USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 33
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On July 20, 1714, the law was replaced by an ordinance issued by Gov. Gookin. Its provisions in general were sim- ilar to those in the ordinance of his predecessor.2 But the assembly protested against the execution of the ordi- nance, and requested that in its stead a simple "declaration, or other public instrument," might be issued, directing the courts to be held at the usual times and places, and continuing the pleas and process then depending.3 The result of the discus- sion was a passive acquiescence on the part of the assembly, and the ordinance remained in operation until superseded by the act of 1715. In January of that year, the repealed act was read in part. A number of changes were pro- posed-among others that the powers of magistrates be specified in a bill " distinct by itself, and the practice in another ; that matters of equity shall begin originally in the provincial court, that the clauses for general quarter sessions and county courts of common pleas be put in separate bills,"4 etc. On the 28th of May the governor gave his assent to the fol- lowing, viz: "an act for establishing the courts of general quarter sessions ; an act for erecting a supreme or provincial court of law and equity; an act for establishing the several courts of com- mon pleas ; an act for the better ascertaining the practice of the courts of judicature ; and an act directing appeals to Great
1 Pa. Arch., Ist series, i, p. 158.
2 Charter and Laws of Pa., p. 351.
3 Col. Rec., ii, pp. 524, 571-573.
4 Ibid., pp, 578-585, 595.
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Britain." The only significant changes, when compared with the act of 1710, are to be found in the provisions of the second law. Here it was enacted that the sessions of the supreme court should be held semi-annually at Philadelphia; that it should have original jurisdiction both in law and equity ; that its powers should be as ample as those of the court of king's bench, common pleas, and exchequer at Westminster ; and that it should be given the authority to try capital crimes in the counties where they were committed.1 With the excep- tion of the law concerning appeals to the crown,2 every one of these acts was repealed by the king in council, July 21, 1719.
A little more than a year before the repeal of these laws, a
1 Charter and Laws of Pa .. PP. 355-371.
2 We have seen that in earlier times no certain rules were established by legis- lative enactment relative to appeals to the tribunal of final resort in Great Britain. The first definite reference to the subject was in the commission of William and Mary to Gov. Fletcher, wherein it was provided that, if either party were dissatis- fied with the judgment or sentence of the superior court, they might appeal to the Privy Council in case the matter in difference exceeded £300 in value, security being given by the appellant. It is doubtful whether the act of 1715, which in phraseology was similar to its predecessors of 1701 and 1710, and which mentioned no limit of money value, was satisfactory, for the king found occasion to complain of irregularity in the granting of appeals, not only in Pennsylvania, but in the other colonies. Hence, March 23, 1727, he issued the following instructions : " Whereas, upon appeals which have been made to us in our Privy Council in cases of error from the courts in several of our colonies and plantations in America, in civil causes great inconveniences have frequently arisen by the immediate issuing of execu- tions, notwithstanding such appeal unto us, where the appellee has become insol- vent, or hath withdrawn himself and his effects from such colony or plantation be- fore our pleasure could be known on such appeal. And our orders for reversing the orders and decrees appealed from, and for making restitution of the estates or effects which have been so levied in execution, have been rendered ineffectual and the appellant left without any redress. Now, for preventing the like mischief for the future, it is our will and pleasure that execution be suspended until the final determination of such appeal, unless good and sufficient security be given by the appellee to make ample restitution of all the appellant shall have lost by means of such judgment or decree, in case upon the determination of such appeal, such de- cree or judgment should be reversed, and restitution awarded to the appellant." Ibid., p. 395.
