Chapter II (1)

In 1701 William Penn was called back to England to defend his
proprietorship. Before his departure a general revision of the
earlier legislation was undertaken at the sessions of the assembly
held at New Castle in 1700 and at Philadelphia in 1701. The acts
there passed, one hundred and fourteen in number, seem, in a sense,
to have been regarded as supplying the previous legislation and
were passed with the expectation of being presented to the privy
council for approval, as required by the charter. In fact, when the
board of trade inquired of Penn, on his return, as to whether the
laws received from him were a complete body of all the laws of the
province, he replied that he believed they were the present body
of laws,[171] and it will be noticed that the compilations of the
eighteenth century begin with the Acts of 1700.

Among these acts was one of October 28, 1701, entitled “An Act for
Establishing Courts of Judicature in this Province and Counties
Annexed.”[172] Its origin was as follows: Edward Shippen, for the
two previous years chief justice of the provincial court, and John
Guest, the then chief justice, both members of the council, brought
into the assembly on October 7th, a bill for establishing the courts,
which was “unanimously rejected.” Some few days after, David Lloyd,
who was not then a member of either council or house, proposed a bill
which was voted to be adopted with amendments, and Richard Hallowell
and Isaac Norris were appointed a committee to draw up the bill,
with the amendments. The bill met with no apparent opposition in
the council. Without repeating its provisions in full, which would
be tedious, it may be said by way of summary that the act provided
for the holding of the “County Courts or Sessions” at stated periods,
three justices to constitute a quorum, with jurisdiction in civil and
criminal matters, capital cases excepted. These courts were required
to observe as nearly as possible “respecting the infancy of this
Government and capacities of the people, the methods and practice of
the King’s court of common pleas in England; having regard to the
regular process and proceedings of the former county courts; always
keeping to brevity, plainness and verity in all declarations and
pleas, and avoiding all fictions and color in pleadings.” Maritime
affairs, not cognizable in the admiralty courts, were to be tried
in a special manner before a jury of “merchants, masters of vessels
or ship carpenters.” The county courts also received equity powers,
with the right of appeal to the provincial court from any decree
or sentence made or given by the justices. The provincial court
was to consist of five judges, appointed by the governor, three of
whom were required to sit twice a year in Philadelphia, and two, at
least, to go on circuit through the counties to try capital cases and
serious crimes and hear appeals from the county courts. The governor,
however, was to grant writs of error and writs of habeas corpus. The
powers and duties of the orphans’ courts were also defined and the
forms of certain writs prescribed; all former laws relating to the
courts were repealed.

There is little doubt that David Lloyd was the original draftsman
of the bill and while the act, as finally adopted, contained in its
main outline features afterwards recognized by the colonists as most
convenient for Pennsylvania, it was, like other acts attributed
to Lloyd, verbose, involved and overloaded with minor details of
practice. Lloyd, no doubt, thought that he was faithfully adhering to
the simplicity that had marked the legal procedure in the province
from the beginning, but he was a lawyer, and, like most of his
brethren, could not divest himself of his professional circumlocution
or exclude from his plan pet theories of his own. In the form adopted
the act did not prove acceptable to the advisers of the Crown.

Penn himself seems, on second thought, to have found some
objectionable features in the act and desired that it might not be
confirmed but sent back to be amended. The lords commissioners for
trade and plantations reported that the act, “so far from expediting
the determination of lawsuits,” would, as they conceived, “impede
the same,” and, accordingly, the act was formally disallowed and
repealed on February 7, 1705, by the queen in council.[173] One of
the objections that occurred to the minds of the English lawyers was
to that clause which directed the courts to avoid all “fictions and
color in pleadings.” A doubt was entertained as to whether this might
not preclude an action of ejectment. In this they were not far from
the real purpose of the draftsman of the act, as would appear from a
debate in the provincial council in December, 1704, upon a petition
by Thomas Revel, the plaintiff in an ejectment, who complained that
his case had been put off for nearly three years. John Moore, counsel
for the plaintiff, and David Lloyd, for the defendant, being summoned
before the council, Lloyd boldly argued that that method of trial
being fictitious, was repugnant to the law of the province.[174]
Lloyd, however, was clever enough at a later day, to use the action
of ejectment with success in the Frankfort Company’s case, which will
be referred to hereafter.

The repeal of the Act of 1701 left the administration of justice
in a confused state. There had been some debate in the session of
the assembly of 1705 upon the subject of courts, but the repeal
of the act was not known. Upon receipt of the order in council,
Governor Evans called the assembly in special session, in September,
1706,[175] and presented to that body an act for establishing courts,
drawn up, it was said, by some practitioners therein. The assembly,
however, requested that the matter be referred to the new house,
which met in October, 1706, and accordingly at the following session
this was the first matter under discussion, the governor laying
his bill before the house with his opening address. The assembly,
or rather David Lloyd who dominated that body, had other views and
presented them in what is described as a “long and tedious bill,”
which, on being read in council, was found to depart very widely from
the plan proposed by the governor’s advisers.[176]

We have not the text of these rival bills, which brought about a
deadlock between the governor and the house, but it is apparent that
both sides were struggling for the control of the courts and in view
of the expected surrender of the government to the Crown, both were
equally anxious to establish their position before that event.[177]

