USA > Pennsylvania > Pennsylvania, colonial and federal : a history, 1608-1903, Volume Three > Part 8
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The County court also had its criminal side and its justices were empowered to try all offenses except "heinous or enormous crimes." Occasionally the justices were clothed with jail de- livery powers, but generally the jurisdiction of the court in the disposition of criminal business was limited to offenses of minor
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Jasper Yeates
Member of the convention which ratified the Constitution of the United States; associate justice of the State Supreme Court 1791-1817. Photographed especially for this work from original miniature
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character. Appeals from the County court lay to the Provincial Council previous to the establishment of the Provincial court, in 1684.
Under its original name and general powers the County court was continued until 1722, when its civil and criminal branches were separated. The act of May 22 of that year, en- titled "An Act for the establishment of Courts of Judicature in this Province," provided for a court styled the "General Quarter Sessions of the Peace and Gaol Delivery, to be holden and kept four times in every year in each county," by a competent number of justices of the peace, appointed and commissioned by the gov-
ernor or his deputy. The same act also provided for the ap- pointment of a competent number of persons to hold the Com- mon Pleas. At first the same persons were commissioned to hold the terms of both courts, but in 1759 (Sept. 9) an act was passed prohibiting the justices of the Quarter Sessions from sitting as judges of the Common Pleas, and provision was made for the appointment of five persons "of the best discretion, capacity, judgment and integrity" to be commis- sioned for holding the Common Pleas. The justices of the Quarter Sessions and judges of the Common Pleas were ap- pointed for life or during good behavior. Under the first con- stitution the term was limited to seven years, but under the sec- ond constitution the law of life appointments was again restored.
The constitutions of 1776 and 1790, made few changes in the character and composition of the Common Pleas1 and Quar- ter Sessions courts, other than to clothe their justices and judges
1For more rapid disposition of civil court business in the city of Philadelphia the legislature in 1811 (March 30), passed an act to establish the "District Court of the City and County of Philadelphia;" such court to consist of a president and two assistant judges, with authority to hear and determine all civil pleas and actions, when the amount involved in controversy exceed-
ed the sum of one hundred dollars. The court at first was experimental and was authorized to continue six years, but it proved of such great value in quickly dis- posing of civil causes that it was in fact continued until 1874, when the reorganiza- tion of the Common Pleas made ample pro- vision for courts in the city and county without further need of the District Court.
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with certain chancery and equity powers. The life tenure of office was continued until the adoption of the constitution of 1838, when the term was limited to ten years, if the incumbent, then required to be learned in the law, should so long behave him- self well. Since 1850, in pursuance of an amendment to the judiciary article of the constitution of 1838, judges of the Com- mon Pleas and Quarter Sessions, as well as of all other courts in this State, have been elected by the people.
Under the present constitution, which went into effect Janu- ary 1, 1874, courts of Common Pleas and General Quarter Ses- sions of the Peace are maintained in each county. The judges of these courts, required to be learned in the law, are elected for terms of ten years each, receive fixed compensation, and are re- movable by the governor on the address of two-thirds of each house of the legislature. It is provided that the State shall be divided into judicial districts for the convenient transaction of business in these courts, with special provision for the counties of Philadelphia and Alleghany. At the present time the num- ber of districts is fifty-six. When any county shall contain forty thousand or more inhabitants it shall constitute a separate judicial district, and shall elect one judge learned in the law. Counties of less than forty thousand inhabitants may be formed into convenient single districts, or may be annexed to contiguous districts. The office of associate judge, not learned in the law, is abolished in all counties forming separate judicial districts. Previous to 1895 appeals from the Common Pleas and Quarter Sessions courts were taken to and reviewed in the Supreme court, but since that time, except in case of felonious homicide. appeals lay to the Superior court. The legislature has provided how and when appeals may be taken, and also has from time to time defined the powers and duties of the courts. Judges of the Common Pleas, learned in the law, are also judges of Oyer and Terminer, Quarter Sessions of the Peace and General Jail Delivery, and of the Orphans' courts in counties of less than one
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hundred and fifty thousand inhabitants. Within their respect- ive districts they are justices of the peace in criminal matters.
