USA > Pennsylvania > Colonial records of Pennsylvania, Vol. II > Part 28
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1. That there be a Court erected in every County, to be held 4 times in every year, in which all actions and Causes may by tried ex- cept matters of Life & Death.
2. That matters of Life & Death be tried by Commissions of Oyer & Terminer, granted to the Provincial Judges or others, as there shall be Occasion.
3d. That a Provial Court for the whole Province be held at Phi- ladelphia, in which there shall be a Chief Justice, which Court shall be circular, & held in each of the other Counties, twice in every year if there shall be occasion, and that all Civil actions, &c., may be commenced therein, of the Value of ten pounds or upwards, as well as in the County Court at the election of the Plaintif.
4th. That all matters entred in the County Courts, except Civil Causes under the value of ten pounds, may be removed out of the said Courts into the Provincial, by Habeas Corpus or Certiorari be- fore Trial, or by Writt of Error after Trial.
5th. That the Govr. & Council shall be a Court of Equity for all matters whatever.
6th. That all former Process shall be Continued, & former ad- journmts. valid.
7th. That writts of Execution & Subpanas shall extend over all the Province.
8th. That all Practice shall be clear, plain & expeditious.
Ordered that the said heads be drawn out & committed to Judge Guest, the attorney Genl., David Lloyd, Jno. Moore, Robt. Asshe- ton & Thos. Clark, to draw up a Bill pursuant thereunto, to be laid before this Board. And then adjourned.
At a Council held at Philadelphia, ye 15th Octor., 1706.
PRESENT :
The Honble JOHN EVANS, Esqr., Lieut. Govr.
Edward Shippen, ? Esq'rs.
Caleb Pusey, ?
Samuel Carpenter,
Jasper Yeats,
Thomas Story,
Esq'rs. Griffith Owen,
Wm. Trent, Richd. Hill.
The Draught of a Bill for regulating of Courts was laid before the Board & being read, the Govr. desired their Opinion of the same ; Caleb Pussey & Wm. Trent, on a message to the Assembly, were ordered to acquaint them that the Goyr. and Council were sitting
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and expected their attendance. The Messengers returned with Joshua Hoops & Ezra Crosdale from the House, who acquainted the Govr. that the Assembly would wait upon him presently.
The Assembly accordingly waited upon the Govr. and presented Mr. David Lloyd as their Speaker, who desired the Govr. would be pleased to Order them to return & make choice of another person for that Office, for that he was conscious of his own insufficiency for the undertaking, the Govr. answered that he was satisfied the House very well understood their business in choosing him, & therefore he also approved of their Choice and then made the following speech, Viz :
GENTLEMEN :
Having about 2 or 3 months ago reced. from the Proprietr. an Order of the Queen in Council repealing divers of our Laws, princi- pally for reasons given by her Majesties attorney Genl. which were laid before the Assembly last year, I thought fitt to call together that Assembly then in being on the 18th of last month to provide especially for the Establishmt. of Courts of Judicature in this Pro- vince by a Law, the former for that purpose being among others repealed.
But that Assembly finding themselves straitned in time & believ- ing the matter to be of too high Importance to be precipitated, re- quested I would refer the Consideration of it to this present Assem- bly, and that notwithstanding, by the Royal Charter to the Propry., I stood invested with sufficient Powers to Establish all necessary Courts by an Ordinance, I would defer it till your meeting, that the Courts might rather be settled by a Law, as they have formerly been, than by any other means.
ffor these reasons I have Caused the Courts to be adjourned again, & I have further with the Council Ordered a Bill to be drawn up by the Practitioners of the Law in this place, upon certain heads re- solved on by the Council, and as far as we Could find, not disagreea- ble to the sentiments of the late Assembly who had the matter under Consideration.
This Bill I desire you above all other things to proceed upon with all Possible dispatch & Epedition, that the Govmt. may no longer remain in the Condition it now is under a full stop to the Current of Justice by way of Judicature, for want of the Necessary Courts to administer it. And further that while you are about so good a work you would make Provision for the Encouragement of a Chief Justice whom you will find to be of absolute necessity for the Good of the Publick. The worthy Gentleman who has already accepted of a Commission for the place will easily determine yor. choice, and there wants only your encouragement to him to make this Govmt. as happy in the administration of Justice as such an officer can ren- der it.
