History of Montgomery County, Pennsylvania, Part 123

Author: Bean, Theodore Weber, 1833-1891, [from old catalog] ed; Buck, William J. (William Joseph), 1825-1901
Publication date: 1884
Publisher: Philadelphia, Everts & Peck
Number of Pages: 1534

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the Swedish justices of the peace. The Dutch sue- ceeded the Swedes in the control of the province, but did not change the administration of justice or remove the justices then in office. Peter Stuyvesant, the Dutch Governor, was intent upon the acquisition of lands and the increase of commerce with the Indians, and therefore gave but little attention to the subject of government or the administration of the laws. The Dutch were succeeded by the English in 1672, who recognized the "Upland Court" as a legal tribunal, having original and appellate jurisdiction of all legal contentions within the province. Ten years later, 1682, William Penn became the proprietor, and it was to the justices at Upland that he officially announced himself upon his arrival. While Penn's frame of government made ample provision for the establishment of courts of justice and the appoint- ment of justices and necessary officers with proper pay and emoluments, he very early betrayed his fear of and hostility to the legal profession by causing the adoption of a law (1686) "for the avoiding of too frequent clamors and manifest inconveniences which usually attend mercenary pleadings in civil causes." This law enacted that " noe person shall plead in any civil causes of another in any court whatsoever, within this province and territories, before he solemnly attested in open court, that he neither directly nor indirectly hath in anywise taken or will take, or receive to his use or benefit, any reward whatsoever, under penalty of £5 if the contrary be made to ap- pear." Evidently the great founder of the colony was averse to the eucouragement of a class of professional men whose learning and influence would make them potential in public affairs. Notwithstanding the dis- couraging character of early legislation, and the hos- tile influence towards all professional advocacy before the lay judges of the period, the necessity for the office of counselors and advocates became apparent to the people, not less to resist official encroachments upon private rights than to quiet titles, preserve the publie peace, defend the innocent and convict the guilty. Penn's scheme of colonization attracted European emigration, and Philadelphia soon became the most populous city on the Atlantic coast. The British flag and the seal of Charles II., under the auspices of which the colony was established, rendered the people subject to the common law of England, and although Penn and the first Assembly abrogated the laws of English primogeniture, and sundered all relation between church and state, and in many ways simplified the form of administering justice, yet his own plan of instituting proprietary interests with periodical payments for use, and con- veyances subject to perpetual ground-rents, soon gave rise to unexpected complications and made the appointment of a law officer a necessary adjunct to the colonial administration.

John White was appointed attorney-general of the province on the 25th of August, 1683. This officer

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was liberally paid for the prosecution of all matters in the interest of the proprietor, while no defendant, as we have seen, was allowed to employ or retain counsel against him. It does not appear whether John White was or was not learned in the law, nor is it important, for as the courts were constituted, his power and influence, whether skillfully exercised or not, would have great and undue weight in favor of the proprietor. Early prejudices, however, yielded to wiser councils upon the part of the proprietor, and the law forbidding the payment of counsel was repealed. But it was not till the fires of the Revo- lution began to burn, and the public spirit of the legal profession of the country was felt, that lawyers were raised to the bench in Pennsylvania. Not one of the five justices who were designated by the Supreme Executive Council of the State to open the first court in Montgomery County was learned in the law.1

The history of the judiciary and the legal profession of Montgomery County would be incomplete without some reference to the bench and bar of Philadelphia County, from which Montgomery county was set off in 1784. The division of the territory and the un- finished business transferred to the new court brought many Philadelphia members to the bar of Montgomery County. The proximity of the two seats of justice and the early and ever-increasing intercourse between the people of the two districts have always been conducive to the most intimate and pleasant relations between members of the bar in Montgomery and Philadelphia. There is an unselfish and honorable pride experienced by the bar of Montgomery County in being historically associated with the rise of the legal profession in the province of Pennsylvania. Without any disparage- ment of the living or the more recent dead, it can in truth and justice be gratefully said that among the jurists and practitioners prior to the division of Phila- delphia County this district furnished the State and nation some of the most distinguished lawyers known to the country.

