Chapter I · (continued 2)
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In criminal cases the sentences were usually limited to fines, whippings or the stocks. Sentences to terms of imprisonment were rare; the colony could ill afford to spare the labors of any individual, however depraved, and still less was it inclined to support him in idleness. Penn’s incarceration in Newgate had familiarized him with the evils of prison life and he expressly ordained that prisons should be workhouses.[126] Such prisons as were built at this time were neither particularly commodious nor strong. In 1688 the council found it necessary to reprimand the sheriff of Sussex for permitting a dangerous prisoner to be at large. The prisoner magnanimously sent word to the council that he would yield himself up rather than “ye sheriff should suffer.”[127] A similar reprimand was administered to the sheriff of Philadelphia for permitting two prisoners suspected of piracy to go at large, to which the sheriff replied, that they never went without his leave and a keeper, “wch hee thought might have been allowed in hott weather.”[128]
By the Act of March 1, 1683,[129] the justices of the county courts were required to sit twice a year as an orphans’ court. The name as well as the original purpose of this court was derived from the court maintained by the corporation of London, which, by immemorial custom, had charge of the estates of orphans of freemen of the city. The practice and jurisdiction of the court, which will be discussed later, differed from that of its prototype but was not distinctly settled at this time, and we find the provincial council taking cognizance of matters that subsequently were assigned to this tribunal or to the register’s court, such as the appointment of administrators, and sale of land for debts.
Prior to 1684 there existed in the province no tribunal having cognizance of appeals other than the provincial council, which, in some degree, supplied the place of the general court of assizes under the Duke of York’s Laws. As the colony grew, the ever increasing number of appeals took up more and more of the council’s time and made this duty exceedingly burdensome, not to speak of the inconvenience to the suitors in traveling to Philadelphia with their witnesses for a hearing de novo. To remedy this inconvenience the Act of May 3, 1684[130], was passed, which provided that there should be five provincial judges, appointed by the governor, any three of whom should form the provincial court and sit twice a year in Philadelphia, while two of them should every spring and fall go on circuit into every county and there hold court. The court was to hear and determine all appeals from inferior courts and all causes, criminal and civil both in law and equity not determinable in the county courts. In 1685 the number of judges was reduced to three, but the original number was restored by the Acts of 1690 and 1693.[131] A commission was accordingly issued by Penn to five judges, of whom Nicholas Moore was named first, the commission to be in force for two years.[132] The law did not fix any definite period for service and the commissions were drawn for various periods. In one instance it is noted in the minutes of the council that the commission is to continue “only for this present court.”[133] Jealousies quickly arose as to the geographical apportionment of the judges and in 1687 the assembly requested that at least one of the judges be named from the lower counties.[134] In 1690 the appointment of the judges caused a split in the council, the members from the lower counties objecting to the naming of but one judge from the territories and also demanding that, according to what they stated was the proprietor’s example, two commissions issue, one for the province and one for the counties, so that each would have a chief justice from its own district. Unable to prevail on their colleagues, the members from the lower counties held a separate meeting and drew up commissions to suit themselves.[135] The keeper of the great seal, however, refused to seal these commissions and at a regular meeting of the council, subsequently held, the action of these members was denounced as irregular and annulled. This was the first open manifestation of the dissatisfaction of the territories with the union with Pennsylvania, which continually increased until a separate government was obtained.
The provincial court did not at once command or obtain the respect and influence due to the chief judicial tribunal of the colony. It was founded in the most trying times, when political dissensions among the leading colonists and war and revolution in England distracted the province. The terms of office were irregular, the compensation wholly inadequate and the journeys on circuit tedious and even dangerous. It is not to be wondered at that it was difficult to induce properly qualified men to accept a place on the bench and that nominees for that honor sought excuses to decline the office. No traces of the records and opinions of the court at this time have come down to us and they cannot have been bulky, for, when the council in 1688 sent for the records, they were informed by the clerk that “they were not recorded otherwise than in a quire of paper.”[136] The duties of the judges did not at first compel them to grapple with legal problems with a view to the value of their decisions as precedents. The correction of errors arising on issues of fact and the trial of the more serious crimes probably made up the bulk of the business. As time went on the court strengthened its position, and appeals to the council became less and less frequent, until in the early eighteenth century the two bodies, executive and judicial, assumed their normal functions.