The plan endorsed by the governor included county courts with civil
jurisdiction, exclusive in cases under ten pounds, and criminal
jurisdiction, except in capital cases which were to be tried by
special commissions of oyer and terminer; a provincial court for
the whole province, to sit ordinarily at Philadelphia but to go on
circuit twice a year, with original jurisdiction concurrent with
the county courts in cases over ten pounds as well as on appeal
from the county courts, and lastly, a court of equity to be held
by the governor and council.[178] The assembly ever jealous of the
centralization of authority objected to a separate court of chancery
and to the exercise of original jurisdiction by the provincial
court.[179] On the other hand, the governor pointed out that the
bill proposed by the assembly contained precisely the same faults
that had caused the rejection of the Act of 1701; that it went into
matters of practice at great length which ought to be settled by rule
of court; that the chancery practice ought to conform to that in the
other English dominions; that there was too much leniency shown to
debtors in the clauses relating to executions; that too much power
was conferred on the court of the city of Philadelphia; that the
provision for the payment of the judges was inadequate, and that the
proprietors’ rights were interfered with in the clause providing for
the dismissal of the judges on the address of the assembly and for
the appropriation of all fines and forfeitures to the support of the
courts.[180]

The controversy began politely enough, for the governor and council
were anxious to settle the administration of justice on a firm
basis and to persuade the assembly to allow a fixed salary to Roger
Mompesson, a good lawyer who had been persuaded to accept the
office of chief justice. But as time passed and each side adhered
obstinately to its own view the tone of the respective messages
became warmer. The governor hinted that if further delay occurred he
would establish the courts by ordinance and charged the assembly with
grasping for power.

“It might reasonably be thought a very easy business to
establish the courts by a law, without raising new disputes and
contending for such Grants of Power as are not essential to their
Constitution, nor were ever in the People for these 24 years past,
since this has been a colony.”[181]

To which the assembly rejoined that whoever advised the governor to
establish courts by ordinance was an enemy to the welfare of the
province; that they were not striving for power--

“but for what are essential to y^e Administration of Justice and
agreeable to an English Constitution, and if we have not been in
possession of this these 24 years, we know where to place the
fault, and shall only say, tis high time we were in the enjoyment
of our rights.”[182]

It is needless to refer at greater length to the rhetorical
flourishes of the combatants, which did not add particularly to
clarity of reasoning. Conferences were held and bitter language used,
the matter at one time taking the form of a personal controversy
between the hot-headed young governor and the equally fiery speaker,
when the latter declined to rise when addressing the governor at one
of these debates.[183]

The assembly then proceeded to impeach James Logan, the secretary
of the province, charging him with attempting to subvert the
charter and set up arbitrary government. The governor, having twice
adjourned the courts pending the discussion and now despairing of
reaching a conclusion, on February 22, 1707, issued an ordinance
for the establishment of the courts, under a clause in the charter
which authorized the proprietor to make wholesome ordinances for
the preservation of the peace and the better government of the
people.[184] The expedient was somewhat daring, as the charter
further provided that such ordinances should not bind or charge
any person for or in their “life, members, freehold, goods or
chattels.” In this ordinance the provincial court is first called the
“Supream Court” of Pennsylvania.[185] The assembly prepared a bitter
remonstrance against the ordinance and adjourned.[186]

Under this ordinance, which embodied the undisputed features of
the proposed bills in a clear and concise form, the courts acted
during the remainder of Evans’s and the first two years of Gookin’s
administration, until, in 1710, when tired of quarreling over
non-essentials, a court act was passed.[187] By this act a court,
called the “Supream Court of Pennsylvania,” was established,
consisting of four judges appointed by the governor, two to
constitute a quorum, with power to hear appeals at law or in equity.
The jurisdiction and practice of the quarter sessions and common
pleas were elaborately defined and Governor Evans’s ordinance was
followed in the provision that all capital offenses should be tried
before commissioners of oyer and terminer specially appointed for the
occasion.

This act was, with minor modifications, the same as that proposed
by the assembly in 1706, for it appears in the minutes that on
November 2, 1710, a bill for establishing courts prepared by a former
assembly was read, which, being very long, was left to the further
consideration of the house. Governor Gookin was of the opinion that
the courts could be better regulated by ordinance and that three
judges were sufficient for the supreme court, but ultimately gave
in on most of the points formerly in dispute. The act is indeed
long and complicated, embodying an almost complete code of practice
in both civil and criminal cases and on appeal, with very definite
limitations placed on arrests in civil actions. One proposal of the
governor was adopted. It having been suggested by the justices that
the common pleas should be separated from the sessions of the peace,
“for that the Holding ’em together perplexes Bench Juries, parties
& Witnesses,”[188] the act provided that the terms of the quarter
sessions should begin on Mondays or Tuesdays and of the common pleas
on the Wednesdays following. By a fee bill adopted the same day, the
chief justice was allowed thirty shillings and the other justices
twenty shillings for every day they sat in court.[189] Both of these
acts were repealed by the queen in council on February 20, 1713,
by advice of the solicitor general, Sir Robert Raymond, who was of
the opinion that the practice provided would multiply trials at law
in plain cases and make proceedings in law and equity insufferably
dilatory and expensive.[190]

It was no doubt very irritating to the anti-proprietary party
that acts upon which they had expended time and thought should
be continually repealed by the Crown upon pretexts that probably
concealed the true motives for such action. The assembly had,
however, hit upon a method of preserving its legislation, temporarily
at least. Under the charter, all laws were required to be submitted
to the council within five years of their enactment. The colonists
took as much time as they pleased before submitting the acts, and, as
a result, the laws generally remained in force nearly five years, and
when the assembly was notified of their repeal, new acts on similar
lines were passed. Against such tactics the commissioners of trade
vainly protested.[191] During the intervals between the repeal of the
old and the passage of the new court acts the governor maintained
the courts either by special commissions to the judges or by general
ordinances.

