USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 32
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1 Charter and Laws of Pa., p. 178. 2 Col. Rec., i, p. 199.
3 Ibid., p. 227. 4 Charter and Laws of Pa., p. 514.
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the tenure of the judges not "consonant to the continuance of the laws upon which it should be grounded."" Though the council declared that Lloyd was guilty of a serious misde- meanor, its support of the governor was so half-hearted that Lloyd triumphed in his obstinacy. The commissions, accord- ingly, were issued under the lesser seal.2
In 1690, an act similar to that of 1684 was passed. But in order to guard against arbitrary refusal on the part of a county court to grant appeals to the provincial court in law and equity, it was enacted by this measure that an appeal should be granted in cases involving £10 or more, provided the appellant gave good security to prosecute it. A similar law was passed in 1693.3
It was not until after the passage of the law of 1701 that the provincial court and the other tribunals were firmly established, and their jurisdiction defined. By the charter of privileges of that year, the proprietor had resumed the power of direct ap- pointment. Hence it was enacted that a suitable number of justices of the peace should be commissioned by the proprietor or his lieutenant, under the great seal, to hold quarter sessions in each county. They were empowered to deliver the jails, to award process, and to hold all pleas of the crown. In civil cases their method of procedure should be modeled after that of the court of common pleas in England. They should hold orphans' courts. , They were given jurisdiction over maritime cases which were not properly cognizable by the courts of admi- ralty. They were also authorized to hear cases in equity. But an appeal lay from their decision to a provincial court of five judges appointed by the proprietor, or deputy governor. This court was also given authority over criminal cases of a grave nature. Final appeal to the crown was allowed, but only in case the appellant deposited the sum decreed against him, or gave a bond of double the sum, and on condition
1 Col. Rec., i, p. 250. 2 Ibid., pp. 253, 255, 256, 296.
3 Charter and Laws of Pa., pp. 184, 225.
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that within one year he should prosecute the appeal in Eng- land.1 The procedure of each court, further, was carefully de- fined, all former laws relating to the courts were repealed, and the right of the proprietor to establish manorial courts was expressly recognized.
The repeal of this law by the queen in council, February 7, 1705, left the administration of justice in a chaotic state. Gov. Evans and the assembly then entered upon a contest of great length and bitterness. In May 1705 and in January 1706, the governor had recommended a law for the establish- ment of courts,2 but the assembly refused to consider the mat- ter. Accordingly in September of the latter year, on his order, a bill for the purpose was drawn up by "some of the practi- tioners in the courts," and sent to the assembly. In reply the house resolved that the governor and a part of the council might be empowered to hold a court of equity, provided it did not interfere with matters wherein sufficient remedy might be had in any other court, either by the rules of the common law or by the laws of the province. The governor might also issue special commissions of oyer and terminer to try capital crimes. A supreme or provincial court consisting of a chief justice and two or more associates should try cases brought up from inferior courts on writs of error, habeas cor- pus, and certiorari. The constitution of the county courts should be the same as that indicated in the law just repealed; and, with the exception of cases carried to the provincial court on writs of error, the powers of the mayor's court in Philadel- phia should not be impaired.3
1 At a conference held with Lord Bellomont and Gov. Nicholson at New York, in December, 1700, the proprietor had suggested that, in order to prevent vexa- tious and litigious practices, no appeal to England should be allowed in cases in- volving less than £300. N. Y. Col. Doc., iv, p. 757.
2 Col. Rec., ii, pp. 188, 222.
3 Ever since the incorporation of Philadelphia in 1701, controversy as to the limits of their respective jurisdictions had existed between the city and county judges. Penn and Logan Corresp., i, p. 139.