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dispute concerning the form of commissions to judges arose be- tween Gov. Keith and the council. For several years since the return of the proprietor to England the commissions had been issued merely in the name of the lieutenant-governor. Keith wished to issue commissions to the judges in the name of the king, and attested by the governor. He based his contention on the statute 27 Henry VIII, chap. 24, which deprived the Bishop of Durham of the power of appointing judges, and vested it in the crown. In his discussion with the council he argued that the king could not grant away any part of his prerogative which was essential to the preservation of the allegiance of the subject, and which the common and statute law of England asserted to be the rights of the king's majesty. He declared that, by the laws of the province, process was issued in the king's name. The proprietor, he thought, was given merely the power to name the judges. Otherwise, all judicial pro- ceedings would be subject to exceptions, the magistracy would become blamable, if not contemptible, and the right of the proprietor to appoint officers might be impaired. In reply, the council stated that the difficulty had arisen in not distinguish- ing the difference between England and "new colonies made without the verge of the ancient laws of that kingdom." As the king could give power to subjects to transport themselves to the dominion of other princes, where they would not be sub- ject to the laws of England, so he might allow them to go to any foreign country upon any conditions he might choose to prescribe. Furthermore, since the native Indians, who in- habited these newly discovered American lands, were not sub- ject to the laws of England, " those laws 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 into any other foreign place. The king by his charter had given the proprietor and the people full power to enact laws not repugnant to those of England, but "without extending any other than such as were judged
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absolutely necessary for the people's peace and common safety, till such time as they should think fit to alter them." Also the king in reserving his sovereignty had declared that they should continue to be his subjects, and that he was still their natural prince. But his prerogative as exercised in England, "which in some measure is a part of the law and constitution of England, can no more be understood to accompany the sovereignty, than all the other laws can." By virtue of the royal charter, the proprietor "has, by his charter to the peo- ple of this province, appointed the election and meeting of as- semblies, as also the election of sheriffs and coroners (who in Great Britain are the immediate officers of the crown), in a manner wholly inconsistent with the royal prerogative in Eng- land, and this method being further enacted into a law, it has passed the royal assent which is a full proof of the crown's ap- probation of it. In the same manner the proprietor might have granted the appointment of judges and justices, without any commission from himself or his lieutenant, which would have put this matter in debate out of question." Other pro- prietary governments, said the council, have granted com- missions in the names of the proprietors alone, and have not been questioned for it. There was no necessity, therefore, that such an innovation should be introduced into Pennsylvania. The fact that the writs were issued in the king's name was only an accident, yet as writs were part of the practice of the English law, it was thought proper to employ them in the courts in the usual form. This implied no necessity "that commissions should run in the same [way]" * : * since they being a delegated power from the proprietor and his lieu- tenants, might "justly bear the name of him in whom the power of granting them is principally lodged." Perceiving that the council was firm in its opinion, Keith agreed that the commissions should be issued in the name of the pro- prietor, and attested by himself. But at the death of Wil- liam Penn, in 1718, the commissions were issued in the
5
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king's name.ª This continued to be the case until the as- sumption of control by his sons, at which time the commis- sions issued were in their names as proprietors.
By an act passed in May, 1718, a new era was opened in the administration of penal justice. It seems that several persons in the province had sent to Great Britain complaints that the trial of criminals was conducted without the use of oaths .? The assembly thereupon requested Gov. Keith to favor it with his opinion as to the wisdom of extending to Pennsylvania such statutes of England as might under the present circum- stances be suitable to supply defects in the laws of the prov- ince. In accordance with his views it was resolved that a bill should be brought in "to put in practice here such statutes of England as the circumstances of this place hath occasion for, and that reference be made to the said statutes." David Lloyd was ordered to draw up the bill. Then an address was pre- pared by Keith and the assembly and sent to the king. It
1 Col. Rec., iii, pp. 33-36, 62.
2 Certain condemned murderers, by a petition to Gov. Keith, had appealed to the king in council. They stated that seventeen of the grand jury and eight of the petty jury were persons qualified only by affirmation. They claimed that the act of as- sembly by which judges, jury, and witnesses pretended to be qualified, was passed after the supposed crime had been committed, and after another act of the same tenor had been repealed by the crown. They declared that this act of assembly was not consonant to reason, and was repugnant to the laws of England. They therefore asked the king to do them justice according to the laws and customs of Great Britain. The governor and council in reply criticised the indolence of the preceding administration in not having brought the criminals to justice. They as- serted that the appellants had boasted that " it was not in the power of the govern- ment to try any capital crime according to the common and statute laws of Eng- land, which they would claim as their right." The governor and council further- more declared that the criminals had had a fair trial, and that great care had been taken to make the proceedings conformable to the laws of England, as well as to those of the province. The crown had granted to the proprietor and his lieuten- ants full powers of government, and in the present instance there was no reason for questioning them. It would be absurd for a condemned person, without regard to fact or circumstance, to make use of the right of appeal, when and where he pleased, in order to extort a reprieve from the execution of a just sentence. Hence the petition was denied. Ibid., pp. 40-42.
