Chapter II (2)

The Act of January 28, 1777,[254] provided that one justice should
be appointed to preside in the respective courts of common pleas,
quarter sessions and orphans’ court, but the honorary office of
president of the court had existed from the earliest times and was
applied to the first in the commission, or senior justice, the same
person being, in many cases, for a long series of years first in the
commission.[255] The city of Philadelphia, under its charter, had
a criminal court of its own, presided over by the city recorder,
usually a lawyer, assisted by the aldermen. Those of the aldermen who
were in the commission of the peace also sat in the county courts.

By an Act of January 12, 1705,[256] a special court was established
for the trial of negroes, consisting of two judges, specially
commissioned by the governor, in the respective counties, assisted by
six freemen of the county; the purpose being to obtain speedy trials
and summary punishment for negro offenders, whose crimes excited some
alarm in the province. This act was repealed in 1780.

By an Act of May 28, 1715,[257] the justices of the peace were given
jurisdiction to try, and finally determine all suits for debts
and demands under forty shillings, and issue executions on their
judgments, through the constable, by levy on the goods or attachment
of the body of the defendant. The court of the city of Philadelphia
for the collection of small debts was abolished, and it was further
enacted that no court of the province should have jurisdiction of
debts under said amount, but that the act should be the exclusive
remedy. Debts for rents or contracts relating to real estate were
excluded from this jurisdiction. The act was allowed to become a
law, and is the foundation of the present civil jurisdiction of the
justices of the peace as amplified by the Act of March 20, 1810,[258]
and subsequent acts.

Briefly summarized, the administration of justice at the beginning of
the Revolution was vested in the county courts of quarter sessions,
common pleas and orphans’ courts, presided over by justices of the
peace, commissioned by the governor, none of whom, prior to the
Revolution, appears to have been learned in the law. There was a
supreme provincial court consisting at first of five, later of three
and finally of four judges, of whom the chief justice was generally a
lawyer or at least possessed of some legal experience. This court had
a general appellate jurisdiction, and original criminal jurisdiction
in capital cases. The original jurisdiction in civil cases does not
seem to have been well defined but was assumed to exist in cases of
fines and common recoveries. Where a case appealed involved issues
of fact, such issues were tried in the supreme court before a jury.
The court sat twice a year in Philadelphia and went on circuit to the
other counties when required. From this court an appeal could, in
certain cases, be taken to the king in council. There were special
courts, such as that of the corporation of Philadelphia and that for
the trial of negroes, and, finally, the court of vice admiralty under
the Crown.

As for the judges of the respective courts, to mention them all would
be to give a biographical history of the province. Nearly every man
of distinction at that day filled at some time a place on the bench.
It was, in the lower magistracy, the stepping stone to higher office,
and, with the higher officials, part of the burden and duty of
government. It is interesting to note that Benjamin Franklin sat for
a short time in the common pleas, but was wise enough to see that the
position required a special knowledge that he did not possess and was
not sufficiently interested to acquire.[259] Except the recorders of
Philadelphia, few, if any, of the judges of the lower courts had any
legal training, beyond such as they acquired in the exercise of their
office. In the supreme court, David Lloyd, chief justice from 1717 to
1731, had a reputation in his day as an able lawyer, but in history
he is chiefly conspicuous as the spokesman of the anti-proprietary
party in the assembly, and, as we have seen, was actively concerned
in the development of the judicial system of the province.[260] James
Logan, his one-time enemy, who succeeded him in the office, was
the most conspicuous figure in the province in his time, excepting
only Penn himself. He was not a lawyer, but was talented and well
educated, and had sat in the quarter sessions and common pleas of
Philadelphia for years. John Kinsey, who became chief justice in
1743, was a lawyer in extensive practice, and the governor considered
it a matter of congratulation that one of the legal profession had
consented to take the position. At the time when Dallas’s Reports
begin, William Allen presided. He was said to be the richest citizen
in the province and was a son-in-law of the distinguished lawyer,
Andrew Hamilton. Educated in London, he had filled various offices,
including those of mayor, recorder of Philadelphia and judge of
the common pleas, and was also one of the original trustees of the
College of Philadelphia.[261] In 1774 Benjamin Chew, who had studied
law in Hamilton’s office and also in the Middle Temple, was appointed
chief justice. During the Revolution he was displaced, but after
spending fourteen years in retirement was made president of the high
court of errors and appeals in 1791.