One act did succeed in obtaining favorable recommendation, that of
March 27, 1712-13, relating to the organization of and powers of
orphans’ courts, a comprehensive statute which defined the duties
of that court in relation to the estates of decedents, and the care
of the estates of minors, and became the basis of all subsequent
legislation extending and strengthening the jurisdiction of that
admirable tribunal.

It would take up too much space to go over all the acts that fell
before the criticisms of the council. One, that of May 15, 1715,[192]
regulated the taking of appeals to Great Britain and required the
appellant to give recognizance in double the amount of the judgment.
The objection to this act was that there was no sum limited for
which an appeal might be brought, as provided in the instructions
to the governors of all the plantations, but notice of this repeal
does not seem to have reached Pennsylvania, and the act was printed
as in force in all compilations of the laws down to the Revolution.
The first definite reference to these appeals is, as we have seen,
in the commission of William and Mary to Governor Fletcher, which
limited appeals to cases involving more than three hundred pounds.
Additional instructions were sent to the proprietors in 1726,[193]
directing the suspension of execution pending the final determination
of appeals, and in 1753 still more explicit instructions were issued
to a number of colonies including Pennsylvania. By these instructions
the governor and council were directed to hear appeals from the
courts and if any of the judges who tried the case appealed were
members of the council they were not to vote but to give the reasons
for their decision. From the judgment of the provincial council an
appeal was to be allowed to the king in council provided the matter
in controversy involved five hundred pounds, and in cases of less
than that amount where future rights might be bound or the king’s
revenue affected. The appellant was required to enter security for
the judgment and costs and pending the appeal execution was to be
suspended, unless security was entered for restitution.[194] The
directions for a judicial hearing before the provincial council
must have been given in ignorance of the fact that under the Frame
of Government of 1701 the council in Pennsylvania did not exercise
judicial powers.

In 1718 two murderers, Hugh Pugh and Lazarus Thomas, attempted to
gain a reprieve by an appeal to the king, but the council ignored
their petition on account of the notoriety of their crimes.[195] The
case of _Fothergill_ v. _Stover_,[196] involving the admissibility
in evidence of a letter from the secretary of the land office to
a deputy surveyor, is said by the reporter to have been affirmed
on appeal to the king, and the docket of the supreme court shows
that such an appeal was taken.[197] In fact there are several
entries of this sort. In _Brown_ v. _McMurtrie_, April Term,
1763, judgment is entered for the plaintiff on a special verdict,
whereupon Mr. Galloway “prays leave to appeal to the King in
Council,” which is granted on giving security agreeable to the act
of assembly and paying the costs. Below in another handwriting is
the entry, “Judgment of the Supream Court confirmed by his Majesty
in Council.”[198] There is a similar entry in _Nixon_ v. _Long_,
where Chew and Galloway appeared for the plaintiff and Dickinson and
Ross for the defendant. Judgment for the plaintiff was entered on
a demurrer to the evidence and on appeal to the king the judgment
was “confirmed.”[199] There are two other entries of appeals in
1765,[200] and at April Term, 1767, there are three suits by the
same plaintiff against different defendants, in which appeals to
the king were taken, security entered and transcripts of the record
issued, but the result is not recorded.[201]

It is interesting to note, that to the appeals from the various
colonies and from the Channel Islands is to be traced the
jurisdiction of the judicial committee of the privy council. The
standing committee for trade and plantations was, by an order of
1691, directed to hear appeals and report thereon to the king in
council.[202] Few cases came before the committee at first, but
gradually their proceedings took a judicial form, the judgment of the
members became a judicial decision, and the adoption of their report
a _pro forma_ matter. At this early period their decisions are but
occasionally noticed in the English reports, but Lord Mansfield, in
his speech on the Stamp Act, stated that he had in his early practice
been much concerned in the plantation causes before the privy council
and so had become acquainted with American affairs.[203]

The attempted appeal of Pugh and Thomas was based on the fact that
seventeen of the grand jury which had indicted them and eight of the
petit jury who found them guilty were Quakers who had qualified by
affirmations instead of oaths. This calls attention to a difficulty
that had long troubled the colony. The conscientious scruples of
the Friends against judicial oaths had been taken advantage of by
their opponents, led by Colonel Quarry, to drive them from office and
lessen their power.[204] An order had been procured from Queen Anne
enjoining the administration of oaths to all persons willing to take
them, an order which the Quaker justices were loath to enforce, while
the justices of the church party declined to administer affirmations,
lest they should mistake the sincerity of the affiant’s religious
scruples. Constant friction and mistrials resulted from this state of
affairs, and more than one act was passed on the subject only to meet
with technical objections in England.[205]