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stated that the persecution of the Protestant dissenters in Eng- land had induced the early settlers to emigrate to Pennsylvania in order that they might enjoy liberty of conscience. The people of the province had endeavored to exercise the powers of government in a manner most satisfactory to the ministry and to the crown. "For this end," said the assembly, "we have labored, more especially of late, to regulate the pro- ceedings in our courts of judicature, as near as possible could be done, to the constitution and practice of the laws of Eng- land." The address declared, finally, that the fact that pirates and other "loose, vagrant people " were "crowding in to shelter themselves under the peaceable administration " of Pennsylvania, and the necessity of punishing the infraction of the laws made needful the use of affirmations as well as of oaths, without which judges, juries and evidence could not be satisfactorily obtained.1 Indeed, it is quite probable that the privileges acquired by the clause of the act which provided for the use of affirmations equivalent to oaths, was the inducement for adopting the sanguinary rigor of the English penal law, in violation of the humane policy which had hitherto been fol- lowed in the province. For, in contrast to the criminal code of the other colonies, up to this time murder had been the only capital crime in Pennsylvania. Indeed, there seems a melancholy significance about the fact that, as the life of Wil- liam Penn, whose legislation marked by justice tempered with mercy,2 has been the admiration of the civilized world, was slowly ebbing away, his cherished ideals of humanitarianism were being ruthlessly destroyed and replaced by the gloomy severity of the Middle Ages. But with the addition of death penalties for counterfeiting bills of credit and current coin, this law continued in force until the adoption of a revised penal code after the Revolution.3
1 Votes, ii, pp. 233-236.
2 These were the words inscribed on his coat of arms. Charter and Laws of Pa., p. 80.
3 Dallas, Laws of Pa., i, p. 134.
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In the preamble is recited the provision of the royal char- ter, that the English laws of felony should be in force in Pennsylvania until altered by the proprietor and freemen. " Whereas," continues the preamble, "it is a settled point that, as the common law is the birthright of English subjects, so it ought to be their rule in British dominions; but acts of par- liament have been adjudged not to extend to these plantations, unless they are particularly named in such acts. Now foras- much as some persons have been encouraged to transgress certain statutes against capital crimes and other enormities, because those statutes have not been hitherto fully extended to this province," it was enacted that high treason, murder, robbery, mayhem, witchcraft,' arson, and six other crimes should be made capital, and fines, whipping, branding, and imprisonment were provided for lesser offences. The pro- cedure of English courts should be observed in the trial of criminals, and the following statutes were expressly extended to the province, viz .: I James I., chaps. 8 and 12, 2 and 3 Edward VI., chap. 24, and 5 Elizabeth, chap. 9.2
The repeal of the laws of 1715 relative to the jurisdiction of
1 In 1683 one Margaret Matson was accused of witchcraft. It was stated at the trial before Penn and the council that she had bewitched several cattle. One witness declared that on a certain night she had appeared in a room in the midst of a great light, with a knife in her hand, and had "cried out and desired John Symcock to take away his calves, or else she would send them to hell." Another witness asserted that when "her husband took a heart of a calf that died, as they thought, by witchcraft, and boiled it, * * * the prisoner at the bar came in and asked them what they were doing; they said, boiling of flesh ; she said they had better they had boiled the bones, with several other unseemly expressions." The priso- ner " denieth all things and saith that the witnesses speak only by hearsay; after which the governor gave the jury their charge concerning the prisoner at the bar. The jury went forth, and upon their return, brought her in guilty of having the common fame of a witch, but not guilty in manner and form as she stands indicted." Neels Matson and Antho. Neelson then entered into a " recognizance of fifty pounds apiece for the good behavior of Margaret Matson for six months." Col. Rec., i, PP. 95-96. For another instance of supposed witchcraft see Col. Rec., ii, p. 20.