It is sad to relate that Nicholas Moore, the first chief justice of the provincial court, was impeached by the assembly within a year after the creation of the court. Moore was a physician as well as president of the Society of Free Traders and a large purchaser of land from Penn. Although not a Friend he immediately obtained a position of influence, was elected to the assembly and was speaker in 1684. While capable and energetic he lacked tact and discretion and assumed an arrogant tone which offended his fellow members of the assembly and gave still greater offense after his elevation to the bench. In the minutes of the assembly there are numerous instances of his interruptions and protests during the consideration of bills.[137] It was reported to the council, during the session of 1684, that the speaker had said: “The proposed laws were cursed laws” and “hang it Damn them all.”[138] The principal complaints against his conduct on the bench seem to have come from the lower counties. Ten formidable articles of impeachment were presented, among which were the following:—
“The said Nich. Moore, Judge, having that high Trust Lodged in him for the Equall Distribution of justice, without respect of Persons, the said Judge Sitting in Judgemt at New Castle, hath presumed to cast out a person from being of a Jury, after ye said Person was Lawfully attested to ye True Tryall of ye Cause, thereby rending an Innocent & Lawful Person Infamous in the face of the County, by rejecting his attestation after Lawfully Taken, and Depriving the plantif of his just Right.
“The said Nich. Moore, Sitting in judgmt, did in ye towne of New Castle, refuse a verdict brought in by a Lawfull Jury, and by Divers threats & Menaces, and Threatening ye jury with ye same of Perjury and crim of their Estates, forced ye said Jury to goe out so often—until they had brought a Direct Contrary verdict to the first, There, by preventing justice, and wounding the Libertyes of ye free people of this Province and Territories in the Tenderest point of their Privelege, and violently Usurping over ye Consciences of the Jury.
“The said Nich. Moore assuming to himselfe an Unlimited and unlawful Power, did, Sitting in Judgmt at ye aforesaid Towne of New Castle, wherin two persons stood Charged in a Civil action, it being in its own Nature only Trover & Convertion, and ye pretended Indictmt raised it no higher, notwithstanding the said Moore did give the judgmt of fellony, Comending the Defendant to be Publickly Whipt, & Each to be fined to pay three fould, thereby Tyranizeing over the persons, Estates and reputations of the people of this Province and Territories, Contrary to Law and Reason.
“The said Nich. Moore, Sitting in judgmt at Chester, did in a most Ambitious, Insulting, & Arbitrary way, reverse and Impeach the judgmt of ye Justices of ye said County Court, and Publickly affronting the members thereof, although the matter came not regularly before the said Circular Court, thereby drawing the Magistrates into the Contempt of ye people, and Weakening their hands in the administration of justice.”[139]
A committee of five was appointed to manage the impeachment, one of whom was Abraham Mann, whom we have previously seen engaged in the prosecution of Justice Moll before the court of assizes in New York. The council showed little disposition to further this impeachment but treated the accusers with due civility and fixed a time for the hearing. Moore, however, was by no means inclined to submit tamely to the proceedings, and in the house, of which he was still a member, accused Abraham Mann of being “a person of seditious spirit,” in which he was probably right. The house, however, expelled Moore and proceeded to collect evidence for the prosecution. They met with a decided obstacle in the conduct of Patrick Robinson, clerk of the court, who declined to produce the records of the court, declaring that they were “written 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.”[140] But this did not end his offenses; he declared the articles of impeachment were drawn “hob nob at a venture” and threatened to “have at” the speaker when he was “out of the chair.” The house issued a warrant for Robinson’s arrest and requested the council to remove him from office. From the hearing on the impeachment Moore contemptuously absented himself, but the evidence was thought sufficiently grave by the council to suspend the judge from his official functions until the matter was finally decided. The council showed every disposition to treat Moore with leniency, although it had been testified that he had called the members thereof “fooles and Logerheads, and said it were well if all the Laws had drapt and that it would never be good Times as Long as ye Quakers had the administration.” Knowing the proprietor’s predilection for Moore the house addressed a letter to Penn on the subject, a quotation from the last paragraph of which shows that in spite of their quarrels and jealousies they still regarded him with affection.