From the early times of the colony under one name or an- other the Common Pleas and Quarter Sessions courts have been the popular tribunals of the Commonwealth for the attainment
Walter H. Lowrie
Author; judge District Court, Alleghany County, 1846-1851; associate justice State Su- preme Court, 1851-1857; chief justice, 1857- 1863. From a photograph in possession of the Western University of Pennsylvania
of rights, the redress of grievances and the punishment of of- fenses against the law. Each still retains something of its original character, and in the writs, trials and judgments there is still preserved that which suggests the spirit and custom of the colonial period, and also the basic principle of these courts- the Common Pleas, Assizes, Exchequer and Queen's Bench of England.
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Orphans' courts, one of which exists in each county in the State, for two hundred years and more have been closely allied to the Common Pleas, although in the deprivation of their pow- ers and in their practice and purposes they are entirely distinct. An Orphans' court was established in the colony by act of the assembly passed in 1683, and was provided to be held by the jus- tices of the County court in each of the counties in the Province, conducting its business after the methods which then prevailed in the Court of Orphans' Masters in England.
The especial province of the Orphans' court was the inspec- tion and care of the persons and property of orphans, the admin- istration and control of the estates of deceased persons and the guardianship of minors. Under the several constitutions and numerous legislative enactments the powers and jurisdiction of the court have been enlarged, and it is a court of record, having a seal. It was maintained without material change until 1713. when it was reorganized and its terms were authorized to be held by the justices of the Quarter Sessions; but under the amend- atory act of 1759 the judges of the Common Pleas were made judges of the Orphans' court. This law still prevails, except in counties of more than one hundred and fifty thousand inhab- itants, where there are separate Orphans' courts, presided over by specially elected judges, learned in the law. Such courts are vested with the powers and jurisdiction of Register's courts, the latter being abolished in counties having Orphans' courts.
In name and in fact the Orphans' court has maintained an unbroken existence from the early colonial period. Its identity never at any time has been lost, and it has survived the sweeping changes of four State constitutions besides numerous legislative enactments ; and to-day it is the most convenient and expeditious medium known to the law for the accomplishment of the special purposes for which it was established.
A Provincial court, comprising five specially commissioned judges, was established in the colony in 1684, and was designed
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to relieve the council of a part of its former judicial duties. The Provincial Council, from which this court was descended, was one of the earliest tribunals in the colony and was called upon to perform various duties. Its members were chosen from
Robert Cooper Grier
Appointed judge District Court of Alleghany County in 1838; associate justice Supreme Court of the United States, 1846-1870. Repro- duced for this work from an engraving in pos- session of Mrs. William M. Darlington
among the most influential and wealthy men of the province, whose assistance was sought by the governor or his deputy in the administration of civil affairs. In fact, the council was the advisory body in the colony, a part of the legislative and execu- tive as well as judicial power, and the "great conservator of the public peace and dignity." Prior to the establishment of the Provincial court, the council heard appeals from the county
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courts, and previous to 1685 it constituted the court before which might be brought to trial persons charged with the grave crimes of witchcraft, enchantments, sorcery and the practice of "magick arts."1 The council also held jurisdiction in Admiralty cases until the establishment of a Vice-Admiralty court. It was in all respects a "High Court of Errors and Appeals," with the governor or his deputy as chief judge, and the councillors, who were ex-officio justices of the peace, in the capacity of associate justices. The duties of the Provincial Council as a judicial body were terminated with the new charter of 1701.
The Provincial court as originally established was clothed with authority to review and determine appeals relating to "titles to land and all causes, civil and criminal, both in law and equity, not determined by the respective county courts." It sat twice in each year in Philadelphia, and at least two of the jus- tices were required to sit in every other county in the spring and fall. The court was re-established in 1685, and its judges were reduced to three in number. It was reorganized in 1690 and again in 1693, when the number of judges was increased to five. One of the judges always was commissioned as chief justice. Appeals from the judgments of this court lay to the Privy Coun- cil of England. During the period of its early history the dig- nity and character of the Provincial court were sustained with difficulty. Its members were chosen for terms of not more than three years; the duties were arduous, necessitating all the incon- veniences incident to travel through unsettled localities and in- different entertainment at places where terms of court were re- quired to be held; and, above all, the compensation was inade- quate to service rendered. As a consequence the records were poorly kept, and many of the proceedings are not preserved.
1In this connection it is interesting to note that under the act of May 31, 1718, the following offenses were made punish- able with death: Treason, mis-prision of
treason, murder, manslaughter, sodomy, rape, robbery, mayhem, arson, burglary, witchcraft, and concealment of birth of an illegitimate child.
