USA > Pennsylvania > A biographical album of prominent Pennsylvanians, v. 1 > Part 12
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Soon after the question of the constitutionality of the draft acts of Congress had been decided, an important question of marine insurance came up in- volving the true status of the seceding States. It grew out of the capture of the merchant vessel "John Welsh " by the Confederate privateer "Jeff Davis." The question was whether the letters of marque of the " Jeff Davis," and the nature of the service in which she was engaged, divested her capture of its piratical character. Woodward, then chief-justice, in an elaborate opinion, sus- tained the capture as an act of war by-a de facto government, and on that ground held it to be within an exception in the policy.
The effect of this status of the rebel government was too important to be suffered to go out as the doctrine of the Supreme Court of Pennsylvania, and
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was combated, therefore, by Judge Agnew in a vigorous opinion. He held that secession and confederation were nullities-that the United States was the supreme government both de jure and de facto, not displaced-its functions tem- porarily suspended in certain districts, but its actual existence continued every- where within its rightful jurisdiction, coupled with actual possession of important posts in every seceding State, and necessarily excluding all other sovereignties. That a rebellion or attempted revolution by a portion of a peo- ple, taking the form of a government, but leaving the true government in esse, actively and successfully asserting its rightful authority, with important posses- sions, does not constitute a de facto government, for the reason that it in no sense represents a nation in fact, nor exercises its sovereignty. He, therefore, denied Judge Woodward's conclusions of an accomplished revolution-the posi- tion of an independent power de facto-and the abrogation of the Constitution in the sceeded States, leaving them under the laws of war and of nations alone.
Pennsylvania was the third State in which the constitutionality of the act of Congress, authorizing the issue of treasury notes and making them lawful money and a legal tender for debts, was called in question. The Court of Appeals of New York and the Supreme Court of California sustained the act, and Judges Agnew, Strong and Reed, overruling Chief-Justice Woodward and Judge Thompson, brought, in turn, the Pennsylvania Supreme Court into line. Judge Agnew differed from his colleagues in holding that a specific contract for payment in coin was not payable in treasury notes, but that the latter were receivable only for debts payable in lawful money. Judge Agnew had, however, ruled the same question, sustaining the legal tender clause, while in the Com- mon Pleas of Butler county, as early as the summer of 1863, in the case of Crocker vs. Wolford (Pittsburgh Legal Journal, September 14th, 1863).
The war of the Rebellion brought into existence immense armies. While the constitutional power of the government to draft men into service was supported as essential to the safety of the nation, it yet fell heavily upon the people, and the distribution of its burthens was exceedingly unequal.
The necessity as well as the hearts of the people demanded these rigors of the system to be relieved as far as possible. This led to a system of bounties paid by the counties, towns, and townships of the State, to induce those who could be better spared, to enter into the service as substitutes for the drafted men. It was opposed, however, by those whose sympathies were not with the cause of the Union ; and the right to raise money by taxation to pay these bounties was strongly denied on constitutional grounds. The question came up to the Supreme Court in Speer vs. Blairsville (14th Wright), and was argued in opposi- tion to the power to tax by ex-Chief-Justices Black and Lowric. It was settled conclusively in favor of the power in an opinion by Judge Agnew, both able and eloquent, which placed it beyond future cavil.
Another phase of the war arose in the question of the right of deserters from military service to vote at State elections. Two cases came before the Supreme
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Court, Huber as. Reilly (3d Smith), and McCafferty vs. Guyer (9th Smith). In the first case a majority of the court held that the electoral franchise of a deserter from military service could not be taken away by an act of Congress without a conviction of desertion by a court-martial, and that a board of election officers was incompetent to try the fact. Justice Strong, who wrote the opinion, put the decision on this ground, conceding that the act of Congress was not an ex post facto law, and that Congress had power to pass it. Judge Agnew, in an elabo- rate opinion, not then published, maintained that the question before the Elec- tion Board was in no sense a trial for a penalty, but an inquiry into a personal privilege claimed by one offering to exercise it, and the real question was one of fact only, desertion, triable as any other fact, in relation to citizenship, by the Election Board; the consequence being declared by Congress, whose right to declare it was not denied by Justice Strong. In McCafferty vs. Guyer the ques- tion came up under a State law, authorizing the Board of Election officers to try the fact of desertion. Justice Agnew took the ground that the whole question was resolved into a single one: Is a deserter, proscribed by act of Congress, a freeman under the election article of the Constitution ? In a most elaborate and convincing opinion he traced the origin of the term " freeman " from the earliest period into the Constitutions of 1790 and 1838, and proved that a proscribed deserter was not a freeman within the meaning of the term in the Constitution, and the Election Board being authorized by statute to determine the fact, McCafferty was rightfully denied a right to vote.
