LIBRARY 
 
 University of California. 
 
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The 
 
 Evolution of the Judiciary System 
 
 of Pennsylvania 
 
 By 
 
 BENJAMIN MATTHIAS NEAD 
 
 President of the Bar Association of 
 Dauphin County, Pennsylvania 
 
 An Address delivered at the Annual Meeting of the 
 
 Association 
 
 February 2, A.D. 1906 
 
 'Quaerere dat Sapere quae sunt legitima vere.' 
 
 HARRISBURS, PA. 
 
 J, Horace McFarlano Company 
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The Evolution of the Judiciary System 
 of Pennsylvania, 1626-1836 
 
 By BENAJMIN MATTHIAS NEAD * 
 
 IT was the forceful plea of a certain William Usselinxc, 
 one time a merchant of Antwerp, adventurously inclined, 
 which moved Gustavus Adolphus, the lion-hearted King 
 of Sweden, to specifically grant, as part of his cherished plan 
 to set " the Jewel of his Kingdom" upon the far-away shore 
 of the South, or Delaware river in North anerica, a warrant, 
 — the first warrant of the kind having erence to that par- 
 ticular locality, — for the establishment judicial tribunal, 
 with jurisdiction over territory now included within the lim- 
 its of Pennsylvania. 
 
 This warrant was contained among other and larger pow- 
 ers and privileges granted to the " Swedish West India Com- 
 pany," so called, a chartered institution, the jurisdiction of 
 which, in trade, commerce and government, was, by original 
 intent, to extend, not only over the rich domain in America, 
 but to settlements in Australia and Africa as well. 
 
 The date of the grant was June 14, 1626. The warrant 
 of judicial authority was in these words: "to constitute a 
 council (tribunal), which, with its officers, shall attend to 
 the administration of justice and preservation of good laws, 
 . . . appoint judges, . . . accommodate differences be- 
 tween citizens of the country and the natives, as well as 
 between directors or chambers (of the company), and finally 
 preserve everything in good condition and under good 
 order." 2 
 
 The settlement on the Delaware, fostered by the Swedish 
 
 1 An address, by the retiring president of the Dauphin County Bar Association, 
 at the annual meeting, February 2, A. D., 1906. 
 
 'Hazzard's Annals of Pa., pp. 16-20. Col. and Prov. Laws of Pa., p. 420. 
 
 (•) 
 
 224245 
 
government, was of feeble growth. Not until nearly twenty 
 years after the granting of the West India Company's char- 
 ter, did its government assume definite form under the com- 
 missioned authority of Governor John Printz, by whom law 
 and justice were first regularly administered within the pres- 
 ent limits of Pennsylvania. He was instructed: "to decide 
 all controversies according to the laws, customs and usages 
 of Sweden." He was not given a special code of laws, or 
 form of tribunal for the government of the colony and for 
 the dispensing of justice, but according to the best authori- 
 ties, 1 he was directed in his decisions, as Governor and Chief 
 Magistrate, by a compilation of the laws, made in 1614, for 
 the general government of the Swedish kingdom. His judg- 
 ments, while subject to review by the Swedish West India 
 Company, were doubtless rendered without the assistance of 
 a jury, for, although Swedish writers assert that trial by jury 
 is of Swedish origin, no instance is known of its application 
 at this period in the colony on the Delaware. 
 
 When the Dutch Governor, Peter Stuyvesant, came down 
 from New Amsterdam (afterwards New York) in 1655, and 
 made a conquest of the Swedish settlement on the Delaware, 
 the appointment of a vice-director for the district, by him, 
 was immediately followed by the establishment of a Dutch 
 form of government and the constitution, by degrees, of 
 proper officers for the enforcement of law and the adminis- 
 tration of justice under the authority of the Council of New 
 Netherlands, which had jurisdiction in the determination of 
 both civil and criminal cases. 
 
 There was full authority to allow the settlement on the 
 Delaware its own courts. There was chosen for it also a 
 "Fiscaal" or " Schout," which, being interpreted, means a 
 chief prosecuting officer, with duties combining both those 
 of a sheriff and a district attorney or attorney- general. The 
 Delaware Colony was, at first, allowed but one schout, com- 
 missioned by the highest authority of the Dutch West India 
 Company, and instructed, as was the custom, directly from 
 old Amsterdam. A tribunal was created consisting of three 
 
 1 Cf. Armstrong's Notes to Upland Court Records. 
 
burgomasters to be appointed from the u honestest, fittist 
 and richest." Seven schepens were chosen by the directors ( 
 from a double number nominated by the officials of the 
 Company. The duties of the schepens were of a judicial 
 character, to give final judgment for all sums under one hun- 
 dred guilders. In cases where the amount involved was over 
 one hundred guilders, the party aggrieved was allowed the 
 right of appeal to the director-general and council of New 
 Netherlands. The schepens had authority also to pronounce 
 sentence in all criminal cases, but a provisional appeal from ^ 
 their judgment was allowed. 1 
 
 When the Dutch, in 1664, surrendered to the English 
 their authority in the district of the Delaware river and bay, 
 they had already established three courts of justice, — one, 
 the Upland Court, erected upon the foundations laid by the 
 Swedes; one at New Castle and one at the Whorekill. 
 
