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From the Newsletter of the Philadelphia City Archives, # 33 (March 1978)

THE TANGIBLE MANIFESTATION OF LAW (Part III)

by Ward J. Childs

When the Court of General Sessions was abolished in 1843 and the County's Criminal jurisdiction vested in the Court of Quarter Sessions for the City and County of Philadelphia, the separate identities of the Courts of Criminal and General Sessions were submerged under that of the Court of Quarter Sessions. The histories of the three Courts blended to such a degree that the existence of the Courts of Criminal and General Sessions were not even acknowledged by Herman V. Ames and Albert E. McKinley in their Report on the Public Archives of the City and County of Philadelphia which was published in 1902.

The Pennsylvania Supreme Court poses another sort of problem. Although it is readily identified, its image is just that of an appellate court. It is not generally known that the Pennsylvania Supreme Court, until at least the third quarter of the Nineteenth Century, also was a court of original jurisdiction in certain types of cases. An examination of the records of the Eastern District of the Supreme Court, which are in the custody of Pennsylvania Historical and Museum Commissions would indicate the variety of cases in which the court served as a court of first instance. Among these records may be found Court of Oyer and Terminer volumes and papers, 1757-1827, equity and execution dockets and papers, judgement dockets, debit single bill papers, partition and sheriff's deeds, petitions for the extinguishment of ground rent and proceedings in lunacy. As the reader, no doubt can perceive, all of these records, with the exception of the Court of Oyer and Terminer volumes and papers, are those which a researcher usually would expect to find filed among the records of either the Prothonotary of the Philadelphia County District Court or among those of the Prothonotary of the Court of Common Pleas. However, in the periods, 1786-1809 and 1826-1834, the Pennsylvania Supreme Court was as much a court of original jurisdiction in all the counties of the State as either of these was in Philadelphia. The Supreme Court's judges rode circuit throughout the State and had original jurisdiction in civil suits in excess of five hundred dollars. Moreover, even when an Act of the Pennsylvania Legislature of 1834 discontinued the circuit courts throughout the State, the Supreme Court continued to sit as a Court of Nisi Prius in the City and County of Philadelphia until this jurisdiction was terminated by the Constitution of 1874.

Therefore, on and off, until 1874, there were three different courts exercising major civil jurisdiction in the City and County of Philadelphia: the County District Court which had been established in March 1811 for the purpose of relieving the pressure of business on the Court of Common Pleas; the Court of Common Pleas; and the Supreme Court. The District Court did not hear appeals from aldermen or equity cases. The Supreme Court was an appellate court. Besides these differences the only other thing which distinguished the jurisdiction of each of these courts from the others was the amount of money involved in the suits that each heard. However, even in this respect there was overlapping jurisdiction. Between 1811 and 1854 the County District Court had exclusive jurisdiction in civil cases in which the amount of suit was in excess of one hundred dollars. Jurisdiction over amounts below this figure was shared by the Court of Common Pleas and by the District Court. In 1854 the District Court's mandatory jurisdiction was increased to include cases in which the amount exceeded five hundred dollars. This was the same amount over which the Pennsylvania Supreme Court exercised original civil jurisdiction in the City of Philadelphia and nisi prius jurisdiction in the County until 1873. As we can see, the District Court managed to have overlapping jurisdiction with courts at both ends of the judicial spectrum during different periods of its history.

