KFP 
 
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 Z9 
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 THE 
 
 CONSTITUTION, JURISDICTION AND PRACTICE 
 
 COURTS OF PENNSYLVANIA 
 
 SEVENTEENTH CENTURY. 
 
 BY 
 
 LAWREN'CE LEWIS, Jr. 
 
 A PAPER READ BEFORE THE HISTORICAL SOCIETY OF PENNSYLVANIA, 
 MONDAY, MARCH 14, 1881. 
 
 REPEIXTED BY PERMISSION FHOM THE 
 PENKSYLVANIA MAUAZJflJS OF HISTOKY ASD BIOGRAPHY. 
 
 PHILADELPHIA: 
 COLLINS, PRINTER, 705 JAYNE STREET 
 
 1881. 
 

 CJornpU IGam i>rl|nnl IGibrary 
 
KFP 510.29L67"""'"™">' '""'"1' 
 
/%, 
 
 Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924024704391 
 
THE 
 
 CONSTITUTION, JURISDICTION AND PRACTICE 
 
 COURTS OF PENNSYLVANIA 
 
 SEYENTEENTH CENTURY. 
 
 BY 
 
 LAWE.EK'CE LEWIS, Jr. 
 
 A PAPER BEAD BEFORE THE HISTORICAL SOCIETY OF PENNSYLVANIA, 
 MONDAY, MARCH 14, 1881. 
 
 EEPKINTED BT PERMISSION PROM THE 
 PENNSYLVANIA MAGAZINE OF HISTORY AND BIOGRAPHY. 
 
 PHILADELPHIA: 
 COLLINS, PRINTER, 705 JATNE STREET. 
 
 1881. 
 
THE COURTS OF PENNSYLVANIA IN THE 
 SEVENTEENTH CENTURY. 
 
 The early judicial history of Pennsylvania necessarily 
 presents striking features of interest to the minds of at least 
 two classes iu the community. To the professional la^^yer 
 it must always be a matter not only of curiosity but of im- 
 portance, to study the first rude means devised to administer 
 justice between man and man, to trace among the scanty 
 records of the past that have descended to us the original of 
 doctrines which constitute a distinctive part of modern juris- 
 prudence, and to discern, among the transactions of those 
 early times, the rise and development of institutions and 
 practices which, moulded by changing circumstances and the 
 lapse of time, have become familiar to him in the ordinary 
 discharge of his professional duties. 
 
 To the student of history the subject affords a different 
 kind of interest. Little attracted by the tedious accounts 
 of routine practice or the fine distinctions between one juris- 
 diction and another, he finds gratification rather in contem- 
 plating the manners, customs, and modes of thought once 
 prevalent in reference to judicial subjects. His eye looks to 
 the accounts of the contentions of long ago with eagerness 
 to glean from them some traces of the past life of the nation, 
 to note upon what matters the interests of its people have 
 been centred, what has been the nature of their industries, 
 the extent of their commerce, the character of their educa- 
 tion, the laxity or strictness of their morals, the depth or 
 shallowness of their religious convictions. Nor does he scan 
 those musty records less closely to aid him in forming a just 
 estimate of the characters and" dispositions of our forefathers. 
 From no other source can he obtain a clearer knowledge of 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 their private foibles or their public merits. Whether judges, 
 counsel, or parties, their natural dispositions, mental and 
 moral training and the real extent of their talents are fre- 
 quently laid bare to investigation, and if the voice of calumny 
 is found sometimes to detract from the merits of those whose 
 memory we would wish only to honor and esteem, ample 
 compensation is afforded in the perusal of bygone transactions 
 which serve as new instances of their virtues and abilities. 
 A review of these considerations has induced me to attempt 
 some slight account of the constitution, jurisdiction, and 
 practice of the Courts of Pennsylvania in the Seventeenth 
 Century. Peculiar facilities have been at length afforded for 
 a thorough investigation of this subject. The late publica- 
 tion of all the Provincial Laws prior to 1700 has thrown new 
 light upon much that was before obscure.' The origin of 
 many distinctive features in our peculiar jurisprudence has 
 been disclosed, the primitive constitution of the courts has 
 been thoroughly explained, and the limits of their respective 
 jurisdictions in early days for the first time clearly defined. 
 I cannot but feel, therefore, that in the preparation of this 
 sketch I have had notable advantages over those who have 
 preceded me, and while despairing of success in attempting 
 to do justice to so large and curious a subject, may perhaps 
 venture to hope that even within the brief limits of this 
 paper I shall be able to present its most striking and interest- 
 ing features. 
 
 The power to erect courts of justice and to appoint all 
 judicial officers in and for the Province of Pennsylvania, was 
 by the express terms of the Charter conferred upon the Pro- 
 prietary.'' But, in deference to the wishes of the people, 
 
 ' The title of this volume reads : Charters to William Penn and Laws of 
 the Province of Pennsylvania, passed between the years 1682 and 1700, pre- 
 ceded by Duke of York's Laws in Force from the year 1676 to the year 1682, 
 with an Appendix containing Laws relating to the organization of the Pro- 
 vincial Courts and Historical Matter. Published under the direction of John 
 Blair Linn, Secretary of the Commonwealth, Harrisburg, 1879. It is better 
 known as the Duke of York's Laws, and will be referred to as D. of Y. L. 
 
 ' Charter of Pennsylvania. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 Penn was willing to forego to some degree the exercise of 
 this extraordinary right. By the Frame of Government^ 
 upon which he modelled his infant colony, he entrusted to 
 the Governor and Council the erection of all necessary courts 
 of justice, at such places and in such numbers as they should 
 see fit, while he reserved to himself for the term of his life 
 only, the exclusive right to nominate to judicial office. Prac- 
 tically neither of these provisions was very strictly carried 
 out. When new courts were to be constituted in the Pro- 
 vince, the concurrence of the Assembly was invariably 
 required to the bill for their erection.' And as to the judi- 
 ciary, though theoretically nominated by the Governor, they 
 were at least during the Seventeenth Century usually selected 
 by the Council, to whom during the absence of the Proprie- 
 tary in England, the executive powers of government were 
 frequently solely entrusted. The Council was elected annu- 
 ally by the people in accordance with the provisions of the 
 Frame, so that generally the constitution of the Provincial 
 Bench was at least to some degree within the popular con- 
 trol. All commissions to those in judicial office during the 
 early periods of our history were issued in the name of the 
 Proprietary, were signed by the Governor, Lieutenant- 
 Governor, or President of the Council, and attested with the 
 great seal of Pennsylvania.' 
 
 Having premised so much as to the common origin of all 
 the provincial tribunals, it remains to point out in detail the 
 characteristic features of each. 
 
 The County Courts of the Province first claim notice and 
 attention. They had their origin in 1673, under the Gov- 
 ernment of James Duke of York, and were established in 
 every county, " to decide all matters under twenty pounds 
 without appeal," and to have exclusive jurisdiction in the 
 administration of criminal justice, with an appeal, however, 
 
 ' Frame. of Government of 1682 : D. of Y. L. 97. 
 2 Laws May 10, 1685, c. 182, D. of Y. L. 177, etc. Laws March 10, 
 1685, c. 77, D. of Y. L. 131, etc. 
 ' Introduction to Court Laws ; D. of Y. L. 298. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 in cases extending to " Life, Limbo and Banishment," to the 
 Court of Assizes in New York.* They were originally com- 
 posed each of five or six justices appointed by the Governor 
 and had a jurisdiction bo vague and undefined that they can 
 scarcely be said to have been bound by any positive law. 
 The records that have come down to us, " are not satisfactory 
 enough to justify any attempt at analyzing the conglomerate 
 condition of law and justice . . . with the view of accu- 
 rately making out the precise code and practice."' Some of 
 these courts met quarterly, some monthly, no one learned in 
 law presided on the bench, no attorney was allowed to prac- 
 tise for pay,* juries were only allowed to consist of six or 
 seven men, except in cases of life and death, and in all save 
 those instances, the conclusions of the majority were allowed 
 to prevail.* In short those courts lacked almost every element 
 of distinctively English procedure. ^ 
 
 iJut, irregular as these tribunals were, they were continued 
 by Penn upon his acquisition of Pennsylvania as well calcu- 
 lated to administer justice to the people. Justices of the 
 Peace were from time to time commissioned, some for the 
 whole Province, some for the particular county, upon whom 
 the duty devolved of holding the County Courts.' Their 
 number varied from time to time with the press of business 
 or the caprice of the Executive. Their attendance at court 
 was secured by the penalty of a fine.^ But to relieve them 
 as much as possible they were occasionally assisted in their 
 labors by the Proprietary in person or by the members of 
 the council and judges of the Provincial Court, all of whom 
 were ex-officio justices of the peace. In each county one of 
 the justices most esteemed for his age or ability was installed 
 as President, though no particular honor or emolument seems 
 to have been attached to the position.' 
 
 ' 5 Penna. Archives, N. S. 631 ; 7 Penna. Archives, N. S. 738. 
 
 2 5 Penna. Arch., N. S. 718. 
 
 •'' Historical Notes ; D. of Y. Laws, 414. * Haz. Ann. Penn. 438. 
 
 5 Book of Laws ; D. of Y. L. 33, 34. 
 
 ^ John Hill Martin's Bench and Bar, Printed Slips in Hist. Soc. of Penna. 
 
 ■> Law May 10, 1685, c. 176 ; D. of Y. L. 176. 
 
 ' John Hill Martin's Bench and Bar, Printed Slips in Hist. Soc. of Penna. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 The County Courts thus constituted anew at first exercised 
 a jurisdiction of a singularly indefinite chacter. Bound as 
 yet by no strict rules of practice or precedent, they conformed 
 for the most part to their former methods of procedure under 
 the government of the Duke of York. Twelve jurymen 
 were, however, now invariably empanneled, and the unani- 
 mous sense of the twelve was required to bring in a verdict. 
 In 1683, the civil jurisdiction of the County Courts was first 
 distinctly defined.' All actions of debt, account, or slander, 
 and all actions of trespass were by an Act of Assembly declared 
 to be originally cognizable solely by them. Cases relating 
 to the title of real estate were also considered as within their 
 jurisdiction, and, although in 1684,^ on the establishment of 
 the Provincial Court, this branch of business was assigned to, 
 it, it was restored to the County Courts by an Act passed 
 during the ensuing year.' The Acts of 1690^ and 1693® sub- 
 stantially confirmed this jurisdiction and settled the author- 
 ity of the court on a surer basis. The ordinary subjects of 
 litigation were actions of debt on bond, actions of slander, 
 actions to recover the possession of land, actions of assault 
 and battery, and actions of trespass either for cutting the 
 plaintiff's timber or killing his "hoggs." Besides, however, 
 the powers exercised by virtue of general statutory enact- 
 ments, there were a variety of other civil matters of which 
 the courts took cognizance either in consequence of express 
 legislative sanction or the binding force of custom. The 
 justices interfered to promote and defend the popular interests 
 in all matters that were of public concern. In very early 
 times they granted letters of administration. They super- 
 intended the laying out of roads, apportioned the town lots 
 to responsible applicants, took acknowledgments of deeds 
 and registered the private brands and marks of considerable 
 owners of cattle. They exercised, too, a supervision over all 
 
 ' Laws, March 10, 1683, c. 70 ; D. of Y. L. 129. 
 
 ' Laws, May 10, 1684, c. 158 ; D. of Y. L. 168. 
 
 ' Laws, May 10, 1685, c. 157 ; D. of Y. L. 171. 
 
 * Laws, May 10, 1690, c. 197 ; D. of Y. L. 186. 
 
 « Laws, May 15, and June 1, 1693, No. 3 ; D. of Y. L. 225. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 bond servants, regulated the sale of their time, afforded sum- 
 mary relief if they were abused by their masters, punished 
 them with stripes or the pillory if they attempted to escape, 
 and took care that they were at liberty to purchase their 
 freedom on reasonable terms. In addition, they frequently 
 discharged other services eminently unjudicial in their nature. 
 In certain contingencies, they levied the county taxes,' they 
 entered into contracts for the erection of public buildings 
 and paid from the county stock the standing reward offered 
 for wolves' heads. Sometimes they were entrusted with 
 special duties by the Council. Thus we find that in 1697-8,^ 
 the County Court of Philadelphia was ordered to cause 
 "stocks and a cage to be .provided," and was required "to 
 suppress the noise & drunkenness of Indians, especially in the 
 night, and to cause the Cryer to go to the extent of each street 
 when hee has anything to cry, and to put a check to Horse 
 racing." 
 