2 Charter and Laws of Pa., pp. 371-382.
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the several courts left the province in the same condition that it was in at the repeal of the act of 1710. At a meeting of the council, held November 9, 1719, Gov. Keith, after calling its attention to the repeal of these acts, "proposed to the board to consider of the best method to prevent the inconveniences that by a discontinuance of the courts and depending process may ensue to the country, which being fully considered and debated, it was the opinion of the board that the governor should issue new commissions to the justices of the several counties, * * * authorizing and requiring them to hold courts of common pleas on the same days on which they should have held them by the law lately repealed, and to take cognizance of all the causes depending in the last courts; as also commis- sions to the said justices to hold courts of quarter sessions on the days upon which they should respectively have been held by the repealed law, proceeding therein according to the course of the common law and the law of this province."I On the 22nd of March, in the following year, similar action was taken relative to the sessions of the supreme court, and com- missions were prepared by the chief justice, David Lloyd.2 These proceedings, in accordance with the recommendation of the assembly at the time of its protest against the ordinance issued by Gov. Gookin, caused the " current of justice" to con- tinue until the passage of the act of 1722.
We have seen that, from the earliest period, both the county and the provincial courts had equitable jurisdiction. The law of 1715 provided that cases in equity should begin in the provincial court. The repeal of this act left no court of equity in the province. Thereupon, May 3, 1720, Gov. Keith sent a communication to the assembly in which he stated that, hav- ing consulted gentlemen learned in the law, he was satisfied that no " representative body of any of his majesty's colonies" was "invested with sufficient powers to erect such a court, or
1 Col. Rec., iii, p. 76 .
2 Ibid., p. 90; Charter and Laws of Pa., pp. 382-385.
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that the office of chancellor can be lawfully executed by any person whatsoever, except him who by virtue of the great seal of England, may be understood to act as the king's represen- tative in the place."" On the following day the assembly con- sidered the governor's message and resolved that, " consider- ing the present circumstances of this province, it is the opin- ion of this house, that for the present the governor be desired to open and hold a court of equity for the province, with the assistance of such of his council as he shall think fit, except such as have heard the same cause in any inferior court."2 This is what Gov. Evans in 1706 had endeavored to establish ; but, whatever may have been the attitude of the assembly at that time, it was complaisant enough when a governor like Keith, who was in every sense its creature, was to be the chancellor. At a meeting of the council held August 6, 1720, after stating that the courts of law were being regularly held, and justice duly administered therein by virtue of the several commissions issued by him, the governor declared that there was a necessity " that a court of equity or chancery should be held for the re- lief of those who suffer under the rigor of, or [who] cannot ob- tain their right by the common course of the law, the estab- lishment of which court of equity does not appear practicable by the same methods with those of the law, as being inconsist- ent with the nature of a chancery, as it is practiced in all his majesty's dominions, as well in Europe as America." After further consultation the same day, it was resolved that a court of chancery be opened; rules were adopted, and a proclama- tion was ordered to be issued, giving notice of the time and place for holding the court.3 It was the rule therefore that, as often as the governor sat in chancery, all the members of the council who resided in or near Philadelphia, should be sum- moned as assistants, and no decree was to be issued except by the governor as chancellor, with the assent of two or more of