The Bench .- William Penn was the author of the code of laws adopted by the first Assembly at Upland in 1682, and his experience taught him that courts of justice were necessary for their enforcement. The friendly welcome given him by the settlers on the Delaware and by those in authority, not less than a sincere desire on the part of the proprietor to cultivate the most amicable relations with them, induced him to continue the justices in office, at the same time providing for additional tribunals for the adjustment of disputes and the final adjudication of controversies.

Consistent with his profession of religious faith, he urged the amicable settlement of all disputes arising among his followers, and to this end provided for the appointment of "peace-makers " and a mode of "vol- untary arbitration," the general principle of which is in practice in the commonwealth to this time. For the incorrigible class, who failed to "agree with their adversaries while in the way with them," he held the judgments of courts to be necessary. To this end the Provincial Council, presided over by Penn, as pro- prietary and Governor, exercised judicial powers, and at times sat as a "High Court of Errors and Appeals." The novel manner in which it transacted business of a legal character may be shown by some of the refer- ences to its proceedings still extant. The following in brief will illustrate: "The court advised the par- ties to shake hands and forgive one another, and ordered that they should enter into bonds for fifty pounds apiece for their good abearance, which they accordingly did;" and to emphasize the extraordinary judicial practice, it was further "ordered that the records of the court concerning this business be burnt."

The efforts to blend the executive and judicial powers of the colonial government, which had also a co-ordinate legislative department in the General Assembly, elected by the freemen of the colony, met with increasing opposition, and soon led to the organi- zation of the "County Courts," with jurisdiction regu- lated and enlarged from time to time by statute. This course was consistent with the best interests of the new community and most conducive to the peace and tranquillity of society and the permanency of proprie- tary and general property rights. Peter McCall, in his lecture before the Law Academy of Philadelphia in 1838, refers to the early institution of these courts:

" The first organization of the courts was admirable for its simplicity and convenience. The County Court in the days of Alfred and Egbert, a tribunal of great dignity aud splendor, was drawn from the obscurity into which it had sunk after the Norman invasion, and was made the ground-work of the edifice. It was composed of the justices of the peare of the several counties, with an appeal to the Provincial or Supreme Court. The Provincial Court originally consisted of five judges. The members afterward varied from five to three, who went their circuits every fall and spring in each county. To it belonged the cognizance of the higher offenses and all appeals from the County Courts, both in law and equity. To complete the structure, there were added the Quarter Sessions and Orphans' Court and the Admiralty. Such was the plan of the judicial system established at the settlement of the colony ; so simple, yet so con- venient in its arrangements, that, though frequent alterations were made in its details by subsequent legislation, the general outline remains to the present day a standing proof of its enduring excellence."

The County Courts exercised equity powers and jurisdiction as early as 1685, and the justices while sitting in equity were styled "commissions." Gov- ernor Penn and the Provincial Council retained Ad- miralty jurisdiction and adjudicated all maritime matters until 1693, subsequent to which the mother- country, assured of the growth of the colony and its important relation to her shipping and commer- cial interests, assumed and exercised the right of appointing judges of the Admiralty Courts. The

1 As Jate as 1759 "a supplement to an act for establishing courts of judicature in the Province" provided "that five persons of the best discretion, capacity, judgment and integrity may be, and no more, appointed and commissioned to hold the county court of record, styled and called the ' Court of Common Pleas' in each county, and there to hold a court." The judges appointed under the supplement were Thomas York, Rowland Evans, John Potts, Samuel Wharton and John Hughes. 34

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HISTORY OF MONTGOMERY COUNTY.

commissioners of the Admiralty in England nomi- adjudicating questions of great importance in ac- nated and the crown commissioned the incumbent under the great seal of the High Court of Admiralty. These courts continued until the adoption of the Constitution of the United States, when their juris- diction was vested in the United States District Courts.