 The courts were for the administration of civil justice 
 entrusted with distinct equity powers. " Each quarter sessions 
 shall be as well a court of Equity as Law," says the Act of 
 1684,' and the provision was re-enacted in 1693.^ What this 
 equity was we have no distinct means of knowing. A high 
 authority" has conjectured that it consisted of that " univer- 
 sal justice which corrects, mitigates, and supplies according 
 to the popular rather than the technical notions of equity," 
 and that "the suggestions of right reason" prevailed more 
 than "the fixed principles of any established code." However 
 this may be, it is certain that even in these very early times, 
 the courts had a distinct equity side. The plaintiff here 
 proceeded exactly as in chancery, by bill, and the defendant 
 responded by answer. A decree was entered, not a judgment, 
 and this was moulded to afford relief according to the require- 
 
 ' Laws, May 15, and June 1, 1693, No. 17 ; D. of Y. L. 233. Chester 
 Co. Records, 14, 8 mo. 1683. 
 ^ MM. Prov. Co., 12 Feb. 1697-8; 1 Col. Rec. 498. 
 » Laws, May 10, 1684, c. 156 ; D. of Y. L. 167. 
 •■ Laws, May 15, and June 1, 1693, No. 3 ; D. of Y. L. 225. 
 » P. MoCall, Bsq.'s, Address before Law Academy of Phila., 1838. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 ments of the particular case. Costs were divided among the 
 parties at the discretion of the court as the justice of the 
 case required. Instances are extant in the early history of 
 the Province where a court sitting as a court of equity is 
 known to have reversed its own judgment previously entered 
 while sitting as a court of law.^ Such a course of proceed- 
 ing, however, was eminently unsatisfactory to the people. 
 The assembly, therefore, in 1687,* proposed a conference with 
 the Council as to whether the courts were really entrusted 
 with such powers. The Council answered that in their opin- 
 io ti the law as to Provincial Courts did "supply and answer 
 all occasions of appeal and was a plainer rule to proceed by." 
 As a consequence the practice was cut up by the roots and 
 all attempts to alter or reverse judgments granted at law 
 were thereafter made by an application to the Provincial 
 Court.^ 
 
 That strong distrust and dislike, however, of equitable 
 powers, which afterward formed so prominent a feature in 
 the Pennsylvania mind, will be found frequently cropping 
 out to the surface even at that early day. In 1690,^ a bill to 
 strike out the word " equity" from the powers given to the 
 courts passed first reading in the House, and though never 
 actually enacted, doubtless represented the views of many in 
 the Province. Again in 1694,* we find the assembly bitterly 
 complaining that the justices had too great liberty to destroy 
 or make void the verdicts of juries, and praying that they 
 might be instructed "not to decree anything in equity" to 
 the prejudice of "judgments before given in law." 
 
 The County Courts were vested with criminal jurisdiction 
 in all save cases of heinous or enormous crimes.* Treason, 
 murder, and manslaughter were always outside their cogni- 
 zance, but until 1693, burgla^ and arson were triable before 
 
 ■ Hasting v. Yarnall, Records Chester Co. Ct. 3 d. 1 wk. 10 mo. 1686. 
 5 d. 1 wk. 10 mo. 1686. 
 ' 1 Votes Ass. 41. Min. Prov. Co., 12, 3 mo. 1687, 1 Col. Eec. 157. 
 = See Min. Prov. Council, April 24, 1695, 1 Col. Rec. 441. 
 
 * 1 "Votes Ass. 57. ' 1 Votes Ass. 79. 
 
 * Vide Acts, etc.. supra. 
 
The Courts of Pennsylvania in the Seventeenth Century, 
 
 them.i These criminal powers were vested in them without 
 a special commission. This never was granted except in the 
 time of Governor Fletcher. The justices had also sometimes 
 entrusted to them powers of general gaol delivery.' The 
 offences of which the county courts had frequently to take 
 cognizance were indeed many of them sufficiently remark- 
 able. Trials for larceny, swearing, laboring on the first day 
 of the week, assault and battery, shooting or maiming the 
 prosecutor's hogs, unduly encouraging drunkenness, selling 
 rum to the Indians, and offences against public morality and 
 decency, constituted the great bulk of the criminal business. 
 Occasionally we find a man arrested and committed to prison 
 on suspicion of piracy or smuggling, and it is pleasant to 
 note that so loyal were the authorities of Chester County, 
 that in 1685 they issued their warrant to apprehend one 
 David Lewis because he was suspected of having taken part 
 in "Monmouth's Rebellion in the West Country."* "Lying 
 in conversation" was fined half acrown,^ "drinking healths 
 which may provoke people to unnecessary and excessive 
 drinking"" was fined five shillings, while the sale of beer 
 made of molasses at more than a penny a quart was visited 
 with a like penalty of five shillings for every quart sold.' 
 No person could " smoak tobacco in the streets of Philadel- 
 phia or New Castle, by day or by night," on penalty of a 
 fine of twelve pence to be applied to the purchase of leather 
 buckets and other instruments against fire.^ Any person 
 " convicted at playing of cards, dice, lotteries or other such 
 like enticing, vain and evil sports and games," was to pay 
 five shillings or be imprisoned five days at hard labor, while 
 those who introduced or frequented "such rude and riotoua 
 sports and practices as prizes, stage plays, masques, revel j, 
 
 ' 1 Votes Ass. 91. 
 
 2 Laws May 15, and June 1, 1693, No. 8, D. of Y. L. 227. 
 
 ' Chester County Ct. Records : 13 day 2 week 10 mo. 1685. 
 
 * D. of y. L., c. 36 ; D. of Y. L. 116. 
 
 » D. of Y. L., c. 14; D. of Y. L. c. 111. 
 
 « Laws May 10, 1684, o. 162, D. of Y. L. 169. 
 
 ' Laws May 15 and June 1, 1693, No. 5, D. of Y. L. 260. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 bull baitings, code fightings and the like," were either to 
 forfeit twenty shillings or be imprisoned at hard labor for ten 
 days." It is to be feared that if such laws should nowadays 
 be re-enacted and enforced, hasty steps would have to be 
 taken for the immediate enlargement of our work-houses 
 and penitentiaries. 
 
 The course of practice in the County Courts, and particu- 
 larly in those of Chester, Bucks, and Philadelphia Counties, 
 was much more regular than has been generally supposed.* 
 Although the justices were never men of any regular legal 
 training, they were doubtless familiar by form books or 
 from hearsay with the ordinary mode of conducting legal 
 proceedings, and at any rate were invariably solicitous to 
 maintain the dignity and propriety of their respective courts. 
 Many amusing instances occur among the records of the 
 various counties of the disturbances to which the justices 
 were subject. Blasphemous and improper expressions of the 
 grossest kind are chronicled at full length with the penalties 
 imposed upon the various culprits. Smoking tobacco in the 
 court-room seems in particular to have been esteemed a most 
 heinous offence. Luke Watson, one of the justices of Sussex 
 Co., in 1684 seriously offended the Court twice on the same 
 day in this manner, and was severely fined by his. brethren 
 on the bench, the first time fifty pounds of tobacco, the 
 second, one hundred.' At the opening of the same court at 
 the June sessions 16b7, there seems to have been particular 
 difficulty in enforcing order. William Bradford was repri- 
 manded for swearing in the presence of the justices, and 
 Thomas Hasellum fined for singing and making a noise.^ 
 A few days after during the same term the court had occa- 
 sion to require the presence of one Thomas Jones, who seems 
 to have been a very hardened character and refused to obey 
 their mandate. They accordingly sent the constable and two 
 justices to fetch him into the court, whereupon he fell to 
 curfeing and banning at a horrible rate. Then, say the records, 
 
 ' Great Law Dec. 7, 1682, c. c. 26 and 27, D. of Y. L. 114. 
 • McCall's Address before Law Academy of Phila., 1838. 
 ' See Sussex County Records, MS. * Ibid. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 "the said Jones being brouglit to the Court, the Court told 
 him of his misdemeanour, and told him he should sufter for 
 it; he told the Court he questioned their power, soe the 
 Court ordered the Sherriff and Constable to secure him and 
 they carryed & dragged him to y' smith shop where they 
 put irons upon him, but he quickly got the Irons off and 
 Escaped, he having before wounded severall persons' legs witb 
 his spurs that strived with him, and when they was goeing 
 to put him in the Stocks, before that they put him in Irons, 
 he Kicked the Sherriff on the mouth and was very unruly 
 and abusive, and soone got out of the Stocks."* 
 
 The distinction between the various kinds of civil actions 
 seems to have been recognized and acted on in all these early 
 courts. Case, Trover, Debt, Ejectment, Trespass, and Ee- 
 plevin occur from time to time and are usually appropriately 
 employed. Sometimes, however, a serious error occurred. 
 Case was for example occasionally substituted for ejectment. 
 The plaintiff would declare for the "just, quiet, and peace- 
 able possession of land," and would obtain relief equivalent in 
 effect to a writ of " habere facias possessionem."^ Even as late 
 as 1705, so good a lawyer as David Lloyd expressed his con- 
 viction that a writ of ejectment would not lie in Pennsylvania 
 "because, being founded on a fiction, it was inconsistent 
 with the spirit of our laws."' 
 
 No matter what the form of action, the process was in- 
 variably the same.* The suit was begun by exhibiting the 
 complaint in court fourteen days before the trial, and by the 
 plaintiff asserting that he verily believed his cause to be just. 
 The defendant was then brought in either by summons, 
 arrest, or attachment. The summons was served at least ten 
 days before the trial, and was accompanied by a copy of the 
 complaint, both of these being in some cases left by the 
 plaintiff' himself at the defendant's dwelling house. No 
 
 ' See Sussex County Eecords, MS. 
 ' Sussex County Eecords, MS., 9, 10, 11, 11 mo. 1682-3. 
 " 2 Min. Prov. Co., 9, 11 mo. 1704-5. 
 
 < McCall's Address before the Law Academy, 1838. Laws, March 10, 
 1683, c. 66, D. of Y. L. 128 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 arrest was allowed unless the defendant was about to leave 
 the county and would give no bail, or unless he had not 
 goods sufficient to be attached.' In some instances an 
 irregular practice obtained of beginning the suit by petition, 
 in which case the defendant was brought in by an order of 
 the court. 
 
 On the day fixed for the trial or hearing, the parties ap- 
 peared in person, or, if unable, by their friends to assert or 
 defend their rights. If the plaintiff had failed to serve his 
 process or complaint, he was non-suited. If the defendant 
 failed to appear, judgment was entered against him for de- 
 fault.^ If both parties were present and ready to proceed, 
 the defendant was called on for his answer. This at first 
 was not always read, but subsequently became an essential 
 part of every case. The papers already mentioned consti- 
 tuted all the processes and pleadings in the cause. They were 
 all short and all in English as required by the fundamental 
 law of the Province.^ The answer could set up any defence, 
 legal or equitable, to the plaintiff^s claim. If a set-off existed, 
 the defendant was to acknowledge the debt which the plain- 
 tiff demanded and defalk what the plaintiff owed to him on 
 the like clearness.* 
 
 The answer being disposed of, the court now turned to 
 the adjudication of the cause. The parties were sometimes, 
 particularly in the lower counties, content to leave the ques- 
 tion to the bench without the intervention of a jury, and 
 in such cases the witnesses for both sides were called, 
 affirmed, and examined, argument heard, and the sentence 
 of the justices jjronounced. These contentions were con- 
 ducted with some regularity. No evidence was received 
 either from a party to the cause or from any one else directly 
 interested in the result. Two witnesses were required to 
 established the plaintiff's case.' A rule of court provided' 
 
 ' Laws, May 10, 1684, c. 167, D. of Y. L. 172. 
 
 2 P. McCall, Bsq.'s, Address before the Law Academy of Phila., 1838. 
 
 ' Great Law, Dec. 7, 1682, c. 37, D. of Y. L. 117. 
 
 < Great Law, Dec. 7, 1682, c. 41 ; D. of Y. L. 118. 
 
 5 Law, 7, 10 mo. 1682, c. 36, P. of Y. L. 116. 
 
 ^ McCall's Address before the Law Academy, 1838. 
 
T'he Courts of Pennsylvania in the Seventeenth Century. 
 
 "That plaintiffs, defendants, and all other persons speak 
 directly to the point in question . . . and that they for- 
 bear reflections and recriminations either on the court, jury, 
 or on one another under penalty of a fine." In deciding the 
 cause the justices were swayed almost entirely by their own 
 convictions of right — arbitrum viri boni. Their sublime dis- 
 regard of ordinary legal rules is patent on even a cursory 
 perusal of their proceedings. 
 
 In most instances the parties were not content to submit 
 the question to the court. A jury was therefore in these 
 cases summond, a verdict duly returned, and judgment in- 
 cluding costs of suit entered thereon. 
 
 The judgment of the court, in the lower counties, was in 
 early times often pronounced in a very remarkable way. 
 An Act of 1683' provided that whereas there was "a neces- 
 sity for the sake of commerce in this infancy of things, that 
 the growth and produce of this Province . . . should pass 
 in lieu of money, that, therefore, all merchantable wheat, 
 rye, Indian corn, barley, oats, pork, beef, and tobacco should 
 pass current at the market price." Of this provision the 
 people availed themselves largely. They frequently gave 
 bonds to each other acknowledging their debts in kind. 
 Judgments were accordingly sometimes entered " for one 
 hundred and seventy-two pounds of pork and two bushels 
 of wheat, being the balance of an account brought into 
 court, "^ or for " 32 shillings for a gun, and one hundred and 
 fifty pounds of pork for a shirt,"' while, perhaps, the climax 
 is reached in an entry of judgment for " one thousand of 
 six-penny nails, and three bottles of rum."' Even when the 
 amount was liquidated in money, it is sometimes found esti- 
 mated in guilders and stivers instead of pounds, shillings, 
 and pence. 
 
 When judgment was once pronounced, ten days had to 
 intervene before execution issued,' and, although this practice 
 
 ' Laws, 25, 8 mo. 1683, c. 144, D. of Y. L. 162. 
 
 2 Sussex Co. Records, MS , 9, 10, 11, 11 mo. 1682-3. 
 
 ' Min. Prov. Co., 1 and 2, 2 mo. 1686, 1 Col. llec. 121-122. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 was complained of by the Assembly as a grievance in 1687, 
 it does not seem to have been substantially altered.' 
 