In the early days of the settlement there was no public building in
the capital where court could be held, and, as time went on, the
inconvenience of this state of affairs became manifest. In 1705,
the grand jury of Philadelphia County recommended the levy of a
tax to build a courthouse “where the bell now stands.”[262] This
was at Second and Market streets where the town bell, erected on a
mast, gave notice to the citizens of important gatherings. Penn had
intended that the public offices should be placed in Centre square,
but that spot was then far distant from the centre of population.
There was some dispute between the city and county as to the division
of the expense of erecting the proposed building and the matter was
before the council in 1708, when Justices Growdon and Pidgeon stated
that “it is not only scandalous to both town and county, but even
to the whole Govmt. that while every other county has their County
house, Here in the Capital town of the Govmt. the Magistrates are
obliged to hold court in an ale house.”[263] It was finally agreed
that if the county would build some necessary bridges, the town would
build the courthouse. Accordingly a small, quaint two-story structure
was built at Second and Market streets, of which the municipality was
then very proud and which served all the purposes of a town hall.
Here the assembly met until the erection of the statehouse and here
elections were held, while from the balcony the inaugural addresses
of the governors were delivered.[264] Near by were the stocks and
the pillory. Besides the city and county courts, the supreme court
also sat there twice a year. When the statehouse was finished the
supreme court moved to that building. In 1787 the erection of a
new courthouse was commenced at Sixth and Chestnut streets, upon
land devoted to that use by the assembly in 1762,[265] but while
Philadelphia was the capital, the building was used by the Federal
Government. When the capital was removed to Washington the courts
took possession of the building long intended for their use. The old
courthouse was ruthlessly torn down in 1837, an extraordinary act of
vandalism even for those times.

In 1698 a volume was printed in London, entitled, “A historical and
geographical account of the province of Pennsylvania and of the West
New Jersey in America, etc., by Gabriel Thomas who resided there
about fifteen years.” Regarding two of the learned professions he
writes: “Of lawyers and physicians I shall say nothing, because
the country is very peaceable and healthy; long may it continue
so and never have occasion for the tongue of one and the pen of
the other, both equally destructive to men’s estates and lives;
besides, forsooth, they hangman-like, have a license to murder and
make mischief.” Such views, so far, at least, as our profession is
concerned, were not uncommon among the early colonists. Many of
them belonged to persecuted religious sects whose experiences with
the law in their former homes were not such as to inspire pleasant
sentiments toward the courts or their officers. Few were drawn from
that class of society which, through birth or education, could be
expected to feel or display any interest in professional learning,
while those few who might have done so, were enthusiasts, filled
with utopian theories of government, or utilitarians, who regarded
the lawyer as an “unproductive consumer.” Nor was there anything to
tempt an ambitious barrister to desert Westminster Hall for a hut in
the wilderness. The colonists were usually poor, their possessions
half-cleared farms, commerce was controlled by the mother country,
fees were necessarily small, and the only road to professional
distinction and wealth was through crown offices or successful land
speculation. However, since courts without counsel are as Hamlet
without Hamlet, there are evidences that even in the earliest days
there were men willing to undertake the conduct of cases.

The early records of the court of assizes of New York show
unmistakably the activity of certain men who appear in so many cases
that they must have been regarded as regular practitioners.[266] In
the records of the court of New Castle the following minute appears
under date of November 7, 1676:--

“Uppon the Petition of Thomas Spry desiering that hee might bee
admitted to plead some Peoples cases in Court etc. the Worpp^{ll}
Court have granted him License So long as the Petitioner Behaves
himself well and carrys himself answerable thereunto.”[267]

Evidently something must have happened in 1677 to disgust the
governor with the ways of the law, for on May twenty-ninth of that
year the governor and council “resolved and ordered that pleading
atturneys bee no Longer allowed to practice in ye Government but for
ye depending Causes,” which order was read in open court at Upland
and New Castle.[268] Prior to the receipt of this order at New Castle
John Mathews petitioned to be admitted as an attorney. The record
states:--

“The Court did admit the Peticon^r as an attorney and was sworne
accordingly: You doe sware by the Everliving God that you will
according to Lawe truely plead & manadge all cases wherein you
shall bee Imployed by Yo^r Clyant that you will not exact in yo^r
fees above what shall bee allowed by the Governo^r & Court That you
will not in one and the same action take fees both of the Pl^t and
def^t That you will not take any apparent unjust case in hand, but
in all Respects behave yo^{r}selve as all Attorneys are obliged to
by the Lawes of this governm^t.”[269]

Subsequently it was ordered that--

“The Cryer of the Court is to have for every Attorney that shall be
admitted & sworne in Court twelve Gilders or halfe a bever.”[270]

The crier no longer gets a beaver, but there is still a fee to be
paid on admission by those prisoners of hope who have satisfied the
examiners.

