, 259; <i>Bonaparte</i> v. <i>Camden
+and Atlantic Railroad Co.</i>, Baldwin’s Reports (U. S.), 205 (1830)
+at page 221.</p></div>
+
+<div class="footnote"><p><a id="Footnote_573_573" href="#FNanchor_573_573" class="label">[573]</a> 13 George III, chapter 78, § 19; <i>Davison</i> v. <i>Gill</i>, 1 East’s Reports,
+64 (1800).</p></div>
+
+<div class="footnote"><p><a id="Footnote_574_574" href="#FNanchor_574_574" class="label">[574]</a> <i>Wroe</i> v. <i>Harris</i>, 2 Washington’s Reports (Va.), 126 (1795);
+<i>Gay</i> v. <i>Caldwell</i>, Hardin’s Reports (Ky.), 63, (1806); <i>Mairs</i> v.
+<i>Gallahue</i>, 9 Grattan’s Reports (Va.), 94 (1852); <i>Tracy</i> v. <i>Elizabethtown,
+L. &amp; B. S. Railroad Co.</i>, 78 Kentucky Reports, 309
+(1880); <i>Schuylkill &amp; S. N. Co.</i> v. <i>Decker</i>. 2 Watt’s Reports, 343,
+(1834).</p></div>
+
+<div class="footnote"><p><a id="Footnote_575_575" href="#FNanchor_575_575" class="label">[575]</a> Grotius, De Jure Belli et Pacis, Lib. III, chapter 20, § 7.</p></div>
+
+<div class="footnote"><p><a id="Footnote_576_576" href="#FNanchor_576_576" class="label">[576]</a> Nicholls on Eminent Domain, 7.</p></div>
+
+<div class="footnote"><p><a id="Footnote_577_577" href="#FNanchor_577_577" class="label">[577]</a> II New York Colonial Documents, 621; O’Callaghan’s Laws
+and Ordinances of New Netherlands, 478.</p></div>
+
+<div class="footnote"><p><a id="Footnote_578_578" href="#FNanchor_578_578" class="label">[578]</a> O’Callaghan’s Laws and Ordinances of New Netherlands, 219.</p></div>
+
+<div class="footnote"><p><a id="Footnote_579_579" href="#FNanchor_579_579" class="label">[579]</a> O’Callaghan’s Laws and Ordinances of New Netherlands, 367.</p></div>
+
+<div class="footnote"><p><a id="Footnote_580_580" href="#FNanchor_580_580" class="label">[580]</a> Laws of Massachusetts Colony (1672), 64; compare Laws of
+Colony of New Plymouth (Edition of 1836), 64.</p></div>
+
+<div class="footnote"><p><a id="Footnote_581_581" href="#FNanchor_581_581" class="label">[581]</a> Records of Court at Upland, 118, 192.</p></div>
+
+<div class="footnote"><p><a id="Footnote_582_582" href="#FNanchor_582_582" class="label">[582]</a> Records of the Court of New Castle, 288.</p></div>
+
+<div class="footnote"><p><a id="Footnote_583_583" href="#FNanchor_583_583" class="label">[583]</a> Records of the Court of New Castle, 364, also pages 143,
+169, 197.</p></div>
+
+<div class="footnote"><p><a id="Footnote_584_584" href="#FNanchor_584_584" class="label">[584]</a> Charter and Laws of Pennsylvania, 95.</p></div>
+
+<div class="footnote"><p><a id="Footnote_585_585" href="#FNanchor_585_585" class="label">[585]</a> Charter and Laws of Pennsylvania, 467.</p></div>
+
+<div class="footnote"><p><a id="Footnote_586_586" href="#FNanchor_586_586" class="label">[586]</a> <i>McClenachan</i> v. <i>Curwen</i>, 6 Binney’s Reports, 509; 3 Yeates’s
+Reports, 362 (1862).</p></div>
+
+<div class="footnote"><p><a id="Footnote_587_587" href="#FNanchor_587_587" class="label">[587]</a> II Statutes at Large, 118.</p></div>
+
+<div class="footnote"><p><a id="Footnote_588_588" href="#FNanchor_588_588" class="label">[588]</a> II Statutes at Large, 400.</p></div>
+
+<div class="footnote"><p><a id="Footnote_589_589" href="#FNanchor_589_589" class="label">[589]</a> Pepper and Lewis’s Digest of Decisions, Vol. 18, col. 13567.</p></div>
+
+<div class="footnote"><p><a id="Footnote_590_590" href="#FNanchor_590_590" class="label">[590]</a> <i>Perryville &amp; Z. P. R. Co.</i> v. <i>Thomas</i>, 20 Pennsylvania Reports
+91 (1852).</p></div>
+
+<div class="footnote"><p><a id="Footnote_591_591" href="#FNanchor_591_591" class="label">[591]</a> Hazard’s Annals of Pennsylvania, 555.</p></div>
+
+<div class="footnote"><p><a id="Footnote_592_592" href="#FNanchor_592_592" class="label">[592]</a> <i>Philadelphia</i> v. <i>Hinckley</i>, 9 Pennsylvania District Reports
+125 (1900).</p></div>
+
+<div class="footnote"><p><a id="Footnote_593_593" href="#FNanchor_593_593" class="label">[593]</a> Hazard’s Annals of Pennsylvania, 530.</p></div>
+
+<div class="footnote"><p><a id="Footnote_594_594" href="#FNanchor_594_594" class="label">[594]</a> 1 Dallas’s Laws of Pennsylvania, Appendix 11.</p></div>
+
+<div class="footnote"><p><a id="Footnote_595_595" href="#FNanchor_595_595" class="label">[595]</a> I Colonial Records, 136, 18, 3 mo. 1686.</p></div>
+
+<div class="footnote"><p><a id="Footnote_596_596" href="#FNanchor_596_596" class="label">[596]</a> Charter and Laws of Pennsylvania, 139.</p></div>
+
+<div class="footnote"><p><a id="Footnote_597_597" href="#FNanchor_597_597" class="label">[597]</a> I Colonial Records, 142, 3, 7 mo. 1686.</p></div>
+
+<div class="footnote"><p><a id="Footnote_598_598" href="#FNanchor_598_598" class="label">[598]</a> I Colonial Records, 148, 19, 9 mo. 1686.</p></div>
+
+<div class="footnote"><p><a id="Footnote_599_599" href="#FNanchor_599_599" class="label">[599]</a> I Colonial Records, 463, October 28, 1696.</p></div>
+
+<div class="footnote"><p><a id="Footnote_600_600" href="#FNanchor_600_600" class="label">[600]</a> I Colonial Records, 467, October 31, 1696.</p></div>
+
+<div class="footnote"><p><a id="Footnote_601_601" href="#FNanchor_601_601" class="label">[601]</a> I Colonial Records, 402, February, 13, 1693-4.</p></div>
+
+<div class="footnote"><p><a id="Footnote_602_602" href="#FNanchor_602_602" class="label">[602]</a> I Colonial Records, 441, May 25, 1695.</p></div>
+
+<div class="footnote"><p><a id="Footnote_603_603" href="#FNanchor_603_603" class="label">[603]</a> Charter and Laws of Pennsylvania, 285.</p></div>
+
+<div class="footnote"><p><a id="Footnote_604_604" href="#FNanchor_604_604" class="label">[604]</a> II Statutes at Large, 68.</p></div>
+
+<div class="footnote"><p><a id="Footnote_605_605" href="#FNanchor_605_605" class="label">[605]</a> IV Statutes at Large, 296.</p></div>
+
+<div class="footnote"><p><a id="Footnote_606_606" href="#FNanchor_606_606" class="label">[606]</a> <i>McClenachan</i> v. <i>Curwen</i>, 6 Binney’s Reports, 509; s. c. 3
+Yeates’s Reports 362 (1802).</p></div>
+
+<div class="footnote"><p><a id="Footnote_607_607" href="#FNanchor_607_607" class="label">[607]</a> IV Colonial Records, 247, October 7, 1737.</p></div>
+
+<div class="footnote"><p><a id="Footnote_608_608" href="#FNanchor_608_608" class="label">[608]</a> IV Colonial Records, 181, March 24, 1736-7.</p></div>
+
+<div class="footnote"><p><a id="Footnote_609_609" href="#FNanchor_609_609" class="label">[609]</a> IV Colonial Records, 283, March 22, 1737-8.</p></div>
+
+<div class="footnote"><p><a id="Footnote_610_610" href="#FNanchor_610_610" class="label">[610]</a> IV Colonial Records, 287, May 15, 1738.</p></div>
+
+<div class="footnote"><p><a id="Footnote_611_611" href="#FNanchor_611_611" class="label">[611]</a> <i>King’s Road</i>, 1 Dallas’s Reports 11 (1764). <i>In re Road in
+Chester County</i>, Supreme Court Docket No. 4, page 37, September
+Term, 1764, on <i>certiorari</i> the order is reversed “for refusing
+to grant a review, and reviewers appointed.” Is this the same
+case? Lewis Gordon, writing to Richard Peters, March 18,
+1758, signified his intention to apply for a review of a road, but
+observed that the practice was declaimed against, except where
+fraud appeared. VII Pennsylvania Archives (2 Series), 254.</p></div>