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The governor and council decided to offer the following additions. Since the assembly would not agree to the crea- tion of a provincial court of general jurisdiction, "provision should be made for the relief of the subject when he dares not put himself upon that particular county where the action is commenced, [in order] that he may have a trial by such as he can better depend on to be unbiased and unprejudiced in his case." The power of executing the judgments of the courts should be extended from one county into another. In cases removed to the provincial court by writs of habeas corpus or certiorari, after it had rendered a decision a further appeal should lie to the governor and council before a final appeal was made to the crown. Former process should be continued. Nothing should be done to abridge the right of the proprietor to erect manorial courts. Lastly, the decisions of the city court of Philadelphia should be subject to appeal as fully as those of other courts." The assembly was unwilling to allow the provincial court any original jurisdiction except over capital crimes. It stated that the point of greatest difficulty was that members of assembly from other counties could not be induced to agree that cases should be brought from those counties and determined in Philadelphia. The council replied that its purpose was not to remove causes from the other counties to Philadelphia, but that in general and common law jurisdiction all proceedings of court should be regular and uniform. To this end the jurisdiction of the provincial court should be extended equally over the entire province. Whereas now it had the consideration merely of civil cases upon writs of error in matters of law, its usefulness would be increased if it had cognizance of more causes. The council declared that any cause, either before or after trial in the county courts, might be brought into the provincial court or first entered there, accord- ing to the option of the plaintiff.2 With this opinion the as- sembly would not agree, and a few days later informed the
1 Col. Rec., ii, pp. 254-255. 2 Ibid., pp. 256, 257.
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governor that, although it was " well satisfied that he had a full power to establish * courts by an ordinance, yet that for the satisfaction of the country where the courts had always been hitherto held by a law," he was requested to refer the matter to the next assembly." Thereupon the council drew up a bill. It provided that in every county courts of quarter ses- sions should be established to try all causes except capital crimes, and that for the trial of these commissions of oyer and terminer should be issued to the provincial judges or to other persons, as the governor might see fit. A provincial court, consisting of a chief justice and associate judges, should be created. Its fixed sessions were to be held at Philadelphia, and it should go on circuit into the other counties twice a year. All civil actions involving £10 or more might be com- menced in it, or in the county court, according to the option of the plaintiff. " All matters entered in the county courts, except civil causes under the value of £10, may be removed out of the said courts into the provincial by habeas corpus or certiorari before trial, or by writ of error after trial." Writs of execution and subpoenas should extend over the en- tire province. Finally, the governor and council should be a court of equity for all cases. The governor then requested the assembly to consider the bill, and to make provision for the salary of the chief justice.2 In reply the assembly sent up a long and tedious bill of its own, which differed widely from the suggestions made by the council, and con- tained inany extraordinary provisions that the governor refused to entertain. He criticised its strong similarity to the act just repealed by the queen. He declared that the clause providing for a supreme court of three judges, any one of whom might try appeals in law or equity, would require persons skilled in the law. If one could do this, said the governor, what was the necessity of having three, especially since the small salary offered by the assembly would not 1 Col. Rec., ii, p. 258.
2 Ibid., pp. 258, 259.
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induce competent men to serve ? Furthermore, the bill enacted that the provincial judges should be empowered to grant remedial writs; but provision was made for no writ to remove a cause from an inferior court before judgment, except the writ of error. The governor agreed that under a writ of error not the justice of the cause, but the regularity of the proceedings was considered. The reversal of judgment by this process merely placed the parties in the same condition they were in before trial. It was against common justice, said he, to oblige a free subject to be tried by one particular court which might be prejudiced against him. He thought it was not advisable to specify minutely the powers and pro- cedure of the court, but to give it the jurisdiction of the court of king's bench and common pleas in England. He asserted that the proprietor had the right to appoint and dismiss all officers, and in no instance should that right be usurped. The governor and council should be the highest court of equity, unless commissioners were specially appointed for the purpose. Certain matters mentioned in the bill he thought should be regulated by the rules of court. The granting of tavern licenses was a perquisite belonging to the governor, and should not be given to the justices. Fines and forfeitures were the property of the proprietor. He objected further to the powers entrusted to the city court, insuring it against interference by the county court. He also thought it was un- reasonable that a county court, which had tried a case in law, should be allowed to hear it again in equity. At the same time he threatened that, unless the assembly offered a bill modeled on the lines indicated in the one prepared by the council, he would establish the courts by ordinance.1 In its reply the assembly denied the right of the governor to establish courts by ordinance without its consent. It stated that its bill was based on the common and statute law of England. It was willing that the provincial court should try
