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short and in English. The parties would sometimes leave the case to the bench without a jury,' particularly in the lower counties, but if a jury was called, it consisted invariably of twelve men. After verdict judgment was entered and the practice survived for some time of entering judgments in kind-perhaps reaching a climax in an entry of judgment for "one thousand of six-penny nails, and three bottles of rum."2
As to process of execution, we know little except that the proceedings would seem rather summary. An order of council was made in 1686 "yt there should be tenn days Respite between judgm given in ye County Courts within this Province and Territoryes in all Civill Causes, and signing the execution thereoff, and that in the Proy Court no Execution shall be served until eight days after judgm given.” To this the assembly in 1687 made strenuous objection and urged that the order be revoked, whereupon the council decided to leave the matter to the discretion of the courts. There are recorded several petitions to the council for relief against executions on judgments entered by default, and others for relief against vexatious and oppressive executions. In one of these a widow complains that judgment having been obtained against the estate of her deceased husband, the sheriff had levied on the
1 In Proprietor v. Wilkins, Pennypacker's Colonial Cases, 89 (1685–6), a criminal case in Philadelphia, after the defendant had elected to be tried “by the bench of justices without a jury,” Hersent, the attorney-general, contended that it was contrary to law to try a prisoner without a petit jury. His contention was overruled, but the prisoner was convicted and fined.
2 Sussex County Records Mss., quoted I Pennsylvania .Bar Association Reports, 364.
3 I Colonial Records, 122, 2, 2 mo. 1686.
* I Colonial Records, 157, 158, 11, 3 mo. 1687. In Philadelphia the practice was for the justices to sign the order for an execution. Pennypacker's Colonial Cases, 108; so, also, in the provincial court, I Colonial Records, 95, 11, 5 mo. 1685.
plantation where she and her children dwelt, although there was sufficient property elsewhere to satisfy the debt. The council sent for the sheriff and told him that if there were other effects of the decedent he ought not to levy on the plantation where the widow and children lived. In other cases relief seems to have been given on account of the poverty of the defendant, a practice that would pave the way for the debtor's exemption law.2
In criminal cases the sentences were usually limited to fines, whippings or the stocks. Sentences to terms of imprisonment were rare; the colony could ill afford to spare the labors of any individual, however depraved, and still less was it inclined to support him in idleness. Penn's incarceration in Newgate had familiarized him with the evils of prison life and he expressly ordained that prisons should be workhouses. Such prisons as were built at this time were neither particularly commodious nor strong. In 1688 the council found it necessary to reprimand the sheriff of Sussex for permitting a dangerous prisoner to be at large. The prisoner magnanimously sent word to the council that he would yield himself up rather than “ye sheriff should suffer.”'4 A similar reprimand was administered to the sheriff of Philadelphia for permitting two prisoners suspected of piracy to go at large, to which the sheriff replied, that they never went without his leave and a keeper, "wch hee thought might have been allowed in hott weather."5
1 I Colonial Records, 124, 9, 2 mo. 1686.
2 I Colonial Records, 125, 9, 2 mo. 1686, also pages 153, 156, 161..
3 Charter and Laws of Pennsylvania, 100.
5 I Colonial Records, 531, August 8, 1699. Part of Patrick Robinson's house seems to have been used as a prison. Watson's Annals of Philadelphia (1850), Vol. I, 356.
By the Act of March 1, 1683,1 the justices of the county courts were required to sit twice a year as an orphans' court. The name as well as the original purpose of this court was derived from the court maintained by the corporation of London, which, by immemorial custom, had charge of the estates of orphans of freemen of the city. The practice and jurisdiction of the court, which will be discussed later, differed from that of its prototype but was not distinctly settled at this time, and we find the provincial council taking cognizance of matters that subsequently were assigned to this tribunal or to the register's court, such as the appointment of administrators, and sale of land for debts.
Prior to 1684 there existed in the province no tribunal having cognizance of appeals other than the provincial council, which, in some degree, supplied the place of the general court of assizes under the Duke of York's Laws. As the colony grew, the ever increasing number of appeals took up more and more of the council's time and made this duty exceedingly burdensome, not to speak of the inconvenience to the suitors in traveling to Philadelphia with their witnesses for a hearing de novo. To remedy this inconvenience the Act of May 3, 16842, was passed, which provided that there should be five provincial judges, appointed by the governor, any three of whom should form the provincial court and sit twice a year in Philadelphia, while two of them should every spring and fall go on circuit into every county and there hold court. The court was to hear and determine all appeals from inferior courts and all causes, criminal and civil both in law and equity not determinable in the county courts. In 1685 the number of judges was reduced to
1 Charter and Laws of Pennsylvania, 131. 2 Charter and Laws of Pennsylvania, 168.
three, but the original number was restored by the Acts of 1690 and 1693.1 A commission was accordingly issued by Penn to five judges, of whom Nicholas Moore was named first, the commission to be in force for two years. The law did not fix any definite period for service and the commissions were drawn for various periods. In one instance it is noted in the minutes of the council that the commission is to continue "only for this present court.”3 Jealousies quickly arose as to the geographical apportionment of the judges and in 1687 the assembly requested that at least one of the judges be named from the lower counties. In 1690 the appointment of the judges caused a split in the council, the members from the lower counties objecting to the naming of but one judge from the territories and also demanding that, according to what they stated was the proprietor's example, two commissions issue, one for the province and one for the counties, so that each would have a chief justice from its own district. Unable to prevail on their colleagues, the members from the lower counties held a separate meeting and drew up commissions to suit themselves. The keeper of the great seal, however, refused to seal these commissions and at a regular meeting of the council, subsequently held, the action of these members was denounced as irregular and annulled. This was the first open manifestation of the dissatisfaction of the territories with the union with Pennsylvania, which continually increased until a separate government was obtained.
The provincial court did not at once command or obtain the respect and influence due to the chief judicial
1 Charter and Laws of Pennsylvania, 178, 184, 225; I Colonial Records, 205, 26, 12 mo. 1688–9.
2 I Colonial Records, 68, 12, 7 mo. 1684.
tribunal of the colony. It was founded in the most trying times, when political dissensions among the leading colonists and war and revolution in England distracted the province. The terms of office were irregular, the compensation wholly inadequate and the journeys on circuit tedious and even dangerous. It is not to be wondered at that it was difficult to induce properly qualified men to accept a place on the bench and that nominees for that honor sought excuses to decline the office. No traces of the records and opinions of the court at this time have come down to us and they cannot have been bulky, for, when the council in 1688 sent for the records, they were informed by the clerk that “they were not recorded otherwise than in a quire of paper.
:"1 The duties of the judges did not at first compel them to grapple with legal problems with a view to the value of their decisions as precedents. The correction of errors arising on issues of fact and the trial of the more serious crimes probably made up the bulk of the business. As time went on the court strengthened its position, and appeals to the council became less and less frequent, until in the early eighteenth century the two bodies, executive and judicial, assumed their normal functions.
It is sad to relate that Nicholas Moore, the first chief justice of the provincial court, was impeached by the assembly within a year after the creation of the court. Moore was a physician as well as president of the Society of Free Traders and a large purchaser of land from Penn. Although not a Friend he immediately obtained a position of influence, was elected to the assembly and was speaker in 1684. While capable and energetic he lacked tact and discretion and assumed an arrogant tone which offended his fellow members of the assembly
1 I Colonial Records, 202, 25, 12 mo. 1688–9.