 Of the process of execution we know very little. The 
 "shriefe," or in his absence the " crowner," always made 
 specific returns to the court of the manner in which he 
 performed this duty. Lands were at least to a limited degree 
 liable to be seized and sold,* and, in some instances, the 
 justices themselves exposed them to public vendue in the 
 court-house.^ 
 
 The tendency of all judicial proceedings was to discourage 
 litigation as much as possible. If the plaintiff declared for 
 more than five pounds, and his debt or damage proved less 
 than that amount, he lost his suit and was mulcted for costs.^ 
 Cases too are very frequent where the courts advised the par- 
 ties amicably to adjust their difficulty rather than undertake 
 the trouble and expense of an adversary proceeding. 
 
 Another strong instance of this peaceable tendency is 
 found in the establishment of the unprofessional but regular 
 tribunal called the Peacemakers. By the Act of 1683° it 
 was provided that in every precinct three persons should be 
 yearly chosen as common peacemakers, whose arbitrations 
 were to be as valid as the judgments of the courts of justice. 
 These peacemakers were not elected by the people, but ap- 
 pointed annually by the County Court." Frequent references 
 of cases pending in the courts were by agreement made to 
 them sometimes once only, occasionally twice, and in rare 
 instances three or four times. The Provincial Council, too, 
 was very apt to relegate questions brought before it to the 
 adjudication of this tribunal.'^ 
 
 The following award tiled in Chester County, in 1687, in 
 
 ' Min. Prov. Co., 11, 3 mo. 1687, 1 Col. Eec. 158. 
 
 ' Presbyterian Corporation v. Wallace et al., 3 Bawle, 140. 
 
 » Vide Sussex Co. Rec, MS. 
 
 * Great Laws, March 10,'l683, c. 71, D. of Y. L. 130. 
 : 5 Law, March 10, 1683, c. 65, D. of Y. L. 128. 
 
 ^ See Address of Hon. James T. Mitchell on Adjournment of District 
 Court, 1875, pp. 4 and 5. 
 
 ' MIn. Prov. Co., 7. 9 mo. 1683, 1 Col. Eec. 34. 
 
The Courts of Fennsylvania in the Seventeenth Century. 
 
 an action of an assault and battery by Samuel Baker against 
 Samuel Eowland,i is a fair example of those usually made 
 by this peace-loving body : " Samuel Rowland shall pay the 
 lawful charges of this court, and give the said Samuel Baker 
 a Hatt, and so Discharge each other of all manner of Differ- 
 ences from the Begining of the World to this Present day." 
 The tribunal of the Peacemakers did not, however, very long 
 survive. In May, 1692,^ the question was put to the Assem- 
 bly whether the law relating to Peacemakers was in practice, 
 and the decision was in the negative. It made way for a 
 similar practice, that of arbitration, always a favorite mode 
 of decision in this State.^ 
 
 Of the practice of the County Courts in criminal cases 
 we do not know so much. Originally the prisoner seems to 
 have been simply brought before the justices on their war- 
 rant, and tried without either indictment or plea. But in a 
 short time this gave place to a more regular course of pro- 
 ceeding. A grand inquest was summoned in every county 
 to bring in their presentment twice a year,^ an indictment 
 was regularly framed, and the prisoner usually admitted to 
 bail, and given every fair opportunity of defending himself. 
 The panel of jurymen was drawn in a highly primitive man- 
 ner. " The names of the freemen were writ on small pieces of 
 paper and put into a hat and shaken, forty-eight of whom 
 were drawn by a child, and those so drawn stood for the 
 sheriff's return."* The sentences of the court were not usu- 
 ally severe. Restitution or compensation to the party 
 aggrieved was in almost all cases adjudged, and the whipping 
 post, the pillory, and the imposition of fines were usually 
 resorted to as punishments in preference to long terms of im- 
 prisonment. In fact the state of society was such as to make 
 it extremely undesirable to deprive the community of the 
 
 ' Baker v. Rowland, Chester Co. Records, 3 day, 1 wk. 8 mo. 1687. 
 
 2 May 12, 1692, 1 Votes of Ass. 62. 
 
 ' P. MoCall Esq.'s Address before the Law Academy of Phila., 1838. 
 
 < Laws, March 10, 1683, D. of Y. L. 129, c. 68. 
 
 » Laws, March 10, 1683, D. of Y. L. 129, c. 69. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 labor of an able-bodied culprit by shutting bim up within a 
 prison's walls. 
 
 Closely allied to the County Courts were the Orphans' Courts 
 of the Province. These were first constituted by the Act of 
 1683, and were to " sitt twice in every year."' The justices 
 were the same as those presiding in the County Courts. 
 
 Their province was declared to be " to inspect and take 
 care of the estates, usage, and eroployment of orphans . . . 
 that care paay be taken for those that are not able to take 
 care for themselves," but their jurisdiction was not confined 
 within this narrow limit. They had control over the man- 
 agement and distribution of decedent's estates, and with 
 the approbation of the Governor and Council could order a 
 sale of his real property for the discharging of his debts.* 
 They appointed too guardians of minors, and regulated their 
 accounts, but obliged legatees to prosecute their claims in 
 the regular courts of law. The duties imposed by them on 
 an executor or administrator as to collection of the assets, 
 filing of the inventory and distributing the estate were sub- 
 stantially the same which he now has to perform. But the 
 primitive nature of the court's proceedings forms a striking 
 contrast to the complications of Orphans' Court practice at 
 the present day. A petition praying the appropriate relief 
 was presented, and. then the residue of the proceedings were 
 moulded to fit the requirements of the case.' In the lower 
 counties the court sometimes neglected to summon the 
 defendant, but gave judgment for the plaintiff on his own 
 showing, a practice which drew on them a sharp reproof 
 from the council in 1685. 
 
 As a rule the conduct of the early Orphans' Courts was by 
 no means satisfactory. Their jurisdiction was vague, their 
 practice irregular, and consequently a large share of the duties 
 which would have been more appropriately performed by 
 them fell to the share of the Provincial Council. 
 
 » Law, March 10, 1683, c. 77, D. of Y. L. 131. 
 " Laws, May 3, 1688, c. 188, D. of Y. L. 180. 
 3 Min. Prov. Co., 24, 7 mo. 1685, 1 Col. Rec. 107. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 Prior to 1684 there existed in Pennsylvania no distinctive 
 appellate tribunal. The County Courts were, it is true, liable 
 to have their judgments modified or reversed on application 
 to the council sitting at Philadelphia.' But this mode of 
 relief, though reasonable enough in the extreme infancy of 
 the colony, gradually began to impose too heavy a burden on 
 the appellant. The spread of the settlements and the difficul- 
 ties of travelling, often made it more tolerable in petty cases 
 to sufier injustice than to obtain redress at the expense of the 
 time, labor, and money involved in going to and returning 
 from the capital town. 
 
 To remedy these inconveniences a court was constituted 
 in 1684,' known as the Provincial Court, to be composed of 
 five judges. Its powers were briefly to hear and determine all 
 appeals and to try " all titles to land and all causes as well 
 criminal as civil, both in law and in equity, not determinable 
 by tlie respective County Courts." For the exercise of these 
 powers, the court was to sit twice in every year at Philadel- 
 phia, and at least two of the justices were to go circuit into 
 every other county in the spring and fall. The judges made 
 use in going from place to place of one Edward Evaret's 
 wherry boat, and the charges of their journeys were defrayed 
 out of the public purse. 
 
 In 1685* the court was constituted anew. The nuniber of 
 its judges was now reduced to three, its criminal jurisdiction 
 in cases of heinous and enormous crimes more distinctly 
 defined, and its original cognizance of trials of title to land 
 abolished. It was again remodeled by the Acts of 1690* and 
 1693,« and the number of its judges was restored to five. Its 
 powers were not, however, by these provisions materially 
 altered. 
 
 Of the judges of the Provincial Court one was always com- 
 missioned as chief, or prior justice, and was entitled by virtue 
 
 ' Laws March 10, 1683, c. Ixx.. D. of Y. L. p. 129. 
 
 » Laws May 10, 1684, o. 158, D. of Y. L. 168. 
 
 ' Laws May 10, 1685, c. 187, D. of Y. L. 177. 
 
 < Laws May 10, 1690, o. 197, D. of Y. L. 184 
 
 » Laws of May 15 and June 1, 1693, c. 163, D. of Y. L. 225. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 of his office to preside. One at least of the justices was 
 always a citizen of the lower counties, and, according to some 
 authorities, whenever the court sat in these counties, an in- 
 habitant was authorized to preside as its chief. This prac- 
 tice necessitated the issuing of two separate commissions 
 whenever a new bench was to be appointed, one nominating 
 a chief justice from the upper, the other from the lower 
 counties.^ 
 
 The commission of 1690,* however, was not issued in the 
 customary way. The council saw fit to appoint Arthur 
 Cook, of Bucks County, Chief Justice for all the sessions of 
 the court. This action provoked an indignant remonstrance 
 on the part of the deputies from the lower counties. They 
 insisted on their right "to have two commissions drawn to 
 the judges that the Province might be accommodated and 
 the Counties annexed with each one, i. e., in one to have a 
 judge from the territories first named, and in the other one 
 from the Province." 
 
 Obtaining no redress from the Council for their alleged 
 grievance, the malcontents resolved upon a most extraordi- 
 nary action. Though only six in number and comprising, 
 therefore, but one-third the Council,, they met clandestinely 
 in the council chamber, chose "William Clark of Sussex to 
 preside over their deliberations, censured severely the negli- 
 gence and incapacity of the judges already chosen, and pro- 
 ceeded to elect a full new bench. 
 
 They further drew up two commissions in accordance with 
 their views, in one of which Clark was nominated as Chief 
 Justice of the lower counties, and proceeded to send the docu- 
 ments to Markham, Keeper of the Great Seal, with instruc- 
 tions to ask him to affix it to them. 
 
 Markham of course refused, and a meeting of the Council 
 was hastily convened who entered a protest again the action 
 of the six members as " undue and irregular," and " contrary 
 
 ' Mia. Prov. Co., 18, 6 mo. 1684, 1 Col. Eeo. 66 j Min. Prov. Co., 12, 7 mo. 
 1684, 1 Col. Eeo. 68. 
 2 Min. Prov. Co., 21 Oct. 1690, 1 CoL Rec. 304. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 to the express letter of the laws." Their proceedings were 
 therefore entirely disallowed and annulled, and a proclama- 
 tion to that effect ordered to he issued. 
 
 The pretensions of the dissatisfied members found, how- 
 ever, ample support among their constituents. Complaints 
 from the territories of their unjust treatment were frequent 
 and universal. And from this trivial occurrence may be 
 dated the beginning of the unhappy differences which thirteen 
 years later occasioned the severance of the lower counties, 
 now constituting the State of Delaware, from the Province 
 of Pennsylvania. 
 
 Por the first few years of the Provincial Court it was 
 found almost impossible to sustain its dignity and character. 
 The compensation given to the judges was very small and 
 probably irregularly paid.^ The terms of office were very 
 short — never exceeding three years, and often extending only 
 throughout one. The duties, too, were arduous and of such 
 a character as involved frequent journeys from one part of 
 the Province to the other. It is therefore scarcely to be 
 wondered at that great difficulty was found in securing pro- 
 per persons to place upon the bench, and that the records are 
 full of instances where appointees begged to be excused from 
 serving, and gladly declined the proffered but unwelcome 
 honor. 
 
 In spite, however, of all these difficulties the early pro- 
 vincial judges of Pennsylvania were men of sterling integrity 
 and notable abilities. There were found persons willing to 
 serve, who, if not of the very foremost rank in talents and 
 energy, were nevertheless sufficiently conspicuous for their 
 public services and private merit. Most of them occupied 
 at one period or another of their career a seat at the provin- 
 cial council board, and some had taken part in the delibera- 
 tions of the Assembly. Destitute of any regular legal train- 
 ing, they nevertheless possessed minds well calculated to 
 administer such rude justice between man and man as the 
 state of the country required. Little bound by the authority 
 
 ' See Introduction to Court Laws, D. of Y. Laws, 298. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 of precedents, and chiefly controlled by the rough notions of 
 equity which nature had implanted in their hearts, they per- 
 formed their duties in a manner which usually secured jus- 
 tice at least in the isolated case before them, and which, 
 therefore, was satisfactory to the community in which they 
 lived. 'No traces of their opinions have come down to us ; 
 and, judging from contemporary records, it seems highly 
 probable that they were seldom required to pass upon a 
 technical point of law. The conducting of routine business, 
 the guarding of juries from extraneous and injurious influ- 
 ences and prejudices, the control and examination of witnesses, 
 and the adjudication of simple matters of fact where the 
 parties agreed to dispense with a jury must have made up 
 the great bulk of their official labors. 
 
 The Proprietary as early as October 18, 1681, in his letter 
 to his kinsman William Markham, says, " I have sent my 
 cosen "William Crispin . . . and it is my will and pleasure 
 that he be as Chief Justice."' Crispin is supposed, however, 
 to have died either before sailing for America or shortly 
 after his arrival.* His commission at any rate never took 
 'effect. No memorial is preserved of his having ever pre- 
 sided in any court. 
 