For a period of thirty years and upwards, or nn- til 1720, the courts as instituted worked to the sat- isfaction of the colony. Meantime there came into practice a number of well-trained lawyers, some of them fitted and prepared for their calling in the schools and courts of England. Lay judges and Provincial Councils found in them ingenious advo- cates and ambitious men, who often held seats in the General Assemblies and other offices of trust, and the administration of the law was insisted upon by them with an exactness that frequently created ap- parent hardships, which lay judges, with crude notions of Chancery practice, could not relieve. Governor Keith conceived the idea that a separate Court of Equity would meet the wants of the situation and enable the presiding justices to mitigate all the rigors of the statute law, and mete out justice to suit the peculiarities of exceptional cases. The following proclamation shows the time and manner of instituting the "Court of Equity," which con- tinued from 1720 to 1735;

"A PROCLAMATION.

" Whereus, Complaints have been made that Courts of Chancery or Equity are absolutely necessary in the administration of justice for miti- gating in many cases ye Rigor of ye Laws, whose judgments are tied down to fixed and analterable Rules, and for Opening a way to the Right and Equity of a cause, for which the Law cannot in all cases make a Sufficient Provision, Ilave, notwithstanding, been but too seldom regu- larly held in this Province in such a manner as ye Aggrieved Subject might obtain ye Relief which by such Courts ought to be Granted ; and whereas, the Representatives of ye Freemen of this Province, taking the same into Consideration, did at their last meeting in Assembly request me that I wonkl, with ye Assistance of ye Council, open and hold such a . Court of Equity for this Province. To ye end, therefore, that his majes- ty's good subjects may no longer labor under those inconveniences which are now Complained of, I have thought fitt by, etc., with ye advice of ye Comeil, hereby to Publish and Declare, That with their assistance I Purpose (God Willing) to open and hold a Court of Chancery or Equity for this Province of Pennsylvania at ye Court-House of Philadelphia, on Thursday, ye twenty-fifth day of this instant (Angust), From which date the sail Court will be and remain always open for ye Relief of ye subject, to bear and Determine all such matters arising within the Province aforesd as are regularly cognizalle before any Court of ('hancery, accord ing to ye Laws and Constitution of that part of Great Britain called Eug. land, and his Majesty's Judges of his Supreme Court as well as ye Justices of ye Superior Court, and all others whom it may concern, are required to take notice hereof and govern themselves accordingly. Given at Philadelphia ye tenth day of August, in ye seventh year of ye Reign of our Sovereign Lord George, King of Great Britain, France and Ireland, Defender of the Faith, etc., Annoq. Domini, 1720.

"God save the King.

" WILLIAM KEITH."

This provincial Court of Chancery was in high favor with the proprietary authorities, but whatever influence the legal profession had in public affairs was exerted against it. It afforded a refuge for the lay judges to avoid the close pursuit of the legal mind of the period, and gave to them a power of

cordance with their individual opinions, which were found to be as variable as the winds. Keith's avowed purpose in establishing this court was "to baffle the chicanery of lawyers;" but suitors soon found to their sorrow that unlearned chancellors vested with the exercise of nnrestrained opinion produced a confusion of authority which rather in- creased than mitigated the rigors of the common law. After an experience of fifteen years the court was abolished, and equity powers were con- ferred on the justices holding the County Courts. Among the eminent lawyers who practiced in this Court of Equity, and whose hostility finally over. threw it, were Andrew Hamilton,1 Clement Plum-

1 Andrew Hamilton is one of the most illustrions names in the provin- cial history of Pennsylvania. There was a mystery concerning his origin and early antecedents that has never been cleared. Unly conjectures conld be indulged about the confusion of the name of Hamilton with that of Trent, which he sometimes bore, and which, it was offen said, was the une to which he was really entitled. His eminent abilities, the dignity of his carriage, the courage with which he maintained his connections upon the subjects of right and liberty, given to public exhibition not very long after his first appearance in humble guise, have led some to suspect that for some political or other reason he had fled from his native country, Scotland, and while yet calling himself occasionally by his paternal name, had wlopted the other, or been heard to say that it was his rea name, in order to avoid identification and parsnit. Some, indeed, went so far as to connect him with the duke of the same name, who had fought a doel with land Mohnn.

