113

4

reënacted in 16931 and again in 17002 with a more severe punishment for the crime. The last act was repealed by the Crown in 1705 upon the advice of the attorney general, Sir Edward Northey, who pointed out that "by this law for adultery a bill of divorce is allowed to the injured husband and wife, but the divorce is not explained, whether to be a vinculo matrimoni or only from bed and board, as the ecclesiastical laws of England allow, which I think ought to be ascertained." The defect was remedied by the Act of January 12, 1705-6, which, in adultery, gave the injured party a divorce from bed and board, to be granted on bill by the governor or lieutenant-governor for the time being. This act was allowed to become a law. If the governor exercised this power it has escaped notice in the minutes of the council, but among the records of the court of chancery is a bill filed by a wife against her husband, praying for a writ of ne exeat against the defendant, until he should enter security to answer a bill for divorce.5 The writ was allowed but there is no entry of the final result of the divorce proceeding. It would have been strange, however, if the practice of obtaining a divorce by act of parliament, which was the only means by which the marriage bond could be dissolved in England in the eighteenth century, had not been imitated in America, and, accordingly, we

1 Charter and Laws of Pennsylvania, 194.

2 Act of November 27, 1700, II Statutes at Large, 5.

3 II Statutes at Large, 490.

6

4 II Statutes at Large, 180. By another act, of the same date, a divorce from bed and board was allowed to the first husband or wife of a bigamist. II Statutes at Large, 181.

Rawle's Equity in Pennsylvania, Appendix, 25.

"As a matter of fact, for the century and a half during which the practice prevailed perhaps not more than two hundred such separations were granted." Howard, Matrimonial Institutions, Vol. II, 106.

find a bill passed February 18, 1769,1 to dissolve the marriage between Curtis Grubb and Ann Few, his wife, and to enable him to marry again. Before approving this bill Governor John Penn sent to the assembly for the papers and proofs in support of the charges of adultery and bigamy made against the wife and suggested several amendments to the act.2 When the laws of 1769 were submitted to the privy council, this act was referred by the committee for plantation affairs to Mr. Jackson, their counsel, who gave it as his opinion that the assembly had properly exercised a power which he was inclined to think they ought to be entrusted with, but, as the matter was very important, he advised that the attorney and solicitor-general be consulted.3 The point was so referred but no reply was received and the act became a law by lapse of time. The same question arose three years later when a bill was passed to divorce George Keehmle from his wife Elizabeth, who had been tried, in the supreme court, for adultery and convicted. This time the committee on plantations advised that the king should refuse to confirm the act and should give "such directions as shall have the effect to prevent the laws passed by the legislature of Pennsylvania, becoming a precedent and example for the exercise of like powers in other colonies." The act was accordingly declared void April 27, 1773,5 and in the same year a circular letter sent to the provincial governors commanding them not to give their assent to any bill "for the divorce of persons joined together in Holy

1 VII Statutes at Large, 263.

2 IX Colonial Records, 564, 566, 567, 580.

3 VII Statutes at Large, 626.

4 VIII Statutes at Large, 243.

5 VIII Statutes at Large, 597, 600; Votes of Assembly of Pennsylvania, Vol. VI, 485, 488; X Colonial Records, 104.

Marriage."1 Prior to this the governor had refused his consent to a bill "making void the pretended marriage of Rebecca Vanakin with a certain John Martin." No more divorce acts were passed until 1779 when James Martin was divorced from his wife Elizabeth, who had eloped with Sergeant Havell of the British Army "taking with her the said James Martin's effects, and leaving him to pay sundry debts of her contracting." From this time the number of special acts granting divorces increases. Ten were granted prior to the Act of September 19, 1785, which conferred jurisdiction in divorce upon the supreme court and authorized absolute divorces in the cases of impotency at time of contract, bigamy, adultery and willful and malicious desertion for four years, as well as divorces from bed and board in other cases, an extremely liberal law for that day but soon superseded by legislation even more liberal. Private divorce acts, however, were passed by the legislature until forbidden by the constitution of 1874.5

4

An examination of the judges' commissions, in the archives, will show that the practice, prior to the Revolution, was to issue to the justices of the peace of each county a joint commission authorizing three or more of them to hold the quarter sessions, and likewise assigning any three or more of them to hold the court of common pleas. Separate commissions were issued

1 November 24, 1773, O'Callahan's Documents relative to the Colonial History of New York, Vol. VIII, 402; New Jersey Archives, Vol. X, 411, 412.

