THE EARLY COURTS
OF
PENNSYLVANIA
BY
WILLIAM H. LOYD
OF THE PHILADELPHIA BAR; GOWEN FELLOW IN THE LAW
SCHOOL OF THE UNIVERSITY OF PENNSYLVANIA
BOSTON
THE BOSTON BOOK
1910
COPYRIGHT, 1910
BY THE UNIVERSITY OF PENNSYLVANIA
_The Riverdale Press, Brookline, Boston, Mass._
UNIVERSITY OF PENNSYLVANIA LAW SCHOOL SERIES
NUMBER 2
Each volume in this series has been made a publication of the School of
Law of the University of Pennsylvania, by a vote of the Law Faculty.
The authors are connected with the school as members of the teaching
force, fellows, or graduate students.
The object of the University is to promote the scientific study
of legal problems--historical and practical, and to assist in the
improvement of the law.
“_Yes, you have shown us a representation of freedom. True. But you are
content with it in a world that moves by computation some considerable
sum upward of sixty thousand miles an hour._”
DR. JULIUS VON KARSTEG TO HARRY RICHMOND
PREFACE.
This account of the early courts of Pennsylvania is the outcome of some
lectures delivered as an auxiliary course in the Law School of the
University of Pennsylvania. Their purpose was to describe briefly the
establishment and development of the courts in the colonial period.
That our ancestors should have expressed such profound admiration for
the common law while deviating so widely from it in practice, must have
puzzled many who have not learned to put a true value upon the flights
of forensic oratory. History alone supplies the key, and colonial
legal history has not received the attention it deserves. The absence
of reports, the destruction of many records and the inaccessibility
of those that have been preserved, have all contributed to discourage
work in a field usually abandoned to the antiquarian. But as American
law increases in importance, the story of its obscure beginnings will
require careful consideration.
The earliest emigrants, caring little for the common law except those
principles associated with Magna Charta, stamped their peculiar notions
upon our jurisprudence in a way that the second and more conservative
generation of colonists was unable to eradicate. The Revolution, and
the constitutional development that followed, concentrated attention
on public rather than on private law, which in many of the States has
been allowed to develop haphazard, along the lines of least resistance.
Before it will be possible to classify and discuss American colonial
law in a thorough and scientific manner, much preliminary work must be
done in local fields, and, from material so collected, there may be
derived finally a rational account of our legal institutions.
It is in this spirit that the following study has been prepared. The
original lectures were undertaken, at the suggestion of Dr. William
Draper Lewis, Dean of the Law School, and material sought in the
records without, at first, a sufficient realization of their lack
of coherence. It was found that while some special topics had been
carefully discussed, and while others were treated incidentally,
in works having a different object in view, there was no concise
statement of the origin and growth of the courts and their
jurisdiction based directly on the statutes and archives of the
commonwealth. Such a narrative, it was thought, might prove useful to
those who have not found time to become acquainted with the scattered
literature of the period described. The treatment is not exhaustive;
that would be impossible in a volume of this size, but it is believed
that the information contained will be found accurate, as it is based
on a careful examination of the public records. While the labor
involved was greater than anticipated, the result by no means does
justice to a deeply interesting topic.
WILLIAM H. LOYD.
BIDDLE LAW LIBRARY, May 10, 1910.
NOTE.
The work cited as Charter and Laws of Pennsylvania contains the Duke
of York’s Laws and the Acts of Assembly prior to 1700. The Statutes
at Large of Pennsylvania, as published to date, begin at 1700 with
Volume II and end at 1793 with Volume XIV. Compilations of the laws
of the State by Dallas and Smith are also cited for acts in the last
years of the eighteenth and early years of the nineteenth centuries.
The regular series of Acts of Assembly which begin with 1800 are
cited, according to local custom, as pamphlet laws abbreviated “P. L.”
The records of the court at Upland were published by the Historical
Society of Pennsylvania in 1860; the records of the court at New
Castle by the Colonial Society of Pennsylvania in 1904. This society
is about to publish the records of the courts of Chester County which,
unfortunately, are not yet available for reference. For the convenience
of the general reader, illustrations have been taken from published
records, when practicable, rather than from manuscript sources. The
dates are given just as they appear in the records without accounting
for the discrepancies due to the reform of the calendar in 1752.
CONTENTS.
CHAPTER I.
The Courts in the Seventeenth Century 1
CHAPTER II.
The Courts in the Eighteenth Century Prior to
the Revolution 74
CHAPTER III.
The Courts from the Revolution to the Revision
of the Civil Code 122
CHAPTER IV.
Equity in Pennsylvania 159
CHAPTER V.
The Register’s Court and the Orphans’ Court 212
CHAPTER VI.
The Laying Out and Opening of Roads by Viewers 241
THE EARLY COURTS
OF
PENNSYLVANIA.
CHAPTER I.
For more than two hundred years the courts of province and state have
administered justice to the inhabitants of Pennsylvania. Created under
the peculiar conditions surrounding the foundation of the colony,
subjected to numerous legislative experiments, their organization and
practice present many peculiarities that can only be understood by a
reference to their history. This history has been sadly neglected owing
partly to the paucity of material, and partly to lack of interest. The
founders were more bent on developing the resources and organizing
the administration of the great territory that had come under their
control, than on preserving the records of their proceedings for the
benefit of posterity, while their immediate descendants, living in
an uncritical age and possessed with a passion for rhetoric to the
exclusion of history, carelessly permitted the records of the preceding
generation to be scattered or ruthlessly destroyed. Documents that
would now be regarded as precious memorials of the past, and that would
throw valuable light on our early institutions, were used to feed the
fires in the old courthouse.[1] Fortunately, sufficient fragments have
escaped and found their way into the collections of individuals and
societies to enable us, with the aid of the state archives, to present,
if not a picture, at least a sketch of the judicial organization and
procedure in a period which the rapidity of our national development
has made more remote in thought than in time.
As the first organized settlements in the territory now included in
the state of Pennsylvania were those of the Swedes and the Dutch, so
the first courts of justice were established under their auspices.
To give a complete account of their administration would involve a
tedious narrative of the political vicissitudes of these unsuccessful
colonies, which never developed to the point of establishing lasting
institutions. In fact, throughout their stormy history the judicial and
executive functions of the various governors and local officials are
scarcely distinguishable.
The first Swedish settlement was hardly more than a trading post, and,
if a court in the proper sense of that word existed, it must have been
established by the governor, John Printz, who arrived at the colony on
the Delaware in 1643 with instructions to “decide all controversies
according to the laws, customs and usages of Sweden” and in all other
things to “adopt and follow all the laudable manners, customs and
usages of the kingdom of Sweden,” the crown of which was then worn by
Christina, the daughter of the great Gustavus Adolphus.
Printz established the seat of government on the island of Tinicum,
but he must have found his duties onerous, for he wrote several times
to obtain the services of a learned and able man to administer justice
and attend to the law business.[2] The territory, however, passed into
the possession of the Dutch West India Company, and Swedish law ceased
to be a factor in the development of Pennsylvania, although the Swedes
were permitted to retain their own magistrates, under the supervision
of the officials of their conquerors.[3]
In 1655, a vice directorship of the “South River” was created, and Jean
Paul Jacquet, a former agent of the company in Brazil, was appointed
to the office.[4] Andries Hudde, who had for some years managed the
earlier Dutch settlement on the Delaware, was named as secretary, a
commissary was appointed, and these, with two others, formed a council
for general administration, as well as a court for the trial of civil
and criminal cases, with right of appeal in all important matters to
the director and council in New Amsterdam. The minutes of this court
from December, 1655, to March, 1657, have been preserved, and afford
some interesting information upon the methods and procedure of the
Dutch justices, as well as the social condition of the colonists.[5]
Actions for the recovery of small debts are most frequent on the civil
side, while on the criminal side, complaints for minor breaches of the
peace are the principal matters disposed of. The striking features
of these trials are the mild and paternal attitude of the court, the
efforts made to obtain amicable adjustments of disputes, the merciful
treatment of offenders, and the leniency to unfortunate debtors.
* * * * *
The following case, taken from the minutes of the court, July 7, 1656,
is interesting as an early attempt to apply the principles of set-off:--
"Jan Flaman appears before the council against the wife of Tobias
Willeborgh, and demands payment for a shirt lost by her, the
defendant, and for passage from the manhattans hither, viz.
for the shirt 14
for her passage & freight 16
--
30
The defendant says, that she lost on the voyage, being wrecked with
the bark, a chest containing four shirts, one coat of red duffel, one
underwaist coat, and a powder horn with copper mountings, valued by
her, the defendant at fl 28.
Paid to plaintiff in money fl 4
From above fl 28
--
32
The defendant is told that the freight shall be set off against her
lost goods; in regard to the shirt, she is ordered to pay plaintiff
four guilders 15 stivers.”[6]
A case heard on August 2, 1656, gives new and interesting grounds for a
continuance:--
“Before the council appeared Jacob Crabbe against Robert Martyn
and complained that he Robert Martyn had shot and killed his,
the plaintiff’s pig. Defendant answers that fourteen days ago he
entreated the plaintiff to pen up his hogs as the same did great
damage to his corn. Plaintiff upon being asked what he wanted,
answers, ‘Payment for his pig.’ It was proposed to the parties,
that plaintiff shall take the pig, as it is still living, but
that if it should die, each one shall keep his action in the law
unprejudiced.”[7]
Perhaps it may not be considered out of place to refer to a case tried
September 13, 1655, in New Amsterdam as illustrating the pleasant side
of judicial office in Knickerbocker days:--
“Jan Hackius Plf. v/s Jacob van Couwenhoven Deft. The Plf. demands
paymands of 1150 fl. on account of a promissory note, dated July 1,
1655, payable in beer and distilled liquors. Deft. says his beer is
ready. Plf. denies, that the beer is ready, and enquires if it be
allowable to mix strong with small beer, and says the beer is not fit
to be removed. Couwenhoven denies the same, and requests the Court
to be pleased to test the same after adjournment of the session and
then decide. Parties being heard, Jacob van Couwenhoven was ordered
to pay Plf. the residue according to contract and obligation; And
the beer having been tested after adjournment of the Court the same
was pronounced good. The Plf. was therefore ordered to receive the
same.”[8]
Would Professor Wigmore call this autoptic profference?
As in the other Dutch settlements the principal prosecuting officer of
the district was the schout whose duties combined those of a sheriff
and district attorney; he convened the justices’ courts and executed
the orders of the states-general and officials of the company. Where
local courts were established the justices were known as schepens.
Their jurisdiction extended to the rendition of judgment for sums
under one hundred guilders. In cases exceeding that amount the party
aggrieved was allowed an appeal to the director general and council
of the New Netherlands. The schepens also had authority to pronounce
sentence in criminal cases subject to appeal.[9]
In 1656 the Dutch India Company, being deeply in debt and compelled
to obtain aid from the city of Amsterdam, transferred to that city a
portion of their possessions on the Delaware. This colony was called
New Amstel, special inducements were held out to emigrants, and a town
government was established consisting of a schout, three burgomasters
and five to seven schepens, a formidable body for the government of
a village of less than five hundred inhabitants. Thenceforth the
jurisdiction on the river was divided between the officials of the
company and those of the city’s colony.[10]
Laws and ordinances were sent from New Amsterdam to the Delaware and
there proclaimed for the general government of that territory. With
occasional modifications, they were the same as prevailed in the older
settlements on the Hudson, the ordinances of the West India Company,
the civil law, the enactments of the states-general, and the customs of
Holland.
In the matter of granting divorces the magistrates of the New
Netherlands exercised a liberal policy in keeping with the doctrines
of the Reformation, a policy that was not destined to survive the
English Conquest.[11] Traces of this jurisdiction are found on the
Delaware. Vice Director Beekman, writing to the director general under
date of April 28, 1660, mentions a Finnish couple who lived together
in constant strife: “The wife receives daily a severe drubbing, and is
often expelled from the house as a dog. This treatment she suffered
a number of years; not a word is said in blame of the wife, whereas
he, on the contrary, is an adulterer; on all of which the priest, the
neighbors, the sheriff and the commissaries appealed to me, at the
solicitation of man and wife that a divorce might take place and the
small property and stock be divided between them.”[12] He asks for
orders but the reply is not given.
In 1662, the Finnish priest Laers, or Laurentius, Carels, whose wife
had eloped with Jacob Jough, married again before he had obtained
letters of divorce from the council, performing the ceremony himself.
He was condemned by the commissaries to pay a fine of two hundred
guilders and his new marriage declared illegal, but was advised to
apply to the director general for a divorce.[13]
At the last period of the Dutch dominion (1673-4) three judicial
districts were recognized, one for the inhabitants of the Whorekill,
between Cape Henlopen and “Boomties” (Bombay) Hook, another for New
Amstel, from Bombay Hook to Kristina Kill, and a third for Upland from
Kristina Kill “unto the head of the river.”[14] Roughly speaking, the
first of these districts corresponds to the lower counties of the state
of Delaware, the second to New Castle County, in that state, and the
third to so much of the southeastern part of Pennsylvania as was then
settled, extending to the falls at Trenton.
The humble and widely scattered settlers seldom had time or occasion
to indulge in law suits involving questions or amounts beyond the
limited jurisdiction of the schepens, but such disputes as did arise
were the cause of endless discussion and much heartburning between the
officers of the West India Company and those of the city of Amsterdam,
whose complaints and recriminations distracted the governor at New
Amsterdam. In justifying the action of the council in such a contest
Peter Stuyvesant writes to the directors in Holland: “We might here
remark upon and continue with the insults and slights, heaped on your
Hon^{ble} Worships’ servants in their capacity as supreme judges of
this province, but will desist for the present to keep ourselves above
party spirit and avoid further displeasures.” Appeals heard and decided
by the governor and council seem to have been carried to the directors
in Holland, and occasionally reversed to the chagrin of Stuyvesant, who
thus reproaches his employers in a letter dated July 21, 1661:--
“Your Noble Worships say in regard to the third and last point
concerning the appeal and the reversing of a sentence pronounced
against one Jan Gerritsen van Marcken, that we would have done better
not to meddle with this case. Honorable Worships! It surpasses
our conception to understand how to avoid such proceedings and
the reproaches following them, how to satisfy your Honors and the
parties to the suit without exposing ourselves to blame for refusing
a hearing and justice, as long as it is your Hon^{ble} Worships’
order, and pleasure, that appeals are to be brought before your
Honors’ humble servants and we declare with good conscience that in
this and the abovementioned case we have not aimed at nor intended
anything else, but what we in our humble opinion judged to be just,
equitable and our duty: God the Ominiscient is the witness for it:
we have no knowledge of it, that the Sheriff van Sweeringen was to
be forced here, to ask pardon of God and justice in addition to what
his opponent had demanded: we refer to the sentences regarding this
point.”[15]
Dutch rule and Dutch laws, however, were not destined to endure on the
Delaware. On the twelfth of March, 1664, Charles II of England granted
to his brother, the Duke of York (afterwards James II), the territory
comprising the New Netherlands.
The charter to James is neither as elaborate nor as carefully drawn as
that granted eighteen years later to Penn. The standing committee of
the privy council for the foreign plantations had been but recently
organized and the Crown lawyers were just beginning to realize that
vast problems, legal and social, were connected with the administration
of the colonial domain. It has been well said that in the colonial
charter will be found the germ of American constitutional law, whether
of the trading company or proprietary type, since it contained beside
the grant of territory a scheme of political organization.[16] It is
a significant fact that the charter of James contains no reference to
a legislative assembly; the Duke is given “full and absolute power
and authority” to “correct, punish, pardon, govern and rule” the
inhabitants of the territories according to such laws, ordinances and
directions as he should establish, not contrary to the laws of England,
reserving to the Crown the right to hear and determine appeals from
judgments or sentences there given.[17]
With the history of the conquest of the New Netherlands we are not
directly concerned; suffice it to say that Sir Robert Carr who was
charged with the reducing of the Dutch possessions on the Delaware
arrived at that river in the latter part of the year 1664, and without
much bloodshed obtained the surrender of the colony. Carr established
the seat of government at New Amstel, the name of which was now
changed to New Castle, and under the terms of his agreement with the
inhabitants, continued all the magistrates in their offices upon their
taking the oath of allegiance.[18] The wise policy of enlisting the
local authorities in support of the new government was continued, and
Dutch and Swedish magistrates administered justice to their neighbors
until long after the arrival of William Penn.
The period of the Duke of York’s rule is of more importance in our
judicial history than would at first be supposed. It was a formative
period, and the law and practice as then developed had a marked
influence upon the early legislation of the province of Pennsylvania.
The establishment of English jurisprudence in the colonies on
the Delaware was not the work of a day, but a gradual process,
involving compromises with the established customs and practices of
the inhabitants, the gradual transformation of the Dutch schouts
and schepens into their English equivalents, the education of the
magistracy in the rudiments of English court practice and the actual
modification of many of the rules of the common law, both as to
property and practice, to meet the necessities of the primitive social
conditions in the New World.
The legal conceptions of the new rulers found expression in a brief
code promulgated at Hempstead, Long Island, in 1664, which, quaint
and unsystematic as it may seem to us now, contained several notable
departures from the common law well worth careful study by those
interested in legal history.
The principle seems to have been generally accepted in the American
colonies that the elements of public and private law should be stated
in a concise and permanent form. Whether originating with the people,
as in the case of the “Body of Liberties” in Massachusetts, or with
the proprietors, as in the case of the “Fundamental Constitutions”
of the Carolinas, the tendency of early colonial law was toward
codification.[19] And what could be more natural than that both
adventurers and proprietors should dream of creating little Utopias by
force of the statute book? New conditions, too, required new measures,
the laymen who administered justice required brief and simple handbooks
for their guidance, and the mixed population a homogeneous system in
the place of their various ancestral customs. Such a code was the Duke
of York’s Laws which is stated to have been “Collected out of the
Severall Laws now in force in his Majesties American Colonyes and
Plantations.” Prior to the conquest of the New Netherlands, Colonel
Nicolls, the newly appointed governor, and Sir Robert Carr had been
appointed members of a commission for the visitation of the New England
colonies, a part of whose duties it was with diligence and care “to
peruse the collection of the lawes published in those colonies during
the late usurping Government, or at any tyme before or since; to the
end that upon examination thereof you may discerne both the indecent
expressions and material and important points and determinations in
them, which are contrary to our dignity and to the lawes and customes
of this realme and to the justice thereof; all which they have obliged
themselves to cancele and repeale; and if the same bee not already
done, you are in the first place to cause it to be done.”[20]
The commissioners were also empowered to hear all complaints and
appeals in matters military, criminal and civil, but it was left to
their discretion whether they would first visit New England or reduce
the Dutch to submission. Having carried out the latter project it
became necessary at once to organize the captured territory. The
greater part of Long Island was already occupied by settlers from New
England and, having obtained copies of the laws of Massachusetts and
New Haven, Nicolls[21] with the assistance of the secretary and some
of the magistrates prepared a code which, as a comparison will show,
drew much of its material from these sources with, in the governor’s
words, “a relaxation of their severity in matters of conscience and
religion.” The cruel laws against heretics and against “a pernicious
sect commonly called Quakers”[22] were omitted, as well as many other
provisions relating to the Puritan discipline. The “capital lawes”
were transcribed from the Massachusetts code, which was avowedly based
on the Old Testament, but the offense of witchcraft was omitted and
while the clause making it a capital offense for children above sixteen
years old to curse or smite their parents was retained, the succeeding
clause, enabling a man having a stubborn or rebellious son to bring him
to the magistrates to be put to death in accordance with Deuteronomy,
xxi, 18, was rejected.
As in its prototypes, the code is divided into titles arranged in
alphabetical order but the classification is neither logical nor
consistent, a failing noticeable in more modern and more pretentious
legal productions. Much, however, that was adopted was both valuable
and practical and, with additions from English and Dutch sources,
was moulded into a form that perhaps met best the needs of civil
administration in a newly organized proprietary province. Indeed we
may recognize in this as well as other provincial codes a kindred
spirit, which without attempting to exploit many theoretical views on
jurisprudence, drew upon a common source for so much of English law
and custom as could reasonably be applied to the social and economic
conditions of frontier life.
It is most difficult to determine how far the common law was viewed
as a subsidiary system when not replaced by colonial statutes. The
accepted theory that the colonists brought with them and adopted so
much of the common law as was applicable to their condition[23] is not
wholly borne out by the facts. As the colonies increased in wealth
and population, as their commercial relations with the mother country
became more complex, the doctrines of the common law were necessarily
drawn upon to fill up the gaps in the early legislation, and, as
friction with the home government increased, the popular party appealed
more and more to the common law, particularly to Magna Charta, as the
muniment of political liberty and birthright of Englishmen, an appeal
which writers such as Blackstone sought to evade by applying to America
the status of conquered territory.[24]
Even more obscure is the question of the applicability of English
statutes, but the principle was generally accepted that acts of
parliament passed after the settlement of a colony were not in force
there unless the words of the act expressly included the territory
so occupied,[25] although in some instances local usage would seem
to have given the force of law to a statute not so extended. The
subject is difficult and intricate.[26] But at the early period now
under discussion the tendency was to regard the elementary codes
as approximately complete statements of the law. For matters not
covered New England referred to the “Word of God” as contained in the
Scriptures, while in the south the inclination was to claim a share in
the laws of England, but in either case the application of these vague
principles left in the local magistrates a very wide discretion which
in the absence of professional criticism was checked and restrained
only by legislative action or the influence of the governor and
council.[27] In the Duke of York’s Laws the difficulty is met by the
following clause:--
“In regard it is almost impossible to provide sufficient Lawes
in all Cases, or proper Punishments for all Crimes. The Court of
Sessions shall not take further Cognizance of any Case or Crimes,
whereof there is not provition made in some Lawes but to remit the
Case or Crime, with the due Examination and proof to the Next Court
of Assizes where matters of Equity shall be decided, or Punishment
awarded according to the discretion of the Bench and not contrary to
the known Laws of England.”[28]
An analysis of the substantive provisions of this code, however
interesting, is outside of the scope of this discussion. It is
sufficient to note that New York, in passing from the status of a
proprietary to that of a royal province, came more directly under
home influences and, as in the case of Virginia, the more radical and
experimental features of the early laws disappeared in the face of the
constantly increasing influence of the common law, or what the colonial
administrator understood as common law.
As to remedial law it was, in the first place, provided that all
actions of debt or trespass under the value of five pounds between
neighbors should be put to the arbitration of two indifferent persons
of the neighborhood to be nominated by the constable, or if either
of the parties refused their arbitration, the justices of the peace
should choose three other persons who were to meet at the cost of
him who dissented from the first method, and their award should
be conclusive.[29] The practice of referring complicated cases to
arbitration prevailed in the New Netherlands and this provision
has been regarded as a survival of the Dutch custom.[30] Voluntary
submissions were well known at the common law, but the principle of
compulsory reference was then and still is to a certain extent, looked
upon askance as an attempt to take away the palladium of liberty--the
right to a jury trial.[31] Arbitration, as we shall see, occupied
a prominent place in Penn’s system of justice, was by far the most
popular method of determining minor civil cases during the early period
in Pennsylvania, and, though less used now, is still a part of the
law. In 1677, the court at New Castle referred a dispute concerning
the estate of a decedent to two arbitrators who were to examine the
accounts and if possible decide the difference, otherwise to choose an
umpire and report at the next court day.[32] In 1678 Hendrick Vanden
Burgh petitioned the court complaining that he had bought a house and
lot from one Vidette who had purchased from William Tom, deceased;
that the lot was six feet less in breadth than the deed called for and
praying that this be added from Tom’s adjoining lot which was about to
be sold:--
“The court answer that whereas this business in the Lyfetyme of Jan
Vidette & M^r Tom was in question, and then decyded by M^r Moll, M^r
Hans Blocq & Capt^n Cregier as umpier and the Peticon^r now haueing
in possession soe mutch ground as then the arbitrato^{rs} allowed,
must therefore Rest himself Contented w^{th} y^e same.”[33]
The courts were organized on a basis not dissimilar from that which
already prevailed under the Dutch rule, with modifications suggested by
the practice in the older English colonies. The principal court was the
general court of assizes, held once a year in the autumn, presided over
by the governor, and attended by the council, the mayor and aldermen of
New York, and the justices of the various courts of sessions.[34] No
express provision for its creation is to be found in the laws although
it is there incidentally mentioned, and, while the subject is obscure,
the court was in fact the successor of that held by the director and
council of the New Netherlands. The limits of its jurisdiction were
undefined, and it seems to have combined both legislative and judicial
functions; indeed it was the closest approximation to a legislature
that New York was destined to enjoy for some time. The court heard
appeals from the sessions and complaints against local officials, tried
the more important civil cases and all capital cases, except where a
special commission of oyer and terminer was issued to the justices of a
distant community in order to obtain a more speedy trial.
The procedure on appeal was taken almost literally from the laws of
Massachusetts relating to appeals to the court of assistants.[35] The
appellant was required to give security for prosecuting an appeal and
payment of damages. The grounds and reasons for appeal were to be filed
with the clerk of the court. No justice that had sat or voted in the
inferior court was permitted to vote in the court appealed to. Where
the law and facts were found to agree with the former judgment it was
not to be revoked, but the damages could be abated or increased as
should be judged right.
Courts of sessions were established in districts roughly corresponding
to counties (in the neighborhood of New York called Ridings in
imitation of the division of the English County of Yorkshire). These
courts were held three times in the year, and were attended by the
justices of the peace. The governor, if present, presided, or in his
absence a member of the council or the senior justice. All actions
involving from five to twenty pounds were triable at this court,
from which there was no appeal “unless the debt appear to be above
that summe of twenty pounds or where there is a dubiousness in the
expression of the law.”[36] In addition the court was charged with the
granting of letters of administration, the preservation of the peace,
the trial of petty offenders, and the usual duties associated with the
quarter sessions including the granting of liquor licenses, a duty
still imposed on our quarter sessions to the discomfort of the judges.
In this connection the law provided:--
“Every person Licenced to keep an Ordinary shall always be provided
of strong and wholesome Beer, of four bushels of malt, at the least
to a Hoggshead which he shall not Sell at above two pence the quart
under the penalty of twenty shillings, for the first Offence, forty
shillings for the Second, and loss of his Licence. It is permitted to
any to sell Beer out of the Doores at a peny the Ale quart or under.
“No Licenced Person shall suffer any to Drink excessively or at
unseasonable hours after Nine of the Clock at night in or about
any their houses upon penalty of two shillings six pence for every
Offence if Complaint and proofe be made thereof.
“No Licenced Person shall unreasonably exact upon his Guest for any
sort of entertainment, and no man shall be compelled to pay above
eight pence a Meale, with small beer only, unless the Guest shall
make other agreement with the person so lycenced.
“No Licence shall be granted by any two Justices in Sessions for
above the terme of one year, but every person so Licenced before the
expiration of the said Terme shall and are hereby enjoyned to repair
to the Sessions of that Jurisdiction for renewing their several
Licences for which they shall pay to the Clark of the Sessions two
Shillings Six pence, or else they shall forfeit five pounds as
unlicenced persons.”[37]
Pure food agitation and rate regulation are thus foreshadowed, but not
prohibition.
In all actions the plaintiff was required to file his declaration eight
days before hearing.[38] The defendant was permitted to take a copy
thereof and file an answer. If judgment was entered for plaintiff it
was endorsed on the declaration, if for the defendant on the answer. As
in Massachusetts, no proceedings are to be reversed because of errors
or mistakes “if the person and cause be rightly understood and intended
by the court.”[39] Imprisonment in civil cases was restricted. No man
was to be kept in prison for a debt or fine longer than the second day
of the sessions after the arrest unless it was made to appear that he
had some estate which he would not produce; if the debtor had no estate
he could be required to satisfy the debt by service.
In deference to the wishes of the New Englanders settled on Long
Island provision was made for a town court consisting of the constable
and overseers. The number of the latter was first fixed at eight
but was subsequently reduced to four.[40] Their duties were chiefly
administrative, but, in cases where the parties refused arbitration,
the town court was to decide the case if less than five pounds was
involved.[41] The town system, however, was not destined to thrive
in the middle colonies, and penetrated to the Delaware only in an
attenuated form.
Last in the official scale was the constable, then, as now, the local
peace officer. His badge of office was a staff six feet long with
the king’s arms thereon, which was to be provided at the cost of the
town,[42] but on the Delaware came out of the slender purse of the
local Dogberry.[43] Among his other onerous duties he was required to
whip or punish any one so ordered by authority, “unless they can get
another person to do it.”
A singular feature of the code was the section relating to jurors. It
was provided that--
“No jury shall exceed the number of seaven nor be under six unless in
Special Causes upon Life and Death, the Justices shall thinke fitt to
Appoint twelve.”
“A verdict shall be so esteemed, when the major part of the Jury
is agreed, and the Minor shall be concluded by the Major without
allowance of any protest by any of them to the Contrary; Except in
case of Life and Death where the whole Jury is to be unanimos in
their Virdict.”[44]
The source of this enactment, although not disclosed, will probably be
found in a modified form in the Connecticut code of 1650[45] which left
it to the magistrates--
“To impannell a jury of sixe or twelve, as they shall judge the
nature of the case shall require--and if foure of sixe, or eight
of twelve agree, the verdict shall be deemed to all intents and
purposes, sufficient and full.”
In confirmation of this view the similar provision of 1665 in regard to
the town courts may be recalled, where--
“The constable and overseers are to give their judgment by the Major
vote, where six with the constable, or seaven in his absence, are
competent and equivolent to a jury, and the constable upon equall
Division, is to have a casting voyce.”[46]
In 1666, it was directed that in jury trials at the court of assizes
the number of jurors should be twelve, but that at the courts of
sessions the number set forth in the law should be sufficient.[47]
This remarkable deviation from the English jury system was not destined
to survive. In the records of the court at Upland, to which reference
will be made hereafter, there is a case concerning title to real estate
which was tried in 1681 before a jury of seven,[48] but in other cases
in the same court juries of twelve were drawn, as was the practice also
of the court at New Castle.[49]
Penn in his laws agreed upon in England provided that all trials
should be by twelve men, and this was made a fundamental law of the
province.[50] At the first court held at Lewes for the county of Sussex
by commission of William Penn the legality of a prior verdict by a jury
of seven was questioned. The suit was by Hermanns Wiltbank against
Cornelius Johnson and is stated to be “by way of scarifacous”[51] to
show cause why the defendant should not give the plaintiff possession
of certain land.
“According to An order of Court & verdict of a jurey of Seaven
men obtaind in this Court the 8th day of the 1 Mo. 1681. The said
Cornelis Johnson showeth cause by his plea delivered into the Court
in writing that he had obtained in this court a verdict of a Jurey of
twelve men for the said Land and premisses According to the Laws of
England; and that the verdict of seaven men was and is Contrary to
the knownen Laws of England.”[52]
It was further alleged that Wiltbank had appealed from the former
verdict against him and had failed to prosecute his appeal. The court
with the consent of both parties referred the matter to the proprietor.
At a subsequent court the plaintiff again brought up the matter,
stating that the governor had confirmed his right to the land but had
recommended that it should be left to the peacemakers to determine
whether anything was due the defendant for his improvements. Failing to
prove his declaration he was nonsuited but afterwards on the advice of
the court the whole dispute was referred to arbitration.[53]
The Duke of York’s Laws were not put into execution in the territories
on the Delaware immediately upon their adoption. As already stated,
the Dutch and Swedish magistrates were retained in office, but it was
wisely resolved to carry the necessary changes into effect gradually.
In 1668 Governor Lovelace issued directions to Deputy Governor John
Carre to associate the schout and certain magistrates with himself as a
council, and that--
“The Lawes of the Governmt Establisht by his Royall Highness be
shewed & frequently Communicated to the said Councellors & all
oth^{rs}. To the end that being therw^{th} acquainted the practice of
them may also in convenient tyme be established w^{ch} conduceth to
the Public Welfare & Common Justice.”[54]
Under this plan the government was steadily brought into harmony with
English ideas, the temporary check received in 1673, when the Dutch
for a few brief months repossessed themselves of the New Netherlands,
scarcely interrupting this process. At a council held at New York, May
17, 1672, it was ordered:--
“That for y^e better Governm^t of ye Towne of New Castle for the
future, the said Towne shall be erected into a Corporacon by the name
of a Balywick, That is to say, it shall be Governed by a Bailey &
six Assistants, to bee at first nominated by the Governor and at y^e
expiracon of a yeare foure of the six to go out & foure others to be
chosen in their places, the Bailey to continue for a yeare, & then
two to be named to succeed, out of whom ye Governo^r will elect one;
Hee is to preside in all y^e co^{rts} of the Towne & have a double
vote. A constable is likewise annually to be chosen by y^e Bench.
“The Towne Court shall have power to try all causes of debt or damage
to the value of ten pounds without appeal.
“That y^e English Lawes according to the desire of the inhabitants,
bee establish^t both in ye Towne & all plantations upon Delaware
River.
“That the office of Schout be converted into a Sheriffalty & y^e High
Sheriffs power extend both in the corporacon & river & that he be
annually chosen by two being presented to the Govern^r, of whom he
will nominate & confirm one.”[55]
Finally, on September 26, 1676, an ordinance was passed by Governor
Andros and the council formally introducing the Duke of York’s Laws and
establishing courts on the Delaware, the material portion of which is
as follows:--
“Whereas upon a peticon of the Magistrates and officers of New Castle
and Delaware River, Goveno^r Lovelace did resolve & in part settle
the Establish Lawes of this Government and appoint some magistrates
under an English Denominacon accordingly, In the which their having
been an obstruction for reason of the late warres & Change of
Government; And findeing now an absolute necessity for y^e well being
of the Inhabitants, to make a speedy settlement, to be a generall
knowne rule unto them for the future, Vpon mature deliberation
and advise of my Councell, I have resolved, and by vertue of the
Authority derived unto mee, doe hereby in his Ma^{ties} Name Order as
followeth.
“1. That the booke of Lawes Establisht by his Royal Highnesse &
practiced in New Yorke, Long Island, and Dependencies bee likewise
in force, and practiced in this River and Precincts, Except the
Constables Courts, Country Rates & some-other things peculiar
to Long Island, and the Militia as now ordered to remaine in y^e
King, but that a constable in each place bee yearely chosen for the
Preservacon of his Ma^{ties} Peace with all other Power as directed
by y^e law.
“2. That there bee three Courts held in y^e several (parts of the
river) & bay as formerly. To witt one in the Townes (New Castle one
above at) Uplands another below at the Whorekil.
“3. That the said Courts consist of Justices of the Peace whereof
three to make a Coram, & to have the Power of a Court of Sessions
& decide all matters under twenty pounds without Appeale, in which
Court the oldest Justice to preside, unless otherwise agreed amongst
themselves above twenty pounds & for crime Extending to life Limbo or
Banishment, to admit appeal to the Court of Assizes.
“4. That all small matters under the value of five pounds may be
determined by the Court without a jury unless desired by the Partyes
as also matters of Equity.
“5. That the Court for New Castle bee held once a month, to begin
the first Tuesday in each Month And the Court for Uplands & the
Whorekill, Quarterly & to begin the Second Tuesday of the Month.
“6. That all necessary By lawes or orders (not repugnant to the Lawes
of the Government) made by the said Courts, bee of force & binding,
for the space of one whole yeare, in the severall places where
made They giveing an Account thereof to the Governo^r by the first
Convenience, And that noe fines be made or imposed but by order of
Court.
“7. That the severall Courts have power to regulate the Court and
Offic^{rs} Fees, not to exceed the Rates in the book of Lawes, nor to
bee under halfe the Value therein exprest.
“8. That there bee a high Sheriffe for the Towne of New Castle, the
River and Bay: And that the said high Sheriffe have power to make an
Under Sheriffe or Marshall being a fitt person, and for whom hee will
bee responsable, to be approved by the Court, But the Sheriffe, to
act as in England & according to the now practice on Long Island, to
act as a principall officer in the Execution of the Lawe, but not as
a Justice of the Peace or Magistrate.
“9. That there bee fitting books provided for the Records in which
all Judiciall Proceedings to be duely and fairely Entered, as
also all Publick Orders from the Governo^r And the names of the
Magistrates & Officers Authorized, with the time of their Admission:
the said Records to bee kept in English, To which all persons
concerned may have free Recourse at due or seasonable times.
“10. That a fitt person for Clarke when Vacant, be recommended by
each Court to the Governo^r for his Approbacon in whose hands the
said Reccords to be kept.
“11. That all writts, Warrants & Proceedings at Law shall be in his
Ma^{ties} Name. It having been practiced in y^e Government ever since
the first writing of the Law booke, And being his Royall Highness
Speciall pleasure & Order.”[56]
The promulgation of the laws and the more definite instructions for the
administration of justice must have given general satisfaction, for in
their communications with the governor the justices seem to have been
in doubt on many points, and a delay in forwarding copies of the laws
seems to have given them considerable anxiety. In a letter of June 8,
1677, the magistrates of New Castle write: “We likewise humbly desier
that the sending of the Law booke may not be forgot, there being great
occasions for the same.”[57]
It may be interesting at this point to give a brief account of the most
important civil suit fought out in the territory on the Delaware at
this early date, involving the title to Tinicum Island. It was here,
as we have seen, that the Swedish governor, John Printz, established
the seat of government, building a block-house, church and private
residence called Printzhof, the island having been granted to him
in 1643 by Queen Christina “for a bouwery” as a reward for his
services.[58] After the Dutch conquest his daughter, Jeuffro Armgart,
wife of John Pappegoya, the successor of Printz as governor, was on
her petition, permitted in 1656 “to take possession and cultivate the
lands of her lord and father.”[59] Jeuffro Armgart as agent for her
father sold the property on May 29, 1662, to Joost De LaGrange who paid
one half of the purchase money and entered into possession. Trouble
occurred at once over payment of the balance. In the latter part of
1662 a bill of exchange given by LaGrange was protested, Jeuffro
Armgart recovered judgment and an appeal was taken. Printz died in
1663 and Jeuffro’s power to act for her sisters was disputed. In the
meantime the English conquered the New Netherlands, LaGrange died and
his widow married Andrew Carr who obtained a patent for the island from
Governor Lovelace in 1669. While the Carrs were abroad, looking after
an estate they had inherited, Jeuffro Armgart returned with powers
of attorney from her sisters and brought suit for the balance of the
purchase money at the court of New Castle. The case was adjourned or
appealed to the court of assizes at New York, where it was tried on
October twelfth, 1672.[60] Some of the papers were in “high” and some
in “low” Dutch and the services of an interpreter were required. The
defendants’ attorney, Mr. Ryder, protested that Captain John Carr’s
letter of attorney from Andrew Carr was not sufficient to authorize him
to defend the suit and moved for a continuance, which was refused. The
case was sent to the jury, who brought in a verdict for the plaintiff
for the full amount of her claim upon which judgment was entered. In
the month of January following the governor and council issued an
execution directed to Captain Edmund Cantwell, high sheriff at New
Castle, who was directed to seize the land and goods of the Carrs,
particularly Tinicum.[61] The latter island was to be appraised and
if found of less value than the debt, the plaintiff was to be given
possession and a further levy made on other property of the defendants.
Jeuffro Armgart was accordingly restored to possession of the island
which she sold to Justice Otto Ernest Cock. The new owner was, however,
not to rest in quiet possession. Arnoldus De LaGrange, son of Joost,
when of age returned to America and settled at New Castle where he
subsequently became a justice of the peace. Shortly after his return he
presented to Governor Andros a petition for equitable relief against
the judgment of the court of assizes, setting forth his infancy at the
time of the trial and other defects in the proceedings.[62] No answer
to the petition is recorded but at the last session of the Upland court
before the transfer of the territory to Penn held June 14, 1681, suit
was brought by LaGrange against Cock which was postponed to the next
court “by reason that there’s noe court w^{th}out Justice Otto whoe is
a party.”[63] The case was finally tried at a court held at Chester 22,
6 mo. 1683, where LaGrange was represented by Abraham Mann and Cock by
John White as attorneys in the suit. The plaintiff declared as heir at
law and the defense was that part of the purchase money had never been
paid. The verdict of the jury as entered on the record is:--
“The jury finde for ye Plaint and alsoe give him his costs of suite
and fforty shillings damage; the Plaint paying to ye Deft Thirty &
seaven pounds & Tenne Shillings, according to an agreement between
ye Plaint and Deft produced & read in this court & alsoe delivering
ye Block House & pticuters in ye same agreemt mentioned. Judgmt is
thereupon awarded.”[64]
Here we have an early, if not the first, example of a conditional
verdict so popular afterwards in Pennsylvania when an equitable
defense was raised in an action of ejectment. Execution issued on
this judgment and LaGrange was put in possession. Less than a year
afterward he sold the island to Christopher Taylor, the first register
general, one of whose descendants left a will that gave rise, in the
nineteenth century, to litigation as long and stubborn as that we have
recounted.[65] The Printz mansion was destroyed by fire in 1822 but
it is said that on the site ancient bricks of a foreign make and pale
yellow color have been found which were once a part of this venerable
structure.[66]
It would seem from the above proceedings and from an order of Governor
Andros of July 17, 1678,[67] that lands were regarded as liable for
debts, contrary to the common law where the creditor’s only remedy was
by writ of elegit under which one half of the rents could be taken.[68]
Penn’s first legislation subjected lands to execution to a limited
extent, but not until 1700 was the whole land made liable where no
personal property could be found.[69]
That land was subject to seizure for debts under the Dutch rule is
indicated by the following extract from the minutes of Jacquet’s court,
February 14, 1657:--
“Isack Allerton has had seized by the Court Messenger subject to the
decision of the Hon^{ble} Council, the immovable property belonging
to Peter Hermausen here on the river.”[70]
From such records as have escaped destruction we are enabled to present
a fair outline of the actual practice in these primitive tribunals,
presided over by laymen and unembarrassed by the conflicting arguments
of professional lawyers. An adequate notion of the crudity of the
proceedings can be conveyed only by examples from the records which
were kept in the most informal fashion. Sometimes the entries are
limited to the names of the parties and the judgment, while in other
instances there is a summary of pleadings and evidence. While the names
of common law actions, such as debt, case and replevin, are used there
is little to indicate that judges or parties had more than a very vague
conception of their scope and distinctions. Thus, there is an entry of
“an action of the Case for twoo peeces of marrish & y^e hay thereon
mowed.”[71] Appeals to New York were frequent and were sometimes
specially allowed by the governor, as would appear from the following
example:--
“By the Governor
“Upon the request of Hans Pieterson, concerning several Judgm^{ts} of
the Courts of New Castle & Upland in Delaware in a case between the
sd Pieterson & D^o Lawrentius Carolus, concerning a certain Mare,
The Jureys tho’ composed in part of the same Persons, yet brought
in several Verdicts, the Courts having given different Judgm^{ts}
accordingly, & it not appearing by any Testimonies what Mare was in
Difference; I do therefore hereby Order, that the Execucons in s^d
Matter be Suspended, & a full Acco^t of all s^d Proceeding in both
Co^{ts} be forthwith sent me.
“Actum in New York this 28th day of July, 1677.
“E. ANDROS.
“To the Courts of New Castle and Upland & all Officers in Delaware
whom it may concern.”[72]
Such appeals were heard at the general court of assizes in the city of
New York, the minutes of which present a spirited picture of assembled
worthies. One appeal from a judgment of the court at the Whorekill
concerning the title to a tract of land was tried in 1680 before the
following distinguished company: the governor, Sir Edmund Andros,
five members of the council, the mayor and five aldermen of New York,
the chief justice of Nantucket, the two commissaries of Albany, three
justices from New Jersey, two from “Peniquid and parts eastward,”
and a dozen more from Long Island and New York. The judgment of the
lower court was affirmed at the cost of the appellant.[73] On another
occasion (in 1681) a case was tried in which the defendant, one of the
justices of the court at New Castle, was accused of misconduct in his
office.
“M^r John Moll Justice of the Peace and President of the Court at
Newcastle being called to Answer to an Indictment Exhibitted against
him by one Abram Mann for severall Words and Expressions by him
said to be uttered and spoken in Court and at other Times, To which
the said John Moll pleaded not Guilty, and a jury being Impanelled
and Sworne with several Evidences they brought in their Verdict and
found him guilty of Speaking the Words mentioned in the first and
second Articles and of Denying Execution when demanded, menconed
in the fourth Article, and for the rest not Guilty, the which the
Court taking into Consideration Do adjudge the said Indictment to
be illegal and vexatious and that the said John Moll by what found
against him is not Guilty of any Crime or Breach of any known Law
Therefore do Acquitt the said John Moll from the same and Order the
said Abram Mann to Pay the Costs of Court. The said Mann moved for an
Appeale for England which is granted he giving sufficient Security to
the value of One Thousand Pounds to Prosecute the same and pay damage
to the Party if lost.”[74]
It is interesting to note that the parties to this suit were afterwards
prominent in Penn’s government. Justice Moll became a member of the
first provincial council and was one of the committee that drew up the
amended frame of government, or charter of 1683, while Abram Mann was a
member of the assembly from New Castle in the sessions of 1684-5.
It would not do to omit mention of the first state trial, if it may
be so called, that was held on the Delaware. Near the close of 1669 a
disturbance was created by one Marcus Jacobson, alias John Binckson,
but better known as “Long Finne,” who pretended to be a son of
Conningsmark, a Swedish general. Whether this so-called insurrection
was a serious attempt to overthrow the government, or a mere riotous
or seditious disturbance, it was treated with the utmost seriousness
by Deputy Governor Carr as well as Governor Lovelace. An order for the
Finne’s arrest was issued, and he was put in irons, while the other
persons implicated were bound over for court. At a meeting of the
council in New York on October 18, 1669, it was resolved:--
“Vpon serious & due Consideracon had of the Insurrection begann
by ye Long Finne at Delaware, who gave himself out to bee son of
Coningsmarke a Swedish Generall & y^e dangerous consequences thereof,
It is adjudged that y^e said Long Finne deserves to dye for the same.
Yet in regard that many others being concerned w^{th} him in that
Insurrection might be involved in the Premunire if the rigour of the
Law should be extended & amongst them divers simple and ignorant
People: It is thought fitt and Ordered, that the said Long Finne
shall be publickly & severely whipt & stigmatiz’d or branded in
the fface with the Letter (R) with an Inscription written in great
Letters & putt upon his Breast, That he received that Punishment for
Attempting Rebellion, after wh^{ch} that hee bee secured untill hee
can bee sent & sold to the Barbadoes or some other of those remote
Plantations.”[75]
But after deciding upon his fate, it was determined to try him
according to the forms of law and a special commission was issued to
Mathias Nicolls and others to try him, whose instructions were to hold
the court according to a prescribed form, which presents an excellent
picture of the practice then followed in a criminal trial.
“The forme of holding the Co^{rt} at the Fort in Newcastle upon
Delaware River for the Tryall of the Long Finne &c. about the late
Insurrection, Decem. y^e 6th 1669.
“Vpon the meeting of the Court let a proclamation bee made by saying,
O yes, O yes, O yes, Silence is commanded in the Co^{rt} whilst his
Ma^{ties} Commissioners are sitting Vpon paine of imprisonment.
“Lett the Commission be read & the Commission^{rs} called vpon
afterwards, if any shall bee absent Let their names bee recorded.
“Then let the proclamacon bee made again by O yes, as before, after
which say: All manner of persons that have anything to doe at this
speciall Co^{rt} held by Commission from the Right Ho^{ble} Francis
Lovelace Esq. Governo^r Genr^l vnder his Royal Highness the Duke
of York of all his Territories in America draw neare to give yo^r
attendance, and if any one have any plaint to enter or suite to
prosecute let them come forth & they shall bee heard.
“After this let a jury of twelve good men bee empannelled.
“Then let the Long Finne prisoner in the Fort bee called for &
brought to the Barr.
“Vpon which the jury is to be called over & numbered one, two &c. &
if the prisoner have no exception against either of them let them bee
sworne as directed in the Booke of Laws for Tryall of Criminals, and
bid to look vpon the prisoner at the Barre.
“The forme of the oath is as followeth: You do swear by the
Everliving God that you will conscientiously try and deliver your
verdict between o^r Sovaraigne Lord the King, & the prisoner at the
Barre according to evidence & the lawes of the Country, so helpe you
God & the contents of this booke.
“Then let the prisoner bee again called vpon and bid to hold up his
right hand:
“Viz. John Binckson alias Marcus Coningsmark alias Coningsmarcus
alias Mathew Hincks....
“Then proceed with the indictment as follows:
“John Binckson, Thou standest here indicted by the name of John
Binckson alias Coningsmark alias Coningsmarcus alias Mathews Hinks,
alias, etc. for that having not the feare of God before thine eyes
but being instigated by the devill vpon or about the 28th day of
August in y^e 21st year of the Raigne of o^r Soveraigne Lord Charles
the 2d by the Grace of God of England Scotland, France and Ireland,
King, Defender of the Faith &c. Annoque Domini 1669, at Christina &
at severall other times & places before, thou didst most wickedly,
traitorously, feloniously & maliciously conspire and attempt to
invade by force of armes this Government setled vnder the allegiance
and protection of his Ma^{ties} & also didst most traitorously
solicit & entice divers & threaten others of his Ma^{ties} good
subjects to betray their allegiance to his Ma^{ties} the King of
England persuading them to revolt & adhere to a forraign prince,
that is to say, to the King of Sweden In prosecution whereof thou
didst appoint and cause to bee held Riotous, Routous & Vnlawfull
Assemblyes, breaking the Peace of o^r Sovereign Lord the King and the
laws of this Government in such cases provided John Binckson &c what
hast thou to say for thyself, Art thou guilty of the felony & treason
layd to thy charge or not guilty. If hee says not guilty, then ask
him By whom wilt thou be tryed. If hee say be God & his countrey,
say, God send the a good deliverance.
“Then call the witnesses and let them bee sworne either to their
testimony already given, in or to what they will then declare upon
their oaths.
“Vpon which the jury is to have their charge giving them directing
them to find the matter of Fact according to the Evidence and then
let them bee called over as they go out to consult upon their verdict
in which they must all agree.
“When the jury returns to deliver in their verdict to the Co^{rt}
let them bee called over againe & then ask^t: Gent^s, are you agreed
upon your verdict in this case in difference between o^r soveraign
Lord the King & the prisoner at the Barr. Upon their saying yes aske
who shall speak for you. Then the ... bring in their verdict & the
... then read the verdict and say: Gentlemen, this is y^r verdict
upon which you are all agreed; upon their saying yes, call that the
prisoner bee taken from the barre & secured.”[76]
As a matter of course the Finn was convicted and sentenced. The last we
hear of him is in this minute of the council, January 25, 1669-70:--
“This day ye Long ffinne called Marcus Jacobsen was by warrt put on
board Mr. Cosseans Ship called y^e Fort Albany to be Transported &
sould at y^e Barbadoes according to y^e sentence of Court at Delaware
for his attempting rebellion. He had beene a prisoner in y^e State
house ever since y^e 20th day of Decemb^r last.”[77]
We are fortunate in possessing portions of the records of the
county courts during this period. That of Upland is particularly
interesting as presenting a complete record of the first county
court on Pennsylvania soil from the year 1676 to the announcement,
in June, 1681, of the transfer of the government to William Penn. In
the commissions issued by the governor six justices of the peace are
named, any three or more of whom may hold court, the commissions to be
in force for one year or until further order. It would be tedious to
recite the manifold duties performed by the justices, whose functions
included those now delegated to the county commissioners, directors of
the poor and auditors as well as those pertaining strictly to their
judicial office. They granted applications for taking up land, took
acknowledgments of deeds, and exercised a general supervision over the
churches, the repair of the highways, the maintenance of fences, the
sale of the time of bound servants, and even recorded the earmarks of
cattle.
The expenses connected with the sittings of the courts were supposed to
be met by the fees and fines imposed, but these were not always easily
collected and the Upland justices record in one place that they are “in
great want of some meanes to pay and defray their necessary charges of
meat and drinke.”[78] The court at the Whorekill, the name of which had
been changed to Deal, made this clever bargain:--
“It is agreed and Concluded upon by the Court and Alexander
Moulston as followeth; that from the first day of this moneth the
said Alexander Moulston shall have to his owne proper use all the
Amacements that doe from that day becom due to the court for one
whole yeare; and that the said Alix Moulston doe Ingage to find and
allow the Justices of this Court for the time being and there friends
and strangers with house roome and diett And one gallon of Rum and
wine for every Court during the said year.”[79]
Actions for the recovery of debts, for assault and battery and slander
predominate. It would seem that the judges sometimes found it necessary
to appeal to their own tribunal, as the following case shows:--
“Justice Otto Ernest Coch Plt. { In an action of slaunder
“Moens Petersen Staecket Deft. { & defamat.
“The p^{lt} Complaines that this deft. maliciously has defamed and
most highly slaundered him in his Honor & reputation by terming him
a hogh theef, desires that this deft (if hee or any others can) will
prove ye same, or otherwayes that hee may bee punisht according to
Lawe.