Hamilton

Many ingniries, after his death, were made about his family, but none were ever satisfactory, except that he was known to have been born about the year 1676, and when about of age came to the county of Accemac, en the eastern shore of Virginia. In one of his addresses before the Assembly

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THE BENCH AND BAR.

stead and Robert Assheton. These great counselors held that principles of equity could only be safely adminis- tere.l in harmony and analogy with settled principles of common and statute law, and that the most learned judges of the courts of law were the ablest chan-

eellors and quickest to discern wherein the written law is inadequate for all its behests. Such judges are most likely to wisely employ those exceptional powers that have long been intended to supply what the com- mon law lacks in the complete ascertainment of rights.

That, however, for which Hamilton is best known by the greatest number of persons is his conduct in one celebrated law case, which he conducted for a defendant in another colony. The motives that led to his undertaking this case were not only nor mainly the defense of the in- hvidual client who had been prosecuted, but the establishment of a most important principle that before his day had been assaulted and dangerously hurt in his own province. This was in the case of William Brulford, the first printer in Philadelphia.

of Pennsylvania, after he had become famous, he made that celebrated eulogy in which, among other things, he spoke of " Liberty, the love of which, as it first drew to, so it constantly prevailed on me to reside in this province, though to the manifest prejudice of my fortune." When he arrived at Accomac County he gave his name as Trent. Shortly after his arrival he opened a classical school, and was afterward employed as steward upon a plantation. On the death of the owner he married his widow, and removing to Chestertown, in Kent County, Md., began the practice of the law. How it was that he went to England not long after- The case in which Hamilton appeared in New York was that of John Peter Zenger, indicted in 1735 for a libel against the Governor of New York before Judge De Lanrey, chief justice of the province, Frederick Phillipse, second judge. Zenger was defemled by James Alexander and William Smith ; but these counsel having made bold to question the jurisdiction of the court for the trial of the cause, the following order was passed in quick indignation : "James Alexander, Esq., and William Smith, attorneys in this vonrt, having presumed (notwithstanding they were forewarned by the court of their displeasure if they should do it) to sign, and having actually signed, and put into court exceptions in the mine of John Peter Zenger, thereby denying the legality of the judges their commissions, though in the usual form, and the decree of this Supreme Court, it is therefore ordered that for the said contempt the said Jantes Alexander and William Smith to excluded from any further practice in this court, and that their names be struck off the roll of attor- urys of this court. ward it has not been told, but it appeared that he was admitted to the bar of Gray's Inn, London, and in the winter of 1712-18 he acted as counsel for William Penu in a case of replevin, brought by one Burkely Codd. The defense by the proprietary was that the quit-rent dur from Codd's land being a rent service, distress was incident thereto as of com- mon right. The account given by James Logan of this suit shows the astuteness of the counsel, both in asault and timely retreat. "lle baffled them, though he thought not fit to suffer it to proceed to a trial for want of better tackle un our side." What the counselor meant by " tackle " we cannot precisely say. It was, perhaps, the sufficiency of goud witnesses or full assurance of the value of the defense. It is be- lieved that he removed to Philadelphia about the year 1715, His boll tenger brought him the following year into collision with Charles Gookin, who was then Lieutenant Governor of the province, against whom he was reported to have sworn an oath and uttered other "wicked, opprobrions and reproachful words." The bond fixed for his appear- " Y'er eur, JAMES LYLE, Cl." aner at court to answer the charge was one thousand pontids, showing Being the duty of the court to appoint for the defendant counsel, as he was now without, they named one whowe servility was such as to promise a speedy conviction. It was in this emergency that the friends of Zen- ger applied to Andrew Hamilton, whose fame, especially as a courageous defender of the innocent and oppressed, had spread throughout the whole country. He accepted the call and repaired to New York. What- over were his opinions concerning the exceptions taken by his predeces- Bors, Alexander and Smith, he was too astute to wage a warfare at a point shown to be impregnable, and, with a boldness amounting to andacity, assumed the position taken by William Bradford nearly half a a century before, admitted the truth of the facts alleged to have been committed and then proposed to adduce testimony to their existence. This proposition was of course refused by the court. But Hamilton entered upon an argument, wherein he gave a history of the trial by jury, how it had been instituted by our ancestors in order to take from kings and their minions the absolute power they claimed over the