The popularity of Governor Keith enabled him to obtain the passage
of the Act of May 31, 1718,[206] which permitted affirmations by
such as conscientiously scrupled to take an oath, but at the same
time restored much of the rigorous criminal code of England, which
the humanity of Penn had prevented from being put in force in the
province. A few years later the Act of May 9, 1724,[207] was passed
which carefully prescribed the forms of declarations of fidelity,
abjurations and affirmations to be taken by Quakers, with a proviso
that the act was not to be construed as repealing the Act of 1718.
To this the assembly in 1739 attempted to add a supplement for the
relief of Scotch Presbyterians, who had conscientious scruples
against kissing the Bible, permitting them to take the oath in the
form commonly administered in Scotland. Approval of this act was
refused on the advice of Sir Dudley Ryder and Sir John Strange, who
criticised its loose wording and called attention to the danger of
giving way to new scruples about oaths.[208] Subsequently the privy
council relented and in 1772 an act was passed and approved which
permitted witnesses to qualify either by a solemn affirmation, an
oath in the usual form or an oath with uplifted hand.[209]

From the passage of the Act of 1718 capital punishment for the
greater felonies was rigorously employed, until in 1794, principally
through the efforts of Judge Bradford, the death penalty was
abolished in all cases except high treason and willful murder. As
a natural consequence the number of appeals for executive clemency
steadily increased and the minutes of the council are full of such
petitions.[210] One of the most curious is the following:--

“A Petition of John Remington, Attorney at Law, delivered to the
President, was by him laid before the Board and read, setting forth
that the Petitioner was unfortunately deluded & drawn into the idle
Diversion of performing the Ceremony of making a free Mason, in
Order to which a Sport called Snap Dragon was prepared, at which
the Petitioner was perswaded to be present; that unhappily some of
the burning Spirit used in this Sport was thrown or spilt on the
Breast of one Daniel Rees, which so burnt or scalded him that in
a few days after the said Daniel dyed; That Doctor Evan Jones had
been indicted as Principle for the Murder of the said Daniel Rees,
& by a Jury of the County was found guilty of Manslaughter; That
the Petitioner was also indicted as aiding & abetting the said Evan
Jones, and altho’ no Evidence did or could appear to prove that
the Petitioner had any hand in the throwing or spilling the said
Liquor on the Body of the said Daniel, or was privy to any Design
or Intention of doing harm to the said Daniel, or to any other
Person, yet the same Jury had brought in a Verdict of Manslaughter
likewise against the Petitioner, which if put in Execution would
tend to the utter Ruin of the Petitioner, his Wife, and two small
children, & therefore humbly praying that the President & Council
would be pleased to grant him a Pardon; Whereupon the Board are of
Opinion that the Petitioner should be pardoned the Manslaughter
aforesaid, and the burning in the hand, which by reason thereof,
he ought to suffer; But it being observed that in the Course of
the Tryal a certain wicked & irreligious Paper had been produced &
read, which appeared to have been composed by the said Remington,
who had made the aforesaid Daniel Rees repeat the same, as part of
the form to be gone thro’ on initiating him as a free Mason; the
Board therefore agreed that the Pardon should be so restricted as
that it might not be pleaded in Bar of any Prosecution that should
hereafter be commenced against the said Remington on account of the
said scandalous Paper.”[211]

It would seem that with the constantly increasing population, a
disorderly element was introduced into the community that rendered
stringent measures necessary for the protection of society. In 1726
a riotous crowd burnt down the pillory and stocks in the market
place and the governor was obliged to issue a proclamation for the
suppression of such tumults in the future.[212] In the newspapers
will be found complaints against the authorities in England for
making the colony a dumping ground for criminals and vagabonds.[213]
In 1717 the grand jury present:--

“Whereas, it has been _frequently and often_ presented by several
former grand juries for this city, the necessity of a ducking stool
and house of correction, for the just punishment of scolding,
drunken women, as well as divers other profligate and unruly
persons in this place, who are become a public nuisance to the town
in general; therefore, we the present grand jury, _earnestly_ again
present the same to this Court of Quarter Sessions, desiring their
immediate care; that those public _conveniences_ may not be longer
delayed, but with all possible speed provided for the _detection_
and quieting such disorderly persons.” And a few years later, a
second inquest, “taking in consideration the great disorders and
the turbulent behaviour of _many_ people in this city, present the
great necessity of a ducking-stool for _such people_, according to
their deserts.”[214]

There are many indictments for forestalling the markets and
regrating, offenses against public trade that excited in that day the
popular attention now centered on rebates and trusts.

Some presentments of the grand jury of Philadelphia will further
illustrate the care of our ancestors for the manners and morals of
the community.[215]

“Philadelphia, the 26th day of the 7th month, 1702.

“We, the Grand Inquest for this Corporation, do present George
Robinson, butcher, for being a parson of evill fame as a common
swarer, and a common drunker, & particularly upon the twenty-third
day of this instant, for swaring three oths in the market-place, &
also for utering two very bad curses the twenty-sixth day of this
instant. Signed in behalf of self & fellows, by

“Jno. Pons, ferman.”

“Submits, and puts himself
in mercy of the Court.”

“George Robinson, fined xxx s.
for the oaths and curses.”

“Philadelphia, ss.

“We, the Jurors for this city, doe present phillip Eilbeck, of
Chester County, for that on the twenty-third Day of this Instant,
at night, at the house of Margaret Garret, in the front street, in
Philadelphia, aforsd, Did then & theire mennace & threaten herman
Debeck, by drawing his bagenet and making a pass at him, the said
herman: & at the same time & place abovesaid, did utter three
curses, to the terrifiding of the said herman & other the Qeen’s
Leige people, contrary to the laws in that case made & provided.
Signed in behalf of the Rest of the Jurors, this 28th day of the
7th mo., 1702, pr.

