province "they may then appeale unto us in Our privy Council, provided the matter in difference exceed the real value and Sum of three hundred pounds Sterling." The Act of October 28, 1701,2 contained provisions for appeals to England but no limit of money value was fixed. While the right to such appeals to England was, 7 in this colony, unquestioned, the difficulty and expense of prosecuting them was such as to render them infrequent. In 1685 an appeal to England was allowed by the provincial court upon entry of security, but from the discussion in the council it would seem that the appellant failed to enter security as required.3

In December, 1699, Penn returned to America and began the work of reconstructing the government of the province, which had been restored to him on the express condition that he would put an end to the existing state of confusion. The political and constitutional history of provincial Pennsylvania has been ably and thoroughly treated elsewhere and it is not our purpose to refer to it except as it affected the courts. Suffice it to say that the period of utopian and paternal experiments had closed and that thereafter the proprietor and his successors were engaged in a struggle to maintain a difficult position between two fires; on the one side a democracy, selfish, narrow and individualistic, and on the other a home government, critical and contemptuous, that regarded the colony as little more than a nest of republicans and smugglers. Penn found the assembly determined to strengthen its position and after much fruitless discussion, granted a charter

1 I Colonial Records, 313, 21, 9 mo. 1690.

2 II Statutes at Large, 148, § 5.

3 I Colonial Records, 95, 11, 5 mo. 1685, and see page 98. Board of Trade Journals, July 13, 1694; Mss. Historical Society of Pennsylvania, Vol. VII, 300.

5

Shepherd's Proprietary Government in Pennsylvania (Columbia University Studies in History, 1896).

conferring very extended powers on the legislative body and containing little else of constitutional importance.1 Nothing was said of the judges. The provincial court was then an insignificant factor in the political life of the province and the organization of the courts was left to be regulated by an act of assembly, which will be referred to presently.

With the adoption of the charter of privileges of 1701, the government of the province assumed a form that it was to retain until the Revolution. The power of proposing and enacting laws passed to the assembly and the council ceased to exercise judicial powers. More important still, the council ceased to be an elected body and was thereafter appointed by the proprietor or in his absence by his lieutenant-governor. The effect of this was to throw into the assembly the abler spirits of the opposition and greatly strengthen that body, while the council, chosen from among the friends of the governor or proprietor, was thereafter regarded as representing the proprietary interests rather than those of the populace.

One humble court has not been referred to, that of the coroner. The following is a specimen of a verdict taken in 1699 in Chester County:

"We whose names are underwritten, summoned and attested by the Coroner to view the body of Sarah Baker, haveing made strict enquiry, and alsoe had what evidence could be found, attested to what they know, and wee can find noe other but that it pleased Almighty God to visit her with death by the force of Thunder; and to this we all unanimously agree."2

Who will say that this is not quite equal in intelligence to the verdict of the average coroner's jury at the present time?

1 II Colonial Records, 54, 28, 8 mo. 1701; Proceedings of the Constitutional Conventions of Pennsylvania of 1776 and 1790, 31. 2 Chester County Records, 6, 5 mo. 1699, reprinted in Hazard's Pennsylvania Register, Vol. V, 156.

CHAPTER II.

In 1701 William Penn was called back to England to defend his proprietorship. Before his departure a general revision of the earlier legislation was undertaken at the sessions of the assembly held at New Castle in 1700 and at Philadelphia in 1701. The acts there passed, one hundred and fourteen in number, seem, in a sense, to have been regarded as supplying the previous legislation and were passed with the expectation of being presented to the privy council for approval, as required by the charter. In fact, when the board of trade inquired of Penn, on his return, as to whether the laws received from him were a complete body of all the laws of the province, he replied that he believed they were the present body of laws,1 and it will be noticed that the compilations of the eighteenth century begin with the Acts of 1700.

Among these acts was one of October 28, 1701, entitled "An Act for Establishing Courts of Judicature in this Province and Counties Annexed.”2 Its origin was as follows: Edward Shippen, for the two previous years chief justice of the provincial court, and John Guest, the then chief justice, both members of the council, brought into the assembly on October 7th, a bill for establishing the courts, which was "unanimously rejected." Some few days after, David Lloyd, who was not then a member of either council or house, proposed a bill which was voted to be adopted with amendments, and Richard Hallowell and Isaac Norris were appointed a committee to draw up the bill, with the amendments. The bill met with no apparent opposi

1 II Statutes at Large, 461.

2 II Statutes at Large, 148; Charter and Laws of Pennsylvania, 311.

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

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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.2 Lloyd, however, was clever

1 II Statutes at Large, 456, 482.

2 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.