The Online Library of Liberty

A project of Liberty Fund, Inc.

• Lectures On Law,
• Part I.: Lectures On Law.
• Chapter XII.: Of the Common Law.
• Chapter XIII.: Of the Nature and Philosophy of Evidence.
• Part 2.: Lectures On Law.
• Chapter I.: Of the Constitutions of the United States and of Pennsylvania—of the Legislative Department.
• Chapter II.: Of the Executive Department.
• Chapter III.: Of the Judicial Department.
• Chapter IV.: Of the Nature of Courts.
• Chapter V.: Of the Constituent Parts of Courts.—of the Judges.
• Chapter VI.: The Subject Continued. of Juries.
• Chapter VII.: The Subject Continued. of Sheriffs and Coroners.
• Chapter VIII.: The Subject Continued. of Counsellors and Attornies.
• Chapter IX.: The Subject Continued. of Constables.
• Chapter X.: Of Corporations.
• Chapter XI.: Of Citizens and Aliens.
• Chapter XII.: Of the Natural Rights of Individuals.
• Part 3.: Lectures On Law.
• Chapter I.: Of the Nature of Crimes; and the Necessity and Proportion of Punishments.
• Chapter II.: Of Crimes Against the Right of Individuals to Their Property.
• Chapter III.: Of Crimes Against the Right of Individuals to Liberty, and to Reputation.
• Chapter IV.: Of Crimes Against the Right of Individuals to Personal Safety.
• Chapter V.: Of Crimes, Immediately Against the Community.
• Chapter VI.: Of Crimes, Affecting Several of the Natural Rights of Individuals.
• Chapter VII.: Of Crimes Against the Rights of Individuals Acquired Under Civil Government.
• Chapter VIII.: Of the Persons Capable of Committing Crimes; and of the Different Degrees of Guilt Incurred In the Commission of the Same Crime.
• Chapter IX.: Of the Direct Means Used By the Law to Prevent Offences.
• Chapter X.: Of the Different Steps Prescribed By the Law, For Apprehending, Detaining, Trying, and Punishing Offenders.
• Bibliographical Glossary *
• Afterword

CHAPTER III.

Of the Judicial Department.

The judicial power of the United States is vested in one supreme court, and in such inferiour courts as are established by congress.a

A court, according to my Lord Coke,b is a place where justice is judicially administered.

To Egypt, where much wisdom, we are assured, was to be learned, we trace the first institution of courts of justice. Concerning its administration, the Egyptians were remarkably vigilant and exact; for they believed, that on it depended entirely the support or the dissolution of society. Their highest tribunal was composed of thirty judges.c At the head of it was placed the person, who, at once, possessed the greatest share of wisdom, of probity, and of the publick esteem.

The trials, it is said, were carried on in writing; and, to avoid unnecessary delay, the parties were allowed to make only one reply on each side. When the evidence was closed, the judges consulted together concerning the merits of the cause. When they were fully understood and considered, the president gave the signal for proceeding to a judgment, by taking in his hand a small image, adorned with precious stones. When the sentence was pronounced, the president touched, with the image, the party, who had gained his cause. The image was without eyes; and was the symbol, by which the Egyptians were accustomed to represent Truth. It is probably from this circumstance, that Justice has been painted blind.

The judges of this court received from government what was necessary for their support; so that the people paid them nothing for obtaining justice.

We are told, that no advocates were admitted in this tribunal; but that the parties themselves drew up their own processes. This, however, must probably be understood with some limitation; for we cannot reasonably imagine, that all the inhabitants of Egypt were not only taught to write, but were also possessed of a degree of legal skill, sufficient to qualify them for composing their own defences. It is not unlikely, that the regulation went no farther than one, which we have seen adopted in another state—Every one has a right to be heard by himself and his counsel.

On the model of this high tribunal of Egypt, was formed the celebrated court of the Areopagus at Athens.1 This court was instituted, one thousand and five hundred years before the Christian era, by Cecrops,2 who was originally of Sais, a city of the lower Egypt, and to whom Athens, the seat of literature and politeness, of eloquence and patriotism, owed its foundation and first establishments.

This excellent man relinquished the fertile banks of the Nile, in order to avoid the tyranny, under which his native country, at that time, groaned. After a tedious voyage, he reached the shores of Attica: and was received in the most friendly manner by its inhabitants. Placed, after some time, at the head of their affairs, he conceived the noble design of bestowing happiness on his adopted country. For this purpose, he introduced among his new compatriots many valuable and memorable institutions, of which, indeed, he was not strictly the author—if he had, he would have been the first of legislators and the greatest of mortals—but which he brought, probably with his own judicious improvements, from a nation, who had been attentive to carry them to perfection during a long series of ages. Some of his institutions—in all of them wisdom and humanity shone conspicuous—will claim our future attention. At present, it is directed to the court of the Areopagus.

Aristides—well qualified to decide upon this subject; for he was distinguished by the appellation of the just—informs us, that this court was the most sacred and venerable tribunal in all Greece. From its first establishment, it never pronounced a sentence, which gave reasonable cause of complaint. Strangers, even sovereigns, solicited and submitted to its decisions; which contributed, more than any thing else, to disseminate the principles of justice first among the Grecians.d

The proceedings in this tribunal were, in some instances, very solemn and striking. In a prosecution for murder, the prosecutor was obliged to swear, that he was related to the person deceased—for none but near relations could prosecute—and that the prisoner was the cause of his death. The prisoner swore, that he was innocent of the crime, of which he was accused. Each confirmed his oath with the most direful imprecations; wishing that, if he swore falsely, himself, his family, and his houses might be utterly destroyed and extirpated by the divine vengeance.e

In early times, it is said, the parties were obliged to plead their causes themselves. But this severity was afterwards relaxed. Those, who were accused, might avail themselves of the assistance of counsel. The counsel, however, were never permitted, in pleading, to wander from the merits of the cause. This close and pertinent manner of speaking gave the tone to the bar of Athens, and extended itself to the speeches, which were delivered in other assemblies.f In this manner, we may naturally account for the condensed vehemence so remarkable in the orations of Demosthenes.

Let me conclude this account of the Areopagus by mentioning an incident, seemingly of slight importance, but which will not be related without producing, in my hearers, feelings in proper unison with those, which the incident occasioned. A little bird, pursued by its enemy, took refuge in the bosom of one of the judges. Instead of protecting, he stifled it. For this instance of cruelty he received punishment; and was thus taught that he, whose heart is callous to compassion, should not be suffered to have the lives of the citizens at his mercy.

You will not, after this, be surprised, when you are told, that the decisions of the Areopagus were deemed the standards of humanity, as well as of wisdom.g

In order to understand, fully and in their true spirit, the juridical institutions of the United States and of Pennsylvania, it will be of the greatest use to take a minute and historical view of the judicial establishments of England; especially those which were formed under the government of the Saxons.

Civil governments, in their first institutions, are nothing more than voluntary associations for the purposes of society. When the Saxons first settled in Britain, they found themselves obliged, by the disorders of the times, to associate, in their different settlements, for their mutual security and protection. Families, connected by consanguinity or other ties, found it agreeable, as well as necessary, to live together in the same neighbourhood, in order to enjoy the social pleasures of peace, as well as to give and receive assistance in the time of war. These societies were known by the appellation of vills or towns.h On some occasions, an association of the same kind was necessary, and it was therefore gradually introduced, between the inhabitants of a larger district. Those larger districts were distinguished by the name of hundreds.i The connexions and the exigencies of society becoming, on great emergencies, still more important and extensive, the members of different hundreds also associated together, and formed districts larger still, which were denominated shires. The officer who presided over them was called alderman or earl. Hundreders and tythingmen, as their names import, presided over the lesser associations.j

This establishment of tythings, and hundreds, and shires, though, at first, intended chiefly for the mutual defence of the inhabitants, was soon rendered subservient to other purposes, salutary and important.k The same motives which induced them to associate for their security against foreign danger, induced them also to take measures for preventing or composing internal differences or animosities. In this manner, a judicial authority was gradually assumed by every tything over the members, of which it was formed. In the same manner and upon the same principles, the hundred exercised the power of determining the controversies, which arose within the bounds of its larger district. In the same manner and upon the same principles still, the shire established a similar jurisdiction over the different hundreds comprehended within its still more extensive territory.l

These courts took cognizance of every cause, civil and criminal; and as, in the first instance, they enjoyed respectively the sole jurisdiction within the boundaries of each, they soon and naturally became subordinate, one to another: from the sentence of the tything, an appeal lay to the hundred, and from the sentence of the hundred, an appeal lay to the shire.

It deserves also to be known—for it is important to know—that, besides the defence of the country and the decision of law suits, the Saxon tythings, hundreds, and shires were accustomed to deliberate upon matters of still greater consequence. They received complaints concerning the grievances or abuses in administration, which happened within their respective districts, and applied a remedy by introducing new regulations. Thus the heads of families in every tything exercised a legislative power, within their own limits: but were liable to be controlled by the meetings of the hundred, which enjoyed the same power in a larger district: both of these were subordinate to the assemblies of the shire, which possessed a legislative authority over all the hundreds in that extensive division.m Unto the county court, says Selden,n all the freemen of the county assembled, to learn the law, to administer justice, and to provide remedy for publick inconvenience.o

As the freemen of a tything, of a hundred, and of a shire determined the common affairs of their several districts: so the union of people belonging to different shires produced a greater assembly, consisting of all the freemen of a kingdom. This national council was called the wittenagemote. The king presided. During the heptarchy, each of the Saxon kingdoms had a wittenagemote of its own: but when they were all reduced into one, a greater wittenagemote was formed, whose authority extended over the whole English nation.p Those who could not attend the wittenagemote in person, had always the right of appointing a procurator to represent them in their absence.q

The wittenagemote exercised powers of a judiciary, as well as of a legislative kind. They heard complaints concerning great quarrels and enormities, which could not be adjusted or redressed by the ordinary courts; and they endeavoured, by their superiour authority, either to reconcile the parties, or to decide their controversies. By frequent interpositions of this nature, the great council was formed into a regular court of justice, and became the supreme tribunal of the kingdom. In this tribunal, appeals from the courts of every shire, as well as original suits between the inhabitants of different shires, were finally determined.r

The original meetings of the wittenagemote were held regularly at two seasons of the year: but the increase of business, especially of that which regarded the administration of justice, rendered it afterwards necessary that its meetings should be more frequent. Occasional meetings were, therefore, convened by the king. At those occasional meetings, the nobility, who resided at a distance, seldom gave themselves the trouble of appearing. Of consequence, the business devolved on those members who happened to be at court, or who might be said to compose the privy council of the king. For this reason, they seldom undertook matters of general legislation; but confined themselves chiefly to the hearing of appeals. These smaller and occasional meetings of the wittenagemote seem to have suggested the idea of the aula regis.s

After the conquest, appeals to parliament multiplied: the members of that assembly became daily less disposed to execute this part of their duty: a regular tribunal was, therefore, formed, in order to discharge it. Of this tribunal, the great officers of the crown became the constituent members. To these were added such as, from their knowledge of the law, were thought qualified to give the best assistance.t This court received, from the place in which it was commonly held, the appellation of the aula regis.3 In its constitution, it corresponded exactly with the cour de roy,4 which, after the accession of Hugh Capet,5 was gradually formed out of the ancient parliament of France; and with the aulick council,6 which, after the time of Otho the Great,7 arose, in the same manner, out of the diet of the German empire.u

For some time after its first formation, the king, whenever he thought proper to sit as a judge, presided in the aula regis: but he, at length, ceased to discharge the ordinary functions of a judge; and the grand justiciary became, in a manner, the sole magistrate of the court.v

The institution of this court was a great improvement in the system of judicial policy. It was always in readiness to determine every controversy, criminal and civil. The reparation of injuries was secured; the expenses of litigation were diminished; and justice pervaded the remotest parts of the kingdom. It had the power of reviewing the sentences of inferiour jurisdictions; and, by that means, produced a consistency and even a uniformity of decision, in the judiciary system of the nation.w

From circumstances, however, which were the natural consequences of the introduction and progress of the feudal system in England, this court began and continued to make ambitious and unnecessary encroachments on the inferiour jurisdictions. Soon after the conquest, too, a complete separation of the ecclesiastical from the temporal courts took place. The bishop no longer sat as a judge in the court of the county; nor the archdeacon in that of the hundred. From the moment of this separation, the clergy were zealous, and they were successful, in extending their own jurisdiction, and invading that of the subordinate temporal tribunals.x By the gradual and strong operation of these causes and circumstances, the county courts, in particular, dwindled into a state of insignificance; their power was, at length, exercised only on matters of an inconsiderable value; and the greatest part of causes, civil, criminal, and fiscal, were drawn into the vortex of the aula regis, or into that of the ecclesiastical courts.y

So far as these changes related to the aula regis, the consequence of them was, that this court, at first admirably accommodated to the arrangements of the juridical system then existing in vigour, became, afterwards, defective, unwieldy, and inconvenient. It followed the king, wherever the political state of the kingdom required his presence. A court, thus ambulatory, was inconsistent with the leisure and deliberation, which are necessary for judges in forming their decisions; and it was still more incompatible with the interest of the parties, who, with their witnesses, were obliged to travel about from place to place, before they could obtain a final determination of their suits.z Besides, the great increase of judicial business, which now crowded into the aula regis, rendered the proper despatch of that business an object altogether unattainable: from this cause, therefore, as well as from the other, the administration of justice became tedious, burthensome, and expensive.

The remedies for these grievances seem to have been natural and easy—to establish the aula regis as a stationary court—and to remand a great proportion of the original causes to those tribunals, which were best fitted, in the first instance, to decide them. These remedies, however, though easy and natural, were not applied. The county jurisdictions had ceased to be objects of favour at court: and the splendour of a retinue, composed of the officers of the judicial as well as the executive department, was a gratification too fascinating to be easily relinquished.