In all these war questions Judge Agnew stood resolutely by his country. The effect of adverse decisions will be seen if we note the influence they would have had on the ability of the government to carry on the war to suppress insurrection.
Without the power to draft, the military arm of government would be power- less. Without money to carry on the war it would be ineffectual. Without the power to pay bounties the hardships of war would fall on classes least able to be spared. With a de facto standing of the Confederate government, it would have been entitled to recognition by European powers ; its prize-court decisions would be recognized as a valid source of title; its ports would be opened by foreign powers, and various obstacles thrown in the way of the United States to prose- cute its lawful authority. With a right to vote by deserters the whole policy of the State might be changed and its safety endangered.
An important question upon the status of negroes in Pennsylvania arose before the adoption of the post bellum amendments of the Constitution of the United States, and before the passage of the Pennsylvania act of 1867, making it an offence for a railroad company to discriminate between passengers on account of race or color. A considerable time elapsed before the case was reached in the Supreme Court in 1867, and public opinion then ran high in favor of the rights of colored persons. The court below decided against the right of the railroad company to direct a negro woman to take another seat ; but " one in all
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respects as comfortable, safe, and convenient, and one not inferior to the one she left." This was a written point. Judge Agnew, whose courage is equal to his convictions, stood with two of his brethren, Woodward and Thompson, for reversal. Ile saw that as the Constitution and judicial precedents stood when the case arose, it was impossible to deny with honesty that the legal status of the negro, both civil and political, differed from that of the white man ; and that the social status was even more dissonant-that the rights of carriers and the repugnance of races necessarily involved a reasonable power of separation of passengers as a part of the carriers duty, in the preservation of the public peace, and the proper performance of his public obligations. His opinion (found in 6th Stnith, 211) is as unanswerable in argument as it was faithful to duty; though at the time of its delivery (in 1867) the progress of public opinion, after the close of the war, led many who were ignorant of the time and circumstances under which the case arose, to suppose he was wrong. Of all the judges who heard the argument, Judge Read alone dissented, and Judge Strong, who was absent at the argument, afterwards told Judge Agnew that he agreed with him -- that his opinion was right.
A great question arose after Judge Agnew became Chief-Justice, perhaps the most important of the many arising during his term of office. A majority of the convention called to propose amendments to the Constitution, to be voted upon by the people, conceived that its powers were not restricted by the call under which it was convened; and claiming absolute sovereignty, undertook to dis- place the existing election laws in the city of Philadelphia, by an ordinance. without any previous submission of the new Constitution to the people, as required by the laws under which the convention was called and authorized. The case came before the Supreme Court on a proceeding to enjoin the con- vention appointees from interfering with the lawful election officers. After the hearing an eminent member of the court thought it better to dismiss the bill on the ground of want of jurisdiction. But the effect of this would have been to leave the ordinance in force, and to countenance the exercise of an unlimited power not conferred by the people, and which might in future cases be danger- ous to their liberties.
Finally, however, the court unanimously agreed to meet the question on its merits, and enjoin the appointees of the convention from interfering. The opin- ion was written during the night following the argument, and considering time and circumstances, was perhaps the most able delivered by Judge Agnew during his term. It was supplemented by an opinion in Wood's Appeal by Judge Agnew, in which the claim of absolute sovereignty was discussed upon funda- mental principles, and the same conclusion reached. The two cases, Wells vs. Bain and Wood's Appeal, are found in 25 P. F. Smith, 40 and 59.
