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| author | www-data <www-data@mail.pglaf.org> | 2026-06-02 09:16:23 -0700 |
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| committer | www-data <www-data@mail.pglaf.org> | 2026-06-02 09:16:23 -0700 |
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diff --git a/78802-h/78802-h.htm b/78802-h/78802-h.htm new file mode 100644 index 0000000..ec311c9 --- /dev/null +++ b/78802-h/78802-h.htm @@ -0,0 +1,13641 @@ +<!DOCTYPE html> +<html lang="en"> +<head> + <meta charset="UTF-8"> + <meta name="viewport" content="width=device-width, initial-scale=1"> + <meta name="format-detection" content="telephone=no,date=no,address=no,email=no,url=no"> + <title> + The early courts of Pennsylvania | Project Gutenberg + </title> + <link rel="icon" href="images/cover.jpg" type="image/x-cover"> + <style> + +body { + margin-left: 10%; + margin-right: 10%; +} + +h1,h2,h3,h4,h5,h6 { + text-align: center; /* all headings centered */ + clear: both; +} + +p { + margin-top: .5em; + text-align: justify; + text-indent: 1.5em; + margin-bottom: .5em; +} + +hr { + width: 33%; + margin-top: 2em; + margin-bottom: 2em; + margin-left: 33.5%; + margin-right: 33.5%; + clear: both; +} + +hr.tb {width: 45%; margin-left: 27.5%; margin-right: 27.5%;} +hr.chap {width: 65%; margin-left: 17.5%; margin-right: 17.5%;} +@media print { hr.chap {display: none; visibility: hidden;} } + +hr.r5 {width: 5%; margin-top: 1em; margin-bottom: 1em; margin-left: 47.5%; margin-right: 47.5%;} + +div.chapter {page-break-before: always;} +h2.nobreak {page-break-before: avoid;} + +ul.index { list-style-type: none; } +li.ifrst { + margin-top: 1em; + text-indent: -2em; + padding-left: 1em; +} +li.indx { + margin-top: .5em; + text-indent: -2em; + padding-left: 1em; +} +li.isub1 { + text-indent: -2em; + padding-left: 2em; +} + + +table { + margin-left: auto; + margin-right: auto; +} +table.autotable { border-collapse: collapse; } +table.autotable td, +table.autotable th { padding: 0.25em; } + +.tdl {text-align: left;} +.tdr {text-align: right;} +.tdc {text-align: center;} + +.pagenum { /* uncomment the next line for invisible page numbers */ + /* visibility: hidden; */ + position: absolute; + left: 92%; + font-size: small; + text-align: right; + font-style: normal; + font-weight: normal; + font-variant: normal; + text-indent: 0; +} /* page numbers */ + +blockquote { + margin-top: 0; + margin-bottom: 0; + margin-left: 5%; + margin-right: 10%; +} + +.center {text-align: center; text-indent: 0;} + +.smcap {font-variant: small-caps;} + +figcaption {font-weight: bold;} +figcaption p {margin-top: 0; margin-bottom: .2em; text-align: inherit;} + +/* Images */ + +img { + max-width: 100%; + height: auto; +} + +/* Footnotes */ +.footnotes {border: 1px dashed;} + +.footnote {margin-left: 10%; margin-right: 10%; font-size: 0.9em;} + +.footnote .label {position: absolute; right: 84%; text-align: right;} + +.fnanchor { + vertical-align: super; + font-size: .8em; + text-decoration: + none; +} + +/* Poetry */ +/* uncomment the next line for centered poetry */ +.poetry-container {display: flex; justify-content: center;} +.poetry-container {text-align: center;} +.poetry {text-align: left; margin-left: 5%; margin-right: 5%;} +.poetry .stanza {margin: 1em auto;} +.poetry .verse {text-indent: -3em; padding-left: 3em;} + +.author { + text-align: right; + margin-right: 20% + } + +.x-ebookmaker body {margin: 0;} +.x-ebookmaker-drop {color: inherit;} + +.ph2, .ph3, .ph4 { text-align: center; text-indent: 0em; font-weight: bold; } +.ph2 { font-size: x-large; margin: .75em auto; } +.ph3 { font-size: large; margin: .83em auto; } +.ph4 { font-size: medium; margin: 1.12em auto; } + +.tnote {border: dashed 1px; margin-left: 10%; margin-right: 10%; +padding-bottom: .5em; padding-top: .5em; padding-left: .5em; +padding-right: .5em;} + +.indent { + margin-left: 2em; +} + +.indent2 { + margin-left: 1.7em; +} + + + +/* Poetry indents */ +.poetry .indent0 {text-indent: -3.0em;} +.poetry .indent9 {text-indent: 1.5em;} + + </style> +</head> + +<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.⁠<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.⁠<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.⁠<a id="FNanchor_3_3" href="#Footnote_3_3" class="fnanchor">[3]</a>⁠</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.⁠<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.⁠<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 & 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.”⁠<a id="FNanchor_6_6" href="#Footnote_6_6" class="fnanchor">[6]</a>⁠</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.”⁠<a id="FNanchor_7_7" href="#Footnote_7_7" class="fnanchor">[7]</a>⁠</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.”⁠<a id="FNanchor_8_8" href="#Footnote_8_8" class="fnanchor">[8]</a>⁠</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.⁠<a id="FNanchor_9_9" href="#Footnote_9_9" class="fnanchor">[9]</a>⁠</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.⁠<a id="FNanchor_10_10" href="#Footnote_10_10" class="fnanchor">[10]</a>⁠</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.⁠<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.”⁠<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.⁠<a id="FNanchor_13_13" href="#Footnote_13_13" class="fnanchor">[13]</a>⁠</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.”⁠<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.”⁠<a id="FNanchor_15_15" href="#Footnote_15_15" class="fnanchor">[15]</a>⁠</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.⁠<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.⁠<a id="FNanchor_17_17" href="#Footnote_17_17" class="fnanchor">[17]</a>⁠</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.⁠<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.⁠<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.”⁠<a id="FNanchor_20_20" href="#Footnote_20_20" class="fnanchor">[20]</a>⁠</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<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”⁠<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<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.⁠<a id="FNanchor_24_24" href="#Footnote_24_24" class="fnanchor">[24]</a>⁠</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,⁠<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.⁠<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.⁠<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.”⁠<a id="FNanchor_28_28" href="#Footnote_28_28" class="fnanchor">[28]</a>⁠</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.⁠<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.⁠<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.⁠<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.⁠<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 & M<sup>r</sup> Tom was in question, and then decyded +by M<sup>r</sup> Moll, M<sup>r</sup> Hans Blocq & 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.”⁠<a id="FNanchor_33_33" href="#Footnote_33_33" class="fnanchor">[33]</a>⁠</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.⁠<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.⁠<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.”⁠<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.”⁠<a id="FNanchor_37_37" href="#Footnote_37_37" class="fnanchor">[37]</a>⁠</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.⁠<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.”⁠<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.⁠<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.⁠<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,⁠<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.⁠<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.”⁠<a id="FNanchor_44_44" href="#Footnote_44_44" class="fnanchor">[44]</a>⁠</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<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.”⁠<a id="FNanchor_46_46" href="#Footnote_46_46" class="fnanchor">[46]</a>⁠</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.⁠<a id="FNanchor_47_47" href="#Footnote_47_47" class="fnanchor">[47]</a>⁠</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,⁠<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.⁠<a id="FNanchor_49_49" href="#Footnote_49_49" class="fnanchor">[49]</a>⁠</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.⁠<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”⁠<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 & 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.”⁠<a id="FNanchor_52_52" href="#Footnote_52_52" class="fnanchor">[52]</a>⁠</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.⁠<a id="FNanchor_53_53" href="#Footnote_53_53" class="fnanchor">[53]</a>⁠</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 & frequently Communicated to the said Councellors & +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 & Common Justice.”