“Dear and honored Sir, the honor of God, the love of your person, and the preservation of the peace and welfare of the government, were, we hope, the only centre to which all our actions did tend, and although the wisdom of the assembly thought fit to humble that aspiring and corrupt minister of state, Nicholas Moore, yet to you, dear sir, and to the happy success of your affairs our hearts are open, and our hands ready at all times to subscribe ourselves, in the name of ourselves and all the freemen we represent, Your obedient and faithful freemen.
JOHN WHITE, Speaker.”[141]
By one excuse after another the council prevented further proceedings in the impeachment until the matter was lost sight of in the discussion of more important and perplexing affairs of state which soon required attention.
The provincial council, although not strictly a court, for a long time exercised judicial functions and, through the fortunate preservation of its minutes, is by far the best known of the early tribunals. The exercise of judicial functions by the governor and council was strictly in accordance with the custom in other proprietary and royal provinces, and that judicial and executive functions were found incompatible in Pennsylvania so early in its history is a clear indication of the rapid growth of a democratic and progressive spirit in that province.
The extraordinary growth of the colony, the long absences of the proprietor in England and the large measure of self-government which the citizens enjoyed, threw upon the council an amount of executive business which made judicial duties particularly onerous, and numbers of petitions and appeals were referred back to the courts. Aside from their judicial duties the governor and council, as an executive body, appointed the judges and magistrates, regulated commerce, conducted negotiations with the Indians and the other colonies, subdivided counties, laid out towns, established fairs and markets, ordained the principal highways, bridges and ferries, and exercised a general supervision over local administration. As a legislative body, they drew up all the laws, prior to 1693, when that right was assumed by the assembly, being finally transferred to that body by the Frame of Government of 1701. By that instrument also, the council, no doubt to its great relief, was expressly deprived of judicial functions.
During the first twenty years of its existence the amount of judicial business transacted in the council was large; prior to the establishment of the provincial court it was the only general tribunal and was not only a court for hearing appeals but also a court of first instance for such suitors as could obtain a hearing before it. This, of course, was natural at the first settlement, as a matter of practical necessity. We therefore find in the early part of the minutes, trials for petty offenses and the collection of small debts. They seem to have been obliged even to discipline their own members, for at the fifth meeting of the council one of its members was fined five shillings “for being disordered in Drink.”[142] The council seems to have exercised its good offices in composing differences. In 1684 there is the following entry:—
“Andrew Johnson Pl. Hance Peterson Deft. There being a difference depending between them, the Govr. & Council advised them to shake hands and to forgive One another. And Ordered that they should Enter in bonds for fifty pounds apiece, for their good abearance; which accordingly they did. It was also Ordered that the Records of Court concerning that Business should be burnt.”[143]
There are other cases where the council would seem to have acted more as a final board of arbitration than as judges in the strict sense.[144]
Prior to the establishment of the provincial court in 1684, the council heard all appeals, and although after that time such appeals were discouraged, they nevertheless continued to be brought before the council for some years. Besides regular appeals, there were numerous petitions for executive clemency, complaints against severe sentences in criminal cases and, in civil cases, petitions for relief against judgments entered by default and against executions which bore too severely on the debtor. In one early case, on appeal from the county court of Philadelphia, it was shown to the council that the case concerned the title to land in Bucks County, when the law required cases to be tried where the cause of action arose. The council remitted the case to the court of Bucks County and fined the Philadelphia court “forty pounds for giving judgment against law.”[145]
As an illustration of the practice on appeal to the council the case of Grantham v. Wollaston[146] may be cited:—
