and gave still greater offense after his elevation to the bench. In the minutes of the assembly there are numerous instances of his interruptions and protests during the consideration of bills. It was reported to the council, during the session of 1684, that the speaker had said: "The proposed laws were cursed laws" and "hang it Damn them all." The principal complaints against his conduct on the bench seem to have come from the lower counties. Ten formidable articles of impeachment were presented, among which were the following: "The said Nich. Moore, Judge, having that high Trust Lodged in him for the Equall Distribution of justice, without respect of Persons, the said Judge Sitting in Judgemt at New Castle, hath presumed to cast out a person from being of a Jury, after ye said Person was Lawfully attested to ye True Tryall of ye Cause, thereby rending an Innocent & Lawful Person Infamous in the face of the County, by rejecting his attestation after Lawfully Taken, and Depriving the plantif of his just Right. "The said Nich. Moore, Sitting in judgmt, did in ye towne of New Castle, refuse a verdict brought in by a Lawfull Jury, and by Divers threats & Menaces, and Threatening ye jury with ye same of Perjury and crim of their Estates, forced ye said Jury to goe out so often-until they had brought a Direct Contrary verdict to the first, There, by preventing justice, and wounding the Libertyes of ye free people of this Province and Territories in the Tenderest point of their Privelege, and violently Usurping over ye Consciences of the Jury. "The said Nich. Moore assuming to himselfe an Unlimited and unlawful Power, did, Sitting in Judgmt at ye aforesaid Towne of New Castle, wherin two persons stood Charged in a Civil action, it being in its own Nature only Trover & Convertion, and ye pretended Indictmt raised it no higher, notwithstanding the said Moore did give the judgmt of fellony, Comending the Defendant to be Publickly Whipt, & Each to be fined to pay three fould, thereby Tyranizeing over the persons, Estates 1 See Votes of the Assembly, Vol. I, 32. and reputations of the people of this Province and Territories, Contrary to Law and Reason. "The said Nich. Moore, Sitting in judgmt at Chester, did in a most Ambitious, Insulting, & Arbitrary way, reverse and Impeach the judgmt of ye Justices of ye said County Court, and Publickly affronting the members thereof, although the matter came not regularly before the said Circular Court, thereby drawing the Magistrates into the Contempt of ye people, and Weakening their hands in the administration of justice."1 A committee of five was appointed to manage the impeachment, one of whom was Abraham Mann, whom we have previously seen engaged in the prosecution of Justice Moll before the court of assizes in New York. The council showed little disposition to further this impeachment but treated the accusers with due civility and fixed a time for the hearing. Moore, however, was by no means inclined to submit tamely to the proceedings, and in the house, of which he was still a member, accused Abraham Mann of being "a person of seditious spirit," in which he was probably right. The house, however, expelled Moore and proceeded to collect evidence for the prosecution. They met with a decided obstacle in the conduct of Patrick Robinson, clerk of the court, who declined to produce the records of the court, declaring that they were "written in Latin where one word stood for a sentence, and in unintelligible characters which no person could read but himself, no, not an angel from Heaven."2 But this did not end his offenses; he declared the articles of impeachment were drawn "hob nob at a venture" and threatened to "have at" the speaker when he was "out of the chair." The house issued a warrant for Robinson's arrest and requested 1 I Colonial Records, 83, 15, 3 mo. 1685; Votes of the Assem bly, Vol. I, 35; Charter and Laws of Pennsylvania, 499. 2 Those who have had occasion to read his handwriting will testify to the truth of this statement. the council to remove him from office. From the hearing on the impeachment Moore contemptuously absented himself, but the evidence was thought sufficiently grave by the council to suspend the judge from his official functions until the matter was finally decided. The council showed every disposition to treat Moore with leniency, although it had been testified that he had called the members thereof "fooles and Logerheads, and said it were well if all the Laws had drapt and that it would never be good Times as Long as ye Quakers had the administration." Knowing the proprietor's predilection for Moore the house addressed a letter to Penn on the subject, a quotation from the last paragraph of which shows that in spite of their quarrels and jealousies they still regarded him with affection. "Dear and honored Sir, the honor of God, the love of your person, and the preservation of the peace and welfare of the government, were, we hope, the only centre to which all our actions did tend, and although the wisdom of the assembly thought fit to humble that aspiring and corrupt minister of statc, Nicholas Moore, yet to you, dear sir, and to the happy success of your affairs our hearts are open, and our hands ready at all times to subscribe ourselves, in the name of ourselves and all the freemen we represent, Your obedient and faithful freemen. JOHN WHITE, Speaker." By one excuse after another the council prevented further proceedings in the impeachment until the matter was lost sight of in the discussion of more important and perplexing affairs of state which soon required attention. The provincial council, although not strictly a court, for a long time exercised judicial functions and, through the fortunate preservation of its minutes, is by far the best known of the early tribunals. The exercise of 1 Janney's Life of Penn, 278. judicial functions by the governor and council was strictly in accordance with the custom in other proprietary and royal provinces, and that judicial and executive functions were found incompatible in Pennsylvania so early in its history is a clear indication of the rapid growth of a democratic and progressive spirit in that province. The extraordinary growth of the colony, the long absences of the proprietor in England and the large measure of self-government which the citizens enjoyed, threw upon the council an amount of executive business which made judicial duties particularly onerous, and numbers of petitions and appeals were referred back to the courts. Aside from their judicial duties the governor and council, as an executive body, appointed the judges and magistrates, regulated commerce, conducted negotiations with the Indians and the other colonies, subdivided counties, laid out towns, established fairs and markets, ordained the principal highways, bridges and ferries, and exercised a general supervision over local administration. As a legislative body, they drew up all the laws, prior to 1693, when that right was assumed by the assembly, being finally transferred to that body by the Frame of Government of 1701. By that instrument also, the council, no doubt to its great relief, was expressly deprived of judicial functions. During the first twenty years of its existence the amount of judicial business transacted in the council was large; prior to the establishment of the provincia] court it was the only general tribunal and was not only a court for hearing appeals but also a court of first instance for such suitors as could obtain a hearing before it. This, of course, was natural at the first settlement, as a matter of practical necessity. We therefore find in the early part of the minutes, trials for petty offenses and the collection of small debts. They seem to have been obliged even to discipline their own members, for at the fifth meeting of the council one of its members was fined five shillings "for being disordered in Drink." The council seems to have exercised its good offices in composing differences. In 1684 there is the following entry:— "Andrew Johnson Pl. Hance Peterson Deft. There being a difference depending between them, the Govr. & Council advised them to shake hands and to forgive One another. And Ordered that they should Enter in bonds for fifty pounds apiece, for their good abearance; which accordingly they did. It was also Ordered that the Records of Court concerning that Business should be burnt."2 There are other cases where the council would seem to have acted more as a final board of arbitration than as judges in the strict sense.3 Prior to the establishment of the provincial court in 1684, the council heard all appeals, and although after that time such appeals were discouraged, they nevertheless continued to be brought before the council for some years. Besides regular appeals, there were numerous petitions for executive clemency, complaints against severe sentences in criminal cases and, in civil cases, petitions for relief against judgments entered by default and against executions which bore too severely on the debtor. In one early case, on appeal from the county court of Philadelphia, it was shown to the council that the case concerned the title to land in Bucks County, when the law required cases to be tried where the cause of action arose. The council remitted the case to the court of Bucks County and fined the Philadelphia court "forty pounds for giving judgment against law.” 1 I Colonial Records, 4, 15, 1 mo. 1683. |