What other Laws have been repealed & not Re-enacted by the last assembly will also require your thoughts & Care, & for other matters I shall generally leave them to your own consideration, only that I must recommend to you to take effectual Care that all the
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just Debts of the Countrey be discharged, the last Assembly have made Considerable advance towards this necessary work, but tis not to be thought they could finish it, twas fitt it should be done gradu- ally & that the weight of the whole should not lie upon the election of one Year only, You will find upon due consideration, Gentlemen, that this is a matter that very highly concerns the Honr. of the Publick, if the Publick ffaith & Credit be Considered as in well regulated states it is much above any particular; for Injustice in the Publick is more grevious than it can be in any Private member, for this reason, that there the Law Provides relief, but there there's none but Patience under the Oppression.
I mention this Gentlemen with the greater earnestness, because the necessity of Considering it in the last assembly has brought the matter more fully in view, and tho' they have done their Part, yet they will Doubtless find some things remaining that it will be in- cumbent on you to provide for; One of which I must particularly recommend to you, that you would take Care to oblige each parti- cular County in the Province, to Discharge their Debts alike, the want of which has been long a Crying Grievance in this Govmt. and particularly in this Capital County of the place. This Gentlemen having given you sufficient Instructions to proceed to the Dispatch of what I have laid before you, I am to acquaint you that to mor- row morning I am obliged to sett out for New Castle, where my stay will be very short, and when I return to you again I hope I shall find considerable advances made in the Bill for the regulation of Courts, which is already so prepared as will very much shorten the work.
Unanimity is so necessary to ye Dispatch of business, That I cant forget always to recommend it to you, and hope you will use it in all yor. Consultations, & you shall not fail of my Concurrence with you for the publick Good.
Of which speech the Govr. also delivr'd the Speaker a Copy, and at the same time there was delivered to him the Draught of the Bill of Courts, prepared by the Practitioners in the Law, & approved by the Board. The Speaker desired of the Govr. in behalf of the House, free access to his person, freedom of Speech & to be protected in their Rights & Liberty, which the Govr. promised them they might be assured of, and then they withdrew.
And the Council adjourned,
At a Council held at Philadelphia, 9br, ye 14th, 1706.
PRESENT :
The Honble JOHN EVANS, Esqr. Lieut. Govr.
Edward Shippen,
Thomas Story,
James Logan, S Esq'rs. William Trent,
George Roche,
Esq'rs.
The Govr. laid before the Board a long & tedious Bill, which he had this day reced. from some members appointed by the assembly to Deliver it. Intituled an Act for Establishing Courts of Judicature
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in this Province, which was read, & being found to disagree very widely from the Bill laid before the House the 15th 8br. by this Board, and to Contain in the whole several extravagant heads which cannot be granted, and the time drawing very nigh, in which the Courts ought to be held, so that there can be but small hopes of ob- taining a Law for their Establishmt. timely enough for the Courts of the ensuing term ; 'Tis therefore ordered, That an Ordinance to be passed by this Board be prepared by the same practitioners of the Law, who drew up the Bill last presented to the House, agreeing in all respects with the said Bill ; And that the several Clauses of the Bill now read which this Board shall object against be drawn out, which objections together with the said Ordinance shall be laid be- fore the House at their first meeting, with this proposal, That if they Please without delay to Pass a Bill of the same Tenour with that Ordinance, & cleared of all those objections made against the present Bill, the Govr. will agree that the Courts should be established by a Law otherwise, that Justice may no longer be delay'd, but Courts duly held to answer the exigencies and occasions of the Countrey. The Govr. will think himself obliged to establish them by an Ordi- nance agreeing with that draught, and that the House be required to Come immediately to a Resolution thereupon.
And then adjourned till to morrow at 10 in the morning.
.
At a Council held at Philadelphia, ye 16th of 9br., 1706.
PRESENT :
The Honble JOHN EVANS, Esqr. Lieut. Govr.'
Edward Shippen, John Guest,
Capt. Saml. ffinney, )
James Logan,
Saml. Carpenter,
Esq'rs. Willm. Trent,
Thos. Story,
Esq'rs. Jasper Yeats,
Jos. Pidgeon,
The Bill for Establishing Courts of Judicature, read at the last sitting of this Board, being again Considered that the particular Ob- jections may be drawn up, the following were made.
Objections by the Govr. & Council to the Bill Intituled an act for Establishing Courts of Judicature in this Province.
