enough at a later day, to use the action of ejectment with success in the Frankfort Company's case, which will be referred to hereafter. The repeal of the Act of 1701 left the administration f justice in a confused state. There had been some debate in the session of the assembly of 1705 upon the subject of courts, but the repeal of the act was not known. Upon receipt of the order in council, Governor Evans called the assembly in special session, in September, 1706,1 and presented to that body an act for establishing courts, drawn up, it was said, by some practitioners therein. The assembly, however, requested that the matter be referred to the new house, which met in October, 1706, and accordingly at the following session this was the first matter under discussion, the governor laying his bill before the house with his opening address. The assembly, or rather David Lloyd who dominated that body, had other views and presented them in what is described as a "long and tedious bill," which, on being read in council, was found to depart very widely from the plan proposed by the governor's advisers.2 We have not the text of these rival bills, which brought about a deadlock between the governor and the house, but it is apparent that both sides were struggling for the control of the courts and in view of the expected surrender of the government to the Crown, both were equally anxious to establish their position before that event.3 The plan endorsed by the governor included county courts with civil jurisdiction, exclusive in cases under 1 II Colonial Records, 261, September 19, 1706. 2 II Colonial Records, 271, 14, 9 mo. 1706. In a speech the governor refers to it as "the longest perhaps that ever was drawn up in America." II Colonial Records, 313. 3 Penn & Logan Correspondence, Memoirs of Historical Society of Pennsylvania, Vol. X, 180. ten pounds, and criminal jurisdiction, except in capital cases which were to be tried by special commissions of oyer and terminer; a provincial court for the whole province, to sit ordinarily at Philadelphia but to go on circuit twice a year, with original jurisdiction concurrent with the county courts in cases over ten pounds as well as on appeal from the county courts, and lastly, a court of equity to be held by the governor and council.1 The assembly ever jealous of the centralization of authority objected to a separate court of chancery and to the exercise of original jurisdiction by the provincial court.2 On the other hand, the governor pointed out that the bill proposed by the assembly contained precisely the same faults that had caused the rejection of the Act of 1701; that it went into matters of practice at great length which ought to be settled by rule of court; that the chancery practice ought to conform to that in the other English dominions; that there was too much leniency shown to debtors in the clauses relating to executions; that too much power was conferred on the court of the city of Philadelphia; that the provision for the payment of the judges was inadequate, and that the proprietors' rights were interfered with in the clause providing for the dismissal of the judges on the address of the assembly and for the appropriation of all fines and forfeitures to the support of the courts.3 The controversy began politely enough, for the governor and council were anxious to settle the administration of justice on a firm basis and to persuade the assembly to allow a fixed salary to Roger Mompesson, a good lawyer who had been persuaded to accept the office of chief justice. But as time passed and each 1 II Colonial Records, 268, 3, 8 mo. 1706. 2 II Colonial Records, 263, 23, 7 mo. 1706; 266, 25, 7 mo. 1706; 276, 27, 9 mo. 1706. 3 II Colonial Records, 272, 16, 9 mo. 1706. side adhered obstinately to its own view the tone of the respective messages became warmer. The governor hinted that if further delay occurred he would establish the courts by ordinance and charged the assembly with grasping for power. "It might reasonably be thought a very easy business to establish the courts by a law, without raising new disputes and contending for such Grants of Power as are not essential to their Constitution, nor were ever in the People for these 24 years past, since this has been a colony."1 To which the assembly rejoined that whoever advised the governor to establish courts by ordinance was an enemy to the welfare of the province; that they were not striving for power— "but for what are essential to ye Administration of Justice and agreeable to an English Constitution, and if we have not been in possession of this these 24 years, we know where to place the fault, and shall only say, tis high time we were in the enjoyment of our rights."2 It is needless to refer at greater length to the rhetorical flourishes of the combatants, which did not add particularly to clarity of reasoning. Conferences were held and bitter language used, the matter at one time taking the form of a personal controversy between the hot-headed young governor and the equally fiery speaker, when the latter declined to rise when addressing the governor at one of these debates.3 The assembly then proceeded to impeach James Logan, the secretary of the province, charging him with. attempting to subvert the charter and set up arbitrary government. The governor, having twice adjourned 1 II Colonial Records, 298, 23, 10 mo. 1706. 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 2 Under this ordinance, which embodied the undisputed 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 administration, 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.3 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. II Statutes at Large, 548; I Pennsylvania Archives (1st Series), 157. |