One of the remedies, indeed, it was found necessary to adopt in part; and the remedy, even in that part, was obtained with difficulty, and was soon abridged by ingenious and favourite fictions of law. When magna charta was demanded of King John, one of the articles inserted in the important instrument was—“that common pleas should no longer follow the court of the king, but should be held in some certain and appropriated place.” When we see this regulation forming a part of that great transaction between the king and the nation, we may be fully satisfied, that it was much wished for, but could not be easily obtained. In consequence of this regulation, a court of common pleas, detached from the aula regis, was erected, and was appointed, for the future, to have a fixed and permanent residence. But though the court of common pleas obtained, in this manner, a separate establishment, and was held by separate judges, yet it was deemed inferiour in rank to the aula regis held by the grand justiciary, and in which the king still continued to sit sometimes in person; and, for this reason, was considered as subject to its decisions of review.a

There is much reason to believe, that the other remedy, so natural and easy, for lessening or removing the inconveniences, which arose from the crowd of business in the aula regis—that of reinstating the inferiour jurisdictions in their original degree of respectability—was, by no means, suffered to escape the attention of those, who obtained the great charter. One of the articles of their demand was—“that the king should promise to appoint justiciaries, constables, sheriffs, and bailiffs of such as knew the law of the land, and were well disposed to observe it.”b With this demand the king literally complied, and engaged to appoint men only of such characters.c Had this engagement continued and been fulfilled, the subordinate, and, in particular, the county establishments for the administration of justice—for to the county establishments I wish to direct your particular attention—would have gradually regained, as they gradually lost, their original dignity and importance. The uniform and uninterrupted appointment of judges, intelligent, upright, and independent—men, who, in the language of magna charta, “knew and would observe the law of the land”—would, without any farther or more explicit provision, have been amply sufficient to have attracted and secured the confidence of suitors, and, by a necessary consequence, to recover and retain the usefulness and the respectability of the courts. This engagement, however, was neither continued nor fulfilled. In the instrument confirmed by Henry the third, this, among many other important regulations of the magna charta of John, was unfortunately omitted. The county establishments, from that period to the present moment, have been despised or disregarded in England; and other establishments, less natural and less convenient to the nation, have been substituted in their place. To the view of those other establishments we now proceed.

When we consider the administration of justice in theory, it seems very susceptible of an arrangement in three great divisions. Prosecutions for crimes are easily distinguished from suits concerning property: and, in suits concerning property, the demands of government are as easily distinguished from demands of individuals. On the foundation of this specious theory, a triple division was made, in England, of the unwieldy jurisdiction accumulated in the aula regis. We have already seen, that “common pleas,” or demands of property made by individuals, were detached from that court by an article of the great charter. In the reign of Edward the first, a farther division was made of its powers; the court of exchequer was erected to decide in matters regarding the publick revenue. The cognizance of crimes was the only division now remaining to the original court. To an alteration, so material, in its jurisdiction and power, an alteration, equally material, in its establishment and name was added, and the aula regis now subsided into the court of king’s bench. This court is still, in its constitution, ambulatory; and may attend the person of the king in whatever part of the kingdom he shall be. The process of this court is in the king’s name, and must be returned before him “ubicunque fuerimus in Anglia.”d8

We now see, clearly and fully, the origin of the three great courts of common law, which, during a series of centuries, have been the ornaments of Westminster hall; and we now see, clearly and fully, the distinct principles, on which those three courts were separately erected. To the king’s bench was allotted the jurisdiction of offences and crimes: decisions concerning the property of individuals—meum and tuum, as our books express it—were committed to the court of common pleas: the enforced collection of the publick revenue was intrusted to the court of exchequer.

I conclude my inquiries respecting the juridical history of England, at a period, at which others generally begin theirs.

To the jurists of Pennsylvania, this investigation, though minute, concerning the distribution of the powers and the jurisdiction of the aula regis, is deeply interesting; nay, it is of indispensable necessity; for, by the constitution and laws of Pennsylvania, a jurisdiction, similar to the combined jurisdiction of that court, is reunited in the supreme court of this commonwealth. But along with that reunion, the measures proper for avoiding its inconveniences have been adopted. The supreme court is stationary; and juridical establishments, highly respectable, are formed in every county. These, in due course, will become the objects of particular attention.

By the historical deduction which we have made, we are now properly prepared to examine, by a particular survey, the judicial departments of the United States and this commonwealth; and to estimate, with correctness, the numerous jurisdictions, supreme and subordinate, of which those departments are composed, and upon the qualities and proportions of which, the declining or the flourishing state of those departments, and of every thing connected with those departments, must ultimately depend.

The judicial power of the national government extends—to all cases, in law or equity, arising under the constitution, the laws, or the treaties of the United States; to all cases affecting publick ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies, to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens, ore subjects.f

Besides the supreme court established by the constitution, the judicial power of the United States is, at present, vested in circuit and in district courts.

The supreme court has original jurisdiction in all cases, to which a state shall be party, and in all cases affecting publick ministers and consuls. In all the other cases before mentioned, it has appellate jurisdiction, both as to law and fact; but with such exceptions, and under such regulations, as are made by congress.g It consists of a chief justice and five associate justices; and holds annually two sessions at the seat of the national government. One session commences on the first Monday of February; the other, on the first Monday of August. Four judges are ah quorum.i

The judges, both of the supreme and inferiour courts, hold their offices during good behaviour; and, at stated times, receive, for their services, a compensation, which cannot be diminished during their continuance in office.j

The supreme court has power to issue writs of prohibition to the district courts, when they proceed as courts of admiralty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.k

Final judgments and decrees of a circuit court, where the matter in dispute exceeds two thousand dollars, may be reexamined and reversed or affirmed in the supreme court,l upon a writ of errour.m

If the validity of a statute or treaty of the United States, or of an authority exercised under them, be drawn in question, in any suit in the highest court of law or equity of a state, in which a decision of the suit could be had; and a decision is against their validity—if the validity of a statute of any state, or of an authority exercised under that state, is, in any suit in such court, drawn in question, as repugnant to the constitution, treaties, or laws of the United States; and a decision is in favour of their validity—if the construction of any clause of the constitution, of a treaty, of a statute of the United States, or of a commission held under them, is, in any suit in such court, drawn in question; and a decision is against the title, right, privilege, or exemption, specially set up or claimed by either party under such clause—a final judgment or decree, in all these cases, may, upon a writ of errour, be reexamined and affirmed or reversed in the supreme court of the United States.n

The United States are divided into circuits and districts.

The districts are, in number, sixteen: one consists of that part of the state of Massachussets, which lies easterly of the state of New Hampshire, and is called Maine district: one consists of the state of New Hampshire, and is called New Hampshire district: one consists of the remaining part of the state of Massachussetts, and is called Massachussetts district: one consists of the state of Rhode Island and Providence Plantations, and is called Rhode Island district: one consists of the state of Connecticut, and is called Connecticut district: one consists of the state of New York, and is called New York district: one consists of the state of New Jersey, and is called New Jersey district: one consists of the state of Pennsylvania, and is called Pennsylvania district: one consists of the state of Delaware, and is called Delaware district: one consists of the state of Maryland, and is called Maryland district: one consists of the state of Virginia, and is called Virginia district: one consists of the state of North-Carolina, and is called North Carolina district: one consists of the state of South Carolina, and is called South Carolina district: one consists of the State of Georgia, and is called Georgia district:o one consists of the state of Vermont, and is called Vermont district:p one consists of Kentucky, and is called Kentucky district.

These districts, except Maine and Kentucky, are divided into three circuits, the eastern, the middle, and the southern. The eastern circuit consists of the districts of New Hampshire, Massachussetts, Rhode Island, Connecticut, New York, and Vermont: the middle circuit consists of the districts of New Jersey, Pennsylvania, Delaware, Maryland, and Virginia: the southern circuit consists of the districts of North Carolina, South Carolina, and Georgia.q

In each district, there is a district court, consisting of one judge,r who resides in the district, and holds four sessions annually.s

In each district of the three circuits, two courts, called circuit courts, are annually held. These courts consist of any two justices of the supreme court, and of the district judge of the district, any two of whom constitute a quorum.tu

Over crimes and offences, committed upon the high seas, or within the respective districts, and cognizable under the authority of the United States, the district courts have jurisdiction; provided the punishment exceed not whipping with thirty stripes, a fine of one hundred dollars, or imprisonment for six months. From jurisdiction over such crimes or offences, the courts of the several states are excluded.v

The district courts have, in the first instance, exclusive cognizance of all causes of admiralty and maritime jurisdiction,w and of seizures under laws of impost, navigation, or trade; provided the seizures be made on the high seas, or within their respective districts, on waters navigable from the sea by vessels of ten or more tons burthen. But the right of a common law remedy is saved to suitors in all cases, in which the common law is competent to give it.x Of seizures on land, or on waters, other than as above described, and of all suits for penalties and forfeitures incurred under the laws of the United States, the district courts have, likewise, in the first instance, exclusive cognizance.

Of all causes, in which an alien sues for a tort only in violation of the law of nations or of a treaty of the United States, the district courts have cognizance, concurrent, as the case may be, with the circuit courts, or with the courts of the several states. They have a similar concurrent cognizance of all suits at common law, in which the United States sue, and the matter in dispute, exclusive of costs, amounts to the value of one hundred dollars. They have, exclusively of the courts of the several states, jurisdiction of all suits against consuls or vice consuls, except for offences above the description before mentioned.y

The circuit courts have concurrent jurisdiction with the district courts of the crimes and offences cognizable in the latter, and they have exclusive cognizance of all other crimes and offences cognizable under the authority of the United States, except where provision is or shall be otherwise made.

They have, concurrent with the courts of the several states, original cognizance of all civil suits at common law or in equity, where the matter in dispute, exclusive of costs, exceeds the value of five hundred dollars, and where the United States are plaintiffs, or an alien is a party, or a suit is between a citizen of the state, in which it is brought, and a citizen of another state.z

The final decrees and judgments of a district court in civil actions, where the matter in dispute, exclusive of costs, exceeds the value of fifty dollars, may, upon a writ of errour, be reexamined, and reversed or affirmed in a circuit court, holden in the same district.ab

From the foregoing detail, which was necessary, though not entertaining, we find, that as yet, only three species of courts are known to the constitution and laws of the United States; and that even to one of those species no appropriate order of judges is assigned; for the judges of the circuit courts are drawn together, in opposite directions, from the supreme court and the district. This very uncommon establishment may become the subject of some future remarks.

I proceed to take a view of the courts of Pennsylvania.

The first, which attracts our notice, is “the high court of errours and appeals.” This court was constituted by a late law. A court of the same name and of much the same kind was known in Pennsylvania, before the present constitution. This court, as at present established, consists of the judges of the supreme court, of the presidents of the courts of common pleas, and of three other persons, appointed during good behaviour, and removable in the same manner as the judges of the supreme court. Five judges form a quorum. It is empowered to decide on writs of errour from the supreme court, and on appeals from the register’s courts in the several counties of the commonwealth.c

The supreme court has been long known in Pennsylvania, though not always by the same name. By consulting the records of our laws, we shall find “an act for erecting a provincial court,” passed as early as the year one thousand six hundred and eighty four. It had power to try titles of land, to try all causes civil and criminal, both in law and equity, not determinable in the county courts, and to decide appeals from inferiour jurisdictions.d This law was continued, according to a general regulation in force at that time, from one session of the general assembly to another, till the year one thousand six hundred and ninety. From that year to the year one thousand seven hundred, there is a chasm in the laws of Pennsylvania. To those, who are conversant in the general history of the province, the reasons of this chasm are well known.

In the year one thousand seven hundred and one, a new act was passed for establishing a provincial court. By this act, the court had jurisdiction in equity by bill and answer, such as is necessary in courts of chancery, and proper in these parts.e This law was, in the year one thousand seven hundred and five, repealed by the queen in council.

In the year one thousand seven hundred and fifteen, another law was passed “for erecting a supreme or provincial court of law and equity.”f This experienced the fate of the former—it was repealed by the king in council in the year one thousand seven hundred and nineteen.

I may be permitted to remark, by the way, that such was the fate of many of the most valuable laws, which were passed in the early periods of Pennsylvania. They well deserve the attention of every one, who wishes to become a master of her juridical history. They disclose, in the most striking as well as the most authentick manner, how soon and how strongly a spirit of jealousy began to operate in the administration of the colonies.

Will it be believed, that the benefit of the great palladium of liberty—the writ of habeas corpus—was refused to be imparted to the plantations? Will it be believed, that the name of Somers9 —a name, in Europe, so dear to liberty—stands first in the list of those, by whom the tyrannick refusal was given? These things ought not to be believed without the most irrefragable testimony: if the most irrefragable testimony of their authenticity can be produced, these things ought to be both believed and published. They show how dangerous it is for freedom to depend upon her best friends for a foreign support.

In December one thousand six hundred and ninety five, the committee of plantations wrote, to the governour and council of Massachussetts, a letter on the subject of a variety of laws passed by the legislature of that colony. Many of those laws were favourable to liberty; and, among others of this spirit, there was one concerning the writ of habeas corpus. With regard to this law, the committee expressed themselves in the following manner, truly remarkable. “Whereas by the act for securing the liberty of the subject, and preventing illegal imprisonments, the writ of habeas corpus is required to be granted, in like manner as is appointed by the statute of 31. Charles II. in England; which privilege has not as yet been granted in any of his majesty’s plantations: it was not thought fit in his majesty’s absence, that the said act should be continued in force; and, therefore, the same hath been repealed.” My Lord Somers signed the letter!g

I return to the supreme court of this commonwealth.