1 Col. Rec., ii, pp. 261-266.
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causes duly removed from the county courts, as well as matters of error and appeals in equity. It acknowledged the difficulty of obtaining judges who were skilled in law; but it declared that, if the necessity should arise, provision for a larger salary would be made." It agreed that the procedure in England for the removal of causes by writ from inferior courts should be followed. It preferred that the duties of the judges should be enumerated, and that the practice of the courts should be settled by law. It insisted that, at the request of the assembly, judges should be removed for mis- behavior. The council, it thought, should consult the public honor, safety, and good of the province, and leave private cases to the proper judges. It declared that the justices should have the power of granting tavern licenses, and that the appropriation of fines to pay the justices was warranted by the statute law of England and the usage of other colonies. "We are very sensible," declared the assembly, " of what is granted the proprietor by the said royal charter, yet we are of opinion that the appointing of fines and forfeitures to the queen does not take away the right of the proprietary or others to whom he granted fines and forfeitures to claim and to have them; but we would avoid our superiors' objection on that account, which have proved very fatal to some of our laws." It stated that judges of the common law were permitted by an act of parliament to judge in equity in the same session, and that a
1 In a letter dated October 3, 1704, to several enemies of William Penn, David Lloyd wrote : " If there were an able counsellor at law, that were a person of so- briety and moderation, but not in William Penn's interest, commissioned by the queen to be judge of the province and Lower Counties, as also of the Jerseys, * * * I doubt not but his place may be worth 4 or 500 per annum, besides fees and per- quisites ; and the business * * may be easily performed by one chief judge with
certain associates. * * * I desire you may use your endeavors to get such a man. Here was one Roger Mompesson, who we thought to engage in that affair, but he being judge of the admiralty, and chief judge of the supreme court at New York, could not stay here. Besides, he was too much in William Penn's interest, and given to drink, so that he did not suit this place." Penn and Logan Corresp., i, pp. 328-9.
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clause in the bill it had offered provided that the judges in equity should not take cognizance of matters of law. Finally, it threatened that, if the governor issued any ordinance with- out its advice and consent, it would take measures for its own vindication, and to discharge the trust reposed in it.2
But the governor refused to depart from his former posi- tion, or in any way to give up the rights of the proprietor; 3 and criticised the assembly for its attempts to gain privileges unwarranted by either the royal charter or the charter of privileges.4 He held several conferences with that body at which the tenure of the judges was the chief subject of con- sideration. He claimed that for judges to be removed merely by an address from the assembly to the governor was danger- ous in tendency, especially as the control of their salary by the popular body would necessarily make them dependent upon it. He urged that the salaries should be definitely specified in the bill, and stated his willingness under this stipulation to appoint judges who might be subject to removal
1 As early as 1685 complaint had arisen about the power of judges who had heard a case in law to try it again in equity (Col. Rec., i, p. 127). In 1687 the assembly requested information from the council as to "how far the county quarter sessions may be judges of equity, as well as law, and if, after a judgment in law, whether the same court hath power to resolve itself into a court of equity and either mitigate, alter, or reverse the said judgment." (Ibid., p. 205.) The council did not believe that the judges had any such power ( Votes. i, pt. i, p. 41), but the act of 1690 gave full powers, both in law and equity, to the county judges. In 1694, among a list of grievances submitted by the assembly to Lieut. Gov. Mark- ham, was the following : "The late law for appeals (passed in 1693, Charter and Laws of Pa., p. 225), which gives liberty to appeal to the provincial court both in law and equity, upon one and the same case, whereby the judges have too great liberty to destroy or make void the verdicts of juries." The lieutenant governor was then desired to caution the judges not to decree anything in equity which might lead to such a result. (Votes, i, pt. i, p. 78-79; Col. Rec., i, p. 457.) As the wording of the acts of 1690 and 1693 was precisely the same, this contention of the assembly seems based rather on the character of the individual judges, than on any distinction which might be drawn between jurisdiction in law and equity.