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George Sharswood
Member State Legislature 1837-1838 and 1842- 1843; judge District Court 1845; president District Court 1848-1867; justice Supreme Court of Pennsylvania 1867; and chief justice 1878-1882; author several standard legal pub- lications
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However, the court was maintained as a part of the judicial sys- tem until the reorganization act of 1722, when it passed out of existence and was replaced with the Supreme court.
The Supreme court of Pennsylvania, the ultimate tribunal of the State, is the direct outgrowth of the Provincial court and had its inception in the still older Provincial Council. On May 22, 1722, the colonial assembly passed an act for establishing courts of judicature, wherein it was provided, among other things. that "there shall be holden and kept at Philadelphia," etc., a court of record styled "The Supreme Court of Pennsylvania," comprising three persons "of known integrity and ability," com- missioned by the governor to be judges of said court with full power and authority to issue writs of habeas corpus, certiorari and writs of error ; to hear appeals from inferior courts properly brought before it for review, and in fact to have and possess original and appellate jurisdiction with full and broad powers consonant with the dignity of the highest court, subject to re- view only by the crown. Subsequently the number of judges was increased to four, and as judges of the Oyer and Terminer, in addition to former powers, they were required to visit the several counties twice in each year for the trial of capital felonies. Appointments to the bench of this court were made by the gov- ernor, and were for life or during good behavior.
Under the first constitution, owing to the weightier matters which engaged the public and legislative attention, it was de- clared that the courts of justice should be established "as here- tofore," and also that the judges of the Supreme Court of Judi- cature should be commissioned for seven years only, although capable of reappointment, and removable for misbehavior on the address of the general assembly. Under the second constitu- tion appointees to the Supreme bench held office during good be- havior, but were removable for cause on the address of two- thirds of each house of the legislature. The act of 1836 defined in detail the powers and duties of the court, and authorized its
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judges when sitting in banc to devise and establish by rule new writs and forms of proceeding for use in its own sessions and also in the Common Pleas and Orphans' courts.
The constitution of 1838, as far as it related to the Supreme court, made the term of office of its judges fifteen years, "if they shall so long behave themselves well," but in 1850 an important amendment to the judiciary article of the constitution took away the appointing power, previously vested in the executive, and provided for the election of its judges by the qualified electors of the State. With this radical change there disappeared the last remaining relic of the colonial period.
Under the present constitution1 of the Commonwealth the Supreme court consists of seven judges, elected in the State at large, who hold their offices for the term of twenty-one years, if they so long behave themselves well, but are not eligible to re- election. It is provided that the judge whose commission shall first expire shall be the chief justice and preside over the sessions of the court. The jurisdiction of the court extends throughout the State, and the judges are ex officio justices of Oyer and Ter- miner and General Jail Delivery in the several counties, and in addition thereto, under the constitution and the statutes are given original jurisdiction in special cases. They are exempt by law from any other than judicial duties, and no court of orig- inal jurisdiction to be presided over by any one or more of their number shall be established. For the convenient transaction of business the territory of the State is divided into districts, known respectively as the Eastern, Middle, and Western dis- tricts, and regular routine sittings of the court are held in each. The tendency in later years is to establish and maintain the Su- preme court as a court of final review only, to hear and determine appeals when properly brought before it, although its powers and
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1The constitution was ratified by the peo-
ple in November, 1873, and went into effect on January 1, 1874.
II2
JEREMIAH SULLIVAN BLACK Etched for this work by Albert Rosenthal From the photograph by Gutekunst
Photo by Gutekunst Exchod by Albert Rosenthal
Copyright by The Linesylvana Historial Publishny Son. Phila 1909.
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jurisdiction as defined by the constitution of 1874 are in no re- spect abridged.
For several years previous to 1895 the business of the court was far in arrears, and cases for argument and final determination were overcrowding the calendars and taxing the endurance quali- ties of the judges to the last degree. It was found, too, that many appeals were taken from the judgments of inferior courts which might better be received elsewhere than in the court of ulti- mate resort ; hence, in remedy, the legislature in 1895 established the Superior court and set certain limitations on the right of ap- peal to the Supreme court. The relations of these courts are known to the legal profession, hence a detailed narrative of the rules regulating their practice in appeals is not necessary in this chapter.
The Superior court was established by act of the legislature passed June 24, 1895, and consists of five judges, learned in the law, elected by the qualified electors of the State for terms of ten years each. The especial province of the court is to hear and de- termine appeals (except in cases of felonious homicide) from in- ferior courts, and it has no original jurisdiction, except in habeas corpus proceedings. Its practice is governed by substantially the same rules which obtain in the Supreme court, to which it is next inferior in rank in the State.
