History of Philadelphia, 1609-1884, Part 150

Author: Scharf, J. Thomas (John Thomas), 1843-1898. cn; Westcott, Thompson, 1820-1888, joint author
Publication date: 1884
Publisher: Philadelphia, Pa. : L. H. Everts & Co.
Number of Pages: 992

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" Given at Philadelphia yo tenth day of August, in the Seventh year of ye Reign of Our Sovereign Lord GronaE, King of Great Britain, France, and Ireland, Defender of the Faith, &c., Annoq. Domini, 1720. "God Save the King

" WILLIAM KEITH."

The law enaeting the establishing of this court was repealed, as we have seen, and since that time | 1715 there has not been another. The sentiments of a large majority of the people of Pennsylvania, both as a province and a State, have been averse to a separate court of equity. Indeed, there is no need of such a court anywhere when equitable jurisdiction is im- parted to common law judges with the caution which has been observed in the courts of this State. The time has long passed when decrees in equity can be rendered according to the individual notions of right and wrong entertained by presiding magistrates.

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HISTORY OF PHILADELPHIA.

They are safe only when rendered, not in opposition to, but in analogy with the law, and in all possible har- mony with it. The safest equity judge ( judicial tem- per and integrity being not in question) is he who is at the same time the ablest, or would make the ablest, judge of a common law court. It is such as he who is the quickest to see wherein the common law is in- adequate for all its behests, and is ready to employ those exceptional peculiar powers that are meant to supply what the common law lacks in the complete ascertainment of rights.

These preliminary observations seemed proper to be made before beginning with the long list of those eminent men for whom the bench and bar of Phila- delphia soon became distinguished.

In a new community, settled and controlled by bold and thoughtful, though not learned men, what judicature is needed may afford to be simple in its in- ception. Very different were the variety, the subtlety, and the importance of civil suits in a city like London or Manchester, and in a town like Philadelphia two centuries ago. Here judges, if not learned in the law, were as learned as any, except an occasional lawyer, whose stock of learning could not be well increased without fees, with which to purchase law-books as well as bread. Such judges, in spite of their ignorance of legal principles and formularies, might sit upon cases that arose in a simple state of society, and give judgments that in the main would be satisfactory. As wealth and population increased, and labor and enterprise became diversified, there would arise those who were competent to conduct litigation multiplied according to the subtleties and necessities that would of necessity follow. There was sometimes one lawyer among the judges in the person of the recorder, who presided in the City Court. To this court be- longed almost exclusively the trial of crimes com- mitted within the limits of the city, so that the Quar- ter Sessions was relieved of the most disagreeable and difficult business that afterward befell that tribunal. The Common Pleas and Orphans' Court, and the Quar- ter Sessions, all served by the same judge, were occu- pied chiefly with executive, rather than judicial, con- cerns, such as laying out and working upon public roads, granting licenses, appointment of guardians, and other trusts, such as require not great learning iu those who are chosen to discharge them. Then we should not forget the salutary influence of the "peace-makers." In a peaceful society the control that a few men, known to be upright, just, and benevolent, can exert is always very great, especially when the prevailing religious tone is one that inculcates quiet and friendship with peculiar stress. Some idea may be had of the amount of business transacted in courts when we are informed that the proceedings of every kind, during twelve years of the Orphans' Court, from 1719 to 1731, would fill not more than twenty or twenty-five pages of an ordinary 12mo printed volume. Then much of the business in criminal causes was the trial of petty

offenses, as the utterance of oaths in the market- places and appearing upon the streets, whether in innocent mischief or not, of men and boys in women's apparel, the latter being pronounced in one instance by the good magistrate, who was horrified by the ne- cessity of trying it, as an offense "against the law of God, the law of this province, and the law of nature, to the straining of holy profession and incoridging of wickedness in this place."

Notwithstanding such simplicity, it is surprising in what brief time came forward men who gave that rapid impulsion to bench and bar which made them easily take rank quite above those in any other American province. Most commendable is the pride with which the lawyers of Philadelphia, conscious of their value, have rescued from oblivion the names of those who have illustrated the history of their profession. The bar of Philadelphia rose into distinction so early after the settlement of the town, it was composed of men, some of them so gifted, both in genius and character, that it soon became a sort of guild, with a code of manners and deportment that was the more binding because unwritten, and its records were things too valuable for its members, living at any period of its existence, to suffer to be destroyed. If ever there was in this country an aristocracy of talent, the only aristocracy that ought to exist in any coun- try, and that can exist in a country like ours, it was that of the bench and bar of Philadelphia for a hun- dred years, beginning in the first half of the last century.

