the courts pending the discussion and now despairing of reaching a conclusion, on February 22, 1707, issued an ordinance for the establishment of the courts, under a clause in the charter which authorized the proprietor to make wholesome ordinances for the preservation of the peace and the better government of the people.1 The expedient was somewhat daring, as the charter further provided that such ordinances should not bind or charge any person for or in their "life, members, freehold, goods or chattels." In this ordinance the provincial court is first called the "Supream Court" of Pennsylvania. The assembly prepared a bitter remonstrance against the ordinance and adjourned.3

Under this ordinance, which embodied the unaisputed features of the proposed bills in a clear and concise form, the courts acted during the remainder of Evans's and the first two years of Gookin's administiation, until, in 1710, when tired of quarreling over nonessentials, a court act was passed. By this act a court, called the "Supream Court of Pennsylvania,' was established, consisting of four judges appointed by the governor, two to constitute a quorum, with power to hear appeals at law or in equity. The jurisdiction and practice of the quarter sessions and common pleas were elaborately defined and Governor Evans's ordinance was followed in the provision that all capital offenses should

1 II Statutes at Large, 500; Charter and Laws of Pennsylvania, 319; II Colonial Records, 349, February 21, 1706–7.

2 In the list of acts before the Commissioners of Trade in 1694 is one purporting to be entitled, "Law about appeals to the Supream Court," but if this is the Act of 1693 it should have been Provincial Court. Board of Trade Journals, Mss. Historical Society of Pennsylvania, Vol. VII, 309.

3 II Colonial Records, 362, March 4, 1707.

4 February 28, 1710-11, II Statutes at Large, 301; II Colonial Records, 552, February 28, 1710-11.

be tried before commissioners of oyer and terminer specially appointed for the occasion.

This act was, with minor modifications, the same as that proposed by the assembly in 1706, for it appears in the minutes that on November 2, 1710, a bill for establishing courts prepared by a former assembly was read, which, being very long, was left to the further consideration of the house. Governor Gookin was of the opinion that the courts could be better regulated by ordinance and that three judges were sufficient for the supreme court, but ultimately gave in on most of the points formerly in dispute. The act is indeed long and complicated, embodying an almost complete code of practice in both civil and criminal cases and on appeal, with very definite limitations placed on arrests in civil actions. One proposal of the governor was adopted. It having been suggested by the justices that the common pleas should be separated from the sessions of the peace, "for that the Holding 'em together perplexes Bench Juries, parties & Witnesses," the act provided that the terms of the quarter sessions should begin on Mondays or Tuesdays and of the common pleas on the Wednesdays following. By a fee bill adopted the same day, the chief justice was allowed thirty shillings and the other justices twenty shillings for every day they sat in court.2 Both of these acts were repealed by the queen in council on February 20, 1713, by advice of the solicitor general, Sir Robert Raymond, who was of the opinion that the practice provided would multiply trials at law in plain cases and make proceedings in law and equity insufferably dilatory and expensive."

1 II Colonial Records, 549, February 10, 1710–11.

2 II Statutes at Large, 331. Twenty shillings was the sum which Governor Evans considered "too small for any person duly qualified to accept of." II Colonial Records, 273, 16, 9 mo. 1706.

3 II Statutes at Large, 548; I Pennsylvania Archives (1st Series), 157.

It was no doubt very irritating to the anti-proprietary party that acts upon which they had expended time and thought should be continually repealed by the Crown upon pretexts that probably concealed the true motives for such action. The assembly had, however, hit upon a method of preserving its legislation, temporarily at least. Under the charter, all laws were required to be submitted to the council within five years of their enactment. The colonists took as much time as they pleased before submitting the acts, and, as a result, the laws generally remained in force nearly five years, and when the assembly was notified of their repeal, new acts on similar lines were passed. Against such tactics the commissioners of trade vainly protested.1 During the intervals between the repeal of the old and the passage of the new court acts the governor maintained the courts either by special commissions to the judges or by general ordinances.