Admiralty powers and jurisdiction were assumed by the gov- ernor and his council under the broad terms of the royal charter. and were so exercised until 1693, when the judges of that court were first appointed by the Commissioners of Admiralty in Eng- land. The court was continued throughout the colonial period, but through lack of frequent opportunity to exercise its special function it proved an unimportant factor in the judicial history of the province. In 1789 under the United States constitution Admiralty jurisdiction was vested in the Federal courts.
Justices' courts were established by the governor under the charter, and have been maintained in every township in the State
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from Penn's time to the present. The councillors were clothed with powers of justices of the peace, and as such sat in review of the proceedings of courts of inferior jurisdiction; and the judges of the old County courts held commissions as justices. Under the present constitution justices are elected in wards, dis-
Penn Treaty Monument
Philadelphia. The south side of the shaft has the following inscription: "Placed by the Penn Society A. D. 1827, to mark the site of the Great Elm Tree." Engraved for this work from a negative by D. E. Brinton
tricts, boroughs and townships in such manner as the law pre- scribes, and hold under commission from the governor for the term of five years. The office, however, is abolished in certain municipalities.
The office of justice of the peace is descended from the Eng- lish office of the same name, although under the constitution it is far less important, and in this State is purely the creature of the
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statute. Under the colony justices were persons of influence and substance, and the "Squire" always was regarded as one of the dignitaries of the township, whose word was law and whose example was worthy of emulation. Now the office is of little consequence in the administration of law, and having lost much old-time importance has also sacrificed its former dignity.
A Court of Chancery was established in Pennsylvania in 1720 in pursuance of an act of the provincial assembly, and was contin- ued until 1735, when it was abolished.
Equity is and always has been a part and parcel of the law of this Commonwealth, whether under the colonial charter or the State constitution. It was a part of Penn's plan of government, and directly or by indirect implication has found its way into almost every law on the statute books from the time of the founder to the present constitution. In 16844 the Provincial court was granted powers as a court of equity, and in 1690 County courts were authorized to "hear and determine all matters and causes in equity" where the amount involved was ten pounds or more. In the act for the establishment of courts of judicature in the province passed in 1701, the judges of the County court were specially clothed with equity powers, and the same act also vested equity jurisdiction in the Provincial court, although in 1703 that power was set aside by the special order of the Queen's council. In 1710 another act establishing courts of judicature conferred equity powers on the County court judges, but this too was annulled in England in 1713.
Soon after this another attempt was made to vest special law and equity powers in the Provincial court, to be exercised in ac- cordance with the chancery forms of England, but even this proved fruitless and the authority was annulled in 1719. In 1720 Governor Keith established a separate court of equity, of which he was chancellor and his councillors were assistants. This court appears to have received the royal sanction, or at least was not annulled, and it maintained a nominal existence until 1736, when
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it was abolished by the assembly, the latter action having been in- stigated by clamorous opposition to the court on the part of the people. After these discouraging and fruitless efforts no further direct attempts were made in the same direction, although subse- quent legislative enactments and constitutional declarations con- ferred chancery powers on the Supreme, Common Pleas and Or- phans' courts in the combined administration of law and impartial justice. General powers in law and equity were given the courts by the act of 1722 and the constitution of 1790, and were broad- ened by the act of 1836, while subsequent legislative enactments and constitutional provisions have not in any sense lessened them.
This brief survey of the courts of the State, which omits only those that are purely local in character, will furnish something of an idea of the machinery provided for the use of the bench and the bar of Pennsylvania from the days of the colony to the begin- ning of the twentieth century.