 These courts, James, Duke of York, the new English 
 proprietory, continued by ordinance upon his final acquisi- 
 tion of the territory ; weaving in the English with the exist- 
 ing Swedish and Dutch traditions of judicial administration, 
 — forming the composite system of the first Pennsylvania 
 Court as William Penn found it at Upland (now Chester). 2 
 
 The records of the Upland Court dating back to 1676 
 have been preserved in the original. It is twenty-five years 
 since I carefully scanned the yellow pages of this ancient 
 time-marked record book with an interest as keen as that 
 which, in company with the present president judge of our 
 courts, I once turned over the leaves of the far more ancient 
 Greater and Lesser Domesday Books, in their hiding place 
 in the little chamber of the Old Rolls Court, in London. 
 
 With your kind indulgence, I wish to take just a brief 
 time here to speak further of these little river courts, — it 
 matters little which, for what is true of one is true of all. 
 
 They consisted of justices of the peace, whereof three 
 made a quorum. They had the powers of a court of quarter 
 
 iCol. and Prov. Laws of Pa. Hist. Notes Chap. Ill, pp. 428, etc. O'Call. 
 Hist. New Netherlands, Vol. i, pp. 102, etc. 
 
 2 Col. and Prov. Laws — Hist. Notes, pp. 455, etc. 
 
 (3) 
 
sessions and, as well, the authority to decide all civil matters, 
 under twenty pounds, without appeal. Where a larger 
 amount was involved in a civil action, and in cases of capital 
 crimes and banishment, an appeal lay to the assizes at New 
 York. The right of trial by jury was guaranteed, but under 
 the species of English law administered by the Duke of 
 York and set forth in his Book of Laws, which somebody 
 has characterized as nothing more or less than " a fancy of 
 Lord Clarendon," no jury could exceed "the number 
 seaven or be under six, except upon speciall causes, upon 
 life and death the justices shall think fitt to appoint twelve." 
 Except in cases of life and death the major part of the jury 
 could give in a verdict, u the minor being concluded by the 
 major without any allowance of any protest by any of them 
 to the contrary." 1 
 
 These courts also had a certain jurisdiction, in express 
 terms granted, in matters of equity. 
 
 At Upland, court was held monthly, beginning the 
 second Tuesday of the month. 
 
 The judges of the Upland Court, at the time of William 
 Penn's arrival, were: Mr. Otto Ernst Cock, chief justice; 
 Mr. Israel Helm, Mr. Henry Jones, Mr. Lacey Cock and 
 Mr. George Brown, justices. The new proprietor mani- 
 fested his confidence in the integrity and good judgment of 
 this court by allowing the choice of its chief justice, Mr. 
 Otto Ernst Cock, and one of the associate justices, Mr. 
 Lacey Cock, as members of the Council of Nine, over which 
 his own cousin, William Markham, presided, appointed by 
 him to erect courts and take the other steps necessary to 
 form the new government of Pennsylvania. 2 
 
 The royal charter to the first proprietary guaranteed him 
 the right to make laws and to administer justice in all its 
 forms. In his "laws agreed upon in England," he fixed the 
 fundamentals of the administration of justice, in the govern- 
 ment which it was his purpose to set up, in terms the most 
 positive, as follows, by sections: 
 
 x Col. and Prov. Laws of Pa., pp. 33, 34. 
 2 Col. and Prov. Laws, Hist. Notes, p. 471. 
 
 (4) 
 
" Fifth, That all courts shall be open and justice shall 
 neither be sold, denied or delayed. 
 
 "Sixth, That in all courts, all persons of all persuasions 
 may freely appear in their own way, and according to their 
 own manner, and there personally plead their own cause 
 themselves, or, if unable, by their friends. . . . 
 
 u Seventh, That all pleadings, processes and records in 
 courts shall be short, and in English, and in an ordinary 
 and plain character, that they may be understood and justice 
 speedily administered. 
 
 " Eighth, That all trials shall be by twelve men, and as 
 near as may be peers or equals, and of the neighborhood, 
 and men with just exception. In cases of life there shall be 
 first twenty-four returned by the sheriff for a grand inquest, 
 of whom twelve, at least, shall find the complaint to be true ; 
 and then the twelve men, or peers, to be likewise returned 
 by the sheriff, shall have the final judgment. But reasonable 
 challenges shall be always admitted against the said twelve 
 men or any of them." 1 ^ 
 
 His "Frame of Government" (Section 17), vested in the! 
 governor and council the privilege of nominating yearly a 
 double number of judges and other officers, such as sheriffs, 
 coroners, etc. In the assembly, also, was vested a similar 
 right. From the number so nominated, the Governor or his 
 deputy could make choice, and commission for each office t 
 the proper number of persons to serve for the ensuing year^J 
 
 These provisions of the law were immediately put into 
 practice, the appointments made, the commissions issued 
 and were in the name of "William Penn, Proprietary and 
 Governor of Pensilvania." These commissions were signed 
 from time to time by the Governor, the Deputy-governor or 
 Lieutenant-governor, as the case might be. 
 