One Wollaston purchased a negro from Grantham and gave a bond for £26, 15 s. in payment. Judgment was entered on this bond by the New Castle County court, execution issued and a portion of the defendant’s land sold by the sheriff to Grantham for £30, 10 s. and the latter was put in possession. Wollaston on the 18th, 3 mo., 1687, petitioned to the council at Philadelphia averring that the county court had denied him an appeal to have his case heard in equity. After reading a copy of the proceedings the council directed the secretary to take security for the prosecution of the appeal at the next provincial court and ordered the county court to stop all proceedings. The provincial court on the 10th, 2 mo., 1688, made an order restoring Wollaston to possession, which, it was explained later by one of the judges, was not intended to be executed “until the debt and damages were satisfied.” On the 7th, 12 mo., 1688-9, Wollaston again petitioned the council, complaining of a forcible entry and detainder, whereupon it was resolved that a warrant be drawn, directed to the justices of the peace dwelling “nearest to ye place where ye fforce is alleaged,” to make a view and, if they found no force, to require the sheriff to summon a jury to inquire into the facts and thereupon to imprison the offender and restore quiet possession to the petitioner. On March 4, 1688-9, the clerk of the county court returned to the council the finding of the jury, which was in effect that Grantham had been the victim of the forcible entry. “This was judged by ye board to be a great affront and contempt of their authority.” Grantham’s wife then petitioned the council setting forth her husband’s side of the case, and the assembly also remonstrated against the action of the provincial court and requested the council to rehear the whole matter “as the supreame judges of this government.” Governor Blackwell and the council, accordingly, proceeded to New Castle where, on March 13 and 14, 1689, the facts were again reviewed. Both parties were called in and “endeavors used with both of them to agree the matter between themselves,” but in vain. Wollaston declared he had better be without the land than pay £30, 10 s. for it, and on the other hand Grantham refused to take back the negro, contending justly that the defendant had had several years’ use of his purchase while the plaintiff had been out his money. The council thereupon resolved and ordered that the sheriff’s sale to Grantham should be confirmed and that he should be restored to possession, that this should be in full of all demands against Wollaston, debt, damages and charges, and “that this be the finall conclusion & judgement of this board in that case.”
It has been observed that the judicial powers exercised by the council resembled those wielded by the court of star chamber in its purest and best days,[147] but however beneficial such control was in correcting the errors of an amateur judiciary, it was contrary to the constitutional principles then uppermost in English minds after a century-long struggle with absolutism. Accordingly, when the revision of the Frame of Government was under consideration in 1701, the assembly petitioned that no person should be answerable before the governor and council or in any place but an ordinary court of justice.[148] Penn replied that he knew of no person obliged so to answer,[149] but he inserted the following clause in the new charter:—
“That no person or persons shall or may, at any time hereafter, be obliged to answer any complaint, matter or thing whatsoever Relateing to Property before the Governr and Council, or in any other place but in the ordinary Courts of Justice, Unless appeals thereunto shall be hereafter by Law appointed.”[150]
The council was also the only court for the trial of serious crimes until 1685, when that jurisdiction was conferred on the provincial court. Important cases of this kind were those of the Proprietor against Pickering for counterfeiting[151] and against Margaret Mattson[152] for witchcraft. The latter case is peculiarly interesting as illustrating the superstition of the times and in its outcome was most creditable to the common sense of Penn and the jury. The accusation against the woman was that she had bewitched the witness’s cattle, but the evidence was mostly hearsay, as the defendant herself cleverly pointed out. The verdict of the jury was: “Guilty of haveing the Comon fame of a Witch, but not Guilty in manner and forme as Shee Stands Indicted.” The defendant was permitted to go, on entering bond for good behavior. The fear of witchcraft did not disappear for some time in Pennsylvania. In 1695, the grand jury of Chester County presented “Robert Roman of Chichester for practising Geomacy according to Hidon and Divining by a Stick.” The accused submitted to the court, was fined five pounds and ordered “never to practice the arts” but behave himself well, which he promised. His books, “Hidon’s Temple of Wisdom,” “Scot’s Discovery of Witchcraft,” and “Cornelius Agrippa’s Necromancy,” were ordered to be brought into court.[153] Another accusation of witchcraft was brought to the attention of the council in 1701 but dismissed as trifling.