It was the dream of Penn that in his colony the laws should be so
plain and the pleadings so simple that every person could plead his
own cause, and it was so provided in his laws agreed upon in England
and embodied in the Act of March 10, 1683. His paternalism, and the
peace-loving tendencies of his more sincere followers, tended to
discourage skilled advocacy. In 1685 and again in 1686 the council
promulgated laws against lawyers’ fees. That of 1686 is as follows:--

“For the a Voyding of to frequent Clamours and manifest
Inconveniences wch usually attend mercenary pleadings in Civill
Causes, It is Enacted by ye authority aforesaid, that noe persons
shall plead in any Civill Causes of another, in any Court
whatsoever within this Province and Territories, before he be
Solemnlye attested in open Court, that he neither directly or
Indirectly hath in any wise taken or received, or will take or
receive to his use or benefit, any reward whatsoever for his
soe pleading, under ye penalty of 5 lb. if the Contrary be made
appear.”[271]

Neither of these acts, however, passed the assembly.

It soon became evident that lawyers could not, or would not,
be dispensed with, and in 1686 David Lloyd was dispatched by
the proprietor to Pennsylvania with a commission to act as
attorney-general of the province. The Acts of 1710 and 1715, for
establishing the courts, had provisions for the admission of
attorneys, as also the Act of May 22, 1722, which finally became a
law, and which provided “that there may be a competent number of
persons of an honest disposition and learned in the law, admitted by
the justices of the said respective courts, to practise as attorneys
there.” In the Act of March 30, 1722-23,[272] for regulating official
fees, the attorney’s oath is prescribed in a form very similar to
that used at the present day: “Thou shalt behave thyself in the
office of attorney, within the court to the best of thy learning and
ability, and with all good fidelity, as well to the court as to the
client. Thou shalt use no falsehood, nor delay any person’s cause for
lucre or malice.”

Even before this a miniature bar had sprung up among those active
in public affairs, among whom were Abraham Mann and John White,
members of the assembly, and Patrick Robinson, clerk of the court,
and afterwards a member of the provincial council. In 1683 John White
was appointed attorney-general to try a case against counterfeiters,
and in 1685 Samuel Hersent was appointed to this office. The two men
who were most active during the earliest period were David Lloyd
and John Moore. The latter, who had emigrated to Pennsylvania from
South Carolina prior to 1696, was appointed advocate of the court of
admiralty by Colonel Quarry, and was afterwards attorney-general.
As the province grew and prospered others came in, and in the early
part of the eighteenth century there was a considerable influx of
educated lawyers. The natural result was greater precision in the
pleadings and closer adherence to English forms and practice. Robert
Assheton, who filled the office of prothonotary from 1701 to 1727, as
well as that of associate justice of the supreme court, was a trained
lawyer; from his time the indictments were scientifically prepared,
and in fact all the clerical work of the court offices improved.
Nevertheless, the bar must have been a small and select body, since
there are recorded accusations of attempts to monopolize it. In
1708[273] a petition was read in the council from one James Heaton--

“representing that he had been sued in an Action of Trover and
Conversion, in the County of Bucks, by J. Growdon, yt he had
procured a writt of Error, by which the cause is to be brought
before the Provincial Judges, in the said County, the 14th of this
Instant; that in the meantime the said Jos. Growdon arrested him
in Philadia. on the same account in an Action to which he must
answer at the County Court in Philadia., on the 15th Instant, wch.
two several Courts coming so near together layes the Petitr. under
great hardships; he also represents that his antagonist himself is
Judge of the Provincial Court, and further that he has retained
all the Lawyers in the County (that have leave to plead,) against
him; Whereupon he prays that the Govr. would be pleased to appoint
an Impartial Judge to hear his cause, and would either assign him
Counsel, or so ascertain the Provincial Court, that if he be at the
Charge of procuring some from New York, he may not be disappointed.

“Upon wch. Jos. Growdon himself being present, answered that his
action in Bucks, and that in this County, are different; that he
never retained more than one Counsell, viz: John Moore, in this
cause, but that he not being able to attend, procured another to
act for him; by which means without any design of his, two became
Concerned in it, that it being impracticable that a man should
Judge in his own cause: that part of the Petition was altogether
needless.”

It was resolved that the petitioner be left to find his own counsel,
and Yeates, the second judge, was assigned to hear the case.

In the following year Francis Daniel Pastorius and Johannes Jawert
petitioned the council against proceedings in ejectment brought by
one Sprogel to recover the estates of the Frankfort Company, an
association of German purchasers of land, averring that Sprogel as
part of his “abominable plot did fee all the known attorneys or
lawyers of this province either to speak for him or to be silent
in court, in order to deprive the petitioners of all advice in
law.”[274] Upon examining the petitioners in the council David Lloyd
was declared “the principal agent and contriver of the whole,” and
steps were taken to protect the purchasers. The case is reported in
Pennypacker’s Colonial Cases with an account by Pastorius of the
whole curious transaction.[275]