“Jno. Psons, forman.”

“Appears and submits, and puts
himself in mercy of the Court.”

“Eilbeck for breach of the
peace and curses, xxx s.”

“The 3d of the 12th mon: 1702.

“We of the Grand Jury for the Citty of Philadelphia, do psent John
Satell for passing of bad counterfeit Coine to Anne Simes, on the
2nd of January Last past in her husbands house, now Living in
Philadelphia, & Also finding the mettal in his pocket, which we
think the Money was made withall.

“Signed in behalf of the Rest,
“Abra. Hooper, foreman.”

“Philadelphia, y^e 4th of the 12th mon., 1702.

“We, of y^e Grand Jury for the Citty of philadelphia, Do psent John
Joyse, for having of to wifes at once, which is boath against the
law of God and man.

“Signed in behalf of the rest,
“Abra. Hooper, foreman.”

“Philadelphia, y^e 6th of the 3rd month, 1703.

“We, of the Grand Jury for this city, Doe present Alexander Paxton
& his wife, for letting a house to John Lovet, he being a Stranger,
& have not Given security for The In Demnifying of this Corporation.

“Signed in behalf of the rest,
“Abra. Hooper, foreman.”

“Philadelphia, this third day of November, 1703.

“We doe also present Jon Furnis & Thomas McCarty & Thomas Anderson
& henery Flower, barbers, for triming people on first days of the
weeks, commonly called sunday, contrary to the law in that case
made & provided.

“Signed in behalf of the rest of the Jurors,
“John Redman, foreman.”

In 1731 an execution took place at New Castle which, it is to be
hoped, was exceptional in the annals of the colonies. Catherine
Bevan, together with a servant named Peter Murphy, were indicted,
tried and found guilty of the murder of the woman’s husband, Henry
Bevan. The conviction would seem to have been obtained principally
upon the confession of the servant. By the common law at that time
the murder of a husband by his wife was petit treason, and the
punishment was to be drawn and burnt. Accordingly, on September
10, 1731, the man was hanged and the woman burnt pursuant to their
sentences.[216] A gruesome account of the affair appears in
Franklin’s “Pennsylvania Gazette” for September 23, 1731:--

“She deny’d to the last that she acted any part in the murder and
could scarce be brought to own that she was guilty of consenting.
Neither of them said much at the place of execution. The man seemed
penitent but the woman appear’d hardened. It was designed to
strangle her dead before the fire could touch her; but its first
breaking out was in a stream which pointed directly upon the rope
that went round her neck, and burnt it off instantly so that she
fell alive into the flames, and was seen to struggle.”

To return to the courts. At a meeting of the council held on November
9, 1719, Governor Keith called attention to the repeal of the several
acts relating to courts, and proposed that the board consider the
best means of meeting the inconvenience caused thereby. The consensus
of opinion was that the governor should issue special commissions
authorizing the justices to hold court on the days when they should
be held under the repealed laws. Similar action was taken in the
following March in reference to the supreme court, and David Lloyd,
who was now chief justice, prepared the forms of commission. In this
way the courts were continued until at a meeting of the council, May
12, 1722, it was observed that the courts would be “more regularly
and effectually established by ordinance, as they are done in some
of our neighboring governments, than by any particular Commissions,”
and it was recommended that the matter be brought to the attention of
the house of representatives. A bill was promptly passed and messaged
to the council, where it was referred to Richard Hill, Isaac Norris,
James Logan and the attorney general, Andrew Hamilton, for amendment.
The bill as amended was returned to the house, and on May 22, 1722,
became a law.[217]

This act apparently was never considered by the Crown, but, in some
manner, was allowed to become a law by lapse of time, according to
the charter. The reason for its escape lies probably in an oversight
of the clerks of the council rather than in any intention on the part
of the board to give it even a tacit approval. The act appears in a
list, under consideration by the board of trade in 1739, which the
lords commissioners could not find to have ever been approved.[218]
Mr. Paris, the agent for the colony, after tedious searches, found
some of these acts “laid up in a by corner of the Board of Trade and
covered very thick with dust.” In the list the act we are discussing
is marked “supplied.” As a matter of fact, three months before the
time for its consideration had expired, the act had been supplied
by the Act of August 27, 1727,[219] which was repealed by order in
council September 21, 1731. In repealing the latter act, the point
seems to have been overlooked that the Act of 1722 was revived by the
repeal, and the question of the Crown’s power to pass upon it then
was not raised.

Upon the repeal of the Act of 1727 a special session of the assembly
was called, and an act passed formally reviving the Act of 1722.[220]
This reviving act seems to have been allowed to become a law by lapse
of time. Mr. Fane, the king’s counsel, to whom it was referred by
the lords commissioners, saw no objection to it. The Act of 1722,
which in many of its provisions remained in force until after the
Revolution, provided for county courts of quarter sessions, composed
of justices appointed by the governor, three to constitute a quorum,
and for similar county courts of common pleas, to be held after the
quarter sessions by justices, also appointed by the governor, with
authority to hold pleas of assizes, _scire facias_, replevins and
all manner of actions, civil, personal, real and mixed, and to grant
writs of partition and writs of view.