By a law, made in the year one thousand seven hundred and twenty two, and which is still in force, a court of record was established, and styled the supreme court of Pennsylvania. To that court power is given to issue writs of habeas corpus, certiorari, and writs of errour, and all remedial and other writs and process, in pursuance of the powers given to it.h Its judges are authorized to minister justice to all persons, and exercise the jurisdictions and powers granted by law, as fully and amply as the justices of the court of king’s bench, common pleas, and exchequer, at Westminster, or any of them, can do.i It was made a doubt, whether, under the authority of this law, the supreme court could exercise original jurisdiction, and take cognizance of causes at their commencement. A law, passed a few years ago, gives it expressly original jurisdiction in enumerated cases.j

By the constitution of Pennsylvania,k the jurisdiction of the supreme court shall extend over the state; and the judges of it shall, by virtue of their offices, be justices of oyer and terminer and general gaol delivery in the several counties.

Besides the powers formerly and usually exercised by it, it has now the powers of a court of chancery so far as relates to the perpetuating of testimony, the obtaining of evidence from places not within the state, and the care of the persons and estates of those, who are non compotes mentis.l

The judges of this court hold their offices during good behaviour; but, for any reasonable cause, which shall not be ground of impeachment, the governour may remove any of them, on the address of two thirds of each branch of the legislature.m They shall, at stated times, receive, for their services, an adequate compensation, to be fixed by law; which shall not be diminished during their continuance in office.

By a law passed during the present year, the supreme court is established in the same manner, and with the same powers, as it has been heretofore established by the laws of the state, consistently with the provisions contained in the constitution.n It holds three terms in the year; one, on the first Monday in January; another, on the first Monday in April; and the third, on the first Monday ino September.p

By the constitution of Pennsylvania,q a court of common pleas, an orphans’ court, a register’s court, and a court of quarter sessions of the peace are established for each county. Before I consider these jurisdictions separately, it will be proper to premise some observations, equally applicable to them all.

Among the dispositions and arrangements of judicial power, the institution of counties has long made a conspicuous figure. The division of England into counties is generally ascribed to the legislative genius of the great Alfred. His genius was unquestionably equal to the task; but part of it was performed before his reign. A country so large as some of the kingdoms of the heptarchy could not, according to the policy and the exigencies of the times, enjoy the administration of justice without a division into subordinate districts. Accordingly, in the old laws, before the union of England under Egbert,10 we find the mention of sheriffs and shires.r But though Alfred did not commence, he undoubtedly extended the county establishments of England. Before his reign, the Danes had made extensive settlements in the northern parts of the kingdom. During some years after the commencement of his reign, they confined him within very narrow limits, and ravaged the rest according to their savage pleasure. At last, however, this great man, whom so many embarrassments surrounded, and who surmounted so many embarrassments, obliged those, who had viewed him with supercilious contempt, to acknowledge him as their superiour and lord. After his conquest over the Danes, he then settled the boundaries of the counties through every part of England. In the southern parts of the kingdom, they were, probably, laid out according to the former limits. In the northern parts, which were less fertile and more uncultivated, they were laid out on a larger scale. Hence, to this day, we find the largest counties in the north of England.

In every county, justice was administered to the inhabitants near their places of residence, without the delay and expense of resorting to Westminster.

Each of the counties or shires had, as we are told by Selden, their two chief governours for distributive justice: of these, the sheriff was the more ancient and worthy; being, in certain cases, aided by the power of the county. His office was partly judicial and partly ministerial. In the last character, he was the king’s servant to execute his writs: in the first, he regulated the courts of justice within the county. The other officer was the coroner, whose duty it was to inquire of homicide upon the view, to seize escheats and forfeitures, to receive appeals of felony, and to keep the rolls of criminal proceedings. He was chosen, as was the sheriff, from among the men of the first rank in the county.s

In those times, the county court was surrounded with numerous and respectable attendants: it was considered as the great theatre, on which the justice and the power of the county were displayed.t In those times, justice was administered principally in the county establishments; and it was only in cases of uncommon magnitude or difficulty, that recourse was had to that judicial tribunal, whose jurisdiction extended over the whole kingdom. In those times, the proceedings and decisions of the courts were simple and unembarrassed—an advantage, as a learned writer says,u which always attends the infancy of laws—an advantage, as I will venture to say, which always attends their perfection. Such have been, and such will be the true character and native consequences of county establishments, properly instituted and properly organized.

Let us now trace their origin and their progress in Pennsylvania.

In the second session of her legislature, it was enacted, that “all actions of debt, account, slander, and trespass, shall be first tried by the court of the county, in which the cause of action arises.”v In a subsequent session, it was constituted a court of equity as well as of law.w Soon afterwards the sphere of the county jurisdictions was enlarged. It was enacted, that trials of titles of lands, actions of debt, account, and slander, and all actions civil or criminal whatever (excepting treason, murder, manslaughter, and other enormous crimes) shall be first heard and determined in the proper counties by the respective justices; and that the county courts shall be held quarterly, and oftener, if there be occasion.x

These institutions fell at the chasm of legislation, which I have already mentioned; but their spirit was afterwards revived, continued, and invigorated. They received, it is true, some checks, similar to those, which were experienced by the supreme court. In the year one thousand seven hundred and fourteen, an act was passed for establishing the several courts of common pleas within the province.y It met its fate at the same time and in the same manner as the law for establishing the supreme court.

By a subsequent law, more fortunate, a court of record, styled the county court of common pleas, was established in every county, with power to hear and determine all pleas and causes, civil, personal, real, and mixed, according to the laws and constitutions of the province.z Here appears a plain separation of the civil from the criminal jurisdiction, both of which were, before this time, vested in the county courts. The criminal jurisdiction was, by the same law, transferred to a court instituted at the same time,a and styled “the general quarter sessions of the peace and gaol delivery.”b

By the constitution,c the judges of the courts of common pleas shall hold their offices during good behaviour.

I am next to consider the establishment and the jurisdiction of orphans’ courts in Pennsylvania. These are institutions of the last importance to the welfare of the commonwealth.

Among the ancients, those who studied and practised the sciences of jurisprudence and government with the greatest success, were convinced, and, by their conduct showed their conviction, that the fate of states depends on the education of youth.

History, experience, and philosophy combine in declaring—that the best and most happy of countries is that country, which is the most enlightened.

“It was a leading principle with our ancestors,” says Isocrates in his oration on reforming the government of Athens, “not to limit the education of the citizens to any particular period of life. Great pains were employed upon them during their youth; and, as they advanced to the years of maturity, they were watched with an attention still more sedulous than before. Their manners were an object of such high concern, that the Areopagus seemed instituted with no other view but to preserve them.”d It was the business of this court to appoint tutors and governours for the youth; and to take care that they were educated in a manner corresponding to their situation and circumstances.e

A similar degree of watchfulness and assiduity was bestowed upon education, in other parts of Greece. Epaminondas,11 we are told, in the last year of his life, said, heard, beheld, and performed the very same things, as at the age in which he received the first principles of his education.f

Nothing, indeed, can be of greater importance, than to conduct our children in the same manner, in which we ought to conduct ourselves.

“Custom,” says my Lord Bacon, “is the principal magistrate of man’s life. But custom is certainly most perfect, when it beginneth in young years. This we call education; which, in effect, is but an early custom. But if the force of custom, simple and segregate, be great; the force of custom, copulate and conjoined and collegiate, is far greater. For there, example teacheth, company comforteth, emulation quickeneth, glory raiseth. Certainly the great multiplication of virtues upon human nature resteth upon societies well ordained and disciplined.”g

Things are sometimes best displayed by the side of their contraries. It has been the benign aim of patriot legislators to disseminate knowledge: it has been the infernal wish of despots and the minions of despots to extinguish it. The political principles of Mr. Hobbes are well known. Such an abhorrence he contracted for popular government, and the principles of freedom, that he was anxious to see both extirpated from the face of the earth. In order to obtain this consummation, in his perverted judgment so devoutly to be wished, he recommends it to princes to destroy the Greek and Latin authors. “By reading them,” says he, “men have, under a false show of liberty, acquired a habit of favouring tumults, and of licentiously controlling the conduct of their sovereigns.”h In France, during a late reign, a minister was heard to say—“I will put an end to all schools;” and another is said to have declared—“I am tired with these publications; if I continue ten years longer in office, I am determined that no books, except the court calender, shall be printed in Paris.”i But in France, that late reign is now passed.

The same savage and tyrannick maxims have, in former times, been avowed in America. But those times are now also passed. It will not, however, be unuseful to turn our eyes back upon them; and, with the mingled emotions of disdain and conscious joy, to trace the striking contrast between the views of government in a past, and those in the present age.

In the reign of Charles the second, the lords of the committee of plantations transmitted to Virginia a series of inquiries concerning the condition of the colony. Among the answers returned by Sir William Berkeley, who was then its governour, we find the following one, too extraordinary to be passed without particular notice. “I thank God, there are no free schools, nor printing; and, I hope, we shall not have, these hundred years. For learning has brought disobedience, and heresy, and sects into the world; and printing has divulged them and libels against the best government: God keep us from both!”j By the court of Charles, this prayer was received most graciously; and, agreeably to its principle, a succeeding governour was ordered “to allow no person to use a printing press on any occasion whatsoever.”k

Very different were the principles, which animated the genius of the immortal Alfred. He considered learning and the sciences as the glory and the felicity of his reign. He founded and endowed schools: difficult as the task was in that unenlightened age, he provided those schools with proper instructors. Still farther to diffuse a taste for knowledge, and to transmit its blessings to posterity, he made a law, obliging all freeholders, possessing two hides of land or upwards, to send their sons to school, and give them a liberal education. By his own example—for he was the most accomplished scholar of his age—by his powerful recommendations of learning—for he made it the great road to preferment—he introduced among his people the most ardent pursuits after intellectual acquirements. The old bewailed their unhappiness in being ignorant; some, at a very advanced age, applied themselves to study; and all took care to procure proper instruction for their children, and their other young relations.l

According to the theory of Platom and the institutions of Lycurgus,n the care and education of children were taken entirely out of the hands of their parents. The propriety of this regulation I will not, at present, examine. Suffice it to say, that the laws ought to give every possible encouragement and assistance to the education of children; but particularly of those, who are unfortunately deprived of their parents.

We now see the reasons and the importance of establishing orphans’ courts. The first object of their jurisdiction is the education of orphans: their property is the second.

So early as the second session of the legislature of Pennsylvania, orphans’ courts were established in every county to inspect the estates, usage, and employment of orphans; “that care,” says the law, “may be taken for those, that are not able to take care for themselves.”o Their education is more immediately the object of a subsequent law, which was made in the same session.p “That poor as well as rich may be instructed in commendable learning,” it was enacted, “that all persons having children, and the guardians or trustees of orphans, shall cause them to be instructed in reading and writing; and to be taught some useful trade or profession; that the poor may work to live, and the rich, if they become poor, may not want.”

By a law still in force, orphans’ courts appoint guardians over such orphans as the court shall judge incapable, according to the rules of the common law, of choosing guardians for themselves; admit orphans, of the proper age, to choose their own guardians; and direct the binding of orphans to be apprentices to trades or other employments. But it is provided, that no orphan shall be bound an apprentice to any person, or be placed under the guardianship of any person, whose religious persuasion is different from that of the orphan’s parents.q

You will probably be surprised, that the regulations known to our laws for the education of orphans here close. You have reason for your surprise. Those regulations are, indeed, defective. To parental affection the care of education may, in most instances, be safely intrusted. But in no other principle ought the laws to repose an implicit confidence, concerning an object of the greatest magnitude, immediately to orphans, and eventually to the publick. In Sparta, one of the most respectable members of the state was placed at the head of all the children. Would not some similar institution be eligible with regard to such of them as are deprived of their parents?

The jurisdiction of the orphans’ courts, as it respects the property of orphans, will be discussed with more propriety, when we come to the second great division of the law—that, which relates to things.

By the constitution of Pennsylvania,r the judges of the court of common pleas of each county compose its orphans’ court.

I proceed to the consideration of the register’s court.

In England, the probate of wills and the granting of letters of administration belong to the jurisdiction of the ecclesiastical courts. In Pennsylvania, this jurisdiction is turned into a very different channel.

In the first session of the legislature of Pennsylvania, a registry was established for wills, for letters of administration, and for the names of guardians and executors.s

A law passed in the year one thousand seven hundred and five directed, that an officer, called register general, should be appointed for the probate of wills, and granting letters of administration. He was directed to keep his office at Philadelphia, and to constitute a deputy in each county of the province. The deputies were empowered to take probates and grant letters of administration, as amply as the register general himself could do. A will proved, or letters of administration granted, in any one county, superceded the necessity of another probate or other letters of administration in any other county.t

When objections were made, or caveats entered against the proving of any will, or granting letters of administration; and when there was occasion to take the final accounts of executors or administrators, or to make distribution of decedents’ estates, the register general and his deputies were respectively obliged to call to their assistance two or more of the justices of the court of common pleas, who were empowered and required to give their assistance, accordingly, to do all judicial acts concerning the matters before mentioned. This was the register’s court.u

The office of register general is now abolished; and, by the constitution, a register’s office for the probate of wills and granting letters of administration shall be kept in each county.v

The register of wills, together with the judges of the court of common pleas, or any two of them, compose the register’s court.w

The court of quarter sessions of the peace is the last of those courts, which, by the constitution of Pennsylvania, form the juridical establishment for every county in the commonwealth.

In England, the general or quarter sessions of the peace is a court of record held, in every county, once in every quarter of the year. It is held before two or more justices of the peace, for the execution of that authority, which is conferred on them by the commission of the peace, and a great variety of acts of parliament.