2 Col. Rec., ii, pp. 267-270.
$ Ibid., p. 271, 273, 280, 285.
+ Ibid., pp. 287, 306-7.
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at the request of the assembly. But his efforts to effect an agreement met with no favorable response. The assembly drew up articles of impeachment against James Logan, whose influence in the council at that time was very strong. In fourteen articles it accused him of a number of crimes and misdemeanors, and thereby gave David Lloyd the opportunity to vent on him his personal malice.2 But on the ground that no middle body, with power like that of an upper house to sit in judgment upon impeachment, existed in the province, the governor refused to try the charges.3 Indeed, he declared that the proceedings of the assembly ever since the beginning of the century, would seem to indicate on its part a purpose to " reverse the method of government" according to the English constitution, and to "establish one more nearly resembling a republic in its stead." 4
Thereupon, February 22, 1707, he issued an ordinance to establish courts. It was stated that the assembly had refused to present any bill to which the discharge of his duty to the queen and to the proprietor would allow the governor to assent. Hence, by virtue of the powers enumerated in the royal charter, it was ordained that a supreme or provincial court consisting of a chief justice and two associates, should be held semi-annually in each county. These judges, or any one of them, should be empowered to hear all cases removed
1 Col. Rec., ii, pp. 312, 313, 324.
2 On this point Benjamin Franklin ( Works iii, p. 184), says, " Against Logan, the proprietary's minister, stand upon record still unanswered thirteen articles of malversation, by way of impeachment." As to the truth of this assertion it may be said that the articles of impeachment were completely and triumphantly refuted. Franklin moreover omits to state that, in November 1709, the assembly called upon Logan to answer the articles on the very day of his embarking for Europe, and that Lloyd, in the name of the assembly, ordered the sheriff to arrest him. Gov. Gookin then issued to the sheriff a supersedeas to release Logan. For a full account of the whole proceedings, see Penn and Logan Corresp., ii, pp. 360- 390, 402-418. See also Col. Rec., ii, pp. 496-502, 507-8.
3 Col. Rec., ii, pp. 277-279, 345-7, 353-6, 365-379. 4 Ibid., p. 325.
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by any remedial writs from the courts of quarter sessions or common pleas in the counties, and from the city court of Philadelphia. They should examine and correct all errors in the judgment of inferior courts, punish officers for misdemean- ors, and generally administer "common justice, to all persons as fully and amply to all intents and purposes whatso- ever as the justices of the court of queen's bench, common pleas and exchequer at Westminster may or can do." They were also authorized to try cases in equity on appeal from the inferior courts. Moreover, the county judges were empowered to hold general sessions of the peace and jail delivery, as well as courts of common pleas. They should hear and determine all cases " as near as conveniently may be to the laws of Eng- land, and according to the laws and usages" of the province. When holding the courts of common pleas, however, the jus- tices were to imitate, so far as possible, the procedure of the common pleas in England, but with due regard also to the procedure of former county courts. The same justices were also authorized to hold courts of equity, "observing as near as may be, the practice and proceedings of the high court of chancery in England," while for the trial of capital crimes, special commissions of oyer and terminer should be issued.I The tendency of the assembly to depart from the procedure of the English courts, and even that observed in the other col- onies, was thus given by the governor a temporary check.