As to the supreme court, the Act of 1722 provided as follows:--

“And be it further enacted by the authority aforesaid, That there
shall be holden and kept at Philadelphia a court of record twice in
every year: (That is to say) on the twenty-fourth day of September
and the tenth day of April, if the same days, or either, do not
happen to be the First day of the week, and in such case the said
court shall be held on the next day following; which said court
shall be called and styled the supreme court of Pennsylvania.
And that there shall be three persons of known integrity and
ability, commissionated by the governor, or his lieutenant for
the time being, by several distinct patents or commissions, under
the great seal of this province, to be judges of the said court,
one of whom shall be distinguished in his commission by the name
of chief-justice. And every of the said justices shall have full
power and authority, by virtue of this act, when and as often as
there may be occasion, to issue forth writs of habeas corpus,
_certiorari_ and writs of error, and all remedial and other writs
and process returnable to the said court, and grantable by the said
judges by virtue of their office, in pursuance of the powers and
authorities hereby given them.

“Provided always, That upon (any) issue joined in the said supreme
court, such issue shall be tried in the county from whence the
cause was removed, before the judges aforesaid, or any two of them,
who are hereby empowered and required, if occasion require, to go
the circuit twice in every year, * * * * and to do generally all
those things that shall be necessary for the trial of any issue, as
fully as justices of _nisi prius_ in England may or can do.

“And that the said judges, or any two of them, shall have full
power to hold the said court, and therein to hear and determine
all causes, matters and things, cognizable in the said court, and
also to hear and determine all and all manner of pleas, plaints and
causes, which shall be removed or brought there from the respective
(general) quartersessions of the peace and courts of common pleas,
to be held for the respective counties of Philadelphia, Chester
and Bucks, as also for the city of Philadelphia, or from any other
court of this province, by virtue of any of the said writs. And to
examine and correct all and all manner of errors of the justices
and magistrates of this province, in their judgments, process and
proceedings in the said courts, as well as in all pleas of the
Crown, as in all pleas real, personal and mixed; and thereupon to
reverse or affirm the said judgments, as the law doth or shall
direct. And also to examine, correct and punish the contempts,
omissions and neglects, favors, corruptions and defaults, of all or
any of the justices of the peace, sheriffs, coroners, clerks and
other officers within the said respective counties. And also shall
award process for levying, as well of such fines, forfeitures and
amercements, as shall be estreated into the said supreme court, as
of the fines, forfeitures and amercements, which shall be lost,
taxed and set there, and not paid to the uses they are or shall be
appropriated.

“And generally shall minister justice to all persons, and exercise
the jurisdictions and powers hereby granted concerning all and
singular the premises according to law, as fully and amply, to all
intents and purposes whatsoever, as the justices of the court of
King’s Bench, common pleas and exchequer at Westminster, or any of
them, may or can do.

“Saving to all and every person and persons, his, her or their
heirs, executors and administrators, their right of appeal from
the final sentence, judgment or decree of any court within this
province, to His Majesty in council, or to such court or courts,
judge or judges, as by our Sovereign Lord the King, his heirs or
successors, shall be appointed in Britain, to receive, hear and
judge of appeals from His Majesty’s plantations.

“Provided, The person appealing shall, upon entering his appeal in
the court where the sentence, judgment or decree shall be given in
this province, pay all the costs before that time expended in the
prosecution, or defending the said suit; and shall further enter
into bond, with two good and sufficient securities in the sum of
three hundred pounds, to the defendant in the appeal, conditioned
to prosecute the said appeal with effect within the space of
eighteen months after the entry of such appeal, and to satisfy the
judgment of the court from which he appeals; and further, to pay
all such costs and damages as shall be adjudged to him to pay,
in case a sentence, judgment or decree, pass against the said
appellant, or in case he, she or they fail to prosecute their
appeal with effect.

“And be it further enacted by the authority aforesaid, That the
said judges of the supreme court shall have power and are hereby
authorized and empowered, from time to time, to deliver the gaols
of all persons which now are or hereafter shall be committed for
treasons, murders, and such other crimes as (by the laws of this
province) now are or hereafter shall be made capital or felonies
of death as aforesaid. And for that end from time to time to issue
forth such necessary precepts and process, and force obedience
thereto, as justices of assize, justices of oyer and terminer, and
of gaol delivery, may or can do in the realm of Great Britain.”

We have referred to the short-lived Act of August 27, 1727. This act
was almost a counterpart of the Act of 1722, but was designed to
deprive the supreme court of the power to institute original process.
Its repeal was accomplished by John Moore, the king’s collector of
customs at Philadelphia, who strongly objected to it on the ground
that actions involving the revenue would thenceforth have to be tried
in the county courts. From the statements of Moore and Fitzwilliam,
the surveyor general of the customs, it would appear that in 1724
there arrived at Philadelphia the ship _Fame_ purporting to carry
emigrants from the Palatine, but really containing a cargo of East
India goods from Holland and articles of European manufacture which
the navigation laws required to be imported from England only. Moore
seized the ship but it was forcibly taken out of his possession by a
mob, towed down the river and most of the cargo unloaded. Then, it is
stated, Sir William Keith made a fresh seizure in a collusive action
brought in the county court and the ship was sold for a trifling sum.
Moore acting by advice of Sir Philip Yorke, the attorney-general,
brought actions in the supreme court of Pennsylvania against the
parties concerned, whereupon Keith and his colleagues in the assembly
procured the passage of the Act of 1727 depriving that court of
original jurisdiction. This, said Fitzwilliam, would discourage
prosecutions for breaches of the acts of trade.