“The deft sayes and protests, that hee never Knew heard or sawe, that
this Plt was guilty of any such fact, and that hee to his knowledge
never sayed any such thing, but if that he hath sayed itt (as the
witness doe afirme:) that itt must haue been in his drink, hee humbly
desires forgivenesse, sence hee finds himselfe in a great fault;
“Hans Jurian, william orian & andries homman sworne in Co^{rt}
declare that they haue heard moens Peterss Staecket say in full
tearmes & substance, Mr. Otto is a hogh theef of ye one & andries
Boen of ye other syde & further say nott;
“The Court haueing heard ye Case doe order that ye deft: shall
publicqly in open Court declare that hee has wrongfully falsly &
malisiously slaundered & blamed this p^{lt} and doe further fyne him
for an Example to others to pay the sume of one thousand gilders
w^{th} the Costs;
“The deft. did willingly in open Court, declare as above & humbly
desires forgivenesse & prayes that ye fyne may bee remitted, Upon ye
Intercession of Justice Otto Ernest, the Co^{rt} did remit ye fyne
above^d.”[80]
Judgments are entered sometimes in guilders and stivers and sometimes
in pounds of tobacco, wheat or other products. In one case at Upland
the court ordered the defendant to pay the plaintiff “twenty gilders in
wheat and twenty six in pompkiens.”[81]
A case, showing the primitive practice, from the commencement to the
termination of a suit, is that of--
“James Sanderlins plt
ags^t
“John Edmunds of
maryland Def^t
“The plt demands by bill from this deft. ye sume of 1200 lb of good &
merchandable Tobbacco & Caske to bee paid in Great Chaptank River in
maryland on all demands after ye 10th of october 1675; as by the said
bill under ye hand and seale of the def^t bearing date ye 9th of June
1675; & produced in Court did more att Large appeare, the plt further
declaring & prooveing in Court that hee hath made severall Legall
demands of the s^d debt, and y^e the same was not paid to this day,
desiering that this Co^{rt} would be^e pleased to grant him Judgem^t
ag^{st} ye de^{ft} and to allow of his attachment Laid upon a
certaine great Boate or shiallop & appurtenances now att upland--That
the same might bee publicqly sould and the p^{lt} payed his Just due
w^{th} ye Costs;
“m^r walter wharton one of the witnesses to ye sd bill being sworne
in Court declared that hee was p^{rsent} and did see John Edmundsen
signe seale and deliver, the abovesaid bill of 1200 lb of Tobacco, to
James Sanderlins;
“The Court haueing Examined into ye businesse, and finding the
Case to bee Just, did order that Judgment bee Entered against the
deft: John Edmunds, for the paym^t of ye sd. 1200 lb of Tobacco,
or the True vallue thereof, and alloweing of ye Plts attachm^t doe
hereby order the vendu master, to sell the boate & appurtenances,
this Courtday to the most bidders, out of which hee to pay James
Sanderlins his debt w^{th} ye Costs, and the overplus to bee returned
to John Edmunds or his order;
“According to the aboves^d order of Co^{rt} was this day being ye
12th of Novembr, by publicq outcry sould unto m^r John Test, as ye
highest bidder the boate & appurtenances for ye sume of six hundred
and twenty fyve gilders; to bee paid in New Castle with merchandable
Tobbacco & Caske dutch w^{th} & tarr att 8 styvers pr lb or w^{th}
merchandable wheat at 5 gilders pr schipple att or before ye Laest
of march next Ensuing, as by the Conditions of sale upon ye fyle att
Large doth & may appeare;
“James Sanderlins bound himselfe as security for ye true payment of
ye aboves 625 gilders according to the conditions.”[82]
As these proceedings occurred all on one day, the parties could not
complain of the delays of the law. What would appear to be the first
recorded action for negligence is entered as follows on the New Castle
records:--
“Mounes Powell plt
“Hans Pietersen Deft
“The p^{lt} declares that this de^{ft} about one Jeare sence was the
occascon that he the plt lost the use of his boddy so that he was &
is not able to worke for his wife and family and therefore humbly
craves that the de^{ft} may be ordered to hire a servant for him
until he bee restored to health:--The court having heard the answer
of the deft and finding by the evidence sworne in court, as also by
the p^{lt} owne confession that itt was an accidental mischange, doe
order that the deft shall pay the curing to the doctors bill this
date and moreover Pay unto the p^{lt} in regard of his smart and
Payne w^{ch} the p^{lt} hath suffered the sume of one hundred and
fifty gilders and pay cost of sute.”[83]
In another case in 1679 a mortgage is foreclosed:--
“John Moll P^{lt}
“Robberd Hutchinson Def^t
“The P^{lt} declares that one Daniel Linsy being his debtor the
sume of 847 lb of Tobacco & Caske did on y^e day of 167; mortgage
Trasport & make over unto this P^{lt} a Certain peece of Land Lying
in Appoquenemen Creeke, above y^e old Landing w^{ch} s^d mortgage
and Transp^{rt} was to bee void upon y^e payment of y^e s^d 847 lb
of tobbatt y^e time in y^e s^d deed Exprest, as by the s^d mortgage
bearing date as above more att Largedid appeare and that this deft
Robberd hutchinson, haueing sence bougt the s^d Land from y^e s^d
Linsey did promise to pay y^e P^{lt} his s^d debt w^{ch} being nott
performed, The P^{lt} is now forced to Commence his action in Lawe,
and humbly Craues this Co^{rts} order so that hee may haue y^e
forfeiture and benefitt of his afores^d mortgage and that hee may bee
put in peaceable Possession of the s^d Land according to s^d deed.
The Co^{rt} haueing Examined the premises doe Judge that according to
Lawe and the s^d deed the Land aboves^d is forfeited and belonging to
y^e P^{lt} and therefore do order that the P^{lt} bee put in Lawfull
Possession thereof.”[84]
A case that perplexed the justices at Deal involved a gambling contract.
“Henry Bowman P^{lt}, James Welles and John Newall defts. The
P^{lt} declare that the defts did contract & agree w^{th} him to
Run A horse Race for three thousand pounds of Tobacco; and that he
the said P^{lt} ded wine; the deft pleaded that the Contract was
not confirmed, the cause being debated on both sides and severall
witnesses Examined the Cause was Referred to a Jurey; w^{ch} went out
and brought in there verdict; that they finde for the p^{lt} with
Cost of suit and one shill Damages; and the defts arest the Judgmt
of the Court & craved an Appeale to have the Cause to be Tryd at the
next Gennarall Court of Assisses at New York befor the Honorable
Governor and Councell; the vallow being under twenty pounds the Court
Could not agree weather it was appealeable or not; and soe refered
the same untill the next Court; there being sume thing dubous in the
Testament of the Wittnesses.”[85]
A competent authority has remarked, “the whole method of practice
was rather a dispensation of justice, as the idea of it existed in
the heads and was tempered by the hearts of the judges, than the
administration of any law written or unwritten.”[86] And yet when we
remember that these men were all laymen, pioneers on the border of the
wilderness, whose true business was to clear the forests and till the
soil, and whose judicial office was a burdensome duty, performed at
a considerable sacrifice of time and money in the interest of their
little communities, that they were without books or forms and sometimes
without blank books in which to write their records, we may wonder that
they did so well.[87] The justices of these courts as members of the
provincial council, as assemblymen, and as judges, played their part
in the “Holy Experiment” heralded in the last entry in the Upland
records. This entry, the last official act under the Duke of York’s
administration, is a notice to the magistrates of the cession of the
territory to William Penn and a direction that they should yield due
obedience to the new proprietor. Here then it is that the histories of
the commonwealths of Pennsylvania and Delaware begin, if commonwealths
may be said to have a beginning.
On March 4, 1681, the province of Pennsylvania was granted by King
Charles II to William Penn, son of Vice Admiral Penn, to whom a
considerable debt was then owing by the Crown.[88] It would be tempting
at this point to turn aside and discuss the character and career of
the remarkable man who founded the commonwealth of Pennsylvania. Much
has been written about him and yet it is doubtful if he has received
his real due from history. William Penn was an idealist, perhaps
in some respects a visionary man, and yet many of his views were
eminently sensible and fundamentally sound. The leader of an exclusive
religious sect, the welcome guest at court, the friend alike of James
II, of Algernon Sydney and of John Locke, a man of brilliant parts and
attractive personality, yet modest, generous, tolerant and forgiving,
the nobility of his character as revealed in his writings and conduct
is worthy of our highest admiration, little as it was appreciated by
those who, like Franklin, owed much of their prosperity to his “Holy
Experiment,” but could not understand his motives. To his enlightened
benevolence and faith in mankind, civilized and savage, was due the
early prosperity and progress of the commonwealth. As a German writer
has well observed, “Of all the colonies that ever existed none was
ever founded on so philanthropic a plan, none was so deeply impressed
with the character of its founder, none practised in a greater degree
the principles of toleration, liberty and peace, and none rose and
flourished more rapidly than Pennsylvania. She was the youngest of the
British colonies established before the eighteenth century, but it was
not long before she surpassed most of her elder sisters in population,
agriculture and general prosperity.”[89]
An analysis of the charter granted to Penn belongs rather to
constitutional history than to our subject. The English government
was daily becoming more impressed with the importance of the colonies
in America, and in consequence the document was drawn with more care
for the royal prerogative than the earlier charters. One of the most
important of its provisions was that requiring a transcript of all
laws made and published in the province to be transmitted within five
years to the privy council, and if within six months such laws should
be declared inconsistent with the king’s prerogative or sovereignty,
the same should be declared void, otherwise to remain in full force.
Penn was given full power to make laws, with the advice and consent of
the freemen of the country or their deputies in assembly, to appoint
judges, justices and other judicial officers, to pardon crimes,
treason and willful and malicious murder excepted, and to “do all and
every other thing and things which unto the complete establishment of
justice, unto courts and tribunals, forms of judicature and manner of
proceedings do belong,” and by judges appointed, to award process, hold
pleas and determine all actions, suits and causes whatsoever, as well
criminal as civil, personal, real and mixed. By three deeds the Duke
of York conveyed to Penn the territory covered by the charter and the
three lower counties.
On April 10, 1681, Penn commissioned his cousin, William Markham, to
be deputy governor, who arrived on the Delaware about the first of
July following. His first act was to call a council and on November
30th we find him holding court at Upland. Prior to this we have the
first entry in the records of the Upland Court as part of the province
of Pennsylvania.[90] Nine justices are recorded as present. The first
cases tried were two cross actions of assault and battery in which all
parties were convicted and fined.[91]
Before sailing for America Penn drew up his famous “Frame of
Government,” the original manuscript of which, with interlineations and
notes in the handwriting of his friends, is preserved in the archives
of the Historical Society of Pennsylvania.[92] Penn was a close student
of political institutions and lived at a time when, in his own words,
there was “nothing the wits of men are more busy and divided upon.”
He like many of his coreligionists had suffered imprisonment for
conscience sake. The account of his trial is a fair picture of the
administration of justice in the principal criminal court of London
during the Stuart period.[93] When we read those stirring pages we
can understand the suspicion with which the courts were regarded by
the colonists and their exaggerated faith in trial by jury. Fear of
judicial oppression, in fact, had a marked influence on the development
of our courts, was instrumental in checking the growth of chancery
jurisdiction for several generations and was the primary cause of that
jealousy of the judiciary which was long a feature of local politics.
Penn, although he had grown up in a period of political unrest, was
eminently practical in his ideas of government. He was a believer in
men rather than in methods. In the preface to the Frame of Government
he says:--
“But lastly when all is said, there is hardly one frame of government
in the world so ill designed by its first founders, that in good
hands would not do well enough; and story tells us, the best in ill
ones can do nothing that is great or good; witness the Jewish and
Roman states. Governments, like clocks, go from the motion men give
them, and as governments are made and moved by men, so by them they
are ruined too. Wherefore governments rather depend upon men, than
men upon governments. Let men be good, and the government cannot be
bad; if it be ill, they will cure it. But if men be bad, let the
government be never so good, they will endeavor to warp and spoil to
their turn.”[94]
Under the system of government first established by Penn the executive
powers were vested in the governor and provincial council, while the
legislative powers were vested in the governor, provincial council and
general assembly of the representatives of the freemen of the province.
The provincial council was an elective body not only associated with
the governor in the ordinary executive duties but also charged with
the preparation of all new laws, which after publication,[95] were to
be submitted to the general assembly for approval. Both council and
assembly were designed on generous proportions but at the request of
the colonists the membership in both bodies was greatly reduced.[96]
The courts were to be erected by the governor and council, the latter
body nominating a double number of candidates from whom the governor
was to select a proper number for each office. This last provision did
not work well in practice, as it was difficult to get enough men of the
right sort to fill the commission of the peace, as the minutes of the
council clearly show.
It will be seen that the courts, as such, played but a subordinate part
in the constitutional system. Indeed the conception of the judiciary
as a coördinate branch of the government was as yet unrealized;
balanced constitutions were the final products of the eighteenth
century, the seventeenth was concerned with the fundamental rights,
liberties and privileges of the subject. These rights, as applied in
the administration of justice, were embodied in the “Laws agreed upon
in England,” and published with the Frame of Government. It is therein
declared--
“That in all courts all persons of all persuasions may freely
appear in their own way, and according to their own manner, and
there personally plead their own cause themselves, or if unable, by
their friends. And the first process shall be the exhibition of the
complaint in court, fourteen days before the trial; and that the
party complained against may be fitted for the same, he or she shall
be summoned no less than ten days before, and a copy of the complaint
delivered him or her, at his or her dwelling house. But before the
complaint of any person be received, he shall solemnly declare in
court, that he believes in his conscience his cause is just.
“That all pleadings, processes, and records in courts, shall be
short, and in English, and in an ordinary and plain character, that
they may be understood, and justice speedily administered.
“That all trials shall be by twelve men, and as near as may be peers,
or equals, and of the neighborhood, and men without just exception.
In cases of life, there shall be first twenty four returned by the
sheriff for a grand inquest, of whom twelve at least shall find
the complaint to be true; and then the twelve men or peers, to be
likewise returned by the sheriff shall have the final judgment. But
reasonable challenges shall be always admitted against the said
twelve men or any of them.
“That all fees in all cases shall be moderate, and settled by the
Provincial Council and General Assembly, and be hung up in a table
in every respective court; and whosoever shall be convicted of taking
more, shall pay two-fold, and be dismissed his employment, one moiety
of which shall go to the party wronged.”[97]
These provisions were enacted into law at assemblies held December 10,
1682,[98] and March 1, 1683.[99] Indeed the first and third paragraphs
were at the latter session, included among the “fundamental laws” not
to be altered without the consent of the governor and six-sevenths of
the freemen of the province.[100] This early attempt to discriminate
between the general body of law and certain laws which were regarded
as “more essentially requisite” to the well being of the state is
of interest to the student of constitutional law. It shows that
at this early period the feeling was present that some laws, not
necessarily political, ought to be marked out for a special sort of
permanence; a feeling that has led to the development of the modern
state constitution, absurdly complex and overloaded with non-political
details.
Notable, also, are the provisions for the commencement of actions by
an informal complaint and for brevity and simplicity in the pleadings
and court records, which although in keeping with the primitive local
custom were as code provisions a radical departure from the common law,
too radical, in fact, to withstand the growth of professional feeling
in the eighteenth century. Penn’s more liberal contemporaries would not
have thought of imposing upon a raw community the artificial system
of England in its entirety, but few would have committed themselves
to so radical a stand for permanent reform. As it happened lawyers
soon emigrated to the province, bringing with them their cherished
technicalities, and the old forms slowly but surely crept into use.
Penn, indeed, was too much of a utilitarian to fully realize how deeply
even the more cumbersome and fantastic features of the common law were
rooted in the habits and customs of the people. We are reminded of his
famous colloquy with Mr. Recorder Howell at his trial:--
Penn. “I desire you would let me know by what law it is you prosecute
me and upon what you ground your indictment.”
Recorder. “Upon the common law.”
Penn. “Where is that common law?”
Recorder. “You must not think that I am able to run up so many years
and over so many adjudged cases which we call common law to answer
your curiosity.”
Penn. “This answer I am sure is very short of my question for if it
be common, it should not be so hard to produce.”
Penn, like Bentham, would seem to have the best of the argument, but a
century and a half passed before New York broke the chains of tradition
in the code of 1848.
After a “prosperous passage of about two months,” Penn arrived before
New Castle on the twenty-seventh of October, 1682, and demanded livery
of seisin from the commissioners appointed by the Duke of York. The
ceremony took place on October twenty-eighth and is thus reported by
John Moll:--
“Whereupon by virtue of the power given unto us by the abovementioned
letters of attorney, we did give and surrender in the name of his
royal highness, unto him the said William Penn, Esq., actual and
peaceable possession of the fort of New Castle, by giving him the
key thereof, to lock upon himself alone the door, which being opened
by him again, we did deliver also unto him one turf, with a twig
upon it, a porringer with river water and soil, in part of all what
was specified in the said indenture or deed of enfeoffment from
his royal highness, and according to the true intent and meaning
thereof.”[101]
One of his first acts, after taking possession, was to commission
six justices of the peace for New Castle and to send out notices for
the holding of a court.[102] At this court, which was attended by
several of the council, as well as the justices, Penn delivered an
address stating his purpose to call an assembly and recommending the
magistrates, in the interim, to follow the laws of the Duke of York.
Before the end of the year the province of Pennsylvania was divided
into three counties, Philadelphia, Bucks, and Chester (which replaced
Upland), and the lower territories into three also, New Castle, as
before, while of the two counties into which the Whorekills had been
divided, Deal became Sussex, and St. Jones, Kent. The county courts
continued as already constituted, and for some time the boards of
justices, therein assembled, exercised most of the functions of
local government, such as the assessment of taxes, the erection of
jails, the allotment of land to settlers and the abatement of public
nuisances.[103] The number of justices in any county varied from time
to time with the pressure of business, the willingness or ability of
those chosen to perform their duties or the favor of the council.
Sometimes a man of importance was commissioned as justice for the whole
province.
Under the Duke of York’s laws the attendance of the justices was
enforced by a fine of ten pounds for every day’s absence, and there are
entries of such fines in the records of the courts.[104] Under the Act
of May 10, 1685, (ch. 176) the same policy was continued, but the fine
reduced to thirty shillings. When possible the justices were assisted
by the presence of the governor, members of the council or judges of
the provincial court, after its establishment, all of whom were _ex
officio_ of the commission of the peace. In the minutes of the court
of Bucks County it is noted that on the 4th and 11th day, 1 mo., 1683,
the governor, William Penn, was present and held an orphans’ court. The
county courts with their vague and indefinite jurisdiction in civil and
criminal causes and county affairs would seem to have been regarded
with favor by Penn, who was averse to complicated procedure; hence at
the first assembly held at Chester, December 7, 1682, there is little
said of the courts, although in the “Great Body of Laws” then adopted
will be found most important modifications of the common law both as to
persons and property.[105]
At the session, in March, 1683, it was enacted that in every precinct
three persons should yearly be chosen as common peacemakers, to whom
differences might be submitted for arbitration and whose findings
should be as conclusive as those of the county court. In the minutes
of the provincial council, 7th, 9 mo., 1683, will be found a case
“referred to the peacemakers and in case of refusal to the County
Court.”[106] Voluntary arbitration was then an accepted method
of settling disputes in England, particularly in cases involving
merchants’ accounts, enforced by bond conditioned to submit to the
award, and arbitration, by rule of court, was adopted by Statute 9
and 10 William III, ch. 15. We have also seen that from the earliest
period the practice prevailed in New York and its dependencies. The
office of peacemaker, however, seems to have survived only until 1692
when the assembly decided that the law was not in practice. Arbitration
was long a popular method of trying cases and beginning with the Act
of January 12, 1705,[107] a law for reference by rule of court in the
spirit of the statute of William III, there is a long series of acts
perfecting this method of disposing of litigation. The early dockets of
the supreme and common pleas courts are full of rules for references
and voluntary submissions.
At the session of 1683 it was enacted that the first process in every
suit should be the exhibition of a complaint _fourteen_ days before
trial, that the defendant should be summoned _ten_ days before trial
and furnished with a copy of the complaint, which was required to be
delivered to him at his dwelling house. The jurisdiction of the county
courts was also more clearly defined.
“That all actions of debt, Accompt, or Slander, and all actions of
Trespass, shall be henceforth first tryed by there respective County
Court, where the Cause of action did arise.
“And if any person shall think himself aggrieved with the Judgement
of the County Court, That then, such person may Appeal to have the
same tryed before the Governour and Council; Provided always that
the same be above twelve lbs. And that the person appealing, do put
in good, and sufficient Security, to pay all Costs and Damages, if
hee shall be cast, as also to pay the Cost and Charges of the first
Suit.”[108]
The legislative activity of Penn and the assembly during the early days
of the colonization of Pennsylvania was such as to render it difficult
to follow all the changes in procedure. No colony started with a more
complete and original code, but much was necessarily experimental and
was gradually modified under the influence of practical experience. The
change in the dynasty and the political vicissitudes of the proprietor
were also disturbing elements and an atmosphere of uncertainty
surrounds much of the legislation prior to Penn’s second visit to
America. In 1693, when Penn’s government was suspended and Governor
Fletcher of New York in charge, an investigation showed the rolls of
the laws in confusion and not passed under the great seal. There was
no certain evidence either that they had been transmitted to the privy
council for approval, although David Lloyd and John White stated that
they knew that Penn had delivered some at least of the laws to the
king in council.[109] In 1694 some of the laws were sent over, for on
August first of that year Penn appeared before the committee on trade
and plantations and objected to the act about recording deeds. On the
third of August following the attorney-general gave his opinion on the
acts and the committee agreed to approve of nineteen, to repeal two
and to hold five until the general assembly had given them further
consideration. From the titles, which alone are given in the journal of
the board of trade, the acts referred to are apparently those passed
in 1693 under Governor Fletcher and include one “about appeals to the
Supream Court.”[110] On December 31, 1697, Penn laid some more laws
before the commissioners of trade[111] but the minutes do not state
what they were or what action was taken on them. However, this much
is certain, that in their more general provisions these laws were
recognized and to some extent observed, but the unsettled political
conditions, brought about partly by the absence of the proprietor
after 1684 and the English revolution of 1688, led to confirmations,
reënactments and repetitions of statutes in varying phraseology, which
must have caused confusion, particularly as the laws were not at this
time allowed to be printed, manuscript copies being filed in the county
courts with the president or clerk.[112] Hence, the text of acts
passed before 1700 must be accepted with considerable reserve and it is
difficult to determine just how far the more experimental features were
enforced.
The county courts were vested with criminal jurisdiction in all
except such important crimes as treason, murder and manslaughter and,
after 1693, burglary, rape and arson. At times, however, a special
commission of oyer and terminer was issued to some of the justices
to try a special offender or to clear the jail. The offenses for
which indictments were most frequently found and trials had were for
drunkenness, larceny, profanity, assault and battery and breach of
the peace, offenses against morality, “selling rum to the Indians,”
speaking disrespectfully of the magistrates and breaking the Sabbath.
In the lower counties there are occasional arrests on suspicion of
piracy and smuggling. The following entry in the Chester County court
records carries a faint echo from Monmouth’s Rebellion:--
“Ordered that the sheriff take into his custody the body of David
Lewis upon suspicion of treason, as also the body of Robert Cloud for
concealing the same; for that he the said Robert Cloud being attested
before this court, declared that upon the 3d day of the weeke before
Christmas last at the house of George Foreham, the said David Lewis
did declare in his hearing that he was accused for being concerned
with the Duke of Monmouth in the West Country.”[113]
On the civil side the practice at this period did not differ materially
from that under the Duke of York, although there is a gradual
improvement in the forms and methods of procedure and in the use
of legal terms, as the courts acquired experience or became better
informed as to their duties through the importation of law books into
the province. Although without legal training, the justices lived in
a time when a knowledge of the rudiments of the law and the ordinary
forms of conveyancing were essential to a gentleman, or merchant of
importance, and a copy of Dalton’s Justices with the acts of assembly
would meet most of the requirements of a rustic community. Some at
least of the justices were drawn from the same class as supplied the
quarter sessions in the rural districts of England.
A difficulty seems to have confronted them in properly upholding the
dignity of the courts. A rule of the Philadelphia County court for
1686, after reciting that many disorders had been committed in the
courts of this county, partly through ignorance and partly through
negligence of otherwise well-meaning persons, goes on to order--
“That plfs, dfts, and all other psons speake directly to the point in
question, & yt they put in their pleas in writing (this being a Court
of record) & that they forbeare reflections & recriminations either
on the Court, Juries or on one another; under penalty of a fine.”[114]
Nor were the judges always free from fault themselves. Justice Luke
Watson of Sussex County was in 1684 twice fined by his colleagues for
“smoakin tobacco in the Court house,”[115] the first time fifty and
the second time one hundred pounds of tobacco, an instance where the
punishment certainly fitted the crime. Another justice was fined five
shillings for swearing.[116] In the same county in 1687 one Thomas
Jones refused to attend court when summoned and a constable and two
justices were sent to fetch him, whom he roundly cursed. The record
adds:--
“The said Jones being brought to the Court, the Court told him of his
misdemeanor, and told him he should suffer for it; he told the Court
he questioned their power, soe the Court ordered the Sheriff and
Constable to secure him and they carryed & dragged him to ye smith
shop where they put irons upon him, but he quickly got the Irons off
and escaped, he having before wounded several persons’ legs with his
spurs that strived with him, and when they was goeing to put him in
the Stocks, before that they put him in Irons, he kicked the Sheriff
on the mouth and was very unruly and abusive, and soone got out of
the Stocks.”[117]
The grand jury of Philadelphia County in 1686 presented Justice James
Claypoole “for endeavoring by an indirect way to preposess Judge Moore
in a case yt was to be tryed before him in the provinciall court,
being by us lookt upon to be of a dangerous Consequence,” and “for
menacing and abusing ye jurors in ye triall of John Moon which was an
infringement of ye rights and properties of ye people.”[118]
In the trial of cases the procedure was characteristically simple. If
the plaintiff failed to serve his process he was nonsuited; if the
defendant failed to appear judgment was entered against him. If both
parties were present the defendant was called on for his answer, which
could set up any defense legal or equitable or claim a set-off.[119]
The law required the pleadings to be short and in English. The parties
would sometimes leave the case to the bench without a jury,[120]
particularly in the lower counties, but if a jury was called, it
consisted invariably of twelve men. After verdict judgment was entered
and the practice survived for some time of entering judgments in
kind--perhaps reaching a climax in an entry of judgment for “one
thousand of six-penny nails, and three bottles of rum.”[121]
As to process of execution, we know little except that the proceedings
would seem rather summary. An order of council was made in 1686 “yt
there should be tenn days Respite between judgm^t given in ye County
Courts within this Province and Territoryes in all Civill Causes, and
signing the execution thereoff, and that in the Prov^{ll} Court no
Execution shall be served until eight days after judgm^t given.”[122]
To this the assembly in 1687 made strenuous objection and urged that
the order be revoked, whereupon the council decided to leave the matter
to the discretion of the courts.[123] There are recorded several
petitions to the council for relief against executions on judgments
entered by default, and others for relief against vexatious and
oppressive executions. In one of these a widow complains that judgment
having been obtained against the estate of her deceased husband, the
sheriff had levied on the plantation where she and her children dwelt,
although there was sufficient property elsewhere to satisfy the debt.
The council sent for the sheriff and told him that if there were other
effects of the decedent he ought not to levy on the plantation where
the widow and children lived.[124] In other cases relief seems to have
been given on account of the poverty of the defendant, a practice that
would pave the way for the debtor’s exemption law.[125]
In criminal cases the sentences were usually limited to fines,
whippings or the stocks. Sentences to terms of imprisonment were rare;
the colony could ill afford to spare the labors of any individual,
however depraved, and still less was it inclined to support him in
idleness. Penn’s incarceration in Newgate had familiarized him with the
evils of prison life and he expressly ordained that prisons should be
workhouses.[126] Such prisons as were built at this time were neither
particularly commodious nor strong. In 1688 the council found it
necessary to reprimand the sheriff of Sussex for permitting a dangerous
prisoner to be at large. The prisoner magnanimously sent word to the
council that he would yield himself up rather than “ye sheriff should
suffer.”[127] A similar reprimand was administered to the sheriff of
Philadelphia for permitting two prisoners suspected of piracy to go at
large, to which the sheriff replied, that they never went without his
leave and a keeper, “w^{ch} hee thought might have been allowed in hott
weather.”[128]
By the Act of March 1, 1683,[129] the justices of the county courts
were required to sit twice a year as an orphans’ court. The name as
well as the original purpose of this court was derived from the court
maintained by the corporation of London, which, by immemorial custom,
had charge of the estates of orphans of freemen of the city. The
practice and jurisdiction of the court, which will be discussed later,
differed from that of its prototype but was not distinctly settled at
this time, and we find the provincial council taking cognizance of
matters that subsequently were assigned to this tribunal or to the
register’s court, such as the appointment of administrators, and sale
of land for debts.
Prior to 1684 there existed in the province no tribunal having
cognizance of appeals other than the provincial council, which, in some
degree, supplied the place of the general court of assizes under the
Duke of York’s Laws. As the colony grew, the ever increasing number
of appeals took up more and more of the council’s time and made this
duty exceedingly burdensome, not to speak of the inconvenience to the
suitors in traveling to Philadelphia with their witnesses for a hearing
_de novo_. To remedy this inconvenience the Act of May 3, 1684[130],
was passed, which provided that there should be five provincial judges,
appointed by the governor, any three of whom should form the provincial
court and sit twice a year in Philadelphia, while two of them should
every spring and fall go on circuit into every county and there hold
court. The court was to hear and determine all appeals from inferior
courts and all causes, criminal and civil both in law and equity not
determinable in the county courts. In 1685 the number of judges was
reduced to three, but the original number was restored by the Acts of
1690 and 1693.[131] A commission was accordingly issued by Penn to five
judges, of whom Nicholas Moore was named first, the commission to be
in force for two years.[132] The law did not fix any definite period
for service and the commissions were drawn for various periods. In one
instance it is noted in the minutes of the council that the commission
is to continue “only for this present court.”[133] Jealousies quickly
arose as to the geographical apportionment of the judges and in 1687
the assembly requested that at least one of the judges be named from
the lower counties.[134] In 1690 the appointment of the judges caused
a split in the council, the members from the lower counties objecting
to the naming of but one judge from the territories and also demanding
that, according to what they stated was the proprietor’s example, two
commissions issue, one for the province and one for the counties, so
that each would have a chief justice from its own district. Unable to
prevail on their colleagues, the members from the lower counties held a
separate meeting and drew up commissions to suit themselves.[135] The
keeper of the great seal, however, refused to seal these commissions
and at a regular meeting of the council, subsequently held, the action
of these members was denounced as irregular and annulled. This was the
first open manifestation of the dissatisfaction of the territories
with the union with Pennsylvania, which continually increased until a
separate government was obtained.
The provincial court did not at once command or obtain the respect and
influence due to the chief judicial tribunal of the colony. It was
founded in the most trying times, when political dissensions among the
leading colonists and war and revolution in England distracted the
province. The terms of office were irregular, the compensation wholly
inadequate and the journeys on circuit tedious and even dangerous.
It is not to be wondered at that it was difficult to induce properly
qualified men to accept a place on the bench and that nominees for that
honor sought excuses to decline the office. No traces of the records
and opinions of the court at this time have come down to us and they
cannot have been bulky, for, when the council in 1688 sent for the
records, they were informed by the clerk that “they were not recorded
otherwise than in a quire of paper.”[136] The duties of the judges did
not at first compel them to grapple with legal problems with a view to
the value of their decisions as precedents. The correction of errors
arising on issues of fact and the trial of the more serious crimes
probably made up the bulk of the business. As time went on the court
strengthened its position, and appeals to the council became less and
less frequent, until in the early eighteenth century the two bodies,
executive and judicial, assumed their normal functions.
It is sad to relate that Nicholas Moore, the first chief justice of the
provincial court, was impeached by the assembly within a year after the
creation of the court. Moore was a physician as well as president of
the Society of Free Traders and a large purchaser of land from Penn.
Although not a Friend he immediately obtained a position of influence,
was elected to the assembly and was speaker in 1684. While capable
and energetic he lacked tact and discretion and assumed an arrogant
tone which offended his fellow members of the assembly and gave still
greater offense after his elevation to the bench. In the minutes of the
assembly there are numerous instances of his interruptions and protests
during the consideration of bills.[137] It was reported to the council,
during the session of 1684, that the speaker had said: “The proposed
laws were cursed laws” and “hang it Damn them all.”[138] The principal
complaints against his conduct on the bench seem to have come from the
lower counties. Ten formidable articles of impeachment were presented,
among which were the following:--
“The said Nich. Moore, Judge, having that high Trust Lodged in him
for the Equall Distribution of justice, without respect of Persons,
the said Judge Sitting in Judgemt at New Castle, hath presumed to
cast out a person from being of a Jury, after ye said Person was
Lawfully attested to ye True Tryall of ye Cause, thereby rending
an Innocent & Lawful Person Infamous in the face of the County, by
rejecting his attestation after Lawfully Taken, and Depriving the
plantif of his just Right.
“The said Nich. Moore, Sitting in judgmt, did in ye towne of New
Castle, refuse a verdict brought in by a Lawfull Jury, and by
Divers threats & Menaces, and Threatening ye jury with ye same of
Perjury and crim of their Estates, forced ye said Jury to goe out so
often--until they had brought a Direct Contrary verdict to the first,
There, by preventing justice, and wounding the Libertyes of ye free
people of this Province and Territories in the Tenderest point of
their Privelege, and violently Usurping over ye Consciences of the
Jury.
“The said Nich. Moore assuming to himselfe an Unlimited and unlawful
Power, did, Sitting in Judgmt at ye aforesaid Towne of New Castle,
wherin two persons stood Charged in a Civil action, it being in
its own Nature only Trover & Convertion, and ye pretended Indictmt
raised it no higher, notwithstanding the said Moore did give the
judgmt of fellony, Comending the Defendant to be Publickly Whipt, &
Each to be fined to pay three fould, thereby Tyranizeing over the
persons, Estates and reputations of the people of this Province and
Territories, Contrary to Law and Reason.
“The said Nich. Moore, Sitting in judgmt at Chester, did in a most
Ambitious, Insulting, & Arbitrary way, reverse and Impeach the judgmt
of ye Justices of ye said County Court, and Publickly affronting
the members thereof, although the matter came not regularly
before the said Circular Court, thereby drawing the Magistrates
into the Contempt of ye people, and Weakening their hands in the
administration of justice.”[139]
A committee of five was appointed to manage the impeachment, one of
whom was Abraham Mann, whom we have previously seen engaged in the
prosecution of Justice Moll before the court of assizes in New York.
The council showed little disposition to further this impeachment
but treated the accusers with due civility and fixed a time for the
hearing. Moore, however, was by no means inclined to submit tamely to
the proceedings, and in the house, of which he was still a member,
accused Abraham Mann of being “a person of seditious spirit,” in
which he was probably right. The house, however, expelled Moore and
proceeded to collect evidence for the prosecution. They met with a
decided obstacle in the conduct of Patrick Robinson, clerk of the
court, who declined to produce the records of the court, declaring
that they were “written in Latin where one word stood for a sentence,
and in unintelligible characters which no person could read but
himself, no, not an angel from Heaven.”[140] But this did not end his
offenses; he declared the articles of impeachment were drawn “hob nob
at a venture” and threatened to “have at” the speaker when he was “out
of the chair.” The house issued a warrant for Robinson’s arrest and
requested the council to remove him from office. From the hearing on
the impeachment Moore contemptuously absented himself, but the evidence
was thought sufficiently grave by the council to suspend the judge
from his official functions until the matter was finally decided.
The council showed every disposition to treat Moore with leniency,
although it had been testified that he had called the members thereof
“fooles and Logerheads, and said it were well if all the Laws had
drapt and that it would never be good Times as Long as ye Quakers had
the administration.” Knowing the proprietor’s predilection for Moore
the house addressed a letter to Penn on the subject, a quotation from
the last paragraph of which shows that in spite of their quarrels and
jealousies they still regarded him with affection.
“Dear and honored Sir, the honor of God, the love of your person,
and the preservation of the peace and welfare of the government,
were, we hope, the only centre to which all our actions did tend,
and although the wisdom of the assembly thought fit to humble that
aspiring and corrupt minister of state, Nicholas Moore, yet to you,
dear sir, and to the happy success of your affairs our hearts are
open, and our hands ready at all times to subscribe ourselves, in the
name of ourselves and all the freemen we represent, Your obedient and
faithful freemen.
JOHN WHITE, Speaker.”[141]
By one excuse after another the council prevented further proceedings
in the impeachment until the matter was lost sight of in the discussion
of more important and perplexing affairs of state which soon required
attention.
The provincial council, although not strictly a court, for a long time
exercised judicial functions and, through the fortunate preservation
of its minutes, is by far the best known of the early tribunals.
The exercise of judicial functions by the governor and council was
strictly in accordance with the custom in other proprietary and royal
provinces, and that judicial and executive functions were found
incompatible in Pennsylvania so early in its history is a clear
indication of the rapid growth of a democratic and progressive spirit
in that province.
The extraordinary growth of the colony, the long absences of the
proprietor in England and the large measure of self-government which
the citizens enjoyed, threw upon the council an amount of executive
business which made judicial duties particularly onerous, and numbers
of petitions and appeals were referred back to the courts. Aside from
their judicial duties the governor and council, as an executive body,
appointed the judges and magistrates, regulated commerce, conducted
negotiations with the Indians and the other colonies, subdivided
counties, laid out towns, established fairs and markets, ordained
the principal highways, bridges and ferries, and exercised a general
supervision over local administration. As a legislative body, they
drew up all the laws, prior to 1693, when that right was assumed by
the assembly, being finally transferred to that body by the Frame of
Government of 1701. By that instrument also, the council, no doubt to
its great relief, was expressly deprived of judicial functions.
During the first twenty years of its existence the amount of
judicial business transacted in the council was large; prior to the
establishment of the provincial court it was the only general tribunal
and was not only a court for hearing appeals but also a court of first
instance for such suitors as could obtain a hearing before it. This, of
course, was natural at the first settlement, as a matter of practical
necessity. We therefore find in the early part of the minutes, trials
for petty offenses and the collection of small debts. They seem
to have been obliged even to discipline their own members, for at
the fifth meeting of the council one of its members was fined five
shillings “for being disordered in Drink.”[142] The council seems to
have exercised its good offices in composing differences. In 1684 there
is the following entry:--
“Andrew Johnson Pl. Hance Peterson Deft. There being a difference
depending between them, the Govr. & Council advised them to shake
hands and to forgive One another. And Ordered that they should Enter
in bonds for fifty pounds apiece, for their good abearance; which
accordingly they did. It was also Ordered that the Records of Court
concerning that Business should be burnt.”[143]
There are other cases where the council would seem to have acted more
as a final board of arbitration than as judges in the strict sense.[144]
Prior to the establishment of the provincial court in 1684, the council
heard all appeals, and although after that time such appeals were
discouraged, they nevertheless continued to be brought before the
council for some years. Besides regular appeals, there were numerous
petitions for executive clemency, complaints against severe sentences
in criminal cases and, in civil cases, petitions for relief against
judgments entered by default and against executions which bore too
severely on the debtor. In one early case, on appeal from the county
court of Philadelphia, it was shown to the council that the case
concerned the title to land in Bucks County, when the law required
cases to be tried where the cause of action arose. The council remitted
the case to the court of Bucks County and fined the Philadelphia court
“forty pounds for giving judgment against law.”[145]
As an illustration of the practice on appeal to the council the case of
_Grantham_ v. _Wollaston_[146] may be cited:--
One Wollaston purchased a negro from Grantham and gave a bond for £26,
15 s. in payment. Judgment was entered on this bond by the New Castle
County court, execution issued and a portion of the defendant’s land
sold by the sheriff to Grantham for £30, 10 s. and the latter was put
in possession. Wollaston on the 18th, 3 mo., 1687, petitioned to the
council at Philadelphia averring that the county court had denied him
an appeal to have his case heard in equity. After reading a copy of the
proceedings the council directed the secretary to take security for the
prosecution of the appeal at the next provincial court and ordered the
county court to stop all proceedings. The provincial court on the 10th,
2 mo., 1688, made an order restoring Wollaston to possession, which,
it was explained later by one of the judges, was not intended to be
executed “until the debt and damages were satisfied.” On the 7th, 12
mo., 1688-9, Wollaston again petitioned the council, complaining of a
forcible entry and detainder, whereupon it was resolved that a warrant
be drawn, directed to the justices of the peace dwelling “nearest to
ye place where ye fforce is alleaged,” to make a view and, if they
found no force, to require the sheriff to summon a jury to inquire
into the facts and thereupon to imprison the offender and restore
quiet possession to the petitioner. On March 4, 1688-9, the clerk of
the county court returned to the council the finding of the jury,
which was in effect that Grantham had been the victim of the forcible
entry. “This was judged by ye board to be a great affront and contempt
of their authority.” Grantham’s wife then petitioned the council
setting forth her husband’s side of the case, and the assembly also
remonstrated against the action of the provincial court and requested
the council to rehear the whole matter “as the supreame judges of this
government.” Governor Blackwell and the council, accordingly, proceeded
to New Castle where, on March 13 and 14, 1689, the facts were again
reviewed. Both parties were called in and “endeavors used with both of
them to agree the matter between themselves,” but in vain. Wollaston
declared he had better be without the land than pay £30, 10 s. for
it, and on the other hand Grantham refused to take back the negro,
contending justly that the defendant had had several years’ use of
his purchase while the plaintiff had been out his money. The council
thereupon resolved and ordered that the sheriff’s sale to Grantham
should be confirmed and that he should be restored to possession, that
this should be in full of all demands against Wollaston, debt, damages
and charges, and “that this be the finall conclusion & judgement of
this board in that case.”
It has been observed that the judicial powers exercised by the
council resembled those wielded by the court of star chamber in its
purest and best days,[147] but however beneficial such control was
in correcting the errors of an amateur judiciary, it was contrary
to the constitutional principles then uppermost in English minds
after a century-long struggle with absolutism. Accordingly, when the
revision of the Frame of Government was under consideration in 1701,
the assembly petitioned that no person should be answerable before
the governor and council or in any place but an ordinary court of
justice.[148] Penn replied that he knew of no person obliged so to
answer,[149] but he inserted the following clause in the new charter:--
“That no person or persons shall or may, at any time hereafter, be
obliged to answer any complaint, matter or thing whatsoever Relateing
to Property before the Govern^r and Council, or in any other place
but in the ordinary Courts of Justice, Unless appeals thereunto shall
be hereafter by Law appointed.”[150]
The council was also the only court for the trial of serious crimes
until 1685, when that jurisdiction was conferred on the provincial
court. Important cases of this kind were those of the Proprietor
against Pickering for counterfeiting[151] and against Margaret
Mattson[152] for witchcraft. The latter case is peculiarly interesting
as illustrating the superstition of the times and in its outcome
was most creditable to the common sense of Penn and the jury. The
accusation against the woman was that she had bewitched the witness’s
cattle, but the evidence was mostly hearsay, as the defendant herself
cleverly pointed out. The verdict of the jury was: “Guilty of haveing
the Comon fame of a Witch, but not Guilty in manner and forme as Shee
Stands Indicted.” The defendant was permitted to go, on entering
bond for good behavior. The fear of witchcraft did not disappear for
some time in Pennsylvania. In 1695, the grand jury of Chester County
presented “Robert Roman of Chichester for practising Geomacy according
to Hidon and Divining by a Stick.” The accused submitted to the court,
was fined five pounds and ordered “never to practice the arts” but
behave himself well, which he promised. His books, “Hidon’s Temple of
Wisdom,” “Scot’s Discovery of Witchcraft,” and “Cornelius Agrippa’s
Necromancy,” were ordered to be brought into court.[153] Another
accusation of witchcraft was brought to the attention of the council in
1701 but dismissed as trifling.
The jurisdiction of the council in admiralty matters was a source of
much trouble to them.[154] There are numerous cases in the minutes
relating to seamen’s wages, pilots’ fees, violations of the navigation
laws and complaints against masters for ill treatment of passengers.
An example of the last is the case of _March_ v. _Kilner_[155] where
the master of the ship was charged with beating the passengers and
permitting the crew to drink their beer. Kilner denied everything,
“only ye kicking of the maid.” He was reprimanded and advised to “make
up the business w^{ch} accordingly he did.” The proprietor was, by his
charter, personally charged with the duty of seeing to the enforcement
of the English navigation acts and that fines and duties were imposed
and collected according to that complicated and, as the colonists
thought, burdensome system. The responsibility for the execution of
these laws rested upon the council and many were the complaints to the
home government of their indifference and laxity in these matters.
Indeed Penn was obliged to write to them in 1697 urging the enforcement
of the laws and stating that it had been reported to him “that you
doe not onlie wink att but Imbrace pirats, shipps and men.”[156] The
council indignantly denied this accusation and reported:--
“Wee know of none that has been entertained here, unless Chinton &
Lassell, with some others of Avery’s Crew, that happened for a smal
time to sojourn in this place, as they did in some of the neighboring
governments; but as soon as the magistrats in Philadelphia had
received but a Copie of the Lords Justice’s proclamation, gott all
that were here apprehended, & would have taken the Care & Charge of
securing y^m, untill a Legall Court had been erected for their trial,
or an opportunity had presented to send y^m to England; but before
that Could be effected, they broke goale & made their escape to New
York, where Hues & Crys wer sent after y^m.”[157]
Nevertheless the records of the time are full of references to piracy,
and Pennsylvania was reported to have “become ye greatest refuge &
Shelter for pirats & Rogues in America.” Undoubtedly the “pirats
and rogues” took advantage of the mild temper and humanity of the
Quaker justices. In 1698 the town of Lewes was plundered, a woeful
account of which is contained in a letter from the local justices to
Lieutenant-Governor Markham, and in 1700 it was reported to Penn that
the great Captain Kidd was lying off Cape Henlopen and trading with
some of the inhabitants.[158]
To deal with such matters, a court of vice admiralty was established,
by the Crown, for Pennsylvania and the territories in 1697, of which
Colonel Robert Quarry was appointed judge. Quarry was a former
governor of South Carolina, a vain and quarrelsome person who disliked
the Friends and was bitterly opposed to the proprietary system of
government. Almost immediately after his appointment his court came
into conflict with the county court of Philadelphia. Certain goods
having been seized by the collector of customs under a warrant issued
by Colonel Quarry, a judge of the county court at the instance of David
Lloyd, a lawyer and member of the council, granted a writ of replevin
under which they were taken from the collector. Quarry was exceedingly
indignant at this and complained both to the home government and to the
governor and council, who made such apologies as they could, handed
over the replevin bond to him, and reprimanded the judge, who tendered
his resignation.[159] David Lloyd, however, was as obstinate and
hot-headed as Quarry himself. At the succeeding county court he brought
an action against the marshal for the detaining of the goods. In the
words of Quarry--
“Ye marshall being called to defend the sute, hee produced in his
owne Justificaon His maties Lres pats, undr ye broad seal of ye High
Court of Admiraltie, with the Judges warrt for ye seizure aforesaid,
which sd patent having in the frontis piece his most sacred maties
effigies stampt, with the sd seal adpendant, the sd David Lloyd, in a
most insolent & disloyal manner, taking the sd Commission in his hand
& exposing it to ye people, did utter & publish these scurilous &
reflecting words following, viz:--what is this? do you think to scare
us wt a great box (meaning ye seal in a tin box) and a little Babie;
(meaning ye picture or effigies aforesaid); ’tis true, said hee, fine
pictures please children; but wee are not to be frightened att such a
rate; & many more gross & reflecting expressions on his matie to ye
like effect.”[160]
For this and other insults to the court of admiralty, Penn, by order
of the board of trade, suspended Lloyd from the council and dismissed
him from all public employment and he from that time became a bitter
opponent of the proprietor.[161] Nevertheless in spite of stringent
laws and a more systematic patrol of the coast by cruisers it was
long before pirates ceased to be a menace to commerce. In 1712 Logan
wrote, “We have been extremely pestered with pirates who now swarm in
America and increase their numbers with every vessel they take.”[162]
In 1718 Governor Keith in calling the council’s attention to the losses
sustained by the colony through piracy, said that he was informed that
Teach had been lurking for some days in and about Philadelphia and that
he suspected that many of the pirates who had surrendered under an
offer of pardon still kept up a correspondence with their companions
abroad. The Teach referred to was the notorious pirate “Blackbeard” who
was shortly after killed in an encounter with a vessel fitted out by
Virginia for his capture.[163]
It must not be supposed that either the provincial court or the
council, in its judicial capacity, was a court of last resort. Under
the charter the right was reserved to the king to hear and determine
appeals from all judgments given in the province, and until the
Revolution there was no court of last resort in Pennsylvania. A
reference to this subject is contained in the commission of William and
Mary to Governor Fletcher wherein it is provided that if either party
to a civil cause is dissatisfied with the judgment of the superior
court of the province “they may then appeale unto us in Our privy
Council, provided the matter in difference exceed the real value and
Sum of three hundred pounds Sterling.”[164] The Act of October 28,
1701,[165] contained provisions for appeals to England but no limit of
money value was fixed. While the right to such appeals to England was,
in this colony, unquestioned, the difficulty and expense of prosecuting
them was such as to render them infrequent. In 1685 an appeal to
England was allowed by the provincial court upon entry of security, but
from the discussion in the council it would seem that the appellant
failed to enter security as required.[166]
In December, 1699, Penn returned to America and began the work of
reconstructing the government of the province, which had been restored
to him on the express condition that he would put an end to the
existing state of confusion.[167] The political and constitutional
history of provincial Pennsylvania has been ably and thoroughly treated
elsewhere[168] and it is not our purpose to refer to it except as it
affected the courts. Suffice it to say that the period of utopian and
paternal experiments had closed and that thereafter the proprietor
and his successors were engaged in a struggle to maintain a difficult
position between two fires; on the one side a democracy, selfish,
narrow and individualistic, and on the other a home government,
critical and contemptuous, that regarded the colony as little more than
a nest of republicans and smugglers. Penn found the assembly determined
to strengthen its position and after much fruitless discussion, granted
a charter conferring very extended powers on the legislative body and
containing little else of constitutional importance.[169] Nothing was
said of the judges. The provincial court was then an insignificant
factor in the political life of the province and the organization of
the courts was left to be regulated by an act of assembly, which will
be referred to presently.
With the adoption of the charter of privileges of 1701, the government
of the province assumed a form that it was to retain until the
Revolution. The power of proposing and enacting laws passed to the
assembly and the council ceased to exercise judicial powers. More
important still, the council ceased to be an elected body and was
thereafter appointed by the proprietor or in his absence by his
lieutenant-governor. The effect of this was to throw into the assembly
the abler spirits of the opposition and greatly strengthen that body,
while the council, chosen from among the friends of the governor or
proprietor, was thereafter regarded as representing the proprietary
interests rather than those of the populace.
One humble court has not been referred to, that of the coroner. The
following is a specimen of a verdict taken in 1699 in Chester County:--
“We whose names are underwritten, summoned and attested by the
Coroner to view the body of Sarah Baker, haveing made strict enquiry,
and alsoe had what evidence could be found, attested to what they
know, and wee can find noe other but that it pleased Almighty God
to visit her with death by the force of Thunder; and to this we all
unanimously agree.”[170]
Who will say that this is not quite equal in intelligence to the
verdict of the average coroner’s jury at the present time?
FOOTNOTES:
[1] _Cromwell_ v. _The Bank_, 2 Wallace, Jr. Reports, 569 (1853), at
page 589.
[2] “I have several times solicited to obtain a learned and able man
to administer justice and attend to the law business.” Report dated
February 20, 1647, to the West India Company. Records of Court at
Upland, Introduction, p. 29; V Pennsylvania Archives (2d Series), 766.
[3] VII Pennsylvania Archives (2d Series), 511, 531. This policy
seems to have alarmed the home authorities. VII Pennsylvania Archives
(2d Series), 555.
[4] Hazard’s Annals of Pennsylvania, 205.
[5] New York Colonial Documents, Vol. XII, 133.
[6] New York Colonial Documents, Vol. XII, 149.
[7] New York Colonial Documents, Vol. XII, 150.
[8] Records of New Amsterdam Court, Vol. I, 358.
[9] O’Callahan’s History of New Netherlands, Vol. I, 220; VII
Pennsylvania Archives (2d Series), 521, 528, 534; Hazard’s Annals of
Pennsylvania, 221.
[10] Hazard’s Annals of Pennsylvania, 220; V Pennsylvania Archives
(2d Series), 459.
[11] Howard’s Matrimonial Institutions, Vol. II, 376.
[12] VII Pennsylvania Archives (2d Series), 634.
[13] Hazard’s Annals of Pennsylvania, 330, 333; VII Pennsylvania
Archives (2d Series), 670, 672, 680.
[14] Hazard’s Annals of Pennsylvania, 407; VII Pennsylvania Archives
(2d Series), 758; Whorekill is a corruption of Hoorn Kill, Sussex
Records (Turner), 2.
[15] VII Pennsylvania Archives (2d Series), 662.
[16] Constitutional law by S. E. Baldwin in Two Centuries Growth of
American Law, 11.
[17] V Pennsylvania Archives (2d Series), 494.
[18] V Pennsylvania Archives (2d Series), 544.
[19] Reinch’s Colonial Common Law, reprinted in Select Essays in
Anglo-American Legal History, Vol. 1, 367.
[20] V Pennsylvania Archives (2d Series), 501, 507.
[21] Broadhead’s History of New York, Vol. II, 66. Governor Nicolls
writes to Clarendon April 7, 1666: “My Lord, I have remitted for
confirmation to his Royal Highness the present Lawes of this Colony
collected out of the Lawes of the other Colonyes, onely with such
alterations as may revive the memory of old England amongst us,
ffor Democracy hath taken so deepe a roote in these parts, that ye
very name of a Justice of the Peace is an abomination.” New York
Historical Society Collections, 1869, p. 75.
[22] Laws of Massachusetts Colony (1672), 61. The Act of 1661
provided that “Vagabond Quakers” should “be stripped naked from the
middle upwards, and tyed to a Carts tail, and whipped through the
Town, and from thence immediately conveyed to the constable of the
next Town towards the borders of our jurisdiction, as their warrant
shall direct, and so from constable to constable till they be
conveyed through any the outward-most Towns of our jurisdiction.” If
the Quaker returned he was to be branded and whipped as before and if
he returned again suffer death. The Act of 1662 reduced the whippings
to three towns.
[23] Story, J., in _Van Ness_ v. _Packard_, 2 Peter’s Reports (U.
S.), 144 (1829); _Commonwealth_ v. _Knowlton_, 2 Massachusetts
Reports, 530 (1807); _Bogardus_ v. _Trinity Church_, 4 Paige’s
Reports (N. Y.), 197 (1833).
[24] Blackstone’s Commentaries Introduction, page 107, and Notes of
American Editors, particularly Hammond; _Johnson_ v. _McIntosh_, 8
Wheaton’s Reports (U. S.), 582 (1827).
[25] _Anonymous_, 2 Peere Williams’s Reports, 74 (1722); _Blankard_
v. _Galdy_, 2 Salkeld’s Reports, 411 (1694); _Anonymous_, 1 Dallas’s
Reports, 1 (1754).
[26] Chalmer’s Opinions, 208; Report of the Judges, 3 Binney’s
Reports, 595 (1808); Pepper & Lewis’s Digest of Pennsylvania
Decisions, Vol. XX, col. 35347; _Commonwealth_ v. _Burrell_, 7
Pennsylvania Reports, 34 (1847).
[27] Sioussat’s English Statutes, reprinted in Select Essays in
Anglo-American History, Vol. I, 416.
[28] Charter and Laws of Pennsylvania, 35. Upon such complaints of
inconveniences and omissions the laws were several times amended.
Charter and Laws of Pennsylvania, 58, 60, 68.
[29] Charter and Laws of Pennsylvania, 3; see also page 51.
[30] Records of Court of New Amsterdam, Vol. I, 226, 230, 237, 268,
299.
[31] Steven’s Essay on Arbitration, 105. The principle of compulsory
arbitration in partnership disputes was recognized in France by an
edict of Francis II (1560) and an ordinance of Louis XIV (1673),
incorporated in the Code Napoleon, L. 1, tit. 3, 2.
[32] Records of the Court of New Castle, 94.
[33] Records of the Court of New Castle, 292.
[34] Charter and Laws of Pennsylvania, 11. The Court of Assizes was
abolished in 1684 by Act of Assembly. Scott’s History of Courts of
New York, 104.
[35] Laws of Massachusetts Colony (1672), 3; compare Charter and Laws
of Pennsylvania, 7.
[36] Charter and Laws of Pennsylvania, 4.
[37] The law was soon amended “that Inn keepers or Ordinary keepers
shall not bee obliged to put any perticuler quantity of Mault into
their Beere.” Charter and Laws of Pennsylvania, 64. For a petition
for a license to keep an ordinary see Records of Court of New Castle,
312.
[38] Charter and Laws of Pennsylvania, 4.
[39] Charter and Laws of Pennsylvania, 11.
[40] Charter and Laws of Pennsylvania, 44, 69.
[41] Charter and Laws of Pennsylvania, 60.
[42] Charter and Laws of Pennsylvania, 22.
[43] “The w^{ch} they will bee at y^e charge of themselves.” VII
Pennsylvania Archives (2d Series), 737.
[44] Charter and Laws of Pennsylvania, 33.
[45] The Connecticut Laws of 1650 (Hartford, 1833), 60.
[46] Charter and Laws of Pennsylvania, 60.
[47] Charter and Laws of Pennsylvania, 69.
[48] Records of the Court at Upland, 190; see pages 107 and 181.
[49] Records of the Court of New Castle, 12, 49, 53, 81, 133, 168,
174, 212, 217, 358, 436, 455.
[50] Charter and Laws of Pennsylvania, 100, 117, 154.
[51] Elsewhere in the record “searifacous” (_scire facias_, mistaken
for _habere facias possessionem_).
[52] Sussex Records (Turner), 86, 91.
[53] Sussex Records (Turner) 102. In the earlier records there are
cases tried before juries of both seven and twelve men.