⁠<a id="FNanchor_54_54" href="#Footnote_54_54" class="fnanchor">[54]</a>⁠</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 & 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 & 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<sup>r</sup> will elect one; Hee is to preside in all +y<sup>e</sup> co<sup>rts</sup> of the Towne & 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 & all plantations upon +Delaware River.</p> + +<p>“That the office of Schout be converted into a Sheriffalty & +y<sup>e</sup> High Sheriffs power extend both in the corporacon & river & +that he be annually chosen by two being presented to the +Govern<sup>r</sup>, of whom he will nominate & confirm one.”⁠<a id="FNanchor_55_55" href="#Footnote_55_55" class="fnanchor">[55]</a>⁠</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 & +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<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 +& 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 +<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) & 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, & 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.</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 +& the Whorekill, Quarterly & 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 & 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 & 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 & 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 & 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 & Order.”⁠<a id="FNanchor_56_56" href="#Footnote_56_56" class="fnanchor">[56]</a>⁠</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.”⁠<a id="FNanchor_57_57" href="#Footnote_57_57" class="fnanchor">[57]</a>⁠</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.⁠<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.”⁠<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.⁠<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.⁠<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.⁠<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.”⁠<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 & 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.”⁠<a id="FNanchor_64_64" href="#Footnote_64_64" class="fnanchor">[64]</a>⁠</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.⁠<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.⁠<a id="FNanchor_66_66" href="#Footnote_66_66" class="fnanchor">[66]</a>⁠</p> + +<p>It would seem from the above proceedings and from +an order of Governor Andros of July 17, 1678,⁠<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.⁠<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.⁠<a id="FNanchor_69_69" href="#Footnote_69_69" class="fnanchor">[69]</a>⁠</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.”⁠<a id="FNanchor_70_70" href="#Footnote_70_70" class="fnanchor">[70]</a>⁠</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 & y<sup>e</sup> hay thereon mowed.”⁠<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 & Upland in Delaware +in a case between the sd Pieterson & 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, & 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, & +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 & all Officers in +Delaware whom it may concern.”⁠<a id="FNanchor_72_72" href="#Footnote_72_72" class="fnanchor">[72]</a>⁠</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.⁠<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.”⁠<a id="FNanchor_74_74" href="#Footnote_74_74" class="fnanchor">[74]</a>⁠</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 & 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<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 +& 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<sup>ch</sup> that hee bee secured +untill hee can bee sent & sold to the Barbadoes or some other +of those remote Plantations.”⁠<a id="FNanchor_75_75" href="#Footnote_75_75" class="fnanchor">[75]</a>⁠</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 &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 & 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 & 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 & +brought to the Barr.</p> + +<p>“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.</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, & the prisoner +at the Barre according to evidence & the lawes of the Country, +so helpe you God & 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 &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<sup>ties</sup> & also didst most traitorously solicit & entice +divers & 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 & 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<sup>r</sup> 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.</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 & 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 & 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<sup>r</sup> verdict upon which you are all agreed; +upon their saying yes, call that the prisoner bee taken from +the barre & secured.”⁠<a id="FNanchor_76_76" href="#Footnote_76_76" class="fnanchor">[76]</a>⁠</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 & 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.”⁠<a id="FNanchor_77_77" href="#Footnote_77_77" class="fnanchor">[77]</a>⁠</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.”⁠<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.”⁠<a id="FNanchor_79_79" href="#Footnote_79_79" class="fnanchor">[79]</a>⁠</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">& 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 & 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 & andries homman sworne in Co<sup>rt</sup> +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;</p> + +<p>“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<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 & +humbly desires forgivenesse & 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>.”⁠<a id="FNanchor_80_80" href="#Footnote_80_80" class="fnanchor">[80]</a>⁠</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.”⁠<a id="FNanchor_81_81" href="#Footnote_81_81" class="fnanchor">[81]</a>⁠</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 & 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<sup>t</sup> 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<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 & 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 & 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 & appurtenances for ye sume of +six hundred and twenty fyve gilders; to bee paid in New Castle +with merchandable Tobbacco & Caske dutch w<sup>th</sup> & 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 & may appeare;</p> + +<p>“James Sanderlins bound himselfe as security for ye true payment +of ye aboves 625 gilders according to the conditions.”⁠<a id="FNanchor_82_82" href="#Footnote_82_82" class="fnanchor">[82]</a>⁠</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 +& 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.”⁠<a id="FNanchor_83_83" href="#Footnote_83_83" class="fnanchor">[83]</a>⁠</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 & Caske did on y<sup>e</sup> day of 167; mortgage +Trasport & 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.”⁠<a id="FNanchor_84_84" href="#Footnote_84_84" class="fnanchor">[84]</a>⁠</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 & 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 & 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.”⁠<a id="FNanchor_85_85" href="#Footnote_85_85" class="fnanchor">[85]</a>⁠</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.”⁠<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.⁠<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.⁠<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.”⁠<a id="FNanchor_89_89" href="#Footnote_89_89" class="fnanchor">[89]</a>⁠</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.⁠<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.⁠<a id="FNanchor_91_91" href="#Footnote_91_91" class="fnanchor">[91]</a>⁠</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.⁠<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.⁠<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.”⁠<a id="FNanchor_94_94" href="#Footnote_94_94" class="fnanchor">[94]</a>⁠</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,⁠<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.⁠<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.”⁠<a id="FNanchor_97_97" href="#Footnote_97_97" class="fnanchor">[97]</a>⁠</p> +</blockquote> + +<p>These provisions were enacted into law at assemblies +held December 10, 1682,⁠<a id="FNanchor_98_98" href="#Footnote_98_98" class="fnanchor">[98]</a> and March 1, 1683.