“For as the judges of those courts are men but of mean
circumstances and as mean capacities, so are the juries more apt
to be biased in favor of those who transgress the law, the common
people being generally of opinion that those who bring goods from
foreign parts can afford them better pennyworths than others who
import the like commodities from Great Britain where the duties and
customs are high.”

Moore added that the magistrates were “all merchants.”[221] The
proprietors addressed a counter petition to the council in favor of
the act, stating that they were not concerned in the controversy
between Keith and Moore but that the act had been passed after nine
months careful consideration and was not intended to prejudice His
Majesty’s service, that so far as they were informed Moore was the
first person to attempt to introduce the practice of bringing actions
in the supreme court, and that it would prove a great hardship to
the inhabitants living in remote settlements to compel them to
attend court at Philadelphia and that the merchants were frequently
gentlemen of the best fortune and substance as well as probity.[222]
The act was referred to Mr. Fane, who wrote an elaborate opinion in
which he questioned whether original jurisdiction was vested in the
supreme court by the Act of 1722 although there were some words that
pointed that way.

“It is true the judges of the Supreme Court in the case of Mr.
Moore have thought fit to exercise a jurisdiction, but I see
no great conclusion from thence, because courts of law are
ever willing, upon the slightest pretenses, to extend their
jurisdiction.”[223]

The commissioners for trade and plantations reported adversely to the
act and it was accordingly disallowed.[224]

Whatever may have been the intention of the Act of 1722, it
would seem that the supreme court was chary of assuming original
jurisdiction. Chief Justice Tilghman in _Commonwealth_ v.
_Smith_[225] informs us that prior to 1786 the court had, certainly
for a long time, exercised no original jurisdiction except in cases
of fines and common recoveries, which, though actions in form, were
in substance no more than mere conveyances of record.

Two acts amending the Act of 1722 were passed prior to the
Revolution. By the first of these, the Act of September 29, 1759,
the judges of the court of common pleas were appointed to hold the
orphans’ court, a duty which had for some time previously been
assigned to the quarter sessions, and the judges of the latter court
were not to sit in the common pleas, which was to consist of five
persons. No exception was taken to these provisions, which were
approved, but the proprietors strongly objected to another clause in
the act which provided that the judges of the common pleas, as well
as the justices of the supreme court, should hold their commissions
_quam diu se bene gesserint_ and be removable only on the address
of the assembly. The committee of the council were strongly against
this provision, not only as limiting the charter rights of the
proprietors, who were therein permitted to nominate judges without
limitation, but as perpetuating in the seat of justice men of
secondary capacity, except the chief justice. It was further stated
that in the other colonies the judges held _durante bene placita_,
and it was not expedient to make a change in Pennsylvania which
would confer no real benefit upon the inhabitants and “excite a
just jealousy in the other colonies by seeming to extend advantages
to this proprietary government, which have been denied to those
under his majesty’s immediate care.”[226] The act was accordingly
disapproved September 2, 1760.

Another amendment to the Act of 1722 was adopted, by which the
number of supreme judges was increased to four, and the removal of
cases into the supreme court in suits involving less than fifty
pounds, except in cases involving title to land, was prohibited
under penalty, in the case of the plaintiff, of loss of costs and
of the defendant of double costs. It was also provided that appeals
to England should be taken only on demurrer to evidence, bill of
exceptions or writ of error. This act was allowed to become a
law.[227]