[54] VII Pennsylvania Archives (2d Series), 722.
[55] VII Pennsylvania Archives (2d Series) 748. The commission of
Peter Alricks as “Bayliff” of the corporation of New Castle dated
August 24, 1672, will be found in V Pennsylvania Archives (2d
Series), 619.
[56] VII Pennsylvania Archives (2d Series), 783.
[57] VII Pennsylvania Archives (2d Series), 787, also 777, 794, 797.
[58] VII Pennsylvania Archives (2d Series), 494; Hazard’s Annals of
Pennsylvania, 70.
[59] Hazard’s Annals of Pennsylvania, 219, quoting Albany Records,
Vol. XVII.
[60] Hazard’s Annals of Pennsylvania, 400, quoting Albany Records,
Court of Assizes, Vol. II, 293-300.
[61] V Pennsylvania Archives (2d Series), 627. A second execution
was issued in 1675 by Governor Andros, V Pennsylvania Archives (2d
Series), 666. In Records of Court of New Castle, page 53, is a suit
by the sheriff against the auctioneer for the amount realized at a
sale under this execution.
[62] VII Pennsylvania Archives (2d Series), 799.
[63] Records of the Court at Upland, 189.
[64] Chester County Records quoted in Ashmead’s History of Delaware
County, 280; see, also, Memoirs Long Island Historical Society, Vol.
I, 189.
[65] _Hart_ v. _Hill_, 1 Wharton’s Reports, 124 (1835); _Tinicum
Fishing Co._ v. _Carter_, 61 Pennsylvania Reports, 21 (1869); 77
Pennsylvania Reports, 310 (1875); 90 Pennsylvania Reports, 85 (1879).
[66] Smith’s History of Delaware County, 31.
[67] VII Pennsylvania Archives (2d Series), 797. In the case of
a decedent, Andros seems to have solved the question of title by
directing that the purchaser should have “a new pattent for his
title.”
[68] III Blackstone’s Commentaries, 419.
[69] _Presbyterian Corporation_ v. _Wallace_, 3 Rawle’s Reports, 108
(1831) at page 141.
[70] New York Colonial Documents, Vol. XII, 160.
[71] Records of the Court of New Castle, 355; see, also, _Jegou_ v.
_Wright_, Upland Records, 140.
[72] V Pennsylvania Archives (2d Series), 692; see in the court below
New Castle Records, 88; Upland Records, 74.
[73] V Pennsylvania Archives (2d Series), 721.
[74] V Pennsylvania Archives (2d Series), 722. Abraham Mann not
satisfied with the judgment of the Court of Assizes attempted to post
on the door of the court at New Castle a paper containing his version
of the proceedings, in which the court was charged with partiality.
A warrant was issued for his arrest but he fled up the river. New
Castle Records, 497, 514.
[75] V Pennsylvania Archives (2d Series), 579, 582, 584; VII
Pennsylvania Archives (2d Series), 723, 725.
[76] VII Pennsylvania Archives (2d Series), 728.
[77] VII Pennsylvania Archives (2d Series), 731.
[78] Records of the Court at Upland, 160.
[79] Sussex Records (Turner), 69.
[80] Upland Court Records, 180. In another case of slander the court
fined the defendant and ordered “that y^e defendant openly shall
declare him selfe a Lyar,” page 176. “In the Norman Custumal it
is written that the man who has falsely called another ‘thief’ or
‘manslayer’ must pay damages, and, holding his nose with his fingers,
must publicly confess himself a liar.” Pollock and Maitland History
English Law, II, 537.
[81] Records of the Court at Upland, 156.
[82] Records of the Court at Upland, 111.
[83] Records of the Court of New Castle, 9.
[84] Records of the Court of New Castle, 341.
[85] Sussex Records (Turner), 57.
[86] Smith’s History of Delaware County.
[87] VII Pennsylvania Archives (2d Series), 777.
[88] Charter and Laws of Pennsylvania, 81.
[89] Eberling’s History of Pennsylvania quoted in Janney’s Life of
Penn and 1 Hazard Pa. Reg. 340.
[90] The justices at New Castle in a letter to the deputy governor at
New York dated November 11, 1681, refer to “Pensilvania.”
[91] Hazard’s Annals of Pennsylvania, 525.
[92] Pennsylvania Historical Magazine, Vol. XXX, 6.
[93] 6 Howell’s State Trials, 951 (1670).
[94] Charter and Laws of Pennsylvania, 92.
[95] For form of promulgation, see Minutes of Council, 2, 2 mo. 1686,
I Colonial Records, 122.
[96] The original Frame of Government as drawn up by Penn was amended
at an assembly held at Philadelphia March 1, 1683, Charter and Laws
of Pennsylvania, 93, 123. Penn’s first plan contained the principle
of initiative and referendum.
[97] Charter and Laws of Pennsylvania, 100.
[98] Charter and Laws of Pennsylvania, 117.
[99] Charter and Laws of Pennsylvania, 128.
[100] Charter and Laws of Pennsylvania, 154; Reinch’s Colonial Common
Law, Essays in Anglo-American Legal History, Vol. I, 397.
[101] Hazard’s Annals of Pennsylvania, 606, quoting Records of Court
of New Castle, Recorder’s Office, B. 9, 407.
[102] Hazard’s Annals of Pennsylvania, 596.
[103] Charter and Laws of Pennsylvania, 233, 237; Pennypacker’s
Colonial Cases, 78, 92; Sussex Records (Turner), 55, 83.
[104] Charter and Laws of Pennsylvania, 3, 176; Upland Court Records,
189.
[105] Lands were made liable for debts “except where there was
issue and then one half of the land,” the principle of set-off was
accepted, the recording of deeds regulated and a mild criminal code
adopted. Charter and Laws of Pennsylvania 109, 118.
[106] I Colonial Records, 34, 7, 9 mo., 1683; see, also, Sussex
Records (Turner) 97, 116, for the election of peacemakers.
[107] II Statutes at Large, 242. The Society of Friends had
regulations of their own for submitting all differences between
members to their monthly meetings. See the publications of the
Genealogical Society of Pennsylvania, Vol. IV, 141. In 1707 James
Logan writes to William Penn: “William Rakestraw has had me before
the meeting for not granting him the lot near the bridge, after
Francis Plumstead had applied to thee for it, and, as he pretends
here, got a grant for it; but the six Friends to whom it was
referred, declared it as their sentiments, upon a full hearing, that
William has no manner of claim to it, either in law or equity, but
that he has had full satisfaction, and shall condemn and retract his
abuse against thee especially, of which shall send copies when past
in the meeting.” Memoirs of Historical Society of Pennsylvania, Vol.
X, 258. The Statute of William III would seem to have been first
suggested by John Locke. Board of Trade Journal, December 18, 1696
(Mss. Historical Society of Pennsylvania, Vol. IX, 288).
[108] Charter and Laws of Pennsylvania, 129.
[109] Minutes of Provincial Council, May 24, 1693, 1 Colonial
Records, 379, 380. Penn under date of 25, 7 mo. 1689, instructed
Deputy Governor Blackwell “to collect y^e Laws that are in Being, and
send them over to me in a sticht book, by y^e ffirst opportunity,
which I have so often and so much in vaine desired.” I Pennsylvania
Archives (4th Series), 106; 1 Colonial Records, 276, 2, 11 mo.
1689-90. It would seem that Penn had contemplated periodic revisions
of the whole code, 1 Colonial Records, 42, 24, 1 mo. 1684; 151-2,
1, 2 mo. 1687; letter of Penn to Council, Pennsylvania Magazine of
History, Vol. 33, 308; Chapter 142 of the Acts of 1683, Charter and
Laws of Pennsylvania, 155.
[110] Journal of the Board of Trade (Mss. Historical Society of
Pennsylvania, Vol. VII, 309), August 3, 1694.
In 1694 the speaker informed the house that the laws passed by the
last assembly, and transmitted to the king and council, were lodged
with the king’s attorney, “who expects twenty guineas for perusing
them, so that the same are not disallowed.” I Votes of Assembly, 82,
25, 3 mo. 1694.
[111] Journal of the Board of Trade, December 31, 1697, Vol. X. 386.
[112] I Colonial Records, 18, 23, 3 mo. 1683. The jurisdiction of
the courts prior to 1700 has been admirably described by the late
Lawrence Lewis, Jr., Esq., in a paper read before the Historical
Society of Pennsylvania March 14, 1881, and reprinted in I
Pennsylvania Bar Association Reports, 353.
[113] Chester County Records, 6th, 8 mo. 1685; 5 Hazard’s
Pennsylvania Register, 156. The case of _Cock_ v. _Rambo_,
Pennypacker’s Colonial Cases, 79, is an illustration of the practice
in a criminal case from the binding over to final judgment.
[114] Pennypacker’s Colonial Cases, 99. In the previous year Thomas
Howell was fined one shilling for breach of a rule. “Hee saucilie
ansered Let the Court gett it how they can.”
[115] Sussex County Records (Turner), 109. Watson was expelled from
the provincial council in 1686, I Colonial Records, 129, 10, 3 mo.
1686, but reinstated, I Colonial Records, 177, 10, 3 mo. 1688.
[116] Sussex Records (Turner), 110. He could have cited year-book
precedents in his favor.
[117] Sussex County Records Mss., quoted I Pennsylvania Bar
Association Reports, 361.
[118] Pennypacker’s Colonial Cases, 116 (1686).
[119] See _Reynolds_ v. _Simpson_, Pennypacker’s Colonial Cases, 77
(1685).
[120] In _Proprietor_ v. _Wilkins_, Pennypacker’s Colonial Cases,
89 (1685-6), a criminal case in Philadelphia, after the defendant
had elected to be tried “by the bench of justices without a jury,”
Hersent, the attorney-general, contended that it was contrary to law
to try a prisoner without a petit jury. His contention was overruled,
but the prisoner was convicted and fined.
[121] Sussex County Records Mss., quoted I Pennsylvania Bar
Association Reports, 364.
[122] I Colonial Records, 122, 2, 2 mo. 1686.
[123] I Colonial Records, 157, 158, 11, 3 mo. 1687. In Philadelphia
the practice was for the justices to sign the order for an execution.
Pennypacker’s Colonial Cases, 108; so, also, in the provincial court,
I Colonial Records, 95, 11, 5 mo. 1685.
[124] I Colonial Records, 124, 9, 2 mo. 1686.
[125] I Colonial Records, 125, 9, 2 mo. 1686, also pages 153, 156,
161.
[126] Charter and Laws of Pennsylvania, 100.
[127] I Colonial Records, 199, 21, 12 mo. 1688-9.
[128] I Colonial Records, 531, August 8, 1699. Part of Patrick
Robinson’s house seems to have been used as a prison. Watson’s Annals
of Philadelphia (1850), Vol. I, 356.
[129] Charter and Laws of Pennsylvania, 131.
[130] Charter and Laws of Pennsylvania, 168.
[131] Charter and Laws of Pennsylvania, 178, 184, 225; I Colonial
Records, 205, 26, 12 mo. 1688-9.
[132] I Colonial Records, 68, 12, 7 mo. 1684.
[133] I Colonial Records, 290, 10, 2 mo. 1690.
[134] I Colonial Records, 157, 11, 3 mo. 1687.
[135] I Colonial Records, 304, 21, 9 mo. 1690.
[136] I Colonial Records, 202, 25, 12 mo. 1688-9.
[137] See Votes of the Assembly, Vol. I, 32.
[138] I Colonial Records, 55, 17, 3 mo. 1684.
[139] I Colonial Records, 83, 15, 3 mo. 1685; Votes of the Assembly,
Vol. I, 35; Charter and Laws of Pennsylvania, 499.
[140] Those who have had occasion to read his handwriting will
testify to the truth of this statement.
[141] Janney’s Life of Penn, 278.
[142] I Colonial Records, 4, 15, 1 mo. 1683.
[143] I Colonial Records, 52, 13, 3 mo. 1684.
[144] I Colonial Records, 65, 14, 6 mo. 1684.
[145] I Colonial Records, 20, 20, 4 mo. 1683.
[146] I Colonial Records, 161, 18, 3 mo. 1687, and see pages 172,
193, 210, 215-18.
[147] McCall’s address before the Law Academy (1838); I Pennsylvania
Bar Association Reports, 386.
[148] II Colonial Records, 34, 20, 7 mo. 1701.
[149] II Colonial Records, 38, 29, 7 mo. 1701.
[150] II Colonial Records, 56, 28, 8 mo. 1701.
[151] Pennypacker’s Colonial Cases, 32; I Colonial Records, 29, 24, 8
mo. 1683, and page 32.
[152] Pennypacker’s Colonial Cases, 35; I Colonial Records, 40, 27,
12 mo. 1683.
[153] Hazard’s Pennsylvania Register, Vol. V, 159. In Sussex County
Edward Southrin was accused of having conversed with the devil.
Sussex County Records (Turner), 36.
[154] I Colonial Records, 8, 21, 1 mo. 1683, and pages 35, 69.
[155] Pennypacker’s Colonial Cases, 29; I Colonial Records, 23, 7, 7
mo. 1683.
[156] I Colonial Records, 494, 9 February, 1697-8; Board of Trade
Journals, Mss. Historical Society Pennsylvania, Vol. X, 268, 287, 333.
[157] I Colonial Records, 495, 10 February, 1697-8.
[158] I Colonial Records, 532, August 9, 1699 and see page 549;
Sussex Records (Turner), 42. August 17, 1696, Mr. Randolph
delivered to the Commissioners of Trade a paper relating to the ill
execution of the Acts of Parliament and a list of names of Pirates
and Scotchmen inhabiting and trading in Pennsylvania; Memoirs of
Historical Society of Pennsylvania, Vol. IV, part 2, 260.
[159] I Colonial Records, 535, December 21, 1699, and see page 545.
[160] I Colonial Records, 576, May 14, 1700.
[161] Memoirs Historical Society of Pennsylvania, Vol. IV, part 2,
301.
[162] Watson’s Annals of Philadelphia (1850), Vol. II, 218; III
Colonial Records, 43, August 11, 1718.
[163] Blackbeard’s head was struck off and brought back in triumph
on the end of the bowsprit. Afterwards his skull was made into the
bottom of a very large punch bowl long used at the Raleigh Tavern at
Williamsburg, Va.; Watson’s Annals of Philadelphia (1850), Vol. II,
221.
[164] I Colonial Records, 313, 21, 9 mo. 1690.
[165] II Statutes at Large, 148, § 5.
[166] I Colonial Records, 95, 11, 5 mo. 1685, and see page 98.
[167] Board of Trade Journals, July 13, 1694; Mss. Historical Society
of Pennsylvania, Vol. VII, 300.
[168] Shepherd’s Proprietary Government in Pennsylvania (Columbia
University Studies in History, 1896).
[169] II Colonial Records, 54, 28, 8 mo. 1701; Proceedings of the
Constitutional Conventions of Pennsylvania of 1776 and 1790, 31.
[170] Chester County Records, 6, 5 mo. 1699, reprinted in Hazard’s
Pennsylvania Register, Vol. V, 156.
CHAPTER II.
In 1701 William Penn was called back to England to defend his
proprietorship. Before his departure a general revision of the
earlier legislation was undertaken at the sessions of the assembly
held at New Castle in 1700 and at Philadelphia in 1701. The acts
there passed, one hundred and fourteen in number, seem, in a sense,
to have been regarded as supplying the previous legislation and
were passed with the expectation of being presented to the privy
council for approval, as required by the charter. In fact, when the
board of trade inquired of Penn, on his return, as to whether the
laws received from him were a complete body of all the laws of the
province, he replied that he believed they were the present body
of laws,[171] and it will be noticed that the compilations of the
eighteenth century begin with the Acts of 1700.
Among these acts was one of October 28, 1701, entitled “An Act for
Establishing Courts of Judicature in this Province and Counties
Annexed.”[172] Its origin was as follows: Edward Shippen, for the
two previous years chief justice of the provincial court, and John
Guest, the then chief justice, both members of the council, brought
into the assembly on October 7th, a bill for establishing the courts,
which was “unanimously rejected.” Some few days after, David Lloyd,
who was not then a member of either council or house, proposed a bill
which was voted to be adopted with amendments, and Richard Hallowell
and Isaac Norris were appointed a committee to draw up the bill,
with the amendments. The bill met with no apparent opposition in
the council. Without repeating its provisions in full, which would
be tedious, it may be said by way of summary that the act provided
for the holding of the “County Courts or Sessions” at stated periods,
three justices to constitute a quorum, with jurisdiction in civil and
criminal matters, capital cases excepted. These courts were required
to observe as nearly as possible “respecting the infancy of this
Government and capacities of the people, the methods and practice of
the King’s court of common pleas in England; having regard to the
regular process and proceedings of the former county courts; always
keeping to brevity, plainness and verity in all declarations and
pleas, and avoiding all fictions and color in pleadings.” Maritime
affairs, not cognizable in the admiralty courts, were to be tried
in a special manner before a jury of “merchants, masters of vessels
or ship carpenters.” The county courts also received equity powers,
with the right of appeal to the provincial court from any decree
or sentence made or given by the justices. The provincial court
was to consist of five judges, appointed by the governor, three of
whom were required to sit twice a year in Philadelphia, and two, at
least, to go on circuit through the counties to try capital cases and
serious crimes and hear appeals from the county courts. The governor,
however, was to grant writs of error and writs of habeas corpus. The
powers and duties of the orphans’ courts were also defined and the
forms of certain writs prescribed; all former laws relating to the
courts were repealed.
There is little doubt that David Lloyd was the original draftsman
of the bill and while the act, as finally adopted, contained in its
main outline features afterwards recognized by the colonists as most
convenient for Pennsylvania, it was, like other acts attributed
to Lloyd, verbose, involved and overloaded with minor details of
practice. Lloyd, no doubt, thought that he was faithfully adhering to
the simplicity that had marked the legal procedure in the province
from the beginning, but he was a lawyer, and, like most of his
brethren, could not divest himself of his professional circumlocution
or exclude from his plan pet theories of his own. In the form adopted
the act did not prove acceptable to the advisers of the Crown.
Penn himself seems, on second thought, to have found some
objectionable features in the act and desired that it might not be
confirmed but sent back to be amended. The lords commissioners for
trade and plantations reported that the act, “so far from expediting
the determination of lawsuits,” would, as they conceived, “impede
the same,” and, accordingly, the act was formally disallowed and
repealed on February 7, 1705, by the queen in council.[173] One of
the objections that occurred to the minds of the English lawyers was
to that clause which directed the courts to avoid all “fictions and
color in pleadings.” A doubt was entertained as to whether this might
not preclude an action of ejectment. In this they were not far from
the real purpose of the draftsman of the act, as would appear from a
debate in the provincial council in December, 1704, upon a petition
by Thomas Revel, the plaintiff in an ejectment, who complained that
his case had been put off for nearly three years. John Moore, counsel
for the plaintiff, and David Lloyd, for the defendant, being summoned
before the council, Lloyd boldly argued that that method of trial
being fictitious, was repugnant to the law of the province.[174]
Lloyd, however, was clever enough at a later day, to use the action
of ejectment with success in the Frankfort Company’s case, which will
be referred to hereafter.
The repeal of the Act of 1701 left the administration of justice
in a confused state. There had been some debate in the session of
the assembly of 1705 upon the subject of courts, but the repeal
of the act was not known. Upon receipt of the order in council,
Governor Evans called the assembly in special session, in September,
1706,[175] and presented to that body an act for establishing courts,
drawn up, it was said, by some practitioners therein. The assembly,
however, requested that the matter be referred to the new house,
which met in October, 1706, and accordingly at the following session
this was the first matter under discussion, the governor laying
his bill before the house with his opening address. The assembly,
or rather David Lloyd who dominated that body, had other views and
presented them in what is described as a “long and tedious bill,”
which, on being read in council, was found to depart very widely from
the plan proposed by the governor’s advisers.[176]
We have not the text of these rival bills, which brought about a
deadlock between the governor and the house, but it is apparent that
both sides were struggling for the control of the courts and in view
of the expected surrender of the government to the Crown, both were
equally anxious to establish their position before that event.[177]
The plan endorsed by the governor included county courts with civil
jurisdiction, exclusive in cases under ten pounds, and criminal
jurisdiction, except in capital cases which were to be tried by
special commissions of oyer and terminer; a provincial court for
the whole province, to sit ordinarily at Philadelphia but to go on
circuit twice a year, with original jurisdiction concurrent with
the county courts in cases over ten pounds as well as on appeal
from the county courts, and lastly, a court of equity to be held
by the governor and council.[178] The assembly ever jealous of the
centralization of authority objected to a separate court of chancery
and to the exercise of original jurisdiction by the provincial
court.[179] On the other hand, the governor pointed out that the
bill proposed by the assembly contained precisely the same faults
that had caused the rejection of the Act of 1701; that it went into
matters of practice at great length which ought to be settled by rule
of court; that the chancery practice ought to conform to that in the
other English dominions; that there was too much leniency shown to
debtors in the clauses relating to executions; that too much power
was conferred on the court of the city of Philadelphia; that the
provision for the payment of the judges was inadequate, and that the
proprietors’ rights were interfered with in the clause providing for
the dismissal of the judges on the address of the assembly and for
the appropriation of all fines and forfeitures to the support of the
courts.[180]
The controversy began politely enough, for the governor and council
were anxious to settle the administration of justice on a firm
basis and to persuade the assembly to allow a fixed salary to Roger
Mompesson, a good lawyer who had been persuaded to accept the
office of chief justice. But as time passed and each side adhered
obstinately to its own view the tone of the respective messages
became warmer. The governor hinted that if further delay occurred he
would establish the courts by ordinance and charged the assembly with
grasping for power.
“It might reasonably be thought a very easy business to
establish the courts by a law, without raising new disputes and
contending for such Grants of Power as are not essential to their
Constitution, nor were ever in the People for these 24 years past,
since this has been a colony.”[181]
To which the assembly rejoined that whoever advised the governor to
establish courts by ordinance was an enemy to the welfare of the
province; that they were not striving for power--
“but for what are essential to y^e Administration of Justice and
agreeable to an English Constitution, and if we have not been in
possession of this these 24 years, we know where to place the
fault, and shall only say, tis high time we were in the enjoyment
of our rights.”[182]
It is needless to refer at greater length to the rhetorical
flourishes of the combatants, which did not add particularly to
clarity of reasoning. Conferences were held and bitter language used,
the matter at one time taking the form of a personal controversy
between the hot-headed young governor and the equally fiery speaker,
when the latter declined to rise when addressing the governor at one
of these debates.[183]
The assembly then proceeded to impeach James Logan, the secretary
of the province, charging him with attempting to subvert the
charter and set up arbitrary government. The governor, having twice
adjourned the courts pending the discussion and now despairing of
reaching a conclusion, on February 22, 1707, issued an ordinance
for the establishment of the courts, under a clause in the charter
which authorized the proprietor to make wholesome ordinances for
the preservation of the peace and the better government of the
people.[184] The expedient was somewhat daring, as the charter
further provided that such ordinances should not bind or charge
any person for or in their “life, members, freehold, goods or
chattels.” In this ordinance the provincial court is first called the
“Supream Court” of Pennsylvania.[185] The assembly prepared a bitter
remonstrance against the ordinance and adjourned.[186]
Under this ordinance, which embodied the undisputed features of
the proposed bills in a clear and concise form, the courts acted
during the remainder of Evans’s and the first two years of Gookin’s
administration, until, in 1710, when tired of quarreling over
non-essentials, a court act was passed.[187] By this act a court,
called the “Supream Court of Pennsylvania,” was established,
consisting of four judges appointed by the governor, two to
constitute a quorum, with power to hear appeals at law or in equity.
The jurisdiction and practice of the quarter sessions and common
pleas were elaborately defined and Governor Evans’s ordinance was
followed in the provision that all capital offenses should be tried
before commissioners of oyer and terminer specially appointed for the
occasion.
This act was, with minor modifications, the same as that proposed
by the assembly in 1706, for it appears in the minutes that on
November 2, 1710, a bill for establishing courts prepared by a former
assembly was read, which, being very long, was left to the further
consideration of the house. Governor Gookin was of the opinion that
the courts could be better regulated by ordinance and that three
judges were sufficient for the supreme court, but ultimately gave
in on most of the points formerly in dispute. The act is indeed
long and complicated, embodying an almost complete code of practice
in both civil and criminal cases and on appeal, with very definite
limitations placed on arrests in civil actions. One proposal of the
governor was adopted. It having been suggested by the justices that
the common pleas should be separated from the sessions of the peace,
“for that the Holding ’em together perplexes Bench Juries, parties
& Witnesses,”[188] the act provided that the terms of the quarter
sessions should begin on Mondays or Tuesdays and of the common pleas
on the Wednesdays following. By a fee bill adopted the same day, the
chief justice was allowed thirty shillings and the other justices
twenty shillings for every day they sat in court.[189] Both of these
acts were repealed by the queen in council on February 20, 1713,
by advice of the solicitor general, Sir Robert Raymond, who was of
the opinion that the practice provided would multiply trials at law
in plain cases and make proceedings in law and equity insufferably
dilatory and expensive.[190]
It was no doubt very irritating to the anti-proprietary party
that acts upon which they had expended time and thought should
be continually repealed by the Crown upon pretexts that probably
concealed the true motives for such action. The assembly had,
however, hit upon a method of preserving its legislation, temporarily
at least. Under the charter, all laws were required to be submitted
to the council within five years of their enactment. The colonists
took as much time as they pleased before submitting the acts, and, as
a result, the laws generally remained in force nearly five years, and
when the assembly was notified of their repeal, new acts on similar
lines were passed. Against such tactics the commissioners of trade
vainly protested.[191] During the intervals between the repeal of the
old and the passage of the new court acts the governor maintained
the courts either by special commissions to the judges or by general
ordinances.
One act did succeed in obtaining favorable recommendation, that of
March 27, 1712-13, relating to the organization of and powers of
orphans’ courts, a comprehensive statute which defined the duties
of that court in relation to the estates of decedents, and the care
of the estates of minors, and became the basis of all subsequent
legislation extending and strengthening the jurisdiction of that
admirable tribunal.
It would take up too much space to go over all the acts that fell
before the criticisms of the council. One, that of May 15, 1715,[192]
regulated the taking of appeals to Great Britain and required the
appellant to give recognizance in double the amount of the judgment.
The objection to this act was that there was no sum limited for
which an appeal might be brought, as provided in the instructions
to the governors of all the plantations, but notice of this repeal
does not seem to have reached Pennsylvania, and the act was printed
as in force in all compilations of the laws down to the Revolution.
The first definite reference to these appeals is, as we have seen,
in the commission of William and Mary to Governor Fletcher, which
limited appeals to cases involving more than three hundred pounds.
Additional instructions were sent to the proprietors in 1726,[193]
directing the suspension of execution pending the final determination
of appeals, and in 1753 still more explicit instructions were issued
to a number of colonies including Pennsylvania. By these instructions
the governor and council were directed to hear appeals from the
courts and if any of the judges who tried the case appealed were
members of the council they were not to vote but to give the reasons
for their decision. From the judgment of the provincial council an
appeal was to be allowed to the king in council provided the matter
in controversy involved five hundred pounds, and in cases of less
than that amount where future rights might be bound or the king’s
revenue affected. The appellant was required to enter security for
the judgment and costs and pending the appeal execution was to be
suspended, unless security was entered for restitution.[194] The
directions for a judicial hearing before the provincial council
must have been given in ignorance of the fact that under the Frame
of Government of 1701 the council in Pennsylvania did not exercise
judicial powers.
In 1718 two murderers, Hugh Pugh and Lazarus Thomas, attempted to
gain a reprieve by an appeal to the king, but the council ignored
their petition on account of the notoriety of their crimes.[195] The
case of _Fothergill_ v. _Stover_,[196] involving the admissibility
in evidence of a letter from the secretary of the land office to
a deputy surveyor, is said by the reporter to have been affirmed
on appeal to the king, and the docket of the supreme court shows
that such an appeal was taken.[197] In fact there are several
entries of this sort. In _Brown_ v. _McMurtrie_, April Term,
1763, judgment is entered for the plaintiff on a special verdict,
whereupon Mr. Galloway “prays leave to appeal to the King in
Council,” which is granted on giving security agreeable to the act
of assembly and paying the costs. Below in another handwriting is
the entry, “Judgment of the Supream Court confirmed by his Majesty
in Council.”[198] There is a similar entry in _Nixon_ v. _Long_,
where Chew and Galloway appeared for the plaintiff and Dickinson and
Ross for the defendant. Judgment for the plaintiff was entered on
a demurrer to the evidence and on appeal to the king the judgment
was “confirmed.”[199] There are two other entries of appeals in
1765,[200] and at April Term, 1767, there are three suits by the
same plaintiff against different defendants, in which appeals to
the king were taken, security entered and transcripts of the record
issued, but the result is not recorded.[201]
It is interesting to note, that to the appeals from the various
colonies and from the Channel Islands is to be traced the
jurisdiction of the judicial committee of the privy council. The
standing committee for trade and plantations was, by an order of
1691, directed to hear appeals and report thereon to the king in
council.[202] Few cases came before the committee at first, but
gradually their proceedings took a judicial form, the judgment of the
members became a judicial decision, and the adoption of their report
a _pro forma_ matter. At this early period their decisions are but
occasionally noticed in the English reports, but Lord Mansfield, in
his speech on the Stamp Act, stated that he had in his early practice
been much concerned in the plantation causes before the privy council
and so had become acquainted with American affairs.[203]
The attempted appeal of Pugh and Thomas was based on the fact that
seventeen of the grand jury which had indicted them and eight of the
petit jury who found them guilty were Quakers who had qualified by
affirmations instead of oaths. This calls attention to a difficulty
that had long troubled the colony. The conscientious scruples of
the Friends against judicial oaths had been taken advantage of by
their opponents, led by Colonel Quarry, to drive them from office and
lessen their power.[204] An order had been procured from Queen Anne
enjoining the administration of oaths to all persons willing to take
them, an order which the Quaker justices were loath to enforce, while
the justices of the church party declined to administer affirmations,
lest they should mistake the sincerity of the affiant’s religious
scruples. Constant friction and mistrials resulted from this state of
affairs, and more than one act was passed on the subject only to meet
with technical objections in England.[205]
The popularity of Governor Keith enabled him to obtain the passage
of the Act of May 31, 1718,[206] which permitted affirmations by
such as conscientiously scrupled to take an oath, but at the same
time restored much of the rigorous criminal code of England, which
the humanity of Penn had prevented from being put in force in the
province. A few years later the Act of May 9, 1724,[207] was passed
which carefully prescribed the forms of declarations of fidelity,
abjurations and affirmations to be taken by Quakers, with a proviso
that the act was not to be construed as repealing the Act of 1718.
To this the assembly in 1739 attempted to add a supplement for the
relief of Scotch Presbyterians, who had conscientious scruples
against kissing the Bible, permitting them to take the oath in the
form commonly administered in Scotland. Approval of this act was
refused on the advice of Sir Dudley Ryder and Sir John Strange, who
criticised its loose wording and called attention to the danger of
giving way to new scruples about oaths.[208] Subsequently the privy
council relented and in 1772 an act was passed and approved which
permitted witnesses to qualify either by a solemn affirmation, an
oath in the usual form or an oath with uplifted hand.[209]
From the passage of the Act of 1718 capital punishment for the
greater felonies was rigorously employed, until in 1794, principally
through the efforts of Judge Bradford, the death penalty was
abolished in all cases except high treason and willful murder. As
a natural consequence the number of appeals for executive clemency
steadily increased and the minutes of the council are full of such
petitions.[210] One of the most curious is the following:--
“A Petition of John Remington, Attorney at Law, delivered to the
President, was by him laid before the Board and read, setting forth
that the Petitioner was unfortunately deluded & drawn into the idle
Diversion of performing the Ceremony of making a free Mason, in
Order to which a Sport called Snap Dragon was prepared, at which
the Petitioner was perswaded to be present; that unhappily some of
the burning Spirit used in this Sport was thrown or spilt on the
Breast of one Daniel Rees, which so burnt or scalded him that in
a few days after the said Daniel dyed; That Doctor Evan Jones had
been indicted as Principle for the Murder of the said Daniel Rees,
& by a Jury of the County was found guilty of Manslaughter; That
the Petitioner was also indicted as aiding & abetting the said Evan
Jones, and altho’ no Evidence did or could appear to prove that
the Petitioner had any hand in the throwing or spilling the said
Liquor on the Body of the said Daniel, or was privy to any Design
or Intention of doing harm to the said Daniel, or to any other
Person, yet the same Jury had brought in a Verdict of Manslaughter
likewise against the Petitioner, which if put in Execution would
tend to the utter Ruin of the Petitioner, his Wife, and two small
children, & therefore humbly praying that the President & Council
would be pleased to grant him a Pardon; Whereupon the Board are of
Opinion that the Petitioner should be pardoned the Manslaughter
aforesaid, and the burning in the hand, which by reason thereof,
he ought to suffer; But it being observed that in the Course of
the Tryal a certain wicked & irreligious Paper had been produced &
read, which appeared to have been composed by the said Remington,
who had made the aforesaid Daniel Rees repeat the same, as part of
the form to be gone thro’ on initiating him as a free Mason; the
Board therefore agreed that the Pardon should be so restricted as
that it might not be pleaded in Bar of any Prosecution that should
hereafter be commenced against the said Remington on account of the
said scandalous Paper.”[211]
It would seem that with the constantly increasing population, a
disorderly element was introduced into the community that rendered
stringent measures necessary for the protection of society. In 1726
a riotous crowd burnt down the pillory and stocks in the market
place and the governor was obliged to issue a proclamation for the
suppression of such tumults in the future.[212] In the newspapers
will be found complaints against the authorities in England for
making the colony a dumping ground for criminals and vagabonds.[213]
In 1717 the grand jury present:--
“Whereas, it has been _frequently and often_ presented by several
former grand juries for this city, the necessity of a ducking stool
and house of correction, for the just punishment of scolding,
drunken women, as well as divers other profligate and unruly
persons in this place, who are become a public nuisance to the town
in general; therefore, we the present grand jury, _earnestly_ again
present the same to this Court of Quarter Sessions, desiring their
immediate care; that those public _conveniences_ may not be longer
delayed, but with all possible speed provided for the _detection_
and quieting such disorderly persons.” And a few years later, a
second inquest, “taking in consideration the great disorders and
the turbulent behaviour of _many_ people in this city, present the
great necessity of a ducking-stool for _such people_, according to
their deserts.”[214]
There are many indictments for forestalling the markets and
regrating, offenses against public trade that excited in that day the
popular attention now centered on rebates and trusts.
Some presentments of the grand jury of Philadelphia will further
illustrate the care of our ancestors for the manners and morals of
the community.[215]
“Philadelphia, the 26th day of the 7th month, 1702.
“We, the Grand Inquest for this Corporation, do present George
Robinson, butcher, for being a parson of evill fame as a common
swarer, and a common drunker, & particularly upon the twenty-third
day of this instant, for swaring three oths in the market-place, &
also for utering two very bad curses the twenty-sixth day of this
instant. Signed in behalf of self & fellows, by
“Jno. Pons, ferman.”
“Submits, and puts himself
in mercy of the Court.”
“George Robinson, fined xxx s.
for the oaths and curses.”
“Philadelphia, ss.
“We, the Jurors for this city, doe present phillip Eilbeck, of
Chester County, for that on the twenty-third Day of this Instant,
at night, at the house of Margaret Garret, in the front street, in
Philadelphia, aforsd, Did then & theire mennace & threaten herman
Debeck, by drawing his bagenet and making a pass at him, the said
herman: & at the same time & place abovesaid, did utter three
curses, to the terrifiding of the said herman & other the Qeen’s
Leige people, contrary to the laws in that case made & provided.
Signed in behalf of the Rest of the Jurors, this 28th day of the
7th mo., 1702, pr.
“Jno. Psons, forman.”
“Appears and submits, and puts
himself in mercy of the Court.”
“Eilbeck for breach of the
peace and curses, xxx s.”
“The 3d of the 12th mon: 1702.
“We of the Grand Jury for the Citty of Philadelphia, do psent John
Satell for passing of bad counterfeit Coine to Anne Simes, on the
2nd of January Last past in her husbands house, now Living in
Philadelphia, & Also finding the mettal in his pocket, which we
think the Money was made withall.
“Signed in behalf of the Rest,
“Abra. Hooper, foreman.”
“Philadelphia, y^e 4th of the 12th mon., 1702.
“We, of y^e Grand Jury for the Citty of philadelphia, Do psent John
Joyse, for having of to wifes at once, which is boath against the
law of God and man.
“Signed in behalf of the rest,
“Abra. Hooper, foreman.”
“Philadelphia, y^e 6th of the 3rd month, 1703.
“We, of the Grand Jury for this city, Doe present Alexander Paxton
& his wife, for letting a house to John Lovet, he being a Stranger,
& have not Given security for The In Demnifying of this Corporation.
“Signed in behalf of the rest,
“Abra. Hooper, foreman.”
“Philadelphia, this third day of November, 1703.
“We doe also present Jon Furnis & Thomas McCarty & Thomas Anderson
& henery Flower, barbers, for triming people on first days of the
weeks, commonly called sunday, contrary to the law in that case
made & provided.
“Signed in behalf of the rest of the Jurors,
“John Redman, foreman.”
In 1731 an execution took place at New Castle which, it is to be
hoped, was exceptional in the annals of the colonies. Catherine
Bevan, together with a servant named Peter Murphy, were indicted,
tried and found guilty of the murder of the woman’s husband, Henry
Bevan. The conviction would seem to have been obtained principally
upon the confession of the servant. By the common law at that time
the murder of a husband by his wife was petit treason, and the
punishment was to be drawn and burnt. Accordingly, on September
10, 1731, the man was hanged and the woman burnt pursuant to their
sentences.[216] A gruesome account of the affair appears in
Franklin’s “Pennsylvania Gazette” for September 23, 1731:--
“She deny’d to the last that she acted any part in the murder and
could scarce be brought to own that she was guilty of consenting.
Neither of them said much at the place of execution. The man seemed
penitent but the woman appear’d hardened. It was designed to
strangle her dead before the fire could touch her; but its first
breaking out was in a stream which pointed directly upon the rope
that went round her neck, and burnt it off instantly so that she
fell alive into the flames, and was seen to struggle.”
To return to the courts. At a meeting of the council held on November
9, 1719, Governor Keith called attention to the repeal of the several
acts relating to courts, and proposed that the board consider the
best means of meeting the inconvenience caused thereby. The consensus
of opinion was that the governor should issue special commissions
authorizing the justices to hold court on the days when they should
be held under the repealed laws. Similar action was taken in the
following March in reference to the supreme court, and David Lloyd,
who was now chief justice, prepared the forms of commission. In this
way the courts were continued until at a meeting of the council, May
12, 1722, it was observed that the courts would be “more regularly
and effectually established by ordinance, as they are done in some
of our neighboring governments, than by any particular Commissions,”
and it was recommended that the matter be brought to the attention of
the house of representatives. A bill was promptly passed and messaged
to the council, where it was referred to Richard Hill, Isaac Norris,
James Logan and the attorney general, Andrew Hamilton, for amendment.
The bill as amended was returned to the house, and on May 22, 1722,
became a law.[217]
This act apparently was never considered by the Crown, but, in some
manner, was allowed to become a law by lapse of time, according to
the charter. The reason for its escape lies probably in an oversight
of the clerks of the council rather than in any intention on the part
of the board to give it even a tacit approval. The act appears in a
list, under consideration by the board of trade in 1739, which the
lords commissioners could not find to have ever been approved.[218]
Mr. Paris, the agent for the colony, after tedious searches, found
some of these acts “laid up in a by corner of the Board of Trade and
covered very thick with dust.” In the list the act we are discussing
is marked “supplied.” As a matter of fact, three months before the
time for its consideration had expired, the act had been supplied
by the Act of August 27, 1727,[219] which was repealed by order in
council September 21, 1731. In repealing the latter act, the point
seems to have been overlooked that the Act of 1722 was revived by the
repeal, and the question of the Crown’s power to pass upon it then
was not raised.
Upon the repeal of the Act of 1727 a special session of the assembly
was called, and an act passed formally reviving the Act of 1722.[220]
This reviving act seems to have been allowed to become a law by lapse
of time. Mr. Fane, the king’s counsel, to whom it was referred by
the lords commissioners, saw no objection to it. The Act of 1722,
which in many of its provisions remained in force until after the
Revolution, provided for county courts of quarter sessions, composed
of justices appointed by the governor, three to constitute a quorum,
and for similar county courts of common pleas, to be held after the
quarter sessions by justices, also appointed by the governor, with
authority to hold pleas of assizes, _scire facias_, replevins and
all manner of actions, civil, personal, real and mixed, and to grant
writs of partition and writs of view.
As to the supreme court, the Act of 1722 provided as follows:--
“And be it further enacted by the authority aforesaid, That there
shall be holden and kept at Philadelphia a court of record twice in
every year: (That is to say) on the twenty-fourth day of September
and the tenth day of April, if the same days, or either, do not
happen to be the First day of the week, and in such case the said
court shall be held on the next day following; which said court
shall be called and styled the supreme court of Pennsylvania.
And that there shall be three persons of known integrity and
ability, commissionated by the governor, or his lieutenant for
the time being, by several distinct patents or commissions, under
the great seal of this province, to be judges of the said court,
one of whom shall be distinguished in his commission by the name
of chief-justice. And every of the said justices shall have full
power and authority, by virtue of this act, when and as often as
there may be occasion, to issue forth writs of habeas corpus,
_certiorari_ and writs of error, and all remedial and other writs
and process returnable to the said court, and grantable by the said
judges by virtue of their office, in pursuance of the powers and
authorities hereby given them.
“Provided always, That upon (any) issue joined in the said supreme
court, such issue shall be tried in the county from whence the
cause was removed, before the judges aforesaid, or any two of them,
who are hereby empowered and required, if occasion require, to go
the circuit twice in every year, * * * * and to do generally all
those things that shall be necessary for the trial of any issue, as
fully as justices of _nisi prius_ in England may or can do.
“And that the said judges, or any two of them, shall have full
power to hold the said court, and therein to hear and determine
all causes, matters and things, cognizable in the said court, and
also to hear and determine all and all manner of pleas, plaints and
causes, which shall be removed or brought there from the respective
(general) quartersessions of the peace and courts of common pleas,
to be held for the respective counties of Philadelphia, Chester
and Bucks, as also for the city of Philadelphia, or from any other
court of this province, by virtue of any of the said writs. And to
examine and correct all and all manner of errors of the justices
and magistrates of this province, in their judgments, process and
proceedings in the said courts, as well as in all pleas of the
Crown, as in all pleas real, personal and mixed; and thereupon to
reverse or affirm the said judgments, as the law doth or shall
direct. And also to examine, correct and punish the contempts,
omissions and neglects, favors, corruptions and defaults, of all or
any of the justices of the peace, sheriffs, coroners, clerks and
other officers within the said respective counties. And also shall
award process for levying, as well of such fines, forfeitures and
amercements, as shall be estreated into the said supreme court, as
of the fines, forfeitures and amercements, which shall be lost,
taxed and set there, and not paid to the uses they are or shall be
appropriated.
“And generally shall minister justice to all persons, and exercise
the jurisdictions and powers hereby granted concerning all and
singular the premises according to law, as fully and amply, to all
intents and purposes whatsoever, as the justices of the court of
King’s Bench, common pleas and exchequer at Westminster, or any of
them, may or can do.
“Saving to all and every person and persons, his, her or their
heirs, executors and administrators, their right of appeal from
the final sentence, judgment or decree of any court within this
province, to His Majesty in council, or to such court or courts,
judge or judges, as by our Sovereign Lord the King, his heirs or
successors, shall be appointed in Britain, to receive, hear and
judge of appeals from His Majesty’s plantations.
“Provided, The person appealing shall, upon entering his appeal in
the court where the sentence, judgment or decree shall be given in
this province, pay all the costs before that time expended in the
prosecution, or defending the said suit; and shall further enter
into bond, with two good and sufficient securities in the sum of
three hundred pounds, to the defendant in the appeal, conditioned
to prosecute the said appeal with effect within the space of
eighteen months after the entry of such appeal, and to satisfy the
judgment of the court from which he appeals; and further, to pay
all such costs and damages as shall be adjudged to him to pay,
in case a sentence, judgment or decree, pass against the said
appellant, or in case he, she or they fail to prosecute their
appeal with effect.
“And be it further enacted by the authority aforesaid, That the
said judges of the supreme court shall have power and are hereby
authorized and empowered, from time to time, to deliver the gaols
of all persons which now are or hereafter shall be committed for
treasons, murders, and such other crimes as (by the laws of this
province) now are or hereafter shall be made capital or felonies
of death as aforesaid. And for that end from time to time to issue
forth such necessary precepts and process, and force obedience
thereto, as justices of assize, justices of oyer and terminer, and
of gaol delivery, may or can do in the realm of Great Britain.”
We have referred to the short-lived Act of August 27, 1727. This act
was almost a counterpart of the Act of 1722, but was designed to
deprive the supreme court of the power to institute original process.
Its repeal was accomplished by John Moore, the king’s collector of
customs at Philadelphia, who strongly objected to it on the ground
that actions involving the revenue would thenceforth have to be tried
in the county courts. From the statements of Moore and Fitzwilliam,
the surveyor general of the customs, it would appear that in 1724
there arrived at Philadelphia the ship _Fame_ purporting to carry
emigrants from the Palatine, but really containing a cargo of East
India goods from Holland and articles of European manufacture which
the navigation laws required to be imported from England only. Moore
seized the ship but it was forcibly taken out of his possession by a
mob, towed down the river and most of the cargo unloaded. Then, it is
stated, Sir William Keith made a fresh seizure in a collusive action
brought in the county court and the ship was sold for a trifling sum.
Moore acting by advice of Sir Philip Yorke, the attorney-general,
brought actions in the supreme court of Pennsylvania against the
parties concerned, whereupon Keith and his colleagues in the assembly
procured the passage of the Act of 1727 depriving that court of
original jurisdiction. This, said Fitzwilliam, would discourage
prosecutions for breaches of the acts of trade.
“For as the judges of those courts are men but of mean
circumstances and as mean capacities, so are the juries more apt
to be biased in favor of those who transgress the law, the common
people being generally of opinion that those who bring goods from
foreign parts can afford them better pennyworths than others who
import the like commodities from Great Britain where the duties and
customs are high.”
Moore added that the magistrates were “all merchants.”[221] The
proprietors addressed a counter petition to the council in favor of
the act, stating that they were not concerned in the controversy
between Keith and Moore but that the act had been passed after nine
months careful consideration and was not intended to prejudice His
Majesty’s service, that so far as they were informed Moore was the
first person to attempt to introduce the practice of bringing actions
in the supreme court, and that it would prove a great hardship to
the inhabitants living in remote settlements to compel them to
attend court at Philadelphia and that the merchants were frequently
gentlemen of the best fortune and substance as well as probity.[222]
The act was referred to Mr. Fane, who wrote an elaborate opinion in
which he questioned whether original jurisdiction was vested in the
supreme court by the Act of 1722 although there were some words that
pointed that way.
“It is true the judges of the Supreme Court in the case of Mr.
Moore have thought fit to exercise a jurisdiction, but I see
no great conclusion from thence, because courts of law are
ever willing, upon the slightest pretenses, to extend their
jurisdiction.”[223]
The commissioners for trade and plantations reported adversely to the
act and it was accordingly disallowed.[224]
Whatever may have been the intention of the Act of 1722, it
would seem that the supreme court was chary of assuming original
jurisdiction. Chief Justice Tilghman in _Commonwealth_ v.
_Smith_[225] informs us that prior to 1786 the court had, certainly
for a long time, exercised no original jurisdiction except in cases
of fines and common recoveries, which, though actions in form, were
in substance no more than mere conveyances of record.
Two acts amending the Act of 1722 were passed prior to the
Revolution. By the first of these, the Act of September 29, 1759,
the judges of the court of common pleas were appointed to hold the
orphans’ court, a duty which had for some time previously been
assigned to the quarter sessions, and the judges of the latter court
were not to sit in the common pleas, which was to consist of five
persons. No exception was taken to these provisions, which were
approved, but the proprietors strongly objected to another clause in
the act which provided that the judges of the common pleas, as well
as the justices of the supreme court, should hold their commissions
_quam diu se bene gesserint_ and be removable only on the address
of the assembly. The committee of the council were strongly against
this provision, not only as limiting the charter rights of the
proprietors, who were therein permitted to nominate judges without
limitation, but as perpetuating in the seat of justice men of
secondary capacity, except the chief justice. It was further stated
that in the other colonies the judges held _durante bene placita_,
and it was not expedient to make a change in Pennsylvania which
would confer no real benefit upon the inhabitants and “excite a
just jealousy in the other colonies by seeming to extend advantages
to this proprietary government, which have been denied to those
under his majesty’s immediate care.”[226] The act was accordingly
disapproved September 2, 1760.
Another amendment to the Act of 1722 was adopted, by which the
number of supreme judges was increased to four, and the removal of
cases into the supreme court in suits involving less than fifty
pounds, except in cases involving title to land, was prohibited
under penalty, in the case of the plaintiff, of loss of costs and
of the defendant of double costs. It was also provided that appeals
to England should be taken only on demurrer to evidence, bill of
exceptions or writ of error. This act was allowed to become a
law.[227]
It will be noticed that no jurisdiction is conferred upon the courts
in matters of divorce. We have seen that in the Dutch period divorce
was recognized in accordance with the doctrines of the Reformation,
but after the English conquest the subject is hardly recognized as
belonging to the domain of ordinary courts. In an amendment to the
Duke of York’s Laws of 1665 it is provided that in cases of adultery
the proceedings shall be “according to the laws of England which is
by divorce,”[228] but this does not say more than that a divorce
_a mensa et thoro_, or judicial separation, would be recognized
and Chancellor Kent is authority for the statement that during the
colonial period no divorce took place in the colony of New York.[229]
In Pennsylvania the “great law” of 1682 in defining and punishing
adultery provided that the guilty parties should “be liable to a Bill
of Divorcement, if required by the grieved husband or wife” within
a year after conviction.[230] This was reënacted in 1693[231] and
again in 1700[232] with a more severe punishment for the crime. The
last act was repealed by the Crown in 1705 upon the advice of the
attorney general, Sir Edward Northey, who pointed out that “by this
law for adultery a bill of divorce is allowed to the injured husband
and wife, but the divorce is not explained, whether to be _a vinculo
matrimoni_ or only from bed and board, as the ecclesiastical laws
of England allow, which I think ought to be ascertained.”[233] The
defect was remedied by the Act of January 12, 1705-6,[234] which, in
adultery, gave the injured party a divorce from bed and board, to
be granted on bill by the governor or lieutenant-governor for the
time being. This act was allowed to become a law. If the governor
exercised this power it has escaped notice in the minutes of the
council, but among the records of the court of chancery is a bill
filed by a wife against her husband, praying for a writ of _ne exeat_
against the defendant, until he should enter security to answer a
bill for divorce.[235] The writ was allowed but there is no entry
of the final result of the divorce proceeding. It would have been
strange, however, if the practice of obtaining a divorce by act of
parliament, which was the only means by which the marriage bond
could be dissolved in England in the eighteenth century,[236] had
not been imitated in America, and, accordingly, we find a bill
passed February 18, 1769,[237] to dissolve the marriage between
Curtis Grubb and Ann Few, his wife, and to enable him to marry again.
Before approving this bill Governor John Penn sent to the assembly
for the papers and proofs in support of the charges of adultery and
bigamy made against the wife and suggested several amendments to the
act.[238] When the laws of 1769 were submitted to the privy council,
this act was referred by the committee for plantation affairs to Mr.
Jackson, their counsel, who gave it as his opinion that the assembly
had properly exercised a power which he was inclined to think they
ought to be entrusted with, but, as the matter was very important, he
advised that the attorney and solicitor-general be consulted.[239]
The point was so referred but no reply was received and the act
became a law by lapse of time. The same question arose three years
later when a bill was passed to divorce George Keehmle from his wife
Elizabeth, who had been tried, in the supreme court, for adultery
and convicted.[240] This time the committee on plantations advised
that the king should refuse to confirm the act and should give “such
directions as shall have the effect to prevent the laws passed by the
legislature of Pennsylvania, becoming a precedent and example for the
exercise of like powers in other colonies.” The act was accordingly
declared void April 27, 1773,[241] and in the same year a circular
letter sent to the provincial governors commanding them not to give
their assent to any bill “for the divorce of persons joined together
in Holy Marriage.”[242] Prior to this the governor had refused his
consent to a bill “making void the pretended marriage of Rebecca
Vanakin with a certain John Martin.”[243] No more divorce acts were
passed until 1779 when James Martin was divorced from his wife
Elizabeth, who had eloped with Sergeant Havell of the British Army
“taking with her the said James Martin’s effects, and leaving him to
pay sundry debts of her contracting.”[244] From this time the number
of special acts granting divorces increases. Ten were granted prior
to the Act of September 19, 1785,[245] which conferred jurisdiction
in divorce upon the supreme court and authorized absolute divorces
in the cases of impotency at time of contract, bigamy, adultery and
willful and malicious desertion for four years, as well as divorces
from bed and board in other cases, an extremely liberal law for that
day but soon superseded by legislation even more liberal. Private
divorce acts, however, were passed by the legislature until forbidden
by the constitution of 1874.[246]
An examination of the judges’ commissions, in the archives, will
show that the practice, prior to the Revolution, was to issue to the
justices of the peace of each county a joint commission authorizing
three or more of them to hold the quarter sessions, and likewise
assigning any three or more of them to hold the court of common
pleas. Separate commissions were issued to the chief justice and
justices of the supreme court, and a joint commission of oyer and
terminer.[247] In 1717 Governor Keith questioned the propriety of
issuing commissions to the judges in the name of the proprietor
instead of the king, since, even if the charter could be so
construed, the king could not grant away any part of his prerogative
inseparable from the sovereignty. The council replied that the
difficulty arose from not distinguishing fully “between the state
of England and that of new colonies made without the Verge of the
ancient Laws of that kingdom.”
“That these American Lands being new Discoveries of Tracts long
settled by their native inhabitants the indians who were under no
subjection to nor had any knowledge of the laws of England; those
laws, whenever they come to reach these Lands, must by some Regular
method be extended to them, for they cannot be supposed of their
own nature to accompany the people into these Tracts in America,
any more than they would the same persons going into any other
foreign part of the world.”
And further, that the royal prerogative as exercised in England could
“no more be understood to accompany the sovereignty than all the
other laws can.”[248] Keith yielded to the opinion of the council.
After the death of Penn, judicial commissions were issued in the
name of the king and attested by the governor, by authority of the
proprietor, while minor officials were commissioned in the name of
the proprietors alone.[249]
In these commissions the time for which they are to run is not
stated. The commission of the peace seems to have been filled up and
renewed at first yearly, but later at longer intervals of irregular
length, and it was the custom for governors to renew the commissions
at, or soon after, their accession to the government.[250] At these
various renewals it may be presumed that undesirable members were
dropped. The justices of the supreme court also were recommissioned
from time to time, but would seem usually to have held their offices
until death or resignation. The real trouble seems to have been to
persuade men of ability to fill the thankless positions. The assembly
neglected the matter of compensation, and on Penn’s second visit
he seems to have himself promised the chief justice one hundred
pounds a year. In 1706 the salary of the chief justice is said to
have been in arrears, and it was proposed that the assembly should
be asked to make some provision for the judges, as it was unfair to
throw this expense on the proprietor. Roger Mompesson, judge of vice
admiralty, who was appointed to the office soon afterwards, accepted,
“though the present encouragement be but very slender and no way
inviting.”[251] The perquisites of the court were the fees allowed by
the fee bill. Those established by the Act of March 30, 1723,[252]
were four shillings for every _allocatur_ signed, six shillings
for every case brought into court by _certiorari_, taking bail two
shillings, every judgment six shillings, every rule two shillings. As
late as 1772 the salary of the chief justice of the supreme court was
two hundred pounds, and of the associate justices one hundred and
fifty pounds.[253]
In the county courts the justices received trifling fees for various
services, and the expenses of the sitting of the court were paid by
the county.