⁠<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.⁠<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.”⁠<a id="FNanchor_101_101" href="#Footnote_101_101" class="fnanchor">[101]</a>⁠</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.⁠<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.⁠<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.⁠<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.⁠<a id="FNanchor_105_105" href="#Footnote_105_105" class="fnanchor">[105]</a>⁠</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.”⁠<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,⁠<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.”⁠<a id="FNanchor_108_108" href="#Footnote_108_108" class="fnanchor">[108]</a>⁠</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.⁠<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.”⁠<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<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.⁠<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.”⁠<a id="FNanchor_113_113" href="#Footnote_113_113" class="fnanchor">[113]</a>⁠</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, & 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.”⁠<a id="FNanchor_114_114" href="#Footnote_114_114" class="fnanchor">[114]</a>⁠</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,”⁠<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.⁠<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 & 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.”⁠<a id="FNanchor_117_117" href="#Footnote_117_117" class="fnanchor">[117]</a>⁠</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.”⁠<a id="FNanchor_118_118" href="#Footnote_118_118" class="fnanchor">[118]</a>⁠</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.⁠<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,⁠<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.”⁠<a id="FNanchor_121_121" href="#Footnote_121_121" class="fnanchor">[121]</a>⁠</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.”⁠<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.⁠<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.⁠<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.⁠<a id="FNanchor_125_125" href="#Footnote_125_125" class="fnanchor">[125]</a>⁠</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.⁠<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.”⁠<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.”⁠<a id="FNanchor_128_128" href="#Footnote_128_128" class="fnanchor">[128]</a>⁠</p> + +<p><span class="pagenum" id="Page_57">[Pg 57]</span></p> + +<p>By the Act of March 1, 1683,⁠<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<a id="FNanchor_130_130" href="#Footnote_130_130" class="fnanchor">[130]</a>⁠, 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.⁠<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.⁠<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.”⁠<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.⁠<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.⁠<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.”⁠<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.⁠<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.”⁠<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 & 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 & 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 & 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 +<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, & 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.”⁠<a id="FNanchor_139_139" href="#Footnote_139_139" class="fnanchor">[139]</a>⁠</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.”⁠<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.”⁠<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.”⁠<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. & 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.”⁠<a id="FNanchor_143_143" href="#Footnote_143_143" class="fnanchor">[143]</a>⁠</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.⁠<a id="FNanchor_144_144" href="#Footnote_144_144" class="fnanchor">[144]</a>⁠</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.”⁠<a id="FNanchor_145_145" href="#Footnote_145_145" class="fnanchor">[145]</a>⁠</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>⁠<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 & +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,⁠<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.⁠<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,⁠<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.”⁠<a id="FNanchor_150_150" href="#Footnote_150_150" class="fnanchor">[150]</a>⁠</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<a id="FNanchor_151_151" href="#Footnote_151_151" class="fnanchor">[151]</a> + and against Margaret Mattson⁠<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.⁠<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.⁠<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>⁠<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.”⁠<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 & 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<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 & made their escape +to New York, where Hues & Crys wer sent after y<sup>m</sup>.”⁠<a id="FNanchor_157_157" href="#Footnote_157_157" class="fnanchor">[157]</a>⁠</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 & 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.⁠<a id="FNanchor_158_158" href="#Footnote_158_158" class="fnanchor">[158]</a>⁠</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.⁠<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 & 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.”⁠<a id="FNanchor_160_160" href="#Footnote_160_160" class="fnanchor">[160]</a>⁠</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.⁠<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.”⁠<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.⁠<a id="FNanchor_163_163" href="#Footnote_163_163" class="fnanchor">[163]</a>⁠</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.”⁠<a id="FNanchor_164_164" href="#Footnote_164_164" class="fnanchor">[164]</a> +The Act of October 28, 1701,⁠<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.⁠<a id="FNanchor_166_166" href="#Footnote_166_166" class="fnanchor">[166]</a>⁠</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.⁠<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<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.⁠<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.”⁠<a id="FNanchor_170_170" href="#Footnote_170_170" class="fnanchor">[170]</a>⁠</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 & 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,⁠<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.”⁠<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.⁠<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.⁠<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,⁠<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.⁠<a id="FNanchor_176_176" href="#Footnote_176_176" class="fnanchor">[176]</a>⁠</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.⁠<a id="FNanchor_177_177" href="#Footnote_177_177" class="fnanchor">[177]</a>⁠</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.⁠<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.⁠<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.⁠<a id="FNanchor_180_180" href="#Footnote_180_180" class="fnanchor">[180]</a>⁠</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.”⁠<a id="FNanchor_181_181" href="#Footnote_181_181" class="fnanchor">[181]</a>⁠</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.”⁠<a id="FNanchor_182_182" href="#Footnote_182_182" class="fnanchor">[182]</a>⁠</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.⁠<a id="FNanchor_183_183" href="#Footnote_183_183" class="fnanchor">[183]</a>⁠</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.⁠<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.⁠<a id="FNanchor_185_185" href="#Footnote_185_185" class="fnanchor">[185]</a> The assembly prepared a bitter remonstrance +against the ordinance and adjourned.⁠<a id="FNanchor_186_186" href="#Footnote_186_186" class="fnanchor">[186]</a>⁠</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.⁠<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 & Witnesses,”⁠<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.⁠<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.⁠<a id="FNanchor_190_190" href="#Footnote_190_190" class="fnanchor">[190]</a>⁠</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.⁠<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,⁠<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,⁠<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.⁠<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.