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members of the bar who can speak with authority from personal recollection upon the occurrences during the middle nineteenth century, and for the further reason that the judicial system had by that time assumed a form which in its main outlines, it still retains, subject to the changes introduced by the constitution of 1874.1 Relief has since been afforded to the supreme court by the establishment of an intermediate court of appeal, the superior court, and the transfer to the latter of a part of the appellate business. Both are courts for the hearing of appeals, none of the judges sitting at risi prius, an arrangement that has been criticised as tending to disassociate the appellate judges from the main body of the judiciary, in contradistinction to the federal system. The number of common pleas judges has been greatly increased and the lay associate has almost disappeared. 3
The most glaring defect in the system is in the minor judiciary. The magistrate, or justice of the peace, is a relic of the eighteenth century whose intelligence, education and social position have not kept pace with the general improvement. The holding of courts at this ✓ day by men unlearned in the law is an anachronism, a nuisance to those having to do with the collection of small debts and, frequently, a source of oppression to the poor. It is to be hoped that reform in this respect will not be unduly delayed by the necessity for the adoption of amendments to the constitution to make it complete.
The Judiciary Article of the Constitution of 1874 is printed in the Appendix to this volume. Special pleading was abolished by the Act of May 25, 1887, P. L. 271, which substituted a hybrid system that is neither common law nor good code pleading.
2 Act of June 25, 1895, P. L. 212, and its supplements.
3 For the present personnel of the courts, see Smull's Legislative Handbook, current issue.
The early division of the state into judicial districts has had some unfortunate consequences. The bar of the state became divided into a number of local bars, mutually jealous and exclusive, practicing under dissimilar rules, without common interests or espirit de corps. The tendency to disunion has been checked by the formation of the State Bar Association, an organization that has already done much to promote uniform legislation as well as to encourage good fellowship in the legal fraternity. The appointment, too, by the supreme court of a state board to examine candidates for admission to the bar has done much to standardize legal education in the state.
Owing largely to her great natural resources Pennsylvania has enjoyed a prosperity in which both bench and bar have shared, but the first stages of that prosperity were attained through the liberal and farsighted policy of William Penn, the founder. His adopted sons should at least be willing to view with open minds the innovations demanded by progress. The panorama from the housetop does not necessarily lead to a suicidal leap or a broomstick ride.
One of the most troublesome questions with which the colonial administrator had to deal was equity jurisprudence. In the early years of the seventeenth century politics entered into the contest for jurisdiction between the English court of chancery and the courts of common law, beclouding the issues and retarding a settlement of their respective spheres of action. Popular dislike pictured the chancellorship as a great political office closely identified with the Crown, and grudgingly admitted its importance in the complex judicial system of England. On the other hand, the chancellor too frequently subordinated the judicial functions of his office to ministerial policy and permitted abuses in the organization and administration of his court that impaired its usefulness and checked the growth of its business. At this early period chancery practice was concerned chiefly with questions connected with the devolution and management of real property and property held in trust, and many of the broader doctrines of equity were still in process of growth. Lord Nottingham, the father of modern equity, held the office of chancellor from 1673 to 1682, but was succeeded by several chancellors of inferior capacity who added nothing to the prestige of the court, while the masters and inferior officers were chiefly distinguished for rapacity and extortion, not to speak of incompetency and dishonesty, in the management of property committed to their care.' Reform came, but too late to convince the more democratic communities of the positive advantages of chancery procedure, while the prevailing fanatical devotion to
1 Parkes's History of the High Court of Chancery.
trial by jury operated as a check upon any system that seemed to interfere with that palladium of liberty.
It was manifestly impossible to administer complete justice according to the English system without the assertion of equitable rights and the enforcement of equitable remedies. Anything less would have amounted to a denial of justice, and in so far as some few equitable rights were concerned, this was vaguely recognized. But a true appreciation of the necessity for the introduction of chancery procedure was obscured by a common and popular error which confused equity with so-called natural justice; an error for which chancery literature was, perhaps, itself in a measure responsible, in basing its claims to override the strict rules of the common law upon the strength of an intrinsic ethical superiority."
Another obstacle to the introduction of equity jurisprudence was the primitive social conditions that prevailed in the sparsely populated settlements. There was sufficient difficulty in the conduct of an ordinary lawsuit in the local courts without adding to the embarrassment of the magistracy by requiring them to solve the mysteries of the unreformed chancery pleading and practice. The colonial judge of the seventeenth and eighteenth centuries was in knowledge and training about on a par with the English justice of the peace and it would have been as preposterous to expect the former to undertake the office of chancellor as to impose similar duties on the English quarter sessions. When, in the eighteenth century, trained lawyers began to make their influence felt in the colonies, disputes and misunderstandings between the assemblies and the governors prevented the creation of or retarded the growth of courts of chancery, resulting in a conflict of principles and practice in the several provinces far too intricate to be briefly described. The theory upheld by the crown lawyers, and put in practice in the more tractable colonies, was that the governor, as custodian of the great seal, was the proper person to act as chancellor, assisted if necessary by the council. To this the more democratic communities were opposed, as an undue extension of the prerogative, but they had no substitute to offer except the direct exercise of equitable relief by legislative resolution or the delegation of limited equity powers to the ordinary courts, such as giving relief from the penal clauses of bonds and mortgages. It did not seem difficult to the uninitiated to inject into the law such equitable principles as would mitigate the harshness of its stricter rules. The limited scope of such an experiment and the deprivation involved, in the elimination of the powerful preventive measures afforded by chancery process, became apparent only when the commercial and industrial expansion of the American commonwealths had brought about more complicated social relations.
1 Maine's Ancient Law, chapter 3.
The reform of procedure in the more progressive jurisdictions, has buried chancery and common law practice in a common tomb and if it were safe to hazard an opinion upon the parentage of the modern complaint, or statement, the inclination would be to favor the bill in equity rather than the common law declaration. But it would seem that before these momentous changes could well be brought about, it was necessary that both systems should reach the limits of their development, that there should be a thoroughly scientific demonstra
1 Courts of Chancery in the American Colonies, S. D. Wilson, American Law Review, Vol. XVIII, 226, reprinted in Select Essays in Anglo-American Legal History, Vol. II, 779; Story's Miscellaneous Writings, 151. History of Equity in the American Colonies, E. B. Gager, in Two Centuries' Growth of American Law, chapter 6.