The Act of January 28, 1777,[254] provided that one justice should
be appointed to preside in the respective courts of common pleas,
quarter sessions and orphans’ court, but the honorary office of
president of the court had existed from the earliest times and was
applied to the first in the commission, or senior justice, the same
person being, in many cases, for a long series of years first in the
commission.[255] The city of Philadelphia, under its charter, had
a criminal court of its own, presided over by the city recorder,
usually a lawyer, assisted by the aldermen. Those of the aldermen who
were in the commission of the peace also sat in the county courts.
By an Act of January 12, 1705,[256] a special court was established
for the trial of negroes, consisting of two judges, specially
commissioned by the governor, in the respective counties, assisted by
six freemen of the county; the purpose being to obtain speedy trials
and summary punishment for negro offenders, whose crimes excited some
alarm in the province. This act was repealed in 1780.
By an Act of May 28, 1715,[257] the justices of the peace were given
jurisdiction to try, and finally determine all suits for debts
and demands under forty shillings, and issue executions on their
judgments, through the constable, by levy on the goods or attachment
of the body of the defendant. The court of the city of Philadelphia
for the collection of small debts was abolished, and it was further
enacted that no court of the province should have jurisdiction of
debts under said amount, but that the act should be the exclusive
remedy. Debts for rents or contracts relating to real estate were
excluded from this jurisdiction. The act was allowed to become a
law, and is the foundation of the present civil jurisdiction of the
justices of the peace as amplified by the Act of March 20, 1810,[258]
and subsequent acts.
Briefly summarized, the administration of justice at the beginning of
the Revolution was vested in the county courts of quarter sessions,
common pleas and orphans’ courts, presided over by justices of the
peace, commissioned by the governor, none of whom, prior to the
Revolution, appears to have been learned in the law. There was a
supreme provincial court consisting at first of five, later of three
and finally of four judges, of whom the chief justice was generally a
lawyer or at least possessed of some legal experience. This court had
a general appellate jurisdiction, and original criminal jurisdiction
in capital cases. The original jurisdiction in civil cases does not
seem to have been well defined but was assumed to exist in cases of
fines and common recoveries. Where a case appealed involved issues
of fact, such issues were tried in the supreme court before a jury.
The court sat twice a year in Philadelphia and went on circuit to the
other counties when required. From this court an appeal could, in
certain cases, be taken to the king in council. There were special
courts, such as that of the corporation of Philadelphia and that for
the trial of negroes, and, finally, the court of vice admiralty under
the Crown.
As for the judges of the respective courts, to mention them all would
be to give a biographical history of the province. Nearly every man
of distinction at that day filled at some time a place on the bench.
It was, in the lower magistracy, the stepping stone to higher office,
and, with the higher officials, part of the burden and duty of
government. It is interesting to note that Benjamin Franklin sat for
a short time in the common pleas, but was wise enough to see that the
position required a special knowledge that he did not possess and was
not sufficiently interested to acquire.[259] Except the recorders of
Philadelphia, few, if any, of the judges of the lower courts had any
legal training, beyond such as they acquired in the exercise of their
office. In the supreme court, David Lloyd, chief justice from 1717 to
1731, had a reputation in his day as an able lawyer, but in history
he is chiefly conspicuous as the spokesman of the anti-proprietary
party in the assembly, and, as we have seen, was actively concerned
in the development of the judicial system of the province.[260] James
Logan, his one-time enemy, who succeeded him in the office, was
the most conspicuous figure in the province in his time, excepting
only Penn himself. He was not a lawyer, but was talented and well
educated, and had sat in the quarter sessions and common pleas of
Philadelphia for years. John Kinsey, who became chief justice in
1743, was a lawyer in extensive practice, and the governor considered
it a matter of congratulation that one of the legal profession had
consented to take the position. At the time when Dallas’s Reports
begin, William Allen presided. He was said to be the richest citizen
in the province and was a son-in-law of the distinguished lawyer,
Andrew Hamilton. Educated in London, he had filled various offices,
including those of mayor, recorder of Philadelphia and judge of
the common pleas, and was also one of the original trustees of the
College of Philadelphia.[261] In 1774 Benjamin Chew, who had studied
law in Hamilton’s office and also in the Middle Temple, was appointed
chief justice. During the Revolution he was displaced, but after
spending fourteen years in retirement was made president of the high
court of errors and appeals in 1791.
In the early days of the settlement there was no public building in
the capital where court could be held, and, as time went on, the
inconvenience of this state of affairs became manifest. In 1705,
the grand jury of Philadelphia County recommended the levy of a
tax to build a courthouse “where the bell now stands.”[262] This
was at Second and Market streets where the town bell, erected on a
mast, gave notice to the citizens of important gatherings. Penn had
intended that the public offices should be placed in Centre square,
but that spot was then far distant from the centre of population.
There was some dispute between the city and county as to the division
of the expense of erecting the proposed building and the matter was
before the council in 1708, when Justices Growdon and Pidgeon stated
that “it is not only scandalous to both town and county, but even
to the whole Govmt. that while every other county has their County
house, Here in the Capital town of the Govmt. the Magistrates are
obliged to hold court in an ale house.”[263] It was finally agreed
that if the county would build some necessary bridges, the town would
build the courthouse. Accordingly a small, quaint two-story structure
was built at Second and Market streets, of which the municipality was
then very proud and which served all the purposes of a town hall.
Here the assembly met until the erection of the statehouse and here
elections were held, while from the balcony the inaugural addresses
of the governors were delivered.[264] Near by were the stocks and
the pillory. Besides the city and county courts, the supreme court
also sat there twice a year. When the statehouse was finished the
supreme court moved to that building. In 1787 the erection of a
new courthouse was commenced at Sixth and Chestnut streets, upon
land devoted to that use by the assembly in 1762,[265] but while
Philadelphia was the capital, the building was used by the Federal
Government. When the capital was removed to Washington the courts
took possession of the building long intended for their use. The old
courthouse was ruthlessly torn down in 1837, an extraordinary act of
vandalism even for those times.
In 1698 a volume was printed in London, entitled, “A historical and
geographical account of the province of Pennsylvania and of the West
New Jersey in America, etc., by Gabriel Thomas who resided there
about fifteen years.” Regarding two of the learned professions he
writes: “Of lawyers and physicians I shall say nothing, because
the country is very peaceable and healthy; long may it continue
so and never have occasion for the tongue of one and the pen of
the other, both equally destructive to men’s estates and lives;
besides, forsooth, they hangman-like, have a license to murder and
make mischief.” Such views, so far, at least, as our profession is
concerned, were not uncommon among the early colonists. Many of
them belonged to persecuted religious sects whose experiences with
the law in their former homes were not such as to inspire pleasant
sentiments toward the courts or their officers. Few were drawn from
that class of society which, through birth or education, could be
expected to feel or display any interest in professional learning,
while those few who might have done so, were enthusiasts, filled
with utopian theories of government, or utilitarians, who regarded
the lawyer as an “unproductive consumer.” Nor was there anything to
tempt an ambitious barrister to desert Westminster Hall for a hut in
the wilderness. The colonists were usually poor, their possessions
half-cleared farms, commerce was controlled by the mother country,
fees were necessarily small, and the only road to professional
distinction and wealth was through crown offices or successful land
speculation. However, since courts without counsel are as Hamlet
without Hamlet, there are evidences that even in the earliest days
there were men willing to undertake the conduct of cases.
The early records of the court of assizes of New York show
unmistakably the activity of certain men who appear in so many cases
that they must have been regarded as regular practitioners.[266] In
the records of the court of New Castle the following minute appears
under date of November 7, 1676:--
“Uppon the Petition of Thomas Spry desiering that hee might bee
admitted to plead some Peoples cases in Court etc. the Worpp^{ll}
Court have granted him License So long as the Petitioner Behaves
himself well and carrys himself answerable thereunto.”[267]
Evidently something must have happened in 1677 to disgust the
governor with the ways of the law, for on May twenty-ninth of that
year the governor and council “resolved and ordered that pleading
atturneys bee no Longer allowed to practice in ye Government but for
ye depending Causes,” which order was read in open court at Upland
and New Castle.[268] Prior to the receipt of this order at New Castle
John Mathews petitioned to be admitted as an attorney. The record
states:--
“The Court did admit the Peticon^r as an attorney and was sworne
accordingly: You doe sware by the Everliving God that you will
according to Lawe truely plead & manadge all cases wherein you
shall bee Imployed by Yo^r Clyant that you will not exact in yo^r
fees above what shall bee allowed by the Governo^r & Court That you
will not in one and the same action take fees both of the Pl^t and
def^t That you will not take any apparent unjust case in hand, but
in all Respects behave yo^{r}selve as all Attorneys are obliged to
by the Lawes of this governm^t.”[269]
Subsequently it was ordered that--
“The Cryer of the Court is to have for every Attorney that shall be
admitted & sworne in Court twelve Gilders or halfe a bever.”[270]
The crier no longer gets a beaver, but there is still a fee to be
paid on admission by those prisoners of hope who have satisfied the
examiners.
It was the dream of Penn that in his colony the laws should be so
plain and the pleadings so simple that every person could plead his
own cause, and it was so provided in his laws agreed upon in England
and embodied in the Act of March 10, 1683. His paternalism, and the
peace-loving tendencies of his more sincere followers, tended to
discourage skilled advocacy. In 1685 and again in 1686 the council
promulgated laws against lawyers’ fees. That of 1686 is as follows:--
“For the a Voyding of to frequent Clamours and manifest
Inconveniences wch usually attend mercenary pleadings in Civill
Causes, It is Enacted by ye authority aforesaid, that noe persons
shall plead in any Civill Causes of another, in any Court
whatsoever within this Province and Territories, before he be
Solemnlye attested in open Court, that he neither directly or
Indirectly hath in any wise taken or received, or will take or
receive to his use or benefit, any reward whatsoever for his
soe pleading, under ye penalty of 5 lb. if the Contrary be made
appear.”[271]
Neither of these acts, however, passed the assembly.
It soon became evident that lawyers could not, or would not,
be dispensed with, and in 1686 David Lloyd was dispatched by
the proprietor to Pennsylvania with a commission to act as
attorney-general of the province. The Acts of 1710 and 1715, for
establishing the courts, had provisions for the admission of
attorneys, as also the Act of May 22, 1722, which finally became a
law, and which provided “that there may be a competent number of
persons of an honest disposition and learned in the law, admitted by
the justices of the said respective courts, to practise as attorneys
there.” In the Act of March 30, 1722-23,[272] for regulating official
fees, the attorney’s oath is prescribed in a form very similar to
that used at the present day: “Thou shalt behave thyself in the
office of attorney, within the court to the best of thy learning and
ability, and with all good fidelity, as well to the court as to the
client. Thou shalt use no falsehood, nor delay any person’s cause for
lucre or malice.”
Even before this a miniature bar had sprung up among those active
in public affairs, among whom were Abraham Mann and John White,
members of the assembly, and Patrick Robinson, clerk of the court,
and afterwards a member of the provincial council. In 1683 John White
was appointed attorney-general to try a case against counterfeiters,
and in 1685 Samuel Hersent was appointed to this office. The two men
who were most active during the earliest period were David Lloyd
and John Moore. The latter, who had emigrated to Pennsylvania from
South Carolina prior to 1696, was appointed advocate of the court of
admiralty by Colonel Quarry, and was afterwards attorney-general.
As the province grew and prospered others came in, and in the early
part of the eighteenth century there was a considerable influx of
educated lawyers. The natural result was greater precision in the
pleadings and closer adherence to English forms and practice. Robert
Assheton, who filled the office of prothonotary from 1701 to 1727, as
well as that of associate justice of the supreme court, was a trained
lawyer; from his time the indictments were scientifically prepared,
and in fact all the clerical work of the court offices improved.
Nevertheless, the bar must have been a small and select body, since
there are recorded accusations of attempts to monopolize it. In
1708[273] a petition was read in the council from one James Heaton--
“representing that he had been sued in an Action of Trover and
Conversion, in the County of Bucks, by J. Growdon, yt he had
procured a writt of Error, by which the cause is to be brought
before the Provincial Judges, in the said County, the 14th of this
Instant; that in the meantime the said Jos. Growdon arrested him
in Philadia. on the same account in an Action to which he must
answer at the County Court in Philadia., on the 15th Instant, wch.
two several Courts coming so near together layes the Petitr. under
great hardships; he also represents that his antagonist himself is
Judge of the Provincial Court, and further that he has retained
all the Lawyers in the County (that have leave to plead,) against
him; Whereupon he prays that the Govr. would be pleased to appoint
an Impartial Judge to hear his cause, and would either assign him
Counsel, or so ascertain the Provincial Court, that if he be at the
Charge of procuring some from New York, he may not be disappointed.
“Upon wch. Jos. Growdon himself being present, answered that his
action in Bucks, and that in this County, are different; that he
never retained more than one Counsell, viz: John Moore, in this
cause, but that he not being able to attend, procured another to
act for him; by which means without any design of his, two became
Concerned in it, that it being impracticable that a man should
Judge in his own cause: that part of the Petition was altogether
needless.”
It was resolved that the petitioner be left to find his own counsel,
and Yeates, the second judge, was assigned to hear the case.
In the following year Francis Daniel Pastorius and Johannes Jawert
petitioned the council against proceedings in ejectment brought by
one Sprogel to recover the estates of the Frankfort Company, an
association of German purchasers of land, averring that Sprogel as
part of his “abominable plot did fee all the known attorneys or
lawyers of this province either to speak for him or to be silent
in court, in order to deprive the petitioners of all advice in
law.”[274] Upon examining the petitioners in the council David Lloyd
was declared “the principal agent and contriver of the whole,” and
steps were taken to protect the purchasers. The case is reported in
Pennypacker’s Colonial Cases with an account by Pastorius of the
whole curious transaction.[275]
In _Lyle_ v. _Richards_[276] Chief Justice Tilghman remarks that
there were few lawyers of eminence in the province prior to Tench
Francis, although there were never wanting strong minds well
able to conduct the business of the courts, and the fact that
the leading lawyers of the following generation received their
training in the Inns of Court led them perhaps to look down on their
predecessors, some of whom were in extensive practice that included
the neighboring colonies. Disparaging remarks by contemporaries are
not infrequent. Secretary Richard Peters, writing in 1749 to the
proprietors says of the bar in general: “All of whom except Francis
and Moland are persons of no knowledge, and, I had almost said, of
no principle.”[277] One name, however, stands at the head of the
early bar, that of the brilliant Andrew Hamilton. The history of
Hamilton is worth noting, as he is the only American lawyer of
his generation that enjoyed an international reputation. A native
of Scotland, he first taught school and then practiced law in
Maryland, from whence he removed to Philadelphia, about 1715, having
been retained to represent the proprietary interests. In 1717 he
became attorney-general and was active in the litigation over the
Maryland boundary. He also appeared in the high court of chancery
for the young proprietors, in the contest over Penn’s will,[278]
having been called to the English bar in 1712. The most interesting
personal episode in his career was the part he took in the erection
of Independence Hall, which was built from plans prepared by him
and under his personal supervision. To the legal profession he is
best known for his brilliant and successful defense of the printer,
Peter Zenger, tried for seditious libel, a case of real historical
importance as well as contemporary interest. In this case, tried in
the supreme court of New York in 1735, Hamilton, after the court had
refused his offer to prove the truth of the statements alleged to
be libelous, carried the jury against the instructions of the court
and obtained the defendant’s acquittal by a bold address in which
the liberty of the press was asserted with unprecedented vigor.
The doctrines which he advanced, regarded as unsound at the time,
have since become indelibly impressed upon English and American
law, and the trial deserves careful reading on account of the light
that it throws on contemporary political conditions and the effect
that it had on the law of libel.[279] On the other hand, the part
played by Hamilton in the suppression of the court of chancery
shows a willingness to sacrifice the science of jurisprudence to
the exigencies of politics, characteristic of his time, but not in
keeping with the best professional traditions. Tench Francis, the
next bar leader of distinction, enjoyed a greater reputation with his
successors in the post-Revolutionary period, and is praised by those
whose learning entitled them to speak with authority.[280]
As the century advanced it became the general custom, for those
who could afford it, to send their sons to be educated in the law
at the Inns of Court. This was more prevalent in the Southern and
Middle than in the New England colonies. From 1760 to the end of the
Revolution there were more than one hundred American students of law
in London, of whom forty-seven were from South Carolina, twenty-one
from Virginia, sixteen from Maryland, eleven from Pennsylvania,
five from New York and the rest from the other colonies, no other
colony than those named having more than two students.[281] Many
of these men attained great distinction in professional and public
life. Among those from Pennsylvania were Chief Justices Benjamin
Chew, Thomas McKean, Edward Shippen and William Tilghman; Justice
Jasper Yeates; Presidents of the Supreme Executive Council, Joseph
Reed and John Dickinson; as well as such distinguished lawyers and
citizens as Nicholas Waln, Edward and Richard Tilghman, William
Rawle, Jared Ingersoll and Peter Markoe. It is not to be supposed
that the education afforded by the Inns of Court corresponded to
that given in a modern law school. Everything depended on the
diligence of the student himself, and admission as a barrister came
in due course after eating the required number of dinners regularly
during the appointed terms. But the atmosphere and associations
were conducive to study, while inspiration was to be drawn from the
courts at Westminster, where the student attended and took notes
of the arguments and decisions. Such notebooks were, in those days
of scanty reporting, the treasured possessions of lawyer and judge
and carefully consulted in the preparation of important arguments
and decisions. In _Clayton_ v. _Clayton_,[282] the manuscript
notes of one of these students were cited in the supreme court of
Pennsylvania. The case was one involving the question as to whether
certain devisees under a will took an estate in fee or for life,
there being no words of inheritance, but a direction to divide.
Mansfield’s decision in _Wigfall_ v. _Brydon_,[283] was cited in
favor of a fee. It being difficult to reconcile this decision with
other authorities, the case was explained as turning on a direction
to sell and divide, which appeared from the manuscript notes of the
case of _Goodright_ v. _Patch_, decided in the King’s Bench, June
20, 1773, taken by Edward Tilghman while a student at law. So, too,
in the political capital of the kingdom, the student studied the
conflicting doctrines of the Tory and the Whig and prepared his mind
for the momentous changes about to occur in his home across the sea.
Those who could not go abroad for a legal education served a
clerkship in the office of a practitioner in the courts. Just what
were the qualifications for admission do not seem to be recorded. At
the earliest period sufficient assurance seems to have been all that
was required, but, as the legal fraternity became better organized,
it may be presumed that the courts gave more consideration to the
fitness of applicants. In 1759 the supreme court made an order--
“That for the future no persons be admitted attorneys or council
of this court without being previously examined as to their
qualifications to practice, nor without having taken the oaths or
affirmations of allegiance to his Majesty and subscribed the usual
Declaration.”[284]
At September term, 1760, Mr. Chew and Mr. Ross were appointed to
examine an applicant and at April term, 1761, Francis Hopkinson was
examined by Mr. Ross and Mr. Dickinson. Later admissions do not
recite an examination, and, perhaps, this duty was delegated to the
local bar, but the fact that there are no common pleas dockets for
Philadelphia County on file prior to the Revolution renders the
subject obscure. From the few minute books of the Philadelphia common
pleas that have escaped destruction we find that by 1790 it was the
established practice for a member of the bar to move in open court
for the admission of the candidate. The court would then appoint
a special committee of three members of the bar to conduct the
examination, and, if the result was favorable to the applicant, he
was admitted and sworn.[285]
Prior to the Revolution the path of the law student was made easier
by the publication of Blackstone’s Commentaries, a work that was
said by Edmund Burke to have had a larger sale in America than in
England, a statement that would seem to be justified, for hardly had
the first complete edition appeared in England before an American
edition was printed at Philadelphia (1771) of which about fourteen
hundred copies were subscribed for in advance, and this although
one thousand copies of the English edition had been imported and
sold in America.[286] The subscription list to the local edition
is headed by seven colonial governors and lieutenant-governors,
including Richard Penn of Pennsylvania and William Franklin of
New Jersey. The alphabetical list, headed by “John Adams, Esq.,
Barrister at Law, Boston,” includes many distinguished names, while
of the local subscribers, many were from the interior parts of the
state; John Creigh, bookseller of Carlisle, alone subscribing for
forty-five sets. It is hardly possible to overestimate Blackstone’s
influence upon American private law. His Commentaries became at once
the _vade mecum_ of the lay judge and the pioneer lawyer, in regions
where libraries were unknown. The work in fact long stood for the
common law itself in many communities, but it may be questioned
whether the Commentaries were not, for a period, detrimental to
legal scholarship, whether their flowing sentences did not carry the
superficial student too easily over the submerged rocks of the common
law, whether learned jurists have not wasted time in the discussion
and criticism of Blackstone’s theories and errors that might have
been better spent in a reexamination of his sources.
As the Revolution approaches we find an able group leading the bar,
Moland, Chew, Ross, Waln, Tilghman, Galloway and Dickinson. Time
was no object to the courts in those peaceful and slumberous days.
In a manuscript book of reports giving some cases of that time
the reporter says, in noting _Haldane_ v. _Duffield_, April Term,
1768, “The remainder of Mr. Chew’s argument I did not hear nor did
I wait Mr. Dickinson’s and Mr. Tilghman’s conclusion, this case
having continued twelve hours.”[287] In 1774 Chew succeeded Allen
as chief justice,[288] and in September of that year hospitably
entertained the members of the Continental Congress then assembled in
Philadelphia. Washington and John Adams both mention dining with him
on the twenty-second of that month. Adams writes in his diary:--
“Dined with Mr. Chew Chief Justice of the Province with all the
gentlemen from Virginia, Dr. Shippen, Mr. Tilghman and many
others. We were shown into a grand entry and staircase and into
an elegant and magnificent chamber until dinner. About 4 o’clock
we were called down to dinner. The furniture was all rich. Turtle
and every other thing, flummery, jellies, sweetmeats, of 20 sorts,
trifles, whipped sillabubs, floating islands, fools, &ct., and then
a dessert of fruits, raisins, almonds, pears, peaches. Wines most
excellent and admirable. I drank Madeira at a great rate, & found
no inconvenience in it.”[289]
The stately mansion of the chief justice yet stands, the fine old
colonial hospitality a treasured memory. The smoke and dust of
fratricidal war darkened it, its walls were battered with shot and
its floor stained with blood; bench and bar were scattered, some
to attain distinction in the camps and councils of the new nation,
others to live obscurely through weary years of suspicion or to fly
from the country of their birth as attainted traitors, their lands
forfeited and their names soon forgotten.
FOOTNOTES:
[171] II Statutes at Large, 461.
[172] II Statutes at Large, 148; Charter and Laws of Pennsylvania,
311.
[173] II Statutes at Large, 456, 482.
[174] II Colonial Records, 185, 19, 11 mo. 1704. Penn & Logan
Correspondence, Memoirs of Historical Society of Pennsylvania, Vol.
X, 5. Lloyd attempted to regulate the practice in ejectment in
his bill of 1706 which was rejected by the governor. His idea was
to require a real lease, entry and ouster and to do away with the
fictitious proceeding--“A new practice, allowed only in Westminster
Hall.” II Colonial Records, 354, February 24, 1706-7.
[175] II Colonial Records, 261, September 19, 1706.
[176] II Colonial Records, 271, 14, 9 mo. 1706. In a speech the
governor refers to it as “the longest perhaps that ever was drawn up
in America.” II Colonial Records, 313.
[177] Penn & Logan Correspondence, Memoirs of Historical Society of
Pennsylvania, Vol. X, 180.
[178] II Colonial Records, 268, 3, 8 mo. 1706.
[179] II Colonial Records, 263, 23, 7 mo. 1706; 266, 25, 7 mo. 1706;
276, 27, 9 mo. 1706.
[180] II Colonial Records, 272, 16, 9 mo. 1706.
[181] II Colonial Records, 298, 23, 10 mo. 1706.
[182] II Colonial Records, 304, January 15, 1706-7.
[183] II Colonial Records, 326, February 6, 1706-7.
[184] II Statutes at Large, 500; Charter and Laws of Pennsylvania,
319; II Colonial Records, 349, February 21, 1706-7.
[185] In the list of acts before the Commissioners of Trade in
1694 is one purporting to be entitled, “Law about appeals to the
Supream Court,” but if this is the Act of 1693 it should have been
Provincial Court. Board of Trade Journals, Mss. Historical Society of
Pennsylvania, Vol. VII, 309.
[186] II Colonial Records, 362, March 4, 1707.
[187] February 28, 1710-11, II Statutes at Large, 301; II Colonial
Records, 552, February 28, 1710-11.
[188] II Colonial Records, 549, February 10, 1710-11.
[189] II Statutes at Large, 331. Twenty shillings was the sum which
Governor Evans considered “too small for any person duly qualified to
accept of.” II Colonial Records, 273, 16, 9 mo. 1706.
[190] II Statutes at Large, 548; I Pennsylvania Archives (1st
Series), 157.
[191] II Statutes at Large, 554; III Statutes at Large, 441, 467. On
the other hand, Penn complained of the expense to which he was put in
endeavoring to have the acts approved by the crown officers.
[192] III Statutes at Large, 32, 440, 466.
[193] Charter and Laws of Pennsylvania, 395; I Pennsylvania Archives
(1st Series), 196.
[194] II Pennsylvania Archives (1st Series), 107, see also, VIII New
Jersey Archives (1st Series) 190. For appeals in other colonies,
see _Winthrop_ v. _Lechmere_, 1 Thayer’s Cases on Constitutional
Law, 34; VII Connecticut Colonial Records, 571 (1727); _Frost_ v.
_Leighton_ (Mass. 1738), II American Historical Review, 229; _Perry_
v. _Randolph_, Barradal’s Reports, 2 Virginia Colonial Decisions, 22
(1726). In the introduction to Volume II of Acts of the Privy Council
of England, Colonial Series (1910), will be found an interesting
account of the practice of the council on appeal, while in the text
are numerous examples of appeals from the West India Islands as well
as from the colonies on the American Continent between 1680 and 1720.
[195] III Colonial Records, 30, May 8, 1718.
[196] 1 Dallas’s Reports, 6 (1763).
[197] April Term, 1763, Docket No. 3, page 450.
[198] April Term, 1763, Docket No. 3, page 448.
[199] April Term, 1765, Docket No. 4, page 93.
[200] September Term, 1765, Docket No. 4, pages 120, 181.
[201] _Swift_ v. _Hawkins, Lightfoot and Jones_, Docket No. 4, page
591.
[202] Finlason’s History of the Judicial Committee of the Privy
Council, 39; V Pennsylvania Archives (2d Series), 436, 658. While
there was a standing committee for hearing appeals, these petitions
seem to have been frequently referred to special committees. The
present judicial committee dates from the Act of 3 & 4 William IV,
chapter 41.
[203] Mansfield’s speech on the Stamp Act, reprinted in Library of
Original Sources, Vol. VII, 84.
[204] II Colonial Records, 38, 17, 3 mo. 1703.
[205] Shepherd’s Proprietary Government in Pennsylvania, chapter VII,
351.
[206] III Statutes at Large, 199; III Colonial Records, 63.
[207] III Statutes at Large, 427.
[208] IV Statutes at Large, 337, 483.
[209] March 21, 1772, VIII Statutes at Large, 239.
[210] See III Colonial Records, 35, June 15, 1718.
[211] IV Colonial Records, 276, Feb. 3, 1737-8. A full report of this
affair will be found in the Pennsylvania Gazette, February 7, 1737-8.
It appears that the parties concerned were not Free Masons, but
practical jokers.
[212] III Colonial Records, 274, October 4, 1726.
[213] As early as 1685 an ecclesiastical offender was offered
an opportunity to emigrate to the new colony, as appears by the
Privy Council minutes: “Whereas it has been this day represented
to his majesty that Christopher Sibthorpe, brazier, is a prisoner
in Woodstreet compter upon a capias on the Writt de excomunicato
capiendo, his majesty was pleased to order the sheriffs of the
city of London (taking good security that the said Christopher do
forthwith transport himself and family to Pennsylvania in America and
paying the charges of the court) sett him at liberty in order to his
sayd voyage.” Acts of the Privy Council of England, Colonial Series
(1910), Vol. II, p. 79, § 176. The exile was an active Friend.
[214] The Forum, Vol. I, 231. It is a matter of some doubt as to
whether the ducking-stool ever was actually used in Philadelphia.
In 1769 a woman was sentenced to be ducked at the end of Market
street wharf, but we are not informed whether the sentence was
carried into execution. In 1779 Ann Mease was sentenced to the same
punishment but the council remitted the ducking January 26, 1780.
XII Colonial Records, 235. In 1781 there was another conviction but
the sentence was not carried out. In 1824 the supreme court held
that the ducking-stool was not the punishment for a common scold in
Pennsylvania. _James_ v. _Commonwealth_, 12 Sergeant & Rawle, 221
(1824). The Act of March 10, 1683, reënacted in 1693, provided that
a scold should stand one hour in a public place with a gag in the
mouth. Charter and Laws of Pennsylvania, 144, 198. This was supplied
by the Act of November 27, 1700, II Statutes at Large, 85, which
provided that the gagged person should stand in some public place at
the discretion of the magistrate. The act was repealed in council
because it was not stated how long the person should stand gagged and
the penalty was too great. II Statutes at Large, 466.
[215] Quotations from Mss. Docket, given in Appendix to Vol. I of
David Paul Brown’s Forum, 573.
[216] Such executions were not unusual in England. Sidney refers to
a number, mentioned in the newspapers, including two in 1735, one in
1737, two in 1739 and one as late as 1789. Sidney’s England in the
Eighteenth Century, Vol. II, 299.
[217] III Statutes at Large, 298.
[218] III Statutes at Large, 488.
[219] IV Statutes at Large, 84.
[220] November 27, 1731, IV Statutes at Large, 229.
[221] IV Statutes at Large, 425, 430.
[222] IV Statutes at Large, 431.
[223] IV Statutes at Large, 443.
[224] IV Statutes at Large, 421, 449; III Colonial Records, 446,
November 23, 1731. The assembly stated that the aspersions on the
inferior courts were false and scandalous. Votes of Assembly, Vol.
III, 168, 169.
[225] 4 Binney’s Reports, 117 (1811).
[226] V Statutes at Large, 462, 722.
[227] May 20, 1767, VII Statutes at Large, 107.
[228] Charter and Laws of Pennsylvania, 63.
[229] Kent’s Commentaries, Vol. II, 97.
[230] Charter and Laws of Pennsylvania, 109.
[231] Charter and Laws of Pennsylvania, 194.
[232] Act of November 27, 1700, II Statutes at Large, 5.
[233] II Statutes at Large, 490.
[234] II Statutes at Large, 180. By another act, of the same date, a
divorce from bed and board was allowed to the first husband or wife
of a bigamist. II Statutes at Large, 181.
[235] Rawle’s Equity in Pennsylvania, Appendix, 25.
[236] “As a matter of fact, for the century and a half during which
the practice prevailed perhaps not more than two hundred such
separations were granted.” Howard, Matrimonial Institutions, Vol. II,
106.
[237] VII Statutes at Large, 263.
[238] IX Colonial Records, 564, 566, 567, 580.
[239] VII Statutes at Large, 626.
[240] VIII Statutes at Large, 243.
[241] VIII Statutes at Large, 597, 600; Votes of Assembly of
Pennsylvania, Vol. VI, 485, 488; X Colonial Records, 104.
[242] November 24, 1773, O’Callahan’s Documents relative to the
Colonial History of New York, Vol. VIII, 402; New Jersey Archives,
Vol. X, 411, 412.
[243] X Colonial Records, 40, 53, 54.
[244] IX Statutes at Large, 433.
[245] XII Statutes at Large, 94.
[246] Eighteen private acts were passed in 1873. For the present law
see the Act of March 13, 1815, 6 Smith’s Laws of Pennsylvania, 286;
Pepper & Lewis’s Digest of Decisions, Vol. V, col. 7075; Stewart’s
Purdon’s Digest, Vol. I, 1230.
[247] See examples in VIII Pennsylvania Archives (3d Series), 23.
[248] III Colonial Records, 23, February 14, 1717.
[249] Charter and Laws of Pennsylvania, 382, 385; VIII and IX
Pennsylvania Archives (3d Series), _passim_.
[250] So, also, on the accession of a new sovereign, III Colonial
Records, 298, September 1, 1727. Chronological lists of the judges of
the supreme court and of the court of common pleas and the orphans’
court of Philadelphia County will be found in John H. Martin’s Bench
& Bar of Philadelphia (1883). Another list, slightly different, will
be found in IX Pennsylvania Archives (2d Series), 629.
[251] II Colonial Records, 247, April 17, 1706.
[252] III Statutes at Large, 369; same in Act of August 22, 1752; V
Statutes at Large, 161.
[253] X Colonial Records, 53, September 19, 1772.
[254] IX Statutes at Large, 29.
[255] Justice Moll is described as “president of the court at New
Castle.” Records of Court at New Castle, 496; see, also, I Colonial
Records, 18, 23, 3 mo. 1683.
[256] II Statutes at Large, 233.
[257] III Statutes at Large, 63.
[258] P. L. 208.
[259] Benjamin Franklin’s Autobiography, chapter ix. A bill of
exceptions signed by Franklin with the other judges of the common
pleas is printed in Appendix B, Vol. I, of the Forum, by David Paul
Brown.
[260] David Lloyd was born in 1656 in Montgomery County, North Wales,
and was appointed attorney-general by Penn in 1686. At the time of
his death in 1731 he resided at Chester. He left no descendants.
[261] It is said that Chief Justice Allen refused to issue Writs
of Assistance to the customs officers at the time of the memorable
agitation on that subject. Quincy’s Reports (Mass.), 509.
[262] Watson’s Annals of Philadelphia (1850), Vol. I, 350; Sharp &
Westcott’s History of Philadelphia, Vol. II, 857, Vol. III, page 1819.
[263] II Colonial Records, 425, April 5, 1708. The building was
finished in 1710.
[264] The Pennsylvania Gazette of December 14, 1769, states that
Governor John Penn’s commission was read from the Court House in the
presence of a concourse of people. An election riot took place on the
staircase leading to the balcony in 1742.
[265] Act of February 12, 1762; VI Statutes at Large, 177.
[266] There are attorneys mentioned in the Records of the Court
of New Amsterdam, Vol. I, 190. Peter Alrichs, writing to Governor
Stuyvesant March 30, 1658, says: “I have also to pay the attorney
Schelluyn for salary earned by him in a suit against Dirck
Cornelissen Heunich.” VII Pennsylvania Archives (2d Series), 528.
[267] Records of the Court of New Castle, 9. Spry was also a doctor.
In the same year he got into trouble by assaulting Captain Collier
with a cane while “overcome w^{th} drinke” and was fined two hundred
guilders by the court. Records of Court of New Castle, 103.
[268] Hazard’s Annals of Pennsylvania, 438; Records of the Court of
New Castle, 111; Records of Court at Upland, 82.
[269] Records of the Court of New Castle, 83.
[270] Records of the Court of New Castle, 101.
[271] Charter and Laws, 507; I Colonial Records 123, 2, 2 mo. 1686.
This was not a new idea, as Massachusetts in 1641 and Virginia in
1645 had attempted by legislation to prevent attorneys from pleading
for remuneration. Baldwin on Constitutional Law in Two Centuries’
Growth of American Law, 14; see also, II Connecticut Colonial
Records, 59.
[272] III Statutes at Large, 379.
[273] II Colonial Records, 423, April 2, 1708.
[274] II Colonial Records, 447, March 1, 1708-9.
[275] _Heather_ v. _Frankfort Co._, Pennypacker’s Colonial Cases,
142; II Colonial Records, 447, March 1, 1708-9. That the “cornering”
of the bar was not a new experiment would appear from an incident
mentioned by Barrington in his “Observations on the Statutes,” page
294n. “There is also ---- a petition of Robert Pickerell, exhibited
to the king in parliament the second year of Richard the Second; by
which he complains that Alice Perrers had retained all the advocates
in Westminster Hall, so that he could have no advice; ‘si il ne
donneroit si grande summe d’or, quil ne poit attainder.’”
[276] 9 Sergeant & Rawle’s Reports, 322 (1823).
[277] Watson’s Annals of Philadelphia (1850), Vol. I, 316.
[278] VII Pennsylvania Archives (2d Series), 94. See sketch of his
life in Vol. I, Lewis’s Great American Lawyers (1907), 1.
[279] Howell’s State Trials, Vol. 17, 575. In Pennsylvania the
quarter sessions of Philadelphia had in 1692 allowed the question
of the seditious character of a publication to go to the jury.
_Proprietor_ v. _Bradford_, Pennypacker’s Colonial Cases, 117.
[280] It is a curious fact that a number of the bar leaders came from
Maryland to Pennsylvania--Andrew Hamilton, Tench Francis, Benjamin
Chew and the Tilghmans.
[281] Life and Times of John Dickinson, 28.
[282] 3 Binney’s Reports, 476 (1811).
[283] 3 Burrough’s Reports, 1895 (1766).
[284] April Term, 1759, Supreme Court Docket No. 3, page 83.
[285] Minute Book, Court of Common Pleas, Philadelphia County, March
Term, 1790.
[286] Hammond’s Blackstone’s Commentaries, Preface, page viii.
[287] Keith’s Provincial Councillors, 328.
[288] X Pennsylvania Colonial Records, 173, April 29, 1774.
[289] Keith’s Provincial Councillors, 329.
CHAPTER III.
The appearance docket of the supreme court for April Term, 1776,
contains the following entry:--
“Philadelphia, s. s.
“At a Supream Court held at Philadelphia for the Province of
Pennsylvania the tenth day of April in the sixteenth year of the
reign of our Sovereign Lord George the third King of Great Britain
France and Ireland, Defender of the Faith &c and in the year of our
Lord one thousand seven hundred and seventy six: and continued by
adjournment until--”
Until when? Doomsday no doubt; for this was the last court held under
our “Sovereign Lord George” and the date of continuance was never
filled in. Independence, however, was not welcomed in Pennsylvania
with the same enthusiasm as in the New England states. At the
beginning of the conflict the influential and conservative element
in the province while opposed to the measures of parliament was
exceedingly adverse to the idea of a separation from Great Britain.
The grievances of the Pennsylvanians were not as great as those of
the other colonists; they had a liberal charter and a satisfactory
system of local government, while the proprietary family stood
between them and the Crown to soften controversies and prevent
conflicts of authority; many earnestly hoped for reconciliation and
were carried on the tide of revolution sorely against their wills.
To accelerate the movement and to get rid of the conservatives, a
bold, radical minority, with the moral support of congress, organized
and carried through a revolution in the government of Pennsylvania.
A convention called in July, 1776, and presided over by Franklin,
drew up a new constitution, which, after considerable opposition,
was declared to have been adopted. Penn’s charter was discarded,
the proprietary government ceased to exist, the old officials and
assembly retired and new men took their places.
The Constitution of 1776 was not a satisfactory instrument and was
discarded after a fourteen years’ trial, but some of its features are
worth noticing. The executive power was vested in a supreme executive
council composed of twelve members, one from the city of Philadelphia
and eleven from the respective counties. The term of office was three
years, and the president and vice-president were chosen from the
council by joint ballot of the assembly and council. The president
and council were empowered to choose and commission all judges and
other officers and fill vacancies in office. Every officer of the
state was subject to impeachment by the assembly, the impeachments to
be heard before the president and council. The principal judiciary
clauses were as follows:--
“Sec. 23. The judges of the supreme court of judicature shall
have fixed salaries, be commissioned for seven years only, though
capable of reappointment at the end of that term, but removable for
misbehaviour at any time by the general assembly; they shall not be
allowed to sit as members in the continental congress, executive
council or general assembly, nor to hold any other office, civil or
military, nor take or receive fees or perquisites of any kind.
“Sec. 25. Trials shall be by jury as heretofore, and it is
recommended to the legislature of this state to provide by law
against every corruption or partiality in the choice, return or
appointment of juries.
“Sec. 26. Courts of sessions, common pleas and orphans’ courts
shall be held quarterly in each city and county, and the
legislature shall have power to establish all such other courts as
they may judge for the good of the inhabitants of the state; all
courts shall be open, and justice shall be impartially administered
without corruption or unnecessary delay: All their officers shall
be paid an adequate but moderate compensation for their services,
and if any officer shall take greater or other fees than the laws
allow him, either directly or indirectly, it shall ever after
disqualify him from holding any office in this state.
“Sec. 27. All prosecutions shall commence in the name and by the
authority of the freemen of the commonwealth of Pennsylvania, and
all indictments shall conclude with these words--_against the peace
and dignity of the same_. The stile of all process hereafter in
this state shall be _The commonwealth of Pennsylvania_.”[290]
The office of justice of the peace was made elective, the voters
of the respective districts to choose two, one of whom was to be
commissioned by the president for the term of seven years.
A peculiar feature of the constitution was the provision for the
election every seven years of a council of censors who were to meet
and inquire whether the constitution had been preserved inviolate,
whether the laws were duly executed, and, if there appeared any
necessity to amend the constitution, to call a convention for that
purpose. While these changes were in progress and while most of
the active citizens were engaged in war or political strife, the
administration of justice was sadly neglected.
By an act of January 28, 1777,[291] passed for the purpose of putting
into effect such and so much of the laws of the province as were
necessary in the commonwealth, it was provided, that the courts of
quarter sessions and gaol delivery, petty sessions, common pleas,
orphans’ courts, supreme court, courts of oyer and terminer and
general gaol delivery should be held and kept in each respective
county at the times and places appointed by law, with all the
powers, authority and jurisdiction which by law such justices and
judges theretofore had had and exercised and such as were given by
the constitution. It was further provided that the president and
council should appoint one justice in each county to preside in the
respective courts and in his absence the justices who should attend
were to choose a president. All actions in the provincial courts were
continued in the same state as if the authority of such courts had
never ceased.
The chief justice of the new supreme court was Thomas McKean, a
signer of the Declaration of Independence and one of the most active
of the patriot party. The associate justices were William A. Atlee
and John Evans. The suspension of the courts caused considerable
inconvenience and letters and petitions complaining of the prevailing
conditions were presented to the council.[292] In the counties the
same trouble was had with regard to the justices, many of whom were
away, or unwilling to act in the unsettled state of affairs; in some
parts of the state the local committees of safety assumed judicial
power and took cognizance of minor crimes.
The first session of the common pleas, at Philadelphia, when the
style of process was altered from king to commonwealth, was held in
September, 1777, when six attorneys were admitted to practice,[293]
but the British were already marching on Philadelphia, and before
the end of the month the army of King George had expelled the new
government.
During the occupation of Philadelphia by General Howe, from
September, 1777, to June, 1778, the seat of government was in
Lancaster. With the return of the state officials to Philadelphia
the various agencies of proscription became active. Many persons
were declared traitors and their estates forfeited to the
commonwealth.[294] The most important cases tried before the newly
organized supreme court were treason trials, among which those of
Roberts and Carlisle, which are very briefly reported, aroused
great popular interest.[295] Roberts, a miller of Lower Merion
Township, was accused of acting as a guide to Sir William Howe and of
persuading various persons to enlist in the British army. Carlisle
was charged with having accepted a commission to keep watch over the
gate of the city of Philadelphia, established by Howe to prevent
the ingress and egress of persons not provided with passes. The
accused were tried on the twenty-fifth and thirtieth of September,
1778, found guilty and sentenced to be hanged. Earnest appeals for
executive clemency were made on behalf of the prisoners by petitions,
but the council was firm and both men were hanged. In these, as in
most of the other treason trials, James Wilson appeared for the
defendants and acquired such unpopularity through his faithful
efforts in behalf of his clients that his house was attacked by
a mob, which was driven off only after a fight that cost several
persons their lives.
The Revolution brought to an end the court of vice admiralty, of
which Edward Shippen was judge, and it became necessary to create
a tribunal to take its place. The Continental Congress advised
the several legislatures to establish courts of admiralty and,
accordingly, the assembly, on March 26, 1776, passed a resolution
creating a court of admiralty to be held in the city of Philadelphia
to try cases of captured vessels brought into that port, with the
right of appeal to congress or to such person or persons as they
should appoint to hear appeals.[296] For this last purpose a
committee was appointed by congress, whose feeble and unsupported
authority was openly defied by George Ross, the Pennsylvania judge of
admiralty, in the case of the “Active,” giving rise to a memorable
controversy carried on in the courts long after the adoption of the
constitution of the United States, and nearly resulting in an armed
conflict between the federal and state authorities. This case, or
rather series of cases, pointedly illustrates the growth of the
federal power, the decree of the helpless commissioners of admiralty
of the Continental Congress, long flouted by the state judges,
prevailing, after many years, by virtue of a judgment of the supreme
court of the United States, to whose authority the state officials,
after calling out the militia to resist the marshal, yielded a sullen
obedience.[297]
Francis Hopkinson, the distinguished writer, who succeeded Ross in
1779, was the first state judge to undergo the unpleasant experience
of an impeachment by the assembly. This proceeding, which took place
in December, 1780, was the result of a complaint by the judge against
Mathew Clarkson, the marshal of the court, which resulted in his
dismissal. Clarkson in revenge made charges against the judge before
the assembly, which voted for his impeachment. The court consisted
of President Reed and the council. Smith and Galbraith managed for
the house with Attorney-General Bradford, while Judge Hopkinson
was represented by James Wilson. The principal charges against the
judge were that he had wrongfully issued a writ for the sale of the
cargo of a ship, and that he had exacted illegal fees in a prize
case. The judgment of the council, as pronounced by the president,
was an acquittal upon all the charges, although it seemed to the
council that the fees, which were charged according to the recognized
practice of the court, were excessive.[298] Upon the adoption of the
constitution of the United States admiralty jurisdiction passed to
the federal district courts and Judge Hopkinson was appointed the
first district judge for Pennsylvania under the Act of Congress of
September 14, 1789.
The necessity for a court of last resort to take the place of the
privy council of Great Britain was met by the creation of the High
Court of Errors and Appeals, under the act of February 28, 1780,[299]
to hear appeals from the supreme court, the register’s courts and the
court of admiralty.
This act, after reciting that the laws of the late province gave a
very precarious, difficult and expensive remedy to parties injured
by erroneous judgments, by appeal to the king in council, and that
as “the good people of this commonwealth, by their happy deliverance
from their late dependent condition, and by becoming free and
sovereign are released from this badge of slavery and have acquired
the transcendent benefit of having justice administered to them at
home and at moderate costs and charges,” enacted that a court of
error should be established composed of the president of the supreme
executive council, the judges of the supreme court, the judge of the
admiralty, together with three persons of known integrity and ability
commissioned for seven years, any four or more of them to constitute
a quorum. The court in this form had but a brief existence, its
composition being materially changed by the Act of April 13,
1791.[300] Of the presidents of the council, Reed and Dickinson
were leading lawyers and Dickinson rendered at least one very able
decision in the admiralty case of _Talbot_ v. _Three Brigs_.[301]
Benjamin Franklin, although he had once sat for a brief period in
the common pleas, was wise enough to know that the administration
of law required a special education, at least there is no reported
opinion by him while president. Of the extra members of the court,
Edward Shippen, judge of vice admiralty under the Crown, subsequently
became chief justice of the supreme court; Francis Hopkinson has been
mentioned and Henry Wynkoop was president judge of Bucks County.
That the Constitution of 1776 was not working smoothly was the
opinion of a majority of the council of censors which met in 1783
to consider whether the constitution was being observed and whether
it needed amendment. The committee on defects reported that the
commissioning of the judges of the supreme court for seven years
only was a material defect, because it rendered the tenure of judges
dependent on the will of the council, while the committee on abuses
reported that the section requiring fixed salaries for the judiciary
had not been complied with as it ought and that permanent salaries
should without delay be established for the judges during their
continuance in office.[302] The findings of the censors on these and
other points were to bear fruit in the Constitution of 1790.
In 1786 an addition was made to the jurisdiction of the supreme
court, which hitherto had exercised no original jurisdiction in civil
cases except in fines and common recoveries. By an act of that year
issues of fact were allowed to be tried _in banc_ or at _nisi prius_
by that court in the county of Philadelphia.[303]
A case that excited considerable interest at the time was the
outlawry of Aaron Doan, one of the famous brothers who terrorized
Bucks County and the surrounding country. The defendant, having
been attainted of robbery, was brought into the supreme court on
September 24, 1784, and after hearing before the court upon several
exceptions to the outlawry, all of which were overruled, execution
was awarded. When the transcript of the record was remitted to the
supreme executive council, in order that a warrant for the execution
should issue, the humanity of President Dickinson seems to have been
shocked that a man should be deprived of his life without a trial
by jury and, accordingly, a letter was addressed to the supreme
court inquiring whether there were any modern instances in England
of persons being executed upon outlawry, or whether that had ever
occurred in Pennsylvania, and was compatible with the constitution.
Technical objections to the record were also raised.[304] The court
replied that, while not bound to give reasons for their judgment
and desiring that this should not be construed as a precedent, they
gave it as their opinion that under the laws of the commonwealth
and the common law they had no doubt that the prisoner had been
properly outlawed and had forfeited his life, but could mention no
case in Pennsylvania of a person executed upon outlawry by judicial
proceedings alone, except that of one Daniel Dawson, who had been
executed since the Declaration of Independence, in consequence of
an attainder, by virtue of a proclamation of the supreme executive
council and judicial proceedings thereon, in which the court awarded
execution by sentence of death, no judgment having been given before.
Dickinson was still dissatisfied and addressed a special message
to the assembly on the subject, but no action was taken at that
time and the humane scruples of Dickinson did not influence his
successors, Franklin and Muhlenberg, upon the outlawry of the other
Doans, Abraham and Levi.[305] In fact except for the objections
to the proceedings, as out of harmony with modern ideas, little
sympathy would have been wasted on these desperadoes who, from all
accounts, richly deserved their sentences. By an Act of September 23,
1791,[306] the process of outlawry was better regulated, and by the
Act of April 22, 1794,[307] the death penalty was abolished for all
crimes except murder in the first degree.
This reform was largely due to the efforts of William Bradford,
who in that year became a judge of the supreme court, resigning a
few years later to accept the office of attorney-general of the
United States in Washington’s cabinet, whose brilliant career was
cut short by an early death. Prior to this time the minutes of the
supreme executive council are burdened with appeals for executive
clemency and numerous orders appear for the remission of corporal
punishment, as well as of death sentences. That the council had an
eye to dramatic effect, or were convinced of the value of mental
suggestions, is indicated by one order in which a reprieve is granted
to a prisoner “which the sheriff is not to make known to him until he
be taken under the gallows.”[308] Executions were still public and
were attended by vast crowds, drawn by the same morbid curiosity as
is exhibited by their descendants who feast on the published details
of the so-called private executions.[309]
In 1790 a new constitution for the state was drafted and adopted
by a convention called for that purpose. The old constitution had
many defects and the newly adopted constitution of the United
States offered a model which many were eager to imitate. In the new
constitution the legislative, executive and judicial powers were
distinguished and defined according to the now classic American
method, and the state was provided with a governor and a senate
as well as an assembly. In remodeling the judiciary, the subject
with which we are concerned, an earnest but unsuccessful effort was
made to establish a court of chancery. The principal changes in
the judiciary were embodied in the following clauses of Article V
relating to the judiciary:[310]--
“Sec. 2. The judges of the supreme court, and of the several courts
of common pleas, shall hold their offices during good behaviour:
But for any reasonable cause, which shall not be sufficient ground
for impeachment, the governor may remove any of them, on the
address of two-thirds of each branch of the legislature. The judges
of the supreme court, and the presidents of the several courts of
common pleas shall, at stated times, receive, for their services,
an adequate compensation, to be fixed by law; which shall not be
diminished during their continuance in office; but they shall
receive no fees or perquisites of office, nor hold any other office
of profit under this commonwealth.
“Sec. 3. The jurisdiction of the supreme court shall extend over
the state; and the judges thereof shall, by virtue of their
offices, be justices of oyer and terminer and general gaol delivery
in the several counties.
“Sec. 4. Until it shall be otherwise directed by law, the several
courts of common pleas shall be established in the following
manner: The governor shall appoint in each county, not fewer than
three, not more than four judges, who, during their continuance in
office, shall reside in such county: The state shall be, by law,
divided into circuits, none of which shall include more than six,
nor fewer than three counties. A president shall be appointed of
the courts in each circuit, who, during his continuance in office,
shall reside therein. The president and judges, any two of whom
shall be a quorum, shall compose the respective courts of common
pleas.
“Sec. 5. The judges of the court of common pleas in each county
shall, by virtue of their offices, be justices of oyer and terminer
and general gaol delivery, for the trial of capital and other
offenders therein; and two of the said judges, the president being
one, shall be a quorum; but they shall not hold a court of oyer and
terminer or gaol delivery in any county, when the judges of the
supreme court, or any of them, shall be sitting in the same county.
The party accused, as well as the commonwealth, may, under such
regulations as shall be prescribed by law, remove the indictment
and proceedings, or a transcript thereof, into the supreme court.”
The most important changes, as will readily be seen, were the
restoration of life tenure to the judges and the grouping of the
counties into circuits with a president for the common pleas courts
therein, a measure rendered necessary by the growth of the state,
particularly in the West. By the appointment of judges learned in the
law to preside over the lower courts in the respective circuits some
measure of relief was afforded to the supreme court, whose work was
becoming increasingly arduous.
By the Act of April 13, 1791,[311] the courts were established
in conformity with the new constitution. The supreme court was
required to hold three terms a year and courts of _nisi prius_ in
the intervals. The state was divided into five circuits or districts
(increased in 1806 to ten), each comprising a group of counties, and
for each district a president judge learned in the law was appointed
by the governor who, with not less than three, or more than four
other persons, commissioned as judges for each of the counties in
the circuit, formed for such counties, respectively, the courts of
common pleas, oyer and terminer, quarter sessions and orphans’ court.
The president and any two of the judges, with the register of wills,
comprised the register’s court.
In cases involving more than four hundred dollars, a writ of error
lay from the supreme court and the register’s court to the high court
of errors and appeals, which was also remodeled, and, under this
act, comprised the judges of the supreme court and the presidents of
the common pleas, with three other persons of known legal ability
commissioned in the same manner as the judges of the supreme court.
It was further provided that such judges as should have given
judgment below should be excluded from sitting on the hearing of that
cause on appeal. The high court of errors and appeals sat once a year
in Philadelphia. On the organization of this court Benjamin Chew, the
former provincial chief justice, was named as an extra member and was
made president of the court, the other extra places not being filled.