In _Lyle_ v. _Richards_[276] Chief Justice Tilghman remarks that
there were few lawyers of eminence in the province prior to Tench
Francis, although there were never wanting strong minds well
able to conduct the business of the courts, and the fact that
the leading lawyers of the following generation received their
training in the Inns of Court led them perhaps to look down on their
predecessors, some of whom were in extensive practice that included
the neighboring colonies. Disparaging remarks by contemporaries are
not infrequent. Secretary Richard Peters, writing in 1749 to the
proprietors says of the bar in general: “All of whom except Francis
and Moland are persons of no knowledge, and, I had almost said, of
no principle.”[277] One name, however, stands at the head of the
early bar, that of the brilliant Andrew Hamilton. The history of
Hamilton is worth noting, as he is the only American lawyer of
his generation that enjoyed an international reputation. A native
of Scotland, he first taught school and then practiced law in
Maryland, from whence he removed to Philadelphia, about 1715, having
been retained to represent the proprietary interests. In 1717 he
became attorney-general and was active in the litigation over the
Maryland boundary. He also appeared in the high court of chancery
for the young proprietors, in the contest over Penn’s will,[278]
having been called to the English bar in 1712. The most interesting
personal episode in his career was the part he took in the erection
of Independence Hall, which was built from plans prepared by him
and under his personal supervision. To the legal profession he is
best known for his brilliant and successful defense of the printer,
Peter Zenger, tried for seditious libel, a case of real historical
importance as well as contemporary interest. In this case, tried in
the supreme court of New York in 1735, Hamilton, after the court had
refused his offer to prove the truth of the statements alleged to
be libelous, carried the jury against the instructions of the court
and obtained the defendant’s acquittal by a bold address in which
the liberty of the press was asserted with unprecedented vigor.
The doctrines which he advanced, regarded as unsound at the time,
have since become indelibly impressed upon English and American
law, and the trial deserves careful reading on account of the light
that it throws on contemporary political conditions and the effect
that it had on the law of libel.[279] On the other hand, the part
played by Hamilton in the suppression of the court of chancery
shows a willingness to sacrifice the science of jurisprudence to
the exigencies of politics, characteristic of his time, but not in
keeping with the best professional traditions. Tench Francis, the
next bar leader of distinction, enjoyed a greater reputation with his
successors in the post-Revolutionary period, and is praised by those
whose learning entitled them to speak with authority.[280]

As the century advanced it became the general custom, for those
who could afford it, to send their sons to be educated in the law
at the Inns of Court. This was more prevalent in the Southern and
Middle than in the New England colonies. From 1760 to the end of the
Revolution there were more than one hundred American students of law
in London, of whom forty-seven were from South Carolina, twenty-one
from Virginia, sixteen from Maryland, eleven from Pennsylvania,
five from New York and the rest from the other colonies, no other
colony than those named having more than two students.[281] Many
of these men attained great distinction in professional and public
life. Among those from Pennsylvania were Chief Justices Benjamin
Chew, Thomas McKean, Edward Shippen and William Tilghman; Justice
Jasper Yeates; Presidents of the Supreme Executive Council, Joseph
Reed and John Dickinson; as well as such distinguished lawyers and
citizens as Nicholas Waln, Edward and Richard Tilghman, William
Rawle, Jared Ingersoll and Peter Markoe. It is not to be supposed
that the education afforded by the Inns of Court corresponded to
that given in a modern law school. Everything depended on the
diligence of the student himself, and admission as a barrister came
in due course after eating the required number of dinners regularly
during the appointed terms. But the atmosphere and associations
were conducive to study, while inspiration was to be drawn from the
courts at Westminster, where the student attended and took notes
of the arguments and decisions. Such notebooks were, in those days
of scanty reporting, the treasured possessions of lawyer and judge
and carefully consulted in the preparation of important arguments
and decisions. In _Clayton_ v. _Clayton_,[282] the manuscript
notes of one of these students were cited in the supreme court of
Pennsylvania. The case was one involving the question as to whether
certain devisees under a will took an estate in fee or for life,
there being no words of inheritance, but a direction to divide.
Mansfield’s decision in _Wigfall_ v. _Brydon_,[283] was cited in
favor of a fee. It being difficult to reconcile this decision with
other authorities, the case was explained as turning on a direction
to sell and divide, which appeared from the manuscript notes of the
case of _Goodright_ v. _Patch_, decided in the King’s Bench, June
20, 1773, taken by Edward Tilghman while a student at law. So, too,
in the political capital of the kingdom, the student studied the
conflicting doctrines of the Tory and the Whig and prepared his mind
for the momentous changes about to occur in his home across the sea.