 It has been sometimes claimed that in early Pennsylvania I 
 all judicial officers and sheriffs, coroners, etc., received their 
 commissions from the Crown, but this was not generally a 
 fact. It is true, however, that when, under the provisions of 
 
 1 Col. and Prov. Law, p. ioo. 
 
 2 Col. and Prov. Laws (Frame of Government), p. 97. 
 
 (5) 
 
the Provincial Act of 1705, the offices of sheriff and coroner 
 become elective the incumbents were construed to be officers 
 of the Crown, and were accordingly commissioned by and 
 /required to give bond to the Queen then ruling. 1 
 
 When William Penn arrived, in 1682, he recognized the 
 authority of the Laws of James, Duke of York, which, as 
 has been noted, had been promulgated for some time (Sep- 
 tember 22, 1676), throughout the territory which was now 
 to be brought within the limits of the province of Penn. 
 These laws continued in force and effect until the enactment 
 of the new code by the first provincial assembly held at 
 Chester in the first year of the government. 2 
 
 The new code, naturally, worked imperfectly. One of the 
 respects in which it failed was that it did not provide any 
 method of appeal from the judgments of the courts of origi- 
 nal jurisdiction. Under the Duke's laws there had been an 
 appeal to the New York assizes, but that could not avail 
 now. The new code made no provision for the trial of capi- 
 tal offenses. These defects were remedied the year follow- 
 ing. Laws were passed regulating the procedure in criminal 
 causes and allowing appeals from the judgments of the county 
 courts to the Governor and Council. The county courts 
 were not given jurisdiction in capital offenses, but original 
 jurisdiction, in such cases, was reserved by the Governor and 
 Council. This continued to be the case until the constitution 
 of the first provincial court in 1684. But, frequently after 
 that, the provincial court still being in commission, many 
 causes cognizable by it, were frequently heard and deter- 
 mined by the Governor or Deputy-Governor and Council. 
 This, advisedly, for the provincial court was ever a nonde- 
 script body, with ill-defined powers ; the prey of the jealousy 
 of locality; convulsed with selfish quarrels, out of which 
 grew, inter alia, the bitter denunciation and impeachment of 
 the first chief justice of the province, Nicholas More; 3 and 
 withal, it was a tribunal exceedingly unpopular at all times. 
 
 l Ci. Col. and Prov. Laws (Court laws), pp. 297, etc. 
 
 2 Ibid. pp. 107, 472. 
 
 3 Col. and Prov. Laws, Hist. Notes, pp. 499-504. 
 
 (6) 
 
The Governor and Council also took cognizance of cases 
 in admirality and matters relating to the orphans' courts, 
 the status of which, at this early day, was not very well 
 defined. 
 
 In justice to the Council, it must be said that it did not 
 pose as an Aula Regis, but endeavored, always, to discourage 
 the taking of appeals to and the bringing of suits before it 
 as a court, but it was not until the passage of the act of 
 1 701 that the provincial, as well as the other courts, were, to 
 a degree, definitely established and their several functions 
 and jurisdictions defined. 1 
 
 Interesting as it is, I dare not, in this presentation of facts, 
 attempt to follow in detail the story of the varying fortunes 
 of the courts of Pennsylvania during the decade of unrest 
 and dissension which preceded the death of the first pro- 
 prietory of the province. The strife for the maintenance of 
 the proprietory prerogative, the jealous regard of the As- 
 sembly for the rights of the people, the ambitious aims and 
 subserviency of the Council were elements in the irrepres- 
 sible conflict which, even at that early day, was on between 
 the spirit of independence in the people, who were " inclined 
 to make a Pennsylvania system of jurisprudence, rather than 
 to introduce the English," and the representatives of kingly 
 authority, whose aim was to preserve all the methods of gov- 
 ernment according to the English Constitution, and to 
 remove them as far as possible from those of a republic. 
 
 It might be here remarked, in passing, that the M three 
 peacemakers chosen by every county court in the nature of 
 common arbitrators to hear and end differences between man 
 and man" (a plan of the benign Quaker founder) do not 
 seem to have been working over-time during this period. 2 
 
 The royal reservation in the proprietory grant that all 
 laws passed in this province should be submitted, within five 
 years after their passage, through the English Board of 
 Trade, to the Privy Council for approval or annulment, and 
 the lesson which experience had taught the Assembly of 
 
 1 Statutes- at-Large of Pa., Vol. II, p. 148. 
 2 Col. and Prov. Laws, p. 128. 
 
 (7) 
 
Pennsylvania, that every law passed and submitted which 
 made for the conservation of the rights of, and the confirm- 
 ing of independent power in the people of Pennsylvania, was 
 annulled, at sight, by the appellate tribunal of the Crown, 
 were responsible for the otherwise incomprehensible series of 
 enactments and repeals, re-enactments and counter repeals of 
 the laws constituting the courts of Pennsylvania during that 
 period; for the delay of justice and the consequent injury 
 and distress of the people. Little blame was there to the 
 assemblies that they withheld their laws from the English 
 Council until the last day, in decency, it could be done, and 
 that, immediately upon notice received of the annulment of 
 the old law, they passed a new one, as nearly in conformity 
 with the old one as they dared. 
 
 The death of the first proprietary in 171 8, was an event 
 which lent arms to the contending factions in Pennsylvania. 
 