By another act of the same date the salaries of the judges were fixed
as follows: Chief justice of the supreme court £1000, associate
justices and president judge of first district £600, presidents of
other districts £500.[312] When it is remembered that these are
not pounds sterling, but Pennsylvania currency, the modesty of the
salaries is but too evident. Thirty shillings a day were allowed
to each justice of the supreme court for traveling expenses when
on circuit. In 1796 the salaries of the associate justices and the
president of the first district were raised $400 and of the other
presidents $266.67. At the time of the Constitutional Convention of
1837, the salary of the chief justice of the supreme court was $2666
and of the associate justices $2000 each, with an allowance for
mileage and expenses on circuit. The judges of the district courts
were paid $2000 each, as well as the judges of the common pleas for
the first judicial district. In the other districts the president
judges of the common pleas received $1600 and the associates $140
with mileage.[313]
In 1799, further changes were made in the jurisdiction of the
courts, which for some time were the subject of constant legislative
experiments. As the population grew, the impracticability of keeping
up the system of _nisi prius_ sessions of the supreme court became
more and more obvious, while to the suitors and the bar, the hardship
and expense of crossing the Alleghenies to attend a session of the
court _in banc_, at Philadelphia, in the days before railroads,
amounted to a denial of justice. But the bar was not yet prepared to
give up its inherited fondness for itinerant justice, and the courts
of common pleas of the newly established judicial districts had not
been long enough in operation to be recognized as the true solution
of the problem. The Act of March 20, 1799,[314] therefore provided
that instead of _nisi prius_ courts, there should be held, except in
the county of Philadelphia, circuit courts which were of the same
nature as the court of _nisi prius_ except that the judges holding
the same were empowered to give judgment, pass decrees and award
execution in as ample a manner on circuit as when sitting _in banc_.
The right of appeal to the supreme court was preserved under special
conditions.
Although not required by the act by which these courts were
constituted, it continued to be the practice, as before, for two
judges to ride on circuit and sit together at trials in these courts.
This was unnecessary, as the time of the judges could have been
better distributed by sitting singly on jury trials, while trials
conducted by two judges were subject to the same inconvenience as
when conducted by the four judges sitting _in banc_, which, as Judge
Brackenridge has remarked,[315] caused great delay, as documents
offered in evidence had to be read by all the judges in turn and a
note taken by each.
Trials _in banc_ were abolished in Philadelphia by the Act of
February 24, 1806,[316] which also established a western district
for the supreme court, which was required to hold its September term
at Pittsburg. It was also provided that in the future circuit courts
should be held by one judge and that the judges should alternate
so that the same judge would not sit oftener than once in the same
county in every fourth successive term. The act also abolished the
high court of errors and appeals and vested its powers in the supreme
court. As respects the common pleas, the state was divided into ten
judicial districts and a president judge appointed in each of the new
districts. It was further provided that whenever required by either
party or counsel the judge should reduce his opinion to writing with
his reasons and file the same of record in the cause.[317]
By an act of April 10, 1807,[318] a middle district was established
for the supreme court, the term to be held at Sunbury, and again in
1809[319] two additional districts were established, the Lancaster
district, and the southern to be held at Chambersburg. By this act
the circuit courts were abolished, and the cases undetermined therein
relegated to the common pleas or, where appeals were pending, to the
supreme court. The number of judges of the supreme court was reduced
from four to three. By another supplement to the Act of 1806, enacted
in 1810,[320] the original jurisdiction of the supreme court was
restored in Philadelphia County in cases involving over $500, the
judges being required to hold _nisi prius_ courts there thirty-three
weeks in the year.
To dispose of the accumulation of business a new court called the
district court was created for the city and county of Philadelphia,
by the Act of March 30, 1811,[321] to consist of a president and two
assistant judges with power to hear and determine all civil pleas and
actions where the sum in controversy exceeded one hundred dollars.
The act was experimental and limited to six years, but the court was
such an unqualified success that it was continued, made permanent,
and similar courts established later in Pittsburg and Lancaster. From
the first this court absorbed the most important legal business of
the county and acquired an “enduring reputation as a great law court
for the trial of civil issues,”[322] the greatest this commonwealth
has ever seen; but the names of its most famous judges belong to a
later period.
No further experiments were tried with the supreme court until 1826,
when an act was passed increasing the number of justices to five
and restoring the circuit courts.[323] The cup of that overworked
body was now full. They were required to hear all cases of error and
appeal sitting in six districts, to hold a court of _nisi prius_
in Philadelphia, to go on circuit through the counties, beside
exercising original jurisdiction in cases of _quo warranto_ and
_mandamus_. Relief came in the Act of April 14, 1834,[324] passed
on the recommendation of the commissioners appointed to revise the
civil code. Circuit courts were finally abolished and the number of
districts reduced to four (the eastern at Philadelphia, northern at
Sunbury, middle at Harrisburg and western at Pittsburg); courts of
_nisi prius_ continued to be held twice a year in Philadelphia by a
single justice for the trial of civil actions involving more than
five hundred dollars, reviewable by the court _in banc_ upon motions
for new trial or in arrest of judgment.
At the risk of being tedious we have briefly reviewed the many
changes in the judiciary system between the Revolution and the
revision of the civil code in 1834-36, touching on these acts in
but a cursory manner without attempting to point out many important
features which were incorporated into later legislation and became
a permanent part of the system. The changes made were many of them
experimental, some met with success, others were doomed to failure;
they were forced by the extraordinary growth of the commonwealth in
population and wealth and the increase in the amount and importance
of the business of the courts. The law of real estate still had first
place, land was the principal asset of the inhabitants, and the loose
methods of the land office were an invitation to litigation, not
to speak of the additional complications arising from Connecticut
and Virginia titles. Ejectments innumerable occupied the attention
of the courts. But commercial law was every day becoming more
important, particularly in Philadelphia, then the first city in the
country and for some years the nation’s capital. The legal profession
enjoyed great prosperity during the early days of independence;
recklessness and paper money inflation had increased private debts to
an enormous extent and this, with the settlement of the loyalists’
estates, filled the dockets with more cases than could be tried. This
naturally led to envy and jealousy of the bar, which in Massachusetts
culminated in riots directed against the courts, an incident referred
to in history as Shays’ rebellion.[325]
In Pennsylvania there was no open attack on the courts while McKean
was chief justice, whose stern judicial deportment and inflexible
courage were sufficient to awe the mob. No one could doubt his
devotion to the cause of independence, but if a democrat in theory
he was an aristocrat in bearing. David Paul Brown relates[326] that
“shortly after his appointment, a petition was presented to him
directed to the Right Honorable Thomas McKean, Esq., lord chief
justice of Pennsylvania, upon which he complacently observed--‘these
are, perhaps, more titles than I can fairly lay claim to, but at all
events the petitioner has erred on the right side.’” Court was, in
his time, opened with great ceremony and form, and the chief justice
held the attendants to a rigid observance of duty. There are several
cases which illustrate this jealousy of the authority of the court,
of which the famous libel case _Respublica_ v. _Oswald_,[327] may
be taken as an example, as well as the following incident stated
by Brown to have occurred in 1778. The chief justice had issued
a warrant for the arrest of Colonel Robert L. Hooper, a deputy
quartermaster, on a charge of libel. Colonel Hooper informed General
Greene, who wrote to the chief justice stating that there was no one
to fill the colonel’s place and requesting that he might be permitted
to enter into a recognizance to appear at court later. The chief
justice replied as follows:--
“Yorktown, June 9th, 1778.
“Sir:--I have just now received your favor of the 3d inst., and
am not a little surprised that the sheriff of Northampton county
should have permitted Colonel Robert L. Hooper, after he was
arrested by virtue of my precept, to wait upon _you_ until he
appeared before _me_.
“You say, sir, ‘Colonel Hooper waited upon me to communicate his
situation, and to know if the circumstances of the army would
admit of his absence; but, as the army is just upon the wing, and
part of it will, in all probability, march through his district, I
could not, without great necessity, consent to his being absent, as
there is no other person that can give the necessary aid upon this
occasion.’
“I do not think, sir, that the absence, sickness, or even death
of Mr. Hooper could be attended with such a consequence, that no
other person could be found who could give the necessary aid upon
this occasion; but what attracts my attention the most, is your
observation that _you_ cannot, without great necessity consent to
his being absent. As to that, sir, I shall not _ask_ your consent,
nor that of any other person, in or out of the army, whether _my
precept_ shall be obeyed or not in Pennsylvania.
“The warrant for the arrest of Mr. Hooper being special, no other
magistrate can take cognizance thereof but myself. The mode you
propose, of giving bail, cannot be adopted, for many reasons.
“I should be very sorry to find that the execution of criminal law
should impede the operations of the army, in any instance; but much
more so to find the latter impede the former.
“I am, sir, with much respect,
“Your most obedient, humble servant,
Thomas M’Kean.”[328]
In 1799 McKean was elected governor and was succeeded on the bench
by Judge Shippen, then seventy years old, who had studied under
Tench Francis and at the Middle Temple. Chief Justice Shippen
was a patient, practical and discriminating lawyer and it was
from his notes that the first reported cases in Pennsylvania were
taken. He indeed formed a connecting link between the courts of
the province and those of the commonwealth, having sat on the
bench during both periods. This very fact, which caused him to be
venerated by the bar, was calculated to increase the hatred with
which he and his colleagues, Yeates and Smith, were regarded by the
radical politicians. The three judges from their wealth and social
connections were regarded as representatives of the old aristocracy,
while the defeat of the Federalist party, in 1799, left those who
had taken office in its day of power exposed to all the dangers of
political revenge. The tenure of the judiciary was for life and it
filled the earnest partisans of the new democracy with rage to see
all the places on the bench filled with those whose sentiments were
scarcely less detested than those of the Tories.
The first to be marked for attack was Alexander Addison, president
judge of the fifth judicial district, which, when formed in 1791,
comprised Westmoreland, Fayette, Washington and Allegheny Counties,
all of the western part of the state. Addison, a Scotchman by birth,
had been educated for the ministry, but had changed to the law, and
while practicing in the western counties had served as a member of
the convention that framed the Constitution of 1790. An aggressive
Federalist, his views were out of harmony with those of the greater
portion of the local population, while his strong opposition to the
Whiskey Insurrection did not increase his popularity with the rough
inhabitants of that wild region. It was Addison’s habit to deliver
political sermons from the bench under the guise of charges to
the grand jury. These interminable discourses were published and
greatly admired by the Federalists, but detested by the Democrats,
who, in attending court as parties or jurors, were obliged to
listen respectfully to the heavy campaign literature of their
opponents.[329] Judge Addison was particularly fond of dwelling upon
the enormities of the French revolutionists as a warning to good
citizens against those admirers of that revolution who were prominent
among the Anti-Federalists. Aside from these foibles, Addison was
an able, upright and energetic judge, and had toiled ceaselessly to
bring order out of confusion in the western district. His learning
was regarded with respect by the bar and his firmness had won the
confidence of the better class of citizens. When the party of
Jefferson triumphed in 1799, Addison was the first victim of their
revenge. His leading enemy was, like himself, a theologian who had
turned to the law, had built up an extensive practice and had just
been appointed to the supreme court, Hugh Henry Brackenridge, of whom
more hereafter.
Instigated by Brackenridge, John B. C. Lucas, a justice of the peace,
unlearned in the law, at the court of quarter sessions of Allegheny
County, attempted to address the grand jury and was prevented by
Judge Addison on the ground that in such matters the president judge
was the mouthpiece of the court. Lucas brought the matter before
the supreme court on a motion for leave to file an information
against Addison for misconduct on the bench, but the court declined
to interfere, although of opinion that the associate judges had a
right to express their opinions.[330] Lucas again attempted, at the
court held June 22, 1801, to address the grand jury and was again
prevented by Judge Addison with the concurrence of another colleague.
The paper Lucas intended to read had nothing to do with the duties
of the jury, but contained some trifling remarks of a semi-political
nature, composed perhaps by Brackenridge.[331] For this act Addison
was impeached by the house of representatives on January 26, 1803,
convicted by the senate, by a vote of twenty to four, and sentenced
to be removed from office and forever disqualified from holding the
office of judge in the commonwealth. Judge Agnew has described this
trial as “the most flagitious ever urged on by vicious hate and
obnoxious partisanship,”[332] and the conduct of the legislature in
this matter has met with general reprobation. Under the circumstances
Addison had acted perhaps injudiciously, but his purpose was to
preserve the dignity of the court and the punishment he received was
unreasonably harsh.
Having tasted blood, the legislature next turned its attention to
the supreme court. In February, 1803, a petition was presented to
the house of representatives by one Thomas Passmore, complaining
that he had been arbitrarily fined and imprisoned for a constructive
contempt of court in violation of the bill of rights and praying for
the impeachment of the judges who had taken part in the proceedings.
The matter went over to the following session when it was referred
to a committee which recommended the impeachment of Chief Justice
Shippen and Justices Yeates and Smith, and accordingly, articles of
impeachment, adopted on March 23, 1804, were presented to the senate.
On January 5, 1805, at Lancaster, then the capital of the state, the
trial began. The cause of this impeachment was a proceeding in the
supreme court, which will be found reported in the case of _Bayard_
v. _Passmore_.[333] The brig _Minerva_ belonging to Passmore, which
had been insured in 1801 by certain underwriters including the firm
of Petit and Bayard, sprang a-leak and put into New Brunswick where
Passmore abandoned her to the underwriters. Some of the latter
refused to pay on the ground that the vessel was unseaworthy when she
sailed. An amicable action was entered and the matter referred to
arbitrators, who made an award in favor of the plaintiff. Judgment
was entered on the award and a _fi. fa._ issued, but, on motion, the
execution was set aside, and a rule granted to set aside the award,
on exceptions filed by the defendant. These exceptions were based
partly on irregularities in the proceedings and partly on the merits
of the case. While the exceptions were pending, Passmore, who seems
to have been exasperated at the delay, posted on a board in the
exchange room of the city tavern the following notice:--
“The subscriber publicly declares, that Petit and Bayard, of this
city, merchants and quibbling underwriters, has basely kept from
me the said subscriber for nine months about 500 dollars, and that
Andrew Bayard, the partner of Andrew Petit, did on the 3d or 4th
inst. go before John Inskeep, esq., aldermen, and swore to that
which is not true, by which the said Bayard and Petit is enabled to
keep the subscriber out of his money for about three months longer,
and the said Bayard has meanly attempted to prevent others from
paying the subscriber about 2500 dollars but in this mean and dirty
action he was disappointed in; I therefore do publickly declare,
that Andrew Bayard is a liar, a rascal and a coward, and do offer
two and a half per cent. to any good person or persons to insure
the solvency of the said Bayard and Petit for about four months
from this date.
“Philadelphia, September 8, 1802.
“Thomas Passmore.”
Thereupon Mr. Dallas, the attorney for Bayard and Petit, moved for
an attachment against Passmore for contempt of court, which was
granted and interrogatories filed, which Passmore answered. On the
issuing of the attachment the court expressed its opinion that an
apology was due to the defendants. The answer of Passmore disclaimed
any intention to treat the court with contempt and admitted that the
paper had been posted in a moment of irritation but declined to make
an apology to the defendants. It was argued that there was no suit
pending when the notice was posted, the proceedings having closed
with the award of the arbitrators, but the court held otherwise,
being of the opinion that a contempt had been committed. As Passmore
declined to make any atonement to the injured individuals which would
influence the court to leniency, he was sentenced to pay a fine of
fifty dollars and suffer imprisonment for thirty days. This sentence
was carried out.
As the law then stood Passmore was clearly guilty, and even if not,
the sentence was given after a patient hearing and full argument and
amounted at most to an error of law, for which Passmore had a remedy
by appeal to the high court of errors and appeals, a point upon which
he was advised by William Lewis, one of the leaders of the bar. But
this remedy was not pursued. Passmore paid his fine, served his
sentence and sought revenge by the aid of a partisan assembly.
When the time of the trial arrived public feeling had turned in
favor of the judges, the better class of newspapers took their side
and the bar rallied to their defense; in fact the assembly found it
impossible to procure eminent local counsel to assist them in their
odious task and Cæsar A. Rodney of Delaware, was retained for the
prosecution. The defendants were represented by Jared Ingersoll and
Alexander J. Dallas.
The trial began on the eighth of January, 1805, and lasted until the
twenty-eighth of the month.[334] Many witnesses were called and all
the litigation which gave rise to Passmore’s commitment was minutely
reviewed. In summing up Mr. Boileau, one of the managers for the
house, argued that Passmore had not been punished because he had
committed a contempt of court but because he would not apologize to
Bayard, and declared that the court had no authority to direct one
individual to apologize to another. His address was a violent attack
on English precedents and the legal profession in general, with the
usual platitudes on the rights of man and the principles of the
Revolution. Mr. Rodney’s speech was more dignified and it is apparent
that his task was uncongenial. For the defense the speeches of Dallas
and Ingersoll were brilliant and exhaustive, replete with reported
precedents as well as manuscript records, which their industry had
discovered and which throw much light on the early practice of the
courts in attachments. That any doubt could be felt as to the issue
of this trial is a matter for wonder, and that thirteen out of
twenty-four senators voted for conviction is a lasting disgrace to
their names. Fortunately, the prosecutors failed by three votes to
obtain a two-thirds vote, and the judges were declared acquitted.
One incident of the trial deserves mention. Judge Brackenridge was
not on the bench when the motion for the attachment of Passmore was
made, and at the time of the argument was returning from a special
court in Northumberland County, but was present when sentence was
passed. He was not included in the impeachment, but at once wrote to
the house of representatives stating that he concurred in the opinion
of his brethren, and while not courting prosecution, could see no
distinction in his case and asked to be included in the impeachment.
The house sent up an address to Governor McKean for his removal,
which was refused, and when a committee urged that the term in the
constitution “may remove” meant “must remove,” he replied that he
would have them know that “may” sometimes meant “won’t.”[335]
This offer to stand impeachment with his colleagues was the most
courageous act in the public career of the most eccentric genius
that ever sat on our supreme bench, about whom a few words may be
interesting. Hugh Henry Brackenridge, born in Scotland, of poor
parents, was brought as a child to this country. By teaching school
he saved enough to attend Princeton College, where he became a tutor,
studied divinity and later served as a chaplain in the Revolutionary
army. In 1778 he commenced the study of law with Samuel Chase,
afterwards a justice of the supreme court of the United States,
and, locating at Pittsburg, soon became a leader of the western
bar. During the whiskey insurrection Brackenridge’s conduct was not
free from suspicion. His opinions were opposed to the excise tax,
and, if he did not join the insurgents, he did not take a very firm
stand against them. He was marked for arrest by Hamilton, but was
saved, it is said, by James Ross, the rival bar leader of the western
district, afterwards United States senator. At the bar Brackenridge
was noted for his shrewdness, wit and eloquence, and was a writer
of considerable talent; “Modern Chivalry,” a satirical work from
his pen, has gone through several editions. On the bench he did not
display the same power as at the bar; his opinions were racy, but not
profound and failed to do justice to his real learning; an untiring
student, his dislike of convention led him at times into a show of
flippancy. The enmity between Judges Yeates and Brackenridge was a
curious incident of the times. It probably dated from the time of the
whiskey insurrection when Yeates served as one of the commissioners
to deal with the insurgents. No two men were ever more dissimilar in
appearance, habits and opinions: Judge Yeates a tall, florid, portly
man, rich, aristocratic and fond of society; Brackenridge dark and
sallow, of moderate means, a bookworm and recluse, and absolutely
indifferent to his appearance. An examination of the reports will
show that the associates rarely agreed, and the position of Chief
Justice Tilghman must have been peculiarly difficult. Indeed the
eccentricities of Brackenridge, if half the traditions are true,
would almost amount to insanity, but it is difficult at this day to
say whether his want of judicial decorum arose from this cause or
from his utter contempt for social conventions. Among the odd stories
told of him is one narrated by David Paul Brown:[336]--
“During the time, as has been said, the circuits existed, a friend
of the judge, riding in his carriage in the western part of the
state, while a prodigious storm of wind and rain prevailed, saw a
figure approaching, which resembled, what might be conceived of
Don Quixote, in one of his wildest moods; a man, with nothing on
but his hat and boots, mounted upon a tall, raw-boned Rosenant,
and riding deliberately through the tempest. On nearer approach he
discovered it to be Judge Brackenridge, and upon inquiring what was
the cause of the strange phenomenon, Brackenridge informed him,
that seeing the storm coming on, he had stripped himself and put
the clothes under the saddle; ‘because,’ said he, ‘though I am a
judge, I have but one suit, and the storm, you know, would spoil
the clothes; but it couldn’t spoil me.’”
The interminable criticism of and complaints against the judiciary
during the early years of the nineteenth century were in a large
measure due to the fact that judges held office for life. The same
processes were to be seen at work in the other states, culminating
in the abolition of life tenure and the substitution of a term of
office varying, under the different constitutions, from one to twenty
years. In Pennsylvania this result was accomplished by one of the
constitutional amendments adopted in 1838, by which the terms of
the supreme court judges were fixed at fifteen years and those of
the common pleas judges at ten. This change was not adopted without
vigorous opposition on the part of the leaders of the bar[337] and
is a subject upon which opinions differ today. We may suspect that,
however loudly the political leaders who advocated the change may
have declaimed against the dangers of caste prejudice, favoritism
and despotic conduct, they were really looking at the offices with
envious eyes and plotting to divert the meagre salaries to partisan
purposes. This was the period when American political life, in its
outward aspects at least, reached its lowest depths of degradation,
and that the judiciary should suffer thereby was inevitable.
Americans had yet to learn that democracy was not synonymous with
vulgarity and provincialism, that the American Revolution had not
severed us from the traditions of our race, and that the French
Revolution had not emancipated us from the rules of social decorum.
The American “Sans Culotte” was an unlovely type, an iconoclast and
a bitter partisan, and that he should have done his best to add
the judiciary to the spoils system is not the least count in his
indictment.
The citation of English decisions in the opinions of the courts
greatly exasperated the radical element. What were these precedents
but the rags of despotism, who were the judges that had rendered
them but tyrants, sycophants, oppressors of the people and enemies
of liberty! There was danger that our courts might be contaminated
by the source from which they drew their inspiration, so an act
was passed March 19, 1810,[338] which provided that it should not
be lawful to read or quote in any court of this commonwealth, any
British precedent or adjudication which had been given or made
subsequent to the fourth of July, 1776, except those relating to
maritime law or the law of nations. Upon this act Judge Brackenridge
wittily remarked:[339]--
“Were it not that I should be unwilling to enter into a contest
with the legislature, where public opinion, or prejudice is on
their side, I might be disposed to question the constitutionality
of this act. It would seem to be abridging the right of the
judiciary, to hear all reason on a question before them.
----What is’t to us
Though it were said by Trismegistus?
“But if we are to hear the saying of a lord, years, or centuries
ago; and before the 4th July, 1776, why not what another lord has
said since, to explain or contradict the adjudication? The fact is,
early decisions were, many of them narrow; and why drink out of the
neck of a gourd, rather than out of an open goblet; more especially
if the fountain was muddy, out of which the gourd was filled; the
stream of law in that country, now runs more clear in particular
cases than centuries ago; and it will always remain so, the law
being an improvable science.”
This act was repealed in 1836.[340]
* * * * *
It may be said, however, for those who railed against the courts,
that many of the lay associate judges set anything but a good
example of judicial dignity, and quarreled even to the point of
coming to blows and dragging each other from the bench.[341] The
law judges, who rode the circuits, manfully attempted to preserve in
the log court houses of remote counties the dignity of Westminster
Hall, and added to their unpopularity with the uncouth inhabitants
by instructing them in manners as well as in the law. In his
“Recollections of the West,”[342] Judge Brackenridge’s son, himself
also a judge, gives an amusing picture of the first court held in
Butler County. The court house was a log cabin into which bench,
bar and the entire village population were crowded. The audience
hung from the rafters like bats, and when these were cleared away
by the sheriff, a big Irishman objected to being removed. The Court
sentenced him to an hour’s imprisonment for contempt, whereupon
the sheriff was greatly puzzled as to what he should do with his
prisoner, as there was no jail. It was finally decided that he should
be incarcerated in a pig pen, emptied to prepare a feast for the
court, but the prisoner was too much for his captors and made his
escape into the brush.
Rapid as was the tide of immigration into western Pennsylvania it was
only by slow degrees that a well organized system of local government
was introduced. Westmoreland County, comprising most of the western
district, was established in 1773 with a county seat at Hannastown,
but the confusion incident to the Revolution and the boundary dispute
between Pennsylvania and Virginia retarded the growth of local
institutions. Court was held at the house of Robert Hanna where petty
offenders were sentenced to the pillory, stocks and whipping post,
erected before the log jail. The first person, it is said, convicted
of murder and hanged west of the Alleghenies was an Indian of the
Delaware tribe named Mamachatoga, who in 1785, while drunk, killed a
white man near Pittsburg. At the trial at Hannastown he was defended
by Brackenridge, but Chief Justice McKean who presided held that
drunkenness was no excuse and the defendant suffered the extreme
penalty of the law.[343] In the early days when the fifth judicial
district embraced practically all of western Pennsylvania litigation
was slow, owing to the long intervals between the terms of court and
the difficulty in procuring the attendance of witnesses. The law
judge rode the circuit from county to county, attended or followed by
the members of the bar, who, during the sessions of court, generally
put up at one tavern and made a lively time of it.
During the early years of the nineteenth century the supreme
court was presided over by chief justices of reputation equal to
any, and superior to most of those who have sat in American state
courts, Tilghman and Gibson. William Tilghman came of a family of
distinguished lawyers; his father was secretary of the provincial
land office, and his maternal grandfather, Tench Francis, the bar
leader of the provincial court of his time. His first judicial
appointment was by President Adams on March 3, 1801, to the circuit
court of the United States for this circuit; hence he was one of
the so-called “midnight judges,” commissioned a few hours before
Jefferson took office, and legislated out of office in the following
year. In 1806 he was appointed chief justice by Governor McKean on
the recommendation of his cousin, Edward Tilghman, who declined the
office. His appointment gave offense to some of the minor Democrats,
but the governor, although a leading member of that party, having
once made up his mind on the subject, was not to be moved.
“A committee, consisting of Duane, Lieper, and others, were
appointed by a town meeting to wait upon him, to inform him
that the democracy of Philadelphia were utterly opposed to the
nomination of William Tilghman as chief justice of Pennsylvania.
The committee were introduced into the executive apartments,
and the governor received them in his civil but reserved and
aristocratic manner, treating them simply as his constitutents;
when, however, they announced themselves as the representatives
from the democratic party--the sovereign people--he bowed most
profoundly, and inquired of them what the great democracy of
Philadelphia required of him. They proceeded, and stated the
purposes of their delegation, and in pretty plain terms gave him to
understand that the appointment of Mr. Tilghman would never meet
the approval of the democratic party. ‘Indeed,’ said the governor,
‘inform your constitutents that I bow with submission to the will
of the great democracy of Philadelphia; but by G--d, William
Tilghman _shall be_ chief justice of Pennsylvania.’”[344]
The confidence of the governor was justified by the long and
distinguished career of his appointee, whose judicial decisions are
marked by a comprehensive knowledge of the common law and an unusual
clearness of diction. “Other Judges,” says Binney, “may have had more
learning under their immediate command,--none have had their learning
under better discipline, or in a condition more effective for the
duty upon which it was employed.”[345]
An adequate life of his great successor, John Bannister Gibson, has
still to be written.[346] Appointed to the common pleas in 1812 and
to the supreme court in 1816, of which he became chief justice in
1827, his reputation increased with years, and common consent assigns
to him the first place in our judicial history. “Abroad,” said
Chief Justice Black, “he has for many years been thought the great
glory of his native state.” Chief Justice Gibson has been credited
with an abhorrence of the petty and prosaic details and drudgery of
the law, qualities that would have militated against a successful
career as an advocate, but given a problem, no judge could grasp it
more firmly or dispose of it more readily, and he was master of a
style which in vigor of expression and condensation of thought is
unrivalled. “When he brought the lens of his mind to a focus, its
power was resistless.” For one act in his career he was subjected to
some criticism. The constitutional amendments of 1838 substituted a
term of fifteen years for life appointment and the commissions of the
judges on the bench were to expire at intervals of three years. At
the suggestion of his colleagues, the chief justice resigned in 1838,
and was immediately reappointed, and thus, instead of holding for the
shortest term, enjoyed the longest. The necessity for this action was
no doubt humiliating to him, who could hardly have resumed practice
at that period of his life, but on the other hand his loss to the
state would, at that time of transition, have been irreparable, and
when his term expired in 1851, he was re-elected almost without
opposition.
If space permitted, it would be proper to say something of the bar at
this time, which was particularly distinguished.
During the greater part of this period Philadelphia was the
leading city of the nation, both in population and wealth, and the
achievements of the local bar attracted national attention.[347]
Such leaders as William Lewis, Edward Tilghman, Jared Ingersoll,
William Rawle, William Bradford, Alexander James Dallas, and Horace
Binney, both in private practice and public office, exhibited talents
that were admired and esteemed by their contemporaries and served
as models for their students and successors, while in the West
Albert Gallatin, James Ross and H. H. Brackenridge attained high
distinction. Indeed, so much has been said about the good old times,
that we are often in danger of minimizing professional progress,
which, in the nineteenth century, has been in the nature of a
world-wide forced march to keep pace with the flying wheels of Father
Time’s steam and electric chariots.
The first bar after the Revolution was a very remarkable body; most
of its leaders had been educated at the Inns of Court or in offices
steeped in black-letter traditions. Devoted to the common law, they
endeavored to inspire their pupils with the same spirit. Deprived
by legislative shortsightedness of a court of equity they applied
to the problem of working out equitable relief through common law
forms the same sort of ingenuity that their ancestors had exercised
in the invention of fictions to overcome the inelasticity of common
law actions. Masters of their profession, they were jealous of all
innovation, and the less important members of the bar took their cue
from the leaders, in blissful ignorance of the issues involved. As a
result the agitation for codification that subsequently swept over
the country was but faintly echoed in Pennsylvania.
In pursuance of resolutions adopted by the legislature in 1830 a
commission was appointed by the governor consisting of William Rawle,
T. I. Wharton and Joel Jones, to revise, collate and digest all such
public acts and statutes of the civil code of the state and all such
British statutes in force in the state as were general and permanent
in their nature. The commission made a series of reports between
1831 and 1836 with drafts of proposed acts, most of which were, with
some modifications, enacted into law.[348] That the members did their
work thoroughly and well is proved by the fact that the acts passed
on their recommendation are the basis of the present jurisdiction
of and practice in the courts of the commonwealth. Their work,
however, consisted mainly in repairing, restoring and strengthening
the existing structure, a statutory system supplemented by so much
of the common law as it had been found expedient to incorporate into
the jurisprudence of a new community. Their cautious recommendations
accorded with conservative public opinion, and the house-cleaning
then done tended, undoubtedly, to check the sentiment for
codification which has had such extraordinary results in England as
well as in many of the states.[349] Whether this is a blessing or a
curse is a question upon which opinions may differ. At least, it may
be suggested that three-quarters of a century has passed since this
revision, during which time many statutes have been enacted which do
not add clarity to the law, and that it may be worth while to examine
some of the more notable procedural reforms, with a view to the
introduction of such methods as have proved unqualifiedly successful
elsewhere and the ultimate simplification of our procedure, in
the interest of common sense and social and economic progress.
Self-laudation is one of our professional faults that frequently
leads to narrow views and unprogressive provincialism. A peep over
our neighbors’ fences may lead us to the horrifying discovery that we
are provincial in many respects.
The revision of the civil code has been fixed as the limit of this
discussion for the reason that there are members of the bar who can
speak with authority from personal recollection upon the occurrences
during the middle nineteenth century, and for the further reason that
the judicial system had by that time assumed a form which in its
main outlines, it still retains, subject to the changes introduced
by the constitution of 1874.[350] Relief has since been afforded to
the supreme court by the establishment of an intermediate court of
appeal, the superior court, and the transfer to the latter of a part
of the appellate business.[351] Both are courts for the hearing of
appeals, none of the judges sitting at _nisi prius_, an arrangement
that has been criticised as tending to disassociate the appellate
judges from the main body of the judiciary, in contradistinction
to the federal system. The number of common pleas judges has been
greatly increased and the lay associate has almost disappeared.[352]
The most glaring defect in the system is in the minor judiciary. The
magistrate, or justice of the peace, is a relic of the eighteenth
century whose intelligence, education and social position have not
kept pace with the general improvement. The holding of courts at
this day by men unlearned in the law is an anachronism, a nuisance
to those having to do with the collection of small debts and,
frequently, a source of oppression to the poor. It is to be hoped
that reform in this respect will not be unduly delayed by the
necessity for the adoption of amendments to the constitution to make
it complete.
The early division of the state into judicial districts has had some
unfortunate consequences. The bar of the state became divided into
a number of local bars, mutually jealous and exclusive, practicing
under dissimilar rules, without common interests or _espirit de
corps_. The tendency to disunion has been checked by the formation
of the State Bar Association, an organization that has already done
much to promote uniform legislation as well as to encourage good
fellowship in the legal fraternity. The appointment, too, by the
supreme court of a state board to examine candidates for admission to
the bar has done much to standardize legal education in the state.
Owing largely to her great natural resources Pennsylvania has enjoyed
a prosperity in which both bench and bar have shared, but the first
stages of that prosperity were attained through the liberal and
farsighted policy of William Penn, the founder. His adopted sons
should at least be willing to view with open minds the innovations
demanded by progress. The panorama from the housetop does not
necessarily lead to a suicidal leap or a broomstick ride.
FOOTNOTES:
[290] Proceedings of the Constitutional Conventions of Pennsylvania
of 1776 and 1790, 61. The equity clause will be referred to later.
[291] IX Statutes at Large, 29.
[292] VI Pennsylvania Archives (1st Series), 228, 245, 294; VII
Pennsylvania Archives (1st Series), 72; IX Colonial Records, 214, 260.
[293] Biography of William Lewis, Pennsylvania Magazine, Vol. XX, 30.
[294] X Colonial Records, 610, 745.
[295] _Respublica_ v. _Carlisle_, 1 Dallas’s Reports, 35 (1778);
_Respublica_ v. _Roberts_, 1 Dallas’s Reports, 39 (1778); and see IX
Colonial Records, 600, 613.
[296] Journal of Congress, Vol. 1, 260; VIII Statutes at Large, 519.
[297] _Ross_ v. _Rittenhouse_, 2 Dallas’s Reports, 160 (1792);
Olmstead’s Case, Brightly’s Nisi Prius Reports, 9 (1809); _United
States_ v. _Peters_, 5 Cranch (U. S.) 115 (1809); Trial of General
Bright; Federal Courts before the Constitution, 131 United States
Reports, appendix at page xxix.
[298] Pennsylvania State Trial (Hogan, 1794), 3; XII Colonial
Records, 584, December 26, 1780.
[299] X Statutes at Large, 52.
[300] 3 Smith’s Laws of Pennsylvania, 28.
[301] 1 Dallas’s Reports, 95 (1784).
[302] Proceedings of the Constitutional Conventions of Pennsylvania
of 1776 and 1790, 70, 107.
[303] XII Statutes at Large, 308; 2 Smith’s Laws of Pennsylvania. 392.
[304] _Respublica_ v. _Doan_, 1 Dallas’s Reports (Wharton’s Edition),
86 (1784).
[305] XV Colonial Records, 505, 544; Watson’s Annals of Philadelphia
(1850), Vol. II, 330.
[306] 3 Smith’s Laws of Pennsylvania, 37.
[307] 3 Smith’s Laws of Pennsylvania, 186.
[308] XV Colonial Records, 31.
[309] 12 Hazard’s Pennsylvania Register, 117; 13 Hazard’s
Pennsylvania Register, 4. When, in 1783, it was proposed in England
to do away with the public procession to Tyburn, Dr. Samuel Johnson
remarked, in his vigorous manner, to Sir William Scott: “Sir,
executions are intended to draw spectators. If they do not draw
spectators, they don’t answer their purpose. The old method was
most satisfactory to all parties; the public was gratified by a
procession; the criminal was supported by it. Why is all this to be
swept away?” Boswell’s Life of Johnson, chapter 56.
[310] Proceedings of the Constitutional Conventions of Pennsylvania
of 1776 and 1790, 301, and 3 Smith’s Laws of Pennsylvania, xxxix.
[311] 3 Smith’s Laws of Pennsylvania, 28.
[312] April 13, 1791, 3 Smith’s Laws of Pennsylvania, 26.
[313] Debates of Pennsylvania Constitutional Convention of 1837, Vol.
1, 263.
[314] 5 Carey & Bioren’s Laws of Pennsylvania, 694.
[315] Brackenridge’s Law Miscellanies, 283.
[316] 4 Smith’s Laws of Pennsylvania, 270.
[317] See also the Act of March 6, 1812 (5 Smith’s Laws of
Pennsylvania, 308).
[318] 4 Smith’s Laws of Pennsylvania, 448.
[319] March 11, 1809, 5 Smith’s Laws of Pennsylvania, 15.
[320] March 10, 1810, 5 Smith’s Laws of Pennsylvania, 158.
[321] 5 Smith’s Laws of Pennsylvania, 223.
[322] Martin’s Bench & Bar, 78.
[323] April 8, 1826, P. L. 265.
[324] P. L. 341. See Fourth Report of the Commission to Revise the
Civil Code (1834). The northern district of the supreme court was
afterwards abolished.
[325] McMaster’s History of the American People, Vol. I, 302, _et
seq._
[326] The Forum, Vol. I, 327.
[327] 1 Dallas’s Reports, 319 (1788).
[328] The Forum, Vol. I, 330.
[329] See specimens of these charges in Appendix to Addison’s Report.
[330] _Commonwealth_ v. _Addison_, 4 Dallas’s Reports, 225 (1801).
[331] See the printed report of Addison’s Trial (1803).
[332] Address before the Allegheny Bar Association, Pennsylvania
Magazine, Vol. xvi, 1.
[333] 3 Yeates’s Reports, 438 (1802).
[334] See printed report of the Judges’ Trial (1805).
[335] The Forum, Vol. I, 408.
[336] The Forum, Vol. I, 404.
[337] Debates of Pennsylvania Constitutional Convention of 1837, Vol.
X, 148 _et seq._
[338] P. L. 136. See similar Act in New Jersey passed in 1799. New
Jersey Statutes (1800), 436.
[339] Brackenridge’s Law Miscellanies, 525.
[340] Act of March 29, 1836, P. L. 224.
[341] McMaster’s History of the American People, Vol. III, 154.
[342] Recollections of the West, H. M. Brackenridge. See extract in
Hazard’s Pennsylvania Register, Vol. XIV, 172.
[343] History of Allegheny County (Errett), chapter xiv.
[344] The Forum, Vol. I, 343.
[345] See Binney’s Eulogy on Chief Justice Tilghman, 16 Sergeant &
Rawle’s Reports, 444.
[346] See Eulogies in Appendix to 19 Pennsylvania Reports; W. A.
Porter’s Essay and article in Great American Lawyers, Vol. III, 353.
[347] See the reprints and papers contained in the volume
commemorative of the One Hundredth Anniversary of the Philadelphia
Law Association.
[348] The reports of the commissioners form a most instructive
commentary upon the early statute law of Pennsylvania.
[349] Hepburn’s Historical Development of Code Pleading (1897).
[350] The Judiciary Article of the Constitution of 1874 is printed in
the Appendix to this volume. Special pleading was abolished by the
Act of May 25, 1887, P. L. 271, which substituted a hybrid system
that is neither common law nor good code pleading.
[351] Act of June 25, 1895, P. L. 212, and its supplements.
[352] For the present personnel of the courts, see Smull’s
Legislative Handbook, current issue.
CHAPTER IV.
One of the most troublesome questions with which the colonial
administrator had to deal was equity jurisprudence. In the early
years of the seventeenth century politics entered into the contest
for jurisdiction between the English court of chancery and the courts
of common law, beclouding the issues and retarding a settlement of
their respective spheres of action. Popular dislike pictured the
chancellorship as a great political office closely identified with
the Crown, and grudgingly admitted its importance in the complex
judicial system of England. On the other hand, the chancellor
too frequently subordinated the judicial functions of his office
to ministerial policy and permitted abuses in the organization
and administration of his court that impaired its usefulness and
checked the growth of its business. At this early period chancery
practice was concerned chiefly with questions connected with the
devolution and management of real property and property held in
trust, and many of the broader doctrines of equity were still in
process of growth. Lord Nottingham, the father of modern equity,
held the office of chancellor from 1673 to 1682, but was succeeded
by several chancellors of inferior capacity who added nothing to the
prestige of the court, while the masters and inferior officers were
chiefly distinguished for rapacity and extortion, not to speak of
incompetency and dishonesty, in the management of property committed
to their care.[353] Reform came, but too late to convince the more
democratic communities of the positive advantages of chancery
procedure, while the prevailing fanatical devotion to trial by jury
operated as a check upon any system that seemed to interfere with
that palladium of liberty.
It was manifestly impossible to administer complete justice according
to the English system without the assertion of equitable rights
and the enforcement of equitable remedies. Anything less would
have amounted to a denial of justice, and in so far as some few
equitable rights were concerned, this was vaguely recognized. But a
true appreciation of the necessity for the introduction of chancery
procedure was obscured by a common and popular error which confused
equity with so-called natural justice; an error for which chancery
literature was, perhaps, itself in a measure responsible, in basing
its claims to override the strict rules of the common law upon the
strength of an intrinsic ethical superiority.[354]
Another obstacle to the introduction of equity jurisprudence was
the primitive social conditions that prevailed in the sparsely
populated settlements. There was sufficient difficulty in the
conduct of an ordinary lawsuit in the local courts without adding
to the embarrassment of the magistracy by requiring them to solve
the mysteries of the unreformed chancery pleading and practice. The
colonial judge of the seventeenth and eighteenth centuries was in
knowledge and training about on a par with the English justice of the
peace and it would have been as preposterous to expect the former to
undertake the office of chancellor as to impose similar duties on the
English quarter sessions. When, in the eighteenth century, trained
lawyers began to make their influence felt in the colonies, disputes
and misunderstandings between the assemblies and the governors
prevented the creation of or retarded the growth of courts of
chancery, resulting in a conflict of principles and practice in the
several provinces far too intricate to be briefly described.[355]
The theory upheld by the crown lawyers, and put in practice in the
more tractable colonies, was that the governor, as custodian of the
great seal, was the proper person to act as chancellor, assisted if
necessary by the council. To this the more democratic communities
were opposed, as an undue extension of the prerogative, but they had
no substitute to offer except the direct exercise of equitable relief
by legislative resolution or the delegation of limited equity powers
to the ordinary courts, such as giving relief from the penal clauses
of bonds and mortgages. It did not seem difficult to the uninitiated
to inject into the law such equitable principles as would mitigate
the harshness of its stricter rules. The limited scope of such an
experiment and the deprivation involved, in the elimination of the
powerful preventive measures afforded by chancery process, became
apparent only when the commercial and industrial expansion of the
American commonwealths had brought about more complicated social
relations.
The reform of procedure in the more progressive jurisdictions, has
buried chancery and common law practice in a common tomb and if it
were safe to hazard an opinion upon the parentage of the modern
complaint, or statement, the inclination would be to favor the bill
in equity rather than the common law declaration. But it would
seem that before these momentous changes could well be brought
about, it was necessary that both systems should reach the limits
of their development, that there should be a thoroughly scientific
demonstration of the economic waste involved in a dual and highly
artificial procedure, before one more simple and rational could be
evolved. Conservative opinion hesitates to endorse these changes, and
the tendency, displayed in many jurisdictions, to overload procedure
with petty statutory details, that ought to be left to the rules
of court, shows an immature conception of the principles of law
reform. If this is true today, how poorly prepared was the eighteenth
century for experiments in jurisprudence, with a bar nourished on
technicalities and trained to state almost every legal right in
procedural terms.
Pennsylvania was one of the most persistent of the colonies in its
opposition to the introduction of a court of chancery, and its
courts were the most fertile in devising expedients to decrease the
inconveniences resulting from such opposition, and this, although in
the immediately adjoining colonies chancery had a fairly successful
development. In the early period, political conditions had much to
do with the failure of the only serious attempt to establish such a
court. After the Revolution, opposition to the extension of equity
jurisdiction long continued as a political tradition, in spite of the
changed attitude of the leaders of the bar.
While the territory on the Delaware was under the government of the
Duke of York it would seem to have been the intention to administer
equity, in the popular sense of that word, through the court of
assizes. Among the laws of April 2, 1664, was one that provided:--
“In regard it is almost impossible to provide Sufficient Lawes
in all Cases, or proper Punishments for all Crimes the Court of
Sessions shall not take further Cognizance of any Case or Crimes,
whereof there is not provition made in some Lawes but to remit the
case or Crime, with the due Examination and proof to the Next Court
of Assizes where matters of Equity shall be decided, or punishment
awarded according to the discretion of the Bench and not Contrary
to the known Laws of England.”[356]
This was amended at the court of assizes held in September, 1665, as
follows:--
“Where the Originall Point is matter of equity the proceedeings
shall bee by way of Bill and delivering in Answers upon Oath and
by the Examination of witnesses, in like manner as is used in the
Court of Chancery in England. And due regard must be had that the
Defendant have timely notice thereof, as is appointed at Common
Law; which is eight dayes warning before the Court shall sitt.”[357]
In the following February it was ordained that “matters of Equity
under five pounds may be tried in Town Courts and if under twenty
at Sessions.” This investing of the lower courts with equitable
powers was undoubtedly intended to lessen the hardship of seeking
relief in a distant court meeting but once a year, and its practical
application was probably limited to giving effect to the more obvious
equities of defendants. That such was the case, would appear from the
instructions of Governor Andros to the justices of the court at New
Castle dated August 14, 1677, in reply to a query on their part.
“As to penal Bonds or such like cases of Equity it is the custom
& practice of Courts here, to hear & judge thereof according to
Equity, w^{ch} you may also observe as Allowed by Law.”[358]
At the court for Deal, afterwards Sussex, County held Tune 13 and
14, 1682, Henry Stracher obtained a verdict against Peter Groundyk
in an “action of the case,” the nature of which is not disclosed,
whereupon--
“Peter Groundyk peticon the Court that he may have That was this
day Tryd betwene Henry Stracher Ant this peticoner to be Tryd in
Equiety, the next Court by bill and Answer as is use in the Court
of Chancrey in England which the Court would A perswaded him to A
dissisted in it; and rest himselfe satisfied in what was allready
done; but through his perswading the Court grant the peticoner
his request; provided that the proceeding be put in in due time
According to Law.”[359]
At the September court, however, nothing is recorded as to the
“Tryal in Equiety” which the justices seem to have been reluctant to
undertake.
There are also instances where the governor at New York assumed the
equitable power of granting relief against oppressive judgments at
law, of which the following order is an illustration:--
“By the Governo^r
Whereas Hendrick Jansen Van Bremen, of Swanyck or Paerden Hook,
near Newcastle in Delaware River, hath preferr’d a Petition unto me
setting forth, that having heretofore, in the Time of the Dutch,
received great Damage in his Corne, by M^r W^m Toms Horses, by
Reason of his insufficient Fence; It was Ordered, that M^r Toms
Land there, should be Sold in Vendue, which said Order being not
effected, The Petitioner since the Restoration of the English
Government, took the said Horses off his Land, and sent them to
M^r Tom at New Castle, desiring they might be kept from his Corne;
But the Petitioner still sustaining Damage, without Relief, he
acknowledges that in Passion, he rashly and unadvisedly, shot
one of the said Horses, with small shot, whereof he not long
after dyed; Whereupon M^r Tom Sued the Peticon^r in the Court of
Newcastle, from the which Appealing to the High Court, Judgment
past against the Peticon^r there for Six Hundred Guild^{rs} to
be paid by him to M^r Tom, for his Horse, besides One Hundred
Guild^{rs} Charges; But was neither call’d, nor heard there;
Wherefore I have thought fitt, & do hereby Order, that the said
Hendrick Jansen giving Security, by binding over his Person and
Estate, to make good his Complaint, That Execucon be Suspended; And
that all the Proceedings, Papers, Writings, Passages or Proofs,
both in Dutch and English Time, beforthwith Transmitted hither, for
a final Determinacon in Equity.
Given under my Hand in New Yorke this 25th day of May 1676.
E. ANDROS.
To the Justices of the Peace of Newcastle in Deleware.”[360]
A petition for equitable relief preferred by Arnoldus la Grange to
Governor Andros in connection with the litigation concerning the
title to Tinicum Island will be found in the archives, but the action
taken thereon by the governor is not recorded.[361]
With the further history of equity in New York we are not directly
concerned. By an act passed soon after the separation from
Pennsylvania a court of chancery was authorized but the law seems to
have been disregarded.[362] Lord Bellomont, the governor, writing
to the lords of trade October 19, 1700, says: “There is a great
want of a court of chancery here, but nobody here understanding it
rightly I delay appointing one till the judge and attorney general’s
coming from England.”[363] The lords, in reply, directed him to
establish the court at once and in the following year the court was
proclaimed by ordinance of his successor, Lieutenant Governor Nanfan.
Nothing, however, of importance seems to have been done and it would
appear that some of the governors disliked the responsibility. Lord
Cornbury, who was also appointed royal governor of New Jersey, wrote
to the lords of trade on May 7, 1711:--
“In both plantations I have been pelted with petitions for a Court
of Chancery; and I have been made acquainted with some cases which
very much require such a court, there being no relief at common
law, I had ordered the committee of both Councils to form a scheme
for such a court, but to no purpose; the trust of the seals they
say constitute a chancellor, and unless the Governor can part with
the seals there can be no chancellor but himself. I have already
more business than I can attend to, besides I am very ignorant in
matters, having never in my life been concerned in any one suit. So
I earnestly beg your lordship’s directions as to that Court.”[364]
The court was also a favorite object of attack by the popular party.
Governor Hunter on January 1, 1712, wrote:--
“The country here, in general, groaned for a Court of Chancery
which had been discontinued for some time before my arrival in
these parts. * * * I gave a public notification of that court being
opened, and the House of Representatives, in their angry mood
resolved that the erecting of such a court without their consent
was against law.”[365]
In spite of this and similar attacks the court maintained its
existence until reorganized after the Revolution and adoption of
the constitution of 1777, but the amount of business transacted was
comparatively small until the time of Chancellors Livingston and Kent.
In Pennsylvania and Delaware, as we have seen, Penn took over the
local courts very much as he found them, exercising a supervisory
jurisdiction through the provincial council. On the hearing of
appeals before the latter body equitable principles were applied
as is illustrated by the case of _Bellamy_ v. _Watson_, described
in the court below as “an action of Trasspase and ejectment” for
land on Prime Hook. The case was tried at Lewes on May 27, 1683,
before a jury who found a verdict for the defendant.[366] The
plaintiff appealed to the governor and council who heard the case
in July and were unanimously of the opinion that one Smith, under
whom the defendant claimed, had no title in law or equity. They
entered judgment for the plaintiff, he to pay the defendant for his
improvements, the value of which was to be fixed by appraisers,
and gave the defendant four months’ time in which to remove his
crops, stock and “other moveable concernes.”[367] A year later it is
recorded that the difference between Watson and Bellamy was amicably
settled by mutual conveyances, “and thus they agreed & shaked
hands.”[368] In another case that came before the council, that body
seems to have been in doubt whether they ought to proceed in law or
equity, but the nature of the business is not given.[369]
By the Act of May 10, 1684, passed at New Castle, it was provided
that the “Quarter Sessions be as well a court of Equity as Law,
Concerning any Judgment given in Cases by Law capable of Triall in
the respective County Sessions and Courts,”[370] and by another
chapter of the same act a provincial court was constituted, the
judges of which were given cognizance of appeals and all causes
both in law and equity not determinable by the county courts. This
enactment seems to have caused some misgivings for in 1685 the
council “Ordered that a bill be drawn up That y^e Word Equity be
left out in ye Law off County Courts.”[371] The conception of equity
then entertained is illustrated by the following case taken from the
minutes of the court of common pleas of Chester County, where the
court sitting in equity, modified its own judgment previously entered
at law.
“Josua Hastings v. Francis Yarnall. The Declaration was read--the
answer was read. Judgment for plaintiff 25 shillings with costs of
suit. Upon which the defendant makes his appeal to the next court
of equity for this county.
1686 at a court of equity } Commissioners present, John
held at Chester ye 5th day } Bluston, Samuel Lewis, John
of the 1st week of ye 10th } Simcocke, Robert Wade, Geo.
month, 1686 } Maris, Robert Pile, Bartholomew
} Coppoche, Robert Eyre Clech.
Francis Yarnall of this county preferred a bill to this court
wherein he required a remedy against ye verdickt of Jury and
Judgment of court obtained against him by Joshua Hastings of ye
same county, at the last court of Common Pleas held for this
county, at Chester, the 3rd and 4th days of this present weeke.
Upon which it was decreed that Francis Yarnall should pay 10
shillings and bear half the charges of that court.”[372]
Such proceedings gave offense to the people, as unduly interfering
with the verdicts of juries, and in 1687 the assembly asked for a
conference with the council upon certain questions, among them “how
far y^e County Quarter Sessions may be Judges of Equity as well as
Law and if after a judgment in Law whether the same Court hath power
to Resolve itselfe into a Court of Equity, and Either Mitigate,
alter, or Revers y^e said Judgment.”[373] The council answered
evasively that the law made at New Castle “doth supply and answer all
occasions of appeal, and is a plainer rule to proceed by.”[374]
By the Act of May 10, 1690, it was provided that the county courts
“shall be Courts of equitie for the hearing and determining all
matters and causes cognizable in the said Court, under the value of
ten pounds,” and that the provincial court should have the hearing
and determining of all appeals from the county courts both in law and
equity.[375] This statute was substantially reënacted in 1693 during
the administration of Governor Fletcher of New York.[376] During all
this time there were frequent petitions to the council, for relief
against judgments of the courts, several of which were relegated to
the county or provincial courts for a hearing in equity.[377]
The relief given under the name of equity would seem to have been
similar to the discretionary powers of the courts now exercised on
rules to open judgments, or in controlling verdicts on motions for
new trials, and there is no trace of formal chancery proceedings.
Nevertheless the popular dislike of any interference with verdicts
is voiced in a further complaint of the assembly, in 1694, stating
that the judges had too great liberty to destroy or make void the
verdicts of juries and praying that they might be instructed not to
decree anything in equity to the prejudice of judgments before given
in law.[378] Even more vigorous would have been their remonstrance if
there had been an attempt to introduce real chancery pleading, but
this was foreign to the spirit of Penn’s legislation, which permitted
“all persons to freely appear in their own way and personally plead
their own cases themselves, or if unable, by their friends.”[379]
The prolonged controversy between the assembly, the governors and
the home government over the court laws that took place in the early
years of the eighteenth century has been sufficiently discussed
and will be referred to here only in so far as it affected equity
jurisdiction. The Act of October 28, 1701,[380] believed to have been
drafted by David Lloyd, contained this provision:--
“That the said justices in the respective county courts shall
have full power, and are hereby empowered and authorized to hear
and decree all such matters and causes of equity as shall come
before them in the said courts, wherein the proceedings shall be
by bill and answer, with such other pleadings as are necessary in
chancery courts and proper in these parts, with power also for the
said justices to force obedience to their decrees in equity, by
imprisonment or sequestration of lands, as the case may require.”
An appeal was given to the provincial court, which was empowered to
revoke, alter and confirm decrees according to equity and justice.
This act, which was repealed by the queen in council on February 7,
1705, because the lords commissioners for trade conceived that so far
from expediting the determination of lawsuits it would impede the
same,[381] attempted to introduce a more elaborate procedure without
actually committing the courts to the English practice, and, like all
half measures, would have led to confusion and litigation. One can
imagine the unlearned judges of the county courts deciding how much
chancery pleading was “proper in these parts.” There is no trace of
any proceedings had under its authority; in fact Chief Justice Guest
in 1703 made a complaint to the council--
“That notwithstanding y^e Laws of this Govmt had erected Courts of
Equity & y^e Justices, have a power also in their Commission for
y^e same: Yet that to y^e great oppression of y^e People, there
have been no such courts as yet held in pursuance of y^e present
Law, the Rules of y^e said Court not having yet recev^d so full a
sanction as tis thought may be requisite.”[382]
It was ordered that the rules should be produced at the next session
of the council, but nothing further appears to have been done until
September, 1704, when Guest moved that the rules agreed on by the
county court should be enforced in all the courts.[383] Finally in
the following April the rules prepared by “certain persons skilled in
the law” were laid before the council and approved,[384] but not long
afterwards the governor was notified of the repeal of the act.