The bench of Philadelphia began upon a basis of integrity and respectability. The men in the settle- ment who were most known for good character and good sense were appointed to the magistracy, and, except for the first prejudices against lawyers as a class, the early conduct of judicial administration might be regarded as nearly faultless as in its pecu- liar circumstances it was possible to be made. Even these prejudices were temporary, as they must neces- sarily have been when the increasing importance of the affairs of the province must demonstrate the in- dispensability of legal science in the ascertainuient of disputes concerning individual rights and wrongs. Integrity and respectability, these were the first essen- tial qualifications for a Philadelphia judge. But that such a fact has been often observed, it might not be believed how soon a man of good sense and probity may become a reasonably good judge of a court, even one of high jurisdiction. Law being, or aiming to be, at least, " the perfection of human reason," a man of good sense and probity, or such a man along with several others of his kind, by careful attention to his official duties, may himself be surprised to notice how soon he will become familiar, not only with the principles but the formula of judicial transactions. On the death or retirement of these early judges it became a habit of making records, in one form and another, at least in cases of special prominence, of

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THE BENCH AND BAR.

their peculiar points of excellence, a habit which, persisted in, has given to us that familiarity with the judicial history of Philadelphia that we value so much. For instance, Isaac Norris presided for a long time in the Quarter Sessions and Common Pleas, and was a member of Council for more than thirty years. Notice was taken of this judge, at the same time merchant, after his death, that took place in 1735, a part of which reads thus, "His great abilities in the discharge of his duty in each of these stations (judge and councilor) made him the justly esteemed, one of the most considerable, men in the government. His courteous deportment and affability gained him the love and respect of many. His quickness of appre- hension, liveliness of expression, and soundness of judgment met and were remarkably conspicuous in this good man, nor did it appear that the age of sixty-four had impaired any of these valuable quali- ties. None were more frequently applied to for com- posing differences than Mr. Norris, and few succeeded better in good offices of this kind, his reputation for sense and integrity being so well established that both parties willingly submitted themselves to the deter- mination of his superior understanding." Therein nothing is said of him as one familiar with legal de- cisions and principles. Yet such praise is wanting in nothing that would add to the reputation of a judge who was thus plainly shown to be sufficient for all the behests of the judicial offices that he had held during his life that was now passed.

We give here a copy of the Precept for the first court which was held in the city : 1

" To ye high Sherif of ye County of Philadelphia :

"Nicholas More, Esq., &c., President of ye Free Socyety and Court of Justices.

" Thomas Ferman, Esq., and one of ye Justices of ye Peace.

" Lawrence Cock, Esq., and one of ye Justices of ye Peace.

" Three Justices of ye King shall keep ye Peace in ye County of Philadelphia, and they that are appointed shall hear and terminate divere ffelonies, transgressions, and other wicked deeds being com- mitted in ye County aforesaid, vizt. We do command through all ye parts of ye same County aforesaid, And in ye authority of ye King, that thou mayest go thorow it and Cause to come before us or our Company- ions, ye Justices of ye Peace in Philadelphia ye Eleventh day of ye Eleventh month alias January att ye Blew Anchor, att 10 of the clock, euch twenty ffoure honest and lawfull meo of ye County and twenty- ffonre Milites et al. provos et legaces homines de Corpore Com. and other honest and lawfull men of ye body of ye County, whosoever they be, and that have possessions and be ffree Indwellers to Enquire in and in ye place concerning these things wch shall be Commended you of ye King aforesaid : also yee muet cance all Crowners of ye County Mar- shalle, Constables, and other officers of ye County, to Know it that they are then, att that time to know and to fill up those things wch they must do by reason of their offices. Moreover, thou must cause to be proclaimed in all ye County and privilege, and in fitt places, that yo sessione of ye Peace shall be held att ye day and place beforesaid, and

1 This precept illustrates plainly one of the most confusing peculiari- ties of the early period, viz. : the carelessness which prevailed as to the proper spelling of Christian names and surnames. It seemed to be a privilege to spell a name in any style, aud to vary it with each repetition. Thus Thomas Fairman is called in this writ Ferman and signe it furman. Lawrence Cock signe his name Lasse, aud we may add that it was fre- quently spelled Lars. This will account for different methods of spelling names to be found in this work, which could not be avoided aonietinies by reason of contemporary errors and differences.

that thyselfo must be there to kom- and pongan clase things wch belong to thy office : and thou must have so many names if witnesses, Crowners, Marshalle, Conntables, &c., as is required by precept. " Dated under onr seales ye 2d January, 1682-83.

"N. MORE [ B] AT .

" Tho. farmiun BYAI

" LANSE. COCK. [SE.AL. '

Each of these seals has impression of the coat of arms of the signer. On that of Nicholas More is a shield of four quarterings, the first and fourth, four bars (barry), second and third a lion rampant, crowned, erest, a ducal coronet: the shield surrounded by olive branches. That of Thomas Fairman (ffarman, he writes himself) has a shield having a chevron with two squirrels above and below it. That of Lasse Cock has a pelican on her nest in a circle, feeding her young with blood from her breast.