+
+<div class="footnote"><p><a id="Footnote_612_612" href="#FNanchor_612_612" class="label">[612]</a> 3 Smith’s Laws of Pennsylvania, 521, § 22. See also § 25
+of the act of June 13, 1836, P. L. 551.</p></div>
+
+<div class="footnote"><p><a id="Footnote_613_613" href="#FNanchor_613_613" class="label">[613]</a> P. L. 551.</p></div>
+
+<div class="footnote"><p><a id="Footnote_614_614" href="#FNanchor_614_614" class="label">[614]</a> Act of May 8, 1889, P. L. 129.</p></div>
+
+<div class="footnote"><p><a id="Footnote_615_615" href="#FNanchor_615_615" class="label">[615]</a> Section 5 of the act fixed the maximum breadth of a public
+road at 50 feet and of a private road at 25 feet. The maximum
+breadth of a public road is fixed at 80 feet by the act of June 7,
+1907, P. L. 452.</p></div>
+
+<div class="footnote"><p><a id="Footnote_616_616" href="#FNanchor_616_616" class="label">[616]</a> P. L. 164, § 1.</p></div>
+
+<div class="footnote"><p><a id="Footnote_617_617" href="#FNanchor_617_617" class="label">[617]</a> P. L. 713; <i>Church Road</i>, 5 Watts &amp; Sergeant’s Reports, 200
+(1843).</p></div>
+
+<div class="footnote"><p><a id="Footnote_618_618" href="#FNanchor_618_618" class="label">[618]</a> P. L. 422; <i>Greenwich Township Road</i>, 11 Pennsylvania Reports,
+186 (1849).</p></div>
+
+<div class="footnote"><p><a id="Footnote_619_619" href="#FNanchor_619_619" class="label">[619]</a> P. L. 645.</p></div>
+
+<div class="footnote"><p><a id="Footnote_620_620" href="#FNanchor_620_620" class="label">[620]</a> <i>Bridgeport &amp; N. C. T. Road</i>, 171 Pennsylvania Reports,
+312 (1895).</p></div>
+
+<div class="footnote"><p><a id="Footnote_621_621" href="#FNanchor_621_621" class="label">[621]</a> 2 Dallas’s Laws of Pennsylvania, 389.</p></div>
+
+<div class="footnote"><p><a id="Footnote_622_622" href="#FNanchor_622_622" class="label">[622]</a> 15 Colonial Records 331, November 24, 1787.</p></div>
+
+<div class="footnote"><p><a id="Footnote_623_623" href="#FNanchor_623_623" class="label">[623]</a> 16 Colonial Records 26, March 14, 1789.</p></div>
+
+<div class="footnote"><p><a id="Footnote_624_624" href="#FNanchor_624_624" class="label">[624]</a> 16 Colonial Records 466, September 28, 1790.</p></div>
+
+<div class="footnote"><p><a id="Footnote_625_625" href="#FNanchor_625_625" class="label">[625]</a> Constitution of Pennsylvania, 1874, Article III, § 7.</p></div>
+
+<div class="footnote"><p><a id="Footnote_626_626" href="#FNanchor_626_626" class="label">[626]</a> Addick’s Philadelphia Highway Acts.</p></div>
+
+<div class="footnote"><p><a id="Footnote_627_627" href="#FNanchor_627_627" class="label">[627]</a> 2 Smith’s Laws of Pennsylvania, 48, § 10.</p></div>
+
+<div class="footnote"><p><a id="Footnote_628_628" href="#FNanchor_628_628" class="label">[628]</a> P. L. 224.</p></div>
+
+<div class="footnote"><p><a id="Footnote_629_629" href="#FNanchor_629_629" class="label">[629]</a> Act of September 29, 1787, 2 Smith’s Laws of Pennsylvania,
+435; Act of March 22, 1813; 6 Smith’s Laws of Pennsylvania, 37.</p></div>
+
+<div class="footnote"><p><a id="Footnote_630_630" href="#FNanchor_630_630" class="label">[630]</a> P. L. 21.</p></div>
+
+<div class="footnote"><p><a id="Footnote_631_631" href="#FNanchor_631_631" class="label">[631]</a> Act of April 21, 1855, P. L. 264, § 4.</p></div>
+
+<div class="footnote"><p><a id="Footnote_632_632" href="#FNanchor_632_632" class="label">[632]</a> P. L. 1353. <i>In re Plan 166</i>, 143 Pennsylvania Reports, 414
+(1891).</p></div>
+
+<div class="footnote"><p><a id="Footnote_633_633" href="#FNanchor_633_633" class="label">[633]</a> P. L. 264, § 7, <i>Large</i> v. <i>Philadelphia</i>, 35 Pennsylvania Reports,
+231 note (1859).</p></div>
+
+<div class="footnote"><p><a id="Footnote_634_634" href="#FNanchor_634_634" class="label">[634]</a> <i>Twenty-Eighth Street</i>, 102 Pennsylvania Reports, 140 (1883).</p></div>
+
+<div class="footnote"><p><a id="Footnote_635_635" href="#FNanchor_635_635" class="label">[635]</a> P. L. 129.</p></div>
+
+<div class="footnote"><p><a id="Footnote_636_636" href="#FNanchor_636_636" class="label">[636]</a> P. L. 75; <i>Orthodox Street</i>, 1 Pennsylvania District Reports,
+37 (1892).</p></div>
+
+<div class="footnote"><p><a id="Footnote_637_637" href="#FNanchor_637_637" class="label">[637]</a> <i>Parrish Street</i>, 12 Philadelphia Reports, 638 (1878).</p></div>
+
+<div class="footnote"><p><a id="Footnote_638_638" href="#FNanchor_638_638" class="label">[638]</a> <i>In re Plan 166</i>, 143 Pennsylvania Reports, 414 (1891).</p></div>
+
+<div class="footnote"><p><a id="Footnote_639_639" href="#FNanchor_639_639" class="label">[639]</a> P. L. 1131.</p></div>
+
+<div class="footnote"><p><a id="Footnote_640_640" href="#FNanchor_640_640" class="label">[640]</a> <i>Wyoming Street</i>, 137 Pennsylvania Reports, 494 (1891);
+<i>Pittsburg’s Petition</i>, 138 Pennsylvania Reports, 40 (1891);
+<i>Donley</i> v. <i>Pittsburg</i>, 147 Pennsylvania Reports, 348 (1892).</p></div>
+
+<div class="footnote"><p><a id="Footnote_641_641" href="#FNanchor_641_641" class="label">[641]</a> P. L. 75; <i>Howell</i> v. <i>Morrisville Borough</i>, 212 Pennsylvania
+Reports, 349 (1905).</p></div>
+
+<div class="footnote"><p><a id="Footnote_642_642" href="#FNanchor_642_642" class="label">[642]</a> P. L. 230.</p></div>
+
+<div class="footnote"><p><a id="Footnote_643_643" href="#FNanchor_643_643" class="label">[643]</a> <i>Dorrance</i> v. <i>Dorrancetown Borough</i>, 181 Pennsylvania Reports,
+164 (1897).</p></div>
+
+<div class="footnote"><p><a id="Footnote_644_644" href="#FNanchor_644_644" class="label">[644]</a> Acts of April 13, 1843, P. L. 218; April 5, 1844, P. L. 200;
+March 26, 1846, P. L. 175; April 15, 1857, P. L. 205. See Act of
+July 2, 1901, P. L. 607, § 2.</p></div>
+
+<div class="footnote"><p><a id="Footnote_645_645" href="#FNanchor_645_645" class="label">[645]</a> P. L. 283.</p></div>
+
+<div class="footnote"><p><a id="Footnote_646_646" href="#FNanchor_646_646" class="label">[646]</a> P. L. 116; <i>Pusey’s Appeal</i>, 83 Pennsylvania Reports, 67
+(1877).</p></div>
+
+<div class="footnote"><p><a id="Footnote_647_647" href="#FNanchor_647_647" class="label">[647]</a> Pepper and Lewis’s Digest of Decisions, Vol. 18, col. 31570.</p></div>
+
+<div class="footnote"><p><a id="Footnote_648_648" href="#FNanchor_648_648" class="label">[648]</a> <i>O’Connor</i> v. <i>Pittsburg</i>, 18 Pennsylvania Reports, 187 (1851).</p></div>
+
+<div class="footnote"><p><a id="Footnote_649_649" href="#FNanchor_649_649" class="label">[649]</a> <i>Mellor</i> v. <i>Philadelphia</i>, 160 Pennsylvania Reports, 614
+(1894); <i>Melon Street</i>, 182 Pennsylvania Reports, 397 (1897).</p></div>
+
+<div class="footnote"><p><a id="Footnote_650_650" href="#FNanchor_650_650" class="label">[650]</a> P. L. 336.</p></div>
+
+<div class="footnote"><p><a id="Footnote_651_651" href="#FNanchor_651_651" class="label">[651]</a> P. L. 290, since amended by the Act of May 13, 1909, P. L. 527.</p></div>
+
+<div class="footnote"><p><a id="Footnote_652_652" href="#FNanchor_652_652" class="label">[652]</a> P. L. 188, supplied by the Act of May 1, 1905, P. L. 318.</p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_275">[Pg 275]</span></p>
+
+
+  <h2 class="nobreak" id="APPENDIX">
+    APPENDIX.