The controversy that followed between the governor and council on
the one side and the speaker and assembly on the other was the first
real crisis in the history of equity in Pennsylvania. Lasting as
it did for three sessions of the legislature we can gather some
information as to the respective plans submitted for the organization
of the courts, although the text of the bills has not come down to
us. Chancery was the chief bone of contention. Governor Evans wished
to act as chancellor assisted by the council, in accordance with the
practice recently established in the crown colonies, and it would
seem that the assembly was at first inclined to yield this point
“provided that the court meddle not with matters wherein sufficient
remedy may be had in any other court”[385] whether by the rules of
the common law or the laws of the province. But the country members
were afraid that too much of the business of the courts would be
drawn to Philadelphia, and after some fruitless discussion the house
was dismissed and the matter postponed until the meeting of the new
assembly. This assembly was even more completely dominated by David
Lloyd, the speaker, than its predecessor and replied to the bill of
the governor, drawn up by the “practitioners of the law,” with a
“long and tedious bill”[386] of its own which appears to have been
a modified form of David Lloyd’s act of 1701 that had been rejected
by the Crown. The governor at once objected to the administration
of equity by county justices who had previously decided the same
question at law, to which the assembly replied that the council
should devote their attention to public affairs and leave private
causes to the justices--
“That the Court of Equity as proposed by the Bill, gives no Colour
of authority for the same persons to Judge twice of the same cause,
for that matters of Equity being originally begun there, and a
Clause particularly obliging them not to intermeddle with matters
of Law in the said Courts of Equity, and our Bill being warranted
in that point by an act of Parlia^{mt} which gives the Judges of
the Common Law Power to determine matters of Equity in the same
Sessions throughout the Dominion of Wales, We find no cause to
Recede from what we have already proposed.”[387]
To this the council quickly replied that it was wiser to follow the
practice of the “others of the Queen’s colonies” than to draw from
the court of the “Marches of Wales, which for its inconveniency, ’tis
said has been abrogated by act of Parliament.”[388]
This aroused the ire of the Welsh Speaker and back came the hot
reply that whoever had advised that any part of the law which
established courts in Wales was abrogated gave pernicious counsel to
the governor. Only that portion of the ordinance of Wales which gave
the president and council chancery powers had been suppressed, but
the settlement of chancery in the respective counties of Wales, the
foundation of the assembly’s bill had “had constant allowance since
the time of King Henry ye 8th.”[389]
The governor rejoined that “if there were any mistake in a matter
that is so foreign to us as the Courts of Wales, it might have been
hinted to the Gov^r in another language than calling it pernicious
council,” and again urged that the court of chancery be settled as
in other parts of the queen’s dominions.[390] The assembly remained
firm and were in a fair way to win this point, but the discussion
of other features of the bill became so acrimonious that finally
the house adjourned without passing any court law and the governor
established the courts by an ordinance which, incidentally, conferred
equity powers upon the county courts of common pleas and the supreme
provincial court.[391] The assembly vigorously protested that the
ordinance was illegal but no compromise could be effected and the
courts continued to sit by authority of the ordinance during the
remainder of Evans’s administration.
So far as equity was concerned, the anti-proprietary party had
achieved a distinct success and it is not a little curious that
this was, at least in part, due to the fact that their leader, a
Welsh lawyer, could cite the courts of his native principality as a
precedent for what he offered for adoption in Pennsylvania. Although
the subject is inadequately treated by text writers it would seem
that David Lloyd’s assertions were correct; that the court of the
lord president and the council in the principality of Wales and the
Marches had jurisdiction in cases of equity by force of the king’s
commission and instructions;[392] that this court was abolished in
1689,[393] and that equity jurisdiction was exercised thereafter by
the court of great sessions, the principal law court of Wales, which
was not visited by the English judges of assize.[394] The procedure
on the equity side of this court was by bill, answer and demurrer
in accordance with ordinary chancery practice, although somewhat
more dilatory than in the high court of chancery, owing to the long
intervals between circuit and circuit.[395] The jurisdiction of this
court was, however, not exclusive either at law or in equity.[396]
It is unfortunate that the early records of our courts have not been
preserved in such a condition as to afford much information regarding
the extent that equity was administered under this system, if at all.
In 1710 an “act for establishing courts of judicature” was passed,
which conferred appellate equity jurisdiction on the supreme court,
and original equity jurisdiction on the county courts of common pleas
with a proviso that--
“When matters of fact shall happen to arise upon their examination,
or hearing of the matters and causes to be heard and determined in
the said court, then and in every such case, they shall order the
matter of fact to issue and trial at the court of common pleas, for
the proper county, where the fact ariseth, before they proceed to
sentence or decree in the said court of equity.”[397]
This clause was largely responsible for the repeal of the act by the
queen in council, Lord Raymond, the solicitor general, having given
an opinion that it would “make proceedings in equity insufferably
dilatory and multiply trials at law in the plain cases to no manner
of purpose.”[398] Upon notification of the repeal Governor Gookin
revived the courts by an ordinance drafted by Robert Assheton which
contained the substance of the repealed act in a more concise
form.[399] When the assembly took into consideration the reenactment
of the court laws it was decided that separate laws should be passed
for each of the courts and further resolved “that all matters of
Equity, shall begin originally in the Provincial Court with Power
to grant Injunctions and to have general jurisdiction over the
Province.”[400] What brought about this change of opinion on the part
of David Lloyd, who was again speaker and principal draftsman of the
acts passed in accordance with the resolution on May 28, 1715,[401]
must be left to conjecture. Experience had perhaps taught him by this
time that the county courts were incapable of administering formal
equity. At any rate the county courts of common pleas ceased to
exercise chancery powers and the perpetuation of the Welsh system was
left to depend on the supreme provincial court, which received the
following chancery powers:--
“Section III. And be it further enacted by the authority aforesaid,
That the said judges of the supreme court are hereby also
authorized and enabled to hold plea in equity, by bill, appeal,
petition or suit, to be brought or exhibited in the said court by,
for or against any person or persons whatsoever, for any discovery,
or other matters relievable in equity; and thereupon to issue out
process of subpœna or _distringas_, and all other usual process
for compelling the parties defendants in such suits to appear, put
in their answers and make their defenses to such bills, appeals,
petitions (or) suits; and for the parties to proceed therein and
thereupon according to such rules or orders, and in such manner and
form as the courts of chancery and exchequer in Great Britain have
used to proceed by.
“And upon issues joined in any of the said causes or suits in
equity, the said court is to cause witnesses to be examined
if desired, on either side, by commissions to be awarded for
that purpose, or by sworn or attested examiners; and after the
publication of the depositions of the witnesses, to proceed to the
hearing of the said causes, and upon proofs and evidences therein
or thereupon, or upon bill and answer, where no witnesses shall be
examined, or proofs made, to make such orders and decrees either
for the r(elief of) the plaintiffs or for the directing any issue
or issues at law to be (tried) for the information of the court,
or for the dismissing of the said plaintiff’s bills or otherwise,
as the said court shall see just and reasonable, and as is or hath
been used in the said courts of chancery or exchequer in Great
Britain.
“And the said court shall award such process for the enforcing
the parties, in the said suits, to yield obedience to such orders
or decrees as shall be made in the said causes, and in case of
non-performance thereof, or disobedience thereto, the said court
shall award all such process of contempt against the persons
and estates of him or them that shall be in contempt or refuse
obedience to any of the said orders or decrees, and make and
execute like process, orders and proceedings thereupon, as are and
hath been used in like cases in or by the said courts of chancery
or exchequer in Great Britain; and that the prothonotary of the
supreme court shall be register of the said court of equity.”
Unfortunately, the Act of 1715 received scant consideration from the
lords commissioners of trade and was repealed by the king in council
on July 21, 1719.[402]
The notification of the repeal of this law was received at a time
when good feeling prevailed in the province. David Lloyd had been
appointed chief justice and had ceased to be a disturbing factor,
Andrew Hamilton, the bar leader of his time, was attorney general,
while Sir William Keith, the governor, was at the height of his
popularity. On May 3, 1720, the governor addressed a message to the
assembly in which he stated that, having consulted gentlemen learned
in the law, he was satisfied “that no representative body, in any of
his Majesty’s colonies, is invested with the power to erect such a
court, or that the office of chancellor can be lawfully executed by
any person whatsoever, except him, who, by virtue of the great seal
of England, may be understood to act as the King’s representative
in the place.” On the following day the message was considered by
the assembly and it was resolved, “that, considering the present
circumstances of this Province, this House is of opinion, that, for
the present, the Governor be desired to open and hold a court of
equity for this Province, with the assistance of such of his council
as he shall think fit, except such as have heard the same cause in
any inferior court.”[403]
At a meeting of the council on August 6, 1720, the governor brought
the matter to the attention of the members who resolved:--
“That it is the Opinion of this Board, that by virtue of the
Powers granted by the Royal Charter to the late Proprietor, his
Heirs and Assigns, and to his and their Lieutents. or Deputies,
being regularly appointed, the present Governour William Keith,
Esqr., safely may comply with the Desire of the Representatives of
the ffreemen of this Province, signified to him by an unanimous
Resolution of their House, dated at Philadelphia the 4th day of
May last, And that the holding of such a Court of Chancery in the
manner aforesaid, may be of great Service to the Inhabitants of
this Colony, and appears agreeable to the practice which has been
approved of in the neighbouring Governments.
“But the Governour speaking to his own want of Experience in
Judicial Affairs, and representing to the Board the great Addition
of Attendance and Fatigue in the public Business which would be
thereby laid upon him, He was pleased to add nevertheless, that
considering the many marks the House of Representatives and this
Board had shewn of their Confidence in him in this as well as
divers other respects, He should not decline to serve the Publick
in that Station, but insisted on this, that as no Court of Chancery
could by the method proposed be held without him, So that He, on
the other hand, should not fail of having a due assistance from the
Council on their parts; And it was thereupon, at the Governours
desire, established and declared.
“That as often as the Governour is to sit in Chancery and hold a
Court, All the members of Council in or near Philadelphia, shall
be summoned to attend the Governour as his assistants upon that
Bench, and that there shall not any Decree be pronounced or made in
Chancery but by the Governour as Chancellor, with the assent and
concurrence of any two or more of the Six eldest of the Council
for the time being, And that those Six eldest Counsellors or
assistants, or any of them, may be employed by the Governour as
Masters in Chancery, as often as Occasion shall require.
“And that the Inhabitants may have due notice of the said Court,
it is ordered that A Proclamation be issued certifying all his
Majestys Liege People of this Province, that for the more equal
Distribution of Justice and the Conveniency of the Subject, a
Court of Equity or Chancery will be opened by the Governour, at the
Court House in Philadelphia, upon the 25th day of this instant,
August, in order to hear and judge of all such matters within this
province, as are regularly cognizable before any Court of Chancery,
according to the Laws and Constitutions of that part of Great
Britain called England, and that the said Court will be always
open for the Relief of the Subject; Whereof his Majestys Judges of
the Supreme Court, and the Justices of the inferiour Courts, and
all others whom it may concern are to take Notice, and to govern
themselves accordingly.”[404]
Four days later the following proclamation was made:--
“COURT OF CHANCERY.
“By William Keith Esqr. Govern^r Of the Province of Pensivania
& Counties of New Castle, Kent & Sussex, upon Delaware. A.
Proclamation.
“Whereas Complaint has been made, That Courts of Chancery or Equity
are absolutely necessary in the Administration of Justice, for
mitigating in many cases the Rigour of ye Laws, whose Judgments
are tied down to fixed and unalterable Rules, and for Opening away
to the Right and Equity Of a Cause for which the Law cannot in
all cases make a Sufficient Provision. Have notwithstanding been
but toe seldom regularly held in this Province, in such a manner
as ye aggrieved Subject might obtain the Reliefe which by such
Courts ought to be Granted. And Where as, the Representatives of
ye Freemen of this Province taking ye same into Consideration, did
at their last meeting in Assembly request me that I would with ye
assistance of ye Council, Open and hold such a Court of Equity for
this Province, To ye end therefore that his Majesties good Subjects
may no longer Labour under these inconveniences which are now
Complained Of, I have thought fitt, by and with the advice of the
Council, hereby to Publish and Declare, That with their assistance
I Purpose (God willing) to open and hold a Court of Chancery or
Equity, for this Province of Pensilvania, at ye Court House of
Philadelphia, on Thursday the Twenty fifth day of this instant
August, From which Date the Said Court will be and remain Always
Open for the Reliefe of ye Subject, to hear and Determine all such
matters arrising within the Province afores^d, as are regularly
Cognizable before any Court of Chancery, According to ye Laws and
Constitution of that part of Great Britain called England. And
his Majesties Judges of his Supream Court, as well as ye Justices
of the Inferior Courts, and all others whom it may Concern,
are required to take Notice hereof, and to govern themselves
Accordingly. Given at Philadelphia, ye tenth day of August, in the
Seventh year of the Reign of our Sovereign Lord George King of
Great Britain, France & Ireland, Defender of the Faith &c. Annoq.
Domini 1720.
“God Save the King.
“W. Keith.”[405]
A few days later the assembly took into consideration the governor’s
proclamation and on the twenty-eighth of August extended to him their
thanks for his message and requested that he should choose as his
assistants those who had not heard the cases before in the inferior
courts, to which the governor readily assented and in this auspicious
manner was established the first and only separate court of
chancery in Pennsylvania. When the common law courts were once more
established by the Act of May 22, 1722,[406] no equity jurisdiction
was conferred upon either the supreme or county courts.
On the twenty-fifth of August, 1720, Sir William Keith qualified as
chancellor and appointed Charles Brockden registrar. James Logan and
five other members of the council were named as masters and from time
to time thereafter other appointments both of masters and examiners
were made. The proceedings of the court, long buried in oblivion,
are not referred to in the reported cases, and the only allusion to
them by an early historian is a statement by Proud that John Kinsey,
afterwards chief justice, was compelled by Sir William to take off
his hat when addressing the court, an act which brought upon the
governor a remonstrance by the quarterly meeting of Friends.[407]
Thanks to the perseverance of William Henry Rawle, Esq., a portion of
the records of the court were found in a folio volume that had lain
neglected for many years among the unpublished archives of the state
department and which proved to be the registrar’s book. A critical
examination of the cases contained in the register will be found in
Mr. Rawle’s admirable address on Equity in Pennsylvania, delivered
before the Law Academy of Philadelphia in 1868.[408] Among the cases
in which the court of chancery exercised jurisdiction were bills for
account and for partition; to subject land to the payment of debts
and legacies; to stay waste; to restrain proceedings at law; to take
the testimony of witnesses in foreign parts; to settle differences
between partners; petitions for writs _de lunatico inquirendo_, and
for writs _ne exeat provincia_.[409] The frequent use of the last
named writ is interesting. Confined in its original application
to cases involving the safety of the realm, its use had, in time,
extended to private causes as a means of procuring equitable bail.
The departure of a litigant out of the jurisdiction of the court
without security for his appearance was a serious matter indeed in
days when communication between Europe and America was slow and
difficult.
The case of _Cole_ v. _Wathell_[410] is curious, as an application
to chancery in an admiralty cause. The complainants, part owners of
a ship, filed a petition setting forth that the defendant, also a
part owner, had refused to join with them in fitting out and loading
the vessel for a proposed voyage, that she was about to sail for the
Barbadoes and there being no person in this government acting as
judge of vice-admiralty, they were obliged to apply to the governor,
as chancellor, for equitable relief and praying that, “according to
the custom and usage in such cases,” the chancellor would appoint
appraisers, to value the defendant’s interest, they being willing to
account to him for the appraised value. The defendant was given time
to dispose of his interest or join in fitting out the ship, but he
left town without leaving any notice of what he had done or intended
to do, whereupon an order was made appointing three appraisers, who
filed a return valuing the defendant’s interest at “two hundred
and forty pounds current money of Pennsylvania.” In _Blad_ v.
_Bamfield_,[411] Lord Nottingham said: “I took this occasion to show
that, the court of chancery hath always had an admiral jurisdiction,
not only _per viam appellationis_, but _per viam evocationis_ too,
and may send for any cause out of the admiralty to determine it
here.” On several other occasions the lord chancellor asserted and
enforced this concurrent jurisdiction, which extended at least to
cases of depredations on the sea, and has long been deemed obsolete,
so that it is quite possible, although by no means certain, that a
knowledge of these seventeenth century precedents may have induced
the complainants in _Cole_ v. _Wathell_ to seek relief in chancery.
From the minutes in the register it would appear that the cases did
not proceed with much rapidity, in fact many of them were before the
court for several years, delayed by all sorts of dilatory motions.
In a partition case[412] one of the defendants was particularly
obstinate. Having refused to appear in response to a subpœna and
_alias_ subpœna, he was attached and remained in jail from June,
1733, to November, 1734, when counsel for complainants moved that the
bill be taken _pro confesso_ against him. He was then set at liberty
and ordered to prepare an answer within a month, which he declined to
do, whereupon the court proceeded to a hearing and entered a decree
for partition and mutual conveyances. This he declined to obey and
in the archives will be found the proof of service of notice on him,
with his answer that “he had been informed that there was a decree
against him but that he did not care.”[413] A writ of partition then
issued, the nature of which is not explained.
The counsel practicing most frequently in the court were Andrew
Hamilton, Joseph Growdon, John Kinsey and Peter Evans. Of the cases
recorded only two were decided by Sir William Keith, who was removed
by the proprietors from the office of governor in 1726 after a
quarrel with Logan. His successor, Patrick Gordon, upon being applied
to by the parties to proceed with several cases before the court,
hesitated to act until he had consulted with the council as to his
authority. The matter was debated and the governor assured that he
might legally assume the duties of the office, whereupon he took the
oath as chancellor.[414] It was further proposed that rules should
be drawn up for the better regulation of the court and the speedier
dispatch of business, and David Lloyd, the chief justice, and Andrew
Hamilton were named for that purpose.
So far as can be discovered the practice in the court followed that
of England. Suit was commenced by bill; a _subpœna ad respondendum_
then issued; an answer or demurrer was filed by the respondents;
testimony was taken before examiners, or the matter referred to one
of the masters; injunctions were issued and decrees enforced by
attachment. On the whole, considering the number of years the court
was in existence, the amount of business brought before it was small.
Undoubtedly the tedious and technical character of the proceedings,
their expense and the fact that the sittings of the court were
dependent upon the convenience of the governor, tended to discourage
litigants from seeking legal redress through such a channel.
In 1736 the silent dislike with which the court was regarded
changed into open hostility. Perhaps the contagion, if it may be so
described, spread from New York, where, in 1735, the general assembly
had resolved that the court of chancery held by the governor without
their consent was “contrary to law, unwarrantable, and of dangerous
consequence to the liberties and properties of the people.”[415]
Petitions were presented, signed by inhabitants of Philadelphia,
Bucks and Chester counties, complaining to the assembly that the
holding of a court of chancery before the governor and council was
contrary to a clause in Penn’s charter of privileges which provided--
“That no person or persons shall or may, at any time hereafter,
be obliged to answer any Complaint, matter or thing Whatsoever
Relating to Property before the Govern^r and Council, or in any
other place but in the ordinary Courts of Justice, unless appeals
thereunto shall be hereafter by Law appointed.”[416]
Even before the meeting of the assembly the subject had been taken
up by the press and a spirited controversy had been carried on by
contributors to the _Mercury_ and the _Gazette_.[417] The assembly
sent a message to the governor requesting information as to how
the court of chancery was constituted,[418] and on March 27, 1736,
resolved, “That the court of chancery as it is at present established
is contrary to the charter of privileges granted to the freemen of
this province.”[419] It was then resolved that the justices of the
county courts be given power to determine all suits in equity under
one hundred pounds, that a supreme court of equity should also be
established, to which appeals might be taken from the inferior courts
and which should also have original jurisdiction in all matters of
equity “_prima instantia_” when the value of the claim exceeded
one hundred pounds. The judges of this court were to consist of
three persons, to be commissioned by the governor out of any six
that should be nominated by the house. A bill was framed to this
effect.[420]
The charge that he was violating the charter angered Governor
Gordon and it was ordered that a vindication of the proceedings of
the governor and council be prepared and published. Accordingly a
voluminous report was drawn up by James Logan, giving a history of
the establishment of the court, which, he said, was erected at the
request of the assembly upon the best legal advice that could be
procured, “particularly that of our then Attorney General, Andrew
Hamilton, Esq., who was esteemed and allowed to be as able in that
Profession as any on the Continent of America,”--a fling at Hamilton,
who as speaker of the assembly was now leading the opposition to the
court. The report went on to argue that the word “property” as used
in the charter had reference to the proprietary grants and that a
court of chancery was an “ordinary court of justice.” It concluded--
“The Assembly however may be assured, that none of the Council
are fond, or in the least desirous, of the Employment, and if the
Governor shews any Inclination the Court should be continued on
the same Foot, we are perswaded it can be from no other Inducement
than his Desire to preserve Decency and Order, and some Resemblance
between this Government and all the other British Ones in
America.”[421]
The assembly replied that they intended no offense to the governor
or his council and were surprised at their resentment; that a vote
of the house was not sufficient to raise a court nor was the opinion
of one or more lawyers, who were left to answer for themselves, or
the silence of subsequent assemblies of any consideration in the
case; that they were sorry to see gentlemen of such penetration as
the members of the council resigning away the common sense of the
charter; that great men and even courts were often mistaken as to
their own jurisdiction; that it had been decided in England that a
court of equity could not be established except by act of parliament,
and if the king could not raise such a court how could the deputy
of the king’s patentee do so? They further hoped to be pardoned for
saying that, in their opinion it would have been more reasonable if
notice had been taken of their resolution in time to save them the
trouble of preparing the bill relating to courts of equity, which had
long lain before the governor unapproved although the session of the
assembly was drawing to a close.[422]
Here the controversy was dropped, the assembly soon after adjourned
and the governor continued to act as chancellor until his death
in the following summer. The matter seems to have disturbed the
proprietary party, for a case was stated presenting all the facts
and the opinions taken of the Solicitor General, Sir Dudley Ryder,
and the Attorney General, Sir John Willes, upon the legality of the
court. They held, in effect, that the king had power, in erecting a
new form of government in Pennsylvania, to authorize Penn to erect
courts of equity and that the consent of the legislature was not
necessary until Penn had made it so by the charter of 1701; that the
unanimous resolution of 1720 was a sufficient declaration of the
assent of the legislature to the erection of the court, and that
the court could be lawfully held until the whole legislature passed
an act to the contrary.[423] Nevertheless, Logan, who as president
of the council administered the government for two years, probably
felt that the office of chancellor was outside of the scope of his
temporary duties and when Thomas was appointed lieutenant governor,
in 1738, the court was not revived. The proprietors were unwilling
to give up the court and refer to the matter several times in their
correspondence. “We desire,” wrote Thomas Penn to Mr. Peters,
September 28, 1751, “that the court of chancery may be established
in a manner most favorable to the people, without giving up the
king’s prerogative with which we are entrusted, we should have
some share of influence, else the trial would not be equal. We are
willing, however, that the assembly should regulate the court.”[424]
Nevertheless the assembly continued its opposition until the end of
the proprietary government.
Thus, in the words of Horace Binney, Pennsylvania lost this system of
justice because “her governors and representatives could not agree
by whom the office of chancellor should be held.”[425] The same
dispute occurred in the other colonies and was settled according to
the exigencies of local politics. There is no indication, however,
of any real dislike on the part of the people to the principles of
equity; in fact the petition from Bucks County against the governor’s
court distinctly demanded that some provision be made for such as
want relief in equity, by the erection of courts of equity “more
convenient for their attendance and less expensive to those who may
have business there.” While that from Chester County requested--
“That some Provision suitable to the Circumstances of the people
may be made for such as want Relief in Equity, without being
obliged to travel from the remotest parts of the Province to
Philadelphia, & there to attend that Court at a very great & heavy
Expence, Which Proceedings, as the Business of that Court does
Increase, will undoubtedly become a very great Grievance to the
People.”[426]
It has been suggested that the opposition to the court of chancery
would not have taken concrete form but for the influence of Andrew
Hamilton who had recently been one of the defendants in an important
equity suit brought in the high court of chancery of England where
a decree had been entered against him.[427] But this is hardly
probable. Hamilton was a man of wealth and influence enjoying a
large practice, with a reputation for political independence; he had
represented the proprietors in their controversy with Lord Baltimore
and had defended the printer, Peter Zenger, in his famous trial at
New York, and his activity was probably due to a desire to see the
court put on a sound and popular basis. It is fascinating to read
into history the characters of the chief actors, and particularly
tempting when, as here, the strong personalities of such men as David
Lloyd and Andrew Hamilton are found asserting themselves at the
critical periods for equity in Pennsylvania. But too much may easily
be made of this side of the story; the inhabitants were jealous of
the power of the proprietors, they distrusted the governors and
suspected the purposes of the Crown, they wanted cheap justice and
demanded that it be brought to their doors, the very name “chancery”
was odious and they would have none of it, while the governors and
councilors, in their zeal for uniformity of practice in the British
dominions, sacrificed the substance, equity, for the shadow, the
chancellorship.
As a man, after an amputation, makes shift as best he can with an
artificial limb, so Pennsylvania proceeded slowly to construct a
substitute for the discarded court. That the loss was not acutely
felt, or at least realized, may be inferred from the fact that we
hear no more on the subject from the legislature, where real or
fancied grievances were then aired with greater persistency than in
these days of unlimited appropriations and limited debates. The court
act of 1722, previously quoted, conferred upon the supreme court the
power to exercise its jurisdiction as fully as the justices of the
king’s bench, common pleas and exchequer at Westminster might do, and
a plea might have been made for the exercise by the supreme court
of the chancery powers of the barons of the exchequer. But the ill
success that finally attended the efforts of Governor Cosby of New
York to maintain this position, in his celebrated suit against his
predecessor, Rip Van Dam, would have discouraged any one from urging
a view so unpopular.[428] The orphans’ court was, within its field, a
court of equity, and, in regard to the estates of minors, exercised
the functions of the chancellor.
The fact that our pre-revolutionary reports are confined to the
notes of a few lawyers makes it doubly difficult to investigate the
beginning of the system by which equitable principles were worked
out through common law forms. The first case in which the subject is
mentioned is _Swift_ v. _Hawkins_,[429] where, in an action of debt
on a bond, the court under the plea of payment, admitted evidence
of want (probably a misprint for failure) of consideration, which,
said Chief Justice Allen, was a necessity, to prevent a failure of
justice, there being no court of chancery in the province; and this,
he said, he had known to be the constant practice of the courts for
thirty-nine years past. If the chief justice is accurately reported
this would carry the practice back to 1729, before the abolition of
the court of chancery, but Chief Justice Allen was in a position to
speak with authority, having sat in the common pleas as early as 1732.
In _Wharton_ v. _Morris_,[430] Chief Justice McKean, in charging
the jury on the question as to whether a bond payable in “lawful
current money of Pennsylvania” could be paid in depreciated currency,
remarked that--
“The want of a court with equitable powers, like those of the
chancery in England, had long been felt in Pennsylvania. The
institution of such a court, he observed, had once been agitated
here, but the houses of assembly, antecedent to the revolution,
successfully opposed it; because they were apprehensive of
increasing, by that means, the power and influence of the governor,
who claimed it as a right to be chancellor. For this reason, many
inconveniences have been suffered. No adequate remedy is provided
for a breach of trust; no relief can be obtained in cases of
covenants with a penalty, &c. This defect of jurisdiction has
necessarily obliged the court, upon such occasions, to refer
the question to the jury, under an equitable and conscientious
interpretation of the agreement of the parties.”
In the same year, the court of common pleas of Philadelphia County in
_Dorrow_ v. _Kelly_,[431] held that a simple contract debt could not
be tacked to a mortgage, President Judge Shippen saying, that while
the courts of the state had in some instances adopted chancery rules
to prevent an absolute failure of justice, there was no necessity
in this case to usurp the powers of a court of chancery, an act of
assembly having directed the mode of proceeding on mortgages and
confined the recovery to principal and interest.
The first statutory efforts to give relief as in equity were,
naturally, by private acts, where the interests involved were
sufficiently important to warrant a direct interference by the
legislature. Among these was an act passed in 1757[432] to enable
certain testamentary trustees to carry out an agreement of the
testator by the execution of deeds of conveyance; another in
1761[433] to enable trustees to sell lands settled in trust for the
Oxford church and with the money arising therefrom to purchase other
lands; a third in 1772[434] confirming the title to land where the
deed had, by some accident, been torn and defaced, and a fourth in
the same year where the deed had been lost.[435] One act will serve
as an illustration. Godfrey Brown mortgaged land in Cheltenham
township to the Trustees of the General Loan Office of the Province
and subsequently conveyed to Philip Fox. Fox paid the mortgage and
then it was found that two deeds in the chain of title, that had been
pledged to the trustees according to the custom of their office,
were lost, and, although diligent search had been made in the loan
office and elsewhere, they could not be found. Therefore “to prevent
the damages and mischiefs which may arise from the loss of the said
deeds,” on petition of Philip Fox, it was enacted that the grantors
in said deeds and their heirs be barred and forever excluded from
all claims to the said premises which should vest in the petitioner
absolutely, saving the rights of others than the said grantors.[436]
The first legislative attempt to give equitable relief by a general
act, was contained in the Act of January 22, 1774,[437] to compel
trustees and assignees of insolvent debtors to execute their trusts.
By this law the courts of common pleas were empowered, on petition,
to appoint commissioners to audit the accounts of such trustees
and upon their report to order the trustees to forthwith pay the
creditors their just proportions of the funds with which they were
charged.
The next halting step was taken in the constitution of 1776 which
contained the following clause:--
“The supreme court and the several courts of common pleas of this
commonwealth shall, besides the powers usually exercised by such
courts, have the powers of a court of chancery, so far as relates
to the perpetuating testimony, obtaining evidence from places not
within this state, and the care of the persons and estates of those
who are _non compotes mentis_, and such other powers as may be
found necessary by future general assemblies, not inconsistent with
this constitution.”[438]
No such other powers were conferred except by the Act of March 28,
1786,[439] which authorized the supreme court upon bill setting forth
the loss of deeds or other writings, to issue a subpœna, requiring
the persons named to appear and answer; to refer the matter to a
master and upon his report to make such order and decree as to
justice and equity should appertain. This statute appears to have
been occasioned by the frequent complaints of the loss of deeds
which could only be remedied by private acts such as those already
referred to. By the Act of September 28, 1789,[440] proceedings akin
to discovery were authorized in foreign attachment. The plaintiff
after judgment against the defendant was permitted to exhibit
interrogatories to the garnishees, who were required to answer under
oath.
On the twenty-fourth of November, 1789, there met at Philadelphia a
convention to draft a new constitution for the state. The members
were abler and more representative men than those who had framed
the short-lived constitution of 1776. The committee of nine who
prepared the first draft of the proposed constitution included
James Wilson, William Lewis, Alexander Addison and James Ross. The
plan submitted by them included a high court of chancery presided
over by a chancellor with state-wide jurisdiction, and a court of
chancery in each judicial district, or circuit, except that in which
the high court should be held, presided over by the president judge
of the court of common pleas with the same power as the chancellor
except that of granting injunctions to stay proceedings or suspend
judgments at law. From a decree in chancery in any circuit an appeal
was allowed to the chancellor of the state. Determined opposition to
this plan developed in the convention and after a prolonged contest
in committee of the whole, the provision for a court of chancery was
struck out of the judiciary article and limited equity powers were
conferred on the existing courts in the following words:--
Art. V. Section VI. “The supreme court and the several courts of
common pleas shall, beside the powers heretofore usually exercised
by them, have the powers of a court of chancery so far as relates
to the perpetuating of testimony, the obtaining of evidence from
places not within the state, and the care of the persons and
estates of those who are _non compotes mentis_. And the legislature
shall vest in the said courts such other powers to grant relief in
equity as shall be found necessary; and may, from time to time,
enlarge or diminish those powers; or vest them in such other
courts as they shall judge proper for the due administration of
justice.”[441]
So ended the last effort to obtain a separate court of chancery in
Pennsylvania. This much was conceded, the legislature was authorized
not only to extend the equity powers of the existing courts, but
to vest them in such other courts as they should judge proper. But
the latter power was not exercised by the creation of a separate
court, nor were equity powers conferred upon the ordinary courts
in a systematic manner. From time to time, under the compulsion of
sheer necessity, equitable jurisdiction was extended by a series of
acts the mere recital of which is wearisome.[442] Delaware, however,
whose political and judicial history was so long and so intimately
associated with that of Pennsylvania, took the step declined by her
sister commonwealth and established a separate court of chancery by
the constitution of June 12, 1792.[443]
As we have seen, the constitutions of 1776 and 1790 expressly
conferred upon the courts the power to grant relief in certain cases.
Of these, the first, the perpetuation of testimony, was exercised
directly under the constitution in accordance with chancery practice;
the second, the obtaining of evidence from places out of the state,
by commissions and rule of court;[444] as to the third, the care
of idiots and lunatics, the power of determining the question
of insanity was exercised through the medium of a commissioner
and inquest according to chancery practice.[445] In addition the
legislature by a series of acts, prior to 1836, conferred additional
powers the most important of which were to compel trustees to
account, to discharge and dismiss them, to compel the conveyance of
the legal estate where the trust had expired, to compel discovery
in aid of execution in certain cases relating to corporations and
corporate stock, and to compel the specific performance of a contract
for the sale of lands, where the vendor had died, by an order
empowering the executors or administrators to execute a deed.[446]
If the sum total of legislation seems meagre today, it can only be
said that public opinion in regard to law reform moves slowly, and
the bar, while dissatisfied with some features of the system, was
not clear as to the direction reform should take. As will be seen
presently, the simpler equities had been worked out through the
common law actions and it was thought practicable to extend this
method by the revival of neglected actions and an extension of their
remedial effects. Such was the thesis maintained by Mr. Laussat in
his brilliant essay[447] and the favorable reception it received
shows how obstinately loyal a bar may become to an inadequate system
that they have been taught to revere. These views were respected
by the commissioners to revise the civil code when, in 1835, they
took up the question of equity. Some of the subjects ordinarily
dealt with in a court of chancery, such as mortgages, they found
had been fully covered by statutes; others could be covered in the
same manner by acts that they had prepared; others were within the
sphere of the orphans’ courts. It was in the peculiar means of
administering preventive justice that the courts of equity possessed
a decided superiority over the courts of law, and it was here that
the Pennsylvania system was most defective and the recommendations
of the commissioners most radical. The commissioners were opposed
to a separate court of chancery as unnecessary, and also opposed
to keeping up a separate chancery organization in the existing
tribunals. The courts, they said, had pursued certain established
modes of practice which now for more than a century had become
familiar to the community. “To recast the whole system then, to
establish a class of equitable remedies for all equitable cases, and
to confine the common law procedure to common law subjects,” would
produce, they thought, “greater inconveniences than any benefit which
might be supposed in theory to arise from the change.”[448] Upon the
whole, they thought that the safest plan to pursue was to give relief
whenever possible by some familiar common law remedy, and when full
relief could not be given by such process, to resort by statute to
the methods of the chancery courts.
Upon the recommendation of the commissioners the legislature extended
the equity powers of the courts as follows in the Act of June 13,
1836:[449]--
“The Supreme court, and the several courts of Common Pleas, shall
have the jurisdiction and powers of a court of Chancery, so far as
relates to--
“I. The perpetuation of testimony:
“II. The obtaining of evidence from places not within the state:
“III. The care of the persons and estate of those who are _non
compos mentis_:
“IV. The control, removal and discharge of trustees, and the
appointment of trustees, and the settlement of their accounts:
“V. The supervision and control of all corporations other than
those of a municipal character, and unincorporated societies or
associations, and partnerships:
“VI. The care of trust monies and property, and other monies and
property made liable to the control of the said courts.
“And in such other cases, as the said courts have heretofore
possessed such jurisdiction and powers, under the constitution and
laws of this commonwealth.
“And in every case in which any court as aforesaid, shall exercise
any of the powers of a court of Chancery, the same shall be
exercised according to the practice in equity, prescribed or
adopted by the Supreme court of the United States, unless it be
otherwise provided by act of assembly, or the same shall be altered
by the Supreme court of this commonwealth, by general rules and
regulations, made and published as is hereinbefore provided;
and the Supreme court when sitting in banc, in the city of
Philadelphia, and the court of Common Pleas for the said city and
county, shall besides the powers and jurisdiction aforesaid, have
the power and jurisdiction of courts of Chancery so far as relates
to--
“I. The supervision and controul of partnerships, and corporations
other than municipal corporations.
“II. The care of trust monies and property, and other monies and
property made liable to the controul of the said courts.
“III. The discovery of facts material to a just determination of
issues, and other questions arising or depending in the said courts.
“IV. The determination of rights to property or money claimed by
two or more persons in the hands or possession of a person claiming
no right of property therein.
“V. The prevention or restraint of the commission or continuance
of acts contrary to law, and prejudicial to the interests of the
community or the rights of individuals.
“VI. The affording specific relief, when a recovery in damages
would be an inadequate remedy: _Provided_, That in relation to the
discovery of facts material to a just determination of issues,
and other questions, the District court for the city and county
of Philadelphia, shall have the same power and authority, within
its jurisdiction, as is hereby conferred on the court of Common
Pleas for the said city and county: _And provided further_, That
no process to be issued by the said courts of the city and county
of Philadelphia, or the Supreme court sitting therein, under the
chancery powers herein specially granted, excepting such as have
heretofore been exercised shall at any time be executed beyond the
limits of the city and county aforesaid.”
In conferring these powers the legislature did not adopt in full
the recommendations of the commissioners, who in the bill reported
by them embraced the whole state as the field for the operation of
chancery remedies, but confined a portion to Philadelphia County,
yielding to the prejudices of the interior counties where want of
familiarity with the forms of chancery procedure had created a
special distaste for a change in practice. The unqualified success
of the extension of equity jurisdiction in Philadelphia County
led to a rapid change of opinion; in twenty years the wisdom of
the commission’s recommendations was vindicated and the courts of
common pleas of all the counties were invested with the same equity
powers that the courts of Philadelphia possessed.[450] These powers
had in the meantime been increased by an extension to all cases of
fraud, accident, mistake, account,[451] discovery,[452] dower and
partition.[453] The extension of equity jurisdiction to partition
was most advantageous, since the court could upon bill determine the
rights of the parties in a far more satisfactory manner than by a
common law action, which would rarely be resorted to now were it not
for the fear of the expense involved in a reference to a master.
A catalogue of the statutory additions to the equity powers of
the courts would unnecessarily prolong this discussion. They will
be found in the digests and books on practice. In one important
particular it became necessary to rectify the opinion of the
commissioners that the remedy by _scire facias sur_ mortgage was
adequate by an extension of the equity powers of the common pleas to
corporation mortgages. It having been held that the trustee named in
a corporation mortgage could not maintain a bill to foreclose, an
act was passed conferring this necessary power.[454] With respect
to charities, legislation also became necessary to give effect in a
limited extent to the doctrine of _cy-pres_.[455]
As important as any clause in the Act of 1636 was that which
empowered the supreme court to adopt equity rules for the whole
state which the courts of common pleas could neither disregard nor
suspend.[456] The power has been wisely exercised by the adoption of
clear and concise rules that have operated as a check upon slovenly
practice and furthered that uniformity which should characterize the
administration of justice. In the interest of economy, regularity and
certainty it is unfortunate that the same course has not been adopted
in regard to actions at law. A recent act[457] provides that where a
bill in equity has been filed, if the defendant desires to question
the jurisdiction of the court, he must do so by demurrer or answer,
explicitly so stating, or praying for an issue; otherwise the right
of trial by jury shall be deemed to have been waived. If the demurrer
or answer avers that the suit should have been brought at law, that
issue shall be decided _in limine_ before hearing on the merits, and
if the court decide that the suit should have been brought at law it
shall certify the case to the law side of the court at the cost of
the plaintiff. So, on appeal, if the decision of the appellate court
is that the suit should have been brought at law it shall remit the
cause with directions to transfer it to the law side of the court.
It is necessary to say something in reference to the nature of the
equitable relief administered through common law forms, a subject of
unusual interest inasmuch as it has had a profound influence upon the
development of legal procedure in the commonwealth. Independently of
the form of action, it has been said, “our courts will advance the
equitable rights of plaintiffs, where, through some accident that
occurred anterior to the institution of his suit, or that happens
during its pendency his common law remedy would be taken away or
rendered nugatory.”[458] An early case illustrating this principle is
_Respublica_ v. _Coates_,[459] an action of debt on a bond brought
in the supreme court against the defendant as surety. Levy, for
the plaintiff, moved for a rule to show cause why the declaration
should not be amended by striking out the _profert_ and averring
the loss of the obligation. Lewis and Sergeant, for the defendant,
declared that they would not object to the rule being made absolute,
as they apprehended a late authority had settled the practice in
England.[460] The court made the rule absolute, declaring that it was
absolutely necessary such practice should be adopted here to prevent
a failure of justice, there being no court of chancery to protect
against such accident.
The common law actions that were made the vehicles of equitable
rights were assumpsit, debt, covenant, replevin, ejectment and
partition; in fact nearly all the personal actions have been employed
to support equitable claims. “I do not like the idea,” said Mr.
Justice Huston, “that our equitable powers are more extensive in
one form of action than another.”[461] Assumpsit is an equitable
action and lies, according to the familiar phrase, in all cases
where the defendant has money which _ex æquo et bono_ belongs to the
plaintiff.[462] Thus where there had been a recovery in ejectment
against tenants and the landlord died, it was held indebitatus
assumpsit would lie against the landlord’s executors to recover
rents received, from the time the plaintiffs’ title accrued, as a
substitute for a bill in equity, and the question was submitted to
the jury as to whether the defendant’s testator had misrepresented
their title to the plaintiffs and concealed the defects in his
own.[463]
An illustration of the free use of the equitable powers of the
court will be found in _Bixler_ v. _Kunkle_,[464] an action of
assumpsit for money had and received by the defendants to the use
of the plaintiff. It appeared that plaintiff’s father had by his
will directed his executors to lay out a certain sum in land for
the plaintiff’s separate use and that the executors had procured a
release from her by fraud on payment of about one half of what was
due. Judgment was entered for the plaintiff, the money to be paid
into court and expended under the court’s direction in the purchase
of land according to the will. Chief Justice Gibson, however,
thought that the judgment exceeded the powers of the court, although
jurisdiction to decree a trust would be most salutary.
So also, where by articles of agreement for the sale of land a deed
was to have been delivered on a certain date, and in covenant on the
articles it appeared that it had been verbally agreed that delivery
should take place on a subsequent date. Chief Justice Tilghman was
of the opinion that the action could have been supported if the
declaration had been amended so as to set forth the alteration of
the agreement. “I see,” he said, “no certain mode of doing equity to
both parties, but by issuing a writ of covenant in the usual form
and permitting the declaration to partake so much of the nature of
a bill of equity as to set forth the truth of the case. To this the
defendant may plead anything which in law or equity will serve him,
and thus the parties may go to trial on the merits of the case.” And
Mr. Justice Gibson added: “The declaration is in effect a bill in
equity; for in England the plaintiff could not recover in a court
of law: I cannot, therefore, see why those equitable circumstances
that are the very foundation of the action, should not be set forth.
Performance by the plaintiff at a subsequent day, and acceptance by
the defendant, is in equity equivalent to performance strictly at the
day, and ought to have been alleged here. Principles of equity cannot
be administered through common law forms, strictly such, without
having recourse to fiction, which leads to serious inconvenience. The
facts as they exist ought, in all cases where it is practicable, to
be set forth.”[465]
Replevin had from the earliest times a wider scope than in England,
being applicable in every case in which goods and chattels in the
possession of one person were claimed by another.[466] So too, in
partition an equitable estate was held sufficient to support the
action, as in _Stewart_ v. _Brown_,[467] where it was held that if
a person purchase land at a tax sale under an agreement that another
should be equally concerned, he would be considered as holding for
the plaintiff and himself as tenants in common. The technical and
nearly obsolete action of account render was frequently resorted to
as a substitute for the bill in equity for an account. The action
of ejectment became at an early date, through the ingenuity of
the courts, the most important mode of enforcing the equity of a
plaintiff in real property. In _Hawthorn_ v. _Bronson_,[468] it is
thus described by Mr. Justice Duncan:--
“The equitable action of ejectment, in this state, forms a
considerable branch of the law. From the nature of our original
titles, settlement-rights, warrants and applications, all imperfect
rights, so variant in their circumstances from other countries,
our courts of justice have been obliged to form a system of
laws adapted to this species of title, and accommodated to all
its circumstances, and which, perhaps, could not, after all our
experience, be changed to advantage; and which, indeed, ought not
to be changed, however specious the reason might be, as it would
tend to destroy all security of title, and introduce new confusion,
which nothing but a steady adherence to decisions can prevent.
And when to this is added, that in general, the people contract
by articles for payment by instalments, and the legal title is
seldom made, until all the purchase-money is paid, and the frequent
essignment of these articles, we ought not to be surprised at the
numerous complicated cases which arise in our courts of law and
equity; for they are courts of law and equity distributing justice
by the same medium--the instrumentality of a jury. In Pennsylvania,
equity is law. Courts give the equitable principles to the jury, as
they lay down the legal principles. The facts are for the decision
of the jury, as all contested facts must be; but whether, on any
state of facts found by the jury, the party is entitled to equity,
and the mode, manner and extent of relief, is for the court.”
Wherever chancery would enforce specifically a contract for the sale
of land, it is said, the same relief will be granted in Pennsylvania
by ejectment.[469] Thus ejectment lies by the vendor against the
vendee in possession under articles who has paid part of the
purchase money and defaulted on the remainder.[470] So also by the
vendee, upon tendering the purchase money.[471] Difficulties were
encountered, as might be expected, in cases involving a construction
of the statute of frauds which are too technical for discussion
here.[472]
The interest of the assignee of a chose in action was also recognized
and protected in actions at law, and on the other hand, the assignee
made liable to set-offs and costs in the same manner as if the suit
had been instituted in his own name. The practice which prevailed
from a time antedating the Revolution was to bring the suit in the
name of the assignor and mark it to the use of the assignee.[473]
It was a somewhat simpler matter to give effect to the equities of a
defendant, since this did not involve an extension of the scope of
common law writs or the revival of obsolete actions as substitutes
for chancery procedure. The rules of pleading and evidence interposed
the chief barrier to the admission of equitable defenses and these
were broken down at an early period. And whatever may be said as to
the insufficiency of the remedies afforded to a plaintiff, it must be
admitted, as observed by Mr. Rawle,[474] that the protection given to
a defendant in Pennsylvania was in advance of the law as elsewhere
administered. There were two ways in which it was possible to present
the equity of a defendant, first by giving evidence of equitable
matter, under a general plea, and second, where from the nature of
the case it was improper to make a defense under a general plea by
pleading specially the facts constituting the equitable grounds of
defense.[475]
The first reported case describing the practice of giving in
evidence, under the plea of payment, matters of equitable defense is
_Swift_ v. _Hawkins_[476] already referred to, “the Magna Charta,”
says Mr. Justice Duncan, “of this branch of equity.”[477] Seven years
later, in 1775, the supreme court, to prevent surprise at trials,
adopted a rule that every person, intending to give special matter
in evidence under the general issue, must give notice in writing
ten days before trial of the special facts he intended to rely on
and, because it had been adjudged that under the plea of payment the
defendant might give evidence that a bond or specialty was given
“without any or good consideration,” for the future in all such
cases, the defendant should thirty days before trial give notice in
writing of his intention to offer such evidence.[478] From that day
every practicing attorney in Pennsylvania has, at some time in his
career, started from his sleep in the middle of the night in a cold
sweat, wondering if he _did_ give notice in that case on tomorrow’s
list.
Where an equitable defense is set up under the plea of payment with
notice of special matter, the plea is a substitute for a bill in
equity, and under it the jury may and should presume everything to
have been paid which in equity and good conscience the defendant
ought not to be compelled to pay. The nature of the plea, says Chief
Justice Gibson,[479] has frequently been misunderstood. It is not the
general issue. As an equitable plea it makes room only for what would
sustain a bill in chancery, and as a legal plea it makes room only
for evidence of direct payment, or what is the equivalent of payment
where the plea is directed by act of assembly. The various equitable
defenses permitted under the plea may be classed under the familiar
heads of fraud, accident, mistake, and failure of consideration.[480]
The same liberality as to evidence was not favored under the plea of
non assumpsit. It was said by Chief Justice Tilghman[481] that if the
circumstances afforded grounds for relief in equity, the defendant
should give notice of special matter under the plea of payment.
In the action of covenant, the plea of performance, or covenants
performed, almost obsolete in England, was, with notice of special
matter held sufficient to support any evidence which would discharge
the defendant in equity.[482] In ejectment an equitable defense would
protect the defendant’s possession, but by statute[483] the plea of
“not guilty” was the only one allowed. There was also permitted,
in addition to the statutory set-off, an equitable defense in the
nature of set-off applicable to acts of nonfeasance or misfeasance
by the plaintiff connected with his cause of action, not matter of
defalcation but directed to the defeat of the claim in whole or part.
As to replications and subsequent pleadings, if a plea was put in
founded in equity the plaintiff was permitted in reply to set up any
special facts sufficient to destroy that equity.[484]
Another powerful instrument in the administration of equity under
common law forms was the conditional verdict frequently used as a
substitute for an injunction or a bill for specific performance. In
such a case, where the plaintiff had set out in his declaration the
whole ground of his equitable right, the jury under the direction of
the court might find large damages to be released on condition of
compliance with the terms prescribed by the verdict, which terms were
for the jury alone to impose.[485] So also the power of the court to
control or open judgments has been exercised according to equitable
principles and with a view to preventing injustice under color of law.
Such then is the system which Horace Binney contemptuously described
as “a spurious equity compounded of the temper of the judge and
the feelings of the jury, with nothing but a strong infusion of
integrity to prevent it from becoming as much the bane of personal
security as it was the bane of science.”[486] The early bar, however,
regarded it much as a mother does a deformed child; they loved it,
they doctored it and resented reflections upon its symmetry and
efficiency.[487] Extravagant notions were at one time entertained
as to the possibility of extending the system by the employment of
long forgotten actions, such as the assize of nuisance,[488] and by
widening the scope of the writ of _scire facias_.[489] As has been
shown, more sensible counsel prevailed and limited chancery powers
were extended to the courts by statute.
If the court of chancery had been excluded in the eighteenth century
from our system of justice as the first step in a movement for
the scientific reform of procedure, the result might have been
far-reaching. But it was not. Political considerations dictated
the change and the best legal opinion of the day was adverse to
the innovation. Anglo-American jurisprudence was founded on the
inherited conception of a dual system, law and equity, each with its
distinct functions. The excision of equity crippled and paralysed
the administration of justice. Having destroyed chancery forms,
the next logical step should have been to abolish all distinctions
between common law forms and substitute one simple method of
proceeding, under which equity and law alike could be administered.
But such a conception was in advance of the times. Instead, from
time to time under the pressure of necessity, efforts were made to
administer equitable principles through forms that even for their own
legitimate purposes were fast becoming archaic. The result was to
create a new series of technicalities requiring a glossary of their
own. When chancery powers were conferred upon the courts, the fact
that relief was given in common law forms might have presented an
obstacle to the exercise of equity jurisdiction in many instances,
had not the courts, by a liberal construction of the acts conferring
such jurisdiction, insisted that it was not sufficient to oust the
jurisdiction of equity that complainant had a remedy at law, unless
that remedy was as complete, adequate, practical, efficient and
convenient to the ends of justice as that in equity. Nevertheless
there are cases where the distinction is still far from clear,
a situation that would be ridiculous were it not so serious to
prospective litigants.
Another disadvantage that attended the system was that the equities
of the respective parties were to a large extent left to the chance
decision of a jury, which is more likely to be guided by sympathy or
prejudice than the law of the case, or, with the best intentions in
the world, is an unsatisfactory tribunal for the determination of
complicated questions of fact. No doubt this is one reason for the
great number of references to arbitrators to be found on the early
dockets.
It is true that for purely defensive purposes the system had
decided advantages. It permitted a defendant to put in an equitable
defense without resorting to another jurisdiction for relief. But
on the offensive it broke down. The common law offered no adequate
substitute for the bill for an injunction, to enforce specific
performance of contracts, to reform or cancel instruments, to
obtain a receiver, for the bill _quia timet_ and the bill of peace.
Present social and commercial conditions tend to increase rather
than diminish the importance of equity jurisdiction. Such matters
as trade-marks, copyrights and patents; corporations, associations
and trusts; trade disputes and interstate commerce, present problems
that would seem almost incapable of solution except through chancery
procedure, either in its original form or as assimilated by code
practice, without a revolutionary reconstruction of the entire legal
system.
Some reformation of our procedure belongs to the future. Of that we
may be certain. It is impossible to imagine that our technical and
complicated practice will not fall some day of its own weight and be
replaced by a procedure clearer, simpler and more scientific. In that
golden age, when the practice of law will be a pleasant diversion
and the bringing of a suit the opening bar of a symphony, if one
of our learned profession now living is permitted, as a shade, to
revisit the scene of his earthly struggles, he will be able, perhaps,
to recognize traces of equity procedure, but the common law actions
will belong as completely to the past as himself, or, to put it more
humanely, as the _actio sacramenti_ of the Roman or the weregeld of
the Saxon.
FOOTNOTES:
[353] Parkes’s History of the High Court of Chancery.
[354] Maine’s Ancient Law, chapter 3.
[355] Courts of Chancery in the American Colonies, S. D. Wilson,
American Law Review, Vol. XVIII, 226, reprinted in Select Essays in
Anglo-American Legal History, Vol. II, 779; Story’s Miscellaneous
Writings, 151. History of Equity in the American Colonies, E. B.
Gager, in Two Centuries’ Growth of American Law, chapter 6.
[356] Charter and Laws of Pennsylvania, 35.
[357] Charter and Laws of Pennsylvania, 61.
[358] V Pennsylvania Archives (2d series), 697.
[359] Sussex County Records (Turner), 76.
[360] V Pennsylvania Archives (2d series), 679.
[361] VII Pennsylvania Archives (2d series), 799.
[362] Broadhead’s History of New York, Vol. II, 385, gives the date
of the act as November 1, 1683. It appears in the laws of 1694 as of
1691. Compare preface to 1 Johnson’s Chancery Reports (N. Y.).
[363] New York Colonial Documents, Vol. IV, 882.
[364] IV New Jersey Archives, 70.
[365] New York Colonial Documents, Vol. V, 298.
[366] Sussex County Records (Turner), 97.
[367] I Colonial Records, 21, 4, 5 mo. 1683.
[368] I Colonial Records, 65, 14, 6 mo. 1684.
[369] I Colonial Records, 63, 20 4 mo. 1684.
[370] Charter and Laws of Pennsylvania, 167.
[371] I Colonial Records, 75, 3, 2 mo. 1685.
[372] Chester County Records, 3, 10 mo. 1686, quoted by Peter McCall
in his address before the Law Academy, 21.