 The honor, therefore, of first discharging the highest judi- 
 cial office in Pennsylvania, is to be attributed to the man 
 appointed by the Proprietary in pursuance of the Act of 
 1684 — that man was Nicholas More. It is difficult, almost 
 impossible, justly to estimate the abilities and character of 
 More, from the sources of information which lie open to us. 
 Educated according to the better opinion in the study of 
 medicine, he in maturer years drifted away from the practice 
 of his profession and in 1681 became the President of the 
 Society of Free Traders and a large purchaser of land in the 
 new Province of Pennsylvania.' He arrived in the colony 
 with Penn in 1682, and though not a member of the Society 
 
 ' Proud's History of Pennsylvania, 295. 
 " "Westcott's History of Phila. c. 18. 
 
 ' The History of Moreland, by William J. Buck, 6 Coll. Hist. Soc. of 
 Penna. 189. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 of Friends, so far won the confidence and regard of the 
 people that he was returned as a member of the first As- 
 sembly at Chester, and even according to soriie accounts was 
 elected speaker of that body.^ He. was returned as a mem- 
 ber of the Assembly in the three succeeding years, and in 
 1684 was elected again its speaker.^ In August of that same 
 year lie was commissioned by the Proprietary, Chief Justice, 
 or prior judge as it was then called, of the Province, and at 
 once entered upon the discharge of the functions of that 
 office.' 
 
 But however estimable the qualities which entitled him 
 to all these offices of trust and honor, his character was 
 stained by faults which irritated and incensed those with 
 whom he was brought in contact. A strong and energetic 
 mind was in him joined to an haughty mien, a contentious 
 spirit, and a harsh and ungoverned temper. The early re- 
 cords of the Province afibrd several instances where his im- 
 patient outbursts shocked the sense of his contemporaries. 
 When in 1683 a Council and Assembly were returned less 
 in numbers than required by the Frame of Government, 
 who nevertheless proceeded to business as though invested 
 with full legislative powers. More is reported as saying in 
 public, "You have broken the Charter, and therefore all 
 that you do will come to nothing. Hundreds in England 
 will curse you, . . . and their children after them, and you 
 may be impeached for treason for what you do."* 
 
 Again in 1684, on the passage of certain laws to which he 
 was bitterly opposed, he denounced them openly in the 
 House, as " cursed laws," and used still stronger language 
 even better calculated to outrage the feelings of his fellow 
 law-makers." In addition to all this we find that repeatedly 
 he entered his indignant and solitary protest upon the min- 
 
 ' Gordon's Hist, of Penn. 87. 
 ^ Votes of Ass. pp. 1, 24. 
 ' ' Min. Prov. Co., 12, 7 mo. 1684, 1 Col. Eec. 68. 
 • Min. Prov. Co., 2, 1 mo. 1683, 1 Col. Eec. 2. 
 » Min. Prov. Co., 17, 3 mo. 1684, 1 Col. Eec. 55. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 utes of the Assembly against measures which seemed to his 
 individual judgment, hasty or impolitic.^ 
 
 The continuance of such practices joined no doubt to an 
 overbearing and haughty spirit in the discharge of his judi- 
 cial duties made More many enemies in all classes of the 
 community. It is, therefore, with but little surprise that 
 we read of a formal impeachment of him by the Assembly 
 as early in his judicial career as 1685.^ 
 
 On the morning of May 15 of that year a formal complaint 
 was exhibited by a member of the House against him. More, 
 who was sitting as a delegate in the House, was ordered to with- 
 draw. The articles of accusation were read and successively 
 approved. Managers to conduct the impeachment were 
 appointed, and then the whole body adjourned to wait upon 
 the President and Council and request them to remove the 
 accused from all his oflaces of trust and power. The council 
 received the accusers with grave civility, appointed seven 
 o'clock on the following morning as a time for them to sub- 
 stantiate their complaints, and summoned the accused to 
 answer to the charges preferred against him.^ 
 
 Meanwhile More was by no means inclined gracefully to 
 submit himself and his actions to the Judgment of the Coun- 
 cil. He took occasion to complain bitterly of the action of 
 the Assembly, and accused Abraham Man, one of the mana- 
 gers of the impeachment, of being " a person of a seditious 
 spirit."* 
 
 The next morning the House assembled, not, it may be 
 conceived, in the best of tempers. More, they resolved, had, 
 by his animadversions upon Man, " broke the order and 
 privilege of the House." A committee was despatched to 
 require his attendance to answer the accusations made against 
 him, and he was warned that " if he did not submit himself 
 as conscious of the said charge, that he should be ejected as 
 an unprofitable member of the House." 
 
 The committee, however, met with little success in their 
 
 ' Totes of Assembly, pp. 32 and 33. ' Votes of Assembly, p. 33. 
 
 » Min. Prov. Co., May 15, 1685, 1 Col. Kec. 83. 
 * Votes of Assembly, p. 34. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 mission. They waited on the culprit, and informed him of 
 what they wished. " In what capacity do you come ?" said 
 More. " That you may know when you come there," said 
 they. "I will be voted into the House as I was voted out of 
 the House before I will appear in the House," was the arro- 
 gant rejoinder, and with this report the committee was fain 
 to return. 
 
 The Assembly now very prudently resolved to collect the 
 testimony necessary to make good their charge. The pos- 
 session of the records of the Provincial Court was almost a 
 necessity, as they contained not only the strongest but in 
 some cases the only existing evidence of More's misfeasances 
 in office. It so chanced that Patrick Robinson, clerk of the 
 Court, was present in the room where the House was assem- 
 bled, a man little in sympathy with the impeachment and 
 more disposed to shield the accused than furnish the evi- 
 dence against him. He was called upon to produce the 
 records, but this he declined to do, alleging at first that 
 there were no records and afterwards insisting that they 
 were " written some in Latin where one word stood for a 
 sentence, and in unintelligible characters which no person 
 could read but himself, no, not an angel from Heaven." 
 
 The House mildly but firmly insisted on compliance with 
 their commands, but the utmost they could obtain from the 
 clerk was a promise that he would consider it. " Delay will 
 be taken as a denial," was the warning he received. " Tou 
 may take it so if you will," was his reply, and with this clos- 
 ing insolence he withdrew. The House, justly indignant at 
 his behavior, ordered their speaker's warrant to issue for his 
 apprehension, and committed him to the custody of the 
 sheriff till their pleasure should be known. 
 
 Nor was this the sum of Robinson's misdeeds. He was 
 reported as having used the scandalous phrase in reference 
 to the articles of impeachment that they were drawn up 
 " hob nob at a venture." This was too much for the patience 
 of the House. They voted him a public enemy and violator 
 of their privileges, and declared themselves unable to proceed 
 with public business until they should obtain satisfaction from 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 the Council. The House accordingly adjsjurned, and John: 
 "White, the speaker, with two other members, went to wait 
 upon the Council. Robinson had by this time apparently 
 worked himself into a towering rage. Meeting White on 
 the street going to the Council Chamber, he stopped him in 
 a threatening manner, saying, " Well, John,.have a care what 
 you do ; I'll have at you when you are out of the chair." 
 The committee, however, were well received by the Council, 
 and promised satisfaction for the insult. Robinson's expres- 
 sion was declared " indecent, unalowable and to be disowned," 
 and More having failed to appear that morning, the after- 
 noon of the next day ;but one was fixed, by the Council for 
 the hearing of the case.' 
 
 More all this time, seicretly supported by the Governor and 
 his friends in the Council, took no notice of the proceedings 
 against him, and outwardly affected an ignorance of them 
 and indifference to them which must have been feigned. 
 Meeting John Briggs, a member of the House, at the Gov- 
 ernor's, he asked him in a careless manner " what the Assem- 
 bly was doing." Briggs. replied what More very well knew, 
 " They are proceeding on thy impeachment," " Either I 
 myself or some of you will be hanged," said More, "and I 
 advise you to enter your protest against it."? 
 
 On the morning of the- eighteenth, the Assembly met after 
 a long conference with the Council. They once more en- 
 deavored to extort the records from Rolinson, who. was 
 brought into the house in the custody of the sheriff, but in 
 vain. " He lying along upon the ground," say the Votes, 
 " refused to make answer to the point, but told the Assem- 
 bly that they acted arbitrarily and had no authority." The 
 House therefore hastened to make an end of the business. 
 They expelled More, -resolved to ask that Robinson should 
 be removed from office, hastily gathered together their evi- 
 dence, and presented themselves before the Council. 
 
 More had again absented himself, but the evidence against 
 him was sufficiently serious. He was proved to have acted 
 
 ' Min. Prov. Co., 18, 3 mo. 1685, 1 Col. Eec. 86 ; 1 Votes of Ass. 35. 
 ' 1 Votes of Assembly, 35. 
 
The Courts of Pennsylvania in the Seventeenth Century.. 
 
 in a summary and unlawful way in summoning juries, to 
 have perverted the sense of testimony, to have unduly 
 hectored and harassed a jury into finding an unjust verdict, 
 to have improperly vacated a judgment and discharged the 
 defendant who had been arrested for the debt, to have 
 refused to go circuit in the lower counties where he could 
 not preside as chief, and finally of having used " severall 
 contemptuous and Derogatory expressions ... of the 
 Provincial Council and of the Present state of Governm't 
 by calling the memb. thereof fooles & loggerheads," and by 
 saying " it was well if all the laws had dropt and that it 
 never would be good times as long as y" Quakers had y« 
 administration." 
 
 The speaker then again requested that both More and 
 Eobinson be dismissed from office, and immediately after the 
 Assembly withdrew.' 
 
 The Governor and council were sufficiently puzzled how 
 to act. In the case of Eobinson indeed they declined to 
 meddle at all,^ and he was continued in his office for more 
 than a year, until his insolence to the Provincial Judges 
 necessitated his dismissal.' 
 
 In the case of More there was greater difficulty to know 
 how to conduct themselves. They had every disposition to 
 treat him with favor, but the force of public opinion and his 
 own extraordinary indifference to the proceedings against 
 him at length forced them into depriving him of his office 
 and dignities.^ They would never consent, however, to the 
 further prosecution of his impeachment, and, though repeat- 
 edly solicited by the Assembly, postponed the matter from 
 month to month by trivial excuses* till more important 
 matters took its place in the public mind. I have been thus 
 particular in setting forth the prosecution of Nicholas More, 
 
 ' Min. Prov. Co., 19, 3 mo. 1685, 1 Col. Rec. 88. 
 2 Mio. Prov. Co., 2, 4 mo. 168.5, 1 Col. Rec. 90. 
 ' Min. Prov. Co., 1, 8 mo. 1686, 1 Col. Rec. 144. 
 * Min. Prov. Co., 2, 4 mo. 1685, 1 Col. Roc. 90. 
 
 " 1 Votes of Assembly, p. 37 ; Min. Prov. Co., 28, 5 mo. 1685, 1 Col. Reo. 
 100; 29, 5 mo. 1685, 1 Col. Rec. 101 ; 16. 7 mo. 1685, 1 Col. Rec. 102. 
 
■The Courts of Pennsylvania in the Seventeenth Century. 
 
 not only because it constitutes an interesting episode in the 
 history of the first legal dignitary of the Province, hut 
 because it affords an excellent idea of the manners and modes 
 of thought prevalent in those early days. Too great care 
 cannot however be taken to remember that the crimes laid 
 at the judge's door were after all but the ex -parte statements 
 of his adversaries. He had some warm friends both in the 
 Council and Assembly, and was so trusted and respected by 
 thei Proprietary, that in 1686 he was appointed one of a 
 board of five to constitute the Executive of the Province.' 
 For some unknown reason he never actually served." But 
 surely it is reasonable to conclude that he must have been 
 possessed of some sterling qualities and considerable natural 
 parts to warrant Penn in his appointment.' His dismissal 
 from office ended his career as a public man. He died after 
 a languishing illness in 1689.* 
 
 The remaining chief or prior justices of Pennsylvania dur- 
 ing the Seventeenth Century were James Harrison and 
 Arthur Cook of Bucks, John Symcocke of Chester, and 
 Andrew Eobeson of Philadelphia.' Though not perhaps so 
 eminent as More, they were nevertheless all well fitted by 
 temperament and reputation for the station which they filled. 
 Their integrity was never disputed and their judgments 
 seldom complained of. Among their brethren on the pro- 
 vincial bench we find such men as Turner, Claypoole, Clark, 
 Growden, Wynne, and Shippen ; names, which if not calcu- 
 lated to confer lustre, at least insured respectability to the 
 court in which they sat. 
 
 Of the practice of the Provincial Court we know but little. 
 Its records have perished, a fact not very wonderful if David 
 Lloyd's assertion be true that in his time they were written on 
 
 ' Gordon's Hist, of Penna. 90. 
 
 » Historical Notes, D. of Y. Laws, 513. 
 
 ' See also letter from Dr. Nicholas More to William Penn, Sept. 13, 1686. 
 Printed in 1687. Beprinted in 4 Penna. Mao. op Hist, and Bioo. 445. 
 
 * 6 Coll. Hist. Soc. of Penna. 189. 
 
 ' Vide John Hill Martin's Bench and Bar, Printed Slips in Hist. Soc. of 
 Pennsylvania. 
 
The Courts o/" Pennsylvania in the Seventeenth Century. 
 
 " a quire of paper. "^ The proceedings were, however, prob- 
 ably very similar to those of the County Courts. Eight days 
 intervened between judgment and the award of execution,* 
 and an appeal lay, in accordance with the provisions of the 
 Charter, from all 'ts decisions to the Privy Council in Eng- 
 land. 
 