+    <br>
+    ARTICLE V OF THE CONSTITUTION OF
+    PENNSYLVANIA.
+    <br>
+    In effect January 1, 1874.
+  </h2>
+</div>
+
+
+<p class="ph4">THE JUDICIARY.</p>
+
+
+<p class="ph4">The Courts.</p>
+
+<p>Section 1. The judicial power of this Commonwealth shall
+be vested in a Supreme Court, in courts of Common Pleas,
+courts of oyer and terminer and general jail delivery, courts
+of quarter sessions of the peace, orphans’ courts, magistrates’
+courts, and in such other courts as the General Assembly may
+from time to time establish.</p>
+
+
+<p class="ph4">Supreme Court—Tenure of Judges—Chief Justice.</p>
+
+<p>Section 2. The Supreme Court shall consist of seven judges
+who shall be elected by the qualified electors of the State at
+large. They shall hold their offices for the term of twenty-one
+years, if they so long behave themselves well, but shall not be
+again eligible. The judge whose commission shall first expire
+shall be chief justice, and thereafter each judge whose commission
+shall first expire shall in turn be chief justice.</p>
+
+
+<p class="ph4">Supreme Court.</p>
+
+<p>Section 3. The jurisdiction of the Supreme Court shall extend
+over the State, and the judges thereof shall, by virtue of
+their offices, be justices of oyer and terminer and general jail
+delivery in the several counties; they shall have original jurisdiction
+in cases of injunction where a corporation is a party
+defendant, of habeas corpus, of mandamus to courts of inferior
+jurisdiction, and of quo warranto as to all officers of the Commonwealth
+whose jurisdiction extends over the State, but shall
+not exercise any other original jurisdiction; they shall have
+appellate jurisdiction by appeal, certiorari or writ of error in all
+cases, as is now or may hereafter be provided by law.</p>
+
+
+<p class="ph4">Common Pleas Courts.</p>
+
+<p>Section 4. Until otherwise directed by law, the courts of
+common pleas shall continue as at present established, except
+<span class="pagenum" id="Page_276">[Pg 276]</span>as herein changed; not more than four counties shall, at any
+time, be included in one judicial district organized for said
+courts.</p>
+
+
+<p class="ph4">Judicial Districts—Associate Judges.</p>
+
+<p>Section 5. Whenever a county shall contain forty thousand
+inhabitants it shall constitute a separate judicial district, and
+shall elect one judge learned in the law; and the General Assembly
+shall provide for additional judges, as the business of the said
+districts may require. Counties containing a population less
+than is sufficient to constitute separate districts shall be formed
+into convenient single districts, or, if necessary, may be attached
+to contiguous districts as the General Assembly may provide.
+The office of associate judge, not learned in the law, is abolished
+in counties forming separate districts; but the several associate
+judges in office when this Constitution shall be adopted shall
+serve for their unexpired terms.</p>
+
+
+<p class="ph4">Common Pleas Courts in Philadelphia and Allegheny
+Counties.</p>
+
+<p>Section 6. In the counties of Philadelphia and Allegheny
+all the jurisdiction and powers now vested in the district courts
+and courts of common pleas, subject to such changes as may
+be made by this Constitution or by law, shall be in Philadelphia
+vested in four, and in Allegheny in two, distinct and separate
+courts of equal and co-ordinate jurisdiction, composed of three
+judges each; the said courts in Philadelphia shall be designated
+respectively as the court of common pleas number one, number
+two, number three and number four, and in Allegheny as the
+court of common pleas number one and number two, but the
+number of said courts may be by law increased, from time to
+time, and shall be in like manner designated by successive
+numbers; the number of judges in any of said courts, or in any
+county where the establishment of an additional court may be
+authorized by law, may be increased from time to time, and
+whenever such increase shall amount in the whole to three, such
+three judges shall compose a distinct and separate court as
+aforesaid, which shall be numbered as aforesaid. In Philadelphia
+all suits shall be instituted in the said courts of common pleas
+without designating the number of said court, and the several
+courts shall distribute and apportion the business among them
+in such manner as shall be provided by rules of court, and each
+court, to which any suit shall be thus assigned, shall have
+exclusive jurisdiction thereof, subject to change of venue, as
+<span class="pagenum" id="Page_277">[Pg 277]</span>shall be provided by law. In Allegheny each court shall have
+exclusive jurisdiction of all proceedings at law and in equity,
+commenced therein, subject to change of venue as may be
+provided by law.</p>
+
+
+<p class="ph4">Prothonotary of Philadelphia—Court Dockets.</p>
+
+<p>Section 7. For Philadelphia there shall be one prothonotary’s
+office, and one prothonotary for all said courts to be appointed
+by the judges of said courts, and to hold office for three years,
+subject to removal by a majority of the said judges; the said
+prothonotary shall appoint such assistants as may be necessary
+and authorized by said courts; and he and his assistants shall
+receive fixed salaries, to be determined by law and paid by
+said county; all fees collected in said office, except such as
+may be by law due to the Commonwealth, shall be paid
+by the prothonotary into the county treasury. Each court shall
+have its separate dockets, except the judgment docket which
+shall contain the judgments and liens of all the said courts, as
+is or may be directed by law.</p>
+
+
+<p class="ph4">Criminal Courts in Philadelphia and Allegheny Counties.</p>
+
+<p>Section 8. The said courts in the counties of Philadelphia and
+Allegheny, respectively, shall, from time to time, in turn detail
+one or more of their judges to hold the courts of oyer and terminer
+and the courts of quarter sessions of the peace of said counties,
+in such manner as may be directed by law.</p>
+
+
+<p class="ph4">Common Pleas Judges to be Justices of the Peace.</p>
+
+<p>Section 9. Judges of the courts of common pleas learned in
+the law shall be judges of the courts of oyer and terminer, quarter
+sessions of the peace and general jail delivery, and of the orphans’
+court, and within their respective districts shall be justices of
+the peace as to criminal matters.</p>
+
+
+<p class="ph4">Judges of Common Pleas Courts may Issue Writs of Certiorari.</p>
+
+<p>Section 10. The judges of the courts of common pleas, within
+their respective counties, shall have power to issue writs of
+<i>certiorari</i> to justices of the peace and other inferior courts not
+of record, and to cause their proceedings to be brought before
+them, and right and justice to be done.</p>
+
+<p><span class="pagenum" id="Page_278">[Pg 278]</span></p>
+
+
+<p class="ph4">Justices of the Peace and Aldermen.</p>
+
+<p>Section 11. Except as otherwise provided in this Constitution,
+justices of the peace or aldermen shall be elected in the several
+wards, districts, boroughs and townships at the time of the
+election of constables by the qualified electors thereof, in such
+manner as shall be directed by law, and shall be commissioned
+by the Governor for a term of five years. No township, ward,
+district or borough shall elect more than two justices of the
+peace or aldermen without the consent of a majority of the
+qualified electors within such township, ward or borough;
+no person shall be elected to such office unless he shall have
+resided within the township, borough, ward or district for one
+year next preceding his election. In cities containing over fifty
+thousand inhabitants, not more than one alderman shall be
+elected in each ward or district.</p>
+
+
+<p class="ph4">Magistrates in Philadelphia.</p>
+
+<p>Section 12. In Philadelphia there shall be established, for
+each thirty thousand inhabitants, one court, not of record,
+of police and civil causes, with jurisdiction not exceeding one