 The most complete legislation for the establishment of 
 courts, and the regulation of the practice therein, in Penn- 
 sylvania, up to this time had been the laws passed in 1715. 1 
 
 Now, July 21, 1 719, these met the fate of their predeces- 
 sors and were repealed, in toto, by the English Crown, and 
 Pennsylvania was again without any judiciary system or plan 
 for the proper administration and execution of law. With 
 the government devolved upon proprietaries, whose chief 
 aim and ambition appeared to be to forward their own per- 
 sonal interests and to secure royal favor; with a hold-over 
 lieutenant-governor (Sir William Keith), the most courtly 
 and most dangerous exponent of the royal right and pre- 
 rogative which the province knew since the days of Benja- 
 min Fletcher; crafty and obsequious with the Assembly, ever 
 ready, since the death of the first Penn, to take issue with 
 the proprietaries in succession when necessary to advance 
 his own policy; with the representatives of the people in the 
 assembly discouraged at the apparent futile outcome of their 
 endeavors, it is not strange that the purely English idea 
 should be in the ascendancy, and that the English Privy 
 Council should, for once, approve a Pennsylvania Act for 
 
 1 Statutes- at-Large Vol. Ill, pp. 33, 65, 83. 
 
 (8) 
 
the advancement of justice and the more certain administra- 
 tion thereof, the Act of May 31, 1718. 1 
 
 Speaking of this act, Dallas says: "Its adoption opened 
 a new era in the administration of penal justice, the rigor of 
 the English penal law being fully established by it." This 
 law continued in full force until the adoption of a revised 
 penal code, after the Revolution. 
 
 Following the repeal of the general law of 171 5, establish- 
 ing courts of judicature in Pennsylvania, Lieutenant-Gover- 
 nor Keith continued the courts by proclamation and enabling 
 writs, until the year 1722, when another law was passed. 2 It 
 was this, the first general court law of Pennsylvania, which 
 was not repealed by the Crown, but was continued in force 
 until supplied by the new law of 1727. 3 
 
 In 1726, Sir William Keith was succeeded as lieutenant- 
 governor by Patrick Gordon, who, differing from Keith, was 
 a man of direct and positive methods. When he learned 
 that a movement was on foot to again invoke the ancient 
 practice of the Crown in repealing the court laws of Penn- 
 sylvania — the Act of 1727 — he called the attention of the 
 Assembly to it ; and when, among the rapidly increasing en- 
 croachments of the Crown, that catastrophe happened, Gov- 
 ernor Gordon joined with the Assembly in recognizing the 
 Act of 1722 as capable of being revived by legislative action 
 and again being put in full force. It was under this revived 
 statute that courts of justice, in Pennsylvania, were, in the 
 main, conducted until the outbreak of the Revolution, when, 
 with the adoption of the State Constitution of 1776, the old 
 system, modified and necessarily changed, by that instrument 
 was engrafted into the new government. 
 
 A COURT OF CHANCERY 
 
 The most notable triumph of the policy of Lieutenant- 
 Governor Sir William Keith, at this period, was the estab- 
 lishment, with the consent of the Assembly, of a Court of 
 
 1 Statutes -at -Large, Vol. Ill, p. 199. 
 2 Col. and Prov. Laws, pp. 304, 382. 
 3 Statutes-at-Large, Vol. IV, p. 84. 
 
 (9) 
 
Chancery, or Equity (August 10, 1720), with himself as 
 Chancellor. 1 This was a proposition which, hitherto, the 
 Assembly had met with the most unyielding antagonism. 
 The story of the establishment and maintenance, for nearly 
 sixteen years, with much of the dignity of an English tribu- 
 nal, of Keith's Court of Chancery, presents the most pictur- 
 esque phase of the growth of a judiciary system in Pennsyl- 
 vania. Because of its close affinity to and accord with English 
 tradition, its broad exposition of the theory sought to be 
 put into practice in certain of the other colonies, it stood 
 high in royal favor and escaped the frequent chastenings of 
 the appellate councils of the Crown, to which the other courts 
 were constantly subjected. 
 
 But Keith, the creator and chancellor of this court, at 
 length, after his court had been in existence some six years, 
 was asked to lay down his authority as Lieutenant-Governor 
 and Chancellor; this, perhaps, as a direct result of a quarrel 
 he had with James Logan, who stood high in favor with the 
 proprietary and had the confidence of the crown. 
 
 Under Patrick Gordon, the successor of Keith in the 
 government, this court was continued for the entire period 
 of the former's administration, but not without antagonism. 
 The attitude of the Crown toward the other courts and its 
 general encroachments were conducive of a close study of 
 chartered rights by the people ; and so it came about, near 
 the close of Lieutenant-Governor Gordon's administration, 
 in 1736, that the right of the equity court to exist and of the 
 Lieutenant-Governor to preside as chancellor, were declared 
 to be rights denied by the Pennsylvania charter when that 
 instrument was properly construed. 
 
 Per contra, the practice in the other colonies was pleaded. 
 This was declared irrelevant, unless it could be shown that 
 the other colonies had charters identical with that of Penn- 
 sylvania. The Assembly was constrained to be jealous of the 
 chartered rights of the people. There had been too much 
 juggling with the laws. The latest royal instructions were 
 most sinister in their character. It was a plain provision of 
 
 1 Col. and Prov. Laws p. 386. 
 
 (10) 
 
the charter which permitted all laws passed to take effect 
 immediately, subject, of course, to review and disapproval by 
 the Crown, within five years. But what was this new doc- 
 trine that no laws should be passed by the Pennsylvania 
 Assembly, without the suspending clause (suspending their 
 operation until they had received the royal sanction)? The 
 people had submitted for years to the procedure ordained 
 by their charter. When a law was passed in Pennsylvania it 
 was first submitted to the Board of Trade in London. It 
 was next submitted to the King's Solicitor for his opinion ; 
 then it came back to the Board of Trade and was considered 
 and acted upon"; thence to the King's Council, where it was, 
 at length, approved or received its quietus, — usually the 
 latter. It was a cumbersome practice, but it was in accord 
 with the charter. Let the charter now be enforced ! 
 