 The most conspicuous of the provincial tribunals and by 
 far the best known to ordinary readers was the Provincial 
 Council. This body was composed of the most influential 
 and prominent men of the community, and, although chosen 
 annually by the people, served usually to represent the more 
 conservative and aristocratic element in society, and was 
 well calculated to impose a check on the hasty and some- 
 times ill-advised actions of the Assembly. Its powers far 
 transcended those of any body of men now entrusted with 
 the government of the people. Its duties were at once 
 executive, legislative, and judicial. The first were oftea 
 sufficiently onerous owing to the prolonged absence of the 
 Proprietary in England and the necessity of assuming some 
 part of his functions and privileges. They were therefore 
 called upon, among other duties, to appoint the judges both 
 of the County and Provincial Courts, to supervise the sub- 
 division of counties, to control the commerce with the 
 savages, and to exercise a censorship over the press more 
 stringent than is usually supposed ever to have been put in 
 force in Pennsylvania. In 1685,' one Atkins issued an 
 almanac from the press of "Wm. Bradford in the " chronol- 
 ogic" in which he had the assurance to refer to the Pro- 
 prietary as "Lord Penn." The title struck with horror 
 upon the simple minds of the members of the Council. At- 
 kins was admonished to blot out the objectionable words, 
 and Bradford was warned to publish nothing save that for 
 which he should obtain a license.* In 1689 Joseph Growden, 
 
 ' Min. Prov. Co., 25, 12 mo. 1688-9, 1 Col. Eec. 202. 
 ^ Min. Prov. Co., 2, 2 mo. 1686, 1 Col. Reo. 122. 
 ' Min. Prov. Co., 9, 11 mo. 1685, 1 Col. Reo. 115. 
 * Min. Prov. Co., 9, 2 mo. 1689, 1 Ool. Rec. 235. 
 
The Courts of Pennsylvania in the Seventeenth Gentry. 
 
 a most influential and well-known citizen, was openly censured 
 for having presumed to print and circulate the Frame of 
 Government, and it was publicly announced that the Pro- 
 prietary had declared himself adverse to the use of the print- 
 ing press. Nor did the authorities confine themselves to 
 warnings merely. In 1692 Bradford's printing materials 
 were by their order seized and taken from him in conse- 
 quence of his having issued from his press some books of 
 controversy.' 
 
 The orders of the Council were not limited to affairs of 
 general interest merely. Municipal regulations also claimed 
 their attention. How far the following proclamation of 
 Council on July 11, 1693, would be applicable or advisable 
 now, I leave to the candid judgment of my hearers. It is 
 entitled an order against " the tumultous gatherings of the 
 negroes of the towne of Philadelphia on the first dayes of 
 the weeke." By its terms the constables are empowered to 
 arrest all " negroes male or female whom they should find 
 gadding abroad on the said first dayes of the week, without 
 a tickett from their Mr. or Mrs. or not in their compa. and 
 to carry them to goale, there to remain that night and that 
 without meat or drink and to cause them to be publickly 
 whipt next morning with thirty-nine lashes, well laid on, on 
 their bare backs . . . ."^ 
 
 The legislative duties of the Council were besides very 
 considerable. Upon them originally devolved the prepara- 
 tion of all legislative measures, and, even when in 1693 this 
 right was assumed by the Assembly, the assent of the Coun- 
 cil was required to every bill, as constituting a co-ordinate 
 branch of the Government.' 
 
 The judicial functions discharged by them claim particu- 
 larly in this place attention and classification. The amount 
 of such business devolving upon the Council was very great. 
 Its members were, it is true, ex-officio justices of the County 
 
 ' Min. Prov. Co., 27 April 1693, 1 Col. Eec. 326. 
 » Min. Prov. Co., 11 July, 1693, 1 Col. Eec. 341. 
 ' Introduction to Court Laws, D. of Y. L. 299. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 Courts,' but were besides looked up to by all classes as the 
 supreme judges of the land.^ Much difficulty has been found 
 iu understanding the nature and extent of their jurisdic- 
 tion. It is said by some to have been bounded by no very 
 definite limits, to present a confused appearance, and to have 
 conflicted with the jurisdiction of the other provincial tri- 
 bunals.' A somewhat careful study of the reported cases 
 adjudged by it during the Seventeenth Century, has induced 
 me to think these remarks uncalled for. 
 
 It is true that in the very infancy of the Colony a few 
 cases of fineg imposed for drunkenness and ordinary actions 
 of debt or account appear upon the minutes of the Council. 
 But with these few exceptions the instances of the exercise 
 of judicial power are easily grouped into a few leading classes. 
 
 First come the appeals from the County Courts, all prior to 
 the establishment of the Provincial Court in 1684. These 
 were expressly authorized by statutory enactment,* and al- 
 though a number of like appeals were brought after the 
 establishment of the Provincial Court, the petitioners were 
 invariably relegated to the appropriate and lawful forum. 
 
 N'ext comes the jurisdiction to try great crimes, originally 
 in the Duke of York's time devolving on the Court of 
 Assizes. "Eo such power was reposed in the County Courts, 
 nor until 1685" was it conferred upon the Provincial Judges. 
 For the first three years of the Colony, therefore, the Council 
 of necessity assumed jurisdiction in such cases. Of these 
 the most considerable were the trials of Pickering, Buckley, 
 and Felton for debasing the coin, and of Margaret Mattson 
 for witchcraft. 
 
 Pickering's case presents no very remarkable features.® 
 He was indicted for " Quinitig of Spanish Bitts and Boston 
 
 ' See John Hill Hartin's Bench and Bar, Printed Slips in Hist. Soc of 
 Penna. 
 ' Min. Prov. Co., 13, 1 mo. 1688-9. 1 Col. Rec. 217. 
 " McCall's Address before the Law Academy, 1838. 
 * Laws March 10, 1683, c. 70, D. of Y. L. p. 129. 
 •> Laws May 10, 1685, c. 132, D. of T. L. p. 177. 
 ' Min. Prov. Co., 26, 8 mo. 1683, 1 Col. Rec. 32. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 Money" (by which is meant, I suppose, Pine Tree, Oak Tree 
 or New England shillings), of a value considerably less than 
 the genuine articles. A true bill was found by the grand 
 jury, and his trial took place before the Council on October 
 26, 1683. The Proprietary himself presided, a jury was 
 duly empannelled, the offence clearly proven, and a verdict 
 of guilty returned. The sentence was characteristic of the 
 time. Pickering himself, the chief offender, was " to make 
 full satisfaction in good and currant pay to every person that 
 should within y' space of one month, bring in any of this 
 False, Base and Counterfeit Coyne . . . according to 
 their respective proportions and the money brought in was 
 to be melted Into gross before being returned to him," and 
 he was further fined £40, to be appropriated towards build- 
 ing a Court House. 
 
 Samuel Buckley being more " engenious" was fined £10, 
 to be appropriated' in the same way, and Fenton, being but 
 a servant, was. only condemned to be put in the stocks for an 
 hour. 
 
 The case of Margaret Mattson^ is of much greater and 
 more general interest, both on account of the peculiarity of 
 the accusation and the notoriety it has acquired as illustra- 
 ting the temper of our ancestors. The trial took place on 
 February 27, 1683-4 before the Proprietary himself. The 
 evidence adduced against the prisoner was of a most trifiing 
 character, and such as now would be scouted from the witness 
 box of a court of justice. Several witnesses declared that 
 they had been told by others that the prisoner had bewitched 
 their cattle. One man swore that while boiling the heart of 
 a calf, which he supposed to have died by witchcraft, the 
 prisoner came into his house and was visibly discomposed, 
 making use of several strange and unseemly expressions rela- 
 tive to his employment. Another declared that a few nights 
 before, his wife had waked him in a great fright, alleging 
 that she had just seen a great light and an old woman with 
 a knife in her hand at the " Bedd's feet." But the witness 
 
 ' Min. Prov. Co., 27, 12 mo. 1683, 1 Col. Rec. 40. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 failed even to identify the apparition as resembling the 
 accused. The prisoner conducted her defence with great 
 ability and presence of mind, denied the allegations of her 
 accusers, and very discreetly pointed out that every particle 
 of the evidence against her was but hearsay. 
 
 The Governor charged the jury, how we cannot know, but 
 we can easily imagine, strongly in favor of the prisoner. 
 The verdict at any rate was "guilty of having the common 
 fame of a witch, but not guilty in manner and form as she 
 stands indicted." The prisoner, therefore, having given 
 security for l^er good behavior, was released. 
 
 However creditable the result of this matter was to the 
 heads and hearts of the Governor and jury concerned, it will 
 not do to allow the idea to be conveyed that a belief in 
 witchcraft and in the freaks of the powers of darkness, did 
 not exist in the colony. When such a short time before in 
 England a judge of the learning, temper, and reputation of 
 Sir Matthew Hale, had, by his vehement charge to a jury, sent 
 two poor old women to the stake for practising magic arts,' 
 when the Salem witchcrafts and the apparitions reported 
 by Cotton Mather were such very recent events in the 
 popular mind, no such broad and liberal spirit could be ex- 
 pected here. Accordingly, in 1695 , we find one Robert Roman 
 presented by the grand inquest of Chester County for prac- 
 tising geomancy according to Hidon, and divining by a 
 stick.* He submitted himself to the bench and was fined 
 £5, and his books, Hidon's Temple of Wisdom, Scott's Dis- 
 covery of Witchcraft, and Cornelius Agrippa's Geomancy, 
 were ordered to be taken from him and brought into court. 
 
 In 1701 a petition of Robert Guard and his wife was read 
 before the Council, setting forth "That a certain Strange 
 Woman lately arrived in this Town being seized with a very 
 Sudden illness after she had been in their company on the 
 17th Instant, and Several Pins being taken out of her Breasts, 
 
 ' Campbell's Lives of the Chief Justices of England. Life, Sir Matthew 
 Hale, Am. Ed., vol. ii., p. 224, etc. 
 
 « Records Chester Co., MS. 1695. MoOall's Address before Law Academy 
 of Phila., 1838. 
 
7'Ae Courts of Fennsylvania in the Seventeenth Century 
 
 one John Richards Butcher and his Wife Ann, charged the 
 Petr's with Witchcraft, and as being the Authors of the Said 
 Mischief," They alleged that their trade and reputation 
 had suffered in consequence, and asked that their accusers be 
 cited to appear. A summons was issued accordingly but the 
 matter, being judged trifling, was dismissed.* Even as late as 
 1719, we find that the commission to the justices of Chester 
 County empowered them to inquire of all " witchcrafts, en- 
 chantments, sorceries, and magick arts."* 
 
 To return to the jurisdiction of the Provincial Council. 
 Another class of cases constantly brought before them were 
 those connected with admiralty matters. No power to deal 
 with these was vested in the ordinaiy Courts of the Pro- 
 vince, nor was there any distinctive Court of Vice- Admiralty 
 erected until near the find of the century. 
 
 Hence we find the Council taking cognizance of numerous 
 suits for mariners' wages,' and pilots fees,* of complaints 
 of passengers and sailors against masters and mates for ill 
 treatment," insufficient victualling and the like. Instances 
 too are frequent of the adjudication of ships and cargoes 
 seized for a violation of the provisions of the navigation acts 
 of 12 Charles II., and 7 and 8 Wm. III.' These were usually 
 settled by the Council after hearing the necessary witnesses, 
 but sometimes a special jury was summoned by whom the 
 case was decided.' This jurisdiction terminated, as will 
 shortly be seen, when a Vice- Admiralty Court 'Was duly 
 erected. 
 
 Another line of cases frequently brought before the Coun- 
 cil were those which bore reference to the appointment of 
 guardians and the administration and partition of decedents' 
 
 ' Min. Prov. Co., 21, 3 mo. 1701, 2 Col. Eec. 20. 
 
 ' D. of Y. L. 382. 
 
 = Min. Prov. Co., 20, 1 mo. 1683, 1 Col. Eec. 8 ; 25, 2 mo. 1685, 1 Col. 
 Rec. 79. 
 
 * Min. Prov. Co., June 27, 1693, 1 Col. Rec. 340. 
 
 « Min. Prov. Co., 7 and 8, 7 mo. 1683, 1 Col. Rec. 23-24; 30, 2 mo. 1686, 
 1 Col. Rec. 126 ; 11, 4 mo. 1685, 1 Col. Rec. 91. 
 
 s Min. Prov. Council, 14, 8 mo. 1684, 1 Col. Eec. 69. 
 
 ' Min. Prov. Council, April 23, 1695, 1 Col. Rec. 440. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 estates.' Such matters fell of course more regularly under the 
 domain of the Orphans' Courts. But from the somewhat 
 vague nature of the powers of these Courts, and from other 
 causes not now perfectly understood, it appears that they were 
 unable to do justice in all cases. The Council therefore often 
 assumed the duty of themselves, sometimes assigning as a 
 reason the extraordinary nature of the case, and at other 
 times proceeding in the matter as of course." We can well 
 believe, however, that except under peculiar circumstances 
 such jurisdiction would not be assumed, and we are more 
 particularly warranted in this belief by the number of causes 
 relegated to their proper tribunal.' The power to order a 
 sale of lands for payment of debts seems originally to have 
 been reposed entirely in the Council.* Even by the Act of 
 1693," its approval was required in cases where an order to 
 that effect had been made by the justices of the inferior 
 court. 
 