[373] I Colonial Records, 159, 12, 3 mo. 1687.
[374] I Votes of the Assembly, 41.
[375] Charter and Laws of Pennsylvania, 184. The assembly tried to
strike out the word equity, I Votes of the Assembly, 57.
[376] Charter and Laws of Pennsylvania, 214, 225. See also Act of
November 27, 1700, II Statutes at Large, 134.
[377] I Colonial Records, 161, 18, 3 mo. 1687; I Colonial Records
441, April 24, 1695; I Colonial Records, 442, May 25, 1695; I
Colonial Records, 478, May 24, 1697.
[378] I Votes of the Assembly, 79.
[379] Charter and Laws of Pennsylvania, 100, re-enacted November 27,
1700; II Statutes at Large, 128.
[380] II Statutes at Large, 148. See Charter and Laws of
Pennsylvania, 300.
[381] II Statutes at Large, 481.
[382] II Colonial Records, 115, 29, 11 mo. 1703-4.
[383] II Colonial Records, 164, 15, 7 mo. 1704.
[384] II Colonial Records, 189, 13, 2 mo. 1704-5.
[385] II Colonial Records, 263, 23, 7 mo. 1706.
[386] II Colonial Records, 266, 25, 7 mo. 1706.
[387] II Colonial Records, 280, 27, 9 mo. 1706.
[388] II Colonial Records, 282, November 28, 1706.
[389] II Colonial Records, 288, 2, 10 mo. 1706.
[390] II Colonial Records, 295, 23, 10 mo. 1706.
[391] Charter and Laws of Pennsylvania, 319. The remonstrance of the
Assembly will be found in II Colonial Records, 362. March 4, 1706-7.
[392] IV Coke’s Institutes, 242; Pembrokeshire by Owen of Heullys
(1603), Folio 74a, edition of 1892, page 155; History of Radnorshire
by Rev. Jonathan Williams, 72; Archæologia Cambrensis, Vol. III
(series 3), 29; Bacon’s Law Tracts, Jurisdiction of the Marches.
[393] I William and Mary, chapter 27.
[394] The court of great sessions was abolished by the act of I
William IV, chapter 70; Stephen’s Commentaries on the Law of England
(1st edition), Introduction, § 4.
[395] Abbot’s Jurisdiction and Practice of the Court of Great
Sessions of Wales (1795), 94 and introduction, xxviii.
[396] Viner’s Abridgment, title, Wales, D., _Morgan_ v. ----, I
Atkins’ Reports, 408 (1737); _Griffith_ v. _Joanes_, Choyce Cases
in Chancery, 129 (1578); Prohibitions might issue from the King’s
Bench directed to the Court of Great Sessions, _Vaughn_ v. _Evans_, 8
Modern Reports, 374 (1725), _Trantor_ v. _Duggan_, 12 Modern Reports,
138 (1698).
[397] February 28, 1710-11, II Statutes at Large, 301; Charter and
Laws of Pennsylvania, 323.
[398] II Statutes at Large, 549, 1 Pennsylvania Archives (1st
Series), 157.
[399] II Statutes at Large, 556; Charter and Laws of Pennsylvania,
351; The Assembly, as usual, protested against this ordinance, II
Colonial Records, 599, August 4, 1714.
[400] II Votes of the Assembly, 161, 20, 11 mo. 1714-15.
[401] III Statutes at Large, 65.
[402] III Statutes at Large, 439, 464.
[403] Charter and Laws of Pennsylvania, 305; II Votes of the
Assembly, 271; III Colonial Records, 84, June 8, 1720.
[404] III Colonial Records, 100, August 6, 1720.
[405] Charter and Laws of Pennsylvania, 386, II Votes of the
Assembly, 274.
[406] II Statutes at Large, 298.
[407] Proud’s History of Pennsylvania, Vol. II, 200.
[408] The lecture was published by the Law Academy of Philadelphia in
1868 with the register as an appendix.
[409] Rawle’s Equity in Pennsylvania, 26.
[410] Rawle’s Equity in Pennsylvania, 38, appendix 23 (1728).
[411] 3 Swanston’s Reports, 604 (1674); _Blad’s Case_, 3 Swanston’s
Reports, 603 (1673); _Denew_ v. _Stock_, 3 Swanston’s Reports, 662
(1677); _Rex_ v. _Carew_, 3 Swanston’s Reports, 699 (1682); Spence’s
Equity, Vol. I, 703.
[412] _Ellis_ v. _Ellis_, Rawle’s Equity in Pennsylvania, appendix,
34.
[413] I Pennsylvania Archives (1st Series), 442.
[414] III Colonial Records, 281, February 2, 1726-7.
[415] Smith’s History of New York, Vol. II, 24.
[416] II Colonial Records, 56, 28, 8 mo. 1701.
[417] See particularly the Pennsylvania Mercury, December 18, 1735,
and the Pennsylvania Gazette, December 24, 1735. Thomas Penn wrote to
John Penn on January 14, 1735: “The late newspapers have been filled
with arguments for and against the legality of the Court of Chancery
and some people whisper that we intend to make use of that court to
recover our arrears.” VII Pennsylvania Archives (2d Series), 166.
[418] III Colonial Records, 670, January 23, 1735-6.
[419] III Votes of the Assembly, 253.
[420] III Votes of the Assembly, 258-261.
[421] IV Colonial Records, 27, February 16, 1735-6.
[422] IV Colonial Records, 41, February 21, 1735-6. The case cited
to support their view is _Stephney_ v. _Lloyd_, Croke’s Reports
(Elizabeth), 647 (1598).
[423] Appendix to Wharton’s Edition of 1 Dallas’s Reports, 514.
[424] Penn MSS. quoted in Shepherd’s Proprietary Government in
Pennsylvania, 395.
[425] Eulogy on Chief Justice Tilghman, 16 Sergeant & Rawle’s
Reports, 448.
[426] IV Colonial Records, 37, February 19, 1735-6.
[427] III Statutes at Large, 472; VIII Pennsylvania Archives (2d
Series), 69.
[428] Lamb’s History of New York, Vol. I, 536, Vol. II, 54.
[429] 1 Dallas’s Reports, 17 (1768).
[430] 1 Dallas’s Reports, 125 (1785).
[431] 1 Dallas’s Reports, 142 (1785).
[432] September 27, 1757, V Statutes at Large, 315.
[433] March 14, 1761, VI Statutes at Large, 100.
[434] March 21, 1772, VIII Statutes at Large, 245.
[435] March 21, 1772, VIII Statutes at Large, 254.
[436] May 20, 1767, VII Statutes at Large, 122. There is an
interesting act of September 29, 1781, X Statutes at Large, 366, by
which a title was confirmed to an equitable grantee who had failed
to get a legal title, owing to the error of a conveyancer, but the
commonwealth had a direct interest in the case because the legal
title had, by the error referred to, become vested in an attainted
traitor whose lands had been forfeited.
[437] VII Statutes at Large, 382. Supplied March 24, 1818. 7 Smith’s
Laws of Pennsylvania, 131.
[438] Chapter II, section 24 of the Constitution of 1776, Proceedings
of the Constitutional Conventions of 1776 and 1790, 61; Act of
January 28, 1777, § 4; 1 Smith’s Laws of Pennsylvania, 427.
[439] 2 Smith’s Laws of Pennsylvania, 375. This act was limited to
five years, but was revived and extended to the court of common pleas
in 1793 and made perpetual by the act of February 16, 1866, P. L. 50.
[440] 2 Smith’s Laws of Pennsylvania, 500.
[441] Proceedings of the Constitutional Conventions of 1776 and 1790,
159, 301, 350, 354, 362, 364.
[442] Troubat and Haly’s Practice, chapter II.
[443] American Constitutions, 179.
[444] In _Taylor_ v. _Jolly_, Supreme Court of Pennsylvania,
September Term, 1773, Docket 6, 365, there is a rule to take the
depositions of a witness in New Jersey “before any magistrate there,”
on three weeks’ notice.
[445] This practice as well as the whole subject of lunatics and
habitual drunkards was soon afterwards regulated by the act of June
13, 1836, P. L. 592, and its supplements.
[446] Rawle’s Equity in Pennsylvania, 61.
[447] Laussat’s Equity in Pennsylvania (1826). This essay was
prepared as a student’s dissertation for the Law Academy.
[448] Report of the Commissioners to Revise the Civil Code on the
Administration of Justice, January 9, 1835.
[449] § 13, P. L. 784. Article V, § 3 of the Constitution of 1874
deprived the Supreme Court of original jurisdiction in Equity, except
in cases of injunction where a corporation was a party defendant. The
district court was abolished.
[450] Act of February 14, 1857, P. L. 89.
[451] Acts of June 13, 1840, § 39, P. L. 671, April 16, 1845, § 3, P.
L. 542.
[452] Act of April 10, 1845, § 4, P. L. 449.
[453] Act of March 17, 1845, § 3, P. L. 158, made general by the Act
of July 7, 1885, § 1, P. L. 257.
[454] _Ashurst_ v. _Iron Company_, 35 Pennsylvania Reports, 30
(1860). Act of April 11, 1862, P. L. 477; Act of May 5, 1876, P. L.
123.
[455] Act of April 26, 1855, P. L. 331.
[456] _Chester Traction Co._ v. _Philadelphia W. & B. R. Co._, 180
Pennsylvania Reports, 432 (1897).
[457] June 7, 1907, P. L. 440; _Naomi Coal Co._ v. _Moore_, 18
Pennsylvania District Reports, 616 (1908); _Harton_ v. _Hildebrand_,
57 Pittsburg Legal Journal, 129 (1909); _Kingston Coal Co._ v. _Coal
Company_, 14 Luzerne Legal Register, 267 (1909).
[458] Troubat and Haly’s Practice (edition of 1837), 55.
[459] 1 Yeates’s Reports, 2 (1791).
[460] _Read_ v. _Brookman_, 3 Term Reports (1789), where it was held
by a majority of the court that a deed might be pleaded as lost
without a _profert_.
[461] _Pidcock_ v. _Bye_, 3 Rawle’s Reports, 183 (1831) at page 195.
[462] See the cases collected in Pepper and Lewis’s Digest of
Decisions, Vol. II, col. 1632.
[463] _Haldane_ v. _Fisher_, 1 Yeates’s Reports, 121 (1792).
[464] 17 Sergeant & Rawle’s Reports, 298 (1828).
[465] _Jordan_ v. _Cooper_, 3 Sergeant & Rawle’s Reports, 564 (1818).
For an action of debt see _Huber_ v. _Burke_, 11 Sergeant & Rawle’s
Reports, 238 (1824).
[466] _Weaver_ v. _Lawrence_, 1 Dallas’s Reports, 156 (1785).
[467] 2 Sergeant & Rawle’s Reports, 461 (1816).
[468] 16 Sergeant & Rawle’s Reports, 269 (1827).
[469] Laussat’s Equity in Pennsylvania, Troubat and Haly’s Practice,
chapter on Ejectment.
[470] _Mitchell_ v. _De Roche_, 1 Yeates’s Reports, 12 (1791).
[471] _Hawn_ v. _Norris_, 4 Binney’s Reports, 77 (1811).
[472] The Pennsylvania Statute of Frauds, Act of March 21, 1772, 1
Smith’s Laws of Pennsylvania, 389, omitted the fourth section of the
Act of 29, Charles II, chapter 3, making it possible to bring an
action for damages for breach of parol contracts relating to land.
_Wilson_ v. _Clarke_, 1 Watts & Sergeant’s Reports, 554 (1841).
Lewis’s Cases on Specific Performance, 128. Pepper and Lewis’s Digest
of Decisions, Vol. 20, col. 34592.
[473] _McCullum_ v. _Coxe_, 1 Dallas’s Reports, 150 (1785). _Wheeler_
v. _Hughes_, 1 Dallas’s Reports, 23 (1776).
[474] Rawle’s Equity in Pennsylvania, 63.
[475] Laussat’s Equity in Pennsylvania, 66. Of the second class of
cases, _Pollard_ v. _Shaffer_, 1 Dallas’s Reports, 210 (1787), is an
example.
[476] 1 Dallas’s Reports, 17 (1768).
[477] _Mackey_ v. _Brownfield_, 13 Sergeant & Rawle’s Reports, 240
(1825).
[478] Rule of Supreme Court of Pennsylvania, April 10, 1775, Docket
No. 7, page 291. Section 7 of the procedure act of May 25, 1887, P.
L. 271, provides: “The pleadings in all courts to be subject to the
rules of the respective courts as to notice of special matter.”
[479] _Lewis_ v. _Morgan_, 11 Sergeant & Rawle’s Reports, 234 (1823).
Compare _Hollingsworth_ v. _Ogle_, 1 Dallas’s Reports, 257 (1788).
[480] Pepper and Lewis’s Digest of Decisions, Vol. 16, col. 27376.
[481] _Dunlap_ v. _Miles_, 4 Yeates’s Reports, 366 (1807).
[482] _Bender_ v. _Fromberger_, 4 Dallas’s Reports, 436 (1806).
[483] Act of April 13, 1807, 4 Smith’s Laws of Pennsylvania, 476.
[484] _McCutchen_ v. _Nigh_, 10 Sergeant & Rawle’s Reports, 344
(1823).
[485] _Clyde_ v. _Clyde_, 1 Yeates’s Reports, 92 (1791); _Decamp_ v.
_Feay_, 5 Sergeant & Rawle’s Reports, 323; _Moyer_ v. _Germantown
Railroad Co._, 3 Watts & Sergeant’s Reports, 91 (1841).
[486] Eulogy on Chief Justice Tilghman, 16 Sergeant & Rawle’s
Reports, 448; _Gochenauer_ v. _Cooker_, 8 Sergeant & Rawle’s Reports,
187 (1822), Gibson, J., at page 192.
[487] Opinion of Chief Justice Black in _Finley_ v. _Aitken_, 1
Grant’s Reports (Pa.), 83 (1854), at page 95.
[488] _Livezey_ v. _Gorgas_, 2 Binney’s Reports, 192 (1809). The
record of the trial will be found in Brackenridge’s Law Miscellanies,
438. See also _Barnet_ v. _Ihrie_, 17 Sergeant & Rawle’s Reports, 174
(1828).
[489] Laussat’s Equity in Pennsylvania, 136.
CHAPTER V.
In the preceding pages brief references were made to the register’s
court and orphans’ court. The rise of the latter tribunal from a
humble beginning to its present important position is sufficiently
interesting to warrant a more detailed account of its functions
and growth. However unobtrusively the work of its judges may be
performed, it should not be permitted to escape attention, for, as
Judge Duncan grimly puts it, “as sure as we descend into our graves,
so sure into this court we must come.”[490]
During the American colonial period the settlement of the estates of
decedents belonged, in England, principally to the ecclesiastical
courts. Briefly, the territory of England was divided into two
provinces, Canterbury and York, each presided over by an archbishop
or metropolitan. Each of the provinces was divided into dioceses.
With exceptions, which it is unnecessary to particularize here,[491]
the bishop of the diocese where the decedent had his last domicile
had the power to appoint the administrator and settle his accounts,
and where there was a will, it was proved before him and letters
testamentary issued thereon. When so acting, he was called the
“ordinary” and held what was called the “consistory court,” either
in person or by a deputy styled his commissary. From this court an
appeal would lie to that of the archbishop and thence to the king
in chancery, that is, to the “court of delegates,” appointed by the
king’s commission under the great seal.
Here and there were districts called “peculiars,” exempt from the
jurisdiction of the ordinary and subject to the metropolitan only.
The court of appeal of the Archbishop of Canterbury was called the
Court of the Arches, because formerly held in the church of Saint
Mary le bow (_Sancta Maria de arcubus_), and was presided over by
the “dean of the arches.” If the decedent left _bona notabilia_ or
chattels to the value of one hundred shillings in two different
dioceses or jurisdictions, then probate or administration belonged
to the archbishop, by way of special prerogative, and the matter was
cognizable in the “prerogative court” before a judge appointed by the
archbishop.[492]
Such a system was wholly impractical in America, where the principle
of an established church, even in the most loyal colonies, never
gained more than a precarious foothold. It would have met with the
opposition not only of the many sects into which the emigrants were
divided, but also with that, probably, of the common lawyers, whose
jealousy of the canonists and civilians was then at its height.
But the feeling that probate and administration were something
separate and apart from the common law was sufficiently strong in
most of the colonies to lead to the creation of separate tribunals
for the exercise of jurisdiction over decedents’ estates, and to
the retention of, at least, a supervision over such matters by the
governor and council.[493] By a law of the colony at Plymouth of 1633
wills were to be probated before the governor and council,[494] while
in Maryland in the records of the court held at St. Mary’s by the
proprietor and his council, beginning 1637, are many instances of
the grant of probate or administration as well as of the settlement
of executors’ accounts.[495] In the Massachusetts Colony probate of
wills was to be made at the county court, but by an act of 1652 two
magistrates with the recorder or clerk of the county court meeting
together were authorized to allow wills and grant administration,
reporting to the county court.[496] The charter of 1692 made the
governor and council a court of probate, although these officials
seem to have exercised their jurisdiction through the county judges,
with an appeal reserved to the governor and council as a supreme
court of probate.
As we have previously seen, the Duke of York’s laws for the
government of New York were in 1676 put in force in the settlements
on the Delaware by Governor Andros. These laws contained minute
provisions for the care of the property of decedents. Upon the
death of any person it was made the duty of the constable with two
overseers of the parish to “repair to the house of the deceased
party to enquire after the manner of his death and of his will and
testament and in case none doth appear or shall be produced, it may
be taken for granted that the person died intestate,” whereupon
security was to be taken for the care of the estate until the next
court of sessions, where all cases of probate and administration were
to be adjudged. Administration was to be granted to the widow or
children upon the entry of security and an inventory filed.
“But in case the deceased Dye without widow or Child, then the
estate, for the better improvement thereof shall be sould by order
of the Court at an Outcry, and the purchasers all puting Security,
and Acknowledging Judgment for their debt which by the Court shall
be Assigned to the several Creditors of the decendant, and paid
according to the priority of Law and the Surplusage remaining, if
any, to be delivered to the next kinsman of the descendant, if he
appears or if none prove himself such within one year and six week,
Then the Court to give an accompt of the said Surplusage to the
Governour. And when the widow or Child Administers the surplusage
after debts paid and the funerall Charges according to the quality
of the person allowed for, shall be equally divided between the
Widow and Children, viz. one third of the personall Estate to the
widow and the other two thirds amongst the Children, provided the
Eldest Sonne shall have a double portion, and where there are no
Sonnes the daughters shall Inherit as Copartners, and if any of
the Children shall happen to dye before it come to age his portion
shall be divided amongst the surviving Children.
“If any person shall renounce his Executorship or that none of the
friends or kindred of the deceased party that shall die intestate
shall seeke for Administration of such persons Estate, then the
Constable of the Town where any such person shall die, shall give
notice thereof to the next Court of Sessions; that so the Court
may take order therein, as they shall think meet, who shall also
allow such Constable due recompence for his pains. But if the
Constable shall fail therein, he shall forfeit forty Shillings to
the publigue Treasury.
“That the Clarke of the sessions when he carries the Probates or
Commissions of Administration to be signed do then also Certify
unto the recorders Office at New York, the name of the testator
or the party deceased the Executors or Administrators and their
Security, the County and Parrish where they dwelt And the Court
wherein the Administration is granted to the end that strangers and
other Creditors invested in the Estate may be the better Enabled to
find out the Records in which the accompts of the estate is entered
and be informed how they may come to their just dues.”[497]
Executors failing to probate wills and persons intermeddling with the
goods of a decedent were made liable for the debts of the decedent
whether the estate was sufficient for that purpose or not.
The conferring of probate jurisdiction upon the courts of sessions
is an indication of New England influence in the framing of the
laws. About 1686 instructions from the home government reserved
to the governor the probate of wills, after which the governor or
the secretary of the province exercised this jurisdiction, and a
department grew up in the secretary’s office known as the prerogative
court, whose jurisdiction was exercised in minor matters by local
delegates. The prerogative court was not succeeded by a court of
probate until 1778.
In the territories on the Delaware the ordinance of 1676, putting
in force the Duke of York’s laws, did not expressly concede to the
local courts the right to grant administration or probate wills,
and such matters were in the hands of the authorities at the seat
of government. A case in New Castle against a deceased person was
on April 4, 1677, continued until the “letter of administration bee
come from New York.”[498] Prior to this, the justices of the court at
New Castle, in a letter to Governor Andros, dated February 8, 1677,
giving an account of local affairs, made the following request:--
“That yo^r Honor will bee pleased soe far to Impower the Commander
Capt^n John Colier or the Court that wills may bee proved before
them and Letters of Administracon granted accordingly w^{th} ye
fees for the estates of the most part of the People in these parts
are so Inconciderable that otherwyse the Charges & Expenses of
going to yo^r honor Att New Yorke for to obtaine the same may Prove
mutch to the hinderance of such Estates.”[499]
To which the governor replied in a letter dated April 6, 1677, and
read at the court held June 8, 1677:--
“The severall Co^{rts} May att a session take proofes and security
and grant administracon of wills but if above twenty pounds to
remit the same here to the secretary’s office to bee recorded.”[500]
The court availed itself of this permission at once and several wills
were proved at this term of court. The procedure in one case will
serve as an illustration. Rebecca Eghberts, widow of Barent Eghberts,
deceased, produced the will of her husband dated October 20, 1674.
The two witnesses swore that they were present and saw the testator
sign the will. The court then granted “administration” according to
the will and directed that it be recorded. In other estates, where
the decedents died intestate, administration in the proper sense was
granted.
Under the power conferred upon William Penn in the charter of
Pennsylvania, to appoint judges, magistrates and other officers, it
was provided in the laws agreed upon in England that there should
be a register for births, marriages, burials, wills and letters of
administration distinct from the office for enrolling deeds.[501]
This provision was incorporated in the “Great Law” or body of laws
passed at Upland, December 7, 1682,[502] and Christopher Taylor was
appointed Register General for the province and territories. The
register general kept his office at Philadelphia and commissioned
deputies to act in the respective counties. Taylor, according to
Proud,[503] was a well educated Yorkshireman, an eminent Quaker
preacher and the author of several tracts in defense of their
principles. He was also a member of the first provincial council, but
did not live long to enjoy his honors, dying in the early part of
1686. His own will is No. 26 on the register.
The first will on record is that of Thomas Fream, proved, apparently,
October 10, 1682. Wills and administrations were kept in separate
volumes, as is still the practice. The first entries are brief
and informal and it probably took some time to settle the forms
and practice of the office. The following entry will serve as an
example:--
“Philadelphia in the Province of Pennsylvania 2 mo/6 1683.
“Wheras Mary Mason Relict of the deceased, John Mason did the day
of the date thereof appear before me, Christopher Taylor, Register
Gen^{ll} of the said Province, &c. desiring to take out Letters
of Administration upon the estate of the said John Mason and
having given in and attested an Inventory of the said estate with
sufficient security to pay his debts and dispose of the remainder
according to law I do by virtue of my Commission from William Penn,
Proprietary and Govern^r of the said Province and Territories grant
Letters of Administration to the said Mary Mason for the ends and
purposes aforesaid. Under my hand and the seal of my office.
“Christopher Taylor,
“Regist. Gen^{ll} (SEAL)”
William Clark, the deputy register for Kent and Sussex counties, had
served as a justice in the court at the Whorekills under the previous
government and became chief justice of the provincial court in 1703.
One of his entries is as follows:--
“Whereas William Darnall of the County of Kent, Marchant, did the
day of the date hereof appeare before me, William Clark, deputy
Register of the Countys of Sussex and Kent in the territories of
the Provience of Pensilvania; and desireth as princable Creditor
to take out Letters of Administracon upon the estate of Andrew
Stocker, deceased, And haveing Given me Good and sufficient
securiety to bring in unto me a true inventory of the estate that
the said Andrew Stocker dyd possessed of within one moneth after
the date hereof soe fer as the same shall com to his knowlidge And
also to pay his debts soe fer as the Estate will extend and dispose
of the Remayner According to Law, I doe therefor by the authority
of William Penn, Proprietary and Govern^r of the Provience of
Pensilvania and the Territories thereunto belonging & by commicon
from Christopher Taylor, Register General of the provience of
Pensilvania and the Counties of Sussex and Kent Grant Letters of
Administracon to the said William Darnall for the ends and purposes
A for said. Given under my hand and seale of my office the 18th day
of mo/7 In the year of our Lord according to the English account
1683.
“William Clark.”[504]
In the same volume are recorded inventories of estates as well as
records of births, deaths and marriages. The following is curious:--
“These are to give notice unto all persons whatsoever that there
is a Marriage shortly intended to be solmonized Betwene Abraham
Westron, widdower, and Mary Smith, widdow, if any person have
anything justly to object wherefor the said parties should not be
Joyned together in marriage Let them Give in there Exceptions unto
me to the end that the same may be prevented or elce forever after
to be silant in that case, dated at Lewis the 5 day of the mo/8
1683.
William Clark.”
During its existence the office of register general was held by men
of importance, including Governors Blackwell, Markham, Evans and
Gookin, who probably kept it themselves on account of the fees, while
among the deputy registers were Patrick Robinson and David Lloyd
whose activities in political and legal affairs have been referred to
before.
The duties of the register general and his deputies were not
defined by legislation until the passage of the Act of January 12,
1705,[505] an elaborate measure relating to the probate of written
and nuncupative wills. This act in its last section provided for the
appointment of the register general by the governor and required
him to keep an office at Philadelphia and appoint deputies for the
other counties, as had been the practice. All of these officers were
required to give bonds for the faithful performance of their duties,
which were to be recorded in the orphans’ court and to be for the use
of parties aggrieved.
Failure to keep these positions filled seems to have caused
dissatisfaction, for an act was passed June 7, 1712,[506] which,
after reciting that “no register has been commissioned and deputies
constituted in each county as the act (of 1705) directs,” goes on
to enact that in case of the removal of the register general by
death, or otherwise, another fit person should be commissioned within
three weeks; that if the governor failed to act, the agents of the
proprietor should appoint, and if they too failed, the judges of the
common pleas of Philadelphia should make the appointment. Governor
Gookin thought that two months’ time was little enough to appoint the
officer, and that the office should be kept at Philadelphia for the
whole province, for the greater security of the public. The distance,
he said, was no objection, for it was well known that people in
England traveled much farther on such occasions.[507] Nevertheless he
finally agreed to the bill which became a law and was approved by the
queen in council February 20, 1713-4.[508]
In this statute it was also enacted--
“That where objections are made or caveats entered against the
proving of any will or granting letters of administration, and
where there is or shall be occasion to take the final accounts of
executors or administrators, or make distribution of decedents’
estates, the register-general and his deputies, respectively,
shall, in every such case, call to their assistance two or more of
the justices of the said court of common pleas for the county where
they are concerned, who are hereby empowered and required to give
their assistance accordingly to decide the said caveats and matters
in controversy, settle the said accounts, make distributions, and
do all such other judicial acts as do or shall belong or ought of
right to be done by any person or persons having power by law to
take probate of wills and grant administration.”[509]
This is the origin of the register’s court, as to which more will be
said hereafter. It will be noticed that the act seems to contemplate
the taking of accounts of executors and administrators before this
court, but this jurisdiction, if ever exercised, must have been very
limited, for the orphans’ court already had jurisdiction of such
accounts in cases of intestacy[510] and where the interests of minors
were involved, a jurisdiction defined and amplified by an act passed
in the following year.[511] When, more than one hundred years later,
the act of 1712 was invoked as authority for an attachment issued
by the register’s court to compel an administrator to account, the
supreme court in discharging the prisoner on a writ of habeas corpus
said, per Tilghman, C. J.:--
“This law has never been expressly repealed, and so far as concerns
caveats, it has been always in force. But the final settlement
of the accounts of executors and administrators, and making
distribution of the estates of intestates, having been expressly
given to the Orphans’ Court by the Act of 27 March, 1713, the
jurisdiction of the Register’s Court, on these subjects, has been
supposed to be taken away by implication, and for a long course
of time the practice has been to settle final accounts in the
Orphans’ Court and not in the Register’s Court. * * * We are of
opinion, that at the time of the adoption of this constitution, the
Act of 1712, so far as concerned the final settlement of accounts
of executors and administrators, was not in force, being either
repealed by implication or obsolete.”[512]
As a matter of fact the Orphans’ Court Act of 1713 was introduced
in the assembly on February 10, 1712, and passed on the sixteenth
of the same month, before the register’s act, but was held over
by the governor, as too important to be hurried, and submitted to
Judge Mompesson for his opinion. The judge returned the bill to the
governor March 25, 1713, with several proposed amendments. To these
the assembly refused to accede and the governor, considering the
amendments not essential, agreed to the passage of the bill, which
became a law on March 27, 1713.[513]
During the administration of Governor Fletcher the council heard an
informal appeal from the probate of a will by Markham, as appears in
the minutes of the council for June 5, 1694.
“His Excellie BENJAMIN FLETCHER.
“Wm. Markham, Esq^r., Leiv^t Governo^r.
And^r Robeson, }
pat. Robinson, } Esq^{rs}. Wm. Clarke, } Esq^{rs}.
Wm. Salway, } Geo. forman, }
“His Excellie Having ordered the Hearing of what might be offered
ag^t the will of peter de buc, deceased, and severall things being
offered by sundrie persons, wherein they seem to insinuate there
was fraud and Collusion in the making thereof, His Excellie did,
upon hearing therof, dismiss the people, and desired the Councill
to give their opinions upon the whole matter, Whether or not the
will, which was proved befor the Leiv^t Governo^r, Can be allowed
or not; Which being putt to the vote amongst the members of
Councill, was caried in the affirmative, & his Excellie did allow
yrof.”[514]
The care of the persons and property of orphans was a subject that
seems to have particularly appealed to the philanthropic founder of
the commonwealth. In England, the lord chancellor was the supreme
guardian of all infants and the conduct of both guardian and ward
was within the controlling jurisdiction of chancery.[515] As we have
already seen, that court was not in favor with Penn or his fellow
colonists, and, in respect to this branch of its jurisdiction, they
were lucky enough to establish a substitute founded on precedent and
successful in operation, the orphans’ court.
The name as well as the early jurisdiction of this court was borrowed
from the Court of Orphans of the city of London.[516]
“It has been resolved,” says Bohun,--
“That there hath been a Court of Orphans time out of mind in
London; and that there hath been a Custom, if any Freeman or
Freewoman die, leaving Orphans within age unmarried, that the said
Court have had the custody of their Body and Goods: And that the
Executors and Administrators have used, and ought to exhibit true
Inventories before them; and if any Debt appear due, to become
bound to the Chamberlain to the use of the Orphans in a reasonable
Sum to make a true Account upon Oath of them, after they have been
received and if they refuse, to commit them till they will become
bound; and this was adjudged to be a reasonable Custom.”[517]
The court, it is further said, was held before the lord mayor and
aldermen of the city of London. The common sergeant of the city took
the inventories and accounts, while all securities for the orphans’
portions were taken in the name of the city chamberlain. The court
could commit the custody of an orphan to such person as they thought
fit, even when the father had devised the custody, and if any person
married an orphan without the consent of the court, such person might
be “fined by them according to the Quality and Portion of the Orphan;
and unless such Person do pay the Fine, or give Security to pay it,
the Court may commit him to Newgate, to remain there till he submit
to their Orders.”
Upon the death of a freeman the widow or executor was summoned to
bring in an inventory and appraisement, and when the inventory was
so exhibited, the executor was bound either to pay the money due the
orphans into the chamber of London, where interest was allowed, or to
find security by bond or recognizance to pay the amount due. When the
orphans came of age or married, with the consent of the court, they
were brought into court with a person to prove their age and there
acknowledged satisfaction for their respective portions.
Although somewhat paternal, according to our view, the system was an
undoubted privilege when compared with the burdensome incidents of
feudal wardship, and, even in 1682, when wardship had been abolished
over twenty years,[518] the citizen preferred his own court, to
chancery, with its aggravating delays and extortionate fees. Once
indeed, the city fathers betrayed their trust. King Charles II
succeeded in obtaining from the city a loan of the orphans’ moneys,
paying interest thereon until 1671, when he closed the Exchequer
“and thereby became not only Bankrupt himself, but occasioned the
Chamber of the said City to be so also: whereby many Thousand of
City Orphans (_heu Pietas Regum!_) were reduced to misery and
want,”[519]--a wrong that remained unredressed until the reign of
William and Mary.[520]
At the second session of the legislature under the proprietorship of
Penn, March 10, 1683, it was enacted--
“That the Justices of each respective County Court, shall sitt
twice every year, to inspect and take Care of the Estates, usage,
and Employment of Orphans, which shall be called The Orphans’
Court, and sitt the first third day of ye week, in the first and
eighth month yearly; That Care may be taken for those, that are not
able to take care for themselves.”[521]
The same assembly also provided that executors and guardians should
give bonds and--
“If any man shall refuse this honest Care and Charge in the
government, Unless hee hath five children to take care of, or is
already executor to one Will or hath persons nearer related to
him, who in all likelihood will impose that Charge upon him; hee
shall be fined at the Discretion of the Governor and Provincial
Council.”[522]
Whether this court was suggested by Penn himself or by one of his
followers the minutes of the council do not show. But, at any rate,
the idea commended itself to the proprietor, for he mentions it in a
letter to the Free Society of Traders dated August 16, 1683. “Spring
and fall,” he writes, “there is an orphans’ court in each county to
inspect and regulate the affairs of orphans and widows.” In fact the
minutes of the Bucks County court show Penn presiding in an orphans’
court contemporaneous with if not prior to the passage of the act.
“Pennsilvania Bucks SS. At an orphans’ court held by the King’s
authority in the name of William Penn, Proprietary and Governor
of the said Province and territory thereto belonging at Gilbert
Wheelers’ for the aforesaid County, the 4th day of the first month
1683, to take account of improvements and usage of estates of
Orphans.
“Present, the Governor, William Penn, Justices--James Harrison,
Jona Otter, Wm. Yardley, Wm. Berks, Thomas Fitzwater and Phineas
Pemberton Clark.
“The next meeting held by adjournment 11, 1 mo. 1683, Present--Wm.
Penn, Governor, James Harrison and Wm. Berks, Justices.”[523]
At this time some of the business that belonged to the register
general and much that afterwards fell to the orphans’ court
was transacted in the provincial council. In several instances
administrators were appointed.[524] One estate that seems to have
given some trouble was that of Christopher Taylor, the former
register. It appeared that he had named the proprietor and another
as his executors, both of whom were absent at the time of his death.
Administration was refused to the son as contrary to the intention
of the will and a temporary administrator was appointed, who was to
account to the executors or the council.[525]
The most frequent applications to the council were those for the
sale of land for the payment of decedents’ debts. Penn in the laws
agreed upon in England had incorporated a provision that lands and
goods should be liable for debts except where there was legal issue
and then all the goods and one third of the land only,[526] which
provision was incorporated in the Act of December 10, 1682.[527] The
orphans’ court was by the Act of 10, 3 mo., 1688, empowered, with
the approval of the governor and council, to permit the widow or
administrator to sell lands to defray debts, educate the children,
support the widow and improve the remainder of the estate.[528] After
passing through minor changes of form this act was supplied by the
Act of November 27, 1700,[529] which gave the jurisdiction to the
orphans’ court without the intervention of the council. This act was
disapproved by the queen, on the advice of the attorney general, as
not sufficiently protecting marriage settlements and the interests
of the children,[530] but the same provisions were incorporated in
the intestate Act of January 12, 1705,[531] in terms carefully framed
to meet these objections and the act became a law. It is interesting
to note that what was perhaps the first order of sale for debts was
verbal, as would appear from the following extract from the minutes
of the council:--
“The Petition of Mary Mason, Widdow, was Read; Requesting y^e
Councill to Confirme y^e Sale of Lotts and Lands sold by y^e
said Widdow, by y^e Gov^{rs} Verball order, to pay her Deceased
husband’s Debts, and for subsistence of herselfe and Children.
“James Harrison being prosent & attesting y^e truth of y^e Order,
and she declaring y^t y^e Land sould was y^e Citty Lotts, and
y^e Liberty Land, and but two hundred Acres out of one thousand,
and not y^e Land y^t was Improved; y^e Councill ordered a
Confirmation.”[532]
It will be noticed that the widow took the precaution to have the
verbal order confirmed. Another illustration may be given which
leaves the reader in some doubt as to the miracle proposed to be
accomplished with the fund:--
“Att a Council Held att Philad. die Lunæ, 1st July, 1700.
Present:
“WM. PENN, pro^r and Governo^r
Edw^d Shippin, Wm. Clark, Thomas Storie.
Rt. Turner, John Moll,
“Upon reading the petion of Sarah Gibbs, widdow, setting forth y^t
Her Husband Latelie dyed, Leaving her much in debt, & the charge
of a sucking child, & having nothing wherwt to pay y^e sd debts
but y^e shell of a smal house, unfinisht, & a Lott valued att 50£,
yrfor, requesting y^e Go^r & Council to allow, permitt, & authorize
her to make sale yrof, towards y^e defraying of sd debts, educaon
of sd infant & her support, according to the Laws and Customs of
sd province. Wheron Rt. turner signified y^t y^e sd allegaons wer
true, y^e circumstances qrof being to him well known.
“Itt was yrfor Ordered y^t sd Sarah Gibbs be pmitted, allowed &
authorized, & is hereby by y^e Go^r & Council pmitted, allowed &
authorized, to make sale & conveyance to anie pson qtsoever, of y^e
sd house & Lott, wt its improvments and apptenances, & to ym & y^r
Heirs & assigns for ever, towards y^e defraying her just debts, y^e
educaon & maintainance of sd infant & her owne support, according
to y^e Laws & Customs of sd province, to Hold to y^e sd pchasers
yrof & y^r heirs & assigns, & to y^r use & behoofe, in fee simple &
estate of inheritance forever.”[533]
There does not appear to have been any express statutory directions
as to the distribution of decedents’ estates in general until
June 4, 1693, when at the stormy session of that year a bill was
passed relating to the distribution of decedents’ estates, the
order of payment of debts and the disposition of the residue of
real and personal estate, all of which distributions “as well of
the Testate’s as intestate’s estate are to be made by the Register
General for the time being, within twelve months after the Decedent’s
Death.”[534] The distributees were required to give refunding bonds
to the register general. It was further provided that all executors
and guardians of persons under age should give bond to the orphans’
court. All of these provisions were substantially re-enacted in the
Acts of May 24, 1697,[535] and of November 27, 1700,[536] except that
in the latter act the distribution was to be made by the “registers
of the counties.” The last act was disapproved by the queen.
The jurisdiction of the orphans’ court, in matters of accounts, was
in some degree widened by the judiciary Act of October 28, 1701,[537]
an act which we have already seen failed to meet the approval of
the privy council. By this act the orphans’ court was not only
given jurisdiction over all executors, administrators and trustees
accountable for lands or chattels belonging to orphans or minors,
but it was further provided that those who filed inventories, gave
bond or made accounts in the orphans’ court should not be obliged to
account to the register general’s office. By the Act of January 12,
1705-6,[538] relating to intestate estates, complete jurisdiction
over the settlement of administrators’ accounts and the distribution
of the surplus after payment of debts was conferred upon the orphans’
court. By this statute, which was allowed to become a law, the
orphans’ court may be said to have finally departed from the limited
scope of its London prototype to enter upon a constantly widening
field of activities.
The act, however, which is the principal source of orphans’ court
jurisdiction is that of March 27, 1712-3,[539] passed, as stated
in the preamble, to take the place of the prior acts repealed by
the queen. It is too long to give in full, but, briefly stated, the
justices of the court of quarter sessions were empowered to hold a
court of record called the orphans’ court, with jurisdiction over
the accounts of such persons who as guardians, trustees, tutors,
executors or administrators were entrusted with the property, real or
personal, of orphans or persons under age, to see that the surety for
such persons was sufficient, to revoke their letters, if necessary,
to see that funds were invested, appoint guardians or bind the minors
out as apprentices, and upon a settlement of an account to require a
proper discharge for the accountant, “and if any person or persons,
being duly summoned to appear in any of the said orphans’ courts,
ten days before the time appointed for their appearance, shall make
default, the justices may send their attachments for contempts,
and may force obedience to their warrants, sentences and orders
concerning any matter or thing cognizable in the same courts, by
imprisonment of body, or sequestration of lands or goods, as fully
as any court of equity may or can do. Provided always, That if any
person or persons shall be aggrieved with any definitive sentence
or judgment of the said orphans’ court, it shall be lawful for
them to appeal from the same to the supreme court; which appeal,
upon security given, as is usual in such cases, shall be granted
accordingly.”
This act, with some amendments, remained in force until supplied in
1832 by the act drafted by commissioners to revise the civil code.
We have already seen that an act of September 29, 1759,[540] which
failed of approval by the Crown, appointed the judges of the common
pleas to hold the orphans’ court. This, however, was a matter of
form rather than substance, for the judges of the common pleas were
selected from the general commission of the peace and none, at this
period, was learned in the law. The dockets of the orphans’ court of
Philadelphia County, which are complete from 1719, show a long list
of worthy citizens presiding in this tribunal. The court did not
have any special president but certain justices of the peace to whom
the service was congenial usually attended its sessions. John Hill
Martin notes[541] that whenever the mayor of the city was present he
always presided, and on all other occasions the order of seniority of
justices was rigidly observed, erasures being made in the minutes to
correct errors in this respect.
The oldest docket in the Philadelphia office opens the ninth of
April, 1719, with the following justices present: Jonathan Dickinson,
Robert Assheton and Clement Plumstead. The first case is a petition
for the appointment of a guardian and these cases are the most
numerous in the early records.
There are also many petitions for the sale of land for the payment
of debts or to support minors, to partition real estate, to compel
the filing of accounts and for the appointment of auditors. At the
court held February 12, 1738, there is a petition by the widow and
executrix of Abel Cain for leave to sell “a negro woman Mumbo and
her increase” for the support of the testator’s children. The return
shows that forty pounds was realized at the sale, of which, fifteen
pounds was directed to be paid to the widow, to reimburse her for
expenditures made, fifteen pounds to be expended in purchasing
clothing for the son and putting him out as an apprentice, and the
balance was directed to remain in court until further order.[542]
The proceedings are usually by petition and answer and the judgment
of the court is entered in the form of an order. In 1738 a subpœna
was issued to an executor to appear and exhibit his account, and on
his failure to do so an attachment was awarded.[543] But ten years
later the citation is in use. Thus, on June 20, 1748, on petition
by the guardian of a minor and heir at law of a decedent averring
that the widow and administratrix had married again and was wasting
the estate, a citation was directed to the administratrix and her
husband, requiring them to appear and render an account, returnable
the tenth day of July next.[544]
The most important audit of these early days was that of the accounts
of the trustees for the sale of the lands of the Society of Free
Traders, which by an Act of Assembly of March 2, 1722-3,[545] was
referred to this court, which was also directed to hear and pass upon
all claims for a share in the funds. This society, an association
in the nature of a joint stock company, which had purchased twenty
thousand acres of land from Penn in 1681, had not proved a success,
its affairs had been neglected and at the instance of the certificate
holders and their heirs the act was passed under which its business
was wound up. The court first met for this audit on March 10, 1724,
and the meetings continued at intervals for a number of years.
It is now, of course, well settled that the orphans’ court while a
court of equity with respect to subjects within its jurisdiction,
has no general chancery powers, but only such as are derived
from statute or are necessary to make its statutory powers
effective.[546] In 1745 there is recorded a curious effort to extend
its jurisdiction. William Good, by his guardian, Ralph Assheton,
filed a petition averring that petitioner was the owner of ten acres
of land in the township of Passyunk which had “by the extraordinary
rise of the price of lands thereabouts become of considerable value;”
that one Joseph Scull, brickmaker, taking advantage of the fact that
petitioner was a minor, had entered on said land, dug pits and was
about to set up a brick yard to the damage of petitioner, pretending
that he had a lease from petitioner’s father, although that lease had
expired and contained no clause permitting him to commit waste, and
praying that the said Scull might be cited to appear and answer the
complaint and, if the facts prove true, then that Scull be restrained
from committing waste or that petitioner have such other relief “as
is agreeable to equity and good conscience.” Whereupon it was ordered
that the said Joseph Scull be served with a copy of the petition and
cited to appear and answer the same.[547] The answer filed July 29,
1745, averred that any demand William Good might have had against
the respondent for waste, damages or otherwise was not cognizable
in this court, but in the courts of common law duly constituted and
settled in said province, and further that the tract referred to
did not belong to petitioner but to his mother, who had leased it
to respondent, and that the present right and title to the same was
not to be impeached, tried and determined in this court but in the
ordinary course of law. There is no entry of a decree, and perhaps
the answer was regarded by the parties as conclusive, inasmuch as a
question of title was raised. After the closing of the governor’s
court of chancery there was no court with jurisdiction to enjoin
the commission of waste, and the attempt to persuade the orphans to
exercise that power indicates the need of such a remedy, at least to
the mind of the guardian, who was himself a justice, and to that of
the presiding judge, William Allen, afterwards chief justice of the
province.[548]
The constitution of 1776 provided that the orphans’ court should be
held quarterly in each city and county, while the Act of January 28,
1777,[549] passed for the purpose of putting into effect so much of
the provincial law as was necessary in the commonwealth, conferred
upon these courts the powers and jurisdiction which they had
theretofore exercised. By the Act of March 14, 1777,[550] registers
of wills were directed to be appointed for each county by the
general assembly and the office of register general was abolished.
The constitution of 1790 vested the appointment of registers in
the governor, but the office was made elective by the amended
constitution of 1838.[551]
By the constitution of 1790[552] it was provided that the judges of
the court of common pleas of each county, any two of whom should be
a quorum, should compose the orphans’ court thereof, and the register
of wills together with the said judges or any two of them should
compose the register’s court. By the Act of April 13, 1791,[553] the
courts were established in conformity with the constitution.
The orphans’ court, although called a court of record in the Act of
1713, was not, at first, accorded that dignity. In 1786 it was held
that the settlement of an executor’s account was not conclusive[554]
and this decision was followed in 1818.[555] In other cases there
was shown a tendency to discredit proceedings before these tribunals
which, perhaps on this very account, had become loose and irregular.
Judge Duncan in _McPherson_ v. _Cunliff_[556] gives a melancholy
picture of the careless practice; the orders written on loose
scraps of paper and deposited in untitled pigeon holes, or packed
up as useless lumber in old trunks. Nevertheless, his opinion in
that case, vindicating the authority of decrees of orphans’ courts,
checked their decline, while his criticism, added to complaints
from the bench and bar, moved the legislature in the resolution for
the revision of the civil code passed March 23, 1830, to require
the commissioners “to revise the several statutes relative to the
settlement of accounts before registers and proceedings in the
orphans’ courts, as soon as conveniently may be, and report the
same for the determination of the general assembly at their next
session.” Accordingly the commissioners made their first report to
the legislature on January 31, 1831, and presented two bills, one
relating to registers and registers’ courts and the other relating to
orphans’ courts. Upon the latter bill the commissioners observed:--
“The bill relating to the Orphans’ Court has occupied a large
share of our time and reflections. The peculiar structure of that
court, its extensive but ill-defined sphere of jurisdiction, the
magnitude of the interest upon which it operates, the uncertainty
of the code of law by which it is regulated, and its equally
uncertain and insufficient practice and process, serve to surround
with difficulties every attempt to frame a regular system for
it. So convinced are we of the arduousness of the task of
compiling a complete system, which shall embrace the constitution,
jurisdiction, powers, and practice, of this court, that had it not
been for the express directions of the legislature to report upon
it at the present session, we should probably have reserved this
subject to the last, and given it the utmost deliberation that our
limits allowed. Of the necessity however of an early as well as
thorough examination and revision of the acts of assembly relating
to this tribunal, we are fully convinced.”[557]
The bills recommended by the commissioners were enacted into laws at
the session of 1832, that relating to registers and registers’ courts
being approved March 15, 1832,[558] and that relating to orphans’
courts on March 29, 1832.[559]
Under these acts the register was given jurisdiction within the
county for which he was appointed, “of the probate of wills and
testaments, of the granting of letters testamentary, and of
administration, of the passing and filing of the accounts of
executors; administrators and guardians, and of any other matter
whereof jurisdiction may be at any time expressly annexed to his
office.”
When a caveat was filed, objection made to the granting of letters of
administration, or when any disputable or difficult matter came into
controversy, the register, at the request of any person interested,
was required to call a register’s court for the decision thereof. So
also, an appeal might be taken to the register’s court from all the
judicial acts and decisions of the register. The register’s court
comprised the register of wills and the judges of the court of common
pleas of the county or any two of said judges.
After the register had allowed and filed any account in his office,
he was required to prepare and present a certified copy thereof to
the orphans’ court at its next stated meeting and give notice by
public advertisement that said accounts would be presented to the
orphans’ court for confirmation.
The judges of the court of common pleas of each county or any two
of them composed the orphans’ court, which was declared a court of
record, the decrees of which were not to be reversed or avoided
collaterally in any other court. The jurisdiction of the court was
summarized in the act as follows:--
“The jurisdiction of the several Orphans’ Courts of this
Commonwealth shall extend to and embrace the appointment, control,
removal and discharge of guardians, the settlement of their
accounts, the removal and discharge of executors and administrators
deriving their authority from the register of the respective
county, the settlement of the accounts of such executors and
administrators and the distribution of the assets or surplusage of
the estates of decedents, after such settlements among creditors
or others interested in the sale or partition of the real estate
of decedents among the heirs, and generally to all cases within
their respective counties, wherein executors, administrators,
guardians or trustees are or may be possessed of or undertake the
care and management of, or are in any way accountable for any real
or personal estate of a decedent, and such jurisdiction shall be
exercised in the manner hereinafter provided.”[560]
No account of an executor, administrator or guardian was to be
confirmed and allowed by the court unless advertised by the register
of wills as provided in the prior act and all accounts, except
partial accounts by guardians, were to be examined by the court or
referred to auditors, unless otherwise agreed by all parties in
interest. These provisions were adopted to compel a more thorough
audit of accounts. Under the prior practice the settlement of
accounts in the register’s office was generally a perfunctory matter
and no more than a mere vouching of the items of the account, while
the confirmation in the orphans’ court was largely a matter of form.
A reform in these matters was absolutely necessary if the decrees of
the orphans’ court were to be made conclusive. Finally the practice
and process of the orphans’ court were defined and strengthened.
Writing in 1847, Mr. Hood observed:--
“The orphans’ court, as at present constituted, is a court of a
peculiar nature both as respects its jurisdiction, powers, and
the forms of its proceedings, partaking of the characters of a
court of common law, a court of equity, and an ecclesiastical
court. The process of the orphans’ court would seem, in some
respects, to resemble that of the English ecclesiastical courts,
whose proceedings are regulated according to the practice of
the civil and canon law; or rather according to a mixture of
both collected and new-modelled by their own particular usages
and the interpretation of the courts of common law. It was this
establishment of the civil law process in the ecclesiastical courts
that made a coalition impracticable between them and the national
tribunals of England. The act of 1832 has remodelled the forms of
proceeding in the orphans’ court, making them approximate more
nearly to the common law. Hence, in the orphans’ court practice,
are found the _motion_, _rule_, _fieri facias_, and _subpœna_
of the common law courts, the _petition_ of chancery, and the
_citation_ of doctors commons; and mingled with them, the _order_,
_decree_, and _sequestration_ derived through these equity and
ecclesiastical tribunals, from the civil and canon laws. In one
respect the orphans’ court may be said to be of a higher nature
than the court of chancery and the ecclesiastical courts of
England: for the court of chancery, when proceeding by subpœna, is
not a court of record, nor are the ecclesiastical tribunals, courts
of record.”[561]
Under the Act of 1832, and some additional acts relating to
decedents’ estates subsequently passed on the recommendation of the
commissioners, the orphans’ courts reached their full dignity as
courts of record and have justified their creation by a long career
of usefulness. The confidence of the community has been further
marked by the extension of their jurisdiction in numerous cases as,
for example, under the Price Act.[562] To fully describe the powers
of the court would exceed the limits of this chapter and indeed
open up the whole subject of orphans’ court practice, a matter
that has been thoroughly discussed in several text books.[563] It
is necessary, however, to refer to certain changes brought about
by the constitution of 1874 which abolished the register’s court
and conferred its jurisdiction on the orphans’ court, provided for
the establishment of separate orphans’ courts in counties having a
population exceeding one hundred and fifty thousand, and directed
that all accounts filed with the register of wills, as clerk of a
separate orphans’ court, should be audited by the court without
expense to the parties, unless the parties themselves nominated an
auditor.[564]
These changes have proved most beneficial. The registers’ court was
unnecessary and was wisely abolished, while the creation of separate
orphans’ courts in the larger communities has been particularly
advantageous in furnishing to the judiciary of the state a corps
of experts, specially trained in the handling of those difficult
and intricate problems arising out of the devolution of property by
death. The name of the court today indicates but a small part of its
functions, but is an historic illustration of the way in which great
institutions sometimes grow from small beginnings.
FOOTNOTES:
[490] _McPherson_ v. _Cunliff_, 11 Sergeant & Rawle’s Reports, 431
(1824).
[491] Williams on Executors, Part I, Book 4, chapter 1.
[492] Blackstone’s Commentaries, Vol. II, 590, Vol. III, 64.
[493] Article on Wills by L. M. Dagget in Two Centuries’ Growth of
American Law, 167.
[494] Laws of the Colony of New Plymouth (Edition of 1836), 32.
[495] Maryland Archives, Judicial and Testamentary Business of the
Provincial Court, 12.
[496] Laws of the Colony of Massachusetts (1672), 157.
[497] Charter and Laws of Pennsylvania, 5, 6.
[498] Records of the Court of New Castle, 74.
[499] Records of the Court of New Castle, 66.
[500] Records of the Court of New Castle, 98.
[501] Charter and Laws of Pennsylvania, 101.
[502] Charter and Laws of Pennsylvania, 119.
[503] Proud’s History of Pennsylvania, Vol. I, 236.
[504] Sussex County Records, MSS. Historical Society of Pennsylvania.
For similar entries, see Turner’s Sussex County Records, 133.
[505] II Statutes at Large, 194; II Colonial Records, 238, January
12, 1705.
[506] II Statutes at Large, 421.
[507] II Colonial Records, 576, May 27, 1712.
[508] II Statutes at Large, 541.
[509] II Statutes at Large, 423, § 3.
[510] Act of January 12, 1705, II Statutes at Large, 199.
[511] Act of March 27, 1713, III Statutes at Large, 14.
[512] _Commonwealth_ v. _Brady_, 3 Sergeant & Rawle’s, 309 (1817).
[513] Charter and Laws of Pennsylvania, 302.
[514] I Colonial Records, 407, June 5, 1694.
[515] I Blackstone’s Commentaries, 463.
[516] _Wimmer’s Appeal_, 1 Wharton’s Reports, 102 (1836). The court
of the burgomaster and schepens of the city of New York acted as an
orphans’ court during the Dutch period. To relieve the court of this
work Stuyvesant created a separate court of orphan masters, which
ceased to exist when the colony passed into the hands of the English.
Scott’s History of the Courts of New York (1909), 40; Records of the
Court of New Amsterdam, Vol. II, 341. There is no evidence, however,
that this court influenced Penn in establishing orphans’ courts in
Pennsylvania.
[517] Bohun’s Privileges of London (Edition of 1723), 314.
[518] Act of 12 Charles II, chapter 24 (1660).
[519] Bohun, 336.
[520] Act of 5 and 6 William & Mary, chapter 10.
[521] Charter and Laws of Pennsylvania, 131.
