in the last entry in the Upland records. This entry, the last official act under the Duke of York's administrat on, is a notice to the magistrates of the cession of the territory to William Penn and a direction that they should yield due obedience to the new proprietor. Here then it is that the histories of the commonwealths of Pennsylvania and Delaware begin, if commonwealths may be said to have a beginning.

On March 4, 1681, the province of Pennsylvania was granted by King Charles II to William Penn, son of Vice Admiral Penn, to whom a considerable debt was then owing by the Crown.1 It would be tempting at this point to turn aside and discuss the character and career of the remarkable man who founded the commonwealth of Pennsylvania. Much has been written about him and yet it is doubtful if he has received his real due from history. William Penn was an idealist, perhaps in some respects a visionary man, and yet many of his views were eminently sensible and fundamentally sound. The leader of an exclusive religious sect, the welcome guest at court, the friend alike of James II, of Algernon Sydney and of John Locke, a man of brilliant parts and attractive personality, yet modest, generous, tolerant and forgiving, the nobility of his character as revealed in his writings and conduct is worthy of our highest admiration, little as it was appreciated by those who, like Franklin, owed much of their prosperity to his "Holy Experiment," but could not understand his motives. To his enlightened benevolence and faith in mankind, civilized and savage, was due the early prosperity and progress of the commonwealth. As a German writer has well observed, "Of all the colonies that ever existed none was ever founded on so philanthropic a plan, none was so deeply impressed with the character of its founder,

1 Charter and Laws of Pennsylvania, 81.

none practised in a greater degree the principles of toleration, liberty and peace, and none rose and flourished more rapidly than Pennsylvania. She was the youngest of the British colonies established before the eighteenth century, but it was not long before she surpassed most of her elder sisters in population, agriculture and general prosperity."

1

An analysis of the charter granted to Penn belongs rather to constitutional history than to our subject. The English government was daily becoming more impressed with the importance of the colonies in America, and in consequence the document was drawn with more care for the royal prerogative than the earlier charters. One of the most important of its provisions was that requiring a transcript of all laws made and published in the province to be transmitted within five years to the privy council, and if within six months such laws should be declared inconsistent with the king's prerogative or sovereignty, the same should be declared void, otherwise to remain in full force. Penn was given full power to make laws, with the advice and consent of the freemen of the country or their deputies in assembly, to appoint judges, justices and other judicial officers, to pardon crimes, treason and willful and malicious murder excepted, and to "do all and every other thing and things which unto the complete establishment of justice, unto courts and tribunals, forms of judicature and manner of proceedings do belong," and by judges appointed, to award process, hold pleas and determine all actions, suits and causes whatsoever, as well criminal as civil, personal, real and mixed. By three deeds the Duke of York conveyed to Penn the territory covered by the charter and the three lower counties.

1 Eberling's History of Pennsylvania quoted in Janney's Life of Penn and 1 Hazard Pa. Reg. 340.

On April 10, 1681, Penn commissioned his cousin, William Markham, to be deputy governor, who arrived on the Delaware about the first of July following. His first act was to call a council and on November 30th we find him holding court at Upland. Prior to this we have the first entry in the records of the Upland Court as part of the province of Pennsylvania.1 Nine justices are recorded as present. The first cases tried were two cross actions of assault and battery in which all parties were convicted and fined.2

3

Before sailing for America Penn drew up his famous "Frame of Government," the original manuscript of which, with interlineations and notes in the handwriting of his friends, is preserved in the archives of the Historical Society of Pennsylvania. Penn was a close student of political institutions and lived at a time when, in his own words, there was "nothing the wits of men are more busy and divided upon." He like many of his coreligionists had suffered imprisonment for conscience sake. The account of his trial is a fair picture of the administration of justice in the principal criminal court of London during the Stuart period. When we read those stirring pages we can understand the suspicion with which the courts were regarded by the colonists and their exaggerated faith in trial by jury. Fear of judicial oppression, in fact, had a marked influence on the development of our courts, was instrumental in checking the growth of chancery jurisdiction for several generations and was the primary cause of that jealousy of the judiciary which was long a feature of local politics.

1 The justices at New Castle in a letter to the deputy governor at New York dated November 11, 1681, refer to "Pensilvania.” 2 Hazard's Annals of Pennsylvania, 525.

3

Pennsylvania Historical Magazine, Vol. XXX, 6.

46 Howell's State Trials, 951 (1670).

Penn, although he had grown up in a period of political unrest, was eminently practical in his ideas of governHe was a believer in men rather than in methods. In the preface to the Frame of Government he says:

ment.

"But lastly when all is said, there is hardly one frame of government in the world so ill designed by its first founders, that in good hands would not do well enough; and story tells us, the best in ill ones can do nothing that is great or good; witness the Jewish and Roman states. Governments, like clocks, go from the motion men give them, and as governments are made and moved by men, so by them they are ruined too. Wherefore governments rather depend upon men, than men upon governments. Let men be good, and the government cannot be bad; if it be ill, they will cure it. But if men be bad, let the government be never so good, they will endeavor to warp and spoil to their turn."1

Under the system of government first established by Penn the executive powers were vested in the governor and provincial council, while the legislative powers were vested in the governor, provincial council and general assembly of the representatives of the freemen of the province. The provincial council was an elective body not only associated with the governor in the ordinary executive duties but also charged with the preparation of all new laws, which after publication,2 were to be submitted to the general assembly for approval. Both council and assembly were designed on generous proportions but at the request of the colonists the membership in both bodies was greatly reduced. The courts were to be erected by the governor and council, the latter body nominating a double number of candidates

1 Charter and Laws of Pennsylvania, 92.

2 For form of promulgation, see Minutes of Council, 2, 2 mo. 1686, I Colonial Records, 122.

3 The original Frame of Government as drawn up by Penn was amended at an assembly held at Philadelphia March 1, 1683, Charter and Laws of Pennsylvania, 93, 123. Penn's first dlan contained the principle of initiative and referendum.

from whom the governor was to select a proper number for each office. This last provision did not work well in practice, as it was difficult to get enough men of the right sort to fill the commission of the peace, as the minutes of the council clearly show.

It will be seen that the courts, as such, played but a subordinate part in the constitutional system. Indeed the conception of the judiciary as a coördinate branch of the government was as yet unrealized; balanced constitutions were the final products of the eighteenth century, the seventeenth was concerned with the fundamental rights, liberties and privileges of the subject. These rights, as applied in the administratoin of justice, were embodied in the "Laws agreed upon in England," and published with the Frame of Government. It is therein declared

"That in all courts all persons of all persuasions may freely appear in their own way, and according to their own manner, and there personally plead their own cause themselves, or if unable, by their friends. And the first process shall be the exhibition of the complaint in court, fourteen days before the trial; and that the party complained against may be fitted for the same, he or she shall be summoned no less than ten days before, and a copy of the complaint delivered him or her, at his or her dwelling house. But before the complaint of any person be received, he shall solemnly declare in court, that he believes in his conscience his cause is just.

"That all pleadings, processes, and records in courts, shall be short, and in English, and in an ordinary and plain character, that they may be understood, and justice speedily administered. "That all trials shall be by twelve men, and as near as may be peers, or equals, and of the neighborhood, and men without just exception. In cases of life, there shall be first twenty four returned by the sheriff for a grand inquest, of whom twelve at least shall find the complaint to be true; and then the twelve men or peers, to be likewise returned by the sheriff shall have the final judgment. But reasonable challenges shall be always admitted against the said twelve men or any of them.

"That all fees in all cases shall be moderate, and settled by the Provincial Council and General Assembly, and be hung up in a