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The District Court
of the
City and County of Philadelphia
AN ADDRESS
Delivered at the Final Adjournment of the Court
January 4, 1875
By
HON. JAMES T. MITCHELL - One of the Judges of the Court
SECOND EDITION
12
-
.
THE DISTRICT COURT
OF THE
CITY AND COUNTY OF PHILADELPHIA.
AN ADDRESS
Delivered at the Final Adjournment of the Court, January 4, 1875.
By Hon. JAMES T. MITCHELL, One of the Judges of the Court.1
By the Constitution of Pennsylvania adopted in 1873, a new organization of the judicial tribunals of the State was directed, under which the Nisi Prius, District and Common Pleas Courts of Philadelphia City and County, ceased to exist on the first Monday of January, 1875. The Judges of the Supreme Court, theretofore in turn holding the Court of Nisi Prius, were relieved from original jurisdiction, and the Judges of the District and Common Pleas Courts were transferred to the new Courts of Common Pleas created by the Constitution.
The District Court having assembled on the morning of January 4, 1875, JUDGE MITCHELL spoke as follows :
Gentlemen of the Bar:
The District Court closes to-day an honorable career of more than sixty-three years, and though we are reminded by the bustle of surrounding preparations2 that that is no longer a notable age in this country-yet an institution which has maintained itself in these fast changing times for that space, merits at least a short retrospective glance from those whose lot has been in some measure cast with it, before it passes away into the quickly fading memory of things that have ceased to be. It has seemed appropriate, therefore, that one of the judges who has come so recently from the bar, and whose part in the labors and reputation of the Court has been so small, might, without imputation of vainglory, speak
1Reprinted in accordance with a Resolution of Pennsylvania Bar Associa- tion passed upon recommendation of its Committee on Legal Biography and History July 7, 1899, with the author's permission and with some additional notes by him.
2For the Centennial celebration, 1 876.
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upon this occasion a few words of that respect and apprecia- tion which the entire bar is believed cordially to entertain ..
The founders of our Commonwealth entertained a positive antipathy to lawyers. Recently emerged from the great eivil conflict in our mother country-that great national erisis in which the military system of feudalism, having outlived its usefulness, was to be swept away forever by the tide of modern ideas and necessities-the followers of Penn were in that state of mental exaltation which carries away the judg- ment even of the sober-minded, and they yielded themselves without hesitation or doubt to chimerical dreams of universal peace and brotherly good-will. Ilence came a distrust of all those whose occupation savored of strife. The soldier and the lawyer who were classed together as the instruments, if not the promoters, of contention : the soldier as the avowed representative of armed force ; the lawyer, though his force was hidden under gown and wig, yet, none the less, the exponent of a compulsion of law, founded not in Christian. good-will, but in the remote but ever-ready strong hand of' government.
Doubtless some of this distrust was also due to the firm support which lawyers, conservative by habit and education if not by nature, and supporters usually of the established order of things, had recently given to the decrees of the Star Chamber and the claims of the royal prerogative. The con- flict was so recent, and the triumph of constitutional princi- ples too little assured, not to be felt even by Penn, who had been a favorite in the court of the re-established Stuarts.
Something also was dne to the deficiencies in the admin- istration of the law for the purposes of practical justice. Costs in chancery were burdensome, and technicalities in the courts of common law had been harassing almost to the denial of justice.
From these causes and perhaps others that we cannot. panse now to consider, it is certain that from the foundation of the province it was the well-defined and settled policy of the law of Pennsylvania to discourage lawyers and to pre-
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vent litigation. By the sixth section of the laws agreed upon in England between Penn and the first settlers, " on the fifth day of the third month, called May," 1682, it was provided that " in all courts all persons of all persuasions may freely appear in their own way and according to their own manner, and there personally plead their own cause themselves, or, if unable, by their friends." (1 Colonial Records, p. 38. Re- enacted in 1700. See Brightly's Purdon, title Attorneys-at- Law, pł. 1, n. a.)