 The last three sessions of Assembly, before the death of 
 Governor Gordon, in 1736, were strenuous ones, the fight 
 for chartered rights being to the fore, but with the death of 
 the Lieutenant-Governor the Court of Chancery died. There 
 was no formal repeal of the law upon which it depended for 
 its existence, but no chancellor ever sat again and, as Mr. 
 Rawle, in his "Equity in Pennsylvania" (an exhaustive treat- 
 ise on this subject, upon which I depend as authority), says: 
 " Equity as a separate system (in Pennsylvania) slept for 
 just one hundred years," a statement having reference, of 
 course, to the defining of equity powers and the lodgment 
 thereof in the Supreme and Common Pleas Courts of Penn- 
 sylvania by the civil code of 1836. 
 
 NOMENCLATURE OF COURTS 
 
 In reorganizing the courts during the Revolution, and 
 after the adoption of the State Constitution of 1776, no rad- 
 ical change was made in their composition or form. The 
 chief purpose of changes, evidently, was to make clear the 
 disassociation of all the courts from any semblance of alle- 
 giance to the British government. The legislature distinctly 
 declared "that the courts of justice should be held as here- 
 
tofore." And thus, with little change, with the rehabilitation 
 and recomposition of the old " High Court of Errors and 
 Appeals," and the modifications made necessary by the adop- 
 tion of the Federal Constitution, the old traditional courts of 
 the province and early state glided gracefully into the 
 grooves marked out for them under the Pennsylvania State 
 Constitution of 179Q. And, with many anomalous charac- 
 teristics, the result of the long period of their growth, and 
 of their composite nature, gradually disappearing, as time 
 moved on, they came to be, at last, under the perfecting 
 processes of the Civil Code of 1836, the much-admired and 
 respected Pennsylvania System, as it remains substantially 
 today. 
 
 Under the regime prior to the adoption of the State and 
 Federal Constitutions, the Pennsylvania tribunals in which 
 judicial power was from time to time vested, following 
 closely the English nomenclature, were styled: 
 
 The General Quarter Sessions of the Peace, 
 
 The Courts of Oyer and Terminer and General Gaol Delivery, 
 
 The County Courts, or Courts of Common Pleas, 
 
 The Register's Courts and Orphan's Courts, 
 
 The Court for the Trial of Negroes (Special), 
 
 The Court of the Admiralty, 
 
 The Court of Chancery and Equity (Keith's), 17 19-1736, 
 
 The Provincial Court, 1684, 
 
 The Provincial or Supreme Court, 1 7 15, 
 
 The Supreme Court, 1722, 
 
 The High Court of Errors and Appeals, 1780. 
 
 Under the Constitutions: Federal authority abrogated 
 the state admiralty courts. By state authority, judicial power 
 was vested in : 
 
 A Supreme Court, 
 
 Courts of Oyer and Terminer and General Gaol Delivery, 
 
 Courts of Common Pleas, 
 
 Orphan's Courts and Register's Courts, 
 
 Courts of Quarter Sessions of the Peace, 
 
 Justices of the Peace. 
 
 And for the period from April 13, 1791, to February 24, 
 1806: 
 
 The High Court of Errors and Appeals. 
 
 (12) 
 
REVIEW OF CERTAIN COURTS 
 
 In an address of this character it would not be feasible, 
 nor in good taste, to attempt even a casual review of all 
 these courts, so I have selected but two of the general courts, 
 for a brief review at this time : the old Provincial Court, out 
 of which grew the Supreme Court of the State, and the High 
 Court of Errors and Appeals. 
 
 Before passing to this review, however, it may be inter- 
 esting and perhaps instructive, as a commentary on the 
 times, to take just a look at the powers conferred upon a 
 special court, created with the sanction and under the 
 administration of the benign Quaker founder of Pennsyl- 
 vania. It was a special court for the trial and punishment of 
 negroes alone, who were charged with capital offenses, among 
 which were included rape, or attempted rape, upon white 
 women. 
 
 This special court was established for each county. Two 
 justices of the peace and six of the most substantial free- 
 holders of the neighborhood constituted the court under the 
 Governor's commission. If any negro within the govern- 
 ment was convicted of committing ;" a rape or ravishment" 
 upon any white woman or maid, or of murder, burglary or 
 baggery, the punishment was death. For an attempted rape 
 upon a white woman or maid the punishment was castration. 
 
 Nor were negroes, in those days, permitted to get into 
 temptation by congregating together. They were permitted 
 to assemble only to the number of four in company, particu- 
 larly on First Days. Offending against this last provision of 
 the law was punished by public whipping, thirty-nine lashes 
 being the quota. 1 
 
 THE PROVINCIAL COURT. THE PROVINCIAL OR SUPREME 
 COURT. THE SUPREME COURT 
 
 The Supreme Court of Pennsylvania had its inception in, 
 and was evolved from the provincial court of the early days 
 of the government. This appellate court was first constituted 
 
 1 Statutes-at-Large, Vol. II, pp. 77, 235. 
 
 (13) 
 
f 
 
 in 1684, by act of Assembly, and by virtue of that statute 
 and subsequent ones, up to the year 1722, held its jurisdic- 
 tion and exercised its functions. 1 
 
 This court consisted of five persons called provincial 
 judges, appointed by the Governor, Deputy-Governor, or 
 Lieutenant-Governor, for the time being, and duly commis- 
 ! sioned under the great seal of the province. Three of these 
 judges were competent to hold this court of appeal at Phila- 
 delphia, twice in each year. The provincial court, at first, 
 had jurisdiction to hear and determine appeals from the 
 county courts and to try, originally, titles of land and all 
 causes, civil and criminal, not determinable by the county 
 courts. 
 