 The great bulk, however, of the judicial powers of the 
 Council were largely executive in their nature, and have been 
 aptly said to resemble those wielded by the Court of Star 
 Chamber in its purest and best days.' It assumed to itself 
 the control and direction of inferior courts in cases of ex- 
 treme liardship or manifest irregularity of proceeding, and 
 with an unsparing hand admonished or punished wrong- 
 doers in judicial or shrieval positions by fines, imprisonment, 
 and removal from office. A few instances will serve to ex- 
 plain the nature of these duties. 
 
 In 1683 the County Court at Philadelphia had given 
 judgment concerning a title to land in Bucks County. The 
 business was referred to the County Court where the lands 
 
 ■ Min. Prov. Council, 30, 8 mo. 1683 j 24, 7 mo. 1685 j 12, 2 mo. 1690 ; 
 Sept. 21, 1686. 
 
 ' Min. Prov. Co., July 30, 1693, 1 Col. Rec. 344. 
 
 > Min. Prov. Co., May 19, 1698, 1 Col. Rec. 504. 
 
 * Min. Prov. Co., 21 and 22 May, 1697, 1 Col. Rec. 477-478 ; May 15, 
 1699, 1 Col. Rec. 525 ; July 31, 1700, 1 Col. Rec. 656. 
 
 » Laws May 3, 1688, c. 188, D. of Y. L. 180. 
 
 ' McOall's Address before the Law Academy, 1838. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 lay and the County Court of Philadelphia fined forty pounds 
 for giving judgment contrary to law.' 
 
 In 1685^ a complaint was entered that the petitioners, 
 having stolen a hog, had at the last Provincial Court been 
 "ordered and sensured to pay tenn pounds seaven shillings 
 for the same, though it was only valued at one pound three 
 shillings," besides being whipped for their offence. This sen- 
 tence was complained of as being too severe, and the Council 
 accordingly held the matter over to confer with the Pro- 
 vincial Judges. 
 
 In 1686' "the petition of Widow Hilliard and John Hil- 
 liard, Jun., against Griffith Jones, was Read, setting forth 
 yt the said Griffl Jones having obtained an Execution agt 
 y" Estate of John Hilliard, Deceased, would not execute y" 
 same on no other part of y' said John Hilliard Estates 
 than the Plantation on which shee, y" widdow of y' sd 
 Hilliard, and her children lives on, tho' there be enough in 
 other places to satisfy y' execution of j' effect of Deceased's 
 estates." The Council granted the prayer of the petition, and 
 warned the sheriff accordingly. 
 
 The same day the "Petition of Jacob Vandervere was 
 Read setting forth y' illegal and unchristian serving an ex- 
 ecution on his goods and turning him, his wife and children 
 out of y Doors, and not Leaving them anything to susteine 
 nature."* The Council ordered the clerk of the court and 
 sheriff to appear and answer the complaint, but nothing seems 
 to have been done in the matter. Besides these, dozens of in- 
 stances might be cited where petitions were filed and relief 
 granted. Orders were madfe to oblige the County Court to 
 admit an appeal," to force the Provincial Court to allow an 
 appeal to England,* to oblige a justice to set his hand to an 
 
 ' Min. Prov. Co., 20, 4 mo. 1683, 1 Col. Keo. 20. 
 ' Min. Prov. Council, 28, 2 mo. 1685, 1 Col. Bee. 79. 
 » Min. Prov. Co., 9, 2 mo. 1686, 1 Col. Rec. 124. 
 * Min. Prov. Co., 9, 2 mo. 1686, 1 Col. Eeo. 125. 
 
 = Min. Prov. Co., 7, 6 mo. 1686, 1 Col. Rec. 141 ; 18, 3 mo. 1687, 1 Col. 
 Rec. 161. 
 « Min. ProY. Co., 11, 5 mo. 1685, 1 Col. Rec. 95. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 execution,' to secure a procedendo^ and for numerous other 
 purposes. The powers of the Council were plastic, and fitted 
 themselves to the injury rec[uiring their beneficent interfer- 
 ence. 
 
 The practice of the Council in hearing and adjudging cases 
 was uniform. After reading the complainants' petition, the 
 nature of the case was considered. If it was not cognizable 
 by them, the petitioner was relegated to his proper forum. If 
 it was, and the nature of the case was such as entitled the 
 other side to a hearing, they were duly summoned, a day set 
 apart for a production of the evidence, and after due deliber- 
 ation, either relief was afforded or the petition dismissed. 
 If however the case was of such a nature as to need no sum- 
 mons to an opposite party, the matter was referred to a 
 committee, and on their report and advice the action of the 
 whole body was founded. 
 
 It is useless to conceal, however, despite the ordinarily 
 beneficial influence of this controlling and directing power, 
 that its exercise was little in accordance with the principles 
 of English law, and very far from being suited to the tastes 
 and disposition of the people. 
 
 Accordingly in 1701, the Assembly expressly petitioned the 
 Proprietary " that no Person or Persons shall or may at any 
 time hereafter be Lyable to answer any complaint, matter, 
 or thing whatsoever relating to Property before the Gov' or 
 his Council or in any other place but the ordinary Courts of 
 Justice."* 
 
 Penn replied, " I know of no person that has been obliged 
 to answer before the Gov' and Council in such cases."* He 
 nevertheless inserted in the new Charter of Privileges a 
 clause of similar purport to that prayed for," and from that 
 time the distinctively judicial duties of the Provincial Coun- 
 cil may be fairly said to have ceased. 
 
 ' Min. Prov. Co., 28, 5 mo. 1685, 1 Col. Rec. 98. 
 = Min. Prov. Co., April 23, 168.5, 1 Ool. Rec. 440. 
 » Min. Prov. Co., 20, 7 mo. 1701, 2 Ool. Rec. 37. 
 
 * Min. Prov. Co., 29, 7 mo. 1701, 2 Col. Rec. 41. 
 
 • Min. Prov. Co., 28 Oct. 1701, 2 Ool. Rec. p. 59, ? 6. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 The last three years of the Seventeenth Century, and par- 
 ticularly the time immediately preceding the Proprietary's 
 second visit to his Province, were full of disorders and dan- 
 gers to the G-overnment. The Council and Assembly alike 
 grew careless and apathetic, and although the magistrates 
 tried to discharge their duties, they were wholly unable to 
 cope with the increase of crime entailed by the growing 
 population of the Province and by its rising importance as a 
 commercial centre. Penn wrote in horror to the Council that 
 he had heard of Philadelphia, that no place was more " over- 
 run with wickedness ; sins so very scandalous, openly comited 
 in defiance of Law and Virtue ; facts so foul, I am forbid by 
 common modesty to relate them."' He accused the Govern- 
 ment of being too slack in the suppression of these disorders, 
 and even averred that he had been credibly informed that 
 they did " not only wink att but embrace pirats, shipps and 
 men," and openly countenanced the carrying on of an illicit 
 trade. 
 
 The Council sturdily denied these imputations, and asserted 
 that they had done their best to maintain law and order in 
 the Colony. They admitted, however, that some few of the 
 famous John Avery's men had been entertained in the town, 
 and that when arrested by order of the Magistrates they had 
 broken jail, and escaped to E"ew York.* 
 
 The records of the time are so full of references to pirates 
 and their nefarious trade, that we can scarcely wonder that 
 Pennsylvania was currently reported to have become " ye 
 greatest Refuge and Shelter for Pirats and Rogues in 
 America."* In September, 1698, a small "snug ship and 
 sloop" sailed inside the Capes and landed a heavily armed 
 crew of about fifty men, who thoroughly plundered and ran- 
 sacked the town of Lewiston, breaking open almost every 
 bouse in the place, and carrying off a vast deal of money, 
 plate, goods, and merchandise. They killed, too, a considerable 
 number of sheep and hogs to victual their ships, and capped 
 
 ' Min. Prov. Co., Feb. 9, 1697-8, 1 Col. Rec. 494. 
 » Min. Prov. Co., Feb. 10, 1697-8, 1 Col. Rec. 495. 
 » Min. Prov. Co., May 19, 1698, 1 Col. Rec. 519. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 their insolent outrage by compelling several of the chief men 
 of the town to assist them in carrying their booty aboard." 
 
 In September, 1699, we find Isaac Norris writing from 
 Philadelphia to his friend Jonathan Dickinson : " We have 
 four men in prison, taken up as Pirats, supposed to be Kidd's 
 men. Shelley of York has brought to these parts scores of 
 them ; and there is sharp looking out to take them. We 
 have various reports of their riches and money hid between 
 this and the Capes."" 
 
 The same year two of these very men are reported to be 
 wandering at large about the streets of Philadelphia. The 
 Governor of the jail was sent for by the Council, and inquired 
 of about the matter. His indignant response is remarkable 
 .as illustrating the lax nature of prison discipline in those 
 primitive days. "They never go out, without my leave 
 and a keeper," said he, " which I think may be allowed in 
 hot weather."* The prevalence of the dog days afforded to 
 his mind sufficient excuse to exercise malefactors in the city 
 streets. 
 
 In July, 1699, the famous Captain William Kidd himself 
 was reported to be lying off Cape Henlopen, and to be carry- 
 ing on a brisk trade with several noted citizens of the Lower 
 Counties.* He was then in the third year of his piratical 
 career, and in less than two years after paid the penalty of his 
 crimes upon the scaffold." 
 
 The presence of such dangerous visitors at length naturally 
 induced the authorities to take what measures they could to 
 insure the protection of the community. A watch was 
 established on Cape Henlopen to give notice through the 
 sheriffs from county to county of any suspicious vessels which 
 might approach, in order to prevent a repetition of the 
 Lewiston outrage.^ The Assembly, too, passed several strin- 
 
 ■ Min. Prov. Co., Sept. 3, 1698, 1 Col. Eeo. 507. 
 ' Penn. and Logan Correspondence, Tntr. p. Iviii. 
 
 • Min. Prov. Co., Aug. 8, 1699, 1 Col. Rec. 531. 
 
 * Min. Prov. Co., April 12, 1700, 1 Col. Rec. .549. 
 « See 14 Howell's State Trials, p. 147 et seq. 
 
 « Gordon's Hist, of Penna. 111. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 gent measures for the suppression of piracy and smuggling, 
 and even went so far as to interdict trade with certain ports 
 of particularly bad reputation. Among the bills of this 
 character presented by the Council to the Assembly was 
 one interdicting commerce with " Madagascar and IfatoU." 
 The House was, however, possessed of amusingly scanty 
 geographical knowledge, and was far to wise to cut off deal- 
 ings with a port which might be near at hand and afford an 
 opening for a lucrative trade. A committee was accordingly 
 appointed to find out from the Governor and Council in what 
 part of the world " Natoll" might be, and on their somewhat 
 vague report that it was in the parts adjacent to Madagascar, 
 the proposed measure was readily acceded to.' 
 
 To deal with tlie frequent and aggravated cases of piracy 
 and smuggling constantly arising, no distinctive tribunal had 
 as yet been erected in the Province. The Proprietary was 
 by his charter made personally liable to see to the enforce- 
 ment of the Navigation Acts and the other complicated re- 
 quirements of the British colonial trading system, and 
 was further bound to see that fines and duties in accordance 
 with these regulations were duly imposed, and that, when 
 levied, they found their way into the hands of the proper 
 authorities. These functions were, as has been seen, dis- 
 charged by the Council in the first colonial days. But as 
 early as 1 693 we find that Governor Benjamin Fletcher was 
 duly commissioned Vice Admiral of New York, the Jerseys, 
 and Newcastle with its dependencies, and invested with all 
 proper power to erect Vice Admiralty Courts within these 
 limits.^ 
 
 A short time after, a Vice Admiralty Court for Pennsylva- 
 nia and its territories was regularly constituted, and a com- 
 mission issued under the seal of the High Court of Admiralty 
 of England to Colonel Robert Quarry to act as Judge.* 
 
 Quarry was a man little calculated to please or conciliate 
 the people or authorities of Pennsylvania. He was at one 
 
 ' Votes of Assembly, Feb. 6, 1699, p. 115. 
 
 ^ See Historical Notes, D. of Y. L., p. 539, etc. 
 
 » See Min. Prov. Council, Feb. 12, 1697-8, 1 Col. Kec. 500. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 time Grovernor of South Carolina, and reputed a sort of gov- 
 ernment spy.' A member of the Church of England,^ he had 
 little sympathy with the religious complexion of the colony, 
 while the cast of his mind was such as to make him very 
 vain of the office which he filled, and fully resolved to sus- 
 tain its dignity .to the utmost. The powers with which he 
 was invested were indeed sufficiently ample. The jurisdic- 
 tion of his court in all maritime matters was almost as broad 
 as that now exercised by the courts of the United States, if 
 we may judge from the tenor of like commissions issued 
 about the same time in other colonies. All cases of charter 
 parties, bills of lading, marine policies of assurance, accounts, 
 debts, etc., relating to freight, maritime loans, bottomry 
 bonds, seamen's wages, and many of the crimes, trespasses, 
 and injuries committed on the high seas or on tide waters, 
 were included within its jui'isdiction. All cases of penalties 
 and forfeitures under the Revenue Act of 7 & 8 William III. 
 belonged besides to its domain. And a general authority to 
 apprehend and commit to prison persons accused or suspected 
 of piracy, was included within its powers.^ "Eo jurisdiction, 
 however, to try and execute prisoners indicted for murder 
 on the high seas was at first given to Quarry.* From all his 
 judgments an appeal lay to the High Court of Admiralty in 
 England. 
 