By the statute of 34 Ed. III. c. 1. the court of general quarter sessions have authority to hear and determine all felonies and trespasses whatever done in the county in which they sit. But they seldom try any greater offences than small felonies; remitting crimes of a heinous nature to the assizes, for a more publick and solemn trial and decision. There are many offences, which ought to be prosecuted in the quarter sessions, as belonging particularly to the jurisdiction of that court. Of this kind are the smaller misdemeanors, not amounting to felony; such as offences relating to the highways, taverns, vagrants, and apprentices. It has cognizance also of controversies relating to the settlement and provision for the poor, and orders for their removal. It cannot try any newly created offence, without an express authority given by the statute, which creates it.x

In Pennsylvania, the courts of quarter sessions of the peace are formed upon the model, and exercise jurisdiction according to the practice of the courts of the same denomination in England. In one important particular, however, there is a very material difference between them. The courts of quarter sessions in England are composed of the justices of the peace, who hold their commissions only during the pleasure of the crown: those in Pennsylvania are composed of the judges of the court of common pleas, who hold their commissions during their good behaviour.y

Thus much concerning the court of quarter sessions.

In each county, and in such convenient districts as are directed by law, the governour of Pennsylvania appoints a competent number of justices of the peace.z

To the common law, the conservation of the peace has always been an object of the most particular attention and regard. Long before the institution of justices of the peace was known, many officers were, ex officio, or by election, or by particular appointment, guardians of the publick tranquillity—conservatores pacis.a

When quarrels suddenly arise—when violence is committed—when riots and tumults are likely to ensue, it is vain to wait for the interposition of the ordinary courts of justice. That cannot be obtained soon enough for preventing or suppressing the disorders. It is highly important, therefore, that men of character and influence, to whom, upon any emergency, application may be easily made, should be invested with sufficient power to arrest disorderly persons, to confine them, and to preserve or restore the quiet of the country.

The peace, in the most extensive sense of the term, comprehends the whole of the criminal law. “Against the peace,” all crimes are laid to be committed. Whoever, therefore, had authority to take cognizance of crimes was, from the nature of his office, considered as a conservator of the peace. The king himself was styled its great conservator through all his dominions. His judges and his ministers of justice were also official conservators of the peace. Others were conservators by tenure or prescription. Others, again, were elected in the full county court, in pursuance of a writ directed to the sheriff. Besides all these, extraordinary conservators of the peace were appointed by commission from the king, as occasion required. They were to continue, says my Lord Bacon, for the term of their lives, or at the king’s pleasure. For this service, adds the same great authority, choice was made of the best men of calling in the county, and but few in the shire. They might bind any man to keep the peace, and be of the good behaviour; and they might send for the party, directing their warrant to the sheriff or constable to arrest the party and bring him before them.

This it was usual to do, when complaint was made, upon oath, by any one, that he stood in fear of another; or when the conservator himself saw the disposition of any man inclined to a breach of the peace, or to misbehave himself in some outrageous manner. In such cases, the conservator might, by his own discretion, send for such a fellow, and, as he should see cause, oblige him to find sureties for the peace, or for his good behaviour. If he refused to find them, a commitment to gaol would be the unavoidable consequence.

Those, who were conservators of the peace by virtue of their offices, still retain the character and power: those, who became so by election or appointment, are superseded by the justices of the peace.b

Of this institution, says my Lord Coke,c it is such a form of subordinate government for the tranquillity and quiet of the realm, as no part of the christian world hath; provided it be duly executed.

The power of the justices of the peace arises from two different sources—their commission, and acts of parliament, which have created the objects of their jurisdiction.

By his commission, every justice is appointed a conservator of the peace, and is vested with a separate power to suppress riots and affrays, to take securities for the peace or good behaviour; and for defect of sureties may commit to the common gaol or house of correction. For treason, felony, or breach of the peace, he may commit even a fellow-justice.d

The powers, which, by acts of parliament, have been conferred, from time to time, upon one, two, or more justices of the peace, are accumulated to such a degree as to form a jurisdiction of immense variety and importance. They are so many and so great that, as Sir William Blackstone observes,e the country is greatly obliged to any worthy magistrate, who, without sinister views of his own, will engage in this troublesome service. For this reason, he is protected, by many statutes, in the honest discharge of his office; and, for any unintentional errour in his practice, great indulgence is shown to him in the courts of law. On the other hand, tyrannical abuses of his office are punished with the merited severity; and all persons, who recover a verdict against him, for a wilful or malicious injury, are entitled to double costs.

In England, a justice of the peace holds his office only during the pleasure of the king: by the constitution of Pennsylvania, he holds it during his good behaviour. He may be removed on conviction of misbehaviour in office, or of any infamous crime, or on the address of both houses of the legislature.f

The presidents of the courts of common pleas, within their circuits, and the other judges, within their several counties, are justices of the peace, so far as relates to criminal matters.g

This distinction, suggested by the constitution, brings into our view a very important branch of the power of a justice of the peace. He possesses civil as well as criminal jurisdiction in Pennsylvania, and decides concerning property as well as concerning offences. This branch of his power deserves a particular consideration.

The easy, the regular, and the expeditious administration of justice has, in every good government, been an object of particular attention and care. To the attainment of an object so interesting, the distribution of the juridical powers among convenient districts is highly conducive. Such distribution, therefore, has, in many states, been made with a degree of precision suited to its importance. Every citizen should be always under the eye and under the protection of the law and of its officers: each part of the juridical system should give and receive reciprocally an impulse in the direction of the whole.

In Athens, there was a grade of magistrates, who, in the several districts, had jurisdiction of suits, when the sum in controversy did not exceed ten drachms. They had cognizance also of actions of assault and battery.h

Arbitrators likewise acted a very considerable part on the juridical theatre of Athens. There were two kinds of them. One kind consisted of those, who were drawn by lot to determine controversies, in their own tribe, concerning demands, which exceeded ten drachms in value. Their sentence was not final; for if either of the contending parties thought himself injured by it, he might appeal, for redress, to a superiour court of justice.i Arbitrators of the other kind were such as the parties themselves chose to determine the controversy between them. From the determination of these arbitrators, the law permitted no appeal. But they took an oath to give their sentence without partiality.j

We have seen and traced the importance of the county establishments. But counties are too extensive for their inhabitants to meet on every occasion. Hence the propriety of inferiour divisions.

Among the Saxons, there was a magistrate called the hundredary, who presided over that division of a shire which was called a hundred. This magistrate was known to the ancient Germans, as we find, in Tacitus,k an express reference made to his jurisdiction. The hundredary was, in virtue of his office, empowered to appoint the times and places for the meetings of the hundred court; to preside in those meetings; and to carry the sentences of the court into full execution. All the members within the hundred were originally members of the hundred court, and obliged, under severe penalties, to attend. This, however, was discovered, by experience, to be inconvenient; and, therefore, the court was new modelled by a law of the great Alfred. It was reduced to the hundredary or his bailiff, and twelve of the hundred; and these twelve were sworn, neither to condemn the innocent, nor to acquit the guilty. It was a mixed court, possessing both civil and criminal jurisdiction. Many petty causes came before it. Its proceedings were simple and summary: but if any one thought himself aggrieved by its decision, he had the right of appealing to a superiour tribunal. In this court also, sales of land, and other important transactions between members of the same hundred were published and confirmed.l

We have seen, that, in Pennsylvania, a very early attention was given to the respectable establishment of county courts. In the same session, which was the second after the settlement of the province, attention was also given to districts more circumscribed. It was enacted, that, in every precinct, three persons should be chosen yearly as peace makers in that precinct. That arbitrations might be as valid as the judgments of courts, it was directed, that the parties should sign a reference of the matter in controversy to the peace makers so chosen. This reference being ratified by the county court, the award of the peace makers was as conclusive as a judgment; and was registered in court in the same manner as other judgments.m

A farther regulation was made, also in the same session, that speedy justice might be administered to the poor, and in matters of small value. Debts under forty shillings were ordered to be heard and determined, upon sufficient evidence, by any two justices of the peace of that county, in which the cause arose. The justices were directed to report their judgment to the next county court. This judgment, if approved by the court, was to be recorded as good and binding.n Thus matters stood with regard to small debts, before the chasm of legislation, which has been repeatedly mentioned.

In the year one thousand seven hundred and five, a law was made, empowering any one justice of the peace to take cognizance of debts under the sum of forty shillings. His judgment concerning them is declared to be final and conclusive, and without appeal.o This law was repealed, but its principle was confirmed by another, made ten years afterwards.p Such is the law still with regard to debts under the sum of forty shillings.

By a law made in the year one thousand seven hundred and forty five, the jurisdiction of a single justice of the peace was extended, from sums under forty shillings, to sums not exceeding five pounds. But with regard to the exercise of the extended jurisdiction, two very salutary precautions are used. At the request of the parties, referees, named by them and approved by the justice, shall hear and examine the cause. Upon their return, the justice shall give judgment. In all cases, except those determined on the return of referees, an appeal lies from the judgment of the justice to the next court of common pleas. Upon an appeal made, the justice shall send a transcript of his judgment to the prothonotary of the court, which has the appellate, jurisdiction of the cause.q

Since the revolution,r the jurisdiction of a single justice is carried as high as debts not exceeding the sum of ten pounds.s

From this historical deduction, it is natural to observe, that the civil jurisdiction of justices of the peace seems to have been a growing favourite with the legislature of Pennsylvania. It was introduced, at first, with apparent hesitation and reserve: it was confined to sums under forty shillings: it was intrusted to two magistrates, not to one: the judgment even of two magistrates was not binding till it was approved by the county court. The same jurisdiction was afterwards intrusted to a single magistrate, conclusively and without appeal. The jurisdiction of a single magistrate has been since extended from two to five, and from five to ten pounds: with the two precautions, indeed, of which I have already taken notice.

It may be observed, and the observation certainly has weight, that experience, the best test of things, must unquestionably have witnessed in favour of this jurisdiction; otherwise it would not, in this gradually progressive manner, have been intrusted and extended. But the weight of this observation ought to be compared with that of another, which is found in the opposite scale.

We have seen who are to exercise this jurisdiction: let us now see upon whom it is to be exercised—“upon the poorer sort of people,” says the law, “who are unable to bear the expenses arising by the common method of prosecution.”t Let us suppose it possible, that a magistrate, in the exercise of his final and conclusive jurisdiction, may be guilty of gross partiality or wilful injustice; how is redress to be obtained by the unhappy sufferer under his injustice or partiality? Only by a prosecution against him. But the unhappy sufferer appeared or was brought before him, only because he was unable to bear the expense of a common prosecution. Would the prosecution of a magistrate, clothed with authority, and heretofore answering before his associates in office—would such a prosecution be less expensive? Would he, who was unable to bear the former, be strengthened in such a manner as to support the burthen of the latter? That the oppressed have suffered in silence, is no proof that the oppressed have not suffered.

Before the establishment of the present constitution, this was, in Pennsylvania, a subject of well founded alarm. One half, probably, of the personal property, which, in this commonwealth, becomes, during the revolution of a year, the subject of judicial decision, is withdrawn from the trial by jury, and committed to the summary and solitary determinations of the justices of the peace. Before the establishment of the present constitution, the single magistrates, on whom this jurisdiction was conferred, were not appointed by any respectable and responsible officer, nor chosen by any considerable part of the community, or at stated and well known times: they were elected in a corner, as occasion offered, or contrivance planned. The causes, which came before a justice chosen, and anxious to be again chosen, in this manner, were frequently suits between a party, on one side, who would have a vote at his succeeding election, and a party, on the other side, who would be entitled to no such vote. The poor and friendless part of the community—those, who were soonest ruined by oppression—those, who were least able to struggle against it—were the part selected to be delivered over, bound hand and foot, to magistrates possessing such powers, and possessing them by such means, and in such a manner. Surely, this was a subject of well founded alarm.

The cause of alarm is removed by the salutary provisions, which we find in the present constitution of the commonwealth. The justices of the peace are appointed by the governour, who, by the citizens of the commonwealth, is himself elected, and who, to the citizens of the commonwealth, is himself responsible. The justices of the peace are appointed during good behaviour; and can no longer be seduced, by a dependent situation, to disgrace themselves and their offices by sinister adjudications. Farther; they are habitually controlled by the judges of the court of common pleas. Those judges have, within their respective counties, the like powers with the judges of the supreme court, to issue writs of certiorari to the justices of the peace, and to cause their proceedings to be brought before them, and the like right and justice to be done.u

But though the cause of alarm be now removed, the cause of considerate circumspection still subsists: for it is still true, that the property decided by justices of the peace is property withdrawn from a trial by jury. The constitution suggests, indeed, that those magistrates are to exercise a civil jurisdiction; but the terms, on which, and the extent, to which that jurisdiction is to be exercised, are left, as is proper, to be marked and ascertained by the wisdom and the experience of the legislature.

Perhaps the distant view which I have taken of the hundred courts, may not have been altogether impertinent to the present subject. Perhaps it will not be impracticable, after some time, to introduce them into Pennsylvania, modified, indeed, but with modifications not destructive of their principle. Such a tribunal should not be considered as a fanciful alteration, or a wild experiment; it ought rather to be deemed a close adherence to the wisdom of the ancient plan, concerted by the great Alfred, and to the spirit of his excellent and venerable institutions. To an object of this kind, the legislature is fully competent; for the constitutionv empowers it to establish courts from time to time.

I have now made a tour through the courts of the United States, and through a number of the courts of Pennsylvania. Perhaps I ought here to make an apology for the degree of minuteness, with which I have surveyed and described them. Let me apologize by reciting an incident, which I remember to have heard in my younger years.

From the castle of Edinburgh, in Scotland, the prospect is uncommonly rich, extensive, and diversified. A young gentleman, born and educated at no very considerable distance from it, set out on his travels through Europe, with a view to notice attentively every thing, which he should find most worthy of his remark. When he was at Rome, the subject of exquisite prospects became, one day, the topick of conversation in a company of literati, to whom he had been introduced. Among others, that from the castle of Edinburgh was mentioned; and to our young traveller a reference was naturally made for a minute description of its different parts and beauties. They expressed themselves happy in so fine an opportunity of learning every particular concerning that, of which vague and general accounts had so much excited their admiration. With blushes, he was obliged to disclose the fact—that though he had resided, from his birth, near an object, which so well deserved to be known, yet he had never bestowed upon it the least share of attention, and was, therefore, totally unqualified to gratify the company by describing it. A profound silence was observed. It was not lost upon the young traveller. He returned immediately to Scotland, and acquired the knowledge of what was worthy to be known at home, before he went farther abroad in search of what was remarkable in foreign countries.