The Supreme Court of Pennsylvania also was a Court of original jurisdiction in criminal cases involving capital punishment. This original oyer and terminer jurisdiction on the part of the Supreme Court may seem phenomenal to anyone accustomed to a Supreme Court with nothing but appellate jurisdiction. It may be even more surprising to learn that extant oyer and terminer dockets among the records of the Eastern District of the Supreme Court indicate that this Court was exercising oyer and terminer jurisdiction in Philadelphia City and County as late as 1827. Examination of cases tried at Philadelphia in the Supreme Court's oyer and terminer docket, which the City Archives holds on microfilm for the years 1778 to 1827, and of the County oyer and terminer dockets for the years 1794 (the earliest date held by the City Archives) to 1827 (the last extant date of Supreme Court oyer and terminer records) reveals the wide spectrum of crimes considered capital in the 18th and early 19th centuries. These included bestiality, libel, riot, counterfeiting, rape, mayhem, larceny, burglary, robbery, arson, bigamy, assault and battery, and conspiracy. This examination also indicates that, for the most part, both courts tried the same kind of spectrum of cases. The most revealing data, which arises from our brief and hasty survey, pertains to crime most commonly regarded as capital, i.e., those pertaining to the death of a human being. Our data shows that all trials for murder, which resulted in a death sentence, with the exception of one, took place in the Supreme Court. Murder cases in the County Oyer and Terminer Court resulted either in verdicts of manslaughter, or murder in a lesser degree than first. In fact in the period used for our comparison, only one murder case tried in the County Oyer and Terminer Court resulted in a sentence of execution. This was the case of a Richard Smith sentenced in May 1816. Moreover, we also discovered that the further our survey carried us towards the year 1827 the less likely we were to discover any murder cases resulting in execution in either court. Without specific background information on all the murder cases tried during the period 1794 to 1827 it is possible to provide an adequate explanation for either of these findings. However, for the discrepancy between murder cases tried in the Supreme Court's oyer and terminer court, and those tried by that of the County Court, one can hypothesize that the long period, 1722 to 1790, during which the Supreme Court had exclusive jurisdiction over capital offenses, may have resulted in an informal tradition of reserving more heinous murder cases to the higher court long after its exclusive, legal jurisdiction had ended. The overall decrease of execution for murder may have stemmed from the same liberal spirit in the society that had brought about the Act of April 5, 1790 which reformed the penal system and that of April 22, 1794 which reduced the kinds of crimes subject to the death penalty, In any case, such a comparison only is possible for a few decades. No Pennsylvania Supreme Court oyer and terminer dockets are extant for the years after 1827 which would seem to indicate that the Supreme Court stopped exercising its oyer and terminer jurisdiction shortly thereafter, even though each justice of the Supreme Court had the constitutional right to act as a justice of oyer and terminer until as late as 1968.

Before we complete our discussion of the judicial aspect of the law in Philadelphia County we must turn our attention to the one class of courts where most judicial transactions take place, i.e., the minor judiciary of the City and the County. Reference to aldermen's and magistrates' dockets in the City Archives reveal that the minor judiciary have jurisdiction over such petty criminal offenses as traffic violations, assault and battery, intoxication, disturbing the peace, and gambling offenses. Their civil jurisdiction is limited to cases in which the amount in dispute is small; such as claims for goods sold and delivered, claims for wages, or landlord and tenant cases. We are so accustomed to the limited civil and criminal jurisdiction of magistrates and justices of the peace in our own day that we tend to forget that the origins of these and their predecessors were very different. The justice of the peace, for example, was the backbone of English County government when the Duke of York translated this system to the Delaware Valley in 1664. The system was continued under the Penns. Until 1790 the justice of the peace dominated the county judiciary. He sat with his fellow justices in the Courts of Common Pleas, Quarter Sessions and Orphans, and had minor criminal and civil jurisdiction in his own right. Through these courts the justices of the peace of Philadelphia County exercised criminal and civil jurisdiction on all judicial levels with the exception of capital cases. They also opened roads and bridges, issued tavern and peddlers' licenses and, at various times, presided over town meetings, levied county taxes, supervised the erection of buildings, appointed overseers of the poor, inspectors of flour, and of staves and supervisors of highways, and audited the accounts of the overseers and the county treasurer. Although the administrative powers of the justice of the peace gradually diminished with the growth of other county officials, particularly the county commissioners, they continued to monopolize judicial power on the county level until 1790. All the acts of the Pennsylvania Assembly pertaining to the county judiciary in the period before the Revolution had specified that justices of the peace sit on the county courts. The judicial clauses of the Constitution of 1776 were sufficiently ambiguous to allow this situation to continue. The Constitution of 1790, under which the judges of the Court of Common Pleas also composed the Quarter Sessions and Orphans Courts, reversed this judicial tradition by designating justices of the Common Pleas Court as "justices of the peace so far as relates to criminal matters". The judicial act of April 13, 1791 reinforced this trend by providing that in addition to the president judge of the Court who was to be "skilled in the laws" the judges were only to be "proper persons" with no mention at all made of justices of the peace. From this point in history the justice of the peace in Pennsylvania gradually began to be relegated to the position of minor judiciary that we know today. Within the City the position of the alderman went through a slower but no less definite decline. The Aldermen, Mayor and the Recorder not only exercised legislative and executive power, together with the Common Councilmen, through the City Council. They also individually exercised the minor civil and criminal jurisdiction of justices of the peace, and major criminal jurisdiction through the Mayor's Court. The Act of April 4, 1796 which established the Select Council removed the Mayor, Recorder and Aldermen from the Councils and ended their legislative responsibilities. Forty-two years later, they were deprived of their quarter sessions jurisdiction when the Act of March 19, 1838, which established the Court of Criminal Sessions, also abolished the Mayor's Court. The Aldermen continued as minor judiciary until 1854 when the Consolidation Act replaced them and the justices of the peace of the newly consolidated city with police magistrates. The Recorder's jurisdiction as a justice of the peace continued until the office was abolished in 1882. The Mayor exercised the same power for a much longer period: the 1919 City Charter stipulated that the Mayor was to have all the jurisdiction of "aldermen, justices of the peace, or magistrates". The City Archives holds civil and criminal dockets of aldermen's and magistrates' courts for the period 1845 to 1962. Some earlier records are among the collections of the Historical Society of Pennsylvania.