 At least two of the judges thus commissioned were 
 charged with the duty of riding the circuit of the several 
 counties in the fall and spring of each year. The disposition 
 of the decrees or sentences of the lower courts by the pro- 
 vincial court was not final, but the party aggrieved therewith 
 had the right of appeal to the King. 
 
 By the Act of 1715 this court of appeals was styled the 
 Supreme Court. The number of judges was fixed at four, 
 and one was commissioned as the chief justice. The writs 
 were issued, for the first time, in the name and style of the 
 King, his heirs and successors, and bore teste in the name 
 of the chief justice for the time being. The judges were for- 
 bidden to sit judicially in the lower courts in any matter, but 
 were authorized "to hold plea" in equity, by bill, appeal, 
 petition or suit brought by any person; or other matter 
 relievable in equity. 
 
 The judges were paid by fees which were double the fees 
 paid in county courts in like cases. 
 
 This was part of the judiciary system which, when the 
 Crown had repealed the legislation creating it, Lieutenant- 
 Governor Sir William Keith had kept in being and force by 
 ordinance and writ until the passage of the Act of 1722, the 
 important and effective ante-revolutionary judicial legislation. 
 
 1 Col. and Prov. Laws pp. 168, 184, 225. Statutes-at-Large, Vol. II, pp. 134, 
 150, 201. Statutes-at-Large, Vol. Ill, pp. 66, 304. 
 
 (14) 
 
Under this act but three judges were commissioned for 
 the Supreme Court. Each, however, was invested with full 
 power and authority to issue writs of habeas corpus, cer- 
 tiorari, error and all remedial and other writs and process 
 returnable to that court. The court was also invested with 
 the right to hear and determine all manner of pleas, plaints 
 and causes which might be removed or brought from the 
 respective quarter sessions of the peace and courts of com- 
 mon pleas of the counties; to examine and correct all and 
 all manner of errors of the justices and magistrates of the 
 province, in their judgments, processes and proceedings ; as 
 well as in all pleas of the Crown and in all pleas, real, per- 
 sonal and mixed; to reverse or affirm judgments in these 
 matters; to examine, correct and punish contempts; to 
 award process for levying fines, forfeitures and amercements, 
 and generally to minister justice to all persons and to exer- 
 cise the jurisdictions and powers granted, as fully and amply 
 to all intents and purposes, whatsoever, as the Justices of the 
 Court of Kings Bench, Common Pleas and Exchequer, at 
 Westminster, or any of them may or can do; saving at all 
 times a final appeal to His Majesty in Council, or to such 
 courts or judges as by the Sovereign Lord, the King, his heirs 
 or successors, had been appointed in Britain to receive, hear 
 and judge of appeals from His Majesty's plantations. 1 
 
 The practice of riding the circuit as the law commanded, 
 when the Supreme Court sat for the trial of an issue of fact, 
 having fallen into disuse and the practice being introduced 
 of trying all issues of fact joined in all causes, irrespective of 
 the county in which they arose at nisi prius 2 in Philadelphia, 
 the Act of 1767 steps in and makes a very decided change 
 in the composition of the Supreme Court. 3 It provided that | 
 four persons of known integrity and ability were to be com- 
 missioned by the Governor to be judges of the Supreme 
 
 1 Statutes -at -Large, Vol. Ill, pp. 66, 302. 
 
 2 Nisi prius: " Unless before." A judicial writ by which the sheriff is to bring 
 a jury to Westminster, " unless before " that day, the Lord's Justices of the King 
 go into his county to take assizes. From this writ the Philadelphia Court took its 
 name. 
 
 3 Statutes-at-Large, Vol. VII, pp. 108, 109. 
 
 (i5) 
 
/Court, one to be distinguished as chief justice. The judges 
 were given all the powers to be derived from existing laws 
 and were required to ride the circuit twice in every year, if 
 occasion required; their expenses in counties where no 
 court was held to be paid by the province, but where court 
 was held in a county the expenses were to be paid out of the 
 county stock. No ethical question as to the propriety of 
 passing free over the public ways vexed the judges in those 
 days, for the law expressly provided that they, their clerks 
 and their servants should pass and repass, and be conveyed 
 by the ferrymen over all the several ferries within the prov- 
 ince, without paying any ferriage fee or reward for the same. 
 By the provisions of this Act the removal of causes under 
 fifty pounds, from the Courts of Common Pleas into the 
 Supreme Court, was prohibited. 
 