The ruling of Judge Cox as to the qualifications of jurors in the Guiteau case, recalls the fact that Judge Agnew was the first judge in Pennsylvania to modify the rule which excluded jurors who had formed opinions in capital cases, and
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admit them if their opinions were not so fixed but that they could still try the prisoner on the evidence, freed from the influence of previous impressions. This he ruled when Judge of the Seventeenth District. Afterwards on the Supreme Bench he rendered several decisions to the same effect. In the Ortwein murder case, decided in Pittsburgh in 1874, Chief-Justice Agnew considered at length the plea of insanity as a defence in murder trials, and laid down some rules which would have been ill-relished by Guiteau, if made to apply to his case. In his opinion Judge Agnew said: "The danger to society from acquittals on the ground of a doubtful insanity demands a strict rule. Mere doubtful evidence of insanity would fill the land with acquitted criminals. To doubt one's sanity is not necessarily to be convinced of his insanity. A person charged with crime must be judged to be a reasonable being until a want of reason positively appears. Insanity as a defence must be so great as to have controlled the will and taken away the freedom of moral action. When the killing is admitted, and insanity is alleged as an excuse, the defendant must satisfy the jury that insanity actually existed at the time of the act; a doubt as to the sanity will not justify the jury in acquitting."
To give any adequate idea of the impress which Judge Agnew made through his decisions upon the law of Pennsylvania is beyond the scope of this sketch. Every Monday morning during the sessions of the Supreme Court brought a full budget of his decisions, and every day of his vacation was spent in preparing opinions in knotty cases reserved for that time of greater leisure for careful elaboration. Until 1874 the Supreme Court consisted of but five judges, while it had all 'the work which was afterward found sufficient for seven. Ill health prevented Judge Williams from assuming his share of the labor of the bench, and disinclination for work was an impediment in other quarters, so that before the reorganization of the court the labor incident to its duties fell almost entirely on two or three of its members. The reports of that period, as well as for the entire fifteen years Judge Agnew was on the bench, bear testimony to his pro- digious industry. They show him also to be one of those broad-minded judges who have regard to the meaning and spirit of a law rather than its letter. The whole body of his opinions as therein recorded illustrate at every step the keen- ness of his intellect, the soundness of his judgment, and the extent and precision of his legal learning. He became Chief-Justice in 1873, and continued until Jan- uary, 1879. In permitting him to retire from the bench in that year, the State lost from its Supreme Court one of the strongest menibers and best judicial minds that body ever possessed.
Perhaps the most marked characteristics of his judicial career was his deter- mined support of the sacredness of the fundamental rights of persons, as declared and maintained in the Constitution. His opposition to all infringements upon these rights was constant and unwavering. This may be seen in many opinions and addresses. He held that the maintenance and protection of these rights were the truc end of all good government, and nothing short of a real public necessity should be permitted to override them.
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Another leading characteristic is the rapidity with which he writes. Besides the case of Wells vs. Bain, another example may be seen in the contested elec- tion cases in 15 P. F. Smith, 20, the opinion being written during the night after the argument.
Judge Agnew never was a politician in its ordinary sense, and never filled a political office. He avoided both the Legislature and Congress, preferring to sit as an independent judge, acknowledging no political favor, and returning a full equivalent for office by his services on the bench. In early life he was a National Republican, supporting the American system of Henry Clay, especially the tariff of which his preceptor, Judge Baldwin, was an eminent advocate. He joined the Whig party at its formation in 1832-33, and remained a Whig until its extinction in 1854. He advocated on the stump the election of Harrison in 1840, Clay in 1844, and in 1848 he was an elector on the Taylor and Filmore ticket, and canvassed Western Pennsylvania zealously in its support. After his election to the bench in 1851, he withdrew from active participation in politics, except as events of unusual importance called him out. He openly opposed the Know-Nothing movement in 1854, and two years later he assisted at the forma- tion of the Republican party in the convention in Lafayette Hall, in Pittsburgh.