 His commission once received. Quarry set vigorously to 
 work to exercise his new powers and privileges. John Moore, 
 a Church of England man like himself, was appointed advo- 
 cate, and one Robert Webb duly commissioned as marshal. 
 The people were, however, by no means disposed quietly to 
 submit to the new order of things." They found a Vice 
 Admiralty Court established among them, invested with 
 
 ' 1 Penn. & L. Corr., p. 78, note. ^ Gordon's Hist, of Penna. 126. 
 
 ' Benedict's Admiralty, ? 161 ; Duponceau on Jurisdiction, pp. 13'7, 138, 
 139, 140, etc. 
 
 ' Chalmer's Colonial Opinions, 512, etc. ; Min. Prov. Co., Augnst 8, 1699, 
 1 Col. Eec. 531 ; Letter, James Logan to Wm. Penn, 3, 1 mo. 1702-3, 1 Penn. 
 & Logan Corr. 175. 
 
 « See Min. Prov. Council, 24 Jan. 1699-1700, 1 Col. Rec. p. 545. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 most extraordinary powers, far transcending those exercised 
 by the Admiralty Judges of the mother country. They 
 found these powers interfering with and seriously curtailing 
 the administration of justice according to the forms of the 
 common law. The most intelligent minds felt great indig- 
 nation, and were not slow to protest against the infringement 
 of their liberties. A test case soon arose which for a while 
 set the question at rest.' John Adams, a merchant of some 
 substance, imported in the summer of 1698 a large cargo 
 of goods from New York to Pennsylvania. The vessel in 
 which they were laden was unfortunately not provided 
 with the certificate required by the laws of navigation and 
 trade, and the goods were accordingly seized by the king's 
 collector at ITewcastle, and by him committed to the custody 
 of Webb, marshal of the Yice Admiralty Court. 
 
 Adams made all haste to get his certificate, and a few days 
 after, on receipt of it, demanded from Col. Quarry that his 
 goods should be restored. This Quarry peremptorily de- 
 clined to do, and Adams in despair petitioned the Governor 
 for redress. But in this quarter too he met with no success. 
 Markham prudently declined point blank to meddle with 
 matters in the hands of his Majesty's officers. The peti- 
 tioner was therefore fain to turn in another direction, and 
 accordingly applied to the Justices at Philadelphia for a writ 
 of replevin. This they were ready enough to grant. An- 
 thony Morris, one of the most considerable of their number, 
 set his hand to the document, and in pursuance of its direc- 
 tions the goods were forced from Webb, and returned to 
 their owner. Quarry, intensely indignant at this violation of 
 his rights, took an early opportunity to complain bitterly to 
 the Governor and Council.' The County Court of Philadel- 
 phia was ordered to justify its action. It did so, though not 
 with that straightforwardness which might have been hoped. 
 " We look upon a replevin to be the right of the King's sub- 
 jects to have and our duties to grant, where any goods . . . 
 are taken or distrained," say they, and then in a more apolo- 
 
 ' Min. Prov. Co., Sept, 24, 1698, 1 Col. Eec. 509. 
 « Min. Prov. Co., Sept. 26, 1698, 1 Col. Eec. 512. 
 
The Courts cf Pennsylvania in the Seventeenth Century. 
 
 getic tone add : " Wee att our Last Court, finding this matter 
 to be weighty, the' wee did not Knowe of any Court of 
 Admiralty erected, nor p'sona qualified as we Know of to 
 this day, to hold such Court, yet we forbore the triall of ye 
 sd replevin . . . and wee should be glad to receive some 
 advice yrin from you." This explanation did not, however, 
 save them from a severe reprimand by the Council, who saw 
 fit at the same time to tender an abject apology to the injured 
 Quarry.' 
 
 Nor did the affair end here. David Lloyd, ever watchful 
 and jealous of the public interests, strenuously advised 
 Adams to seek reparation at the hands of the Courts, and 
 an action was accordingly instituted against "Webb, for seiz- 
 ing and detaining the goods. In the spring of 1700, the 
 case came on to be heard. Lloyd appeared of course for the 
 plaintiff, and John Moore, Advocate of the Admiralty, for 
 the defendant. Webb, the marshal, made his appearance in 
 court armed with the royal commission on which was a por- 
 trait of the King, an^ from which depended the seal of the 
 Admiralty inclosed in a little tin box. This he produced as 
 a full warrant and justification for his acts. " What is this?" 
 cried Lloyd. " Do you think to scare us with a great box 
 and a little Babie 1 'Tis true fine pictures please children, but 
 we are not to be frightened att such a rate." In spite, how- 
 ever, of Lloyd's talents and ridicule the case went against 
 him and the justices pronounced in favor of the defendant.'' 
 So convinced was Lloyd of the justice of his cause that he 
 begged Penn, when the latter arrived in the Province, to allow 
 him an appeal to England, offering himself to argue the 
 cause in Westminster Hall.' The Proprietary, however, was 
 far too wise in his day and generation, to admit of any such 
 action. However, he might be incensed at the infringement 
 of his rights, his experience in 1693 warned him of his un- 
 stable position at court, and made him very unwilling to dis- 
 
 ' Min. Prov. Co., Dec. 22, 1699, 1 Col. Eeo. 535. 
 ^ Min. Prov. Co., May 14, 1700, 1 Col. Rec. 576. 
 
 * Letter, James Logan to Wm. Penn, Jr., 25, 7 mo. 1700, 1 Penn & 
 Logan Corr. 18. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 pute the extent of the royal prerogative. He accordingly 
 dismissed Morris for a wliile from office, promised that the 
 value of the goods should be restored to the Admiralty Court, 
 and observed at least an outward show of courtesy towards 
 Quarry. 
 
 A severe personal contest between them, however, was the 
 outcome^ of the whole affair. Quarry wrote two bitter 
 memorials to the Lords Commissioners of Trade and Foreign 
 Plantations, accusing Penn of great irregularities in his 
 government. To these Penn replied by just as bitter charges 
 against his opponent, of incompetency, partiality, and mis- 
 feasance in office.' 
 
 Quarry is the " greatest of villains," he wrote to Logan, 
 " and God will I believe confound him in this world for his 
 lies, falsehood, and supreme knavery."'' " I fancy" his " wings 
 will be clipped in admiralty matters every day, upon the 
 appeals from the colonies against admiralty judgments."* 
 
 At length upon the accession of Queen Aune, when Penn 
 had regained some of his old court influence, he obtained 
 Quarry's dismissal from office, and in 1703 secured the posi- 
 tion for Roger Mompesson, a friend of the Proprietary ad- 
 ministration.* 
 
 Of the practice of the Vice Admiralty Court during the 
 short period we have to deal with it, we know nothing ; its 
 records have vanished and no trace remains of their contents. 
 
 The regularly constituted Courts of Pennsylvania have 
 thus successively been passed in review. A few isolated in- 
 stances occurred of the assumption of quasi judicial power 
 iipon the part of the Assembly. Its mandate upon one oc- 
 casion served the purposes of a writ of habeas corpus in 
 releasing a prisoner unduly committed to the county gaol.' 
 Such instances are, however, extremely infrequent, and are to 
 
 ' 1 Penn & Logan Corr. p. 24, etc. 
 
 2 Letter, Wm. Penn to James Logan, 22, 11 mo. 1702, 1 Penn <fc L. Corr. 
 p. 162. 
 ' 1 Penn & Logan Corr. 170. * Benedict's Admiralty, S 160, note. 
 
 " 1 Votes of Assembly, May 21, 1698, p. 104 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 be attributed rather to the exigencies of the particular case 
 than to the claim of any reasonable right to exercise judicial 
 power. 
 
 A few words remain to be added in regard to the early 
 history of the legal profession in Pennsylvania. What nttle 
 we know may be comprised within very narrow limits. 
 Almost all those engaged in the administration of justice in 
 those primitive times were, as has been aptly said, " distin- 
 guished rather for their purity than their learning, for their 
 high standing in the community, and their general capacity, 
 more than for their legal attainments."' 
 
 Not one man who sat upon the bench prior to 1700, seems 
 to have enjoyed the advantage of a regular legal education. 
 
 There was indeed but little opportunity for an exercise of 
 the talents either of a skilled advocate or of a trained judge. 
 The cases were mostly simple in principle, and very readily 
 comprehended and disposed of. " Many Disputes and Differ- 
 ences are determined and composed by Arbitration," says 
 Thomas in his account of Pennsylvania published in 1698,'' 
 " and all Causes are decided with great Care and Expedition, 
 being concluded (generally) at furthest at the second Court, 
 unless they be very Nice and Difficult Cases." 
 
 The greater part of the founders of the colony were imbued 
 with a deep distrust of, and dislike for lawyers. They 
 looked upon the profession as necessarily barratrous in its 
 tendencies, and as being completely opposed to those views 
 of peaceful good fellowship which their religion taught 
 them to esteem so essential a part of the true Christian cha- 
 racter. 
 
 In 1686 the Provincial Council actually passed a bill " for 
 the avoyding of too frequent clamors and manifest inconveni- 
 ences which usually attend mercenary pleadings in civil 
 causes."' This enacted " that noe persons shall plead in any 
 Civill Causes of another, in any Court whatsoever within this 
 
 ' MoOall's Address before the Law Academy, 1838. 
 
 * Gabriel Thomas's Historical Account of Pennsylvania, London, 1698. 
 
 » Min. Prov. Co., 2, 2 mo, 1686, 1 Ool. Rec. 123. 
 
'^he Courts of Pennsylvania in the Seventeenth Century. 
 
 Province and Territory, before he be Solemnlye attested in 
 open Court that he neither directly nor Indirectly hath in 
 any wise taken or received, or will take or receive to his use 
 or benefit any reward whatsoever for his soe pleading, 
 under y° penalty of 5 lb, if the contrary be made appear." 
 But the proposed measure was thrown out by the Assem- 
 bly.' The same spirit again prompted the Council in 1690 to 
 pass a similar bill, but it was again defeated by the action of 
 the House.' 
 
 In the mean time a miniature bar had naturally and 
 rapidly came into being. The provisions of the laws agreed 
 upon in England permitted " all persons of all persuasions 
 freely to appear in their own way and according to their own 
 manner, and there personally plead their own cause them- 
 selves or, if unable, by their friends."^ " So it soon came about 
 that the nimble tongued tradesman found it to his advantage 
 to bring his dilatory customer into court, and by his own 
 eloquence get a verdict. . . . The defendant, taken at a 
 disadvantage, found after a few experiences that he must 
 bring in some quicker witted or more plausible friend to his 
 assistance. A few successes in this line turned the friend's 
 attention, perchance his vanity, to this line of honor or of 
 profit, and the ' advocate' was made. Advocates once made, 
 professional training became a matter of course, and so the 
 short round was quickly run."* 
 
 Among those who thus distinguished themselves as " lay 
 lawyers," and whose names frequently are noted among the 
 records as employed in asserting or defending the rights of 
 their friends, may be counted some of the most considerable 
 men in the community — E'icholas More, afterwards Chief Jus- 
 tice — Abraham Man, a prominent and well-known member 
 of the Assembly — John White, some time Speaker of that 
 
 ' 1 Votes of Assembly, May 11, 1686, p. 38. 
 
 s Min. Prov. Council, 5, 2 mo. 1690, 1 Col. Eec. 285 ; Historical Notes, D. 
 of y. L., p. 532 ; 1 Votes of Ass. 58. 
 
 ' Duke of York's Laws, p. 100. 
 
 * Address by the Hon. James T. Mitchell, on adjournment of District 
 Court, Jan. 4, 1875, p. 6. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 body, and afterwards imprisoned by tfie arbitrary orders 
 of Gov. Blackwell — Charles Pickering, who was convicted 
 of coining base money in the very infancy of the Province — 
 Samuel Hersent, who was appointed Attorney General as eai-ly 
 as 1685' — Patrick Robinson, the same whose dogged obstinacy 
 in the matter of More's impeachment has been already noted, 
 and Samuel Jennings,^ afterwards a Justice of the Peace for 
 this county, the "impudent, presumptuous, and insolent" man, 
 against whom Keith's and Budd's virulent attack was directed 
 in their pamphlet entitled the " Plea of the Innocent." 
 
 It was still some time, however, before the practice of the 
 law as a distinct profession came to be generally recognized. 
 
 Governor Fletcher, in his reply to the Petition of the 
 Assembly in 1693,^ says, " I do understand . . that Reve- 
 nue of the Crown, the making of laws, the power of life and 
 death, arming of the subject and waging warr, which were 
 granted to Mr. Penn, are the Reglia of the Crown, and cannot 
 be demised. . . . If there be any lawyers among you they 
 can inform you King Charles' grant of these things might be 
 good to you during his life. . . . But since his death 
 the}' are become utterly void." 
 
 This remarkable proposition, in addition to the extraordi- 
 nary doctrine it lays down, seems to imply considerable doubt 
 as to the existence of any legal knowledge on the part of the 
 chief men of the Province. 
 
 In 1698, Gabriel Thomas says, speaking of the various 
 trades and professions practised in Pennsylvania, "Of Law- 
 yers and Physicians I shall say nothing, because this Country 
 is very Peaceable and Healty ; long may it so continue and 
 never have occasion for the Tongue of the one, or the Pen of the 
 other, both equally destructive to men's Estates and Lives. "^ 
 
 A little later on, in 1700, Penn, in his answer to the 
 charges of Colonel Quarry, defends himself and his officers 
 from the imputation of failing to prosecute William Smith, 
 
 ' Min. Prov. Council, 16, 11 mo. 1685, 1 Col. Rec. 117. 
 