2 X Colonial Records, 40, 53, 54.

5

3 IX Statutes at Large, 433.

4 XII Statutes at Large, 94.

Eighteen private acts were passed in 1873. For the present law see the Act of March 13, 1815, 6 Smith's Laws of Pennsylvania, 286; Pepper & Lewis's Digest of Decisions, Vol. V, col. 7075; Stewart's Purdon's Digest, Vol. I, 1230.

to the chief justice and justices of the supreme court, and a joint commission of oyer and terminer.1 In 1717 Governor Keith questioned the propriety of issuing commissions to the judges in the name of the proprietor instead of the king, since, even if the charter could be so construed, the king could not grant away any part of his prerogative inseparable from the sovereignty. The council replied that the difficulty arose from not distinguishing fully "between the state of England and that of new colonies made without the Verge of the ancient Laws of that kingdom."

"That these American Lands being new Discoveries of Tracts long settled by their native inhabitants the indians who were under no subjection to nor had any knowledge of the laws of England; those laws, whenever they come to reach these Lands, 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 they would the same persons going into any other foreign part of the world."

And further, that the royal prerogative as exercised in England could "no more be understood to accompany the sovereignty than all the other laws can." Keith yielded to the opinion of the council. After the death of Penn, judicial commissions were issued in the name of the king and attested by the governor, by authority of the proprietor, while minor officials were commissioned in the name of the proprietors alone.3

In these commissions the time for which they are to run is not stated. The commission of the peace seems to have been filled up and renewed at first yearly, but later at longer intervals of irregular length, and it was

1 See examples in VIII Pennsylvania Archives (3d Series), 23. 2 III Colonial Records, 23, February 14, 1717.

3 Charter and Laws of Pennsylvania, 382, 385; VIII and IX Pennsylvania Archives (3d Series), passim.

the custom for governors to renew the commissions at, or soon after, their accession to the government.1 At these various renewals it may be presumed that undesirable members were dropped. The justices of the supreme court also were recommissioned from time to time, but would seem usually to have held their offices until death or resignation. The real trouble seems to have been to persuade men of ability to fill the thankless positions. The assembly neglected the matter of compensation, and on Penn's second visit he seems to have himself promised the chief justice one hundred pounds a year. In 1706 the salary of the chief justice is said to have been in arrears, and it was proposed that the assembly should be asked to make some provision for the judges, as it was unfair to throw this expense on the proprietor. Roger Mompesson, judge of vice admiralty, who was appointed to the office soon afterwards, accepted, "though the present encouragement be but very slender and no way inviting." The perquisites of the court were the fees allowed by the fee bill. Those established by the Act of March 30, 1723,3 were four shillings for every allocatur signed, six shillings for every case brought into court by certiorari, taking bail two shillings, every judgment six shillings, every rule two shillings. As late as 1772 the salary of the chief justice of the supreme court was two hundred

1 So, also, on the accession of a new sovereign, III Colonial Records, 298, September 1, 1727. Chronological lists of the judges of the supreme court and of the court of common pleas and the orphans' court of Philadelphia County will be found in John H. Martin's Bench & Bar of Philadelphia (1883). Another list, slightly different, will be found in IX Pennsylvania Archives (2d Series), 629.

2 II Colonial Records, 247, April 17, 1706.

3 III Statutes at Large, 369; same in Act of August 22, 1752; V Statutes at Large, 161.