⁠<a id="FNanchor_195_195" href="#Footnote_195_195" class="fnanchor">[195]</a> The case of +<i>Fothergill</i> v. <i>Stover</i>,⁠<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.⁠<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.”⁠<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.”⁠<a id="FNanchor_199_199" href="#Footnote_199_199" class="fnanchor">[199]</a> There +are two other entries of appeals in 1765,⁠<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.⁠<a id="FNanchor_201_201" href="#Footnote_201_201" class="fnanchor">[201]</a>⁠</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.⁠<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.⁠<a id="FNanchor_203_203" href="#Footnote_203_203" class="fnanchor">[203]</a>⁠</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.⁠<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.⁠<a id="FNanchor_205_205" href="#Footnote_205_205" class="fnanchor">[205]</a>⁠</p> + +<p>The popularity of Governor Keith enabled him to +obtain the passage of the Act of May 31, 1718,⁠<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,⁠<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.⁠<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.⁠<a id="FNanchor_209_209" href="#Footnote_209_209" class="fnanchor">[209]</a>⁠</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.⁠<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 & +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 +<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 & +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.”⁠<a id="FNanchor_211_211" href="#Footnote_211_211" class="fnanchor">[211]</a>⁠</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.⁠<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.⁠<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.”⁠<a id="FNanchor_214_214" href="#Footnote_214_214" class="fnanchor">[214]</a>⁠</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.⁠<a id="FNanchor_215_215" href="#Footnote_215_215" class="fnanchor">[215]</a>⁠</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, & 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</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 & 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.</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, & 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 & his wife, for letting a house to John Lovet, he being +a Stranger, & 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 & 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.</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.⁠<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.⁠<a id="FNanchor_217_217" href="#Footnote_217_217" class="fnanchor">[217]</a>⁠</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.⁠<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,⁠<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.⁠<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.”⁠<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.⁠<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.”⁠<a id="FNanchor_223_223" href="#Footnote_223_223" class="fnanchor">[223]</a>⁠</p> +</blockquote> + +<p>The commissioners for trade and plantations reported +adversely to the act and it was accordingly disallowed.⁠<a id="FNanchor_224_224" href="#Footnote_224_224" class="fnanchor">[224]</a>⁠</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>⁠<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.”⁠<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.⁠<a id="FNanchor_227_227" href="#Footnote_227_227" class="fnanchor">[227]</a>⁠</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,”⁠<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.⁠<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.⁠<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<a id="FNanchor_231_231" href="#Footnote_231_231" class="fnanchor">[231]</a> + and again in 1700⁠<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.”⁠<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,⁠<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.⁠<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,⁠<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,⁠<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.⁠<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.⁠<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.⁠<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,⁠<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.”⁠<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.”⁠<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.”⁠<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,⁠<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.⁠<a id="FNanchor_246_246" href="#Footnote_246_246" class="fnanchor">[246]</a>⁠</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.⁠<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.”⁠<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.⁠<a id="FNanchor_249_249" href="#Footnote_249_249" class="fnanchor">[249]</a>⁠</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.⁠<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.”⁠<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,⁠<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.⁠<a id="FNanchor_253_253" href="#Footnote_253_253" class="fnanchor">[253]</a>⁠</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,⁠<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.⁠<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,⁠<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,⁠<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,⁠<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.⁠<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.⁠<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.⁠<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.”⁠<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.”⁠<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.⁠<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,⁠<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.⁠<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.”⁠<a id="FNanchor_267_267" href="#Footnote_267_267" class="fnanchor">[267]</a>⁠</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.⁠<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 & 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> +& 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>.”⁠<a id="FNanchor_269_269" href="#Footnote_269_269" class="fnanchor">[269]</a>⁠</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 & sworne in Court twelve Gilders or halfe +a bever.”⁠<a id="FNanchor_270_270" href="#Footnote_270_270" class="fnanchor">[270]</a>⁠</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.”⁠<a id="FNanchor_271_271" href="#Footnote_271_271" class="fnanchor">[271]</a>⁠</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,⁠<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<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.”⁠<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.⁠<a id="FNanchor_275_275" href="#Footnote_275_275" class="fnanchor">[275]</a>⁠</p> + +<p>In <i>Lyle</i> v. <i>Richards</i>⁠<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.”⁠<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,⁠<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.⁠<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.⁠<a id="FNanchor_280_280" href="#Footnote_280_280" class="fnanchor">[280]</a>⁠</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.⁠<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>,⁠<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>,⁠<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.”⁠<a id="FNanchor_284_284" href="#Footnote_284_284" class="fnanchor">[284]</a>⁠</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.⁠<a id="FNanchor_285_285" href="#Footnote_285_285" class="fnanchor">[285]</a>⁠</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.⁠<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.”⁠<a id="FNanchor_287_287" href="#Footnote_287_287" class="fnanchor">[287]</a> In 1774 Chew succeeded Allen as chief +justice,⁠<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, &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.”⁠<a id="FNanchor_289_289" href="#Footnote_289_289" class="fnanchor">[289]</a>⁠</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 & 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 & 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 & 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 & 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 & 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 & 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 & +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 & 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 &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>.”