Perhaps the most extraordinary aspect of the administrative history of Philadelphia has been the evolution of the executive branch of government. This evolution of the executive cannot be considered apart from the evolution of legislative power, and, for the most part has been in inverse proportion to it. In sharp contrast to the interdependence of the other two branches of government. the evolution of Philadelphia's court system, including the City's Court, has been a development apart. While space does not permit us to undertake a detailed discussion of the evolution of all the functions of the executive branch of City government we would like to express two generalizations concerning it. The first of these generalizations will be as applicable to all three branches as they are to the executive.

Philadelphia's history of City government has been the history of a slow but progressive movement away from the medieval corporative concept to the 18th century philosophers' doctrine of separation of powers in government. Even though the close corporation of the period before 1776 lapsed with the Revolution, so many vestiges of it continued in the Corporation of 1789 that the municipal government was only viable because of a series of Acts of the Assembly which radically transformed it. Ironically, the two Acts which were most responsible for democratizing the municipal government, the Act of April 4, 1796 and June 21, 1839, had the long term effect of undermining the system of checks and balances that should be inherent in the separation of powers. The first of these Acts, which established Select Council and removed the Mayor, Recorder and Aldermen from the Council, not only took the Mayor out of the legislative body but also took him out of the legislative process as well: no mayor's signature again was required to turn a bill into law until Consolidation. The second provided for the popular election of the Mayor while removing his powers of appointment under an Act of April 11, 1799, At the same time, as emphasized in the first installment of this article, Councils were developing their system of standing committees which began as early as 1806 with the Watering Committee and accelerated in the 1830's until these committees were not just supervising, but actually running the day-to-day operations of the City. Even though the charters from 1854 to 1919 gradually chipped away at the limitations on the Mayor's office by granting him the veto over legislation, subject to a two-thirds vote of councils, increasing his power of appointment and by providing for coordination among City departments, the balance of power between the legislative and executive branches was sufficiently tipped in favor of the former that in comments published on February 25, 1951 the Drafting Committee of the Philadelphia Charter Commission, the records of which are in the custody of the City Archives, could describe the means of providing for a "strong Mayor" as follows: "The Council would be prevented from interfering, as at present, with the administration of the City's business .... The present dilution of administrative responsibility between the Mayor and Council would be eliminated."

Our second generalization, that a strong councilmanic body resulted in a weak Mayor, is a corollary of the first, and almost has assumed the status of a cliche. Reference to Council journals of the period from the 1830s to the 1850s show just how much substance a cliche can have. In the everyday melodrama of the City's government the Mayor was like some legendary hero, rarely seen and seldom mentioned, who suddenly appeared at the time of riot to give advice concerning the police. In short, he was little more than a chief of police with the power of a sheriff and justice of the peace added. Consolidation did not really change this situation; reference to ordinances in the City Archives reveals that the Mayor's Office was funded under police appropriations until the passage of the Bullitt Bill, and that even the Charters of 1885 and 1919 gave the Mayor the power to take direct charge of the police in time of emergency. The Mayor was made a magistrate as late as 1919 by the Charter of that year. The title "Chief Magistrate" was not a mere appellation in Philadelphia. It was fact.

The Charters of the City, its ordinances, Acts pertaining to it, and records of its various branches of government for the period before 1952 reflect a pattern of confusion of jurisdiction in the judiciary until at least the third quarter of the 19th Century. Of more interest from the perspective of municipal history, they reveal an imbalance between the executive and legislative branches of City government which had its origin in law rather than in the personalities of office holders, as often occurs in the federal level. The Home Rule Charter was intended to correct this imbalance but like any other constitution which lacks flexibility the Charter after twenty-five years is beginning to show its age.

Click here for Part I

Click here for Part II

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