The Act for Establishing Courts in this Govmt., Passed in the year 1701, was found exceedingly inconvenient, and was complained of by all men of understanding in affairs of this nature, who were concerned in the Practice of our Courts, & being presented to the Queen was by her repealed, to supply wch there has been an Act drawn up by Order of the Govr. & Council, agreeing as near as it could be brought to suit the Circumstances of this place with the English Establishmt., as well in England as in other parts of the Queens Dominions abroad.
The said last mentioned Bill was approved of by the Govr. & Council, & recommended to the Assembly to be passed into an act, with such reasonable alterations as they should find cause to make
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in it, notwithstanding the Govr. has full Power and authority, by the Royal Charter of K. Char. ye 2d of himself by an Ordinance, & without the Concurrence of the Assembly to Establish all necessary Courts; Yet in the Bill now presented, there seems to be no notice taken of the said Bill prepared by the Govrs. orders, nor any other Constition than the old one interpolated with additions to be offered, of which additions as there are some reasonable & for the Publick benefit, So there are others that seem very much the Contrary, & unreasonable to be expected. Particularly
Pa. 1st. There is a Provincial Court erected, for holding of which three Judges are to be Commissionated, any one of whom may hold that Court. These Judges seem to be intended principally for mat- ters of Error in Law, wch would Require a Person well skill'd in that profession to determine, or for appeals in Equity from the County Courts. If, therefore, any one person qualified for such an office can be procured for the place, there will be no occasion for three dis- tinct Commissioners, since any one will serve besides ; the allowance made to those Judges is only 20 Shillings per diem, a Consideration too small for any person duly qualified to accept of, for men of the Law can find much more profitable methods to lay out their skill on, and employ others to Judge of matters of which they have no Know- ledge is not only to impose upon you, but to abuse the Countrey that they ought to serve.
In pa. 1st, Power is given to these Judges to grant all Remedial Writts, Habeas Corpus, Certiorari, &c. But in Pa. 2d, This power is intirely made void, (Cases of Error excepted,) Where'tis provided, That no Writt whatsoever Shall remove any Cause before Judgment be given, And this proviso seems to be intended so general, that there was occasion for another immediately following to preserve Writts of Error from falling in the general overthrow, Yet 'tis well known, that a Writt of Error makes but little for the Relief of the Subject, except in some particular Cases, & multiplies trials more than any other since it only reverses the Judgment at most, & setts both Parties in the same Condition they were in before trial with this difference only, that they have been at a Certain expence, but have not in the least advanced their business, & must either begin de novo or discouraged by such an expence & trouble, desist from doing themselves justice for the Judges of Error are not to Consider the Justice of the cause, but the regularity of the Proceedings. This indeed may bring more Practice into the Courts, but at the same time oppresses the subject whereas those other Writts of Habeas Corpus, &c. which Engld. thought worth their while to purchase so dear as being the greatest Bulwarks to the subjects Liberty are in- tirely rejected, & those only reserved who make the most work for the Lawyers, Besides, it is directly against common Justice to oblige a free subject to be tried by one particular Court, only that may be prejudiced against him, which is no uncommon case the benefit of a Remove in such Cases is the subjects Right, & to deny it is oppres- sion.
Pa. 1. It is not so safe to enumerate the Several Powers of the
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Judges, If they have the power of the Justices of the Queens Bench & common pleas in England there will be the Less danger of any cases.
Pa. 2 & 4. The Proprietr. & Govr. is invested with the Power of Putting in & turning out these Officers in this Govmt. as other Govrs. generally are in America, and it will be hard to give a reason why he should make a complement of it to any others whatsoever.
Pa. 2. The Court of Equity ought here, as in other places, to be in the Govr. & Council, unless the Govr. think fitt to lodge it in Commrs. for that purpose.
Pa. 3. This with several others of the kind, is matter of Practice, ought rather to be done by Rule of Court for then if found incon- venient by the Court who are the most proper Judges they may be altered, whereas when done by a Law, they cannot without much more trouble.
Pa. 4. Objected agst. in ob. p. 2 & 46.
Pa. 8. The granting of Licences is a perquisite of Profit belong- ing to the Govr. & settled by the last Assembly therefore not to be they parted with, Nor does it hinder the Justices from proceeding agst. the persons Licensed in Case of Disorders.
Pa. 9. The ffines & forfeitures are the Proprietrs. by Grant from the Crown, the attempt therefore to take them from him is very in- consistent with the obligations that all the People residing in this Govmt. are laid under to him & his Heirs by that same Charter that grants them.