Judge Agnew's original intention was to retire from the Supreme Bench at the end of his fifteen years' term. The continued absence from home, which its duties necessitated, had all along been exceedingly unwelcome to his wife. His life, too, had been a busy and laborious one, and, though still in the full vigor of his powers, he thought that at the age of seventy he was entitled to a rest. He made known to some of his political friends his intention not to be a candi- date for re-election, but was induced by them to remain silent, and was subse- quently brought out by them as a candidate, seemingly with the intention of using his name to head off other candidates, and then sacrificing him in turn. The double dealing and cross purposes of this period are all laid bare in Judge Agnew's open letter, published a few days before the election of 1878, and it is unnecessary to recapitulate them here. It is enough that he changed his pur- pose and resolved to go into the convention, if he did not have ten votes. In that body, with all the regular party machinery against him, he developed an unexpected strength, but the bosses had decided to put him aside, and from their decree there was no appeal.
Representatives of the National party, knowing that Judge Agnew could com- mand a large personal following independent of any party, requested permission to propose his name for Supreme Judge in their convention, but this he refused. Subsequently he was, without his consent, put in nomination by the State Com- mittee of the National party. Of the nomination he never received official notifi- cation, nor was it designed that he should. He was not in sympathy with the economic teachings of that party. He believed only in a coin currency, or one based on coin, having an undoubted representative value, and his thorough republicanism was unquestioned and unquestionable. This the National leaders
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knew, but they thought his name would aid their ticket, and they placed it on it without troubling themselves further about his consent. A similar proposal, made by the Temperance Convention of that year, Judge Agnew expressly de- clined in a letter to its chairman, on the ground that having been an "ostensible" candidate before the Republican Convention, he could not honorably put himself in the front of another party. He determined to hold himself free from any entanglement, and it was a fear of such a charge being made after the election which brought out his open letter before it. During the canvass he was offered the attorney-generalship in writing, under the incoming Republican administra- tion, on condition of withdrawing from the National ticket. Through his son he declined this proffer expressly on the ground that he was nominated without his participation, had not accepted, and had nothing to decline.
Judge Agnew is still in the full enjoyment of physical health and activity, and of mental vigor. Since his retirement he has lived a quiet and comparatively uneventful life among his old friends and neighbors of Beaver. Great changes have occurred in State and nation since that stripling lawyer went there pro- specting for litigation fifty-two years ago, but the essential features of that staid old county-seat remain unchanged. Six children have been born to Judge and Mrs. Agnew, two of whom, their eldest son and eldest daughter, are dead. The latter was the wife of Colonel John M. Sullivan, of Allegheny City, and died in 1874. Of the others, there are two sons, both lawyers: the elder, F. H. Agnew, now in the Senate of Pennsylvania, is practising in Beaver, and the younger, Robert M. Agnew, in Lancaster, Pennsylvania. One of his daughters is the wife of Hon. Henry Hice, of Beaver, President-Judge of the court Judge Agnew for- merly presided over. The other daughter is the wife of Rev. Walter Brown, of Cadiz, Ohio.
The degree of Doctor of Laws has been twice conferred on Judge Agnew, first by Washington College and then by Dickinson. Occasionally he indulges in writing or speaking on legal and public subjects to keep from rusting out. On General Grant's return from his tour around the world, Judge Agnew was selected to deliver the address in Pittsburgh, and in the succeeding canvass for nomination he favored that of General Grant for the Presidency as best calcu- lated to produce national unity. After the nomination of General Garfield he went ardently into his support and delivered, at Pittsburgh and New Brighton, two well-considered and strong speeches in his favor.
The State would do itself a high honor if it should select such a man to represent it at Washington, or to be its Chief Executive. Judge Agnew's numerously published addresses, to which, for lack of space, scarcely any allusion has been made, and his opinions, involving great public questions, as recorded in the State reports, show that he is no mere lawyer, but has all the grasp of mind and breadth of view of the true statesman.