⁠<a id="FNanchor_290_290" href="#Footnote_290_290" class="fnanchor">[290]</a>⁠</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,⁠<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.⁠<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,⁠<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.⁠<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.⁠<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.⁠<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.⁠<a id="FNanchor_297_297" href="#Footnote_297_297" class="fnanchor">[297]</a>⁠</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.⁠<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,⁠<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.⁠<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>.⁠<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.⁠<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.⁠<a id="FNanchor_303_303" href="#Footnote_303_303" class="fnanchor">[303]</a>⁠</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.⁠<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.⁠<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,⁠<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,⁠<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.”⁠<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.⁠<a id="FNanchor_309_309" href="#Footnote_309_309" class="fnanchor">[309]</a>⁠</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:⁠<a id="FNanchor_310_310" href="#Footnote_310_310" class="fnanchor">[310]</a>⁠—</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,⁠<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.⁠<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.⁠<a id="FNanchor_313_313" href="#Footnote_313_313" class="fnanchor">[313]</a>⁠</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,⁠<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,⁠<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,⁠<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.⁠<a id="FNanchor_317_317" href="#Footnote_317_317" class="fnanchor">[317]</a>⁠</p> + +<p><span class="pagenum" id="Page_137">[Pg 137]</span></p> + +<p>By an act of April 10, 1807,⁠<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<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,⁠<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,⁠<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,”⁠<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.⁠<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,⁠<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.⁠<a id="FNanchor_325_325" href="#Footnote_325_325" class="fnanchor">[325]</a>⁠</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<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>,⁠<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.”⁠<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.⁠<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.⁠<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.⁠<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,”⁠<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>.⁠<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.⁠<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.”⁠<a id="FNanchor_335_335" href="#Footnote_335_335" class="fnanchor">[335]</a>⁠</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:⁠<a id="FNanchor_336_336" href="#Footnote_336_336" class="fnanchor">[336]</a>⁠—</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<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,⁠<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:⁠<a id="FNanchor_339_339" href="#Footnote_339_339" class="fnanchor">[339]</a>⁠—</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.⁠<a id="FNanchor_340_340" href="#Footnote_340_340" class="fnanchor">[340]</a>⁠</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.⁠<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,”⁠<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.⁠<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.’”⁠<a id="FNanchor_344_344" href="#Footnote_344_344" class="fnanchor">[344]</a>⁠</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.”⁠<a id="FNanchor_345_345" href="#Footnote_345_345" class="fnanchor">[345]</a>⁠</p> + +<p>An adequate life of his great successor, John Bannister +Gibson, has still to be written.⁠<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.⁠<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.⁠<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.⁠<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.⁠<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.⁠<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.⁠<a id="FNanchor_352_352" href="#Footnote_352_352" class="fnanchor">[352]</a>⁠</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 & 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 & 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 +& 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.⁠<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.⁠<a id="FNanchor_354_354" href="#Footnote_354_354" class="fnanchor">[354]</a>⁠</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.⁠<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.”⁠<a id="FNanchor_356_356" href="#Footnote_356_356" class="fnanchor">[356]</a>⁠</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.”⁠<a id="FNanchor_357_357" href="#Footnote_357_357" class="fnanchor">[357]</a>⁠</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 +& practice of Courts here, to hear & judge thereof according +to Equity, w<sup>ch</sup> you may also observe as Allowed by Law.”⁠<a id="FNanchor_358_358" href="#Footnote_358_358" class="fnanchor">[358]</a>⁠</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.”⁠<a id="FNanchor_359_359" href="#Footnote_359_359" class="fnanchor">[359]</a>⁠</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, & 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.”⁠<a id="FNanchor_360_360" href="#Footnote_360_360" class="fnanchor">[360]</a>⁠</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.⁠<a id="FNanchor_361_361" href="#Footnote_361_361" class="fnanchor">[361]</a>⁠</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.⁠<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.”⁠<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.”⁠<a id="FNanchor_364_364" href="#Footnote_364_364" class="fnanchor">[364]</a>⁠</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.”⁠<a id="FNanchor_365_365" href="#Footnote_365_365" class="fnanchor">[365]</a>⁠</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.⁠<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.”⁠<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 & shaked hands.”⁠<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.⁠<a id="FNanchor_369_369" href="#Footnote_369_369" class="fnanchor">[369]</a>⁠</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,”⁠<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.”⁠<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.”⁠<a id="FNanchor_372_372" href="#Footnote_372_372" class="fnanchor">[372]</a>⁠</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.”⁠<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.”⁠<a id="FNanchor_374_374" href="#Footnote_374_374" class="fnanchor">[374]</a>⁠</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.⁠<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.⁠<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.⁠<a id="FNanchor_377_377" href="#Footnote_377_377" class="fnanchor">[377]</a>⁠</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.⁠<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.”⁠<a id="FNanchor_379_379" href="#Footnote_379_379" class="fnanchor">[379]</a>⁠</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,⁠<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,⁠<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 & 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.”⁠<a id="FNanchor_382_382" href="#Footnote_382_382" class="fnanchor">[382]</a>⁠</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.⁠<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,⁠<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”⁠<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”⁠<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.”⁠<a id="FNanchor_387_387" href="#Footnote_387_387" class="fnanchor">[387]</a>⁠</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.”⁠<a id="FNanchor_388_388" href="#Footnote_388_388" class="fnanchor">[388]</a>⁠</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.”⁠<a id="FNanchor_389_389" href="#Footnote_389_389" class="fnanchor">[389]</a>⁠</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.⁠<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.