The institutions of other nations and of other times merit, most unquestionably, our perusal and our study. The travels of a young Anacharsis,12 in which the governments and laws of Sparta and of Athens are so beautifully delineated, richly deserve to be read and admired. But to us, the governments, and laws, and institutions of the United States and of Pennsylvania ought to be the constant standard, with which we compare those of every other country. How can we compare them with a standard, which is unknown?

Trusting, therefore, that the interesting nature of the things which I describe will compensate for my minuteness and for my many imperfections in describing them, I proceed to give an account of some other jurisdictions known to the constitution and laws of the United States and of this commonwealth.

Circuit courts form a part, and a very valuable part, of our juridical system in Pennsylvania. These are of two kinds—courts of nisi prius, which try issues joined in civil causes—courts of oyer and terminer and general gaol delivery, which hear and determine criminal causes.

The courts of nisi prius are derived from the supreme court; and act as its auxiliaries in the exercise of its very important jurisdiction. They decide, in the several counties, all questions of fact, which arise in civil causes depending in the supreme court. They are called courts of nisi prius from the following circumstance—The causes commenced in the courts of Westminster Hall are, by the course of those courts, appointed to be tried at their bar, by a jury returned from the county, in which the cause of action arises. But in the writ, enjoining the attendance of the jury, there is this proviso—nisi prius justitiarii ad assisas capiendas venerint—unless, before the day prefixed, the judges of assize come into the county in question. This they do: the issue joined in the cause is tried in the proper county: the verdict is taken, and returned to the court above, on the day when the jury would otherwise have been obliged to appear and try it at bar.w By this means, much trouble and expense are saved to the parties, the jury, and the witnesses.x By this wise arrangement, the investigation of the facts—a matter frequently of the greatest consequence even in civil causes, is carried on in the county, sometimes in the very neighbourhood, in which the dispute arose; while questions of law are left to be considered by a court, which, from its permanent situation, is better qualified for deciding points of difficulty and importance.

The courts of nisi prius are held between the terms of the supreme court, at such times as the judges think most convenient for they people.z

If it is highly expedient and convenient, that civil actions should be tried in the county, in which the causes of action arose; it is much more so, that criminal prosecutions should be tried in the county, in which the crimes were committed. A crime can seldom be proved in any other manner than by oral testimony. But of all the modes of proof, that which requires the attendance of witnesses from a great distance, is necessarily the most burthensome and expensive. In another view, too, it is very important, that every crime should be tried and every criminal should be punished near the place, where the guilt was contracted. One great design of punishment is to deter others from imitating the conduct, for which it is inflicted. This design is most effectually accomplished, when the same persons, who have seen the law violated, are witnesses also of the dismal consequences, by which its violation is unavoidably succeeded.

In England, crimes are generally tried before judges, who sit by virtue of two commissions from the crown. One is a commission of oyer and terminer: the other is a commission of general gaol delivery. The first is directed to the judges of the circuits, and to many others of the best account within the circuits, as we are informed by my Lord Bacon. By this commission, they are authorized to hear and determine all treasons, felonies, and misdemeanors. But this commission gives them no power to proceed upon any other indictments than those found before themselves. The second commission is directed only to the judges themselves, and the clerk of the assize associate. This commission empowers them to try and deliver every prisoner in the gaol, for whatever offence he may have been committed, or before whatever judges he may have been indicted: but, by this commission, they have authority only over those who are prisoners in the gaol.a

By the law of the land, says my Lord Coke,b this commission was instituted, that men might not be detained a long time in prison; but might receive full and speedy justice.

Commissions of oyer and terminer are either general, or they are particular, in respect of the persons, of the offences, or of the places where the offences are committed.c Sometimes, upon urgent occasions, the king issues a special or extraordinary commission of oyer and terminer and gaol delivery, confined to those offences, which demand immediate inquiry and punishment. On these, the course of proceeding is the same as on ordinary and general commissions.d

The constitution of Pennsylvania declares,e that no commission of oyer and terminer or gaol delivery shall be issued. This power is expressly excepted out of the general powers of government. The powers granted, in England, by those commissions, are, in this commonwealth, placed much better for the security and advantage of the citizens. The judges of the supreme court are, by virtue of their offices, justices of oyer and terminer and general gaol delivery in the several counties of the state. The judges of the court of common pleas, in each county, are, in the same manner, justices of oyer and terminer and general gaol delivery for the trial of capital and other offences in such county.f

We have already seen that all those judges hold their offices during their good behaviour. The judges, both of the supreme and inferiour courts of the United States, hold their offices by the same tenure. The important nature of this difference between the situation of those, who exercise criminal jurisdiction in England, and that of those, who exercise it in the United States and in Pennsylvania, was fully shown in a former lecture,g when I was engaged in drawing a parallel between the government of the United States and that of Great Britain.

You have frequently heard of the distinction between law and equity, of courts of equity, and of equitable jurisdiction and powers.

Though no court of equity subsists separately in the United States or in Pennsylvania, yet this subject demands your closest attention. It occupies an important station in the science of law.

By Aristotle, equity is thus defined—“the correction of that, in which the law is defective, by being too general.”h In making laws, it is impossible to specify or to foresee every case: it is, therefore, necessary, that, in interpreting them, those cases should be excepted, which the legislator himself, had he foreseen them, would have specified and excepted. Such interpretation, however, ought to be made with the greatest circumspection. By indulging it rashly, the judges would become the arbiters, instead of being the ministers of the laws. It is not to be used, unless where the strongest and most convincing reasons appear for using it. A strong reason for using it is drawn from the spirit of the law, or the motive which prevailed on the legislature to make it. When equity is taken in this sense, every court of law is also a court of equity. When equity is taken in this sense—and, applied to the interpretation of law, this is its genuine meaning—it is an expression synonimous to true and sound construction.i

Terms, and the relative positions of terms, are frequently too apt to mislead us. When we find a court of law and a court of equity placed in contradistinction to each other, how natural is it to conclude, that the former decides without equity, and that the latter decides without law. Such a conclusion, however, is greatly erroneous.

It has, indeed, been said, concerning a court of equity, that it determines by the spirit, and not by the letter of a rule. But ought not this to be said concerning a court of law likewise? Is not each equally bound—does not each profess itself to be equally bound—to explain the law according to the intention of those, who made it? In the interpretation of laws, whether strictly or liberally, there is not a single maxim, which is not adopted, in the same manner, and with the same force, by both courts. Hitherto, then, we find no difference between a court of law and a court of equity.

It has been supposed, that it is the peculiar and exclusive business of a court of equity to take cognizance of frauds, and accidents, and trusts. One kind of trusts, indeed—a technical, a useless, and a mischievous kind, as I shall show in the proper place—a trust created by the limitation of a second use—has been forced into the courts of equity, by the narrowness of the courts of law. But of other trusts, the courts of law take full and unreserved cognizance; particularly the very important and extensive trust of money received by one to the use of another. An action, founded on this trust, has often been compared to a bill in equity, on account of its useful and salutary influence. For accidents, too, remedy is found in a court of law: for the loss of deeds; for mistakes in payments, receipts, and accounts; for the destruction of records; and for a variety of other contingencies. For relief from other accidents, which might be specified, application to a court of law, we own, is vain; but application to a court of equity is vain also. With regard to frauds, they are as much the objects of cognizance and resentment in the courts of law, as they are in the courts of equity: a fraud in obtaining a devise of lands is always sent out of chancery to be determined at law.j Hitherto, again, we find no difference between a court of law and a court of equity.

A court of equity has been represented as bound by no precedents or rules, but as proceeding arbitrarily, according to the sentiments of the chancellor, arising from the circumstances of every particular case. But, in truth, precedents and rules govern as much in chancery as they govern in courts of law. Decrees are often founded on no other principle, than a reverence for a series of former concurring determinations. Hitherto, still, again, we find no difference between a court of equity and a court of law. The rules of property, the rules of interpretation, and the rules of evidence are, in both, the same. The systems of jurisprudence in both are systems equally laboured and artificial, and founded equally on the same principles of justice and positive law.

Let it be observed farther, that the distinction between law and equity, as administered in separate courts, is not known at present, nor seems to have been known at any former period, in any country, excepting England, and those of her colonies, who, in this instance, have imitated the practice of England. Even in England, the aula regis, anciently, as we have seen, a court of supreme jurisdiction over the whole kingdom, administered equal justice, according to the rules of equity as well as of law. In none of our very ancient authors, such as Glanvil,13 Bracton, Fleta, and Britton,14 do we find the remotest reference or allusion to the equitable jurisdiction in the court of chancery. When the aula regis, become unwieldy and cumbersome, was divided into a number of distinct courts, a court of equity, existing separately from a court of law, did not, by any means, enter into the original plan of partition.k

Whence then the origin and progress of this distinct and independent equitable jurisdiction, which, in England, has become so very extensive and important? In what material or essential points, does it differ from a jurisdiction exercised according to the rules and principles of law? These questions merit full and satisfactory answers.

In very early times, the chancellor of England was nothing more than an officer merely ministerial. He was the king’s secretary. In this character, he had the sole charge of writing the king’s letters. In the same character, he acquired the sole power of issuing the king’s writs.l These writs were necessary, not only to bring the defendant into court, but also to give the court jurisdiction over the cause. For, soon after the conquest, it became a general rule, that no plea could be held in the king’s court without the king’s writ.m As causes and the kinds of causes multiplied, the chancellor was more and more employed in issuing writs, and in framing new writs, directed to the courts of common law, in order to empower them to give remedy in cases, in which none could before be obtained.

On this subject we find an early legislative provision.n “When, in one case, a writ was found in the chancery; and, in a like case falling under the same right and requiring the like remedy, no precedent of a writ could be produced, the clerks in chancery were directed to form a new one. If they could not agree, it was adjourned to the next parliament, that a writ might be framed by the consent of the learned in the law.” This provision was made, “lest it should happen that the court of the king should be deficient in doing justice to the suitors.” Here we see the chancery fully established as the great officina brevium.15 These writs, however, were all intended to be returnable in the courts of justice. At this time, the chancery itself was not considered as a court: it is always mentioned as an office merely.o

In the reign of Richard the second, the provision, which we have just now read, was applied to a purpose, unforeseen and unexpected. Uses of land—a species, not of property, but of an artificial and mysterious claim to the advantages of property, which I shall hereafter consider minutely—began, about that time, to be introduced. The establishment of them was, to the clergy, a lucrative and a favourite object: for it would have eluded the statutes of mortmain. To accomplish this object, John Waltham,16 the bishop of Salisbury, and at that time chancellor, by a strained interpretation of the law, devised the writ of subpoena—the powerful instrument of chancery jurisdiction—and made it returnable before himself in chancery, in order to oblige a feoffee to uses to account for the profits of the land.p Successful in assuming the jurisdiction of one case, the chancellor afterwards extended it to others; and, in the time of Edward the fourth, the process by subpoena was become the daily practice of the court. Such was the origin of the equitable jurisdiction of chancery.

The description which we have given of courts of equity and courts of law, and of equitable and legal jurisdictions, is conformable to the practice and proceedings of the court of chancery and of the courts of common law in England, at present, and during the last hundred years, or the greatest part of them. But this description cannot, with propriety, be applied to the practice and proceedings of those courts at periods more remote: in those remote periods, a court of equity was considered and acted as possessing a power, altogether discretionary. “Equity,” says Mr. Selden,q “is a roguish thing. For law we have a measure: know what to trust to. Equity is according to the conscience of him that is chancellor; and as that is larger or narrower, so is equity. It is all one as if they should make the standard of measure a chancellor’s foot. What an uncertain measure would this be! One chancellor has a long foot: another, a short foot; a third, an indifferent foot. ’Tis the same thing in the chancellor’s conscience.” Similar, though not expressed, perhaps, in a similar manner, were the sentiments of the principal lawyers of that age—of Spelman, of Coke, of Lambard,17 and even of the great Bacon,r who himself held the office of chancellor, and who, of all others, appears to have been the best qualified to understand the nature of that office. This, indeed, was in the infancy, as it may be called, of the court of chancery, before its jurisdiction was settled, and when the chancellors, partly from their ignorance of law, and partly from ambition and lust of power, had arrogated to themselves such unlimited authority, as has since been totally disclaimed by their successours.

In the remote periods, which we have mentioned, while a court of equity acted and was considered as possessing powers altogether discretionary, the courts of law, on the other hand, acted upon principles, which were both narrow and unjust.s If the judges of the courts of common law had been as liberal then as they have been since, the court of chancery would never have swelled to its present enormous bulk. “I have always thought,” said the very able and learned Judge,t whose opinion I now quote, “that formerly there was too confined a way of thinking in the judges of the courts of common law; and that courts of equity have risen, because the judges have not properly applied the principles of the common law, but, being too narrowly governed by old cases and maxims, have too much prevented the publick from having the benefit of that law.” This contracted spirit, prevailing, for a long time, in the courts of common law, necessarily drove a multitude of suitors into a court of equity for relief. The doors of this court were constantly open to receive them.