Those who could not go abroad for a legal education served a
clerkship in the office of a practitioner in the courts. Just what
were the qualifications for admission do not seem to be recorded. At
the earliest period sufficient assurance seems to have been all that
was required, but, as the legal fraternity became better organized,
it may be presumed that the courts gave more consideration to the
fitness of applicants. In 1759 the supreme court made an order--

“That for the future no persons be admitted attorneys or council
of this court without being previously examined as to their
qualifications to practice, nor without having taken the oaths or
affirmations of allegiance to his Majesty and subscribed the usual
Declaration.”[284]

At September term, 1760, Mr. Chew and Mr. Ross were appointed to
examine an applicant and at April term, 1761, Francis Hopkinson was
examined by Mr. Ross and Mr. Dickinson. Later admissions do not
recite an examination, and, perhaps, this duty was delegated to the
local bar, but the fact that there are no common pleas dockets for
Philadelphia County on file prior to the Revolution renders the
subject obscure. From the few minute books of the Philadelphia common
pleas that have escaped destruction we find that by 1790 it was the
established practice for a member of the bar to move in open court
for the admission of the candidate. The court would then appoint
a special committee of three members of the bar to conduct the
examination, and, if the result was favorable to the applicant, he
was admitted and sworn.[285]

Prior to the Revolution the path of the law student was made easier
by the publication of Blackstone’s Commentaries, a work that was
said by Edmund Burke to have had a larger sale in America than in
England, a statement that would seem to be justified, for hardly had
the first complete edition appeared in England before an American
edition was printed at Philadelphia (1771) of which about fourteen
hundred copies were subscribed for in advance, and this although
one thousand copies of the English edition had been imported and
sold in America.[286] The subscription list to the local edition
is headed by seven colonial governors and lieutenant-governors,
including Richard Penn of Pennsylvania and William Franklin of
New Jersey. The alphabetical list, headed by “John Adams, Esq.,
Barrister at Law, Boston,” includes many distinguished names, while
of the local subscribers, many were from the interior parts of the
state; John Creigh, bookseller of Carlisle, alone subscribing for
forty-five sets. It is hardly possible to overestimate Blackstone’s
influence upon American private law. His Commentaries became at once
the _vade mecum_ of the lay judge and the pioneer lawyer, in regions
where libraries were unknown. The work in fact long stood for the
common law itself in many communities, but it may be questioned
whether the Commentaries were not, for a period, detrimental to
legal scholarship, whether their flowing sentences did not carry the
superficial student too easily over the submerged rocks of the common
law, whether learned jurists have not wasted time in the discussion
and criticism of Blackstone’s theories and errors that might have
been better spent in a reexamination of his sources.

As the Revolution approaches we find an able group leading the bar,
Moland, Chew, Ross, Waln, Tilghman, Galloway and Dickinson. Time
was no object to the courts in those peaceful and slumberous days.
In a manuscript book of reports giving some cases of that time
the reporter says, in noting _Haldane_ v. _Duffield_, April Term,
1768, “The remainder of Mr. Chew’s argument I did not hear nor did
I wait Mr. Dickinson’s and Mr. Tilghman’s conclusion, this case
having continued twelve hours.”[287] In 1774 Chew succeeded Allen
as chief justice,[288] and in September of that year hospitably
entertained the members of the Continental Congress then assembled in
Philadelphia. Washington and John Adams both mention dining with him
on the twenty-second of that month. Adams writes in his diary:--

“Dined with Mr. Chew Chief Justice of the Province with all the
gentlemen from Virginia, Dr. Shippen, Mr. Tilghman and many
others. We were shown into a grand entry and staircase and into
an elegant and magnificent chamber until dinner. About 4 o’clock
we were called down to dinner. The furniture was all rich. Turtle
and every other thing, flummery, jellies, sweetmeats, of 20 sorts,
trifles, whipped sillabubs, floating islands, fools, &ct., and then
a dessert of fruits, raisins, almonds, pears, peaches. Wines most
excellent and admirable. I drank Madeira at a great rate, & found
no inconvenience in it.”[289]

The stately mansion of the chief justice yet stands, the fine old
colonial hospitality a treasured memory. The smoke and dust of
fratricidal war darkened it, its walls were battered with shot and
its floor stained with blood; bench and bar were scattered, some
to attain distinction in the camps and councils of the new nation,
others to live obscurely through weary years of suspicion or to fly
from the country of their birth as attainted traitors, their lands
forfeited and their names soon forgotten.

FOOTNOTES:

[171] II Statutes at Large, 461.

[172] II Statutes at Large, 148; Charter and Laws of Pennsylvania,
311.

[173] II Statutes at Large, 456, 482.

[174] II Colonial Records, 185, 19, 11 mo. 1704. Penn & Logan
Correspondence, Memoirs of Historical Society of Pennsylvania, Vol.
X, 5. Lloyd attempted to regulate the practice in ejectment in
his bill of 1706 which was rejected by the governor. His idea was
to require a real lease, entry and ouster and to do away with the
fictitious proceeding--“A new practice, allowed only in Westminster
Hall.” II Colonial Records, 354, February 24, 1706-7.

[175] II Colonial Records, 261, September 19, 1706.

[176] II Colonial Records, 271, 14, 9 mo. 1706. In a speech the
governor refers to it as “the longest perhaps that ever was drawn up
in America.” II Colonial Records, 313.

