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tion in the council. Without repeating its provisions in full, which would be tedious, it may be said by way of summary that the act provided for the holding of the "County Courts or Sessions” at stated periods, three justices to constitute a quorum, with jurisdiction in civil and criminal matters, capital cases excepted. These courts were required to observe as nearly as possible “respecting the infancy of this Government and capacities of the people, the methods and practice of the King's court of common pleas in England; having regard to the regular process and proceedings of the former county courts; always keeping to brevity, plainness and verity in all declarations and pleas, and avoiding all fictions and color in pleadings.” Maritime affairs, not cognizable in the admiralty courts, were to be tried in a special manner before a jury of "merchants, masters of vessels or ship carpenters.” The county courts also received equity powers, with the right of appeal to the provincial court from any decree or sentence made or given by the justices. The provincial court was to consist of five judges, appointed by the governor, three of whom were required to sit twice a year in Philadelphia, and two, at least, to go on circuit through the counties to try capital cases and serious crimes and hear appeals from the county courts. The governor, however, was to grant writs of error and writs of habeas corpus. The powers and duties of the orphans' courts were also defined and the forms of certain writs prescribed; all former laws relating to the courts were repealed.
There is little doubt that David Lloyd was the original draftsman of the bill and while the act, as finally adopted, contained in its main outline features afterwards recognized by the colonists as most convenient for Pennsylvania, it was, like other acts attributed to Lloyd, verbose, involved and overloaded with minor details of practice. Lloyd, no doubt, thought that he was faithfully adhering to the simplicity that had marked the
legal procedure in the province from the beginning, but he was a lawyer, and, like most of his brethren, could not divest himself of his professional circumlocution or exclude from his plan pet theories of his own. In the form adopted the act did not prove acceptable to the advisers of the Crown.
Penn himself seems, on second thought, to have found some objectionable features in the act and desired that it might not be confirmed but sent back to be amended. The lords commissioners for trade and plantations reported that the act, "so far from expediting the determination of lawsuits,” would, as they conceived, "impede the same," and, accordingly, the act was formally disallowed and repealed on February 7, 1705, by the queen in council. One of the objections that occurred to the minds of the English lawyers was to that clause which directed the courts to avoid all “fictions and color in pleadings.” A doubt was entertained as to whether this might not preclude an action of ejectment. In this they were not far from the real purpose of the draftsman of the act, as would appear from a debate in the provincial council in December, 1704, upon a petition by Thomas Revel, the plaintiff in an ejectment, who complained that his case had been put off for nearly three years. John Moore, counsel for the plaintiff, and David Lloyd, for the defendant, being summoned before the council, Lloyd boldly argued that that method of trial being fictitious, was repugnant to the law of the province. Lloyd, however, was clever
1 II Statutes at Large, 456, 482.
II Colonial Records, 185, 19, 11 mo. 1704. Penn & Logan Correspondence, Memoirs of Historical Society of Pennsylvania, Vol. X, 5. Lloyd attempted to regulate the practice in ejectment in his bill of 1706 which was rejected by the governor. His idea was to require a real lease, entry and ouster and to do away with the fictitious proceeding—“A new practice, allowed only in Westminster Hall.” II Colonial Records, 354, February 24, 1706-7.
enough at a later day, to use the action of ejectment with success in the Frankfort Company's case, which will be referred to hereafter.
The repeal of the Act of 1701 left the administration f justice in a confused state. There had been some debate in the session of the assembly of 1705 upon the subject of courts, but the repeal of the act was not known. Upon receipt of the order in council, Governor Evans called the assembly in special session, in September, 1706," and presented to that body an act for establishing courts, drawn up, it
it was said, by some practitioners therein. The assembly, however, requested that the matter be referred to the new house, which met in October, 1706, and accordingly at the following session this was the first matter under discussion, the governor laying his bill before the house with his opening address. The assembly, or rather David Lloyd who dominated that body, had other views and presented them in what is described as a "long and tedious bill," which, on being read in council, was found to depart very widely from the plan proposed by the governor's advisers.
We have not the text of these rival bills, which brought about a deadlock between the governor and the house, but it is apparent that both sides were struggling for the control of the courts and in view of the expected surrender of the government to the Crown, both were equally anxious to establish their position before that event. 3
The plan endorsed by the governor included county courts with civil jurisdiction, exclusive in cases under
1 II Colonial Records, 261, September 19, 1706.
2 II Colonial Records, 271, 14, 9 mo. 1706. In a speech the governor refers to it as "the longest perhaps that ever was drawn up in America.” II Colonial Records, 313.
3 Penn & Logan Correspondence, Memoirs of Historical Society of Pennsylvania, Vol. X, 180.
ten pounds, and criminal jurisdiction, except in capital cases which were to be tried by special commissions of oyer and terminer; a provincial court for the whole province, to sit ordinarily at Philadelphia but to go on circuit twice a year, with original jurisdiction concurrent with the county burts in cases over ten pounds as well as on appeal from the county courts, and lastly, a court of equity to be held byithre governor and council. The assembly ever jealous of the centralization of authority objected to a separate court of chancery and to the exercise of original jurisdiction by the provincial court.? On the other hand, the governor pointed out that the bill proposed by the assembly contained precisely the same faults that had caused the rejection of the Act of 1701; that it went into matters of practice at great length which ought to be settled by rule of court; that the chancery practice ought to conform to that in the other English dominiðns; that, there was too much leniency shown to debitors in the clauses relating to executions; that too much power was conferred on the court of the city of Philadelphia; that the provision for the payment of the judges was inadequate, and that the proprietors' rights were interfered with in the clause providing for the dismissal of the judges on the address of the assembly and for the appropriation of all fines and forfeitures to the support of the courts.3
The controversy began politely enough, for the governor and council were anxious to settle the administration of justice on a firm basis and to persuade the assembly to allow a fixed salary to Roger Mompesson, a good lawyer who had been persuaded to accept the office of chief justice. But as time passed and each
1 II Colonial Records, 268, 3, 8 mo. 1706.
2 II Colonial Records, 263, 23, 7 mo. 1706; 266, 25, 7 mo. 1706; 276, 27, 9 mo. 1706.
3 II Colonial Records, 272, 16, 9 mo. 1706.
side adhered obstinately to its own view the tone of the respective messages became warmer. The governor hinted that if further delay occurred he would establish the courts by ordinance and charged the assembly with grasping for power.
"It might reasonably be thought a very easy business to establish the courts by a law, without raising new disputes and contending for such Grants of Power as are not essential to their Constitution, nor were ever in the People for these 24 years past, since this has been a colony.”ı
To which the assembly rejoined that whoever advised the governor to establish courts by ordinance was an enemy to the welfare of the province; that they were not striving for power“but for what are essential to ye Administration of Justice and agreeable to an English Constitution, and if we have not been in possession of this these 24 years, we know where to place the fault, and shall only say, tis high time we were in the enjoyment of our rights.”
It is needless to refer at greater length to the rhetorical flourishes of the combatants, which did not add particularly to clarity of reasoning. Conferences were held and bitter language used, the matter at one time taking the form of a personal controversy between the hot-headed young governor and the equally fiery speaker, when the latter declined to rise when addressing the governor at one of these debates. 3
The assembly then proceeded to impeach James Logan, the secretary of the province, charging him with attempting to subvert the charter and set up arbitrary government. The governor, having twice adjourned
1 II Colonial Records, 298, 23, 10 mo. 1706.