But even this was not enough. In the minutes of the Provincial Council of 2 Mo. (April) 2, 1686. the following remarkable enaetment is found among other bills, " read three times this day and passed " by the " President and freemen in Provinciall Conneill Mett " :- " For the Avoiding of too frequent Clamours and manifest Inconveniences which usually attend mercenary pleadings in Civill Causes, it is enaeted by ye authority aforesaid that noe persons shall plead in any Civill Causes of another, in any Court whatsoever within this Province and Territories, before he be Solemnve attested in open Court that he neither directly nor Indirectly hath in any wise taken or received or will take or receive to his use or benefit any reward whatsoever for his soe pleading, under ye penalty of 5 lb. if the Contrary be made appear." (1 Colonial Records, 172.) Whether this bill was approved by the next General Assembly and became a law does not appear, but its absence from our earliest statute books seems to imply that it was not. Its passage by the Council is however sufficient evidence of the spirit of hostility to lawyers of which I have spoken.3
3The legal profession would seem to thrive under difficulties. Connecti- cut has produced a bar and bench of exceptional distinction, yet at a session of the Court of Election held at Hartford, May 9, 1667, it was enacted. " Although the court by formr ordr hath prohibited al persons from pleading as Attorneys in ye behalfe of any person yt is charged and prosecuted for delinquency, yet it is observed persons doe not attend ye mind of this Court yrin ; for ye prventing wr of and yt persons may not be encouraged in yr evil practices, it is by this Court ordered yt what person or persons soever shal take that boldnes to himselfe as to plead or speake in ye behalfe of any person that is upon examination or tryal for delinquency (except he speake directly to matter of law and with leave from ye authority prsent ) he shal pay ten shil- lings to ye Public Treasure as a fine, or sit in ye stocks one hour for every such offence." See Public Records of the Colony of Connecticut, Vol. 2, P. 59 (Hartford, 1852).
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Another manifestation of the same spirit is found in the establishment of the unprofessional but apparently regular tribunal called the Peacemakers. Whether these were any- thing more than the elders or Overseers of the Yearly Meet- ing of the Society of Friends has been considered doubtful, but there are some grounds for believing them to have been a tribunal of recognized and lawful authority, and there is no doubt at all of the public and official recognition of the importance of their functions. Thus, on the seventh of ninth month, 1683, a petition was presented by one Riehard Wells to the Council, and being read, it was " ordered that he be referred to ye Peacemakers and in Case of Refusall to ye County Court, according to Law." (1 Colonial Records, 90.)
That lawyers should for a time be scarce under these adverse circumstances is not to be wondered at, and we find that at a Council held at Philadelphia the first of March, 1708-9,the celebrated Francis Daniel Pastorius presented a petition showing inter alia that one John Henry Sprogel having at the last adjourned court got a writ of ejeetment, now " so as to finish this his Contrivance in the County Court to be held the third day of the next month, betweene wch and the former no Provincial Court doth Intervene for a Writt of Error etc. hath further fee'd or retain'd the four known Lawyers of this Province in order to deprive your Petitioner of all advice in Law, wch sufficiently argues his cause to be none of ye best." (2 Colonial Records, 430.)
It is a curious illustration of that fate which overtakes every effort to stop the inevitable, that these plans of our forefathers to check litigation by cheapening costs and dis- countenaneing lawyers resulted directly contrary to their expectations. The carly lawmakers of Pennsylvania were exceptionally wise and far-sighted men, but they, no more than others, could change the course of human nature by statute. What the majority of men desire, that in the long run they will have-directly and in its proper name if they can ; indirectly, by getting the substance under auother
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name, if they must. That which is cheap must needs soon be abundant, and litigation is no exception to the rule. So it soon came about that the nimble-tongued tradesman found it to his advantage to bring his dilatory customer into court and by his own eloquence get a verdict ; and if, perchance, he failed, his costs were so small that they made little draw- back to another venture. The defendant, taken at a disad- vantage, found, after a few experiences, that he must bring in some quicker-witted or more plausible friend to his assist- anee. A few successes in this line turned the friend's atten- tion-perehance his vanity-to this line of honor or of profit, and the " advocate " was made. Advocates once made, pro- fessional training became a matter of course, and so the short round was quickly run. The full-fledged lawyer was pro- hibited, but the natural advocate was placed where circum- stanees in a little while made him a lawyer more inevitably than the time-honored course of dinners at an Inn of Court.