lives, property and security of the people. In this connection he spoke with most splendid eloquence uf that other provision, -that in criminal trials the jury, however unlearned they might be, when they were brought within thw contt-roum, wore invested with powers equal to the judges whu sat cases, with the added power of saying whether or not they had been vio- lated. Withont derogating from the powers of the court, he enlarged upon the equality of the jurors, and then he appealed to thrin to say if it was possible for them to find that their fellow-citizen, free as they were, and as upright, was deserving of punishment for what he had done, and what the bravest and best citizen of New York wonkl feel that he had a right to do, not only without punishment, but without the fear of it. Most masterly was his praise of truth. His peroration was spoken of as the very highest height of majestic "loquence. He called to mind many of the brave of all ages who had suffered for the truth, and compared their memories with those uf the tyrants, great and small, that had inflicted them. Even the court could not withstand the power of his appeals. The charge of the chief justice was such as to appear that in bis terror of being numbered among the oppressors of the innocent, he was quite willing to throw the respon- sibility of deciding this case upon the jury. These, after a brief confer- | ence, brought in a verdict of not guilty. The defense made a profound impression, not only throughout this country, but in England, where a leading statesman is reported to have said of it, "If it is not law, it is better than law, it ought to be law, and will always be law wherever justice prevails ; " and it was further reported that " the greatest men at the bar have openly declared that the subject of libel was never so well treated in Westminster Hall as in New York." either the importance of the injury that the high uthicial had received or that of the assault made by the eminent lawyer. The rast did not come to a hearing during the term of Gookin, and it was discontinued by his successor. The following year Hamilton became attorney-general of the province, and in 1720 was invited to the Council. Ile accepted the invi- tation on condition that his services should not interfere with his pro- fession. A letter from James Logan, in 1723, contains expressions that enable us to form an idea of the singular greatness of spirit that belonged to Hamilton. "He has for three or four years past appeared very hearty in the Proprietor's interest, notwithstanding it is not his natural disposition to be on the side of those who are accounted great, or une in power ; Int of late he had somewhat recoiled, and given more way to nature. He is very trio when he professes friendship, unless he thinks himself slighted, which he cannot easily brook. He is a very able law- yer, very faithful to his client, and has generally refused to be concerned for any plaintiff who appeared not to have justice on his side. He has done many considerable services for our Governor (Sir William Keith), but of late they have openly been at variance, for which reason 1 am of opinion that he will not appear against the Governor, for he is singularly generous that way. I have been much obliged to him, both on my own | upwmn the bench above them in deciding what were the laws in such account and the Proprietor's, and I heartily wish he may be treated there by the family in such a manner as may engage him, of which I am some- what apprehensive." This letter was written to Gonldney, one of the frietuls of the Penn family in England, on the occasion of a prospective voyage of Hamilton thither. Among other subjects of dispute with Governor Keith was doubtless Hamilton's opposition to the Court of Chancery that the latter had established in 1720, and which afterward Hamilton bore the lending part in abolishing. He sailed for Europe in 1724, Irving before then resigned as attorney-general, and appeared as solicitor in the Court of Chancery in London for proving the will of William Penn. For his services to the Penn family he received as re- ward one hundred and tifty-three acres of land, lying north of the city, and west of what is now Ridge Avenue, whereon he built his country seat, " Bush Hill." In 1727, Hamilton became prothonotary of the Common Pleas and recorder of the city. The same year he was elected to the Assembly, of which, in 1729, he became Speaker. For ten years consecutively, with our exception, he was returned to the Assembly. The exception occurred during the administration of Governor Gordon, and was owing to a social quarrel between the Governor's daughters and Miss Margaret Hamilton. The particulars we do not know, Init this nınch is certain, that the young ladies at the Executive Mansion induced their fatber to employ all his influence, official and personal, against the father of their rival, and he was defeated at the polls.

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History of Montgomery County, Pennsylvania, Part 123

Author: Bean, Theodore Weber, 1833-1891, [from old catalog] ed; Buck, William J. (William Joseph), 1825-1901 Publication date: 1884 Publisher: Philadelphia, Everts & Peck Number of Pages: 1534

Author: Bean, Theodore Weber, 1833-1891, [from old catalog] ed; Buck, William J. (William Joseph), 1825-1901
Publication date: 1884
Publisher: Philadelphia, Everts & Peck
Number of Pages: 1534