[177] Penn & Logan Correspondence, Memoirs of Historical Society of
Pennsylvania, Vol. X, 180.

[178] II Colonial Records, 268, 3, 8 mo. 1706.

[179] II Colonial Records, 263, 23, 7 mo. 1706; 266, 25, 7 mo. 1706;
276, 27, 9 mo. 1706.

[180] II Colonial Records, 272, 16, 9 mo. 1706.

[181] II Colonial Records, 298, 23, 10 mo. 1706.

[182] II Colonial Records, 304, January 15, 1706-7.

[183] II Colonial Records, 326, February 6, 1706-7.

[184] II Statutes at Large, 500; Charter and Laws of Pennsylvania,
319; II Colonial Records, 349, February 21, 1706-7.

[185] In the list of acts before the Commissioners of Trade in
1694 is one purporting to be entitled, “Law about appeals to the
Supream Court,” but if this is the Act of 1693 it should have been
Provincial Court. Board of Trade Journals, Mss. Historical Society of
Pennsylvania, Vol. VII, 309.

[186] II Colonial Records, 362, March 4, 1707.

[187] February 28, 1710-11, II Statutes at Large, 301; II Colonial
Records, 552, February 28, 1710-11.

[188] II Colonial Records, 549, February 10, 1710-11.

[189] II Statutes at Large, 331. Twenty shillings was the sum which
Governor Evans considered “too small for any person duly qualified to
accept of.” II Colonial Records, 273, 16, 9 mo. 1706.

[190] II Statutes at Large, 548; I Pennsylvania Archives (1st
Series), 157.

[191] II Statutes at Large, 554; III Statutes at Large, 441, 467. On
the other hand, Penn complained of the expense to which he was put in
endeavoring to have the acts approved by the crown officers.

[192] III Statutes at Large, 32, 440, 466.

[193] Charter and Laws of Pennsylvania, 395; I Pennsylvania Archives
(1st Series), 196.

[194] II Pennsylvania Archives (1st Series), 107, see also, VIII New
Jersey Archives (1st Series) 190. For appeals in other colonies,
see _Winthrop_ v. _Lechmere_, 1 Thayer’s Cases on Constitutional
Law, 34; VII Connecticut Colonial Records, 571 (1727); _Frost_ v.
_Leighton_ (Mass. 1738), II American Historical Review, 229; _Perry_
v. _Randolph_, Barradal’s Reports, 2 Virginia Colonial Decisions, 22
(1726). In the introduction to Volume II of Acts of the Privy Council
of England, Colonial Series (1910), will be found an interesting
account of the practice of the council on appeal, while in the text
are numerous examples of appeals from the West India Islands as well
as from the colonies on the American Continent between 1680 and 1720.

[195] III Colonial Records, 30, May 8, 1718.

[196] 1 Dallas’s Reports, 6 (1763).

[197] April Term, 1763, Docket No. 3, page 450.

[198] April Term, 1763, Docket No. 3, page 448.

[199] April Term, 1765, Docket No. 4, page 93.

[200] September Term, 1765, Docket No. 4, pages 120, 181.

[201] _Swift_ v. _Hawkins, Lightfoot and Jones_, Docket No. 4, page
591.

[202] Finlason’s History of the Judicial Committee of the Privy
Council, 39; V Pennsylvania Archives (2d Series), 436, 658. While
there was a standing committee for hearing appeals, these petitions
seem to have been frequently referred to special committees. The
present judicial committee dates from the Act of 3 & 4 William IV,
chapter 41.

[203] Mansfield’s speech on the Stamp Act, reprinted in Library of
Original Sources, Vol. VII, 84.

[204] II Colonial Records, 38, 17, 3 mo. 1703.

[205] Shepherd’s Proprietary Government in Pennsylvania, chapter VII,
351.

[206] III Statutes at Large, 199; III Colonial Records, 63.

[207] III Statutes at Large, 427.

[208] IV Statutes at Large, 337, 483.

[209] March 21, 1772, VIII Statutes at Large, 239.

[210] See III Colonial Records, 35, June 15, 1718.

[211] IV Colonial Records, 276, Feb. 3, 1737-8. A full report of this
affair will be found in the Pennsylvania Gazette, February 7, 1737-8.
It appears that the parties concerned were not Free Masons, but
practical jokers.

[212] III Colonial Records, 274, October 4, 1726.

[213] As early as 1685 an ecclesiastical offender was offered
an opportunity to emigrate to the new colony, as appears by the
Privy Council minutes: “Whereas it has been this day represented
to his majesty that Christopher Sibthorpe, brazier, is a prisoner
in Woodstreet compter upon a capias on the Writt de excomunicato
capiendo, his majesty was pleased to order the sheriffs of the
city of London (taking good security that the said Christopher do
forthwith transport himself and family to Pennsylvania in America and
paying the charges of the court) sett him at liberty in order to his
sayd voyage.” Acts of the Privy Council of England, Colonial Series
(1910), Vol. II, p. 79, § 176. The exile was an active Friend.