One act did succeed in obtaining favorable recommendation, that of March 27, 1712-13, relating to the organization of and powers of orphans' courts, a comprehensive statute which defined the duties of that court in relation to the estates of decedents, and the care of the estates of minors, and became the basis of all subsequent legislation extending and strengthening the jurisdiction of that admirable tribunal.

It would take up too much space to go over all the acts that fell before the criticisms of the council. One, that of May 15, 1715,2 regulated the taking of appeals to Great Britain and required the appellant to give recognizance in double the amount of the judgment. The

1 II Statutes at Large, 554; III Statutes at Large, 441, 467. On the other hand, Penn complained of the expense to which he was put in endeavoring to have the acts approved by the crown officers.

2 III Statutes at Large, 32, 440, 466.

objection to this act was that there was no sum limited for which an appeal might be brought, as provided in the instructions to the governors of all the plantations, but notice of this repeal does not seem to have reached Pennsylvania, and the act was printed as in force in all compilations of the laws down to the Revolution. The first definite reference to these appeals is, as we have seen, in the commission of William and Mary to Governor Fletcher, which limited appeals to cases involving more than three hundred pounds. Additional instructions were sent to the proprietors in 1726,1 directing the suspension of execution pending the final determination of appeals, and in 1753 still more explicit instructions were issued to a number of colonies including Pennsylvania. By these instructions the governor and council were directed to hear appeals from the courts and if any of the judges who tried the case appealed were members of the council they were not to vote but to give the reasons for their decision. From the judgment of the provincial council an appeal was to be allowed to the king in council provided the matter in controversy involved five hundred pounds, and in cases of less than that amount where future rights might be bound or the king's revenue affected. The appellant was required to enter security for the judgment and costs and pending the appeal execution was to be suspended, unless security was entered for restitution.2

1 Charter and Laws of Pennsylvania, 395; I Pennsylvania Archives (1st Series), 196.

2 II Pennsylvania Archives (1st Series), 107, see also, VIII New Jersey Archives (1st Series) 190. For appeals in other colonies, see Winthrop v. Lechmere, 1 Thayer's Cases on Constitutional Law, 34; VII Connecticut Colonial Records, 571 (1727); Frost v. Leighton (Mass. 1738), II American Historical Review, 229; Perry v. Randolph, Barradal's Reports, 2 Virginia Colonial Decisions, 22 (1726). In the introduction to Volume II of Acts of the Privy Council of England, Colonial Series (1910),

The directions for a judicial hearing before the provincial council must have been given in ignorance of the fact that under the Frame of Government of 1701 the council in Pennsylvania did not exercise judicial powers.

In 1718 two murderers, Hugh Pugh and Lazarus Thomas, attempted to gain a reprieve by an appeal to the king, but the council ignored their petition on account of the notoriety of their crimes.1 The case of Fothergill v. Stover, involving the admissibility in evidence of a letter from the secretary of the land office to a deputy surveyor, is said by the reporter to have been affirmed on appeal to the king, and the docket of the supreme court shows that such an appeal was taken.3 In fact there are several entries of this sort. In Brown v. McMurtrie, April Term, 1763, judgment is entered for the plaintiff on a special verdict, whereupon Mr. Galloway "prays leave to appeal to the King in Council," which is granted on giving security agreeable to the act of assembly and paying the costs. Below in another handwriting is the entry, "Judgment of the Supream Court confirmed by his Majesty in Council." There is a similar entry in Nixon v. Long, where Chew and Galloway appeared for the plaintiff and Dickinson and Ross for the defendant. Judgment for the plaintiff was entered on a demurrer to the evidence and on appeal to the king the judgment was "confirmed." There are two other entries of appeals in 1765, and at April

will be found an interesting account of the practice of the council on appeal, while in the text are numerous examples of appeals from the West India Islands as well as from the colonies on the American Continent between 1680 and 1720.

III Colonial Records, 30, May 8, 1718.

21 Dallas's Reports, 6 (1763).

April Term, 1763, Docket No. 3, page 450.

3

4

April Term, 1763, Docket No. 3, page 448.

5

April Term, 1765, Docket No. 4, page 93.

6

September Term, 1765, Docket No. 4, pages 120, 181.