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to preside in the respective courts and in his absence the justices who should attend were to choose a president. All actions in the provincial courts were continued in the same state as if the authority of such courts had never ceased.
The chief justice of the new supreme court was Thomas McKean, a signer of the Declaration of Independence and one of the most active of the patriot party. The associate justices were William A. Atlee and John Evans. The suspension of the courts caused considerable inconvenience and letters and petitions complaining of the prevailing conditions were presented to the council. In the counties the same trouble was had with regard to the justices, many of whom were away, or unwilling to act in the unsettled state of affairs; in some parts of the state the local committees of safety assumed judicial power and took cognizance of minor crimes.
The first session of the common pleas, at Philadelphia, when the style of process was altered from king to commonwealth, was held in September, 1777, when six attorneys were admitted to practice, but the British were already marching on Philadelphia, and before the end of the month the army of King George had expelled the new government.
During the occupation of Philadelphia by General Howe, from September, 1777, to June, 1778, the seat of government was in Lancaster. With the return of the state officials to Philadelphia the various agencies of proscription became active. Many persons were declared traitors and their estates forfeited to the
1 VI Pennsylvania Archives (1st Series), 228, 245, 294; VII Pennsylvania Archives (1st Series), 72; IX Colonial Records, 214, 260.
2 Biography of William Lewis, Pennsylvania Magazine, Vol. XX, 30.
commonwealth. The most important cases tried before the newly organized supreme court were treason trials, among which those of Roberts and Carlisle, which are very briefly reported, aroused great popular interest.2 Roberts, a miller of Lower Merion Township, was accused of acting as a guide to Sir William Howe and of persuading various persons to enlist in the British army. Carlisle was charged with having accepted a commission to keep watch over the gate of the city of Philadelphia, established by Howe to prevent the ingress and egress of persons not provided with passes. The accused were tried on the twenty-fifth and thirtieth of September, 1778, found guilty and sentenced to be hanged. Earnest appeals for executive clemency were made on behalf of the prisoners by petitions, but the council was firm and both men were hanged. In these, as in most of the other treason trials, James Wilson appeared for the defendants and acquired such unpopularity through his faithful efforts in behalf of his clients that his house was attacked by a mob, which was driven off only after a fight that cost several persons their lives.
The Revolution brought to an end the court of vice admiralty, of which Edward Shippen was judge, and it became necessary to create a tribunal to take its place. The Continental Congress advised the several legislatures to establish courts of admiralty and, accordingly, the assembly, on March 26, 1776, passed a resolution creating a court of admiralty to be held in the city of Philadelphia to try cases of captured vessels brought into that port, with the right of appeal to congress or to such person or persons as they should appoint to hear appeals. 3
1 X Colonial Records, 610, 745.
2 Respublica v. Carlisle, 1 Dallas's Reports, 35 (1778); Respublica v. Roberts, 1 Dallas's Reports, 39 (1778); and see IX Colonial Records, 600, 613.
3 Journal of Congress, Vol. 1, 260; VIII Statutes at Large, 519.
For this last purpose a committee was appointed by congress, whose feeble and unsupported authority was openly defied by George Ross, the Pennsylvania judge of admiralty, in the case of the “Active,” giving rise to a memorable controversy carried on in the courts long after the adoption of the constitution of the United States, and nearly resulting in an armed conflict between the federal and state authorities. This case, or rather series of cases, pointedly illustrates the growth of the federal power, the decree of the helpless commissioners of admiralty of the Continental Congress, long flouted by the state judges, prevailing, after many years, by virtue of a judgment of the supreme court of the United States, to whose authority the state officials, after calling out the militia to resist the marshal, yielded a sullen obedience.1
Francis Hopkinson, the distinguished writer, who succeeded Ross in 1779, was the first state judge to undergo the unpleasant experience of an impeachment by the assembly. This proceeding, which took place in December, 1780, was the result of a complaint by the judge against Mathew Clarkson, the marshal of the court, which resulted in his dismissal. Clarkson in revenge made charges against the judge before the assembly, which voted for his impeachment. The court consisted of President Reed and the council. Smith and Galbraith managed for the house with Attorney-General Bradford, while Judge Hopkinson was represented by James Wilson. The principal charges against the judge were that he had wrongfully issued a writ for the sale of the cargo of a ship, and that he had exacted illegal
1 Ross v. Rittenhouse, 2 Dallas's Reports, 160 (1792); Olmstead's Case, Brightly's Nisi Prius Reports, 9 (1809); United States v. Peters, 5 Cranch (U. S.) 115 (1809); Trial of General Bright; Federal Courts before the Constitution, 131 United States Reports, appendix at page xxix.
fees in a prize case. The judgment of the council, as pronounced by the president, was an acquittal upon all the charges, although it seemed to the council that the fees, which were charged according to the recognized practice of the court, were excessive. Upon the adoption of the constitution of the United States admiralty jurisdiction passed to the federal district courts and Judge Hopkinson was appointed the first district judge for Pennsylvania under the Act of Congress of September 14, 1789.
The necessity for a court of last resort to take the place of the privy council of Great Britain was met by the creation of the High Court of Errors and Appeals, under the act of February 28, 1780,2 to hear appeals from the supreme court, the register's courts and the court of admiralty.
This act, after reciting that the laws of the late province gave a very precarious, difficult and expensive remedy to parties injured by erroneous judgments, by appeal to the king in council, and that as "the good people of this commonwealth, by their happy deliverance from their late dependent condition, and by becoming free and sovereign are released from this badge of slavery and have acquired the transcendent benefit of having justice administered to them at home and at moderate costs and charges,” enacted that a court of error should be established composed of the president of the supreme executive council, the judges of the supreme court, the judge of the admiralty, together with three persons of known integrity and ability commissioned for seven years, any four or more of them to constitute a quorum. The court in this form had but a brief existence, its composition being materially changed
1 Pennsylvania State Trial (Hogan, 1794), 3; XII Colonial Records, 584, December 26, 1780.
2 X Statutes at Large, 52.
by the Act of April 13, 1791.1 Of the presidents of the council, Reed and Dickinson were leading lawyers and Dickinson rendered at least one very able decision in the admiralty case of Talbot v. Three Brigs. Benjamin Franklin, although he had once sat for a brief period in the common pleas, was wise enough to know that the administration of law required a special education, at least there is no reported opinion by him while president. Of the extra members of the court, Edward Shippen, judge of vice admiralty under the Crown, subsequently became chief justice of the supreme court; Francis Hopkinson has been mentioned and Henry Wynkoop was president judge of Bucks County.
That the Constitution of 1776 was not working smoothly was the opinion of a majority of the council of censors which met in 1783 to consider whether the constitution was being observed and whether it needed amendment. The committee on defects reported that the commissioning of the judges of the supreme court for seven years only was a material defect, because it rendered the tenure of judges dependent on the will of the council, while the committee on abuses reported that the section requiring fixed salaries for the judiciary had not been complied with as it ought and that permanent salaries should without delay be established for the judges during their continuance in office. The findings of the censors on these and other points were to bear fruit in the Constitution of 1790.
In 1786 an addition was made to the jurisdiction of the supreme court, which hitherto had exercised no original jurisdiction in civil cases except in fines and common recoveries. By an act of that year issues of
13 Smith's Laws of Pennsylvania, 28.
1 Dallas's Reports, 95 (1784). 3 Proceedings of the Constitutional Conventions of Pennsylvania of 1776 and 1790, 70, 107.