 » Gordon's Hist, of Penna. 99. 
 
 ' Min. Prov. Council, 17 May, 1693, 1 Col. Rec. 364. 
 
 * Gabriel Thomas's Historical Account of Pennsylvania, London, 1698. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 Jr., for a heinous crime he had committed, by alleging that 
 the defendant had subsequently "married y" only material 
 witness against him, which," adds he, "in the opinion of y" 
 two only lawyers of the place (and one of them j' King's 
 advocate of y» Admiralty, and y° attorney general of the 
 county)" has rendered her incompetent to testify against him.' 
 
 But the growth of the profession was sure and steady. 
 In 1699 Thomas Story^ arrived in the Province, a man of such 
 sterling merit and abilities that he at once rose to be a lead- 
 ing personage in the community. He had received all the 
 advantages of a legal training, " but had laid that aside for 
 the gospel." 
 
 Close after him came Judge Guest* who, in 1701, was pro- 
 moted to the chief place in the Provincial Court, the first 
 trained lawyer that ever sat upon the Pennsylvania bench. 
 ^Following him came Roger Mompesson,* appointed Judge of 
 the Admiralty in 1703, and seated on the Provincial Eench 
 in 1706, a man of varied talents and great energy, said to 
 have been thoroughly read in the learning of his profession.'' 
 
 Soon a host of others followed in their footsteps. " Some 
 considerable lawyers,'"^ says Logan to Penn in a letter of 1702, 
 "pronounce that the corporation of Philadelphia is exceeding 
 its powers in claiming too broad a jurisdiction for its munici- 
 pal courts." A proposed court law of 1706 was, say the Votes 
 of Assembly, " drawn up by some of the practitioners in the 
 courts."' The law had begun to be esteemed as a necessary 
 and honorable profession. And yet the actual number of 
 those regularly admitted to practise at the bar was as yet 
 very inconsiderable. 
 
 ' 1 Penn & Logan Coir. p. 29. See Minutes Prov. Council, 19, 10 mo. 
 1700, 2 Col. Rec. 11. 
 
 * 1 Penn & Logan Corr. p. 21. note ; 1 Proud'a Hist, of Penn. 421, note. 
 
 ' 1 Penn & Logan Corr. 19, 48. 
 
 ■• Benedict's Admiralty, § 169, note. 
 
 ^ McCall's Address before the Law Academy, 1838. 
 
 ^ Letter, James Logan to William Penn, 2, 8 mo. 1702, 1 Penn & LiOgan 
 Corr. p. 138. 
 
 ' 1 Votes of Assembly, Sept. 20, 1706, 216. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 In 1708 one James Heaton of Philadelphia complained 
 to the Council that he had been sued in trover by Jas. Grow- 
 den and had taken a writ of error to the Supreme Court, but 
 that Growden had arrested him and retained against him 
 all the lawyers in the county that had leave to plead. 
 Yet Growden's answer avers that he had retained no one as 
 his counsel but John Moore, who, being unable to attend to 
 the case, had secured the services of a brother attorney.* 
 
 In 1709 the well-known Francis Daniel Pastorius pre- 
 sented a similar petition against John Henry Sprogell and 
 Daniel Falkner, alleging, inter alia, that the former had "by 
 means of a Pictio Juris, as they term- it (wherewith your 
 petitioner is altogether unacquainted), Gott a writ of ejectment 
 which it doth not effect your petitioner, yet the said Sprogell 
 would have ejected him out of his own home," and then 
 goes on to complain that "in order to finish his contrivance 
 in the County Court to be held the third of the next month," 
 Sprogell had "further fee'd or retain'd the four known 
 Lawyers of the Province in order to deprive . . the peti- 
 tioner . . of all advice in law, which," craftily adds Pas- 
 torius, "sufficiently argues his cause to be none of the best." 
 The petitioner therefore, being too poor "to fetch lawyers 
 from !N"ew Tork or remote places," prayed that Sprogell's 
 proceedings might be enjoined and a proper chance given the 
 petitioner for a hearing. The relief was accordingly granted, 
 and James Logan being in the Council, the blame of the 
 transaction was of course laid on the shoulders of David 
 Lloyd as " principal agent and contriver of the whole."* How 
 many members of the junior bar there are nowadays who 
 might well wish for the sake of their own prospects that 
 the ranks of the profession were still so sparsely filled. 
 
 Two men alone stood out prominently as regular legal 
 practitioners during the period of which we have been speak- 
 ing. These were John Moore and David Lloyd. Men more 
 different in their careers and dispositions it would be almost 
 impossible to find. 
 
 ' Min. Prov. Council, April 2, 1708, 2 Col. Rec. 406. 
 
 • Minutes Prov. Council, March 1, 1700-9, 2 Col. Rec. 430. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 Moore, a descendant of a titled stock, emigrated from 
 South Carolina with his family some time prior to 1696, and 
 settled in Pennsylvania to pursue the profession of the law.' 
 
 As early as 1698, we find him mentioned in the minutes 
 of the Council as " a Practioner in Law in the Courts of this 
 Province."* He was shortly afterwards appointed Advocate 
 of the Admiralty under Colonel Quarry, and made himself 
 prominent in his maintenance and defence of the jurisdiction 
 of that Court. 
 
 His hostility, however, to the Proprietary Administration 
 did not continue. " Having done all that can be by Quarry," 
 says Logan, in a letter to Penn in 1701, " he is very willing 
 I perceive, to live as quiet as possible, and keep on very 
 friendly [terms] with the Governor when here."* He 
 accordingly was employed as Attorney General in at least 
 one criminal case of note,* and was subsequently promoted 
 to the office of Register General.' In 1703 he was made Col- 
 lector of the Port.* He was in his religious views attached 
 to the doctrines of the Church of England, was a promi- 
 nent member of Christ Church, and served as a Vestryman of 
 that congregation until his deathj which occurred somewhere 
 about 1731. 
 
 David Lloyd, the first lawyer of Pennsylvania, claims a 
 somewhat more extended notice. He was born in 1656 in 
 the Parish of Marravon in the county of Montgomery, 
 Iforth Wales.' Having received the advantages of a regular 
 legal training, he was in 1686 despatched by the Proprietary 
 to Pennsylvania, with a commission to act as Attorney Gene- 
 ral of the Province.' His pleasing manners, persistent energy, 
 and natural abilities served rapidly to raise him in the esteem 
 
 • Life of Dr. Wm. Smith, by Horace "Wemyss Smith, vol. 2, p. 488. 
 > Min. Prov. Council, May 19, 1698, 1 Col. Rec. 519. 
 ' James Logan to William Penn, 2, 10 mo. 1701, 1 Penn & Logan Corr. 
 66. 
 « Min. ProT. Council, 19, 10 mo. 1700, 2 Col. Rec. 11. 
 « See Min. Prov. Council, 3, 6 mo. 1703, 2 Col. Rec. 97. 
 « Min. Prov. Council, May 3, 1706, 2 Col. Rec. 240. 
 ' 1 Penn & Logan Corr. 155, note ; 1 Proud's Hist, of Penna. 459. 
 s Min. Prov. Co., 5, 6 mo. 1686, 1 Col. Rec. 140. 
 
The Courts of Pennsylvania in the Seventeenth Csntury. 
 
 of all classes of the community, and he was quickly pre- 
 ferred to many considerable offices of trust and profit. He 
 became successively clerk of the Philadelphia County Court, 
 Deputy to the Master of the Eolls, and Clerk of the Provin- 
 cial Court,' in which last position he stoutly and for a while 
 successfully resisted the attempts of Governor Blackwell to 
 extort from him the records with which he had been en- 
 trusted.^ 
 
 In 1689 he became Clerk of the Assembly' and in 1693 and 
 in 1694 was returned as a member of that body. Between this 
 time and the end of the century, he served for four several 
 years as a member of the Provincial Council, and during this 
 period first developed that sincere attachment to the popular 
 interests which formed so marked a feature of the residue 
 of his career. He played a prominent part in procuring 
 from Gov. Markham the new Charter of Privileges of 1696, 
 and was the author of many legislative schemes for the 
 security and improvement of the Province. Although 
 active in his opposition to Col. Quarry's Court, his enmity 
 was not persistent. When he found that its establishment 
 was inevitable, he yielded perforce, became a friend and ally 
 of Moore's, and even accepted in 1702 the office of deputy 
 judge and advocate to the Admiralty.* 
 
 Tlie limits of my subject forbid me to do more than briefly 
 to advert to his subsequent career. The beginning of the 
 Eighteenth Century saw him pitted against Logan and the 
 Proprietary in defence of the" popular rights. Persistent in 
 his purposes, untiring in his energy, and unsparing in the 
 violence with which he attacked his adversaries, he continued 
 for years an object alike of fear and of hatred to the Pro- 
 
 ' Historical Notes, Duke of York's Laws, 522-523; Minutes Prov. Coun- 
 cil, 1, 8 mo. 1686, 1 Col. Rec. 145. 
 
 2 Minutes Prov. Council, 25, 12 mo. 1688-9, 1 Col Rec. 202 ; 25, 12 mo. 
 1688-9, 1 Col. Kec. 206 ; 5, 1 mo. 1688-9, 1 Col. Rec. 211; 25, Imo. 1688-9, 
 1 Col. Rec. 222. 
 
 » Min. Prov. Council, 31 May, 1700, 1 Col, Rec. 582. 
 
 * Letter, James Logan to William Penn, 2, 8 mo. 1702, 1 Penn & Logan 
 Oorr. 139. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 prietary party. N'o epithet was in their minds too harsh to 
 be applied to him, and no motive too base to be attributed as 
 the mainspring of his actions. But much of the odium 
 which was thus cast upon him was without doubt undeserved. 
 Neither the intensity of his partisan feelings, the rash and 
 impetuous character of his actions, nor the repeated slanders 
 und sneers of his enemies can avail to hide from the dis- 
 tcriminating eye of the unprejudiced observer his abilities, 
 his virtues, and his usefulness to the community. 
 
 Possessed of many warm and devoted friends, and trusted 
 and respected by his adherents, he was again and again re- 
 turned as a member of the Assembly, and again and again 
 chosen as its Speaker. When not engaged in contest with 
 his opponents, his active mind found ample employment in 
 forming new schemes of judicial reform. Most of the im- 
 portant court laws passed up to the date of his death were 
 the results of the labor of his pen, or at least were framed 
 with the benefit of his council and advice. 
 
 In 1718 he was appointed to be Chief Justice of the Prov- 
 ince, a dignity well deserved by his long and active career in 
 the public service.' He ended a long, useful, memorable life 
 in 1731, 
 
 Few of the early colonists of this Province deserve the 
 thanks and remembrance of posterity more than David 
 Lloyd. That he had faults of character, very serious faults, 
 must candidly be admitted. He was at times selfish, and 
 always impetuous and easily angered. If he was attached 
 to his friends he was implacable to his enemies. Persistence 
 in him frequently degenerated into obstinacy, and enthusiasm 
 almost into fanaticism. His attachment to the popular 
 interests and craving for popular applause laid him open, 
 sometimes perhaps justly, to the charge of demagogism. 
 " His political talents," says Proud, " seem to have been 
 rather to divide than to unite ; a policy that may suit the 
 crafty politician but must ever be disclaimed by the Christian 
 statesman."^ " He is," says Logan in a letter to Wm. Penn, 
 
 ' McCall's Address before the Lav Academy of Phila., 1838. 
 > 1 Froud's Hist, of Fenaa, 459. 
 
The Courts of Pennsylvania in the Seventeenth Century. 
 
 Jr., " a man very stiff in all his undertakings, of a sound 
 judgment and a good lawyer, but extremely pertinacious and 
 somewhat revengeful,"' and as this opinion was written prior 
 to any open enmity between them, it is not unlikely that it 
 was a very just estimate of his character and disposition. 
 
 At this time, however, it is more becoming to recall his 
 great services to the Province than to harp upon his short 
 comings. It is grateful to know that his declining years 
 were marked by a peaceful repose which forms a striking 
 contrast to the stormy scenes of his earlier life. Laying 
 aside the bitter prejudices and rancorous feelings which years 
 of strife had begotten and fostered, we find him in the even- 
 ing of his days actively and heartily co-operating with his 
 former adversaries in several measures calculated to promote 
 the prosperity of the Province." Even before his death the 
 great bulk of the community had come to entertain feelings 
 of respect and gratitude towards the first lawyer of Penn- 
 sylvania. 
 
 The purposes for which this paper was undertaken have 
 now been accomplished. The increase of population, busi- 
 ness, and commerce soon led to difficulties in the administra- 
 tion of justice which required for their unravelling a more 
 artificial course of procedure and a more thoroughly trained 
 bench and bar. The dictates of natural justice gave way to 
 the authority of well considered precedents, the science of 
 special pleading by insensible degrees obtained a foothold in 
 the legal practice of the Province, and at length the sound 
 of " oyers" and " imparlances" became almost as familiar to 
 the ears of the Pennsylvania practitioner as to those of his 
 bewigged and begowned brother in Westminster Hall. The 
 days of primitive simplicity had been left behind and for- 
 ever. 
 
 ' Letter, James Logan to Wm. Penn, Jr., 25, 7 mo. 1718, 1 Penn & 
 Logan Corr. 18. 
 ' 1 Penn & Logan Oorr. 155, note.