The succession of chief and associate justices of the Supreme court, with date of commission, is as follows :
CHIEF JUSTICES
DR. NICHOLAS MOORE, 4th 6th mo., 1684
JAMES HARRISON (decl.), 14th 7th mo., 1685
ARTHUR COOK, 3Ist Ist mo., 1686
JOHN SIMCOCK, 21st 9th mo., 1690
ANDREW ROBESON, May 29, 1693
JOHN GUEST, 20th 6th mo., 1701
WILLIAM CLARKE, 1703
JOHN GUEST, 1705 ROGER MOMPESSON, Apr. 17, 1706
JOSEPH GROWDON, Nov. 20, 1707
DAVID LLOYD, Feb. 15, 1717
ISAAC NORRIS (decl.), Apr. 3, 1731 JAMES LOGAN, Aug. 20, 1731
JEREMIAH LANGHORNE, Aug. 13, 1739 JOHN KINSLEY (d. May 11, 1750), Apr. 5, 1743
WILLIAM ALLEN, Sept. 20, 1750 BENJAMIN CHEW, Apr. 9, 1774 JOSEPH REED (decl. ), Mar. 20, 1777 THOMAS MCKEAN, July 28, 1777; July 29, 1784; Jan. 31, 1791 EDWARD SHIPPEN, Dec. 18, 1799
WILLIAM TILGHMAN,, Mar. 1, 1806
JOHN BANNISTER GIBSON, May 18, 1827; Nov. 19, 1838; Nov. 17, 1851 JEREMIAH S. BLACK, Nov. 17, 1851
ELLIS LEWIS, Dec. 1, 1854; Jan. 5, 1855
WALTER H. LOWRIE, Dec. 7, 1857
GEORGE W. WOODWARD, Dec. 7, 1863 JAMES THOMPSON, Nov. 25, 1867 JOHN MEREDITH READ, Nov. 29, 1872 DANIEL AGNEW, Nov. 25, 1873
GEORGE SHARSWOOD, Dec. 4, 1878
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ULYSSES MERCUR, Dec. 26, 1882 ISAAC G. GORDON, July 14, 1887 EDWARD M. PAXSON (resigned Feb. 21, 1893), Dec. 18, 1883
JAMES P. STERRETT, Feb. 21, 1893
HENRY GREEN (d. Aug. 16, 1900), Dec. 6, 1899
J. BREWSTER MCCOLLUM, Aug. 17, 1900
ASSOCIATE JUSTICES
WILLIAM WELSH, 4th 6th mo., 1684 WILLIAM WOOD, 4th 6th mo., 1684 ROBERT TURNER, 4th 6th mo., 1684 JOHN ECKLEY, 4th 6th mo., 1684 WILLIAM CLARKE, 10th 7th mo., 1684 JAMES CLAYPOOLE, 14th 7th mo., 1685 ARTHUR COOK, 14th 7th mo., 1685 JOHN CANN, 3Ist Ist mo., 1686 JOHN SIMCOCK, 20th Ist mo., 1686 JAMES HARRISON, 20th Ist mo., 1686 JOSEPHI GROWDON, 2d 2d mo., 1690 PETER ALRICKS, 7th 5th mo., 1690 THOMAS WYNNE, 7th 5th mo., 1690 GRIFFITH JONES, 21st 9th mo., 1690 EDWARD BLAKE, 2Ist 9th mo., 1690 WILLIAM SALWAY, May 20, 1693 ANTHONY MORRIS, Aug. 10, 1694 CORNELIUS EMPSTON, about 1698 EDWARD SHIPPEN, about 1690 WILLIAM BILES, about 1699 ROBERT FRENCH, 20th 6th mo., 1701 CALEB PUSEY, 20th 6th mo., 1701 THOMAS MASTERS, 20th 6th mo., 1701 SAMUEL FINNEY, 1702 JOHN GUEST, Apr. 10, 1704 JASPER YEATES, Apr. 10, 1704 WILLIAM TRENT, Apr. 10, 1704 RICHARD HILL, Mar. 16, 1711 JONATHAN DICKINSON, Mar. 16, 171I GEORGE ROCHE, June 10, 1715 ROBERT ASSHETON, June 12, 1716 JEREMIAH LANGHORNE, Sept. 20, 1716 DR. THOMAS GRAEME, Apr. 9, 1731 THOMAS GRIFFITHS, Aug. 13, 1739 WILLIAM TILL, Apr. 5, 1743 LAWRENCE GROWDEN, Sept. 20, 1750 CALEB COWPLAND, Sept. 20, 1750 WILLIAM COLEMAN, Apr. 8, 1758
ALEXANDER STEADMAN, Mar. 21, 1764 JOHN LAWRENCE, Sept. 14, 1767 THOMAS WILLING, Sept. 14, 1767 JOHN MORTON, Apr. 20, 1774 WILLIAM AUG. ATLEE, Apr. 2, 1777 ; Aug. 16, 1777; Aug. 9, 1784 JOHN EVANS, Aug. 16, 1777 GEORGE BRYAN, Apr. 4, 1780 JACOB RUSH, Feb. 26, 1784 EDWARD SHIPPEN, Jan. 31, 1791 JASPER YEATES, Mar. 21, 1791
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