The jurisdiction of the council in admiralty matters was a source of much trouble to them.[154] There are numerous cases in the minutes relating to seamen’s wages, pilots’ fees, violations of the navigation laws and complaints against masters for ill treatment of passengers. An example of the last is the case of March v. Kilner[155] where the master of the ship was charged with beating the passengers and permitting the crew to drink their beer. Kilner denied everything, “only ye kicking of the maid.” He was reprimanded and advised to “make up the business wch accordingly he did.” The proprietor was, by his charter, personally charged with the duty of seeing to the enforcement of the English navigation acts and that fines and duties were imposed and collected according to that complicated and, as the colonists thought, burdensome system. The responsibility for the execution of these laws rested upon the council and many were the complaints to the home government of their indifference and laxity in these matters. Indeed Penn was obliged to write to them in 1697 urging the enforcement of the laws and stating that it had been reported to him “that you doe not onlie wink att but Imbrace pirats, shipps and men.”[156] The council indignantly denied this accusation and reported:—
“Wee know of none that has been entertained here, unless Chinton & Lassell, with some others of Avery’s Crew, that happened for a smal time to sojourn in this place, as they did in some of the neighboring governments; but as soon as the magistrats in Philadelphia had received but a Copie of the Lords Justice’s proclamation, gott all that were here apprehended, & would have taken the Care & Charge of securing ym, untill a Legall Court had been erected for their trial, or an opportunity had presented to send ym to England; but before that Could be effected, they broke goale & made their escape to New York, where Hues & Crys wer sent after ym.”[157]
Nevertheless the records of the time are full of references to piracy, and Pennsylvania was reported to have “become ye greatest refuge & Shelter for pirats & Rogues in America.” Undoubtedly the “pirats and rogues” took advantage of the mild temper and humanity of the Quaker justices. In 1698 the town of Lewes was plundered, a woeful account of which is contained in a letter from the local justices to Lieutenant-Governor Markham, and in 1700 it was reported to Penn that the great Captain Kidd was lying off Cape Henlopen and trading with some of the inhabitants.[158]
To deal with such matters, a court of vice admiralty was established, by the Crown, for Pennsylvania and the territories in 1697, of which Colonel Robert Quarry was appointed judge. Quarry was a former governor of South Carolina, a vain and quarrelsome person who disliked the Friends and was bitterly opposed to the proprietary system of government. Almost immediately after his appointment his court came into conflict with the county court of Philadelphia. Certain goods having been seized by the collector of customs under a warrant issued by Colonel Quarry, a judge of the county court at the instance of David Lloyd, a lawyer and member of the council, granted a writ of replevin under which they were taken from the collector. Quarry was exceedingly indignant at this and complained both to the home government and to the governor and council, who made such apologies as they could, handed over the replevin bond to him, and reprimanded the judge, who tendered his resignation.[159] David Lloyd, however, was as obstinate and hot-headed as Quarry himself. At the succeeding county court he brought an action against the marshal for the detaining of the goods. In the words of Quarry—
“Ye marshall being called to defend the sute, hee produced in his owne Justificaon His maties Lres pats, undr ye broad seal of ye High Court of Admiraltie, with the Judges warrt for ye seizure aforesaid, which sd patent having in the frontis piece his most sacred maties effigies stampt, with the sd seal adpendant, the sd David Lloyd, in a most insolent & disloyal manner, taking the sd Commission in his hand & exposing it to ye people, did utter & publish these scurilous & reflecting words following, viz:—what is this? do you think to scare us wt a great box (meaning ye seal in a tin box) and a little Babie; (meaning ye picture or effigies aforesaid); ’tis true, said hee, fine pictures please children; but wee are not to be frightened att such a rate; & many more gross & reflecting expressions on his matie to ye like effect.”[160]