So it happened, that when a century had elapsed from the lawyer-repressing statutes I have quoted, and the " green countrie town " of Penn had become a prosperous eity aspir- ing to be the capital of the great Republie, there had grown up in it a bar, not only numerous, but renowned for profes- sional learning and ability, and the business of litigation was such as not only to give active and profitable employment to the bar, but to burden the courts and impose vexatious delays upon the suitors.
The judicial system of Pennsylvania has always been of remarkable simplicity. From time almost immemorial the entire litigation of each county has been practically in one court ; for though the Orphans' Court and the Quarter Ses- sions have been legally separate courts, yet during the greater part of the time they have, in fact, been held by the judges of the Common Pleas, who have thus had the entire range of judicial business concentrated in themselves, though they maintained a purely formal and technical distinction between themselves as the one court or the other. This system,
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admirably as it has always worked throughout the various counties of the Commonwealth where the pressure of business is not too great to allow ample time for deliberate considera- tion of each matter in its turn, and where the single presi- dent judge has necessarily a general oversight of all the busi- ness of his court, is nevertheless subject to serious difficulties and objections when applied to the vast and varied litigation of a great city. No single judge can cope with this business, nor can any single court, if all its judges are to act together. But a court whose judges sit separately for various kinds of business, with rare occasions of a full session of all its mem- bers, is one court only in name; no uniformity of practice can be maintained, and no one of its judges, however great his executive capacities, can have a commanding aequaint- ance with the daily condition of the current business. Thus there are constantly unsatisfactory dispositions of business, and loose ends and accumulations of unfinished matters for which not the hard-worked judges, but a faulty system is to blame.
On the other hand, the multiplication of courts, leaving each with the same multiform and impracticable jurisdiction, does not remedy-fortunate if it does not aggravate-the evil. The tendency to diversity of practice and decision becomes almost irresistible, and the difficulties and perplexi- ties of the bar in managing their business become not only a source of serious vexation to the bar and the bench, but posi- tive drawbacks to the administration of justice.
The evils I have thus rapidly sketched had accumulated under the system of a single court in Philadelphia until, in the early part of the present century, relief was imperatively demanded. The men of that day did what the evil required -they applied a remedy which experience and the nature of things pointed out as likely to be effectual. Observing that the evils arose not merely from the quantity of business, but from the great and vexatious variety in kind, they relieved the court of nearly all its labor of one kind-the trial of eivil issues by jury-and transferred that to a new court.
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By an Act approved March 30, 1811, P. L. 138, it was enacted : " Whereas the Court of Common Pleas of the City and County of Philadelphia, from the various objects of its jurisdiction and the great increase and aeenmulation of busi- ness, is incompetent to the speedy and effectnal administra- tion of justice to the citizens of that district, for reniedy whereof, be it enacted," etc.,"that there shall be established a court of record by the name and style of the District Court for the City and County of Philadelphia, to consist of a president and two assistant judges, any two of whom, in case of the absence or inability of the other, shall have power to try, hear, and determine all eivil pleas and actions, and for the trial of such pleas and actions, shall have the same powers and jurisdiction as are now vested by law in the Court of Common Pleas ; Provided, That the said court shall have no jurisdiction, either originally or by appeal, except where the sum in controversy shall exceed one hun- dred dollars. By the subsequent sections of the same act, all cases in the Common Pleas where the amount in controversy exceeded one hundred dollars were ordered to be transferred to the new court on the first Monday of June, and the ori- ginal jurisdiction of the Connnon Pleas in cases where the amount in controversy exceeded that sum, was thenceforth to cease. With an evident intent to the rapid dispatch of busi- ness, it was further provided that the new court should hold four terms in the year, with power to hold adjourned courts ; " make such regulations of practice as may most facilitate the progress of justice ; " that the judges should sit daily for nine months in the year, if necessary ; that the determination of no eause or action should be delayed beyond the fourth term, including that to which it had been brought, if the parties be prepared for trial at the time appointed by the judges ; and a notable illustration that then, as now, the interest of defend- ants and the astuteness of counsel were as largely responsible as the pressure of business for the delays of justice, it was provided that no suit should be removed from this court by certiorari or habeas corpus, but that in all cases, the final
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judgment might be examined on a writ of error from the Supreme Court.