+hundred dollars; such courts shall be held by magistrates whose
+term of office shall be five years, and they shall be elected on
+general ticket by the qualified voters at large; and in the election
+of the said magistrates no voter shall vote for more than two-thirds
+of the number of persons to be elected when more than
+one are to be chosen; they shall be compensated only by fixed
+salaries, to be paid by said county; and shall exercise such
+jurisdiction, civil and criminal, except as herein provided, as
+is now exercised by aldermen, subject to such changes, not
+involving an increase of civil jurisdiction or conferring political
+duties, as may be made by law. In Philadelphia the office
+of alderman is abolished.</p>
+
+
+<p class="ph4">Fees, Fines and Penalties.</p>
+
+<p>Section 13. All fees, fines and penalties in said courts shall
+be paid into the county treasury.</p>
+
+
+<p class="ph4">Appeals from Summary Convictions.</p>
+
+<p>Section 14. In all cases of summary conviction in this Commonwealth,
+or of judgment in suit for a penalty before a magistrate,
+or court not of record, either party may appeal to such
+<span class="pagenum" id="Page_279">[Pg 279]</span>court of record as may be prescribed by law, upon allowance
+of the appellate court or judge thereof upon cause shown.</p>
+
+
+<p class="ph4">Election of Judges—Removal.</p>
+
+<p>Section 15. All judges required to be learned in the law,
+except the judges of the Supreme Court, shall be elected by the
+qualified electors of the respective districts over which they are
+to preside, and shall hold their offices for the period of ten years,
+if they shall so long behave themselves well; but for any reasonable
+cause, which shall not be sufficient ground for impeachment,
+the Governor may remove any of them on the address of two-thirds
+of each House of the General Assembly.</p>
+
+
+<p class="ph4">Voting for Judge of Supreme Court.</p>
+
+<p>Section 16. Whenever two judges of the Supreme Court are
+to be chosen for the same term of service each voter shall vote
+for one only, and when three are to be chosen he shall vote for no
+more than two; candidates highest in vote shall be declared
+elected.</p>
+
+
+<p class="ph4">Priority of Judges’ Commissions.</p>
+
+<p>Section 17. Should any two or more judges of the Supreme
+Court, or any two or more judges of the court of common pleas
+for the same district, be elected at the same time, they shall,
+as soon after the election as convenient, cast lots for priority
+of commission, and certify the result to the Governor, who
+shall issue their commissions in accordance therewith.</p>
+
+
+<p class="ph4">Compensation of Judges.</p>
+
+<p>Section 18. The judges of the Supreme Court and the judges
+of the several courts of common pleas, and all other judges
+required to be learned in the law, shall at stated times receive
+for their services an adequate compensation, which shall be fixed
+by law, and paid by the State. They shall receive no other
+compensation, fees or perquisites of office for their services
+from any source, nor hold any other office of profit under the
+United States, this State or any other State.</p>
+
+
+<p class="ph4">Residences of Judges.</p>
+
+<p>Section 19. The judges of the Supreme Court, during their
+continuance in office, shall reside within this Commonwealth;
+and the other judges, during their continuance in office shall
+<span class="pagenum" id="Page_280">[Pg 280]</span>reside within the district for which they shall be respectively
+elected.</p>
+
+
+<p class="ph4">Chancery Powers of Common Pleas Courts.</p>
+
+<p>Section 20. The several courts of common pleas, besides the
+powers herein conferred, shall have and exercise within their
+respective districts, subject to such changes as may be made
+by law, such chancery powers as are now vested by law in
+the several courts of common pleas of this Commonwealth,
+or as may hereafter be conferred upon them by law.</p>
+
+
+<p class="ph4">Supreme Court—Extra Judicial Duties—-Court of Nisi Prius
+Abolished.</p>
+
+<p>Section 21. No duties shall be imposed by law upon the
+Supreme Court or any of the judges thereof except such as are
+judicial, nor shall any of the judges thereof exercise any power
+of appointment except as herein provided. The court of <i>nisi
+prius</i> is hereby abolished, and no court of original jurisdiction
+to be presided over by any one or more of the judges of the
+Supreme Court shall be established.</p>
+
+
+<p class="ph4">Orphans’ Courts—Auditing of Accounts—Registers’ Courts
+Abolished.</p>
+
+<p>Section 22. In every county wherein the population shall
+exceed one hundred and fifty thousand the General Assembly
+shall, and in any other county may, establish a separate orphans’
+court to consist of one or more judges who shall be learned in the
+law, which court shall exercise all the jurisdiction and powers
+now vested in or which may hereafter be conferred upon the
+orphans’ courts, and thereupon the jurisdiction of the judges of
+the court of common pleas within such county, in orphans’
+court proceedings, shall cease and determine. In any county
+in which a separate orphans’ court shall be established, the
+register of wills shall be clerk of such court and subject to its
+directions in all matters pertaining to his office; he may appoint
+assistant clerks, but only with the consent and approval of
+said court. All accounts filed with him as register or as clerk
+of the said separate orphans’ court shall be audited by the
+court without expense to parties, except where all parties in
+interest in a pending proceeding shall nominate an auditor
+whom the court may, in its discretion, appoint. In every
+<span class="pagenum" id="Page_281">[Pg 281]</span>county orphans’ courts shall possess all the powers and jurisdiction
+of a registers’ court, and separate registers’ courts are
+hereby abolished.</p>
+
+
+<p class="ph4">Style of Process.</p>
+
+<p>Section 23. The style of all process shall be “The Commonwealth
+of Pennsylvania.” All prosecutions shall be carried on
+in the name and by the authority of the Commonwealth of
+Pennsylvania, and conclude “against the peace and dignity of
+the same.”</p>
+
+
+<p class="ph4">Right of Appeal in Criminal Cases.</p>
+
+<p>Section 24. In all cases of felonious homicide, and in such
+other criminal cases as may be provided for by law, the accused
+after conviction and sentence may remove the indictment,
+record and all proceedings to the Supreme Court for review.</p>
+
+
+<p class="ph4">Vacancies in Court—How Filled.</p>
+
+<p>Section 25. Any vacancy happening by death, resignation
+or otherwise, in any court of record, shall be filled by appointment
+by the Governor, to continue till the first Monday of
+January next succeeding the first general election which shall
+occur three or more months after the happening of such vacancy.</p>
+
+
+<p class="ph4">Laws Relating to Courts to be Uniform—Special Courts
+Forbidden.</p>
+
+<p>Section 26. All laws relating to courts shall be general and
+of uniform operation, and the organization, jurisdiction and
+powers of all courts of the same class or grade, so far as regulated
+by law, and the force and effect of the process and judgments of
+such courts, shall be uniform; and the General Assembly is hereby
+prohibited from creating other courts to exercise the powers
+vested by this Constitution in the judges of the courts of common
+pleas and orphans’ courts.</p>
+
+
+<p class="ph4">Submission of Issues of Fact.</p>
+
+<p>Section 27. The parties, by agreement filed, may in any civil
+case dispense with trial by jury, and submit the decision of such
+case to the court having jurisdiction thereof, and such court
+shall hear and determine the same; and the judgment thereon
+shall be subject to writ of error as in other cases.</p>
+
+<p><span class="pagenum"><a id="Page_282">[Pg 282]</a></span></p>
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum"><a id="Page_283">[Pg 283]</a></span></p>
+
+
+  <h2 class="nobreak" id="INDEX">
+    INDEX.