⁠<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;⁠<a id="FNanchor_392_392" href="#Footnote_392_392" class="fnanchor">[392]</a> + that this court was abolished in 1689,⁠<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.⁠<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.⁠<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.⁠<a id="FNanchor_396_396" href="#Footnote_396_396" class="fnanchor">[396]</a>⁠</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.”⁠<a id="FNanchor_397_397" href="#Footnote_397_397" class="fnanchor">[397]</a>⁠</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.”⁠<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.⁠<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.”⁠<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,⁠<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.⁠<a id="FNanchor_402_402" href="#Footnote_402_402" class="fnanchor">[402]</a>⁠</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.”⁠<a id="FNanchor_403_403" href="#Footnote_403_403" class="fnanchor">[403]</a>⁠</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.”⁠<a id="FNanchor_404_404" href="#Footnote_404_404" class="fnanchor">[404]</a>⁠</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 +& Counties of New Castle, Kent & 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 & Ireland, Defender of the Faith &c. Annoq. Domini +1720.</p> + +<p>“God Save the King.</p> + +<p class="author"> + “W. Keith.”⁠<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,⁠<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.⁠<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.⁠<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>.⁠<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>⁠<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>,⁠<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<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.”⁠<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.⁠<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.”⁠<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.”⁠<a id="FNanchor_416_416" href="#Footnote_416_416" class="fnanchor">[416]</a>⁠</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>.⁠<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,⁠<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.”⁠<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.⁠<a id="FNanchor_420_420" href="#Footnote_420_420" class="fnanchor">[420]</a>⁠</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.”⁠<a id="FNanchor_421_421" href="#Footnote_421_421" class="fnanchor">[421]</a>⁠</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.⁠<a id="FNanchor_422_422" href="#Footnote_422_422" class="fnanchor">[422]</a>⁠</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.⁠<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.”⁠<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.”⁠<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, & 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.”⁠<a id="FNanchor_426_426" href="#Footnote_426_426" class="fnanchor">[426]</a>⁠</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.⁠<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.⁠<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>,⁠<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>,⁠<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, &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>,⁠<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<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<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<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.⁠<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.⁠<a id="FNanchor_436_436" href="#Footnote_436_436" class="fnanchor">[436]</a>⁠</p> + +<p>The first legislative attempt to give equitable relief +by a general act, was contained in the Act of January +22, 1774,⁠<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.”⁠<a id="FNanchor_438_438" href="#Footnote_438_438" class="fnanchor">[438]</a>⁠</p> +</blockquote> + +<p>No such other powers were conferred except by the +Act of March 28, 1786,⁠<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,⁠<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.”⁠<a id="FNanchor_441_441" href="#Footnote_441_441" class="fnanchor">[441]</a>⁠</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.⁠<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.⁠<a id="FNanchor_443_443" href="#Footnote_443_443" class="fnanchor">[443]</a>⁠</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;⁠<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.⁠<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.⁠<a id="FNanchor_446_446" href="#Footnote_446_446" class="fnanchor">[446]</a>⁠</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<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.”⁠<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:⁠<a id="FNanchor_449_449" href="#Footnote_449_449" class="fnanchor">[449]</a>⁠—</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.⁠<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,⁠<a id="FNanchor_451_451" href="#Footnote_451_451" class="fnanchor">[451]</a> +discovery,⁠<a id="FNanchor_452_452" href="#Footnote_452_452" class="fnanchor">[452]</a> dower and partition.⁠<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.⁠<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>.⁠<a id="FNanchor_455_455" href="#Footnote_455_455" class="fnanchor">[455]</a>⁠</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.⁠<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<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.”⁠<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>,⁠<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.⁠<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.”⁠<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.⁠<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.⁠<a id="FNanchor_463_463" href="#Footnote_463_463" class="fnanchor">[463]</a>⁠</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>,⁠<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.”⁠<a id="FNanchor_465_465" href="#Footnote_465_465" class="fnanchor">[465]</a>⁠</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.⁠<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>,⁠<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>,⁠<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.⁠<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.⁠<a id="FNanchor_470_470" href="#Footnote_470_470" class="fnanchor">[470]</a> So also by the vendee, +upon tendering the purchase money.⁠<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.⁠<a id="FNanchor_472_472" href="#Footnote_472_472" class="fnanchor">[472]</a>⁠</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.⁠<a id="FNanchor_473_473" href="#Footnote_473_473" class="fnanchor">[473]</a>⁠</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,⁠<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.⁠<a id="FNanchor_475_475" href="#Footnote_475_475" class="fnanchor">[475]</a>⁠</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>⁠<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.”⁠<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.⁠<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,⁠<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.⁠<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<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.⁠<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<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.⁠<a id="FNanchor_484_484" href="#Footnote_484_484" class="fnanchor">[484]</a>⁠</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.⁠<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.”⁠<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.⁠<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,⁠<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>.⁠<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 & 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. & 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 & 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 & Rawle’s Reports, 564 (1818). +For an action of debt see <i>Huber</i> v. <i>Burke</i>, 11 Sergeant & 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 & 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 & 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 & 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 & 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 & 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 & 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 & Rawle’s Reports, 323; <i>Moyer</i> v. <i>Germantown +Railroad Co.</i>, 3 Watts & 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 & Rawle’s +Reports, 448; <i>Gochenauer</i> v. <i>Cooker</i>, 8 Sergeant & 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 & 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.”