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CHAPTER III.

The appearance docket of the supreme court for April Term, 1776, contains the following entry:

“Philadelphia, s. s.

"At a Supream Court held at Philadelphia for the Province of Pennsylvania the tenth day of April in the sixteenth year of the reign of our Sovereign Lord George the third King of Great Britain France and Ireland, Defender of the Faith &c and in the year of our Lord one thousand seven hundred and seventy six: and continued by adjournment until—'

Until when? Doomsday no doubt; for this was the last court held under our “Sovereign Lord George” and the date of continuance was never filled in. Independence, however, was not welcomed in Pennsylvania with the same enthusiasm as in the New England states. At the beginning of the conflict the influential and conservative element in the province while opposed to the measures of parliament was exceedingly adverse to the idea of a separation from Great Britain. The grievances of the Pennsylvanians were not as great as those of the other colonists; they had a liberal charter and a satisfactory system of local government, while the proprietary family stood between them and the Crown to soften controversies and prevent conflicts of authority; many earnestly hoped for reconciliation and were carried on the tide of revolution sorely against their wills. To accelerate the movement and to get rid of the conservatives, a bold, radical minority, with the moral support of congress, organized and carried through a revolution in the government of Pennsylvania. A convention called in July, 1776, and presided over by Franklin, drew up a new constitution, which, after considerable opposition, was declared to have been

adopted. Penn's charter was discarded, the proprietary government ceased to exist, the old officials and assembly retired and new men took their places.

The Constitution of 1776 was not a satisfactory instrument and was discarded after a fourteen years' trial, but some of its features are worth noticing. The executive power was vested in a supreme executive council composed of twelve members, one from the city of Philadelphia and eleven from the respective counties. The term of office was three years, and the president and vice-president were chosen from the v council by joint ballot of the assembly and council. The president and council were empowered to choose and commission all judges and other officers and fill vacancies in office. Every officer of the state was subject to impeachment by the assembly, the impeachments to be heard before the president and council. The principal judiciary clauses were as follows:

“Sec. 23. The judges of the supreme court of judicature shall have fixed salaries, be commissioned for seven years only, though capable of reappointment at the end of that term, but removable for misbehaviour at any time by the general assembly; they shall not be allowed to sit as members in the continental congress, executive council or general assembly, nor to hold any other office, civil or military, nor take or receive fees or perquisites of any kind.

“Sec. 25. Trials shall be by jury as heretofore, and it is recommended to the legislature of this state to provide by law against every corruption or partiality in the choice, return or appointment of juries.

“Sec. 26. Courts of sessions, common pleas and orphans' courts shall be held quarterly in each city and county, and the legislature shall have power to establish all such other courts as they may judge for the good of the inhabitants of the state; all courts shall be open, and justice shall be impartially administered without corruption or unnecessary delay: All their officers shall be paid an adequate but moderate compensation for their services, and if any officer shall take greater or other fees than the laws allow him, either directly or indirectly, it shall ever after disqualify him from holding any office in this state.

“Sec. 27. All prosecutions shall commence in the name and by the authority of the freemen of the commonwealth of Pennsylvania, and all indictments shall conclude with these wordsagainst the peace and dignity of the same. The stile of all process hereafter in this state shall be The commonwealth of Pennsylvania.''

The office of justice of the peace was made elective, the voters of the respective districts to choose two, one of whom was to be commissioned by the president for the term of seven years.

A peculiar feature of the constitution was the provision for the election every seven years of a council of censors who were to meet and inquire whether the constitution had been preserved inviolate, whether the laws were duly executed, and, if there appeared any necessity to amend the constitution, to call a convention for that purpose. While these changes were in progress and while most of the active citizens were engaged in war or political strife, the administration of justice was sadly neglected.

By an act of January 28, 1777,passed for the purpose of putting into effect such and so much of the laws of the province as were necessary in the commonwealth, it was provided, that the courts of quarter sessions and gaol delivery, petty sessions, common pleas, orphans' courts, supreme court, courts of oyer and terminer and general gaol delivery should be held and kept in each respective county at the times and places appointed by law, with all the powers, authority and jurisdiction which by law such justices and judges theretofore had had and exercised and such as were given by the constitution. It was further provided that the president and council should appoint one justice in each county to preside in the respective courts and in his absence the justices who should attend were to choose a president. All actions in the provincial courts were continued in the same state as if the authority of such courts had never ceased.

1 Proceedings of the Constitutional Conventions of Pennsylvania of 1776 and 1790, 61. The equity clause will be referred to later.

2 IX Statutes at Large, 29.

The chief justice of the new supreme court was Thomas McKean, a signer of the Declaration of Independence and one of the most active of the patriot party. The associate justices were William A. Atlee and John Evans. The suspension of the courts caused considerable inconvenience and letters and petitions complaining of the prevailing conditions were presented to the council. In the counties the same trouble was had with regard to the justices, many of whom were away, or unwilling to act in the unsettled state of affairs; in some parts of the state the local committees of safety assumed judicial power and took cognizance of minor crimes.

The first session of the common pleas, at Philadelphia, when the style of process was altered from king to commonwealth, was held in September, 1777, when six attorneys were admitted to practice, but the British were already marching on Philadelphia, and before the end of the month the army of King George had expelled the new government.

During the occupation of Philadelphia by General Howe, from September, 1777, to June, 1778, the seat of government was in Lancaster. With the return of the state officials to Philadelphia the various agencies of proscription became active. Many persons were declared traitors and their estates forfeited to the

1 VI Pennsylvania Archives (1st Series), 228, 245, 294; VII Pennsylvania Archives (1st Series), 72; IX Colonial Records,

214, 260. · 2 Biography of William Lewis, Pennsylvania Magazine, Vol. XX, 30.

commonwealth. The most important cases tried before the newly organized supreme court were treason trials, among which those of Roberts and Carlisle, which are very briefly reported, aroused great popular interest.? Roberts, a miller of Lower Merion Township, was accused of acting as a guide to Sir William Howe and of persuading various persons to enlist in the British army. Carlisle was charged with having accepted a commission to keep watch over the gate of the city of Philadelphia, established by Howe to prevent the ingress and egress of persons not provided with passes. The accused were tried on the twenty-fifth and thirtieth of September, 1778, found guilty and sentenced to be hanged. Earnest appeals for executive clemency were made on behalf of the prisoners by petitions, but the council was firm and both men were hanged. In these, as in most of the other treason trials, James Wilson appeared for the defendants and acquired such unpopularity through his faithful efforts in behalf of his clients that his house was attacked by a mob, which was driven off only after a fight that cost several persons their lives.

The Revolution brought to an end the court of vice admiralty, of which Edward Shippen was judge, and it became necessary to create a tribunal to take its place. The Continental Congress advised the several legislatures to establish courts of admiralty and, accordingly, the assembly, on March 26, 1776, passed a resolution creating a court of admiralty to be held in the city of Philadelphia to try cases of captured vessels brought into that port, with the right of appeal to congress or to such person or persons as they should appoint to hear appeals.3

1 X Colonial Records, 610, 745.

2 Respublica v. Carlisle, 1 Dallas's Reports, 35 (1778); Respublica v. Roberts, 1 Dallas's Reports, 39 (1778); and see IX Colonial Records, 600, 613.

3 Journal of Congress, Vol. 1, 260; VIII Statutes at Large, 519.

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