P. 9. This proviso is very unwarrantable & oppressive, in forc- ing the subject to a Trial before a Jurisdiction that fines at pleasure & to their own use without any room left for Relief. The Inhabi- tants of Philadelphia ought to be as tenderly regarded as any others of the Queens Subjects in the Govmt. & there particularly, greater care ought to be taken of Impartiality, it being the general resort of all strangers who Come to visit us, but for a time, & who therefore ought to be the more civily treated. But further this Clause covertly gives the Corporation the full Power of holding pleas in all Civil matters which was never intended them by the Proprietrs. Grant, & it cannot be thought reasonable that the present Govr. should enlarge upon that Power.
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P. 12. All writts Original & Judicial ought to Issue out of the Clerks office of the Respective Counties under the County Seal, & signed by the Clerk who is the proper officer, and not to be granted by every Justice, for this would cause great Confusion, and put a great hardship also upon the Justice themselves.
P. 16. Tho' this clause with the following Provisoes added, is a very great amendmt. to what has been formerly enacted, Yet it would be much more Just & reasonable that all persons were sub- ject to an arrest here, as in England, & the Difference might be in the Bail, for there is scarce any thing short of this yt can effectually prevent a person from abusing his Credrs. by fraudulent sales. And that proviso where persons not worth One hundred pounds clear estate free from Mortgages & Intails shall be subject to an arrest is
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not sufficient to secure a debt of 2 or 3 hundred pounds, there will also several other inconviences arise from these Provisoes, which a general arrest would prevent.
P. 21. The same arguments hold against this Clause as agst. the preceding ; a Debtor by this means has still more time given him to act the knave in, especially when his Lands lie in another County for there must be a fieri facias before a Capias can Issue.
P. 22. This directly destroys the end of the Law, & looks as if it were intended only to make work for the Courts, without any regard of doing Justice to the oppressed. A plaintiff that obtains Judg- ment & execution, hopes by that means to have his money, but if ye Deft. can procure security, of which not the plaintiff himself, but the Justices must be Judges the Plaintif is then eluded, he must take to New Debts, & if they refuse payment at the time another action en- sues, and so by a Combination of a few perverse men, a Credr. may be kept out of his money for many years, (if not for ever,) to his ruine ; there is little danger 'tis true, but a poor man will serve the rich thus ; but a wealthy man that is maliciously bent agst. a poorer, may by this means find a handle to be his ruine; 'tis a method ('tis believed) that has scarce ever been heard of before, & would doubt- less look very odd when presented at home, but were it enacted, and should the Justices be the Judges of the security it would be just, also that they should be answerable for it.
P. 23. This is already spoke to in lettr. d., besides 'tis very un- reasonable that the same persons should Judge twice of the same cause, & it seems very unaccountable that this Assembly, after it was agreed to by the former, (being known to be the method practised through all the Queen's Dominions in America, viz. : that the Govr. & Council should be the Court of Equity,) should think, that ever the same County Justices, who before Judged of the matter in Law, should be more proper Judges of it again in Equity than they ; this looks more disrespectful than is even fitt in thy place to be men- tioned.
P. 25. If Officers fail in their Duty the Law is open against them, and the Govr. may Imediately discharge such as are only during pleasure.
P. 29. This is of great Consequence, & tho' formerly the Practice here yet it ought to be very well weigh'd before 'tis re-enacted, there ought some method to be found that may give a better security than than the County Courts only, for the estates of Orphans.
The whole business of fees requires a closer scanning than is ne- cessary at this Juncture till the foregoing objections be removed, 'tis certain that if the officers in any case err on one hand, many of those here mentioned are as wide from reason on the other.
Upon the whole, 'tis proposed by the Govr. & Council to the As- sembly, that if they will agree to a Bill conforming with that pro- posed to ym, at their first meeting, in which there may be a regular Jurisdiction settled throughout the whole Province, as in other parts of the Queen's Dominions, and the Subject may have a benefit of having his estate, &c. Tried by a person of Knowledge, whose skill
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& experience may give the parties some assurance, that when a Cause is gain'd 'tis firm to them, & not to be overthrown by after Iniqui- ties, as 'tis well known too many of those causes hitherto tried in this Govrnmt. may some time or other be, and will further grant a due encouragement to such a person to serve the Countrey, in wch they alone will reap the advantage, & will settle the Courts of Equity Consonant to reason & Practice, as in other parts of the Queen's Dominions in Am'ca., the Govr. will then readily pass it. But if otherwise, and these heads cannot be assented to, He will find himself obliged by advice of the Council, by virtue of the Royal Charter to the Proprietr., & his Commission to establish all the Courts by an Ordinance, that Justice may no longer be delay'd, but the Currant of it be again open for the Relief of the oppressed.