The prothonotary of the Common Pleas, for the time being, was directed to perform the duties and entitled to the fees of prothonotary of the new eourt.
The president of the court was to receive a yearly eom- pensation of two thousand dollars, and the assistants five hundred each. The court was to be opened for the purpose of issuing mesne process on the first Monday of May, which was to be a teste day for writs returnable to the first term.
Such is an outline of the District Court as at first created. Whether from motives of economy or a too sanguine hope of a speedy elearance of arrearages, perhaps from a failure even yet to sce elearly that the overburdening of the Common Pleas was the inevitable result of the natural growth of the city, and the inherent defects of the system of crowding all kinds of business into a single court, it was apparently hoped that the necessity for relief was only temporary, and accordingly the new court was limited by this act to the term of six years and no longer.
The court thus provided for met according to the act, on May 6, 1811, and the entry on the minutes reads as follows : " May 6, 1811. A commission from the Governor, under the Great Seal of the State of Pennsylvania, appoint- ing Joseph Hemphill, Esq., President Judge of the District Court for the City and County of Philadelphia, and a com- mission appointing Anthony Simmons, Esq., an assistant judge of said eourt, were read.
"The court being organized, a commission appointing John Porter, Esq., Prothonotary of said District Court, was read.
"Ordered by the court that the June term continue six weeks from the third of June next ; the first four weeks for trials by general jury, the last two weeks for trial by special jury. Trials by general jury in periods of one week each."
This appears to have been all that was done on that day, and the next entry bears date June 3, 1811.
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"A commission appointing Jacob Sommer, Esq., an assistant judge of said court, was read. Joseph B. Mckean, Esq., moved for his own admission as an attorney of this court, and is sworn and admitted thereof; after which the following gentlemen were admitted attorneys of said court, by order of court, to wit:" Ilere follow the names of seventy-two attorneys, ineluding all the leaders of the bar of the day, and many whose names are to-day familiar to our ears, and perhaps to our personal recollections. Some of the best known in the order they are entered, are William Mere- dith (father of the late William M.), Horace Binney, Peter A. Browne, James Gibson, Jonathan W. Condy, Charles W. Hare, Joseph R. Ingersoll, Joseph Hopkinson, Thomas Ross, James S. Smith, William S. Biddle, Philemon Dickerson, John Purdon, Peter S. Duponceau, Sampson Levy, Richard Rush, Charles J. Ingersoll, Benjamin Tilghman, Zalegman Phillips (father of Hon. Henry M.), Richard Peters, Jr., Thomas Kittera, John Swift, Moses Levy, William Rawle, Jr., Charles Chauncey, Nicholas Biddle, George Vaux, John Sergeant, James Montgomery, Thomas Armstrong, Joseph Reed, Humphrey Atherton, and Elihu Chauncey.
Each of the attorneys appears to have been separately sworn or affirmed, as the abbreviations " sw." or " affd." fol- low each name in detail.
On the following day, June 4, on motion of Moses Levy, Esq., John Hallowell was affirmed and admitted as an attor- ney, and on motion of Richard Rush, Esq., Josiah Randall was sworn and admitted. The court then addressed itself vigorously to business, and the first case, James Browne rs. John Love, was tried, and a verdiet rendered for the defend- ant. Several rules were then granted in cases of eapias to show eause of action, and why defendant should not be dis- charged on eommon bail, and were made returnable ou the following Saturday. Two other eases were then tried, and verdiets rendered for the plaintiffs. But it appears that the rapid dispatch of business did not then, any more than now, give nniversal satisfaction-bills of exception being filed on
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the seventh instant, and writs of error taken in two out of the three cases tried on the first day.
