said writs. And to examine and correct all and all manner of errors of the justices and magistrates of this province, in their judgments, process and proceedings in the said courts, as well as in all pleas of the Crown, as in all pleas real, personal and mixed; and thereupon to reverse or affirm the said judgments, as the law doth or shall direct. And also to examine, correct and punish the contempts, omissions and neglects, favors, corruptions and defaults, of all or any of the justices of the peace, sheriffs, coroners, clerks and other officers within the said respective counties. And also shall award process for levying, as well of such fines, forfeitures and amercements, as shall be estreated into the said supreme court, as of the fines, forfeitures and amercements, which shall be lost, taxed and set there, and not paid to the uses they are or shall be appropriated.

"And generally shall minister justice to all persons, and exercise the jurisdictions and powers hereby granted concerning all and singular the premises according to law, as fully and amply, to all intents and purposes whatsoever, as the justices of the court of King's Bench, common pleas and exchequer at Westminster, or any of them, may or can do.

"Saving to all and every person and persons, his, her or their heirs, executors and administrators, their right of appeal from the final sentence, judgment or decree of any court within this province, to His Majesty in council, or to such court or courts, judge or judges, as by our Sovereign Lord the King, his heirs or successors, shall be appointed in Britain, to receive, hear and judge of appeals from His Majesty's plantations.

"Provided, The person appealing shall, upon entering his appeal in the court where the sentence, judgment or decree shall be given in this province, pay all the costs before that time expended in the prosecution, or defending the said suit; and shall further enter into bond, with two good and sufficient securities in the sum of three hundred pounds, to the defendant in the appeal, conditioned to prosecute the said appeal with effect within the space of eighteen months after the entry of such appeal, and to satisfy the judgment of the court from which he appeals; and further, to pay all such costs and damages as shall be adjudged to him to pay, in case a sentence, judgment or decree, pass against the said appellant, or in case he, she or they fail to prosecute their appeal with effect.

"And be it further enacted by the authority aforesaid, That the said judges of the supreme court shall have power and are hereby authorized and empowered, from time to time, to deliver

the gaols of all persons which now are or hereafter shall be committed for treasons, murders, and such other crimes as (by the laws of this province) now are or hereafter shall be made capital or felonies of death as aforesaid. And for that end from time to time to issue forth such necessary precepts and process, and force obedience thereto, as justices of assize, justices of oyer and terminer, and of gaol delivery, may or can do in the realm of Great Britain."

We have referred to the short-lived Act of August 27, 1727. This act was almost a counterpart of the Act of 1722, but was designed to deprive the supreme court of the power to institute original process. Its repeal was accomplished by John Moore, the king's collector of customs at Philadelphia, who strongly objected to it on the ground that actions involving the revenue would thenceforth have to be tried in the county courts. From the statements of Moore and Fitzwilliam, the surveyor general of the customs, it would appear that in 1724 there arrived at Philadelphia the ship Fame purporting to carry emigrants from the Palatine, but really containing a cargo of East India goods from Holland and articles of European manufacture which the navigation laws required to be imported from England only. Moore seized the ship but it was forcibly taken out of his possession by a mob, towed down the river and most of the cargo unloaded. Then, it is stated, Sir William Keith made a fresh seizure in a collusive action brought in the county court and the ship was sold for a trifling sum. Moore acting by advice of Sir Philip Yorke, the attorney-general, brought actions in the supreme court of Pennsylvania against the parties concerned, whereupon Keith and his colleagues in the assembly procured the passage of the Act of 1727 depriving that court of original jurisdiction. This, said Fitzwilliam, would discourage prosecutions for breaches of the acts of trade.

"For as the judges of those courts are men but of mean circumstances and as mean capacities, so are the juries more

apt to be biased in favor of those who transgress the law, the common people being generally of opinion that those who bring goods from foreign parts can afford them better pennyworths than others who import the like commodities from Great Britain where the duties and customs are high."