I adduce an instance, familiar and striking. A double bond—a bond, with a penalty containing the double of the sum really due—is an instrument peculiar, I believe, to England, and those countries which have adopted the laws of England. It was originally contrived to evade those absurd constitutions, which interdicted the receipt or payment of interest for the use of money lent. Since interest could not be allowed by the law, as it then stood, the penalty was, in the courts of law, considered as the real debt, when the debtor did not perform his agreement at the time stipulated; and for the penalty, judgment was accordingly given. In proportion as business and trade became considerable and extended, the necessity and the propriety of paying and receiving interest became daily more apparent, and was allowed by the law; and, in the reign of Henry the eighth, it was declared, by an act of parliament, that the debt or loan itself was, “the just and true intent,” for which the obligation was given. One would naturally suppose, that this legislative declaration would have been a sufficient authority for the courts of law to alter the principle, on which their former judgments had been given. The narrow minded judges of those times thought otherwise; and, adhering wilfully and technically to the letter of the settled precedents, refused to consider the payment of principal, interest, and costs as a full satisfaction for the bond. In the courts of equity, where a more liberal spirit prevailed, the instrument, according to “its just and true intent,” was considered as merely a security for the money really due, and was discharged on its payment. But so pertinaciously, in this instance, did the courts of law cling to their precedents, even so late as the present century, that the parliament was obliged, at length, to interpose, and to direct, that what had long been the practice in the courts of equity, should, in future, be the practice in the courts of law.u

We now see the causes of the progress, which a distinct and independent equitable jurisdiction made in England.

In many instances, however, and, indeed, in the general principles of their proceedings and adjudications, the courts of law and equity have, for a century past, gradually approximated to one another. A series of eminent lawyers, who successively filled the chancellor’s chair, formed the system of equity into a regular science, which, like the science of law, cannot be acquired without the aids of study and experience. In the courts of law, a series of lawyers, equally eminent, have, by degrees, embraced the enlarged and enlightened principles, by which law as well as equity should be governed and illustrated. In chancery, it is a maxim, that equity follows the law. In the courts of law, a powerful reason for adopting a principle or rule is the consideration, that the principle or rule has been adopted in chancery. Each jurisdiction, as far as possible, follows the other, in the best and most effectual measures for attaining the great ends of certainty, peace, and justice. The suggestion, indeed, of every bill in equity, in order to give jurisdiction to the court, is still, that the complainant has no remedy at the common law. But he who views the variety and extent of the causes determined in chancery, must be satisfied that this suggestion is now a mere fiction, copied, indeed, from the realities of former times.

We are now prepared to give an answer to the second question, which was proposed some time ago—In what material or essential points, does the jurisdiction of chancery differ from a jurisdiction exercised according to the rules and principles of the common law?

They differ not, as we have seen, in the rules of property, of evidence, or of interpretation: they differ not in the principles of justice or of positive law. Still, however, they differ in some points very material, and which ought to be known.

They differ with regard to the mode of proof. By the rules of the common law, as a party cannot be a witness in his own favour, so he cannot be obliged to become a witness, or to furnish evidence, against himself. But the views of equity, with regard to this subject, are more extensive and refined. If the defendant knows the claim made upon him to be well founded, he ought neither to conceal it, nor refuse to satisfy it. If he has done nothing improperly, he can sustain no loss by a candid declaration of what he has done. If his conduct has been fraudulent, the fraud should receive no protection: but it receives protection, if it is suffered to be concealed. For these reasons, when material facts rest only in the knowledge of the party, a court of equity examines him, on oath, with regard to the truth of the transaction.

In mercantile transactions, this mode of discovery is peculiarly reasonable and important. In such transactions, the parties are generally at a distance from one another: their contracts, therefore, cannot be made in the presence of witnesses. Of such transactions, each party keeps or ought to keep a regular diary or account. On the truth and accuracy of this account, the other party may naturally be supposed to place a very considerable degree of dependence.

As this mode of discovery is unknown to the courts of law, equity has acquired a concurrent jurisdiction with those courts in all matters of account. From the same source, it has acquired a jurisdiction in matters of fraud, and judgments at law obtained by fraud or concealment.

In the courts of common law, the trial is by a jury. This trial requires, that the witnesses should give their testimony viva voce, and in open court. But in courts of equity, the mode of trial is by administering interrogatories to the witnesses, and taking their depositions in writing, wherever they may happen to reside. For this reason, the chancery alone can take proofs by commission, when the witnesses are abroad, or about to go abroad, or are prevented by age or infirmity from attending.

When a contract has been made and broken, a court of law only awards damages for the breach; but a court of equity will decree a specifick performance. It will likewise set aside deeds, and order sales and conveyances of lands.v

These are the principal, though not the only points, in which the jurisdiction of a court of equity differs materially from that of the courts of common law. I speak of those jurisdictions as considered under the aspects, under which they have been hitherto viewed. There is a particular aspect, in which they have never, so far as I know, been viewed; but to which I shall, by and by, direct your minute attention.

In the mean time, it will be proper to consider a question, which has employed the talents of the most eminent writers on jurisprudence. Should the jurisdiction according to equity, and the jurisdiction according to law, be committed to the same court? or should they be divided between different courts?

My Lord Bacon thinks that they should be divided: my Lord Kaims thinks that they should be united. All this is very natural. My Lord Bacon presided in a divided, my Lord Kaims was a judge in a united jurisdiction. Let us attend to their arguments: the arguments of such consummate masters will suggest abundant matter of instruction, even if we cannot subscribe to them implicitly.

The reason assigned by my Lord Bacon for preferring the division of these jurisdictions between several courts is, that if they are committed to the same court, the distinction between them will soon be lost; for that the discretionary will soon draw along with it the legal power.w

My Lord Kaims admits, that, in the science of jurisprudence, it is undoubtedly of great importance, that the boundary between equity and common law be clearly ascertained; because, otherwise, we shall in vain hope for just decisions. A judge, adds he, who is uncertain whether the case belong to equity or to common law, cannot have a clear conception what judgment ought to be pronounced. But, on the other hand, may it not be urged, that to divide, among different courts, things intimately connected bears hard upon every man, who has a claim to prosecute; because, before he bring his action, he must, at his peril, determine a point extremely nice—whether the case is to be governed by equity, or by common law? Nor is the most profound knowledge always sufficient to prevent inconveniences upon this subject: for, though he may be perfectly acquainted with his own demand, he cannot certainly foresee the defence, nor divine whether it will be a defence at law or in equity. Weighing these different arguments, the preponderancy seems, in his opinion, to be on the side of a united jurisdiction. The sole inconvenience of a united jurisdiction—that it tends to blend common law with equity—may admit a remedy by an institute, distinguishing, with accuracy, their boundaries: but the inconvenience of a divided jurisdiction admits not any effectual remedy.x

Both these great men agree in one point—that the distinction between common law and equity ought, by all means, to be preserved; and one of them recommends even an institute to distinguish their limits with accuracy. With the becoming deference to such high authority, it may be worth while to examine, whether, in the fluctuating situation of men and business, an attempt to fix permanently the line of division between law and equity would not be fruitless and impracticable. This line, I am apt to believe, will be found to change necessarily according to different circumstances—the state of property—the improvement of the arts—the experience of the judges—the refinement of the people.

In rude ages, the first decisions of judges arose, probably, from their immediate feelings; in other words, from considerations of equity. In the course of their business, many similar cases would successively occur: upon these, similar decisions would naturally be given. A number of precedents, thus introduced, would, from the power of custom, acquire authority and respect. General rules would gradually be formed; and the utility of establishing them would become an object of attention. Those rules, however, upon a little further experience, would be found, at some times, too narrow; at other times, too broad. To adhere rigidly to them, at all times, would be to commit injustice under the sanction of law. To avoid an evil so alarming, it would be thought advisable, upon extraordinary occasions, to recede from general maxims, and to decide, as originally, according to the immediate sentiments of justice. In this manner, the distinction between equity and strict law was, probably, introduced: the former comprehended the established rules: the latter comprised their exceptions.

But when the exceptions became numerous, many of them also would be found to be similar, and, consequently, to require a similar decision. Those similar decisions would, in time, produce a new rule; and this new rule would, in its turn, give birth to new exceptions.

If this account of the matter is just—and it seems to be natural—law and equity are in a state of continual progression; one occupying incessantly the ground, which the other, in its advancement, has left. The posts now possessed by strict law were formerly possessed by equity; and the posts now possessed by equity will hereafter be possessed by strict law.

In this view of the subject—and it is an interesting one—equity may be well deemed the conductor of law towards a state of refinement and perfection.

In this view of the subject, we can find no difficulty in pronouncing, that every court of law ought also to be a court of equity; for every institution should contain in it the seeds of its perfection, as well as of its preservation.

In this view of the subject, we shall find as little difficulty in pronouncing, that every court of equity will gradually become a court of law; for its decisions, at first discretionary, will gradually be directed by general principles and rules. Thus, in England, the court of chancery has gradually devested itself of its original and arbitrary character, and has approached to that of the courts of common law. Thus, again, in England, the courts of common law, animated lately with the spirit of improvement inspired by a liberal age, have enlarged their powers of just decision, and have advanced within the precincts of equity.

The particulars, in which they still differ, are, indeed, of importance; but I see no reason why the separate powers of chancery, placed there very properly, indeed, should be thought incommunicable to the courts of common law.

A power to compel discoveries by a party may, without any incongruity, be annexed to a common law jurisdiction. This, to a certain degree, has been already done by a law of the United States. In the trial of actions at law, the courts of the national government are authorized to require the parties to produce books or writings in their power, in cases, in which they might be compelled to produce them by the ordinary rules of proceeding in chancery.y

The power of granting commissions to take, upon interrogatories, the depositions of foreign, removing, or infirm witnesses is familiar, in practice, to the courts both of the United States and of Pennsylvania.

The power of compelling a specifick performance is, I apprehend, strictly and originally a power at the common law. In some of its unpropitious eras, indeed, the exercise of this part of its authority has, in most cases, fallen into disuse, and has not been revived, but anciently it subsisted in its full force and vigour; and, in one case, it is supposed to subsist in its full force and vigour to this day. I fortify my opinion by instances of the fact.

Fines, or solemn agreements acknowledged and entered of record, are well known to be of very high antiquity at the common law. It is generally, I believe, supposed, that they took place only in pleas respecting land. But the fact is unquestionably otherwise. Fines were executed in other pleas. If either of the parties violated the agreement, a suit upon it was commenced. When they both appeared in court; if they both acknowledged the writing containing the agreement; or if the agreement was stated to be such by the justices, before whom it was taken, and this was testified by their record; then the party, who had broken it, was in the king’s mercy, and was attached till he gave good security to perform the concord in future—either the specifick thing agreed on, if that was possible; or otherwise, in some instances, an equivalent.z Can a power to adjudge a specifick performance be expressed more unequivocally or more strongly? This instance is referred to a period so ancient as the reign of Henry the second.

In the reign of Edward the first, we find that, in some cases, land could be recovered in a writ of covenant; and in such cases, it was a real action: in other cases, damages only could be recovered; and in such cases, it was a personal action. The former writ of covenant was generally that, on which fines were levied.a Actions of covenant for land occur likewise in the time of Edward the second. It was held, that this action was appropriated for the recovery of a fee simple or of a term.b

In tracing this subject down to the reign of Edward the third, we find that a writ of covenant was that, upon which fines were most commonly levied. But, by this time, the writ of covenant was usually brought upon a supposed transaction. The writ of covenant, in this instance, had the effect of actually transferring the land; and thus produced a specifick effect.c Such, with regard to fines, continues to be the practice to the present day.

I think I have now proved, that the power to adjudge a specifick performance is strictly and originally a power at common law.

The power to set aside deeds, and to order sales and conveyances of land, can be considered only as branches of the power to compel a specifick performance.

In all the views which we have hitherto taken of this important part of jurisprudence, we find no reason to conclude, that a court of chancery would bestow any improvement of essential importance, on the juridical system of the United States, or of this commonwealth.

There is, however, another view, in which this subject ought to be considered. In that other view, if I mistake not, the establishment of a court of chancery will be found a matter of great moment both to the United States and to Pennsylvania.

Military power has too long governed in the affairs of men: influence of a kind more peaceful and benign is, we hope, about to assume its place. We trust that, in future, men, instead of knowing and treating one another as enemies, and as engaged in enterprises mutually destructive, will know and treat one another as friends, and as jointly operating in plans and systems for promoting the prosperity, the virtue, and the felicity of the human race.

Deeds of arms, we fondly anticipate, will not be the themes of future songs. The more delightful subjects of agriculture, of the arts, and of commerce will employ the efforts of genius the most sublime.

Commerce arrests our present attention. Its encouragement is justly a favourite object with every government, which is good and wise. The protection of commerce, and of foreign merchants engaged in commerce, forms an article in the great charter of the liberties of England. A regulation, so salutary and so humane, deserves, as it has obtained, the warmest eulogium of the eloquent Montesquieu. Upon this subject, his powers carried him away like a torrent, rapid and irresistible: my humbler aim is to glide along a smooth and gentle stream.

The law merchant as well as the law maritime forms a branch of the general law of nations. The inference is natural, that mercantile as well as maritime transactions should be the object of a separate jurisdiction; and that we should see courts of commerce as well as courts of admiralty. Things done upon the sea are deemed worthy of peculiar cognizance: are things done beyond the sea less entitled to peculiar notice?

In the rude and barbarous times, which are past, and which, we pray, may never return—in those times, above alluded to, when nations were known to nations only by feats of hostility; even their hostile feats were subjected to the cognizance of law, and were dignified with an appropriate jurisdiction. The court of chivalry, held before the lord high constable and earl marshal of England, had cognizance of contracts and deeds of arms and of war out of the realm, and also of things which touched war within the realm.d When war was the general trade, this court enjoyed a high degree of consequence and reputation. My Lord Coke calls it “the honourable court.” As commerce comes in the place of war, should not commercial come in the place of military institutions?

Even with regard to commerce, we shall find, in former ages, establishments expressly made and calculated for its protection and encouragement, in the manner in which it was then carried on. This was chiefly in markets and publick fairs, at which merchants attended personally with their merchandise. It was not then usual to trust property to a great amount in the hands of foreign correspondents.