It will be noticed that no jurisdiction is conferred upon the courts
in matters of divorce. We have seen that in the Dutch period divorce
was recognized in accordance with the doctrines of the Reformation,
but after the English conquest the subject is hardly recognized as
belonging to the domain of ordinary courts. In an amendment to the
Duke of York’s Laws of 1665 it is provided that in cases of adultery
the proceedings shall be “according to the laws of England which is
by divorce,”[228] but this does not say more than that a divorce
_a mensa et thoro_, or judicial separation, would be recognized
and Chancellor Kent is authority for the statement that during the
colonial period no divorce took place in the colony of New York.[229]
In Pennsylvania the “great law” of 1682 in defining and punishing
adultery provided that the guilty parties should “be liable to a Bill
of Divorcement, if required by the grieved husband or wife” within
a year after conviction.[230] This was reënacted in 1693[231] and
again in 1700[232] with a more severe punishment for the crime. The
last act was repealed by the Crown in 1705 upon the advice of the
attorney general, Sir Edward Northey, who pointed out that “by this
law for adultery a bill of divorce is allowed to the injured husband
and wife, but the divorce is not explained, whether to be _a vinculo
matrimoni_ or only from bed and board, as the ecclesiastical laws
of England allow, which I think ought to be ascertained.”[233] The
defect was remedied by the Act of January 12, 1705-6,[234] which, in
adultery, gave the injured party a divorce from bed and board, to
be granted on bill by the governor or lieutenant-governor for the
time being. This act was allowed to become a law. If the governor
exercised this power it has escaped notice in the minutes of the
council, but among the records of the court of chancery is a bill
filed by a wife against her husband, praying for a writ of _ne exeat_
against the defendant, until he should enter security to answer a
bill for divorce.[235] The writ was allowed but there is no entry
of the final result of the divorce proceeding. It would have been
strange, however, if the practice of obtaining a divorce by act of
parliament, which was the only means by which the marriage bond
could be dissolved in England in the eighteenth century,[236] had
not been imitated in America, and, accordingly, we find a bill
passed February 18, 1769,[237] to dissolve the marriage between
Curtis Grubb and Ann Few, his wife, and to enable him to marry again.
Before approving this bill Governor John Penn sent to the assembly
for the papers and proofs in support of the charges of adultery and
bigamy made against the wife and suggested several amendments to the
act.[238] When the laws of 1769 were submitted to the privy council,
this act was referred by the committee for plantation affairs to Mr.
Jackson, their counsel, who gave it as his opinion that the assembly
had properly exercised a power which he was inclined to think they
ought to be entrusted with, but, as the matter was very important, he
advised that the attorney and solicitor-general be consulted.[239]
The point was so referred but no reply was received and the act
became a law by lapse of time. The same question arose three years
later when a bill was passed to divorce George Keehmle from his wife
Elizabeth, who had been tried, in the supreme court, for adultery
and convicted.[240] This time the committee on plantations advised
that the king should refuse to confirm the act and should give “such
directions as shall have the effect to prevent the laws passed by the
legislature of Pennsylvania, becoming a precedent and example for the
exercise of like powers in other colonies.” The act was accordingly
declared void April 27, 1773,[241] and in the same year a circular
letter sent to the provincial governors commanding them not to give
their assent to any bill “for the divorce of persons joined together
in Holy Marriage.”[242] Prior to this the governor had refused his
consent to a bill “making void the pretended marriage of Rebecca
Vanakin with a certain John Martin.”[243] No more divorce acts were
passed until 1779 when James Martin was divorced from his wife
Elizabeth, who had eloped with Sergeant Havell of the British Army
“taking with her the said James Martin’s effects, and leaving him to
pay sundry debts of her contracting.”[244] From this time the number
of special acts granting divorces increases. Ten were granted prior
to the Act of September 19, 1785,[245] which conferred jurisdiction
in divorce upon the supreme court and authorized absolute divorces
in the cases of impotency at time of contract, bigamy, adultery and
willful and malicious desertion for four years, as well as divorces
from bed and board in other cases, an extremely liberal law for that
day but soon superseded by legislation even more liberal. Private
divorce acts, however, were passed by the legislature until forbidden
by the constitution of 1874.[246]

An examination of the judges’ commissions, in the archives, will
show that the practice, prior to the Revolution, was to issue to the
justices of the peace of each county a joint commission authorizing
three or more of them to hold the quarter sessions, and likewise
assigning any three or more of them to hold the court of common
pleas. Separate commissions were issued to the chief justice and
justices of the supreme court, and a joint commission of oyer and
terminer.[247] In 1717 Governor Keith questioned the propriety of
issuing commissions to the judges in the name of the proprietor
instead of the king, since, even if the charter could be so
construed, the king could not grant away any part of his prerogative
inseparable from the sovereignty. The council replied that the
difficulty arose from not distinguishing fully “between the state
of England and that of new colonies made without the Verge of the
ancient Laws of that kingdom.”

“That these American Lands being new Discoveries of Tracts long
settled by their native inhabitants the indians who were under no
subjection to nor had any knowledge of the laws of England; those
laws, whenever they come to reach these Lands, must by some Regular
method be extended to them, for they cannot be supposed of their
own nature to accompany the people into these Tracts in America,
any more than they would the same persons going into any other
foreign part of the world.”

And further, that the royal prerogative as exercised in England could
“no more be understood to accompany the sovereignty than all the
other laws can.”[248] Keith yielded to the opinion of the council.
After the death of Penn, judicial commissions were issued in the
name of the king and attested by the governor, by authority of the
proprietor, while minor officials were commissioned in the name of
the proprietors alone.[249]

In these commissions the time for which they are to run is not
stated. The commission of the peace seems to have been filled up and
renewed at first yearly, but later at longer intervals of irregular
length, and it was the custom for governors to renew the commissions
at, or soon after, their accession to the government.[250] At these
various renewals it may be presumed that undesirable members were
dropped. The justices of the supreme court also were recommissioned
from time to time, but would seem usually to have held their offices
until death or resignation. The real trouble seems to have been to
persuade men of ability to fill the thankless positions. The assembly
neglected the matter of compensation, and on Penn’s second visit
he seems to have himself promised the chief justice one hundred
pounds a year. In 1706 the salary of the chief justice is said to
have been in arrears, and it was proposed that the assembly should
be asked to make some provision for the judges, as it was unfair to
throw this expense on the proprietor. Roger Mompesson, judge of vice
admiralty, who was appointed to the office soon afterwards, accepted,
“though the present encouragement be but very slender and no way
inviting.”[251] The perquisites of the court were the fees allowed by
the fee bill. Those established by the Act of March 30, 1723,[252]
were four shillings for every _allocatur_ signed, six shillings
for every case brought into court by _certiorari_, taking bail two
shillings, every judgment six shillings, every rule two shillings. As
late as 1772 the salary of the chief justice of the supreme court was
two hundred pounds, and of the associate justices one hundred and
fifty pounds.[253]

In the county courts the justices received trifling fees for various
services, and the expenses of the sitting of the court were paid by
the county.