From this time business flowed into the new court in a steady stream, and we find in the next year an Act of March 3, 1812, P. L., 69, reciting that " Whereas, it appears from a number of canses transferred into the District Court for the City and County of Philadelphia, and the accumulation of business therein, that the said court will have to sit nine months in every year ; and whereas, it is just and reasonable that the judges who have to devote so great a part of their time to the duties imposed upon them, as to prevent their attending to any other business, should receive a com- pensation proportionate to their services ; and whereas, the salaries of the assistant judges of said court are inadequate to the duties to be performed by them ; therefore, be it enacted, etc., that the said assistant judges shall cach receive a salary of eight hundred dollars as a full compensation for their ser- vices."
The same act provided for the summoning of several pan - els of jurors for the same term, and that they should be made returnable at such particular day as the court should direct.
Joseph Hemphill, the first president of the court, was born in Thornbury township, then Chester, but now in Delaware county, January 7, 1770, was admitted to the bar in 1793 and was a member of Congress from that district from 1801 to 1803. Ile removed to Philadelphia and was admitted to this bar in 1802, and practiced here until his appointment as judge in 1811. In 1817, he was reappointed president of the court, but resigned in 1818 and was again elected to Con- gress, where he continued to serve, with an interval of one session, until 1831. He then retired from public life, and lived in Philadelphia till his death in 1842. He was a Fed- eralist in early life and afterwards a Jackson Democrat. In person he was tall and of fine presence, with amiable temper and dignified manners. As a judge he was courteous, attent- ive and competent, though his tastes were rather for the more active life of the bar and politics.4
+ See History of Chester County, by Fathey and Cope (1881), P. 595.
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Anthony Simmons, one of the lay or " wing" judges, as they were popularly ealled in that day, was a native of Rhode Island, and had been a goldsmith. He appears to have been prosperous, for we find him in the city directories of 1809 and 1811 as " late goldsmith, 27 Sassafras Street." In 1813 he appears in full figure as " Associate Judge of the Distriet Court," and perhaps in deferenee to his new honors, has moved to the more aristocratie neighborhood of " 100 South Eighth Street." He was a tall, fine-looking man, and appears to have retained the fondness for military honors and display which he aequired on training days in his native New England. He was a colonel in the militia, and took an active part in the politics and publie affairs of the day. Neither his manners nor his habits were in accord with what is now expected of judicial station ; but his integrity was not doubted, and by virtue of diligent attention (which is attested by the minute books) and good natural parts, he appears to have filled the position he held with acceptanee, as we find him reappointed by Governor Snyder in 1817. Ile died January 3, 1830, aged 57.
Jacob Sommer, the other lay judge, was a farmer, and lived in Byberry township. He was of Pennsylvania Ger- man descent, and discharged the duties of his office with the patient good sense and modesty that characterize his race. Probably owing to his residenee in the country, he does not appear from the minnte-books to have given as much time to his duty as the other judges, but was nevertheless reap- pointed in 1817;, and continued to sit until the expiration of his commission in 1821.5 In 1823 he was appointed a justiee
5 His second commission, by some accident, does not appear in the minute-books, though his name frequently occurs down to 1821, but the com- mission is recorded in the office of the Recorder of Deeds for this county, in Miscellaneous Book M. R. I, p. 157. It may be noted here that the admin- istration of oaths of office being a function of the Crown, was performed in the colony by the Governor (or in his absence by the Council) as the repre- sentative of the King. Where it was inconvenient for the Governor to attend, he deputed some person by a writ of dedimus potestatem to act in his name, and at a very early day it became common to issue such writs for qualifying the justices in the outer counties. Thus at a Council held 6 mo. 3d, 1703, "A dedimus potestatem was directed to Jerem. Langhorne for quali- fying ye justices of Bucks county, in pursuance of ye Queen's late order."
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of the peace for Bristol, Germantown and Roxborough,6 after which time I have not been able to find any trace of him.7
By an Act of March 9, 1814, P. L. 90, the Governor was authorized to appoint an additional judge in the District Court, who, in the absence of the president, was to preside therein, and who was to receive the same salary. It was fur- ther provided, that if a vacaney should happen by the death, resignation, or removal of any one of the asssistant judges appointed under the original Act of 1811, the Governor should not fill the vacaney.
By the same act, the court was vested with jurisdiction in cases of insolveney, where the party was confined by virtue of process issued out of this Court.
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