A.

COMPILATION

OF THE

LAWS AND ORDINANCES

ESTABLISHING THE

SEVERAL COURTS OF JUDICATURE

OF THE

PROVINCE OF PENNSYLVANIA,

WITH AN INTRODUCTION,

BY

STAUGHTON GEORGE.

INTRODUCTION.

If any apology is needed for the publication of the laws relative to the establishment of the several courts of justice of the Province of Pennsylvania, the fact that they relate to a question of so great importance as the administration of justice, and that the subject has been heretofore a sealed one, should be sufficient warrant for their publication at this time. Historians in attempting to throw light upon our early legal and judicial history, have failed in some cases to give the real facts, in others have been compelled to evade, or substitute surmise, simply for want of this material, which has been all the time in possession of the Commonwealth, but inaccessible to them.

A portion of the papers required for a consecutive compilation of the laws, has been so well guarded in the early record books, without index, or other notice of their presence, and among totally extraneous matter, that their existence was not known or suspected, until a careful study of the whole subject led to a persistent and long continued search, which was finally crowned with success, and the missing papers brought to light. We are thus enabled to present all the acts, ordinances, &c., which form a perfect chain from the earliest period; and future historians are put in possession of all that is requisite for determining the manner of practice, with all other facts relative to the administration of justice, during the several decades represented by them.

The history of the legislative proceedings incident to the passage of these acts has already been placed at the disposal of the public, through Franklin & Hall's "Votes and proceedings of the Assembly of Pennsylvania," and the Colonial Records, published by authority of the Commonwealth. To a proper understanding of some things which have presented an appearance of confusion to writers upon matters relative to the administration of justice, &c., it may not be improper to briefly mention some facts. in correction of errors, that have been made.

By Section 17, of his first frame of government, the Proprietary vested in the Governor and Council the erection of standing courts of justice, "for the good government of the said Province;" to the Council, the privilege of nominating yearly, a double number of judges, &c.; and to the Assembly, the privilege of nominating a double number of justices, sheriffs, &c., from which number so nominated, the Governor or his deputy was to make choice, and commission for each office the proper number to

serve for the ensuing year. These provisions were immediately put in practice, and all commissions issued were in the name of William Penn, as Proprietary, and signed by the Lieutenant Governor, for the time being. Judges were not commissioned by the Crown, as has been asserted. A large number of the commissions issued to judges of the Supreme Court, and justices of the county courts from 1700 down to the revolution, are on record in the Department of Internal Affairs. Many of the names in these commissions have been omitted in the lists of judges and justices which have been published from time to time. By an act passed in 1705, the offices of sheriff and coroner were made elective, and being considered as officers of the Crown, they were commissioned and required to enter bond in the name of the Queen. After the death of William Penn, in 1718, Governor Keith changed the style of commissions of judges, justices, &c., issuing them in the King's name.

Another matter which has presented a confused appearance, was the hearing of appeals, in both civil and criminal causes, before the Governor and Provincial Council.

With the laws in the body of this volume, to which reference will be made, and facts culled from the first volume of Colonial Records, we hope to be able to place the subject in position to be better understood.

William Penn, upon his arrival in 1682, adopted the laws of the Duke of York, which continued in force and effect, until replaced by the new code, enacted by the first Assembly held at Chester. The first mentioned laws provided that appeals and capital offences should be heard by the "grand assize;" the new code made no provision for the trial of capital offenses or the hearing of appeals; these defects were provided for the next year, by Chapter 69, (page 129, ante,) which prescribd the manner of procedure in criminal causes, &c., and Chapter 70, (page 129, ante,) that appeals from the county courts might be made to the Governor and Council. Chapters 117 and 118, (page 144, ante,) fixed the punishment for manslaughter and murder, respectively, but the county courts, already established, were not given jurisdiction in such trials, so that all causes other than those over which the county courts had direct jurisdiction, were tried by the Governor and Council, until the creation of the Provincial Court, in 1684. Even after that date, at times, appeals and other actions cognizable in that court, were tried before the Governor and Council, or Presi dent, (as the case may be,) for which there was, probably, ample excuse— the fact of the death of one of the judges first commissioned, and the articles of impeachment preferred against another, being sufficient to throw the administration of the first court into confusion. At another time the judges appointed refused to serve; and upon another occasion they refused to sign the judgment awarded by them. The fact that the law allowed appeals, &c., to be heard before the Council, may have led many to prefer entering their plaints before that body.

For many years the compensation awarded was totally inadequate to the

dignity of the court, and probably the judges found it more profitable to attend to their private affairs than to serve the public for honor only. Attention is also called to the fact that many cases heard by Council belonged to the admiralty practice, which was not within the jurisdiction of the Provincial Court; that many other cases brought to the notice of the Council, especially during the years 1685-6-7, directly after its establishment, were remanded to the proper courts to determine. Other of the judicial business, brought to notice of the Council, appertained to the practice. of orphans' courts, for which no very definite provisions had been made at this early period. (See Chapter 77, 1683, page 133, ante, and Chapter 188, 1688, page 180, ante.) These, in connection with the fact that jealousy existed relative to the geographical apportionment of the appointments of judges, (of which complaint was made as early as 1687, and at that time was thought of so much importance that the Assembly called the attention of the Council to the subject,) may have led to a feeling of distrust of the court.

In time these appeals to Council diminished in number, and the effort to establish and firmly fix its foundation is evidenced in the acts of 1685, Chapter 182; (page 177, ante,) of 1690, Chapter 197, and of 1693, Chapter 3, (pages 184 and 225, ante,) in which its duties and jurisdictions are enlarged and amply defined. It was, however, not until after the passage of the law of 1701, that the Provincial, as well as the other courts, were firmly established, and their several duties and jurisdictions fully defined. The Law of 1684, chapter 168, was prepared by a committee consisting of Thomas Holmes, William Clark, William Welch, and Thomas Lloyd. In Council the 4th of April, 1685, William Clark was ordered to prepare a form for indictments and summons, but no reference is made by which we can determine who prepared the act relative to courts passed that year. Clark may have been the author. He was commissioned as judge of the Provincial court the following year. The credit for preparation of Chapter 197, 1690, cannot be awarded to any one person, or sub-committee, as the Council, contrary to former practice, "resolved the whole board into a committee for preparing bills for promulgation," so that credit must be given the whole body.

In 1693, the practice of preparing bills in Council, as required by charter, was completely changed, (see historical notes,) and all bills were prepared by the Assembly. In that house, on the 26th of May, a committee was appointed to prepare certain bills, also," to alter and amend all such laws as they see convenient." David Lloyd, James Fox, Samuel Richardson, Thomas Pemberton, and Edward Blake were the members of that committee; and, as but one other committee to prepare bills was appointed, and the titles of the bills they were to prepare are distinctly mentioned it is but fair to presume that Chapter 3, of that year, "relative to appeals to the Provincial court," was prepared and reported by the above named committee.