 When the judiciary was organized under the revolutionary 
 changes in the government, it was declared by legislative 
 enactment, in general, that the courts of justice should be 
 held as heretofore. Subsequent changes in the law, govern- 
 ing the Supreme Court, made before the adoption of the 
 Constitution of 1790, Act of 1786, included a provision that 
 the court should hold four terms annually. It was invested 
 with original jurisdiction within the city and county of Phila- 
 delphia. No suit upon cause of action existing prior to the 
 passage of the law granting this jurisdiction was cognizable, 
 except suits of the Commonwealth and questions relating to 
 land titles. The court was also empowered to make rules to 
 regulate its practice. No suit was allowed to be removed 
 from the common pleas by writ of certiorari issued by the 
 plaintiff nor any writ of habeas corpus or certiorari after 
 the same had been at issue two terms or more. In fact, no 
 plaintiff was allowed to remove to the Supreme Court any 
 action which could not have been originally instituted there. 
 The Constitution of 1776 required that the judges of the 
 Supreme Court should have fixed salaries. They were to be 
 commissioned for seven years, but eligible to reappointment, 
 and subject to removal, at any time, by the Assembly, for 
 ^ misbehavior. They were also prohibited from holding 
 
 (16) 
 
other offices, which practice had been such a prolific source 
 of trouble in the past, and neither fees or perquisites in addi- 
 tion to their salaries were allowed them. The powers of a 
 court of chancery were also given, so far as the same related 
 to the perpetuating of testimony; to obtaining evidence from 
 places not within the limits of Pennsylvania and to the care 
 of the persons and estates of those who were non compos 
 mentis. 
 
 By the adoption of the Federal Constitution and the 
 Judicial Act of 1789, the judical authority of the states was 
 materially circumscribed, which condition of affairs was very 
 apparent in the Pennsylvania Constitution of 1790 and the 
 legislative inactments immediately following. 1 The Supreme 
 Court was organized to hold three terms and courts of nisi 
 prius, as formerly. All judges of courts, including the Su- 
 preme Court, were forbidden to practice in any court of 
 this Commonwealth or elsewhere, another practice which 
 was not uncommon in the early days of the province. On 
 final judgments of the Supreme Court, a writ of error was 
 provided for to the High Court of Errors and Appeals. 2 
 All judges were to hold their commissions during good* 
 behavior, removable by impeachment. Compensation couldl 
 be fixed, but not diminished, during continuance in offiteT 
 The jurisdiction of the court was extended over the state. 
 In the year 1806, the right was denied the Supreme Court to 
 try issues of fact, in banque, etc. The revolution did away 
 with appeal to Great Britain. The review of the judgments 
 of the Supreme Court which lay in a writ of error to the 
 High Court of Errors and Appeals, died with the abolition 
 of that court, and at the period when this review of the 
 subject closes no writ of error lay from the final decisions 
 of the Supreme Court to the Supreme Court of the United 
 States, except in cases peculiarly within the jurisdiction of 
 the last-mentioned court. The Act of 1834 organizing courts 
 of justice declares the Supreme Court of Pennsylvania to 
 consist of a chief justice and four associates, and the Act of 
 
 1 Cf . Smith's Laws of Penna., Vol. I (notes), pp. 151-154. 
 
 2 Vide infra . 
 
 (17) 
 
1836 — of the Civil Code — fully and clearly sets forth its 
 limitations and jurisdictions, both generally and with respect 
 to the city and county of Philadelphia. 
 
 THE HIGH COURT OF ERRORS AND APPEALS, "THE 
 LOST COURT." 
 
 When the people of Pennsylvania had become fully im- 
 bued with the spirit of the Revolution, they awoke to the 
 realization of a fact that was " gall and wormwood" to them. 
 It was that the laws which, per force, they had continued in 
 operation, touching them most closely as to their persons 
 and property, the laws upholding the courts, gave them no 
 tribunal of last resort, excepting the council of the hated 
 King of Great Britain, or such tribunals as it was his royal 
 pleasure to appoint for the final hearing of the appeals from 
 the American plantations, — at best " a very expensive, diffi- 
 cult and precarious remedy." For nearly two years the peo- 
 ple had smarted under this situation ; then their representa- 
 tives in Assembly came to the rescue. This body declared 
 that the good people of the Commonwealth of Pennsylvania, 
 by their happy deliverance from their late dependent con- 
 dition and by becoming free and sovereign, had been released 
 from a disgraceful badge of slavery and had acquired the 
 transcendent benefit of having justice at home at a moderate 
 cost and charge, and, having adopted the common law of 
 England, had the right to enjoy the full benefit thereof by 
 the erection of a competent jurisdiction within the state for 
 the hearing, determining and judging in the last instance 
 upon complaints of error at common law: and also a com- 
 petent court of appeals for reviewing, reconsidering and cor- 
 recting the sentences and decrees of the Court of Admiralty 
 (other than in cases of capture upon the waters in time of 
 war from the enemies of the United States of America) and 
 likewise the decrees and sentences of the several registers of 
 wills and for granting administrations. Upon this declara- 
 tion and to this end the Assembly created, on the 28th day 
 of February, 1780, the High Court of Errors and Appeals. 1 
 
 1 Statutes -at- Large, Vol. X, pp. 52, etc. 
 
 (18) 
 
The law creating the court provided "that when any final 
 judgment shall hereafter be given (in the Supreme Court) 
 in any suit or action, real, personal or mixed, or when any 
 final decree or sentence shall be pronounced in the Court of 
 Admiralty of the Commonwealth (other than in the cases of 
 capture made during war), or when any final decree or sen- 
 tence shall be pronounced by any register of wills and for 
 granting administrations," the party aggrieved was granted 
 the right of appeal to the newly created court. — « 
 
 The president of the Supreme Executive Council, the | 
 judges of the Supreme Court, the judges of the Admiralty, 
 for the time being, together with three persons of known 
 integrity and ability, appointed and commissioned and re- 
 movable from office, in the same manner as judges of the 
 Supreme Court, were made to constitute the new court, 
 which, as before stated, was styled " The High Court of J 
 Errors and Appeals." 
 