+  </h2>
+</div>
+
+
+<ul class="index">
+  <li class="ifrst">“Active,” case of the, <a href="#Page_127">127</a></li>
+
+  <li class="indx">Acts of assembly:</li>
+  <li class="isub1">disallowed, <a href="#Page_76">76</a>, <a href="#Page_82">82</a>, <a href="#Page_93">93</a>, <a href="#Page_97">97</a>, <a href="#Page_99">99</a>, <a href="#Page_170">170</a>,
+    <a href="#Page_175">175</a>, <a href="#Page_177">177</a>, <a href="#Page_229">229</a>, <a href="#Page_231">231</a>, <a href="#Page_249">249</a></li>
+  <li class="isub1">submission to king in council, <a href="#Page_50">50</a>, <a href="#Page_82">82</a></li>
+
+  <li class="indx"><i>Ad quod damnum</i>, <a href="#Page_243">243</a></li>
+
+  <li class="indx">Addison, Alexander:</li>
+  <li class="isub1">characteristics of, <a href="#Page_141">141</a></li>
+  <li class="isub1">impeached, <a href="#Page_142">142</a></li>
+
+  <li class="indx">Admiralty:</li>
+  <li class="isub1">chancery jurisdiction in, <a href="#Page_181">181</a></li>
+  <li class="isub1">federal court of, <a href="#Page_128">128</a></li>
+  <li class="isub1">provincial council as court of, <a href="#Page_68">68</a></li>
+  <li class="isub1">state court of, <a href="#Page_126">126</a></li>
+  <li class="isub1">vice admiralty court established, <a href="#Page_69">69</a></li>
+
+  <li class="indx">Affirmations, <a href="#Page_85">85</a>, <a href="#Page_86">86</a></li>
+
+  <li class="indx">Allen, William, <a href="#Page_108">108</a>, <a href="#Page_190">190</a></li>
+
+  <li class="indx">Amsterdam, colony of the city of, <a href="#Page_5">5</a></li>
+
+  <li class="indx">Andros, Governor, <a href="#Page_23">23</a>, <a href="#Page_164">164</a>, <a href="#Page_216">216</a></li>
+
+  <li class="indx">Appeals:</li>
+  <li class="isub1">from Dutch courts, <a href="#Page_7">7</a></li>
+  <li class="isub1">to high court of errors, <a href="#Page_128">128</a>, <a href="#Page_134">134</a>, <a href="#Page_136">136</a></li>
+  <li class="isub1">to privy council, <a href="#Page_71">71</a>, <a href="#Page_82">82</a>, <a href="#Page_84">84</a></li>
+  <li class="isub1">to provincial council, <a href="#Page_65">65</a></li>
+  <li class="isub1">under the Duke of York, <a href="#Page_17">17</a>, <a href="#Page_29">29</a></li>
+
+  <li class="indx">Arbitration, <a href="#Page_15">15</a>, <a href="#Page_48">48</a></li>
+
+  <li class="indx">Assheton, Robert, <a href="#Page_113">113</a>, <a href="#Page_175">175</a>, <a href="#Page_231">231</a></li>
+
+  <li class="indx">Assizes, court of, <a href="#Page_16">16</a>, <a href="#Page_29">29</a>, <a href="#Page_163">163</a></li>
+
+  <li class="indx">Attachment, <a href="#Page_37">37</a></li>
+
+  <li class="indx">Attorney general, <a href="#Page_113">113</a></li>
+
+  <li class="indx">Attorneys-at-law:</li>
+  <li class="isub1">early bar, <a href="#Page_110">110-115</a></li>
+  <li class="isub1">examinations, <a href="#Page_119">119</a></li>
+  <li class="isub1">students, <a href="#Page_117">117</a></li>
+  <li class="isub1">subsequent to Revolution, <a href="#Page_154">154</a></li>
+
+
+  <li class="ifrst">Bar (see <a href="#Page_283">Attorneys-at-law</a>)</li>
+
+  <li class="indx">Binney, Horace, <a href="#Page_155">155</a>, <a href="#Page_208">208</a></li>
+
+  <li class="indx">Blackstone’s Commentaries, <a href="#Page_119">119</a></li>
+
+  <li class="indx">Brackenridge, Judge H. H., <a href="#Page_142">142</a>, <a href="#Page_147">147</a></li>
+
+  <li class="indx">Bradford, Judge William, <a href="#Page_131">131</a></li>
+
+  <li class="indx">Butler county, first court held in, <a href="#Page_151">151</a></li>
+
+
+  <li class="ifrst">Carr, Sir Robert, <a href="#Page_9">9</a>, <a href="#Page_11">11</a></li>
+
+  <li class="indx">Censors, council of, <a href="#Page_124">124</a>, <a href="#Page_129">129</a></li>
+
+  <li class="indx">Chancery, court of, <a href="#Page_179">179</a>, <a href="#Page_193">193</a></li>
+
+  <li class="indx">Charles II, <a href="#Page_40">40</a></li>
+
+  <li class="indx">Charter:</li>
+  <li class="isub1">of privileges of 1701, <a href="#Page_73">73</a>, <a href="#Page_184">184</a></li>
+  <li class="isub1">to William Penn, <a href="#Page_41">41</a></li>
+
+  <li class="indx">Chew, Benjamin, <a href="#Page_108">108</a>, <a href="#Page_121">121</a>, <a href="#Page_134">134</a></li>
+
+  <li class="indx">Clark, William, <a href="#Page_218">218</a></li>
+
+  <li class="indx">Circuit courts, <a href="#Page_135">135</a>, <a href="#Page_138">138</a></li>
+
+  <li class="indx">Codes, colonial tendency toward, <a href="#Page_10">10</a>, <a href="#Page_14">14</a></li>
+
+  <li class="indx">Commission to revise the civil code:</li>
+  <li class="isub1">appointment, <a href="#Page_155">155</a></li>
+  <li class="isub1">report on equity jurisdiction, <a href="#Page_196">196</a></li>
+  <li class="isub1">on orphans’ court, <a href="#Page_235">235</a></li>
+
+  <li class="indx">Commissions of judges, <a href="#Page_102">102</a></li>
+
+  <li class="indx">Common law, as a subsidiary system in the colonies, <a href="#Page_13">13</a>, <a href="#Page_103">103</a></li>
+
+  <li class="indx"><span class="pagenum" id="Page_284">[Pg 284]</span>Conditional verdict, <a href="#Page_28">28</a>, <a href="#Page_208">208</a></li>
+
+  <li class="indx">Constable, <a href="#Page_19">19</a></li>
+
+  <li class="indx">Constitution of 1874, judiciary article, <a href="#Page_275">275</a></li>
+
+  <li class="indx">Constitutional convention:</li>
+  <li class="isub1">of 1776, <a href="#Page_122">122</a>, <a href="#Page_123">123</a></li>
+  <li class="isub1">of 1790, <a href="#Page_132">132</a></li>
+
+  <li class="indx">Coroner, <a href="#Page_73">73</a></li>
+
+  <li class="indx">Counties, Penn’s division, <a href="#Page_47">47</a></li>
+
+  <li class="indx">Court house:</li>
+  <li class="isub1">Philadelphia, <a href="#Page_108">108</a></li>
+  <li class="isub1">Westmoreland county, <a href="#Page_151">151</a></li>
+
+  <li class="indx">Criminal law, <a href="#Page_52">52</a>, <a href="#Page_56">56</a>, <a href="#Page_86">86</a>, <a href="#Page_90">90</a>, <a href="#Page_131">131</a></li>
+
+
+  <li class="ifrst">Deal court, <a href="#Page_35">35</a></li>
+
+  <li class="indx">Decedents’ debts, sale of land for payment of, <a href="#Page_226">226</a></li>
+
+  <li class="indx">Decedents’ estates (see <a href="#Page_286">Orphans’ court</a> and <a href="#Page_286">Registers’ court</a>)</li>
+
+  <li class="indx">Dickinson, John, <a href="#Page_117">117</a>, <a href="#Page_120">120</a>, <a href="#Page_129">129</a>, <a href="#Page_130">130</a></li>
+
+  <li class="indx">Disorder, complaints against, <a href="#Page_88">88</a></li>
+
+  <li class="indx">District court of Philadelphia, <a href="#Page_137">137</a></li>
+
+  <li class="indx">Divorce:</li>
+  <li class="isub1">acts of 1700 and 1705, <a href="#Page_100">100</a></li>
+  <li class="isub1">in the Dutch period, <a href="#Page_6">6</a></li>
+  <li class="isub1">private acts, <a href="#Page_101">101</a></li>
+  <li class="isub1">under Duke of York’s laws, <a href="#Page_99">99</a></li>
+
+  <li class="indx">Doan, Aaron, outlawry of, <a href="#Page_130">130</a></li>
+
+  <li class="indx">Ducking-stool, <a href="#Page_89">89</a></li>
+
+  <li class="indx">Duke of York (James II):</li>
+  <li class="isub1">proprietorship of, <a href="#Page_9">9</a></li>