[214] The Forum, Vol. I, 231. It is a matter of some doubt as to
whether the ducking-stool ever was actually used in Philadelphia.
In 1769 a woman was sentenced to be ducked at the end of Market
street wharf, but we are not informed whether the sentence was
carried into execution. In 1779 Ann Mease was sentenced to the same
punishment but the council remitted the ducking January 26, 1780.
XII Colonial Records, 235. In 1781 there was another conviction but
the sentence was not carried out. In 1824 the supreme court held
that the ducking-stool was not the punishment for a common scold in
Pennsylvania. _James_ v. _Commonwealth_, 12 Sergeant & Rawle, 221
(1824). The Act of March 10, 1683, reënacted in 1693, provided that
a scold should stand one hour in a public place with a gag in the
mouth. Charter and Laws of Pennsylvania, 144, 198. This was supplied
by the Act of November 27, 1700, II Statutes at Large, 85, which
provided that the gagged person should stand in some public place at
the discretion of the magistrate. The act was repealed in council
because it was not stated how long the person should stand gagged and
the penalty was too great. II Statutes at Large, 466.

[215] Quotations from Mss. Docket, given in Appendix to Vol. I of
David Paul Brown’s Forum, 573.

[216] Such executions were not unusual in England. Sidney refers to
a number, mentioned in the newspapers, including two in 1735, one in
1737, two in 1739 and one as late as 1789. Sidney’s England in the
Eighteenth Century, Vol. II, 299.

[217] III Statutes at Large, 298.

[218] III Statutes at Large, 488.

[219] IV Statutes at Large, 84.

[220] November 27, 1731, IV Statutes at Large, 229.

[221] IV Statutes at Large, 425, 430.

[222] IV Statutes at Large, 431.

[223] IV Statutes at Large, 443.

[224] IV Statutes at Large, 421, 449; III Colonial Records, 446,
November 23, 1731. The assembly stated that the aspersions on the
inferior courts were false and scandalous. Votes of Assembly, Vol.
III, 168, 169.

[225] 4 Binney’s Reports, 117 (1811).

[226] V Statutes at Large, 462, 722.

[227] May 20, 1767, VII Statutes at Large, 107.

[228] Charter and Laws of Pennsylvania, 63.

[229] Kent’s Commentaries, Vol. II, 97.

[230] Charter and Laws of Pennsylvania, 109.

[231] Charter and Laws of Pennsylvania, 194.

[232] Act of November 27, 1700, II Statutes at Large, 5.

[233] II Statutes at Large, 490.

[234] II Statutes at Large, 180. By another act, of the same date, a
divorce from bed and board was allowed to the first husband or wife
of a bigamist. II Statutes at Large, 181.

[235] Rawle’s Equity in Pennsylvania, Appendix, 25.

[236] “As a matter of fact, for the century and a half during which
the practice prevailed perhaps not more than two hundred such
separations were granted.” Howard, Matrimonial Institutions, Vol. II,
106.

[237] VII Statutes at Large, 263.

[238] IX Colonial Records, 564, 566, 567, 580.

[239] VII Statutes at Large, 626.

[240] VIII Statutes at Large, 243.

[241] VIII Statutes at Large, 597, 600; Votes of Assembly of
Pennsylvania, Vol. VI, 485, 488; X Colonial Records, 104.

[242] November 24, 1773, O’Callahan’s Documents relative to the
Colonial History of New York, Vol. VIII, 402; New Jersey Archives,
Vol. X, 411, 412.

[243] X Colonial Records, 40, 53, 54.

[244] IX Statutes at Large, 433.

[245] XII Statutes at Large, 94.

[246] Eighteen private acts were passed in 1873. For the present law
see the Act of March 13, 1815, 6 Smith’s Laws of Pennsylvania, 286;
Pepper & Lewis’s Digest of Decisions, Vol. V, col. 7075; Stewart’s
Purdon’s Digest, Vol. I, 1230.

[247] See examples in VIII Pennsylvania Archives (3d Series), 23.

[248] III Colonial Records, 23, February 14, 1717.

[249] Charter and Laws of Pennsylvania, 382, 385; VIII and IX
Pennsylvania Archives (3d Series), _passim_.

[250] So, also, on the accession of a new sovereign, III Colonial
Records, 298, September 1, 1727. Chronological lists of the judges of
the supreme court and of the court of common pleas and the orphans’
court of Philadelphia County will be found in John H. Martin’s Bench
& Bar of Philadelphia (1883). Another list, slightly different, will
be found in IX Pennsylvania Archives (2d Series), 629.

[251] II Colonial Records, 247, April 17, 1706.

[252] III Statutes at Large, 369; same in Act of August 22, 1752; V
Statutes at Large, 161.