1 Votes, ii, p. 270.
2 Ibid., 271.
3 Col. Rec., iii, pp. 105-6; Charter and Laws of Pa., p. 386.
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the six senior members of that body. The six might also be employed as masters in chancery.I
The court appeared to have worked smoothly enough while Keith catered to the democratic element, and its proceedings were not questioned till January, 1736, toward the close of Gov. Gordon's administration, although in the meantime two acts for the establishment of courts had been passed, and fourteen assemblies held. For nine years, however, only two cases had come to an actual decree, and in both these cases the decree was made by the consent of the parties them- selves. Moreover, the dislike cherished by the assembly to- ward Gordon on account of his adherence to the rights of the proprietors, and against the council because it was composed of friends of the proprietors, caused a complaint against the court to be sent to him. The assembly declared that the ex- istence of the court was a direct violation of that clause in the charter of privileges of 1701, which provided that no person should be "obliged to answer any complaint, matter, or thing whatsoever relating to property, before the governor and council, or in any other place but in the ordinary courts of justice, unless appeals thereunto " should be settled by law. The mere vote of the assembly of 1720, said the house, was "not of sufficient authority to raise a court of equity," but an act should have been passed for that purpose. It asserted also that the fees of the court were exorbitant, and compared its procedure with that of Star Chamber in England. Thereupon it sent the governor a bill to vest inferior equitable jurisdiction in the county courts, while in cases sent up on appeal, or in- volving the value of $100, a supreme court of three judges, to be commissioned by the governor from six nominated by the house, should have similar powers.2 The governor, supported by the council, defended his conduct as chancellor. He thought the comparison with Star Chamber deserved severe censure. If the fees had been too high, the assembly could
1 Votes, iii, pp. 254-5. 2 Ibid., pp. 256, 258, 273.
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easily have remedied that. He asserted that the nomination of judges by the house was unreasonable. He dwelt upon the proceedings of the assembly of 1720 in establishing the court. He called the attention of the assembly to the fact that several of its members in 1720 were among the members that had accepted from the proprietor the charter of privileges, and they were assuredly " capable of judging of the true intent and meaning of that clause." When, in 1725, the house, in its "Vindication of the Legislative Power," composed by David Lloyd, had made a critical consideration of this charter, no conflict between it and the court of chancery was mentioned. In fact, in 1726, the rules of the court were drawn up by Lloyd and Andrew Hamilton. No assembly since 1720 had seen fit to alter the procedure of the court. He claimed that the court of chancery, as held by the governor and council in all the colonies, was an "ordinary court of justice." He thought it strange " that the person in whom half the power of legis- lation and the whole power of appointing all the magistrates, those of corporations excepted, is vested, should be thought unfit to be trusted with only a vote, in conjunction with others, in the trial of a case of private property." His desire "to pre- serve decency and order and some resemblance between this government, and all the other British ones in America," prompted him to advise the continuance of the court.1 Thereupon the proprietors requested the opinion of the attorney-general and solicitor-general on the legality of the court. The crown lawyers declared that the unanimous resolution of the assembly, May 4, 1720, the action of Gov. Keith in issuing a proclamation to establish the court, and the subsequent approval of the assem- bly, were sufficient in themselves to endow the court with legal powers in spite of the clause in the charter of 1701. But if the governor had proceeded to establish the court without the consent of the assembly, in view of the charter of 1701, his act would have been at least questionable. "Until the whole leg-
1 Votes, iii, pp. 268-273.
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islature," said they, " have passed an act to the contrary," the court legally established might be legally held. Lastly, they asserted that, as the assent of the governor and six-sevenths of the assembly had been given, the establishment of the court did not violate the charter of privileges, and that the resolution of the assembly of 1736 did not make that illegal which before was not illegal." But the belief that the court would be used to aid in the recovery of arrears due the proprietors was so general in the province, that popular aversion prevented its re-establishment.2 The proprietors, however, thought that such a court was necessary for the trial of cases concerning land, and that the governor was legally empowered to hold it.3 In fact, in 1751, they instructed Gov. Hamilton "to pass no bill for doing what ought to be done by a court of chan- cery."4 "We desire," wrote Thomas Penn to Mr. Peters, September 28, 1751,5 " that the court of chancery may be es- tablished in a manner most favorable to the people, without giving up the king's prerogative with which we are entrusted. We should have some share of influence, else the trial would not be equal. We are willing, however, that the assembly should regulate the court." Orders to this effect were sent also to Gov. Denny and to Gov. John Penn. The proprietors offered to allow persons other than the governor and council to hold the court,' but the assembly continued its opposition to the very end.
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