"And if any person shall think himself aggrieved with the Judgement of the County Court, That then, such person may Appeal to have the same tryed before the Governour and Council; Provided always that the same be above twelve lbs. And that the person appealing, do put in good, and sufficient Security, to pay all Costs and Damages, if hee shall be cast, as also to pay the Cost and Charges of the first Suit."1

The legislative activity of Penn and the assembly during the early days of the colonization of Pennsylvania was such as to render it difficult to follow all the changes in procedure. No colony started with a more complete and original code, but much was necessarily experimental and was gradually modified under the influence of practical experience. The change in the dynasty and the political vicissitudes of the proprietor were also disturbing elements and an atmosphere of uncertainty surrounds much of the legislation prior to Penn's second visit to America. In 1693, when Penn's government was suspended and Governor Fletcher of New York in charge, an investigation showed the rolls of the laws in confusion and not passed under the great seal. There was no certain evidence either that they had been transmitted to the privy council for approval, although David Lloyd and John White stated that they knew that Penn had delivered some at least of the laws to the king in council.2 In 1694 some of the laws were

1 Charter and Laws of Pennsylvania, 129.

2 Minutes of Provincial Council, May 24, 1693, 1 Colonial Records, 379, 380. Penn under date of 25, 7 mo. 1689, instructed Deputy Governor Blackwell "to collect ye Laws that are in Being, and send them over to me in a sticht book, by ye ffirst opportunity, which I have so often and so much in vaine desired." I Pennsylvania Archives (4th Series), 106; 1 Colonial Records, 276, 2, 11 mo. 1689-90. It would seem that Penn had contemplated periodic revisions of the whole code, 1 Colonial Records, 42, 24, 1 mo. 1684; 151-2, 1, 2 mo. 1687; letter of Penn to Council, Pennsylvania Magazine of History, Vol. 33, 308; Chapter 142 of the Acts of 1683, Charter and Laws of Pennsylvania, 155.

sent over, for on August first of that year Penn appeared before the committee on trade and plantations and objected to the act about recording deeds. On the third of August following the attorney-general gave his opinion on the acts and the committee agreed to approve of nineteen, to repeal two and to hold five until the general assembly had given them further consideration. From the titles, which alone are given in the journal of the board of trade, the acts referred to are apparently those passed in 1693 under Governor Fletcher and include one "about appeals to the Supream Court."1 On December 31, 1697, Penn laid some more laws before the commissioners of trade2 but the minutes do not state what they were or what action was taken on them. However, this much is certain, that in their more general provisions these laws were recognized and to some extent observed, but the unsettled political conditions, brought about partly by the absence of the proprietor after 1684 and the English revolution of 1688, led to confirmations, reenactments and repetitions of statutes in varying phraseology, which must have caused confusion, particularly as the laws were not at this time allowed to be printed, manuscript copies being filed in the county courts with the president or clerk. Hence, the

1

3

Journal of the Board of Trade (Mss. Historical Society of Pennsylvania, Vol. VII, 309), August 3, 1694.

In 1694 the speaker informed the house that the laws passed by the last assembly, and transmitted to the king and council, were lodged with the king's attorney, "who expects twenty guineas for perusing them, so that the same are not disallowed." I Votes of Assembly, 82, 25, 3 mo. 1694.

2 Journal of the Board of Trade, December 31, 1697, Vol. X, 386.

3 I Colonial Records, 18, 23, 3 mo. 1683. The jurisdiction of the courts prior to 1700 has been admirably described by the late Lawrence Lewis, Jr., Esq., in a paper read before the Historical Society of Pennsylvania March 14, 1881, and reprinted in I Pennsylvania Bar Association Reports, 353.

text of acts passed before 1700 must be accepted with considerable reserve and it is difficult to determine just how far the more experimental features were enforced.