[253] X Colonial Records, 53, September 19, 1772.

[254] IX Statutes at Large, 29.

[255] Justice Moll is described as “president of the court at New
Castle.” Records of Court at New Castle, 496; see, also, I Colonial
Records, 18, 23, 3 mo. 1683.

[256] II Statutes at Large, 233.

[257] III Statutes at Large, 63.

[258] P. L. 208.

[259] Benjamin Franklin’s Autobiography, chapter ix. A bill of
exceptions signed by Franklin with the other judges of the common
pleas is printed in Appendix B, Vol. I, of the Forum, by David Paul
Brown.

[260] David Lloyd was born in 1656 in Montgomery County, North Wales,
and was appointed attorney-general by Penn in 1686. At the time of
his death in 1731 he resided at Chester. He left no descendants.

[261] It is said that Chief Justice Allen refused to issue Writs
of Assistance to the customs officers at the time of the memorable
agitation on that subject. Quincy’s Reports (Mass.), 509.

[262] Watson’s Annals of Philadelphia (1850), Vol. I, 350; Sharp &
Westcott’s History of Philadelphia, Vol. II, 857, Vol. III, page 1819.

[263] II Colonial Records, 425, April 5, 1708. The building was
finished in 1710.

[264] The Pennsylvania Gazette of December 14, 1769, states that
Governor John Penn’s commission was read from the Court House in the
presence of a concourse of people. An election riot took place on the
staircase leading to the balcony in 1742.

[265] Act of February 12, 1762; VI Statutes at Large, 177.

[266] There are attorneys mentioned in the Records of the Court
of New Amsterdam, Vol. I, 190. Peter Alrichs, writing to Governor
Stuyvesant March 30, 1658, says: “I have also to pay the attorney
Schelluyn for salary earned by him in a suit against Dirck
Cornelissen Heunich.” VII Pennsylvania Archives (2d Series), 528.

[267] Records of the Court of New Castle, 9. Spry was also a doctor.
In the same year he got into trouble by assaulting Captain Collier
with a cane while “overcome w^{th} drinke” and was fined two hundred
guilders by the court. Records of Court of New Castle, 103.

[268] Hazard’s Annals of Pennsylvania, 438; Records of the Court of
New Castle, 111; Records of Court at Upland, 82.

[269] Records of the Court of New Castle, 83.

[270] Records of the Court of New Castle, 101.

[271] Charter and Laws, 507; I Colonial Records 123, 2, 2 mo. 1686.
This was not a new idea, as Massachusetts in 1641 and Virginia in
1645 had attempted by legislation to prevent attorneys from pleading
for remuneration. Baldwin on Constitutional Law in Two Centuries’
Growth of American Law, 14; see also, II Connecticut Colonial
Records, 59.

[272] III Statutes at Large, 379.

[273] II Colonial Records, 423, April 2, 1708.

[274] II Colonial Records, 447, March 1, 1708-9.

[275] _Heather_ v. _Frankfort Co._, Pennypacker’s Colonial Cases,
142; II Colonial Records, 447, March 1, 1708-9. That the “cornering”
of the bar was not a new experiment would appear from an incident
mentioned by Barrington in his “Observations on the Statutes,” page
294n. “There is also ---- a petition of Robert Pickerell, exhibited
to the king in parliament the second year of Richard the Second; by
which he complains that Alice Perrers had retained all the advocates
in Westminster Hall, so that he could have no advice; ‘si il ne
donneroit si grande summe d’or, quil ne poit attainder.’”

[276] 9 Sergeant & Rawle’s Reports, 322 (1823).

[277] Watson’s Annals of Philadelphia (1850), Vol. I, 316.

[278] VII Pennsylvania Archives (2d Series), 94. See sketch of his
life in Vol. I, Lewis’s Great American Lawyers (1907), 1.

[279] Howell’s State Trials, Vol. 17, 575. In Pennsylvania the
quarter sessions of Philadelphia had in 1692 allowed the question
of the seditious character of a publication to go to the jury.
_Proprietor_ v. _Bradford_, Pennypacker’s Colonial Cases, 117.

[280] It is a curious fact that a number of the bar leaders came from
Maryland to Pennsylvania--Andrew Hamilton, Tench Francis, Benjamin
Chew and the Tilghmans.

[281] Life and Times of John Dickinson, 28.

[282] 3 Binney’s Reports, 476 (1811).

[283] 3 Burrough’s Reports, 1895 (1766).

[284] April Term, 1759, Supreme Court Docket No. 3, page 83.

[285] Minute Book, Court of Common Pleas, Philadelphia County, March
Term, 1790.

[286] Hammond’s Blackstone’s Commentaries, Preface, page viii.

[287] Keith’s Provincial Councillors, 328.

[288] X Pennsylvania Colonial Records, 173, April 29, 1774.

[289] Keith’s Provincial Councillors, 329.