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,