And hereunto the Assembly's answer, that no more time may be lost is immediately required.
At a Council held at Philadephia, 9 br., ye 27th, 1706.
PRESENT :
The Honble JOHN EVANS, Esqr., Lieut. Govr.
Edward Shippen, r
James Logan,
Thomas Story,
William Trent, J Esq'rs. Richard Hill, Jos. Pidgeon. 1 Esq'rs.
The Govr. acquainted the Board with a message in Writing, which he had reced. this afternoon from the Assembly, Intituled the As- semblies Answer to a Certain objection sent from the Govr. & Coun- cil, against a Bill proposed by this House, for Establishing Courts of Judicature in this Province, as follows :
The Assemblies Answer to certain objections sent from the Gov- ernour & Council against a Bill proposed by this House for Estab- lishing Courts of Judicature in this Province.
May it please the Governr :
1. There might be Just cause to Complain of the Inconveniences of the Repealed Law for Establishing Courts, But we find ourselves under a great Disadvantage, because the reasons of that repeal are Concealed from us, nevertheless We have have endeavoured to ac- commodate the Bill now proposed as near as we can to an English Establishment, & we hope if passed here may bear the scan of our superiours as well as any scheam we have seen from other parts of the Queens Dominions abroad.
2. The House as in Duty bound will pay all Civil Regards to what the Governour thinks fitt to Recommend, and we shall not object against but Countenance ye Council in all their good advice & assist- ance to ye Govr. in matters of State. But we can allow them no more authority in legislation than the Lords of Trade seemed to do in their objections to the Law for erecting Chester Bridge. We have taken due notice of the Draught recommended to us by the Govr., and have inserted some Clauses thereof And supplied the rest in our Bill, Which with submission is grounded upon the best Constitution
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we could find, to witt : The Common and statute Laws of England, And not an interpolation of the old one with additions unreasonable to be expected. We have also considered and duely weighed King Charles's Royal Charter to the Propry., and we are humbly of opinion That the Courts as now Circumstanced and the Discontinu- ances of all Pleas and process Occasioned by the said Repeal, with some other things which might be mentioned, cannot be revived and settled by any Ordinance without the Concurrence and authority of a General Assembly.
3. As to the Judges of the Supream or Provicial Court, Wee agree that they shall hold plea of Causes duely removed before them from Inferiour Courts as well as matters of Error and Appeals in Equity ; But we see no cause why they should not be Constituted by distinct patents here as the Judges in England and Wales are, for if two be absent or Indisposed the third may hold Courts which may prevent a ffailure of Justice. And tho' men skill'd in the Law if of good Integrity are very Desirable, yet as the obtaining of such is a work of great Difficulty to the Continuing of them when pro- cured will be both Chargeable and uncertain, Therefore we Incline to be content with the best men ye Province affords, having found no Inconvenience thereby in above Twenty Years Experience equal to the Difficulties and hazards which another method may produce, and we are well assured That this Province affords men of Know- ledge sufficient to Judge of matters arising in so young a Colony, And if they will be concerned in the Magistracy we shall not reckon the Country abused; And we hope they will be Content with the proposed salary, and if that falls short We doubt not but provisions will be made to support a good Magistracy, being so Essential a part of this Governmt.
4. The bill as at first proposed gave sufficient Liberty to remove the body in order to be relieved against wrong and arbitrary impri- sonments, though not to gratify the Turbulent Contentions, Lewd and evil disposed persons, (as the statute describes them,) fearing to be deservedly punished where they and their offences are well known. But least there should be any Grounds left to Conclude any Check upon the Just Liberty of the Subject, We agree that Causes may be removed from Inferiour to Superiour Courts under the like restric- tions as in England, which we conceive as necessary upon removalls by Habeas Corpus, Certiorari, &c., as upon Writts of Errour. And what is objected as an oppression to the subject in the one may also be urged in ye other, which we Intend to avoid in both by the Bill as now proposed.
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