Moore added that the magistrates were "all merchants." The proprietors addressed a counter petition to the council in favor of the act, stating that they were not concerned in the controversy between Keith and Moore but that the act had been passed after nine months careful consideration and was not intended to prejudice His Majesty's service, that so far as they were informed Moore was the first person to attempt to introduce the practice of bringing actions in the supreme court, and that it would prove a great hardship to the inhabitants living in remote settlements to compel them to attend court at Philadelphia and that the merchants were frequently gentlemen of the best fortune and substance as well as probity." The act was referred to Mr. Fane, who wrote an elaborate opinion in which he questioned whether original jurisdiction was vested in the supreme court by the Act of 1722 although there were some words that pointed that way.

"It is true the judges of the Supreme Court in the case of Mr. Moore have thought fit to exercise a jurisdiction, but I see no great conclusion from thence, because courts of law are ever willing, upon the slightest pretenses, to extend their jurisdiction."3

The commissioners for trade and plantations reported adversely to the act and it was accordingly disallowed.*

1 IV Statutes at Large, 425, 430.

2 IV Statutes at Large, 431.

3 IV Statutes at Large, 443.

4

IV Statutes at Large, 421, 449; III Colonial Records, 446, November 23, 1731. The assembly stated that the aspersions on the inferior courts were false and scandalous. Votes of Assembly, Vol. III, 168, 169.

Whatever may have been the intention of the Act of 1722, it would seem that the supreme court was chary of assuming original jurisdiction. Chief Justice Tilghman in Commonwealth v. Smith1 informs us that prior to 1786 the court had, certainly for a long time, exercised no original jurisdiction except in cases of fines and common recoveries, which, though actions in form, were in substance no more than mere conveyances of record.

Two acts amending the Act of 1722 were passed prior to the Revolution. By the first of these, the Act of September 29, 1759, the judges of the court of common pleas were appointed to hold the orphans' court, a duty which had for some time previously been assigned to the quarter sessions, and the judges of the latter court were not to sit in the common pleas, which was to consist of five persons. No exception was taken to these provisions, which were approved, but the proprietors strongly objected to another clause in the act which provided that the judges of the common pleas, as well as the justices of the supreme court, should hold their commissions quam diu se bene gesserint and be removable only on the address of the assembly. The committee of the council were strongly against this provision, not only as limiting the charter rights of the proprietors, who were therein permitted to nominate judges without limitation, but as perpetuating in the seat of justice men of secondary capacity, except the chief justice. It was further stated that in the other colonies the judges held durante bene placita, and it was not expedient to make a change in Pennsylvania which would confer no real benefit upon the inhabitants and "excite a just jealousy in the other colonies by seeming to extend advantages to this proprietary government, which have been denied to those under

14 Binney's Reports, 117 (1811).

his majesty's immediate care."1

The act was accord

ingly disapproved September 2, 1760.

Another amendment to the Act of 1722 was adopted, by which the number of supreme judges was increased to four, and the removal of cases into the supreme court in suits involving less than fifty pounds, except in cases involving title to land, was prohibited under penalty, in the case of the plaintiff, of loss of costs and of the defendant of double costs. It was also provided that appeals to England should be taken only on demurrer to evidence, bill of exceptions or writ of error. act was allowed to become a law.2

This

It will be noticed that no jurisdiction is conferred upon the courts in matters of divorce. We have seen that in the Dutch period divorce was recognized in accordance with the doctrines of the Reformation, but after the English conquest the subject is hardly recognized as belonging to the domain of ordinary courts. In an amendment to the Duke of York's Laws of 1665 it is provided that in cases of adultery the proceedings shall be "according to the laws of England which is by divorce," but this does not say more than that a divorce a mensa et thoro, or judicial separation, would be recognized and Chancellor Kent is authority for the statement that during the colonial period no divorce took place in the colony of New York. In Pennsylvania the "great law" of 1682 in defining and punishing adultery provided that the guilty parties should "be liable to a Bill of Divorcement, if required by the grieved husband or wife" within a year after conviction.5 This was

1 V Statutes at Large, 462, 722.

2 May 20, 1767, VII Statutes at Large, 107.

3 Charter and Laws of Pennsylvania, 63.