+  <li class="isub1">conveys territory to Penn, <a href="#Page_41">41</a></li>
+
+  <li class="indx">Duke of York’s laws, <a href="#Page_10">10</a>, <a href="#Page_23">23</a>, <a href="#Page_25">25</a>, <a href="#Page_162">162</a>, <a href="#Page_216">216</a></li>
+
+  <li class="indx">Dutch:</li>
+  <li class="isub1">court on the Delaware, <a href="#Page_3">3</a></li>
+  <li class="isub1">West India Company, <a href="#Page_3">3</a>, <a href="#Page_5">5</a></li>
+
+
+  <li class="ifrst">Ejectment, <a href="#Page_76">76</a>, <a href="#Page_204">204</a></li>
+
+  <li class="indx">Eminent domain, <a href="#Page_245">245</a></li>
+
+  <li class="indx">English:</li>
+  <li class="isub1">citation of cases forbidden, <a href="#Page_150">150</a></li>
+  <li class="isub1">conquest of New Netherlands, <a href="#Page_9">9</a></li>
+  <li class="isub1">statutes in force, <a href="#Page_13">13</a>, <a href="#Page_14">14</a>, <a href="#Page_103">103</a></li>
+
+  <li class="indx">Equity jurisprudence:</li>
+  <li class="isub1">colonial difficulties, <a href="#Page_159">159</a></li>
+  <li class="isub1">common-law forms, <a href="#Page_190">190</a>, <a href="#Page_201">201</a></li>
+  <li class="isub1">confined to Supreme Court, <a href="#Page_176">176</a></li>
+  <li class="isub1">constitution of 1776, <a href="#Page_192">192</a></li>
+  <li class="isub1">constitution of 1790, <a href="#Page_194">194</a></li>
+  <li class="isub1">county courts, <a href="#Page_167">167</a></li>
+  <li class="isub1">court of assizes, <a href="#Page_163">163</a></li>
+  <li class="isub1">Keith’s court, <a href="#Page_177">177</a>, <a href="#Page_179">179</a>, <a href="#Page_181">181</a></li>
+  <li class="isub1">petitions against, <a href="#Page_184">184</a></li>
+  <li class="isub1">private acts, <a href="#Page_191">191</a></li>
+  <li class="isub1">provincial council, <a href="#Page_166">166</a></li>
+  <li class="isub1">recommendations of commissioners in 1835, <a href="#Page_196">196</a></li>
+  <li class="isub1">resolutions of general assembly, <a href="#Page_185">185</a></li>
+  <li class="isub1">rules of Supreme Court, <a href="#Page_200">200</a></li>
+  <li class="isub1">Welsh courts as a precedent, <a href="#Page_172">172</a>, <a href="#Page_174">174</a></li>
+
+  <li class="indx">Erie and Bradford counties:</li>
+  <li class="isub1">road system, <a href="#Page_267">267</a></li>
+
+  <li class="indx">Evans, Governor, <a href="#Page_80">80</a></li>
+
+  <li class="indx">Examinations for the bar, <a href="#Page_119">119</a></li>
+
+  <li class="indx">Execution, in civil cases, <a href="#Page_55">55</a></li>
+
+  <li class="indx">Executions, public, <a href="#Page_131">131</a></li>
+
+  <li class="indx">Executive clemency, <a href="#Page_131">131</a></li>
+
+
+  <li class="ifrst">Finne, Long, <a href="#Page_31">31</a></li>
+
+  <li class="indx">Fletcher, Benjamin, <a href="#Page_50">50</a>, <a href="#Page_222">222</a></li>
+
+  <li class="indx">Frame of government, <a href="#Page_42">42</a></li>
+
+  <li class="indx">Francis, Tench, <a href="#Page_115">115</a></li>
+
+  <li class="indx"><span class="pagenum" id="Page_285">[Pg 285]</span>Franklin, Benjamin, <a href="#Page_107">107</a>, <a href="#Page_129">129</a></li>
+
+  <li class="indx">Friends, society of:</li>
+  <li class="isub1">affirmations, <a href="#Page_85">85</a></li>
+  <li class="isub1">arbitration, <a href="#Page_49">49</a></li>
+
+  <li class="indx">Fundamental laws, <a href="#Page_45">45</a></li>
+
+
+  <li class="ifrst">Gambling contract, <a href="#Page_39">39</a></li>
+
+  <li class="indx">Gibson, John Bannister, <a href="#Page_153">153</a></li>
+
+  <li class="indx">Golf, <a href="#Page_246">246</a></li>
+
+  <li class="indx">Gookin, Governor, <a href="#Page_81">81</a>, <a href="#Page_220">220</a></li>
+
+  <li class="indx">Gordon, Patrick, <a href="#Page_183">183</a>, <a href="#Page_185">185</a></li>
+
+  <li class="indx">Grand jury, <a href="#Page_90">90</a></li>
+
+  <li class="indx">Guest, Chief Justice, <a href="#Page_171">171</a></li>
+
+
+  <li class="ifrst">Hamilton, Andrew, <a href="#Page_115">115</a>, <a href="#Page_188">188</a>, <a href="#Page_189">189</a></li>
+
+  <li class="indx">High court of errors and appeals, <a href="#Page_128">128</a>, <a href="#Page_134">134</a>, <a href="#Page_136">136</a></li>
+
+  <li class="indx">Highways (see <a href="#Page_286">Roads</a>)</li>
+
+  <li class="indx">Holme, Thomas, <a href="#Page_250">250</a></li>
+
+  <li class="indx">Hopkinson, Francis, <a href="#Page_119">119</a>, <a href="#Page_127">127</a></li>
+
+
+  <li class="ifrst">Impeachment:</li>
+  <li class="isub1">Judge Addison, <a href="#Page_142">142</a></li>
+  <li class="isub1">Judge Hopkinson, <a href="#Page_127">127</a></li>
+  <li class="isub1">Chief Justice Moore, <a href="#Page_59">59</a></li>
+  <li class="isub1">Supreme Court justices, <a href="#Page_143">143</a></li>
+
+
+  <li class="ifrst">Jacquet, Jean Paul, <a href="#Page_3">3</a></li>
+
+  <li class="indx">James II (see <a href="#Page_284">Duke of York</a>)</li>
+
+  <li class="indx">Jealousy of the courts, <a href="#Page_139">139</a></li>
+
+  <li class="indx">Jones, Joel, <a href="#Page_155">155</a></li>
+
+  <li class="indx">Judges:</li>
+  <li class="isub1">commissions, <a href="#Page_102">102</a></li>
+  <li class="isub1">fined for giving wrong judgment, <a href="#Page_64">64</a></li>
+  <li class="isub1">fined for non-attendance, <a href="#Page_47">47</a></li>
+  <li class="isub1">fined for smoking in court, <a href="#Page_53">53</a></li>
+  <li class="isub1">forbidden to cite English cases, <a href="#Page_150">150</a></li>
+  <li class="isub1">required to file opinions in writing, <a href="#Page_136">136</a></li>
+  <li class="isub1">salaries, <a href="#Page_104">104</a>, <a href="#Page_134">134</a></li>
+  <li class="isub1">term of office, <a href="#Page_98">98</a>, <a href="#Page_123">123</a>, <a href="#Page_133">133</a>, <a href="#Page_149">149</a></li>
+
+  <li class="indx">Judgments, entered in kind, <a href="#Page_36">36</a></li>
+
+  <li class="indx">Judicial committee of privy council, <a href="#Page_85">85</a></li>
+
+  <li class="indx">Judicial districts, <a href="#Page_7">7</a>, <a href="#Page_133">133</a></li>
+
+  <li class="indx">Judiciary:</li>
+  <li class="isub1">constitution of 1776, <a href="#Page_123">123</a></li>
+  <li class="isub1">constitution of 1790, <a href="#Page_132">132</a></li>
+  <li class="isub1">constitution of 1874, <a href="#Page_275">275</a></li>
+
+  <li class="indx">Jury:</li>
+  <li class="isub1">of seven, <a href="#Page_20">20</a></li>
+  <li class="isub1">trial without, <a href="#Page_55">55</a></li>
+  <li class="isub1">viewers, <a href="#Page_253">253</a>, <a href="#Page_255">255</a>, <a href="#Page_260">260</a></li>
+
+  <li class="indx">Justices of peace, civil jurisdiction, <a href="#Page_105">105</a>, <a href="#Page_157">157</a></li>
+
+
+  <li class="ifrst">Keith, Sir William:</li>
+  <li class="isub1">dispute with collector of customs, <a href="#Page_96">96</a></li>
+  <li class="isub1">establishes court of chancery, <a href="#Page_177">177</a></li>
+  <li class="isub1">restores English criminal law, <a href="#Page_86">86</a></li>
+
+  <li class="indx">Kinsey, John, <a href="#Page_107">107</a>, <a href="#Page_180">180</a>, <a href="#Page_183">183</a></li>
+
+