So early as the reign of Henry the third, we find the delays, and what were called the solemnities, of proceedings dispensed with, where the plaintiff deserved a particular respect or privilege; as noble persons, or merchants, who were continually leaving the kingdom.e

Edward the first18 has been often and deservedly styled the English Justinian. In his reign we may expect to find a proper attention paid to the interests of commerce. Our expectation will not be disappointed. In his reign the statute of merchants was made.

The pressing demands, which arise in the course of mercantile transactions, rendered the delays and the niceties of the law inconvenient, and sometimes fatal, to the credit and fortunes of the merchants. This, it is said, occasioned many to withdraw from the kingdom. Those, who remained, made application that some speedy course might be appointed for recovering their debts at the stipulated times of payment. In compliance with their application, the following method of securing a ready payment of their debts was provided by parliament. The merchant was to bring his debtor before the magistrates specified in the law, to acknowledge the debt and the time of payment. This recognisance was entered on a roll. If the debtor did not make payment at the time appointed, the magistrate, before whom the recognisance was acknowledged, was, on the application of the creditor, obliged immediately to cause the chattels and devisable lands of the debtor to be sold, to the amount of the debt, by the appraisement of honest men. The money, if the property was sold, was paid instantly to the creditor: if the property could not be sold, it was delivered to him according to the appraisement. If, from partiality to the debtor, the appraisers set too high a price upon the goods, they were themselves obliged to take them at the price which they fixed, and to satisfy the creditor for the money due to him.f

Commerce continued to be patronised by the kings, and encouraged by the legislature, of England. In the twenty seventh year of Edward the third,19 was made the famous statute of the staple, containing a most complete code of regulations for commercial transactions at the staple, or great mart, which was then established in certain places of England.

As this mart was intended, in its very institution, for the resort of foreign merchants, a mode, consonant to the ideas of foreigners, and fitted to the nature of mercantile transactions, was adopted for administering justice. That disputes might be decided among them according to their own conceptions, it was provided, that none of the justices of the courts of Westminster Hall, nor any other justices, if they came to the places where the mart was, should interfere with the jurisdiction of the mayor and constables of the staple. Within the town where the mart was, those officers had cognizance of people and of things touching the mart. All merchants coming to it, and their servants, were, in all things concerning it, governed by the law merchant, and not by the common law of the land, nor by the usages of cities, or boroughs, or towns; nor were they, concerning such things, to implead or be impleaded before the magistrates of such cities, boroughs, or towns. That the foreign merchants might have reason to complain of no one, and that no one might have reason to complain of them, speedy justice was administered from day to day, and from hour to hour.

That contracts made within the staple might be strictly observed, and that payments might be punctually made, a course similar to that of the statute merchant was directed. The mayor of the staple was empowered to take similar recognisances of debts; and upon those recognisances, similar proceedings were held. A recognisance of this kind has obtained the name of a statute staple.g

It was directed that, in every staple town, the mayor should be one well acquainted with the law merchant, that he might be qualified for the discharge of such an important trust.h

If we refer to the institutions of the ancient nations; we shall find that, among them too, tribunals have been established for the decision of mercantile causes. Magistrates, called ναυτοδικαι, had the jurisdiction of them in Athens.i The praetor peregrinus determined them in Rome.j Even after the fall of the western empire, the institution of courts for the trial of commercial suits subsisted in many places:k and fairs and markets had their peculiar jurisdictions assigned for the expeditious determination of controversies that might arise in them.

The United States have the most extensive prospects of commerce before them. The variety of their climate, the richness of their soil, the number and value of their productions furnish them with abundant materials to exchange for the manufactures and refined commodities of Europe and of Asia. The genius of their governments is favourable to trade, because it is favourable to equality and industry, the only pillars, on which trade can be supported. The long and cumbrous list of duties and customs, which publick debts, the arts of finance, and the political views of government have introduced into every country of Europe, is, in a great measure, unknown in their ports. They possess not, indeed, the advantages of use and habit to form precedents for their transactions, publick and private, with foreign nations, and with the individuals of whom foreign nations are composed: but to compensate for this, they are disengaged from one inconvenience, with which use and habit are naturally accompanied—I mean that of confining the imagination, and damping the spirit of vigorous and enlarged enterprise. In order to improve the opportunities, with which they are favoured, and to avail themselves, as they ought, of the happy situation, in which they are placed, they should encourage commerce by a liberal system of mercantile jurisprudence.

These observations concerning the situation, the duty, and the interest of the United States, receive an easy and a strong application to the situation, the duty, and the interest of Pennsylvania.

In other countries, as we have seen, where commerce has been regarded as an object worthy of the publick attention, jurisdictions have been established for the trial and determination of commercial causes. In the United States and in Pennsylvania, commercial causes are tried in the same manner, by the same tribunals, at the same expense, and with the same delay, as other controversies relating to property. This must be often productive of the most serious disadvantages.

Before the revolution, we were strangers, in a great measure, to what is properly called foreign commerce. The same system of commercial law pervaded Great Britain and her colonies. The rules, therefore, of admitting foreign testimony, and of authenticating foreign transactions, have been but lately the objects of much consideration. They have not been fixed with the clearness and precision, which are now become requisite. But they should, as soon as possible, be ascertained, particularized, and rendered as easy as the precautions necessary to avoid fraud will admit.

Great innovations should not be made: a wise and well tempered system must owe much to experience. But the foundations should be laid betimes. They should be broad, and deep, and well compacted, that they may be sufficient to support the magnificent structure, which the present and future ages will build upon them.

The important ends, which may be attained by a court of chancery formed and organized for commercial purposes, now begin to appear in prospect before us. In this view, the establishment of courts of chancery appears to be of high importance to the United States in general, and to the commonwealth of Pennsylvania in particular.

It will not, I am sure, be supposed, that I am unfriendly to the trial by jury. I love—I admire it: but my love and my admiration spring from proper principles: I love and I admire with reason on my side. Sacrilege would be offered to the venerable institution, by profaning it to purposes, for which it was never intended. Let it be maintained in purity—let it be maintained in vigour: but if it be so maintained, it must be maintained in that spirit, and in that application, for which it was formed, and to which it is so exquisitely adjusted. Its genius should be encouraged and concentred: if it be applied to foreign and unnatural objects, its strength will soon dissolve and evaporate.

Let us attend to the nature of mercantile transactions. Accounts never were, by the course of the common law, brought to trial before a jury. To a jury, indeed, the general question—ought the party to account—was submitted for its determination. But the adjustment of the accounts was submitted to auditors, instead of being tried by a jury. If, upon any article in account, the auditors cannot agree; or, if agreeing, the parties are not satisfied; then, upon each point, so litigated, a separate and distinct issue may be taken, and that issue must be tried by a jury. In this manner, a hundred issues may be joined in the same cause, and tried separately by as many juries; but the general statement of the disputed accounts still remains before the auditors, and by them the general result from the whole must be formed and ascertained. This mode of liquidating accounts judicially at common law, is obviously exposed to many disadvantages and delays; and, for this reason, the action of account has, in a great measure, fallen into disuse. In England, the parties in unsettled and litigated accounts have recourse to chancery; in Pennsylvania, to arbitrators, or to jurors acting in the character of arbitrators.

The numerous embarrassments, which arise from the want of a proper commercial forum, are well known and severely felt both by the gentlemen of the bar, and by the gentlemen of the exchange.

Impressed with these truths, the committee who were appointed to report a draught of a constitution for the consideration of the late convention of Pennsylvania, included, in their report, the plan of a chancery establishment. The convention thought it improper to fix that establishment as a part of the constitution, but have given ample powers to the legislature to adopt that or any similar one, and to model and alter it as the sage instructions of time may direct.

Impressed with these truths, which I have both witnessed and experienced, I have thought it my duty to bring this important subject fully into your view. Viewed in a commercial light, Pennsylvania, and particularly her metropolis, attracts solicitous attention both on this and on the other side of the Atlantick. Every friend to Pennsylvania, every friend to her metropolis, every enlightened friend to the interests of commerce, must wish ardently to see her commercial establishments complete. These observations apply to the United States on a scale still more extensive; and, as applied to them, therefore, acquire still an additional degree of importance.

With these observations I conclude, at last, my minute delineation—if drawn in a more masterly manner, it would be interesting as well as minute—of the juridical establishments of the United States and of Pennsylvania.

[a. ]Cons. U. S. art. 3. s. 1.

[b. ]1. Ins. 58.

[c. ]1. Gog. Or. L. 55.

[1. ]The Areopagus was the chief homicide court of ancient Athens.

[2. ]Cecrops I was the mythical Greek king who founded Athens.

[d. ]2. Gog. Or. L. 16. 21. 1. Anac. 11.

[e. ]1. Pot. Ant. 106.

[f. ]2. Gog. Or. L. 23.

[g. ]2. Anac. 290.

[h. ]Millar. 113.

[i. ]Millar. 117.

[j. ]Id. 117. 114.

[k. ]Id. 121.

[l. ]Id. 122.

[m. ]Millar. 130.

[n. ]Bac. on Gov. 42.

[o. ]A striking analogy will sometimes be found where it is least to be expected. The empire of Peru was divided into small districts, each consisting of ten families: five of these constituted a higher class: two of these composed a third class, called a hundred; ten hundreds formed the great class of a thousand. Over each of these a superintending officer was appointed to administer justice, and to provide, that those committed to his care should be furnished with the means of industry and the necessaries of life.

Between two governments, so remote from each other in time and place, this analogy could not have been the effect of imitation: it must have been the native result of similar states and circumstances of society. Bever. 7, 8.

[p. ]Millar. 132.

[q. ]Id. 143, 144.

[r. ]Id. 150.

[s. ]Millar. 242. 243.

[t. ]Id. 316.

[3. ]King’s hall or palace.

[4. ]The royal court of France.

[5. ]Hugh Capet (938–996) was the King of France from 987 to 996.

[6. ]The Aulic Council was one of two supreme courts for the Holy Roman Empire.

[7. ]Otto I the Great (912–973) was emperor of the Holy Roman Empire.

[u. ]Id. 317.

[v. ]Millar. 318.

[w. ]Id. 324. 325.

[x. ]Id. 331.

[y. ]Millar. 326. 331.

[z. ]Id. 421. 422.

[a. ]Millar. 424.

[b. ]Bl. 8. art. 42.

[c. ]Id. 18. art. 45.

[d. ]3. Bl. Com. 41.

[8. ]Wherever we may be in England.

[e. ]Cons. U. S. art. 3. s. 2.

[f. ]The supreme court of the United States, in the case of Chisholm v. the state of Georgia (2 Dall. 419.) decided, that under the clause of the constitution which extends the judicial power of the United States to controversies “between a state and citizens of another state,” a state was liable, asdefendant, to a suit commenced by such citizens. But by the eleventh article of the amendments to the constitution, it is declared that “the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.” Vide post. ch. 4. Ed.

[g. ]Cons. U. S. Art. 3. s. 2.

[h. ]Laws. U. S. 1. con. 1. sess. c. 20. s. 1.

[i. ]By an act of congress passed 29th April, 1802, the supreme court is to hold but one session annually, commencing on the first Monday in February. Four of the justices form a quorum. If four shall not attend within ten days after the time appointed for the commencement of the session, the business shall be continued to the next stated session; but any one or more of the justices may make all necessary orders preparatory to the hearing, trial, or decision of any case returned to or depending in the court. The August session is abolished; but one of the justices is directed to attend at the seat of government on the first Monday of August annually, and has power to make all necessary orders in any case returned to or depending in the court, preparatory to the hearing, trial, or decision. Writs and process may be returnable on the first Monday in August, in the same manner as to the February session, and may also bear teste on that day, as though a session of the court was holden. Laws. U.S. 7. con. 1. sess. c. 31. s. 1. 2. Ed.

[j. ]Cons. U. S. art. 3. s. 1.

[k. ]Laws. U. S. 1. con. 1. sess. c. 20. s. 13.

[l. ]Laws. U. S. 1. con. 1. sess. c. 20. s. 22.

[m. ]See the case of Wiscart et al. v. Dauchy, (3. Dall. 321. 327) in which the supreme court of the United States decided, that causes of admiralty and maritime jurisdiction and suits in equity, as well as other civil actions, could be removed from the circuit into the supreme court by writ of errour only, and not by appeal; and that therefore nothing was removed for reexamination but the law. By an act of congress since, passed (7. con. 2. sess. c. 93. s. 2.) it is provided that an appeal shall be allowed to the supreme court of the United States from final judgments or decrees rendered in the circuit court in cases of equity, of admiralty and maritime jurisdiction, and of prize or no prize; where the matter in dispute, exclusive of costs, shall exceed the value of two thousand dollars. No new evidence, however, can be received in the supreme court on the hearing of the appeal, except in admiralty and prize causes. Ed.

[n. ]Laws. U. S. 1. con. 1. sess. c. 20. s. 25.

[o. ]Id. 1. con. 1. sess. c. 20. s. 2.

[p. ]Laws U. S. 1. con. 3. sess. c. 12. s. 2.

[q. ]Id. 1. con. 1. sess. c. 20. s. 4.

[r. ]Id. s. 3.

[s. ]For the alterations which have been made in the distribution of the United States into districts and circuits, and in the sessions of the district courts, the number of which now varies in different districts, see Laws U. S. 3. cong. 1. sess. c. 54. 7. cong. 1. sess. c. 31. 7. cong. 2. sess. c. 60. Ed.

[t. ]Laws U. S. 1. con. 1. sess. c. 20. s. 4.

[u. ]The circuit courts now consist of one of the judges of the supreme court and the judge of the district; either of whom may hold the court. In cases removed from a district to a circuit court by appeal or writ of errour, judgment shall be rendered in conformity to the opinion of the judge of the supreme court. In other cases, if the opinions of the judges shall be opposed, the question respecting which they disagree shall, during the same term, at the request of either party or their counsel, be stated under the direction of the judges, and certified to the supreme court, by whom it shall be finally decided; and their decision and order shall be remitted to the circuit court, and be then entered of record, and shall have effect according to the nature of the decision or order. No punishment shall, in any case, be inflicted, when the judges are divided in opinion on the question respecting it—Laws U. S. 7. cong. 1. sess. c. 31. s. 4. 5. 6. Ed.