⁠<a id="FNanchor_490_490" href="#Footnote_490_490" class="fnanchor">[490]</a>⁠</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,⁠<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.⁠<a id="FNanchor_492_492" href="#Footnote_492_492" class="fnanchor">[492]</a>⁠</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.⁠<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,⁠<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.⁠<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.⁠<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.”⁠<a id="FNanchor_497_497" href="#Footnote_497_497" class="fnanchor">[497]</a>⁠</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.”⁠<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 & 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.”⁠<a id="FNanchor_499_499" href="#Footnote_499_499" class="fnanchor">[499]</a>⁠</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.”⁠<a id="FNanchor_500_500" href="#Footnote_500_500" class="fnanchor">[500]</a>⁠</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.⁠<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,⁠<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,⁠<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, &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 & 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.”⁠<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,⁠<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,⁠<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.⁠<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.⁠<a id="FNanchor_508_508" href="#Footnote_508_508" class="fnanchor">[508]</a>⁠</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.”⁠<a id="FNanchor_509_509" href="#Footnote_509_509" class="fnanchor">[509]</a>⁠</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<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.⁠<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.”⁠<a id="FNanchor_512_512" href="#Footnote_512_512" class="fnanchor">[512]</a>⁠</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.⁠<a id="FNanchor_513_513" href="#Footnote_513_513" class="fnanchor">[513]</a>⁠</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, +& his Excellie did allow yrof.”⁠<a id="FNanchor_514_514" href="#Footnote_514_514" class="fnanchor">[514]</a>⁠</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.⁠<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.⁠<a id="FNanchor_516_516" href="#Footnote_516_516" class="fnanchor">[516]</a>⁠</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.”⁠<a id="FNanchor_517_517" href="#Footnote_517_517" class="fnanchor">[517]</a>⁠</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,⁠<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,”⁠<a id="FNanchor_519_519" href="#Footnote_519_519" class="fnanchor">[519]</a>⁠—a wrong that remained +unredressed until the reign of William and Mary.⁠<a id="FNanchor_520_520" href="#Footnote_520_520" class="fnanchor">[520]</a>⁠</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.”⁠<a id="FNanchor_521_521" href="#Footnote_521_521" class="fnanchor">[521]</a>⁠</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.”⁠<a id="FNanchor_522_522" href="#Footnote_522_522" class="fnanchor">[522]</a>⁠</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.”⁠<a id="FNanchor_523_523" href="#Footnote_523_523" class="fnanchor">[523]</a>⁠</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.⁠<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.⁠<a id="FNanchor_525_525" href="#Footnote_525_525" class="fnanchor">[525]</a>⁠</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,⁠<a id="FNanchor_526_526" href="#Footnote_526_526" class="fnanchor">[526]</a> which +provision was incorporated in the Act of December 10, +1682.⁠<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.⁠<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,⁠<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,⁠<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,⁠<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 & 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.”⁠<a id="FNanchor_532_532" href="#Footnote_532_532" class="fnanchor">[532]</a>⁠</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, +& the charge of a sucking child, & having nothing wherwt to +pay y<sup>e</sup> sd debts but y<sup>e</sup> shell of a smal house, unfinisht, & a +Lott valued att 50£, yrfor, requesting y<sup>e</sup> Go<sup>r</sup> & Council to +allow, permitt, & authorize her to make sale yrof, towards y<sup>e</sup> +defraying of sd debts, educaon of sd infant & 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 & +authorized, & is hereby by y<sup>e</sup> Go<sup>r</sup> & Council pmitted, allowed & +authorized, to make sale & conveyance to anie pson qtsoever, +of y<sup>e</sup> sd house & Lott, wt its improvments and apptenances, & +to ym & y<sup>r</sup> Heirs & assigns for ever, towards y<sup>e</sup> defraying her +just debts, y<sup>e</sup> educaon & maintainance of sd infant & her owne +support, according to y<sup>e</sup> Laws & Customs of sd province, to +Hold to y<sup>e</sup> sd pchasers yrof & y<sup>r</sup> heirs & assigns, & to y<sup>r</sup> use & +behoofe, in fee simple & estate of inheritance forever.”⁠<a id="FNanchor_533_533" href="#Footnote_533_533" class="fnanchor">[533]</a>⁠</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.”⁠<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,⁠<a id="FNanchor_535_535" href="#Footnote_535_535" class="fnanchor">[535]</a> and +of November 27, 1700,⁠<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,⁠<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,⁠<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,⁠<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,⁠<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<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.⁠<a id="FNanchor_542_542" href="#Footnote_542_542" class="fnanchor">[542]</a>⁠</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.⁠<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.⁠<a id="FNanchor_544_544" href="#Footnote_544_544" class="fnanchor">[544]</a>⁠</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,⁠<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.⁠<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.⁠<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.⁠<a id="FNanchor_548_548" href="#Footnote_548_548" class="fnanchor">[548]</a>⁠</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,⁠<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,⁠<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.⁠<a id="FNanchor_551_551" href="#Footnote_551_551" class="fnanchor">[551]</a>⁠</p> + +<p>By the constitution of 1790⁠<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,⁠<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<a id="FNanchor_554_554" href="#Footnote_554_554" class="fnanchor">[554]</a> and this decision +was followed in 1818.⁠<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>⁠<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.”⁠<a id="FNanchor_557_557" href="#Footnote_557_557" class="fnanchor">[557]</a>⁠</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,⁠<a id="FNanchor_558_558" href="#Footnote_558_558" class="fnanchor">[558]</a> and that relating to orphans’ courts on +March 29, 1832.⁠<a id="FNanchor_559_559" href="#Footnote_559_559" class="fnanchor">[559]</a>⁠</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.”⁠<a id="FNanchor_560_560" href="#Footnote_560_560" class="fnanchor">[560]</a>⁠</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.”⁠<a id="FNanchor_561_561" href="#Footnote_561_561" class="fnanchor">[561]</a>⁠</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.⁠<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.⁠<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.⁠<a id="FNanchor_564_564" href="#Footnote_564_564" class="fnanchor">[564]</a>⁠</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 & 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 & 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 & 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 & 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 & 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.⁠<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.”⁠<a id="FNanchor_566_566" href="#Footnote_566_566" class="fnanchor">[566]</a>⁠</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.”⁠<a id="FNanchor_567_567" href="#Footnote_567_567" class="fnanchor">[567]</a>⁠</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.”⁠<a id="FNanchor_568_568" href="#Footnote_568_568" class="fnanchor">[568]</a>⁠</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.