A few days later the assembly sent him a long remon- strance. It believed that the powers given by the royal char- ter to the proprietor or his lieutenant related merely to the appointment of judges, and " to the forms of their judicatures, and manner of proceedings," and left the "jurisdictions and proceedings themselves to be supported and directed by a law." It called the governor's attention to the words of the ordinance power given by the charter, in that no ordinance could be extended " to bind, charge, or take away the right or
1 Charter and Laws of Pa., pp. 319-323.
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interest of any person, or persons, for or in their life, members, freehold, goods, or chattels." It claimed that the establishment of the courts by the governor's ordinance was in direct contra- diction to the charter. It protested that neither the proprietor, nor Gov. Fletcher, had attempted to establish courts without the consent of the assembly. Finally, it declared in the most express terms that the governor had no right to establish the courts without the approbation of the assembly, and that his manifest duty was to assent to the law for that purpose, which it had so frequently offered him.' No compromise could be effected, however, and the ordinance continued in force till the close of Gov. Evans' administration, in February, 1708-9.
By a proclamation dated the 28th of the same month, Gov. Gookin declared that all ordinances and commissions that were in force the first day of February, should remain in full force until his further pleasure therein was known; and all magistrates and officers were commanded to proceed diligently in the dis- charge of their respective duties. This continued the ordinance of Evans, and a contest similar to the one previously outlined began between Gookin and the assembly.2 But the concession of certain points on both sides led to the passage, in 1710-II, of an act establishing courts of judicature, which, with certain modifications, was the same as the bill proposed by the assem- bly of 1706. The number of judges in the supreme court was increased to four. The court was empowered to issue remedial writs. The proprietor was deprived of fines and for- feitures, but it was provided that certain forfeitures should go to the governor. The clerk of the court should be nominated by the judges and commissioned by the governor. No suits under the value of £10 should be removed to it from inferior courts, except by writ of error. Furthermore, the judges of the supreme court should hear cases in equity from inferior courts. Appeals to the crown were allowed upon the deposit of sufficient security by the appellant that, within eighteen
1 Col. Rec., ii, pp. 349-353. 2 Ibid, pp. 519, 522-4, 526-9.
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months, he would prosecute his suit in England. Courts of quarter sessions and common pleas were also established. It was provided that their powers should be as ample as those of similar courts in England, but due regard should be paid to the laws and constitution of the province. The same jus- tices of the court of common pleas also should hold courts of equity ; but they were forbidden to decree in equity any cause wherein sufficient remedy might be had in any other court, either by the rules of the common law, or according to the laws of the province. Hence, when matters determinable at common law were brought before them in equity, they should refer the parties to the common law, and when during proceedings in equity matters of fact happened to arise, the justices, before they proceeded to make any sentence or decree, should order them to be tried in the next regular court of common pleas. Moreover, nothing contained in the law should "deprive or abridge the mayor, recorder or aldermen of the city of Philadelphia of any powers, privileges, juris- diction, or franchises granted them by charter," or by the laws of the province. The procedure of each court and the duties of many of its officers were carefully defined. Lastly, the statutes 8 and 9, William III, chap. II, entitled, " An act for the better preventing frivolous and vexatious suits," should be extended to the province, so far as circumstances would admit ; while the statutes of jeofails, of 23 Henry VI, chap. 10, concerning bail, 8 and 9 William III, concerning co-partnership and joint-tenancy, and of 4 and 5 Anne, chap. 16, entitled “ An act for the amending of the law and better advancement of justice," were either wholly or in part extended to the province.1
This law continued in force till February 20, 1713-14, when it was repealed by the queen in council. The reasons for its repeal, as offered by the attorney general, were the following : The duties of the supreme court seemed only to draw business from other courts by certiorari and other writs, a fact that 1 Charter and Laws of Pa., pp. 323-344.
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would only multiply suits and make proceedings at law dilatory and expensive. He characterized the procedure as useless. The expression, " so far as circumstances can admit,', in the clause which provided for the extension of 8 and 9 William III, chap. II, he thought was improper. He declared also that the clause which forbade judges in equity to try anything determinable at common law, or any fact arising in the course of proceedings, but to send it to an issue at law, would make proceedings in equity dilatory and multiply suits at law.I
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