+  <li class="ifrst">La Grange, Arnoldus, <a href="#Page_27">27</a></li>
+
+  <li class="indx">Land:</li>
+  <li class="isub1">liable for debts, <a href="#Page_28">28</a>, <a href="#Page_226">226</a></li>
+  <li class="isub1">six per cent allowance for roads, <a href="#Page_249">249</a></li>
+
+  <li class="indx">Laussat, Anthony, <a href="#Page_196">196</a></li>
+
+  <li class="indx">Lawyers (see <a href="#Page_283">Attorneys-at-law</a>)</li>
+
+  <li class="indx">Liquor licenses, <a href="#Page_18">18</a></li>
+
+  <li class="indx">Lloyd, David, <a href="#Page_70">70</a>, <a href="#Page_75">75</a>, <a href="#Page_79">79</a>, <a href="#Page_92">92</a>, <a href="#Page_107">107</a>, <a href="#Page_112">112</a>,
+    <a href="#Page_172">172</a>, <a href="#Page_177">177</a>, <a href="#Page_189">189</a></li>
+
+  <li class="indx">Logan, James, <a href="#Page_49">49</a>, <a href="#Page_79">79</a>, <a href="#Page_107">107</a>, <a href="#Page_180">180</a>, <a href="#Page_185">185</a>,
+    <a href="#Page_187">187</a></li>
+
+
+  <li class="ifrst"><span class="pagenum" id="Page_286">[Pg 286]</span>McKean, Thomas, <a href="#Page_125">125</a>, <a href="#Page_139">139</a>, <a href="#Page_152">152</a>,
+    <a href="#Page_190">190</a></li>
+
+  <li class="indx">Mann, Abraham, <a href="#Page_30">30</a>, <a href="#Page_61">61</a>, <a href="#Page_113">113</a></li>
+
+  <li class="indx">Markham, William, <a href="#Page_42">42</a>, <a href="#Page_69">69</a></li>
+
+  <li class="indx">Moll, John, <a href="#Page_30">30</a>, <a href="#Page_46">46</a></li>
+
+  <li class="indx">Mompesson, Roger, <a href="#Page_78">78</a>, <a href="#Page_104">104</a></li>
+
+  <li class="indx">Moore, John, <a href="#Page_96">96</a></li>
+
+  <li class="indx">Moore, Nicholas, <a href="#Page_59">59</a></li>
+
+  <li class="indx">Mortgage, foreclosure of, <a href="#Page_38">38</a></li>
+
+
+  <li class="ifrst">Negligence, <a href="#Page_38">38</a></li>
+
+  <li class="indx">Negroes, court for trial of, <a href="#Page_105">105</a></li>
+
+  <li class="indx">New Amstel, <a href="#Page_5">5</a>, <a href="#Page_7">7</a>, <a href="#Page_9">9</a></li>
+
+  <li class="indx">New Castle, <a href="#Page_22">22</a>, <a href="#Page_47">47</a></li>
+
+  <li class="indx">New Netherlands, <a href="#Page_9">9</a></li>
+
+  <li class="indx">Nicholls, Governor, <a href="#Page_11">11</a>, <a href="#Page_12">12</a></li>
+
+  <li class="indx"><i>Nisi prius</i>, <a href="#Page_129">129</a>, <a href="#Page_135">135</a></li>
+
+
+  <li class="ifrst">Oaths, judicial, <a href="#Page_86">86</a></li>
+
+  <li class="indx">Ordinance, courts established by, <a href="#Page_80">80</a></li>
+
+  <li class="indx">Orphans’ court, <a href="#Page_57">57</a>, <a href="#Page_82">82</a>, <a href="#Page_225">225</a>, <a href="#Page_230">230</a>, <a href="#Page_236">236</a>,
+    <a href="#Page_239">239</a></li>
+  <li class="isub1">early practice, <a href="#Page_231">231</a></li>
+  <li class="isub1">equity jurisdiction, <a href="#Page_232">232</a></li>
+  <li class="isub1">of London, <a href="#Page_223">223</a></li>
+  <li class="isub1">report of commissioners to revise civil code, <a href="#Page_235">235</a></li>
+
+  <li class="indx">Outlawry, process regulated, <a href="#Page_131">131</a></li>
+
+
+  <li class="ifrst">Pappegoya, Jeuffro Armgart, <a href="#Page_25">25</a></li>
+
+  <li class="indx">Pardons, <a href="#Page_87">87</a>, <a href="#Page_131">131</a></li>
+
+  <li class="indx">Partition, <a href="#Page_182">182</a>, <a href="#Page_199">199</a></li>
+
+  <li class="indx">Passmore, Thomas, <a href="#Page_143">143</a></li>
+
+  <li class="indx">Peacemakers, <a href="#Page_48">48</a></li>
+
+  <li class="indx">Penn, William, <a href="#Page_40">40</a>, <a href="#Page_42">42</a>, <a href="#Page_46">46</a>, <a href="#Page_48">48</a>, <a href="#Page_51">51</a>, <a href="#Page_74">74</a>,
+    <a href="#Page_166">166</a>, <a href="#Page_226">226</a>, <a href="#Page_248">248</a>, <a href="#Page_250">250</a></li>
+
+  <li class="indx">Petit treason, <a href="#Page_91">91</a></li>
+
+  <li class="indx">Philadelphia, <a href="#Page_108">108</a>, <a href="#Page_138">138</a>, <a href="#Page_154">154</a>, <a href="#Page_250">250</a></li>
+
+  <li class="indx">Piracy, <a href="#Page_69">69</a>, <a href="#Page_71">71</a></li>
+
+  <li class="indx">Pittsburg, <a href="#Page_136">136</a>, <a href="#Page_138">138</a>, <a href="#Page_266">266</a></li>
+
+  <li class="indx">President Judge, <a href="#Page_105">105</a></li>
+
+  <li class="indx">Printz, John, <a href="#Page_2">2</a>, <a href="#Page_25">25</a></li>
+
+  <li class="indx">Prisons, <a href="#Page_56">56</a></li>
+
+  <li class="indx">Privy council appeals, <a href="#Page_72">72</a>, <a href="#Page_84">84</a></li>
+
+  <li class="indx">Probate, <a href="#Page_214">214</a>, <a href="#Page_222">222</a></li>
+
+  <li class="indx">Procedure:</li>
+  <li class="isub1">under Duke of York, <a href="#Page_19">19</a>, <a href="#Page_29">29</a>, <a href="#Page_35">35</a></li>
+  <li class="isub1">under William Penn, <a href="#Page_44">44</a>, <a href="#Page_45">45</a>, <a href="#Page_49">49</a>, <a href="#Page_52">52</a>, <a href="#Page_54">54</a></li>
+
+  <li class="indx">Provincial council:</li>
+  <li class="isub1">admiralty jurisdiction, <a href="#Page_68">68</a></li>
+  <li class="isub1">as principal court, <a href="#Page_62">62-67</a></li>
+  <li class="isub1">equity jurisdiction, <a href="#Page_169">169</a>, <a href="#Page_178">178</a></li>
+  <li class="isub1">road matters, <a href="#Page_251">251</a></li>
+
+  <li class="indx">Provincial court (see <a href="#Page_287">Supreme Court</a>), <a href="#Page_57">57</a>, <a href="#Page_67">67</a></li>
+
+
+  <li class="ifrst">Quakers:</li>
+  <li class="isub1">affirmations, <a href="#Page_85">85</a>, <a href="#Page_86">86</a></li>
+  <li class="isub1">arbitration, <a href="#Page_48">48</a></li>
+  <li class="isub1">Massachusetts laws against, <a href="#Page_12">12</a></li>
+
+  <li class="indx">Quarry, Robert, <a href="#Page_69">69</a></li>
+
+
+  <li class="ifrst">Rawle, William, <a href="#Page_155">155</a></li>
+
+  <li class="indx">Reed, Joseph, <a href="#Page_117">117</a>, <a href="#Page_129">129</a></li>
+
+  <li class="indx">Register general, <a href="#Page_217">217</a></li>
+
+  <li class="indx">Register’s court, <a href="#Page_220">220</a>, <a href="#Page_236">236</a>, <a href="#Page_239">239</a></li>
+
+  <li class="indx">Reviews of provincial roads, <a href="#Page_258">258</a></li>
+
+  <li class="indx">Revision of civil code, <a href="#Page_155">155</a>, <a href="#Page_197">197</a>, <a href="#Page_236">236</a>, <a href="#Page_259">259</a></li>
+
+  <li class="indx">Roads:</li>
+  <li class="isub1">act of 1700, <a href="#Page_254">254</a></li>
+  <li class="isub1">act of 1836, <a href="#Page_259">259</a></li>
+  <li class="isub1">borough streets, <a href="#Page_267">267</a></li>
+  <li class="isub1">classes of, <a href="#Page_256">256</a></li>
+  <li class="isub1">consequential damages, <a href="#Page_268">268</a></li>
+  <li class="isub1"><span class="pagenum" id="Page_287">[Pg 287]</span>in England in eighteenth century, <a href="#Page_241">241</a></li>
+  <li class="isub1">in the New Netherlands, <a href="#Page_245">245</a></li>
+  <li class="isub1">jurisdiction of provincial council, <a href="#Page_251">251</a></li>
+  <li class="isub1">local acts, <a href="#Page_262">262</a></li>