For this and other insults to the court of admiralty, Penn, by order of the board of trade, suspended Lloyd from the council and dismissed him from all public employment and he from that time became a bitter opponent of the proprietor.[161] Nevertheless in spite of stringent laws and a more systematic patrol of the coast by cruisers it was long before pirates ceased to be a menace to commerce. In 1712 Logan wrote, “We have been extremely pestered with pirates who now swarm in America and increase their numbers with every vessel they take.”[162] In 1718 Governor Keith in calling the council’s attention to the losses sustained by the colony through piracy, said that he was informed that Teach had been lurking for some days in and about Philadelphia and that he suspected that many of the pirates who had surrendered under an offer of pardon still kept up a correspondence with their companions abroad. The Teach referred to was the notorious pirate “Blackbeard” who was shortly after killed in an encounter with a vessel fitted out by Virginia for his capture.[163]
It must not be supposed that either the provincial court or the council, in its judicial capacity, was a court of last resort. Under the charter the right was reserved to the king to hear and determine appeals from all judgments given in the province, and until the Revolution there was no court of last resort in Pennsylvania. A reference to this subject is contained in the commission of William and Mary to Governor Fletcher wherein it is provided that if either party to a civil cause is dissatisfied with the judgment of the superior court of the province “they may then appeale unto us in Our privy Council, provided the matter in difference exceed the real value and Sum of three hundred pounds Sterling.”[164] The Act of October 28, 1701,[165] contained provisions for appeals to England but no limit of money value was fixed. While the right to such appeals to England was, in this colony, unquestioned, the difficulty and expense of prosecuting them was such as to render them infrequent. In 1685 an appeal to England was allowed by the provincial court upon entry of security, but from the discussion in the council it would seem that the appellant failed to enter security as required.[166]
In December, 1699, Penn returned to America and began the work of reconstructing the government of the province, which had been restored to him on the express condition that he would put an end to the existing state of confusion.[167] The political and constitutional history of provincial Pennsylvania has been ably and thoroughly treated elsewhere[168] and it is not our purpose to refer to it except as it affected the courts. Suffice it to say that the period of utopian and paternal experiments had closed and that thereafter the proprietor and his successors were engaged in a struggle to maintain a difficult position between two fires; on the one side a democracy, selfish, narrow and individualistic, and on the other a home government, critical and contemptuous, that regarded the colony as little more than a nest of republicans and smugglers. Penn found the assembly determined to strengthen its position and after much fruitless discussion, granted a charter conferring very extended powers on the legislative body and containing little else of constitutional importance.[169] Nothing was said of the judges. The provincial court was then an insignificant factor in the political life of the province and the organization of the courts was left to be regulated by an act of assembly, which will be referred to presently.
With the adoption of the charter of privileges of 1701, the government of the province assumed a form that it was to retain until the Revolution. The power of proposing and enacting laws passed to the assembly and the council ceased to exercise judicial powers. More important still, the council ceased to be an elected body and was thereafter appointed by the proprietor or in his absence by his lieutenant-governor. The effect of this was to throw into the assembly the abler spirits of the opposition and greatly strengthen that body, while the council, chosen from among the friends of the governor or proprietor, was thereafter regarded as representing the proprietary interests rather than those of the populace.
One humble court has not been referred to, that of the coroner. The following is a specimen of a verdict taken in 1699 in Chester County:—
“We whose names are underwritten, summoned and attested by the Coroner to view the body of Sarah Baker, haveing made strict enquiry, and alsoe had what evidence could be found, attested to what they know, and wee can find noe other but that it pleased Almighty God to visit her with death by the force of Thunder; and to this we all unanimously agree.”[170]
Who will say that this is not quite equal in intelligence to the verdict of the average coroner’s jury at the present time?