⁠<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.⁠<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.⁠<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.”⁠<a id="FNanchor_572_572" href="#Footnote_572_572" class="fnanchor">[572]</a>⁠</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.⁠<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.⁠<a id="FNanchor_574_574" href="#Footnote_574_574" class="fnanchor">[574]</a>⁠</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.⁠<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.⁠<a id="FNanchor_576_576" href="#Footnote_576_576" class="fnanchor">[576]</a>⁠</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.⁠<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.⁠<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.”⁠<a id="FNanchor_579_579" href="#Footnote_579_579" class="fnanchor">[579]</a>⁠</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,⁠<a id="FNanchor_580_580" href="#Footnote_580_580" class="fnanchor">[580]</a>⁠—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.⁠<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.”⁠<a id="FNanchor_582_582" href="#Footnote_582_582" class="fnanchor">[582]</a>⁠</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 & cleared Itt is therefore resolved viz<sup>t</sup> That Every +respective overseer take care that betweene Every decem & +March his part of y<sup>e</sup> highway bee made good & cleared, upon y<sup>e</sup> +penalty & 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 & Lying trees at +Least 10 foot broad all stumpes & 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 & difficult dirty +places & what ever else shall be tougt more necessary in and +about y<sup>e</sup> highwayes afores<sup>d</sup>.”⁠<a id="FNanchor_583_583" href="#Footnote_583_583" class="fnanchor">[583]</a>⁠</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.”⁠<a id="FNanchor_584_584" href="#Footnote_584_584" class="fnanchor">[584]</a>⁠</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.”⁠<a id="FNanchor_585_585" href="#Footnote_585_585" class="fnanchor">[585]</a>⁠</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.”⁠<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,⁠<a id="FNanchor_587_587" href="#Footnote_587_587" class="fnanchor">[587]</a> +and of June 7, 1712.⁠<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.⁠<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.”⁠<a id="FNanchor_590_590" href="#Footnote_590_590" class="fnanchor">[590]</a>⁠</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.⁠<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.⁠<a id="FNanchor_592_592" href="#Footnote_592_592" class="fnanchor">[592]</a>⁠</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.”⁠<a id="FNanchor_593_593" href="#Footnote_593_593" class="fnanchor">[593]</a>⁠</p> + +<p>In the charter of October 25, 1701,⁠<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.”⁠<a id="FNanchor_595_595" href="#Footnote_595_595" class="fnanchor">[595]</a>⁠</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,⁠<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, & to Markett.”⁠<a id="FNanchor_597_597" href="#Footnote_597_597" class="fnanchor">[597]</a>⁠</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 & 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.”⁠<a id="FNanchor_598_598" href="#Footnote_598_598" class="fnanchor">[598]</a>⁠</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, & 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.</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 & 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<sup>e</sup> Highways in that County to make good & clear the same +wt all expedion.”⁠<a id="FNanchor_599_599" href="#Footnote_599_599" class="fnanchor">[599]</a>⁠</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 & Council, granted upon the applicaon +of Andrew Hamilton, esqr. Governor of y<sup>e</sup> Jersies & post mr +generall, I have surveyed & Laid outt the king’s roade from +y<sup>e</sup> 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.”⁠<a id="FNanchor_600_600" href="#Footnote_600_600" class="fnanchor">[600]</a>⁠</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 & 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.”⁠<a id="FNanchor_601_601" href="#Footnote_601_601" class="fnanchor">[601]</a>⁠</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.⁠<a id="FNanchor_602_602" href="#Footnote_602_602" class="fnanchor">[602]</a>⁠</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.⁠<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,⁠<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,⁠<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.⁠<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.⁠<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.⁠<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.”⁠<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, & +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.”⁠<a id="FNanchor_610_610" href="#Footnote_610_610" class="fnanchor">[610]</a>⁠</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.⁠<a id="FNanchor_611_611" href="#Footnote_611_611" class="fnanchor">[611]</a> + By the Act of April 6, 1802,⁠<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,⁠<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),⁠<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<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,⁠<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.⁠<a id="FNanchor_617_617" href="#Footnote_617_617" class="fnanchor">[617]</a>⁠</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,⁠<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,⁠<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.⁠<a id="FNanchor_620_620" href="#Footnote_620_620" class="fnanchor">[620]</a>⁠</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,⁠<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,⁠<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,⁠<a id="FNanchor_623_623" href="#Footnote_623_623" class="fnanchor">[623]</a> reviewers were appointed, +whose report was confirmed September 28, 1790.⁠<a id="FNanchor_624_624" href="#Footnote_624_624" class="fnanchor">[624]</a>⁠</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.⁠<a id="FNanchor_625_625" href="#Footnote_625_625" class="fnanchor">[625]</a>⁠</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.⁠<a id="FNanchor_626_626" href="#Footnote_626_626" class="fnanchor">[626]</a>⁠</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,⁠<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.⁠<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)⁠<a id="FNanchor_629_629" href="#Footnote_629_629" class="fnanchor">[629]</a>⁠, 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,⁠<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,⁠<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,⁠<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,⁠<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.⁠<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,⁠<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.⁠<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,⁠<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.⁠<a id="FNanchor_638_638" href="#Footnote_638_638" class="fnanchor">[638]</a>⁠</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,⁠<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.⁠<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,⁠<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,⁠<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.⁠<a id="FNanchor_643_643" href="#Footnote_643_643" class="fnanchor">[643]</a>⁠</p> + +<p>The counties of Erie and Bradford have under their +local acts a system radically different from the general +road law.⁠<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,⁠<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,⁠<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.”⁠<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.⁠<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.⁠<a id="FNanchor_649_649" href="#Footnote_649_649" class="fnanchor">[649]</a>⁠</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,⁠<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,⁠<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,⁠<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. & B. S. Railroad Co.</i>, 78 Kentucky Reports, 309 +(1880); <i>Schuylkill & 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 & 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 & 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 & 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> diff --git a/78802-h/images/cover.jpg b/78802-h/images/cover.jpg Binary files differnew file mode 100644 index 0000000..b916d29 --- /dev/null +++ b/78802-h/images/cover.jpg |