+  <li class="isub1">measure of landowners’ damages, <a href="#Page_269">269</a></li>
+  <li class="isub1">Penn’s provisions, <a href="#Page_248">248</a></li>
+  <li class="isub1">recent legislation, <a href="#Page_269">269</a></li>
+  <li class="isub1">reviews, <a href="#Page_258">258</a></li>
+  <li class="isub1">state roads, <a href="#Page_261">261</a></li>
+  <li class="isub1">streets in Philadelphia, <a href="#Page_263">263</a></li>
+  <li class="isub1">streets in Pittsburg, <a href="#Page_266">266</a></li>
+  <li class="isub1">under the Duke of York, <a href="#Page_247">247</a></li>
+  <li class="isub1">vocation, <a href="#Page_260">260</a></li>
+  <li class="isub1">widening, <a href="#Page_260">260</a></li>
+
+  <li class="indx">Robinson, Patrick, <a href="#Page_61">61</a>, <a href="#Page_113">113</a>, <a href="#Page_219">219</a></li>
+
+  <li class="indx">Ross, George, <a href="#Page_125">125</a></li>
+
+  <li class="indx">Rules of court, <a href="#Page_53">53</a></li>
+
+
+  <li class="ifrst">Schepens, <a href="#Page_5">5</a></li>
+
+  <li class="indx">Schout, <a href="#Page_5">5</a></li>
+
+  <li class="indx">Scolds, common, <a href="#Page_89">89</a></li>
+
+  <li class="indx">Sessions, courts of, <a href="#Page_17">17</a></li>
+
+  <li class="indx">Set-off, <a href="#Page_3">3</a>, <a href="#Page_54">54</a>, <a href="#Page_208">208</a></li>
+
+  <li class="indx">Shippen, Edward, <a href="#Page_129">129</a>, <a href="#Page_141">141</a></li>
+
+  <li class="indx">Six per cent allowance for roads, <a href="#Page_249">249</a></li>
+
+  <li class="indx">Slander, <a href="#Page_35">35</a></li>
+
+  <li class="indx">Stocks, <a href="#Page_54">54</a></li>
+
+  <li class="indx">Streets (see <a href="#Page_286">Roads</a>)</li>
+
+  <li class="indx">Superior Court, <a href="#Page_157">157</a></li>
+
+  <li class="indx">Supreme Court, <a href="#Page_80">80</a>, <a href="#Page_94">94</a>, <a href="#Page_98">98</a>, <a href="#Page_136">136</a>, <a href="#Page_137">137</a>, <a href="#Page_138">138</a>,
+    <a href="#Page_176">176</a></li>
+
+  <li class="indx">Suspension of courts during Revolution, <a href="#Page_125">125</a></li>
+
+  <li class="indx">Swedish court, <a href="#Page_2">2</a></li>
+
+
+  <li class="ifrst">Tilghman, Edward, <a href="#Page_118">118</a>, <a href="#Page_152">152</a></li>
+
+  <li class="indx">Tilghman, William, <a href="#Page_152">152</a></li>
+
+  <li class="indx">Tinicum Island, <a href="#Page_25">25</a></li>
+
+  <li class="indx">Town court, <a href="#Page_19">19</a></li>
+
+  <li class="indx">Treason trials, <a href="#Page_126">126</a></li>
+
+  <li class="indx">Trials in banc abolished, <a href="#Page_136">136</a></li>
+
+
+  <li class="ifrst">Upland court, <a href="#Page_7">7</a>, <a href="#Page_34">34</a></li>
+
+
+  <li class="ifrst">Verdict, conditional, <a href="#Page_28">28</a>, <a href="#Page_208">208</a></li>
+
+
+  <li class="ifrst">Western Pennsylvania, primitive courts of, <a href="#Page_151">151</a></li>
+
+  <li class="indx">Westmoreland county, <a href="#Page_151">151</a></li>
+
+  <li class="indx">Wharton, T. I., <a href="#Page_155">155</a></li>
+
+  <li class="indx">White, John, <a href="#Page_113">113</a></li>
+
+  <li class="indx">Whorekill, <a href="#Page_7">7</a>, <a href="#Page_35">35</a>, <a href="#Page_47">47</a></li>
+
+  <li class="indx">Wilson, James, <a href="#Page_126">126</a>, <a href="#Page_193">193</a></li>
+
+  <li class="indx">Witchcraft, <a href="#Page_67">67</a></li>
+
+
+  <li class="ifrst">Yeates, Jasper, <a href="#Page_148">148</a></li>
+
+
+  <li class="ifrst">Zenger, Peter, <a href="#Page_116">116</a></li>
+</ul>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+<div class="tnote">
+  <h2 class="nobreak" id="Transcribers_note">
+    Transcriber’s note
+  </h2>
+
+
+
+<p>Minor punctuation errors have been changed without notice except for quotes.  Hyphenation and diacritics were
+standardized.</p>
+
+<p>Page number references in the index are as published in the original
+publication and have not been checked for accuracy.</p>
+
+<p>On page <a href="#Page_238">238</a> there was a footnote anchor, but there was no corresponding footnote.
+The anchor has been removed.</p>
+
+<p>Spelling was retained (particularly in the quotes) as in the original except for the following changes:</p>
+
+
+<table class="autotable">
+<tr>
+<td class="tdl">
+Page <a href="#Page_40">40</a>: “of York’s administrat on”
+</td>
+<td class="tdl">
+“of York’s administration”
+</td>
+</tr>
+<tr>
+<td class="tdl">
+Page <a href="#Page_44">44</a>: “administratoin of justice”
+</td>
+<td class="tdl">
+“administration of justice”
+</td>
+</tr>
+<tr>
+<td class="tdl">
+Page <a href="#Page_77">77</a>: “administration f justice in”
+</td>
+<td class="tdl">
+“administration of justice”
+</td>
+</tr>
+<tr>
+<td class="tdl">
+Page <a href="#Page_120">120</a>: “in a re xamination of his”
+</td>
+<td class="tdl">
+“in a reexamination of his”
+</td>
+</tr>
+<tr>
+<td class="tdl">
+Page <a href="#Page_139">139</a>: “were suffi- to awe”
+</td>
+<td class="tdl">
+“were sufficient to awe”
+</td>
+</tr>
+<tr>
+<td class="tdl">
+Page <a href="#Page_152">152</a>: “Pennslyvania litigation was”
+</td>
+<td class="tdl">
+“Pennsylvania litigation was”
+</td>
+</tr>
+<tr>
+<td class="tdl">
+Page <a href="#Page_164">164</a>: “Estate, to makegood”
+</td>
+<td class="tdl">
+“Estate, to make good”
+</td>
+</tr>
+<tr>
+<td class="tdl">
+Page <a href="#Page_259">259</a>: “prov ded the application”
+</td>
+<td class="tdl">
+“provided the application”
+</td>
+</tr>
+<tr>
+<td class="tdl">
+Page <a href="#Page_268">268</a>: “A smiliar provision was”
+</td>
+<td class="tdl">
+“A similar provision was”
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+
+</td>
+<td class="tdl">
+
+</td>
+</tr>
+<tr>
+<td class="tdl">
+Footnote <a href="#Footnote_96_96">96</a>: “Penn’s first dlan”
+</td>
+<td class="tdl">
+“Penn’s first plan”
+</td>
+</tr>
+<tr>
+<td class="tdl">
+Footnote <a href="#Footnote_361_361">361</a>: “VII Pensnylvania Archives”
+</td>
+<td class="tdl">
+“VII Pennsylvania Archives”
+</td>
+</tr>
+<tr>
+<td class="tdl">
+Footnote <a href="#Footnote_513_513">513</a>: “and Laws of Pennsyvlania”
+</td>
+<td class="tdl">
+“and Laws of Pennsylvania”
+</td>
+</tr>
+</table>
+</div>
+</div>
+<div style='text-align:center'>*** END OF THE PROJECT GUTENBERG EBOOK 78802 ***</div>
+</body>
+</html>
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+++ b/78802-h/images/cover.jpg
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+++ b/LICENSE.txt
@@ -0,0 +1,11 @@
+This book, including all associated images, markup, improvements,
+metadata, and any other content or labor, has been confirmed to be
+in the PUBLIC DOMAIN IN THE UNITED STATES.
+
+Procedures for determining public domain status are described in
+the "Copyright How-To" at https://www.gutenberg.org.
+
+No investigation has been made concerning possible copyrights in
+jurisdictions other than the United States. Anyone seeking to utilize
+this eBook outside of the United States should confirm copyright
+status under the laws that apply to them.
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--- /dev/null
+++ b/README.md
@@ -0,0 +1,2 @@
+Project Gutenberg (https://www.gutenberg.org) public repository for eBook #78802
+(https://www.gutenberg.org/ebooks/78802)