The county courts were vested with criminal jurisdiction in all except such important crimes as treason, murder and manslaughter and, after 1693, burglary, rape and arson. At times, however, a special commission of oyer and terminer was issued to some of the justices to try a special offender or to clear the jail. The offenses for which indictments were most frequently found and trials had were for drunkenness, larceny, profanity, assault and battery and breach of the peace, offenses against morality, "selling rum to the Indians," speaking disrespectfully of the magistrates and breaking the Sabbath. In the lower counties there are occasional arrests on suspicion of piracy and smuggling. The following entry in the Chester County court records carries a faint echo from Monmouth's Rebellion :

"Ordered that the sheriff take into his custody the body of David Lewis upon suspicion of treason, as also the body of Robert Cloud for concealing the same; for that he the said Robert Cloud being attested before this court, declared that upon the 3d day of the weeke before Christmas last at the house of George Foreham, the said David Lewis did declare in his hearing that he was accused for being concerned with the Duke of Monmouth in the West Country."1

On the civil side the practice at this period did not differ materially from that under the Duke of York, although there is a gradual improvement in the forms and methods of procedure and in the use of legal terms, as the courts acquired experience or became better

1 Chester County Records, 6th, 8 mo. 1685; 5 Hazard's Pennsylvania Register, 156. The case of Cock v. Rambo, Pennypacker's Colonial Cases, 79, is an illustration of the practice in a criminal case from the binding over to final judgment.

informed as to their duties through the importation of law books into the province. Although without legal training, the justices lived in a time when a knowledge of the rudiments of the law and the ordinary forms of conveyancing were essential to a gentleman, or merchant of importance, and a copy of Dalton's Justices with the acts of assembly would meet most of the requirements of a rustic community. Some at least of the justices were drawn from the same class as supplied the quarter sessions in the rural districts of England.

A difficulty seems to have confronted them in properly upholding the dignity of the courts. A rule of the Philadelphia County court for 1686, after reciting that many disorders had been committed in the courts of this county, partly through ignorance and partly through negligence of otherwise well-meaning persons, goes on to order

"That plfs, dfts, and all other psons speake directly to the point in question, & yt they put in their pleas in writing (this being a Court of record) & that they forbeare reflections & recriminations either on the Court, Juries or on one another; under penalty of a fine."

Nor were the judges always free from fault themselves. Justice Luke Watson of Sussex County was in 1684 twice fined by his colleagues for "smoakin tobacco in the Court house," the first time fifty and the second time one hundred pounds of tobacco, an instance where the punishment certainly fitted the crime. Another

1 Pennypacker's Colonial Cases, 99. In the previous year Thomas Howell was fined one shilling for breach of a rule. "Hee saucilie ansered Let the Court gett it how they can."

2 Sussex County Records (Turner), 109. Watson was expelled from the provincial council in 1686, I Colonial Records, 129, 10, 3 mo. 1686, but reinstated, I Colonial Records, 177, 10, 3 mo. 1688.

justice was fined five shillings for swearing.1 In the same county in 1687 one Thomas Jones refused to attend court when summoned and a constable and two justices were sent to fetch him, whom he roundly cursed. The record adds:

"The said Jones being brought to the Court, the Court told him of his misdemeanor, and told him he should suffer for it; he told the Court he questioned their power, soe the Court ordered the Sheriff and Constable to secure him and they carryed & dragged him to ye smith shop where they put irons upon him, but he quickly got the Irons off and escaped, he having before wounded several persons' legs with his spurs that strived with him, and when they was goeing to put him in the Stocks, before that they put him in Irons, he kicked the Sheriff on the mouth and was very unruly and abusive, and soone got out of the Stocks." 2

The grand jury of Philadelphia County in 1686 presented Justice James Claypoole "for endeavoring by an indirect way to preposess Judge Moore in a case yt was to be tryed before him in the provinciall court, being by us lookt upon to be of a dangerous Consequence, and "for menacing and abusing ye jurors in ye triall of John Moon which was an infringement of ye rights and properties of ye people."

In the trial of cases the procedure was characteristically simple. If the plaintiff failed to serve his process he was nonsuited; if the defendant failed to appear judgment was entered against him. If both parties were present the defendant was called on for his answer, which could set up any defense legal or equitable or claim a set-off. The law required the pleadings to be

1 Sussex Records (Turner), 110. He could have cited yearbook precedents in his favor.

2 Sussex County Records Mss., quoted I Pennsylvania Bar Association Reports, 361.

3 Pennypacker's Colonial Cases, 116 (1686).

* See Reynolds v. Simpson, Pennypacker's Colonial Cases, 77 (1685).