[PROPERTY OF AUSTIN BOYER WEISSPORT, CARBON CO. PA.
HON ULYSSES MERCUR.
ULYSSES MERCUR.
U LYSSES MERCUR, senior Associate Justice, who became Chicf-Justice of the Supreme Court of this State, January 1, 1883, was a native of Pennsylvania, having been born in Towanda, Bradford county, August 12th, 1818. His father was of German descent and removed from Lancaster to Towanda about ISIO, when Northern Pennsylvania was almost an unbroken wilderness, and the village, now one of the most picturesque and thriving towns in the State, an isolated hamlet, nestling in the forest on the west bank of the Susquehanna. He was a young man who had enjoyed good advantages for those days, was possessed of a bright intellect, great energy and strict integrity-traits which rendered him both conspicuous and useful in a new country. Soon after the organization of the county in 1812, he was appointed county treasurer, a position for which he was well qualified. Not long after settling in Towanda he married an estimable lady, who bore him five sons and a daughter. The sons grew to manhood and became prominent business men, noted for their ability, enterprise, honesty and success.
Ulysses, the fourth son, after receiving his preparatory cducation, entered Jef- ferson College, Cannonsburg, Washington county, at the age of twenty. In col- lege he was noted for his studiousness and extraordinary perceptive faculties. In his junior year he was chosen disputant of his class society in a joint discussion with the senior society of which the late Clement L. Valandigham was disputant. The discussion was decided in Mercur's favor, which so annoyed Valandigham that he resolved not to leave college until he had another opportunity of cross- ing swords with his rival of the junior class. The opportunity was given him and he was again worsted, Mr. Mercur coming off victorious the second time. During his last year in college Mr. Mercur found that the mastery of his studies did not require all his time, and, having decided to adopt the law as a profession, entered the office of Hon. Thomas M. T. McKennan, author of the " Tariff of '42" and father of Judge McKennan, of the United States District Court. After gradu- ating with high honors he returned to his home in Towanda, where he entered the office of Edward Overton, Esq., the ablest lawyer in northern Pennsylvania at that time, to complete his legal studies. On his admission to the bar a year later he commenced practice as a partner of his late preceptor. His intuitive love for the profession and thorough knowledge of " the books " acquired by close study, were supplemented by strict attention to business and untiring industry-virtues which seldom fail of success. On accession to the bar he was brought into con- tact with such able and distinguished attorneys as Edward Overton, Judge Wil- liston, William Elwell, William Watkins, David Wilmot and others, who rendered the bar of Bradford county famous for ability and personal worth. The young member soon reached the front rank, and before he had been many years in prac- tice was acknowledged the peer of his ablest associates.
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As a practitioner he was conscientious, and never advised litigation merely to get a " retainer." This reputation won for him the most implicit confidence of the people, and few important cases were tried in the court while he was practis- ing at the bar that he was not employed in. It is no flattery to say that as a jury lawyer he was unsurpassed in the State.
As an evidence of Mr. Mercur's transparent candor and honesty in his rela- tions to clients, and his desire to impress upon students the sacred obligation to profound secrecy and fidelity in their business relations with those by whom they might be professionally employed, it is said that he never retired to the " consul- tation room " with clients, but compelled them to state their cases in presence of such students as were present-assuring them that nothing they might dis- close would ever be repeated.
One characteristic of Judge Mercur remembered by the citizens of Towanda is the untiring industry with which he labored at his profession. While Judge Wilmot, the leading lawyer in the town, who was always noted for a tendency to avoid close application to his desk, was at the village store in the evening, telling stories to the crowd of rustics, young Mercur was at his office writing deeds or poring over his books in search of authorities for use in court. "At any hour," said an old citizen of Towanda, recently, " Mercur could be found at his office. In those days I used to go home very late at night and there was always a light in his office." Judge Wilmot was strong with a jury, but he relied on an infinite fund of wit and turning to use some trifling circumstance brought out at the trial, but Judge Mercur studied cases thoroughly and always went into court well prepared.
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