[v. ]Laws U. S. 1. con. 1. sess. c. 20. s. 9.

[w. ]Every district court in the United States possesses all the powers of a court of admiralty, whether considered as an instance or as a prize court. 3. Dall. 16. Ed.

[x. ]Laws U. S. 1. con. 1. sess. c. 20. s. 9.

[y. ]Id. ibid.

[z. ]Laws U. S. 1. con. 1. sess. c. 20. s. 11.

[a. ]Id. s. 22.

[b. ]By the 21st. section of the same act, an appeal to the circuit court was allowed from final decrees in a district court in causes of admiralty and maritime jurisdiction, where the matter in dispute exceeded the value of three hundred dollars exclusive of costs. By a later act (7. cong. 2. sess. c. 93. s. 2.) it is provided that from all final judgments or decrees in any of the district courts of the United States, an appeal, where the matter in dispute, exclusive of costs, shall exceed the value of fifty dollars, shall be allowed to the circuit court for the same district. Ed.

[c. ]3. Laws Penn. 97. s. 17.

[d. ]R. O. book A. p. 71.

[e. ]R. O. book A. vol. 1. p. 110.

[f. ]R. O. book A. vol. 2. p. 109.

[9. ]John Somers (1651–1716), the first Baron Somers, was a prominent English legal author and statesman.

[g. ]Chal. 74.

[h. ]1. Laws Penn. 179. s. 11.

[i. ]Id. 180. s. 13.

[j. ]2. Laws Penn. 472. s. 4. 5.

[k. ]Art. 5. s. 3.

[l. ]Cons. Penn. art. 5. s. 6.

[m. ]Cons. Penn. art. 5. s. 2.

[n. ]3. Laws Penn. 92. s. 1.

[o. ]Id. ibid.

[p. ]The terms of the supreme court now commence on the first Mondays in March, September, and December. March term continues three weeks; September term, two weeks; and December term four weeks. The first and last days of each term are return days. 5. Laws Penn. 166. Ed.

[q. ]Art. 5. s. 1.

[10. ]King Egbert of Wessex (c. 770–839) was king from 802 to 839 and oversaw Wessex’s rise to become the most powerful of the Anglo-Saxon kingdoms.

[r. ]Sulliv. 245.

[s. ]Bac. on Gov. 40, 41.

[t. ]Forum plebeiae justitiae, et theatrum comitivae potesatis. Spel. Gloss. v. comitatus.

[u. ]4. Bl. Com. 407.

[v. ]R. O. Book A. p. 32.

[w. ]Id. p. 70.

[x. ]Id. p. 84.

[y. ]Id. vol. 2. p. 112.

[z. ]1. Laws Penn. 182. s. 21.

[a. ]See R. O. Book A. vol. 2. p. 90.

[b. ]1. Laws Penn. p. 176. s. 3.

[c. ]Art. 5. s. 2.

[d. ]Gil. Lys. & Isoc. 487.

[e. ]1. Pot. Ant. 104.

[11. ]Epaminondas (c. 418–362 bc) was a brilliant Theban general who overthrew Spartan dominance in the Peloponnese.

[f. ]Mont. Sp. L. b. 4. c. 4.

[g. ]3. Ld. Bac. 357. 358.

[h. ]Lev. P. 2. c. 21. 1. Shaft. Char. 88.

[i. ]Fr. Rev. 266.

[j. ]Chal. 328.

[k. ]Id. 345.

[l. ]2. Henry 356.

[m. ]4. Anac. 341.

[n. ]Id. 163.

[o. ]R. O. Book A. p. 34.

[p. ]Id. p. 46.

[q. ]1. Laws. Penn. 101. s. 7. 102. s. 12.

[r. ]Art. 5. s. 7.

[s. ]R. O. Book. A. p. 18.

[t. ]1. Laws. Penn. 56. s. 8.

[u. ]R. O. book A. vol. 2. p. 43.

[v. ]Cons. Penn. art. 5. s. 11.

[w. ]Id. art. 5. s. 7.

[x. ]Wood. Ins. 499. 4. Bl. Com. 268.

[y. ]Cons. Penn. art. 5. s. 7. 2.

[z. ]Cons. Penn. art. 5. s. 10.

[a. ]Millar, 433.

[b. ]4. Ld. Bac. 59. 99. 1. Bl. Com. 349. 2. Reev. 122.

[c. ]4. Ins. 170.

[d. ]Wood. Ins. 80.

[e. ]1. Bl. Com. 354.

[f. ]Cons. Penn. art. 5. s. 10.

[g. ]Id. art. 5. s. 9.

[h. ]Gil. Lys. & Isoc. 489. 1. Pot. Ant. 122.

[i. ]1. Pot. Ant. 122.

[j. ]1. Pot. Ant. 123.

[k. ]De mor. Ger. c. 12.

[l. ]Bac. on. Gov, 42, 43. 2. Henry. 241. 242.

[m. ]R. O. Book A. p. 29.

[n. ]Id. p. 34.

[o. ]Id. vol. 1. p. 154.

[p. ]1. Laws Penn. 113, 114.

[q. ]1. Laws Penn. 305. s. 1. 307. s. 7. 8.

[r. ]2. Laws Penn. 304.

[s. ]By a law passed in the year one thousand seven hundred and ninety four (3. Laws Penn. 536.) the jurisdiction of the justices of the peace was extended to actions of debt and other demands not exceeding twenty pounds, under the regulations and exceptions contained in the act of 1745. An appeal from the judgment of the justice to the court of common pleas was allowed only in cases, where the debt or demand exceeded five pounds. Either party might, before judgment given by the justice, elect to have the cause tried in the court of common pleas, if the debt or demand exceeded ten pounds.

By the present constitution of Pennsylvania (art. 9. s.6.) it is declared, “that trial by jury shall be as heretofore, and the right thereof remain inviolate.” This constitution was adopted in the year 1790. At that time, the jurisdiction of justices of the peace, (before whom a trial by jury cannot be had) was confined to cases of debt and contract not exceeding ten pounds; and even of such cases, some, in which unliquidated damages were claimed, were excepted out of their jurisdiction. In cases of torts, they possessed no jurisdiction whatever. The law of 1794 was early opposed, as repugnant to the above mentioned provision of the constitution, which, it declared, “was excepted out of the general powers of government,” and should “for ever remain inviolate.” (Art. 9. s.26.) A respectable minority in the house of representatives protested against the act, at the time it was passed in that house, on this, among other grounds. (Jour. H. Rep. 23d. Feb. 1793.) No judicial determination on the subject has taken place. It was once brought before the supreme court of the state; but the law, which was temporary, expiring, the judges declined pronouncing a decision.

The attachment of the legislature, however, to the jurisdiction of the justices of the peace, has continued and increased. By a law passed at their last session (March 1804.) which repeals all the prior laws above mentioned, that jurisdiction has been extended to all cases of debts, and of demands for damages on promises of whatever kind, not exceeding the amount of one hundred dollars. (s. 1.) But it is declared, that their jurisdiction shall not be construed to extend to actions of ejectment, of replevin, on real contracts for the sale or conveyance of lands or tenements, or upon promise of marriage (s. 15.) And in cases of rent not exceeding one hundred dollars, they have power to compel the landlord to defalcate or set offthe just account of the tenant out of the same; but the landlord may then wave farther proceedings before the justice, and pursue the method of distress, in the usual manner, for the balance so settled. (s. 12.)

If the demand does not exceed five dollars and thirty three cents, the justice himself hears the parties, and gives judgment, which is final. If the demand is for a sum exceeding that amount, the case shall, if both parties consent, be submitted to referees, whose award shall be transmitted to the justice, and he shall enter judgment on it, which shall be final and conclusive, if for a sum not exceeding fifty three dollars. (s. 3.) If either of the parties refuse to refer, the justice may hear them and give judgment. (s. 4.)

If the cause is decided by the justice alone, and the demand exceeds the sum of five dollars and thirty three cents, either party, if dissatisfied with the judgment, may appeal to the court of common pleas; as he may likewise do, if judgment is given on the award of referees, and such award exceeds the sum of fifty three dollars. (s. 4.) No appeal lies in the case of rent: but the remedy by replevin is declared to remain as before the act passed. (s. 12.)

This act did not receive the sanction of the governour; not being returned by him, to the house in which it originated, within ten days after it was presented to him, it became a law. Acts of a similar nature passed by the two houses at the two prior sessions, had been negatived by him, on account of their being contrary to the above cited provision of the constitution (which he declared to be his decided opinion, and to be more and more confirmed by reflection) as well as of their dangerous and oppressive tendency.

From these circumstances, and those before stated in this note, the question respecting the constitutionality of the late law must be considered as at least doubtful. It is worthy of observation, too, that the objections apply more forcibly to the late law, than to that of 1794. For, by the former, no right is given to either party to elect, before judgment given by the justice, to have the cause tried by a jury in the court of common pleas, as was given by the latter.

The justices of the peace also possess, by an act passed 1st March, 1799, (4. Laws Penn. 351.) which was temporary, but has been revived and made perpetual, jurisdiction over actions brought for the recovery of damages for any trespass done to real or personal property, where they do not exceed twenty dollars. Ed.

[t. ]1. Laws Penn. 304. 305.

[u. ]Cons. Penn. art. 5. s. 8.

[v. ]Art. 5. s. 1.

[12. ]Anarchasis (sixth century bc) was a Greek author.

[w. ]4. Ld. Bac. 64.

[x. ]3. Bl. Com. 59.

[y. ]3. Laws Penn. 92. s. 1.

[z. ]Courts of nisi prius are now held only in the county of Philadelphia. In the other counties of the state, they have been superseded by courts, styled “circuit courts,” established by an act of assembly passed in the year one thousand seven hundred and ninety nine. (4. Laws Penn. 362.)

The circuit courts are held by one or more of the justices of the supreme court, at such times and places as the justices of that court appoint, having due regard to the convenience of the people (s. 1.) In most of the counties, they are held once, and sometimes twice in the year, at the discretion of the justices.

They have no original jurisdiction; but have power to issue writs of certiorari, habeas corpus, and all other remedial and other writs and process, grantable by the justices of the supreme court by virtue of their offices (except writs of errour, and certiorari after judgments, orders, or decrees); and the writs and process so issued are returnable in the circuit court. Appeals also lie to the circuit court in each county from the register’s and orphans’ courts of that county. (s. 3.)

The circuit courts have power to give judgment, pass decrees, and award execution, and generally exercise similar power in any cause before them, and in which jurisdiction is given to them, in as ample a manner as if sitting in bank. They have power, though not sitting as a court of oyer and terminer, to try any capital or other criminal case removed into the circuit court, and to pronounce judgment, and award execution, as fully as the supreme court may do. (s. 4.)

If either of the parties to any suit removed from the common pleas, register’s court, or orphans’ court is dissatisfied with the decision of the circuit court on any demurrer, special verdict, case stated, point reserved on the trial, motion in arrest of judgment or for a new trial, or to set aside a judgment, discontinuance, or non pros. he may appeal to the supreme court. (s. 4.) Ed.

[a. ]4. Ld. Bac. 61.

[b. ]4. Ins. 168.

[c. ]4. Ins. 162. 163.

[d. ]4. Bl. Com. 267.

[e. ]Art. 9. s. 15. 26.

[f. ]Cons. Penn. art. 5. s. 3. 5.

[g. ]Ante. vol. 1. p. 744.

[h. ]Gro. 366.

[i. ]3. Bl. Com. 429.

[j. ]3. Bl. Com. 431.

[13. ]Ranulf de Glanvill (?–1190) was chief justiciar of England during the reign of Henry II. He is reputed to be the author of Tractatus de legibus et consuetudinibus regni Anglie (Treatise of the Laws and Customs of England, c. 1187–1189).

[14. ]Britton likely refers to a legal text written in the late thirteenth century by an unknown author. It is the first book of English law to be written in Norman French rather than Latin.

[k. ]3. Bl. Com. 49.

[l. ]Millar. 469.

[m. ]1. Reev. 66.

[n. ]St. 13. Edw. 1. c. 24.

[15. ]Short workshop.

[o. ]1. Reev. 43.

[16. ]John Waltham was keeper of the privy seal from 1386–1389 and treasurer from 1391 until his death in 1395.

[p. ]Millar. 475. 3. Bl. Com. 51.

[q. ]Table talk.

[17. ]William Lambard (1536–1601) was an English jurist who wrote Archaionomia (1568), Eirenarcha (1581), and Archaion (1591).

[r. ]Millar. 477. 3. Bl. Com. 433.

[s. ]3. Bl. Com. 433.

[t. ]Lord Chief Justice Wilmot. 2. Wils. 350.

[u. ]3. Bl. Com. 435.

[v. ]Millar. 482. 3. Bl. Com. 437.

[w. ]1. Ld. Bac. 253. Aph. 45.

[x. ]Prin. of Eq. 49.

[y. ]Laws U. S. 1. cong. 1. sess. c. 20. s. 15.

[z. ]1. Reev. 119.

[a. ]Id. 477.

[b. ]2. Reev. 33. 147.

[c. ]Id. 173.

[d. ]4. Ins. 123.

[e. ]1. Reev. 295. 296. 300.

[18. ]Edward I (1239–1307) was king of England from 1272 to 1307.

[f. ]1. Reev. 405.

[19. ]Edward III (1312–1377) was king of England from 1327 to 1377.

[g. ]2. Reev. 71.

[h. ]2. Reev. 75.

[i. ]Bouch. The. Com. 134.

[j. ]Id. 138.

[k. ]Id. 140.