 No justices of the Supreme Court, or judge of the Ad- 
 miralty, who had heard or determined, in the first instance, 
 any of the causes appealed, was permitted to sit again, judi- 
 cially, on the hearing of the same cause or controversy, in the 
 Higher Appellate Court. 
 
 No writ of error or appeal was allowed until the party or 
 parties in error, appellant, by himself or through his agent 
 or attorney-in-fact, had filed an affidavit with the clerk of the 
 Court of Errors and Appeals, attesting that the matter in 
 controversy exceeded the value of u four hundred bushels of 
 wheat," and had entered into a recognizance in double the 
 value of the matter in dispute, to prosecute his appeal with 
 effect. 
 
 Parties who had appealed any cause from the Supreme 
 Court of the Province to the King of Great Britain in Coun- 
 cil and upon which no judgment had been rendered, prior to 
 the 4th day of July, 1776, were permitted to bring a new 
 writ of error to the Court of Errors and Appeals, upon 
 making the affidavit and giving the security prescribed, and 
 the Appellate Court was enjoined to proceed in such causes 
 as in others made cognizable in that court. 
 
 (19) 
 
This court was required to sit, in Philadelphia, at least 
 twice in every year in April and September. The judges and 
 other persons who constituted this court were entitled, each, 
 to receive as compensation, " the value of two bushels of 
 wheat," for each day's attendance upon the business of the 
 court. 
 
 Thus constituted, the High Court of Errors and Appeals 
 continued until the adoption of the State Constitution of 
 1790, which rendered certain changes necessary, so by Act 
 of Assembly, 1 the court was reorganized throughout. The 
 president of the Supreme Executive Council, formerly a 
 member of this court was now no longer an officer in being, 
 rjior was the judge of the Admiralty, (jhe court was recon-*" 
 stitued by the appointment of the judges of the Supreme 
 Court, the president judges of the several courts of common 
 pleas in the five districts or circuits, then existing, and of 
 three others, persons of known legal abilities, all of whom 
 were commissioned during good behavior, in conformity 
 with the theory of the new constitution, removable by 
 ^impeachment. 
 
 Any five or more of the justices composing the court had 
 authority to act, with jurisdiction to review on appeal all 
 judgments of the Supreme Court, and of the registers' courts, 
 in like manner and under like restrictions as the original 
 Court of Errors and Appeals. 
 
 This court was required to sit in Philadelphia, at least 
 once a year, on the second Monday of July. 
 
 The compensation allowed each member of the court, was 
 six dollars for each day's attendance upon the business of 
 the court. 
 
 All matters depending in the original Court of Errors 
 and Appeals were held to be depending in the newly con- 
 stituted court, "in the same state," and the justices were 
 required to determine them. 
 
 Thus, finally constituted, the High Court of Errors and 
 Appeals existed and did business as the court of last resort 
 in Pennsylvania until the 24th of February in the year 1806, 
 
 1 Act of April 13, 1791, Smith's Laws, Vol. Ill, p. 33. 
 
 (20) 
 
when there went into effect the general Act of the Assembly 
 of that year, ■' to alter the judiciary system of the Common- 
 wealth." By the terms of this act, the jurisdiction of the 
 Supreme Court was more fully and clearly determined ; it was 
 nominated as the court of last resort, and to this end it was 
 enacted that the judges of the High Court of Errors and 
 Appeals should sustain no new cause, but should have power 
 continued to hold two terms, at which all the causes then 
 before them should be determined, whereupon the said court 
 was declared to be abolished and all its powers and duties 
 to become vested in and be exercised by the Supreme Court 
 of the Commonwealth. The records of the Court of Errors 
 and Appeals were directed to be deposited in the office of 
 the prothonotary of the Supreme Court for the Eastern Dis- 
 trict, which officer was authorized and required to receive the 
 same. It was also made the duty of the prothonotary to 
 furnish copies of these records, under the seal of his office, 
 whenever required, upon payment of the usual fees. These 
 copies were declared to be authentic evidence and as effect- 
 ual in law, as if the Court of Errors and Appeals had not 
 been abolished, and the copies had been certified by its own 
 prothonotary. 
 
 This, in brief, is the history of the rise and fall of the 
 highest Appellate Court ever known to Pennsylvania. It was 
 constituted with enthusiastic and patriotic purpose. It took 
 cognizance, from time to time, of matters of vital impor- 
 tance. Its mission passed and its usefulness departed in the 
 short space of a quarter century. It is today nothing save 
 a half-forgotten memory of the past. 
 
 As the county Youghiogany, which passed out of existence 
 when the boundary disputes between, Pennsylvania upon the 
 one hand and Maryland and Virginia upon the other were 
 finally settled, was ever after known to historians as "The 
 Lost County," so those who are familiar with the facts with 
 respect to the former existence and the fate of "The High 
 Court of Errors and Appeals," sometimes refer to it as 
 "The Lost Court of Pennsylvania." 
 
 (21) 
 
Antl now*, my' brothers, thanking you for your cheerfully 
 granted attention and the interest you have shown, and with 
 a due regard for the limits of your patience and your good 
 nature, I must for the present, perhaps for all time, cut the 
 thread of this narrative ; trusting, nevertheless, that this 
 which I have endeavored to gather, by a reasonable amount 
 of diligence, and to present with some regard to method, 
 may serve to lend an insight, however imperfect, into the 
 story of the founding and the upbuilding of these important 
 and honorable institutions of our Commonwealth and be an 
 incentive for some one to pursue the inquiry further. 
 
 (22 ) 
 
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