[522] Charter and Laws of Pennsylvania, 142.
[523] Address of Peter McCall, Esq., before the Law Academy (1838).
[524] I Colonial Records, 39, 20, 12 mo. 1683; I Colonial Records,
62, 18 4 mo. 1684.
[525] I Colonial Records, 137, 5, 5 mo. 1686; 138, 6, 5 mo. 1686;
143, 21 September, 1686.
[526] Charter and Laws of Pennsylvania, 100. See page 28, _supra_.
[527] Charter and Laws of Pennsylvania, 120, 181.
[528] Charter and Laws of Pennsylvania, 180; I Colonial Records, 176,
12, 2 mo. 1688.
[529] II Statutes at Large, 51.
[530] II Statutes at Large, 494.
[531] II Statutes at Large, 199, §§ 3, 4.
[532] I Colonial Records, 103, 16, 7 mo. 1685.
[533] I Colonial Records, 552, July 1, 1700.
[534] Charter and Laws of Pennsylvania, 231; I Colonial Records, 390,
May 31, 1693.
[535] Charter and Laws of Pennsylvania, 261.
[536] II Statutes at Large, 31, § 3.
[537] II Statutes at Large, 148, § 8.
[538] II Statutes at Large, 199.
[539] III Statutes at Large, 14.
[540] V Statutes at Large, 462.
[541] Martin’s Bench and Bar of Philadelphia, 66.
[542] Orphans’ Court Docket No. 2, page 78.
[543] Orphans’ Court Docket No. 2, pages 59, 93.
[544] Orphans’ Court Docket No. 3, page 53.
[545] III Statutes at Large, 345.
[546] _Brinker_ v. _Brinker_, 7 Pennsylvania Reports, 53 (1847);
_Steffy’s Appeal_, 76 Pennsylvania Reports, 94 (1874); _Kidder’s
Estate_, 1 Kulp’s Reports, 412 (1875).
[547] Orphans’ Court Docket No. 2, page 176.
[548] By the Act of May 19, 1874, P. L. 206, § 7, the orphans’ court
has power to prevent by order, in the nature of an injunction, acts
contrary to law or equity prejudicial to the property over which they
have jurisdiction. See Pepper and Lewis’s Digest of Decisions, Vol.
15, col. 24472.
[549] IX Statutes at Large, 29; 1 Smith’s Laws of Pennsylvania, 429.
[550] IX Statutes at Large, 68; 1 Smith’s Laws of Pennsylvania, 443.
[551] Article V, § 11, Constitution of 1790; Article VI, § 3,
Constitution of 1838.
[552] Article V, § 7, Constitution of 1790; 3 Smith’s Laws of
Pennsylvania, page xxxix.
[553] 3 Smith’s Laws of Pennsylvania, 28.
[554] _Marriot_ v. _Davey_, 1 Dallas’s Report, 164 (1786).
[555] _Kohr_ v. _Fedderhaff_, 4 Sergeant & Rawle’s Reports, 248
(1818).
[556] 11 Sergeant & Rawle’s Reports, 422 (1824). So far as
Philadelphia County is concerned the orphans’ court records are in a
better state of preservation than those of the other courts.
[557] First Report of the Commissioners to Revise the Civil Code
(1831).
[558] P. L. 135.
[559] P. L. 190.
[560] Section 4 of the Act of March 29, 1832, P. L. 190.
[561] Hood on Executors, 103.
[562] Act of April 18, 1853, P. L. 503.
[563] Scott on the Intestate System of Pennsylvania, Rhone’s Orphans’
Court Practice, Brewster’s Orphans’ Court Practice. Pepper and
Lewis’s Digest of Decisions, Vol. 14, col. 24234.
[564] Article V. § 22, Constitution of 1874; see appendix.
CHAPTER VI.
In tracing the early history of the judicial proceedings by which
roads and streets are laid out and opened in Pennsylvania, the common
law of England lends little assistance. The physical conditions in
colony and mother country were so radically different as to afford
little analogy in matters of local or municipal regulation. In
England, at the time of the settlement of the province, the country
was traversed in every direction, from town to town and village to
village, by ways so well defined by custom and so well established
by reputation, that a complaint of want of thoroughfare was
uncommon.[565] In Pennsylvania, as in the other colonies, the opening
of roads for public travel and for the transportation of commodities
was an immediate and pressing economic necessity.
The science of road construction was still in its infancy and
throughout England roads were, during the seventeenth and eighteenth
centuries, in a deplorable condition. In the first year of the reign
of Queen Anne, Charles III of Spain visited England. His experiences
on the road between Portsmouth and Petworth in Sussex are thus
related by one of his suite:--
“We set out at six in the morning by torchlight to go to Petworth
and did not get out of the coaches (save only when we were
overturned or stuck fast in the mire) till we arrived at our
journey’s end. ’Twas a hard service for the Prince to sit fourteen
hours in the coach that day without eating anything, and passing
through the worst ways I ever saw in my life. We were thrown but
once, indeed, in going, but our coach (which was the leading one)
and his Highness’s body coach would have suffered very much if the
nimble boors of Sussex had not frequently poised it or supported
it with their shoulders from Godalming almost to Petworth; and
the nearer we approached the Duke of Somerset’s house the more
inaccessible it seemed to be. The last nine miles of the way cost
us six hours to conquer them: and indeed we had never done it if
our good master had not several times lent us a pair of horses out
of his own coaching, whereby we were enabled to trace out the road
for him.”[566]
So Defoe, in a letter written in 1722, remarks:--
“Going to church at a country village not far from Lewes, I saw an
ancient lady--and a lady of very good quality I assure you--drawn
in her coach to church with six oxen; nor was it done in frolic or
humour, but mere necessity, the way being so stiff and deep that no
horses could go in it.”[567]
Few roads were more than bridle paths and a journey for any distance
from home was a serious undertaking, that commonly meant the inditing
of a last will and testament and the settlement of one’s worldly
affairs. A country gentleman when traveling alone at this time
usually adopted the plan called riding post; that is, he hired at
each stage two horses and a postboy, who carried the portmanteau
behind him and rode back when fresh horses were required.
With the physical conditions thus, it is not surprising that the
road law of the country was that of the feudal period, except
as affected by special turnpike acts. Three kinds of ways were
recognized--footways, horseways and cartways. In the language of
Coke:--
“There be three kinds of wayes whereof you shall reade in our
ancient bookes. First a footway, which is called iter, quod est jus
eundi vel ambulandi hominis; and this is the first way. The second
is a footway and horseway, which is called actus ab agendo; and
this vulgarly is called packe and prime way because it is both a
footway, which was the first or prime way and a packe or drift way
also. The third is via or aditus which contains the other two and
also a cartway etc. for this is jus eundi, vehendi et vehiculum
et jumentum ducendi: and this is two fold, viz: regia via, the
king’s highway for all men, et communis strata, belonging to a
city or town or between neighbors and neighbors. This is called in
our bookes chimin, being a French word for a way, whereof cometh
chiminage, chiminagium or chimmagium, which signifieth a toll
due by custome for having a way through a forest, and in ancient
records it is sometimes called pedagium.”[568]
Another classification divided ways into: King’s highways, that is,
public passages for the king and his subjects; common ways or such as
led from a village to the parish church or common fields, and were
for the benefit of the particular inhabitants of the locality; and
private ways, where particular individuals had a right of passage
through certain land.
The right to a public highway usually rested on an act of parliament,
express grant, dedication, or was claimed by prescription, and, as
already stated, complaints of want of thoroughfare seldom arose. If
it became necessary to deviate from an existing way the new route did
not become a public highway without a writ of _ad quod damnum_ and
inquisition. This was an ancient writ issued out of and returnable
into chancery through the petty-bag office and was directed to the
escheator or sheriff, who was commanded to hold an inquisition to
determine what damage would result to the king or his subjects
from the grant so that compensation could be made a condition
thereof.[569] Without this writ the public could not justify going
over a new way, as a common highway, but were obliged to show their
excuse specially.[570] If the purpose was to change an old way or
alter its condition, the new way, or way so altered, was required to
be as beneficial as the old one.[571] “These inquests of office,”
says Blackstone, speaking generally of sheriffs’ and coroners’
inquisitions, “were devised by law, as an authentic means to give
the king his right by solemn matter of record without which he, in
general, can neither take nor part from anything. For it is of the
liberties of England and greatly for the safety of the subject, that
the king may not enter upon and seize any man’s possession upon bare
surmises without the intervention of a jury.”[572]
The obscurity of the practice and infrequency of reported cases
shows that _ad quod damnum_ proceedings never played an important
part in highway law. The writ contained great possibilities, and,
with a simplified procedure, might have become a useful vehicle for
accommodating the conflicting interests of the public and the land
owner, had road matters been of importance in the flourishing days
of petty-bag jurisdiction. But in those times the ancient ways were
sufficient for the needs of the public, and where new roads were
formally opened, they were usually either dedicated by the land
owner or laid out over unimproved lands without compensation. When
the pressure for highway improvements became greater a statutory
proceeding more convenient and inexpensive was substituted for the
ancient writ, preserving, however, the spirit and substance of the
earlier procedure.[573] In some of the American states, notably in
Virginia and Kentucky, the writ _ad quod damnum_ was introduced and
applied in proceedings for the erection of mill dams on streams, and
extended to other matters involving injury to and appropriation of
private property.[574]
It was about the time of the settlement of the colonies that eminent
domain as a distinct branch of governmental power began to be
discussed, although it had long existed as a necessary attribute of
sovereignty. Grotius, in 1625, first used and apparently originated
the phrase which, although open to criticism, in so far as it implies
that the basis of the power is an ultimate ownership in the state
of all property, has been universally adopted as defining the power
inherent in a sovereign state to take or authorize the taking of
private property for public use.[575] But in the seventeenth and
eighteenth centuries the practical application of the principle and
its relation to the constitutional restraints on state action had not
been worked out.[576]
The period of Dutch supremacy was not marked by any special activity
in road improvements. The colonists on both the North and South
Rivers were scattered in villages along the banks and transportation
was usually by water. The laying out of such highways as were needed
came under the jurisdiction of the schout and schepens, while the
streets of the capital were under the immediate supervision of the
chief officials.[577] Thus an ordinance of the director and council
of New Amsterdam of February 25, 1656, approves a survey of the
streets of the city and refers the execution to the burgomasters,
who are to give notice to all persons, who may be damaged by the
survey, to furnish a statement of their damages, and if an agreement
cannot be reached, the matter is to be referred to two or three
disinterested persons who are to appraise the lots.[578] Various
regulations were adopted as to the use of the village streets, one of
which may be quoted at length:--
“Ordinance of the Vice Director and Commisaries of Fort
Orange Passed 10 December 1659. The Worshipful Commissary and
Commissionaries of Fort Orange and Village of Beverswyck, having
heard divers complaints from the Burghers of this place, against
playing at Golf along the streets, which causes great damage to
the windows of the Houses, and exposes people to danger of being
wounded, and is contrary to the freedom of the public streets;
therefore their worships, wishing to prevent the same, forbid all
persons playing Golf in the streets, on pain of forfeiting fl. 25
for each person who shall be found doing so.”[579]
That some of the good people of Albany were devoting their time
to golf at this period, is more surprising than that their
fellow-townsmen objected to the use of the streets as links.
Upon the conquest of the New Netherlands by the English the matter
of highway regulation seems to have been neglected. There is no
mention of the subject in the Duke of York’s Laws, and this is the
more surprising in view of the fact that they were drawn largely
from New England sources where the subject of highways had received
early attention. By a law of the colony of Massachusetts passed in
1639 highways were to be laid out on complaint to the county court,
which was directed to appoint “two or three men of each next town
whose inhabitants had most occasion thereof,” and these, upon view,
were to lay out such highway according to order and make return to
the next court, compensation to be paid to any man damaged in his
improved ground by estimation of those who laid out the same. If the
viewers disagreed or the person was dissatisfied with the acts of the
viewers, the matter was to be referred to the county court,[580]--a
simple and effective proceeding, and hard to improve upon, as long as
the laying out of roads was regarded as a matter of local government.
In the settlements on the Delaware the opening and repair of roads
were matters within the jurisdiction of the court of sessions.
Overseers of highways were appointed who were empowered to call upon
the inhabitants for assistance in the construction and repair of
highways and bridges, and persons refusing to work on the roads were
fined by the courts.[581] The following entry appears on the minutes
of the court held at New Castle June 15, 1678:--
“It being Represented to the court y^t there is need of a highway
to come from Jan Staalcops Round Christina to this Towne of New
Castle, The court therefore ordered, that all the Inhabitants
dwelling on the North syde of Christina, from brandewyn Creeke
to the place or plantation of John Ogle, Doe with all Convenient
speede make and Cleare a good and passable Highway from y^e s^d
Staalcops house Round Christina Creeke to this Towne of New Castle,
and doe appoint for overseer thereof Mr. Abraham Man who is desired
to see the worke Effectually done.”[582]
At a court held December 3, 1679, the inhabitants were divided into
companies under designated overseers and charged with the care of
the highways in their respective districts. It was also ordered that--
“Whereas for y^e Common Good of the Country itt is found necessary
that y^e highwayes from place to place bee annually made good &
cleared Itt is therefore resolved viz^t That Every respective
overseer take care that betweene Every decem & March his part of
y^e highway bee made good & cleared, upon y^e penalty & forfeiture
of 1000 lb. of tobb if proved to be y^e fault of y^e overzeer and
if any Inhabitant resorting under the company of any overseer
shall refuse upon due notice to worke att y^e highway till it be
finisht hee to forfeit for Each such neglect 400 lb. of tobacco.
The highway to be Cleared as followeth viz^t The way to bee made
cleare of standing & Lying trees at Least 10 foot broad all stumpes
& shrubs to bee close cutt by y^e ground, the trees markt yearly on
boath sydes, sufficient bridges to be made and kept over all marshy
swampy & difficult dirty places & what ever else shall be tougt
more necessary in and about y^e highwayes afores^d.”[583]
William Penn on receiving his grant of the province of Pennsylvania,
provided in his frame of government that the governor and provincial
council should “at all times settle and order the situation of all
cities, ports and market towns in every county, modeling therein all
public buildings, streets and market places,” and should “appoint all
necessary roads and highways in the province.”[584]
In the instrument executed by Penn July 11, 1681, known as “the
conditions and concessions to the adventurers and purchasers,” it was
agreed that--
“Great roads from City to City not to contain less than forty feet
in breadth shall be first laid out and declared to be for highways
before the Dividend of acres be laid out for the purchaser and the
like observation to be had for the streets in the towns and Cities
that there may be convenient roads and streets preserved not to
be encroached upon by any planter or builder that none may build
irregularly to the damage of another.”[585]
“On the arrival of the adventurers in this country,” says Chief
Justice Shippen, “it was found very practicable to lay out streets in
one great city, which was accordingly done, but quite impracticable
to lay out the great roads or highways from city to city, as only one
city was then contemplated. But as such great roads were to be laid
out over the land of the proprietor alone and the purchasers were not
to contribute, it was at length agreed and sanctioned in lieu of the
impracticable plan settled in England, there should be an additional
quantity of land granted to each purchaser without price or rent, to
enable him to contribute without loss to such public roads as should
thereafter be found necessary for the use of the inhabitants.”[586]
The quantity of six per cent was fixed as the permanent additional
allowance for that purpose and provision was made therefor in the
Acts of November 20, 1700,[587] and of June 7, 1712.[588] Both of
these acts were repealed by the queen in council, for reasons having
nothing to do with this provision, but the custom was established,
and it is the law of this state that the owner of land taken for
the purpose of a public road, has no right to compensation for the
land itself, but only for the improvements, unless such a right is
expressly conferred by statute.[589] “The six per cent,” in the
words of Chief Justice Black, “belongs to the State and she may
constitutionally appropriate it to the use it was meant for. I speak
now of land in its natural state. Where buildings are pulled down,
or other valuable improvements destroyed in the making of a new
road, the right to compensation is guaranteed to the owner by the
constitution.”[590]
On the eighteenth of April, 1682, Captain Thomas Holme was
commissioned as surveyor general of the province and proceeded to
the Delaware, where, in the summer of that year, a site for the
city of Philadelphia was chosen and the ground laid out in streets
and lots, according to the general directions of Penn as shown on
the plan usually referred to as Holme’s map of Philadelphia.[591]
If the streets seem narrow, it must be remembered that the plan
was conceived on a liberal scale for that time. When the city was
laid out the standard width of a street in London was two perches
or thirty-three feet. Penn determined to make the streets wider in
Philadelphia, so as to prepare for future growth, and, accordingly,
established the standard of fifty feet, which is about three perches.
Market street was laid out one hundred feet wide, Broad street one
hundred and thirteen feet, Arch or Mulberry street sixty-six feet or
four perches.[592]
Penn, indeed, was determined that the city should not be cramped.
“Let every house,” he said in his instructions to the commissioners
to lay out the city, “be placed, if the person pleases, in the middle
of its plat as to the breadth way of it, that so there may be ground
on each side for gardens and orchards, or fields, that it may be
a green country town, which will never be burnt, and always be
wholesome.”[593]
In the charter of October 25, 1701,[594] erecting the town into a
city, Penn ordained that the streets of the city should forever
continue as they were then laid out and regulated, and no special
power was conferred upon the corporation to alter the plan. This,
of course, applied to the old city, extending from Vine street on
the north to Cedar (South) street on the south. The streets in the
several outlying districts were, upon their incorporation, plotted
under special acts.
In accordance with the Frame of Government, the provincial council
assumed jurisdiction of the laying out of the main highways, and the
minutes of that body are full of references to such matters. At a
meeting of the council in 1686--
“A Petition Relating to highways was Read, upon wch the Councill
agreed y^t there should be a Sett time appointed for y^e Councill
to Inspect all y^e Business relating to y^e Highways, and to Order
yt y^e Roads be Laid out in y^e most proper and Convenient Places
within this Province.”[595]
The multiplicity of their duties, however, prevented them from taking
entire charge of road cases, and by the Act of March 1, 1683,[596]
it was provided that each county court should “appoint and settle
sufficient cartways to the most convenient landing places, in their
respective counties, for public use and benefit.” A distinction was
thus made between the great provincial roads or king’s highways
and the local roads or cartways for the convenience of a special
neighborhood. This is illustrated by two resolutions of the council,
passed within a couple of months of each other. In one case the
minutes read:--
“The Petition of Henry Jones was Read, setting forth y^e badness
of the way from Moyamensin to Philadelphia. It was Referred to
y^e County Court, who it’s presumed has power to appoynt Roads to
Landing Places, to Court, & to Markett.”[597]
In the other case:--
“The Councill taking into Consideration y^e Unevenesse of y^e Road
from Philadelphia to y^e falls of Delaware.
“Agreed that Robt Turner & John Barnes for y^e County of
Philadelphia, Arth. Cook and Tho. Janney for y^e County of Bucks,
with y^e Respective Surveyrs of y^e sd Counties, meet and Lay
out a more Comodious Road from y^e broad Street in Philadelphia
to y^e falls aforesaid: y^e time when is Referred to y^e members
Nominated.”[598]
From this time on the minutes of the council contain many
references to public highways. Petitions were presented, sometimes
by individuals, sometimes by the inhabitants of a neighborhood or
township, complaining of the want of a road and praying for an order
to lay out the same; if the petition was approved, the usual practice
was to order that a warrant be directed to the surveyor general to
lay out the road. The following is a typical case:--
“Upon the memorial of the Honble, Andrew Hamilton, Esqr. Gor of the
Jersies, & post master generall, &c. to the Gor & Council, Setting
forth that it was formerlie with great difficultie that the post
could goe to Philadelphia by Land, to the great inconvenience of
Correspondence & trade, and yt for remedie whereof, & accommodaon
of Travellers, a ferry had been erected on Jersie side att a great
chairge, but that the way was not yet returned from the landing on
pennsilvania side to the king’s road, wch is about three Quarters
of a mile & easily cleared; And therefore, Requesting the Governor
& Council to approve the said road, and give the necessarie orders
for clearing it.
“Ordered, that a warrantt be directed from the Governor to
Thomas ffairman, Surveyor, To lay outt the king’s road from
dunck William’s Landing, (the nearest & most convenient yt
may be had, & Least prejudicial to the Lands and improvments
of the nighbourhood,) Into the king’s great road that Leads
to Philadelphia, and that a Return in words, of the Courses &
protracted figure thereof, be made Into the Secries office, in
order to be filed & recorded there, as a finall Confirmaon thereof.
And that the Justices of the peace for the County of Bucks, be by
the Governor requested to order the overseers of y^e Highways in
that County to make good & clear the same wt all expedion.”[599]
The return of the surveyor general is as follows:--
“By virtue of the Governor’s speciall warrant, bearing date y^e
28th day of October, 1696, to mee directed, psuant to an order
of the Govervor & Council, granted upon the applicaon of Andrew
Hamilton, esqr. Governor of y^e Jersies & post mr generall, I have
surveyed & Laid outt the king’s roade from y^e Landing of dunken
Williams, on delaware, in the Countie of Bucks & province of
pennsilvania, Beginning there at a Spanish oak att High water mark;
thence sixtie foot broad, extending North North-west on each side
the Line, dividing betwixt the Land of the sd duncken Williams &
Nathaniel Harding, Two Hundred pearches; Thence in the sd duncken’s
Land, north eightie-One degrees, westerlie fourtie pearches;
Thence north sixtie-foure degrees, westerly sixty-two pearches,
Unto the old king’s Roade which Leads to Philadelphia, & Hath been
ancientlie Surveyed & Returned.”[600]
Occasionally an order for the laying out of a road is directed to a
number of individuals, usually six, but these roads are not always
described as king’s roads, and would seem sometimes to belong to the
class of roads ordinarily laid out by the courts, which the council,
in a few instances, undertook to order, in the exercise of their
supervisory functions still undefined. In fact there are instances
where their order was for the confirmation of an old road merely,
or to settle a disagreement between the parties interested and the
viewers appointed by the county court.
An interesting case was that of Robert Wade, the owner of a tract
of land in Chester, the whole of which was taken by the grand jury
for a public landing place and open street, without Wade’s knowledge
or consent and without offering him any compensation. Upon his
protesting the justices stated that they “Seazed it for the king,”
whereupon he petitioned the council, stating--
“That the petitionr being a freeman, cannot by Law be disseized of
his freehold but by the Judgment of his 12 equalls, by a Legall
tryall, and which act of the Court has been to the petitioner’s
great Loss & damage, who is daylie threatened to have what hee
shall build on sd his Land pulled downe and throwen in the sd
creek, and therfor, requesting such remedie & redress in the
premisses as is agreeable to Justice & equitie.”[601]
The council sent to the court for a copy of the proceedings, and on
further debate it was resolved that the action of the grand jury
was unjustified and an order made that the petitioner be no further
molested in the peaceable possession of his property.[602]
This isolated attempt by the grand jury to assume the right of
eminent domain having been promptly frustrated, the real doubt as to
how the Act of 1683 was to be interpreted was resolved by a further
act defining the practice in road cases, passed May 10, 1699.[603]
This was re-enacted in almost the same language in the Act of
November 27, 1700,[604] as follows, the only substantial additions
being the clauses bracketed:--
“Section I. Be it enacted by the Proprietary and Governor, by and
with the advice and consent of the freemen of this Province and
Territories in General Assembly met, and by the authority of the
same, That all the King’s highways or public roads within this
province or counties annexed, shall be laid out by order of the
governor and council for the time being; which roads shall be
recorded in the council book, with the courses thereof, as near as
may be done.
“Section II. And be it further enacted by the authority aforesaid,
That the justices of each county court within this government
shall, and by virtue of this act have power, as often as they
find needful, in open court to order and appoint six sufficient
housekeepers of the neighborhood inhabiting near the place where
complaint is made for want of a road or cartway unto the public
road, who shall view the said place; and if the said housekeepers,
or any four of them, are satisfied that there is occasion for a
road or cartway to be laid out, according to the complainant’s or
complainants’ desire, then they shall and may lay out the same,
[in and through such convenient places as they shall think may be
least to the damage or inconveniency of the neighbors or parties
concerned, and least injurious to the settlements thereabouts;] and
of such breadth as the justices shall order and appoint, so that it
exceed not fifty feet; and shall make return thereof under their
hands to the next county court after it is laid out; and if then
and there the justices approve the same, it shall at the same court
be entered upon record, and from thenceforth be taken, deemed and
allowed to be a lawful road or cartway from that time forwards.
“[Provided, That no such road shall be carried through any man’s
improved lands but where there is a necessity for the same; and
where that appears, the respective county courts shall appoint six
indifferent men to view and adjudge the value of so much of such
improved lands as shall be taken up for the use aforesaid, and the
value thereof shall be paid to the owner of the said land out of
the respective county stock.]
“And to prevent any difference that may arise among neighbors about
roads or cartways laid out by order of the governor and council,
or any of the county courts in this government, and which are or
shall be entered upon record, either before or after the making and
publishing of this act:
“Section III. Be it enacted by the authority aforesaid, That all
such roads and cartways as before mentioned, shall be taken, deemed
and allowed to be free, open and lawful roads and cartways from the
time they are so laid out and recorded as aforesaid.”
This act was the real foundation of the system of laying out and
opening township roads in Pennsylvania. Its salient features were
the provision for the appointment of six viewers to report on the
necessity for the road before confirmation by the court, and the
further provision that, where it became necessary to carry the road
through improved lands, six viewers should be appointed to adjudge
the value of the improvements so taken, which was to be paid for out
of the county stock.
By a supplementary act of February 20, 1735,[605] the justices of the
quarter sessions were empowered, on the application of any person
for a road from the plantation or dwelling place of such person
to or from a highway, to direct a view, and if such road be found
necessary, to order it laid out, not exceeding thirty-three feet in
width, the value of the improved land taken to be paid for by the
person at whose request it was laid out, who was also to clear and
maintain the same.
The result of this legislation was to establish three kinds of
roads: (1) The great provincial roads or king’s highways, laid out
by order of the provincial council; (2) Cartways leading into public
roads, laid out by order of the justices of the county courts upon
the report of viewers, and (3) Private roads, likewise laid out by
order of the justices upon the report of viewers.[606] The last
were common roads for the use not only of the persons for whom they
were laid out but for all who should have occasion to travel to the
plantations of such persons. Some interesting information as to the
procedure may be gleaned from the minutes of the council, where
road matters were frequently under consideration. Thus, on October
7, 1737, on consideration of a petition of sundry inhabitants of
Lancaster County, setting forth the want of a high road from the
town of Lancaster to Coventry Iron Works on French Creek in Chester
County and praying for the appointment of proper persons to lay out
the same, the council granted the prayer of the petition and directed
that six persons appointed from Lancaster County or any four of them
view and lay out a high road to the division line between Lancaster
and Chester counties; that six persons appointed from Chester County,
or any four of them, there join the others and agree on the most
convenient passage over the division line and continue the road to
the terminus and that the twelve, or eight of them, make return to
the council for confirmation.[607] The duties of the viewers, it will
be noticed, were limited to their respective counties.
On March 24, 1736-7, an elaborate draft of a road from Harris’s Ferry
on the Susquehanna River to Kennison’s plantation in Chester County
was returned by the viewers, eleven of whom signed the report.[608]
A petition by some inhabitants of Chester County was presented,
objecting to the road as laid out, and praying for a review. Other
citizens supported the report, and after hearing the petitioners for
the review withdrew their petition and the road was confirmed as
laid out. Nevertheless, the parties being still dissatisfied and the
quarter sessions of Chester County being of opinion that the road
as laid out was impracticable, new petitions were presented to the
council for and against the road. After full argument the council,
finding that all the objections were to that part of the road in
Chester County, appointed six persons from that county to review the
road from the county line and make such alterations to the best of
their judgment “as may truly answer the intention of accommodating
both Country and travellers.”[609] Upon the report of the reviewers
the following order was made:--
“The Board, on due Consideration had of the said Return, and of
the Draught accompanying it, do approve, establish, & confirm the
Road aforesaid as now laid out and reviewed, agreeable to which
Return the Confirmation formerly made by an Order of Council of
the twenty-fourth day of March, 1736-7, is directed to be amended,
and the said Road is hereby declared to be the King’s Highway or
Publick Road, and It is Recommended to the Justices of the Peace
for the County of Chester, that they, at their next ensuing Quarter
Sessions, issue Directions to the Overseers of the Highways for
causing the said Road to be opened & cleared, so that it may be
rendred commodious for the Publick Service.”[610]
The foregoing record is interesting as showing the practice of
granting reviews in the case of provincial as well as county roads,
and other instances will be found in the minutes of the council.
In the case of a road laid out by the quarter sessions it was
held in 1764 that a review, though not taken notice of in the act
of assembly, had always been granted and had become a matter of
right.[611] By the Act of April 6, 1802,[612] the quarter sessions
were required to grant a review in all cases, provided the
application was made at the next court after the report had been made
on the first view. The appointment of re-reviewers is discretionary.
The Act of April 6, 1802, just referred to, was a general road law
which replaced the older legislation with greater elaboration of
detail. It, in turn, was repealed by the general road law of June 13,
1836,[613] an act, drafted by the commissioners to revise the civil
code, which embodied the previous legislation and practice in a clear
and comprehensive form. This act, with its amendments, is still in
force and is the only general road law applicable to all parts of the
commonwealth, but its operation has been greatly restricted by local
and special acts.
Briefly stated the Act of 1836 provides that the court of quarter
sessions, on being petitioned to grant a view for a road within the
county, shall appoint six viewers (since reduced to three),[614]
who, if they agree that there is occasion for the road, are to
proceed to lay out the same so as to do least injury to improved
property and also meet the desire of the petitioners. The viewers are
required to report at the next term of court, annexing a draft of
the road, stating the courses and distances and briefly noting the
improvements and, when practicable, they are not to lay out the road
at an elevation exceeding five degrees except at crossings of ravines
and streams. If the court approve the report they must direct of
what breadth the road shall be opened[615] and at the next court the
whole proceedings are to be entered of record and the road deemed and
allowed to be a public road or highway or a private road as the case
might be.
Public roads were to be kept in repair at the expense of the
township; private roads at the expense of the petitioner. Reviews
might be granted if applied for at or before the next term of court
after the report on the first view. The owner of any land through
which the road was laid out might, within one year from the opening,
petition for the appointment of six viewers to assess his damages,
who were to report to the next court the injury done, and if their
report was approved the amount assessed was to be paid out of the
county stock.
The Act of May 14, 1874,[616] following various prior local acts,
provides that the viewers appointed to lay out the road shall
endeavor to procure releases from property owners and shall assess
the damages sustained, thus combining the laying out of roads and
the assessment of damages in one view, and obviating the necessity
of a separate view for damages, except in such counties as may have
local laws inconsistent with the Act of 1874. These proceedings seem
simple enough, but a glance at the hundreds of bitterly contested
cases would indicate otherwise. Every step, in fact, has been the
subject of protracted litigation and voluminous opinions, which must
be carefully studied at every stage of this intricate game of the law.
The general road law of 1836 conferred no authority on the quarter
sessions to grant a view to widen a road or street, but this
jurisdiction was conferred by the Act of May 8, 1850.[617]
As to the vacation of roads, the Act of 1836 provided that the
quarter sessions should have power, on petition, to change or vacate
the whole or any part of a public or private road which had become
inconvenient, useless or burdensome, and to vacate and annul a road
laid out, but not opened, on petition of a majority of the original
petitioners. No authority was given to vacate a road confirmed and
partly opened, but this defect was remedied by the Act of May 3,
1855,[618] which, however, expressly excepted state roads, authorized
by special law, and streets in incorporated cities and boroughs.
The Act of May 8, 1854,[619] conferred jurisdiction on the quarter
sessions to vacate any private or public lane, alley, road or highway
whenever the same, by reason of forming of town plots or otherwise,
had become useless to the public and those having lands bounding
thereon.
Whenever the whole or a part of a road is vacated, changed and
supplied by a new one, the old road cannot be closed until the road
laid out to supply its place is actually opened and made.[620]
With the dissolution of the provincial government in 1776 the
jurisdiction of the council in matters relating to the laying out
of highways came to an end and the constitution adopted in that
year conferred no special jurisdiction in such affairs upon its
successor, the supreme executive council. As a consequence, the
great roads through the sparsely inhabited sections of the state,
where the settlers were unwilling or unable to bear the expense of
constructing such highways as the public service required, were
authorized by special acts of the legislature. Such an act was that
of September 21, 1785,[621] directing the president, or in his
absence the vice-president, in council to appoint three freeholders
as commissioners to view, survey and lay out a state highway from
Miller’s Springs in Cumberland County to Pittsburg, of the breadth of
fifty feet, and to report to the president and council, who were to
confirm the same or order a review. The highway, when so established,
was to remain a state highway and the courses and distances to be
entered in the council book. An appropriation of £2000 was made for
this enterprise. This road was in part laid out, and confirmed by the
council November 24, 1787,[622] as far as Bedford, but a review was
ordered of the other part from Bedford to Pittsburg. By a resolution
of the assembly of November 21, 1788, the council was ordered to draw
for the expenses of the review, and, accordingly, by order of the
council March 14, 1789,[623] reviewers were appointed, whose report
was confirmed September 28, 1790.[624]
Many state roads were laid out by commissioners under similar acts
and it cannot be doubted that, in the early days, such proceedings
were of use where a road was desired through several counties, whose
conflicting demands it was difficult to reconcile. But in later years
the power of the legislature was greatly abused and the constitution
of 1874 has forbidden the passage of any local or special law
authorizing the laying out, opening or altering of highways.[625]
As for the local acts containing variations from the general road
law, it would be useless to attempt to summarize them. A list of
such acts, published in 3 Pennsylvania County Court Reports, 401,
covers eight pages of small type and is really appalling. And yet
this list does not include Philadelphia County, which, prior to
the consolidation in 1854, included, besides the city proper, six
boroughs, ten incorporated districts and thirteen townships, many of
which had their own highway systems.[626]
In Philadelphia, as previously stated, the principal streets were
laid down by the surveyor general on the original town plan and no
special power was conferred on the corporation to change that plan.
The Act of April 15, 1782,[627] declared that streets theretofore
opened to public use by private persons or directed to be laid out
by the supreme executive council should be considered and deemed
public highways. The Act of March 25, 1805, empowered the quarter
sessions, on petition, to grant views for the laying out and opening
of streets in Philadelphia. This act was supplied and repealed by the
general road law of 1836, which instituted a rather cumbersome method
of summoning road viewers and was in turn repealed and supplied
by the Act of March 16, 1866.[628] The streets in the districts
first incorporated were directed by local acts to be surveyed and
laid out by the commissioners of the districts, who were required
to return a general plan (in the case of Southwark, to the supreme
executive council; in the case of Spring Garden, to the quarter
sessions)[629], which, on approval, was recorded. The subsequent
opening of the streets, so laid out, was on petition of a stated
number of freeholders to the quarter sessions. This system, with
minor modifications, was extended to the other municipalities by
local acts which will be found in Price’s Index to Local Legislation
in Pennsylvania.
Section 27 of the Act of February 2, 1854,[630] by which the various
municipal corporations in Philadelphia County were consolidated into
one city, established a board of surveyors who, by an amendment
passed in the following year,[631] were directed to cause a survey of
the city plot to be completed. By the Act of June 6, 1871,[632] the
board of surveys is empowered to examine and confirm or reject all
plans of survey or revision of plans made under direction of councils.
Streets in Philadelphia may be opened either by ordinance of councils
or by the quarter sessions. Under the Act of April 21, 1855,[633]
councils may order any street laid down on the city plan to be
opened, whenever they deem the public exigency to demand it, giving
three months’ notice to the owner. This act, it has been said, was
intended only for special cases requiring speedy action, but, as
councils are the judges as to when the exigency exists, there is
no review of their decision, and, in practice, this is the usual
method pursued. The quarter sessions has concurrent jurisdiction, by
proceedings on petition, to order the opening of a street laid down
on the city plan, but the court will not appoint viewers when the
opening of the street is so inadvisable that confirmation of a report
favorable to an opening would be withheld.[634] When a plotted street
is opened by ordinance, a jury of six viewers is appointed by the
quarter sessions to assess the damages, and if the proceedings are
begun in that court, the same viewers pass on the damages as report
on the necessity for opening. The general Act of May 8, 1889,[635]
providing that juries of view shall consist of three persons, does
not apply to juries appointed by the quarter sessions of Philadelphia
nor is the jurisdiction of that court affected by the general Act of
May 16, 1891.[636] The juries appointed to assess damages are also to
assess benefits upon the properties whose value is enhanced by the
opening, which benefits are to be collected by the city as in other
cases of municipal assessments.
While the matter is of academic rather than practical interest,
it is curious to note that proceedings might still be brought
to open streets laid down on the plans of the old incorporated
districts under the special systems prevailing in those districts,
it having been held as late as 1878,[637] that the clause in the
Act of 1813 relating to the opening of streets in the district of
Spring Garden was still in force. It is highly improbable that
such a proceeding could be carried to a successful issue, as these
acts constitute the forgotten lore of a previous generation, and
the courts are increasingly inclined to leave such matters to the
municipal authorities who must devise the means of paying for public
improvements.
As to changes of grade in Philadelphia, in section 27 of the
consolidation act there was a proviso that compensation should be
made for damage to private property resulting from any changes in the
plans adopted under that section, but this was held to apply only to
alterations and revisions of grades previously established by the old
city or other municipalities before the consolidation. Hence, a paper
change made in a grade established after the consolidation gave the
land owner no right to proceed in the quarter sessions, his remedy
being under Article XVI, § 8 of the constitution of 1874 upon the
physical change. Prior to 1891 this remedy was enforceable by action
of trespass. Since the passage of the Act of May 16, 1891, petitions
for the assessment of damages for changes of grade are assigned to
the common pleas and three viewers appointed.[638]
Space will not permit a reference to many other interesting features
in Philadelphia’s local system and in the local systems of other
parts of the state. That of Pittsburg has had an important influence
on subsequent general legislation on the subject of streets in
municipalities. By a series of acts, beginning with that of January
6, 1864,[639] authority to lay out, open and widen streets in
Pittsburg was vested in councils, with very extensive powers in
the matter of assessing and collecting assessments for benefits.
These powers, having been exercised in an arbitrary and reckless
manner, were resisted by property owners, and certain acts framed
to strengthen the hands of the municipal authorities having been
declared unconstitutional, the whole matter was thrown into great
confusion.[640] To remedy this, a series of curative acts was
passed, concluding with the Act of May 16, 1891,[641] which, while
in form and intent a general act, is but a part of the series and
manifestly intended as a blanket supplement to the others, to supply
deficiencies and confirm doubtful powers under existing legislation.
This act was held applicable to municipal corporations generally,
but does not supersede previous legislation or confer new rights,
such as the right to damages for the vacation of a public highway
which, ordinarily, does not exist unless conferred by a special law.
By reason of its many practical features the Act of 1891 may in time
become the basis of a uniform system.
Boroughs incorporated under the general borough Act of April 3,
1851,[642] are authorized to ordain and lay out streets within the
borough limits, but in boroughs incorporated prior to the general
borough act and having no special provisions on the subject in their
charters, the jurisdiction to lay out streets is in the quarter
sessions under the general road law. The Act of 1891 may be used in
boroughs as an alternative method of proceeding.[643]
The counties of Erie and Bradford have under their local acts a
system radically different from the general road law.[644] By
these acts the authority to lay out roads is vested in the road
commissioners of the townships, who may be required to view a
proposed route for a road on petition of twelve citizens of the
township. From their action any person affected may appeal to a
justice of the peace, who, if he finds there is good cause of
complaint, issues a summons to six disinterested citizens as jurors,
and the decision of the justice and jurors is reviewable only by
_certiorari_.
Article XVI, § 8 of the constitution of 1874 secures an appeal from
any preliminary assessment of damages and a trial by jury whenever
private property is taken, injured or destroyed by a municipal or
other corporation, or an individual invested with the privilege
of taking private property for public use. The Act of June 13,
1874,[645] is intended to carry this provision into effect, where no
sufficient provision for a jury trial already existed. Counties and
townships having been held not to be municipal corporations within
the Act of 1874, it was provided by the Act of May 26, 1891,[646]
that an appeal might be taken to the common pleas by any party
aggrieved by the decree of any court of quarter sessions, confirming
the report of viewers appointed to assess damages for the opening,
condemning or change of grade of any street, road or highway, for a
trial of the question of damages by a jury according to the course of
common law.
As to damages, an allusion has been made to the effect of the six per
cent allowance for roads in original grants by the proprietors or
the commonwealth. The constitution of 1790 contained no restriction
on the taking of private property for public use except that in
Article IX, § 10, it was provided that no man’s property should be
taken or applied to public use “without just compensation.”[647] A
similar provision was contained in the constitution of 1838 and is
embodied in the bill of rights to the constitution of 1874 (Article
I, § 10). Besides this, Article VII, § 4, of the constitution of
1838 provided that the legislature should not invest any corporate
body or individual with the privilege of taking private property for
public use, without requiring compensation to be made or secured
to the owner of such property. Under this clause it was held that
there was no liability for consequential injuries.[648] To remedy
this the constitution of 1874, in Article XVI, § 8, added “injured
and destroyed” to the words “property taken,” and compensation
may now be recovered in the case of any property sufficiently
near the improvement to make the injury proximate, immediate and
substantial.[649]
In assessing damages in road cases, the measure of damages, stated in
the briefest possible terms, is the difference in the market value
of the property injured before and after the improvement. Into this
labyrinth, externally so fair, it would be inadvisable to penetrate,
except to remark that, as a practical question, it is extremely
difficult to obtain expert witnesses with sufficient powers of
generalization to state a difference in market values, as a psychic
phenomenon or unrelated idea, without betraying on cross examination
the inadmissible sources from which their estimates are derived.
In response to the demand for good roads, which of late years has
become more insistent, recent legislation has been directed to the
improvement of the condition of the public highways throughout the
state. A beginning was made in the Act of June 26, 1895,[650] which
authorized the county commissioners with the approval of the grand
jury and court of quarter sessions, to cause any particular main
highway to be improved, and for that purpose to re-locate, open,
straighten, widen or alter the same, the damage to property to be
assessed by viewers. The highway when so improved is a township or
borough road, the duty of maintaining which rests on the locality.
By an amendment of April 22, 1905,[651] the county commissioners are
required first to cause to be laid out, surveyed and adopted a system
of main thoroughfares, taking into consideration the needs of all
parts of the county, a plan of such system is to be approved and
recorded and thereafter all applications to the quarter sessions for
the improvement of a road under the act are to be restricted to the
development of such system.
By the Act of April 15, 1903,[652] a state highway department was
established, with a commissioner at its head, who is authorized to
co-operate with the counties and townships in the reconstruction and
improvement of the principal highways according to the plans adopted
by the department, the cost to be apportioned and borne, sixty-six
and two thirds per cent by the state, sixteen and two thirds per cent
each by the county and township, provided that amount appropriated
for state aid shall be apportioned among the counties according
to their road mileage. Six million five hundred thousand dollars
was appropriated to carry out this act, to be expended during six
years, ten per cent of which was to be set aside for the purpose of
maintenance where the conditions warranted the affording of state aid
for such purposes. All highways constructed or improved under the
provisions of this act are to be known as State Highways.
In passing rapidly over our system of road law apologies for the
omission of much that is of interest as well as of importance are
unnecessary. The subject has reached dimensions that can hardly be
contained in a text book of reasonable size. The extraordinary number
and variety of the statutes, with the decisions interpreting them,
might drive a Bentham to despair, but has caused less inconvenience
than might reasonably be expected, for the reason that the bar of
the state is an aggregation of county bars, each familiar with the
local practice and with few opportunities to test the disadvantages
of its own, or the advantages of rival systems. Consequently no bar
sentiment in favor of uniformity and simplicity has developed, and
while there is no inherent difficulty in drafting a code, or series
of codes, which, with the repeal of all local acts, would reduce the
subject to order, local prejudices and conservatism would probably
oppose such a movement. Minor reforms suggest themselves. The
assignment of road cases to the quarter sessions, in accordance with
colonial tradition, possesses no advantages, and is contrary to the
modern tendency to confine the activities of that court to criminal
matters.
As appeals from awards of viewers to the common pleas for a jury
trial are the rule rather than the exception, the proceedings should
have their inception in the latter court, as in change of grade
cases under the Act of 1891. There is no reason why six viewers
should be appointed to assess damages for the opening of streets
in Philadelphia, when three are sufficient in change of grade
cases, except to gladden the hearts and replenish the purses of the
additional jurors. The method of presenting testimony as to values
by expert witnesses is far from satisfactory, but that difficulty
belongs to the law of evidence and is not confined to road cases.
Time may improve our roads and our road laws, but for the present no
attorney delighting in the sharp points of the law need mourn for a
field for his talents.
Criticism is frequently leveled at the adventitious growth of our
law, at its want of system, its atavistic tendencies. But is this not
true of other sciences as well? Can we not detect traces of folklore
in religion, of magic in medicine? The deeper the foundations of a
science the more securely is it buttressed by the rubbish of the ages.
Communities do not grow according to preconceived plans, nor does
progress necessarily point to a prison lockstep march toward a
Utopia of automatic activities. But in law, as in other sciences,
there must be periodic revision of the accumulated material,
otherwise the principles of social conduct will be lost sight of in
a mass of unrelated and arbitrary rules. Statutes that are obsolete
should be repealed, conflicting statutes reconciled, and ambiguous
statutes restated. Local and special provisions that really serve no
useful purpose should, in the interest of orderly administration, be
replaced by general acts.
The present state of the statute book, representing as it does the
accumulations of two centuries, is far from creditable to a community
that claims to be progressive, and should be subjected to systematic
revision, if only for the sake of clearness. The responsibility for
this condition does not rest wholly upon the bar nor, in fact, upon
any one class in the community. It results from the rapidity of
our material development and the recurring necessity for immediate
legislation, coupled with a fallacious belief in new statutes as
a panacea for all the ills of the state. The disinclination to
revise what has already been enacted is in part the result of an
inherited conservatism, an unwillingness to tamper with what is
written although imperfectly understood. Purely selfish interests,
too, may unite to disfigure or destroy a well conceived plan for
the unification of a branch of the statute law, as happened at the
legislative session of 1909 when the proposed school law was cut to
pieces to satisfy conflicting local claims.
Since the days of Bradford and Franklin the commonwealth has relied
on private enterprise for compilations and digests of the statute
law. But these, however creditable to their editors, cannot take the
place of a systematic revision authorized by the state and ratified
by legislative enactment. The private editor cannot say that any law
is obsolete, he must print what he finds. If he undertakes to decide
that an act is repealed or supplied by implication and omits it from
his text, there is no assurance that his opinion will be endorsed by
the courts.
While road law, owing to its local development, is a glaring example
of the confusion that in time creeps into the statute book, it is by
no means the only title that requires attention. The laws relating to
corporations, municipalities, taxation, as well as other subjects,
are in need of revision and unification. The education of the public
to the economy of well drafted and properly classified statutes may
be slow, but a progressive bar should assist in that education and be
prepared to lend encouragement to any reasonable and practical plan
for a systematic analysis and rearrangement of our statute law.
FOOTNOTES:
[565] Woolwych on Ways, 6.
[566] England in the Eighteenth Century, Sidney, Vol. II, 3.
[567] England in the Eighteenth Century, Sidney, Vol. II, 6.
[568] Coke on Littleton, 56 A.
[569] Fitzherbert’s Natura Brevium, 226.
[570] _King_ v. _Warde_, Croke’s Reports (Charles I), 226 (1633).
[571] _Ex parte Armitage_, Ambler’s Reports, 294 (1755).
[572] III Blackstone’s Commentaries, 259; _Bonaparte_ v. _Camden and
Atlantic Railroad Co._, Baldwin’s Reports (U. S.), 205 (1830) at page
221.
[573] 13 George III, chapter 78, § 19; _Davison_ v. _Gill_, 1 East’s
Reports, 64 (1800).
[574] _Wroe_ v. _Harris_, 2 Washington’s Reports (Va.), 126 (1795);
_Gay_ v. _Caldwell_, Hardin’s Reports (Ky.), 63, (1806); _Mairs_
v. _Gallahue_, 9 Grattan’s Reports (Va.), 94 (1852); _Tracy_ v.
_Elizabethtown, L. & B. S. Railroad Co._, 78 Kentucky Reports, 309
(1880); _Schuylkill & S. N. Co._ v. _Decker_. 2 Watt’s Reports, 343,
(1834).
[575] Grotius, De Jure Belli et Pacis, Lib. III, chapter 20, § 7.
[576] Nicholls on Eminent Domain, 7.
[577] II New York Colonial Documents, 621; O’Callaghan’s Laws and
Ordinances of New Netherlands, 478.
[578] O’Callaghan’s Laws and Ordinances of New Netherlands, 219.
[579] O’Callaghan’s Laws and Ordinances of New Netherlands, 367.
[580] Laws of Massachusetts Colony (1672), 64; compare Laws of Colony
of New Plymouth (Edition of 1836), 64.
[581] Records of Court at Upland, 118, 192.
[582] Records of the Court of New Castle, 288.
[583] Records of the Court of New Castle, 364, also pages 143, 169,
197.
[584] Charter and Laws of Pennsylvania, 95.
[585] Charter and Laws of Pennsylvania, 467.
[586] _McClenachan_ v. _Curwen_, 6 Binney’s Reports, 509; 3 Yeates’s
Reports, 362 (1862).
[587] II Statutes at Large, 118.
[588] II Statutes at Large, 400.
[589] Pepper and Lewis’s Digest of Decisions, Vol. 18, col. 13567.
[590] _Perryville & Z. P. R. Co._ v. _Thomas_, 20 Pennsylvania
Reports 91 (1852).
[591] Hazard’s Annals of Pennsylvania, 555.
[592] _Philadelphia_ v. _Hinckley_, 9 Pennsylvania District Reports
125 (1900).
[593] Hazard’s Annals of Pennsylvania, 530.
[594] 1 Dallas’s Laws of Pennsylvania, Appendix 11.
[595] I Colonial Records, 136, 18, 3 mo. 1686.
[596] Charter and Laws of Pennsylvania, 139.
[597] I Colonial Records, 142, 3, 7 mo. 1686.
[598] I Colonial Records, 148, 19, 9 mo. 1686.
[599] I Colonial Records, 463, October 28, 1696.
[600] I Colonial Records, 467, October 31, 1696.
[601] I Colonial Records, 402, February, 13, 1693-4.
[602] I Colonial Records, 441, May 25, 1695.
[603] Charter and Laws of Pennsylvania, 285.
[604] II Statutes at Large, 68.
[605] IV Statutes at Large, 296.
[606] _McClenachan_ v. _Curwen_, 6 Binney’s Reports, 509; s. c. 3
Yeates’s Reports 362 (1802).
[607] IV Colonial Records, 247, October 7, 1737.
[608] IV Colonial Records, 181, March 24, 1736-7.
[609] IV Colonial Records, 283, March 22, 1737-8.
[610] IV Colonial Records, 287, May 15, 1738.
[611] _King’s Road_, 1 Dallas’s Reports 11 (1764). _In re Road in
Chester County_, Supreme Court Docket No. 4, page 37, September
Term, 1764, on _certiorari_ the order is reversed “for refusing to
grant a review, and reviewers appointed.” Is this the same case?
Lewis Gordon, writing to Richard Peters, March 18, 1758, signified
his intention to apply for a review of a road, but observed that the
practice was declaimed against, except where fraud appeared. VII
Pennsylvania Archives (2 Series), 254.
[612] 3 Smith’s Laws of Pennsylvania, 521, § 22. See also § 25 of the
act of June 13, 1836, P. L. 551.
[613] P. L. 551.
[614] Act of May 8, 1889, P. L. 129.
[615] Section 5 of the act fixed the maximum breadth of a public road
at 50 feet and of a private road at 25 feet. The maximum breadth of a
public road is fixed at 80 feet by the act of June 7, 1907, P. L. 452.
[616] P. L. 164, § 1.
[617] P. L. 713; _Church Road_, 5 Watts & Sergeant’s Reports, 200
(1843).
[618] P. L. 422; _Greenwich Township Road_, 11 Pennsylvania Reports,
186 (1849).
[619] P. L. 645.
[620] _Bridgeport & N. C. T. Road_, 171 Pennsylvania Reports, 312
(1895).
[621] 2 Dallas’s Laws of Pennsylvania, 389.
[622] 15 Colonial Records 331, November 24, 1787.
[623] 16 Colonial Records 26, March 14, 1789.
[624] 16 Colonial Records 466, September 28, 1790.
[625] Constitution of Pennsylvania, 1874, Article III, § 7.
[626] Addick’s Philadelphia Highway Acts.
[627] 2 Smith’s Laws of Pennsylvania, 48, § 10.
[628] P. L. 224.
[629] Act of September 29, 1787, 2 Smith’s Laws of Pennsylvania, 435;
Act of March 22, 1813; 6 Smith’s Laws of Pennsylvania, 37.
[630] P. L. 21.
[631] Act of April 21, 1855, P. L. 264, § 4.
[632] P. L. 1353. _In re Plan 166_, 143 Pennsylvania Reports, 414
(1891).
[633] P. L. 264, § 7, _Large_ v. _Philadelphia_, 35 Pennsylvania
Reports, 231 note (1859).
[634] _Twenty-Eighth Street_, 102 Pennsylvania Reports, 140 (1883).
[635] P. L. 129.
[636] P. L. 75; _Orthodox Street_, 1 Pennsylvania District Reports,
37 (1892).
[637] _Parrish Street_, 12 Philadelphia Reports, 638 (1878).
[638] _In re Plan 166_, 143 Pennsylvania Reports, 414 (1891).
[639] P. L. 1131.
[640] _Wyoming Street_, 137 Pennsylvania Reports, 494 (1891);
_Pittsburg’s Petition_, 138 Pennsylvania Reports, 40 (1891); _Donley_
v. _Pittsburg_, 147 Pennsylvania Reports, 348 (1892).
[641] P. L. 75; _Howell_ v. _Morrisville Borough_, 212 Pennsylvania
Reports, 349 (1905).
[642] P. L. 230.
[643] _Dorrance_ v. _Dorrancetown Borough_, 181 Pennsylvania Reports,
164 (1897).
[644] Acts of April 13, 1843, P. L. 218; April 5, 1844, P. L. 200;
March 26, 1846, P. L. 175; April 15, 1857, P. L. 205. See Act of July
2, 1901, P. L. 607, § 2.
[645] P. L. 283.
[646] P. L. 116; _Pusey’s Appeal_, 83 Pennsylvania Reports, 67 (1877).
[647] Pepper and Lewis’s Digest of Decisions, Vol. 18, col. 31570.
[648] _O’Connor_ v. _Pittsburg_, 18 Pennsylvania Reports, 187 (1851).
[649] _Mellor_ v. _Philadelphia_, 160 Pennsylvania Reports, 614
(1894); _Melon Street_, 182 Pennsylvania Reports, 397 (1897).
[650] P. L. 336.
[651] P. L. 290, since amended by the Act of May 13, 1909, P. L. 527.
[652] P. L. 188, supplied by the Act of May 1, 1905, P. L. 318.
APPENDIX.
ARTICLE V OF THE CONSTITUTION OF PENNSYLVANIA.
In effect January 1, 1874.
THE JUDICIARY.
The Courts.
Section 1. The judicial power of this Commonwealth shall be vested
in a Supreme Court, in courts of Common Pleas, courts of oyer and
terminer and general jail delivery, courts of quarter sessions of the
peace, orphans’ courts, magistrates’ courts, and in such other courts
as the General Assembly may from time to time establish.
Supreme Court--Tenure of Judges--Chief Justice.