We should have a very large amount of these records of judicial proceedings, but for the careless- ness of the janitors of the court-house buildings, to whose custody in the early part of this century they were assigned by the county commissioners without striet instructions as to their safe keeping. Some of these persons, it was afterward ascertained by a mem- ber of the bar, were in the habit of kiudling the fires of the court-rooms with them. Some of the most eurious and interesting that remained were rescued, aud afterward bound in a volume by the Historical Society of Pennsylvania.

Here follow copies of some presentments :

" PHILADELPHIA, &N. We, the Jurors for this City, doe present Philip Kilbeck, of Chester County ; for that on the twenty-third Day of this instant, ut night, at the house of Margaret Garret, in the front Street, in Philadelphia, sforead, did then and theire mentace and threaten herman Debick, by drawing his bayonet and making a pop at him, the said herman ; and at the same time and place abovesaid did other three curses to the terrifiding of the said herman and other the Queen's Leigo people, contrary to the laws in that case made and provided. Signed in behalf of the Rest of the Jurors this 28th day of the 7th mo., 1742, pr. " JouN PSONS, For- man.

" Appears and submits, and puts him-

self in mercy of the Court.

" Eilbeck for breach of the peace and three curses, xxx s."

Another reads thus :

" PHILADELPHIA, the 34 day of the 9th Mou., 1702.

" Wee, the Grand Inquest for the body of this city, do prosent Thonins Mattocks, of Philadelphia, Butcher, for drunkentes, & particularly upon the twenty-fourth duy of the Eighth month, he, the said Thomas Mattocks, was drunk in the market-place of this city. Sined in behalf of the said inqueet by JNo. Proxy, forman.

" Weo also present George Robinson, of Philadelphia, butcher, for uttering a grevlous oth on the thirtieth day of the seventh month list, another oth the tenth day of the eighth month last past in Philadel- phia, aforesaid. Sined io belinlf of the said inquest by JNo. Pauxs, forman.

" Submitts. Whereupon the Court fines him XII S. for the ad uathe, it being the 2nd offence, & orders him to be discharged, the Court paying his feeg."

The third is,-

" The I of ye 12 month, 1 _

" We, ye Grand Jury of yo Clty of Philadelphia, pre ent sarah Stivee. wife of John Stivee, of this city, for being dressed In met's Mathies. contrary to the nature of her sects, and in such dingutes walked through the atreeta of this city and from house to hitise on or aloout the 26th ef tenth month to the grate disturban e f wel mit bei jer- Bons and Incoridging of vice In this place , for this ni ther lth, enir. mities, we pray this honorable Bench t , supress, Sined In I ehall of the rest, AUHARAM 11. (M. / w/m."

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HISTORY OF PHILADELPHIA.

Yet another of the same date,-

"Wa, of the Grand Jury for the Citty of philadelphia, Do psent John Joyse for having of to wifes at once, which is boath against the law of God & man."

It is usual in the lists of appointments of attorney- general of the province of Pennsylvania to place the names in order of appointments, thus: "1683, 8th month [October] 6th, John White; 1686, Jan. 16 [new style], Samuel Hersent ; 1686, 2nd mo. [April], David Lloyd." It is doubtful whether these assign- ments are correct. John White was appointed, ac- cording to the minutes of the Provincial Council, " Attorney-General to plead the cause between Our Proper & Gov' and Char : Pickering & Samuel Buck- ley." The appointment was for a special object, and related to a prosecution in Philadelphia only.

Samuel Hersent, "appointed 16th of 11th Mo. (Jany), 1685-86," might or might not have been a lawyer. He was sheriff of Philadelphia at the time, and his au- thority was somewhat special in character,-" To prosecute all offenders against Ye penall Laws of this Province & to search for those Yt are on Record Convicted, & prosecute them if Yt have not satisfied Ye Law." At the next meeting it is said,-" Samll Hersent, Atturney for Ye County of Philadelphia was attested in Yt Office." In the minutes of 1st of sec- ond month (April), 1686, the commission of Hersent was called for and was found to be "Impowering him to be Atturney for Ye County of Philadelphia to prosecute all offenders that break Ye penall stat- utes of this Province." . . . "It was put to Ye Vote whether a Sheriff should be an Atturney in the same Court he is Sheriff: Was carried in Ye negative, nemine contra dicente, with an Order thereon to be made." From this it is doubtful whether Hersent ever was attorney-general of the province. His du- ties seem to have been as prosecutor for the city and county of Philadelphia.

At a meeting of the Council on the 5th of the Sixth month (October), 1686, "David Lloyd Pre- sented his Commission, given him by Ye Gov", bear- ing date Ye 24 of Ye 2ud Mo., Apll, 1686, Constituting him Atturney Genll for this Province and Territorys, To wch he was Attested, Declaring his Allegiance to Ye King, Fidelity to the Govr & Governmt, and faithful performance of his Office." This commis- sion came from Penn himself, who was generally called the "Govr." Lloyd seems to have been the first attorney-general appointed for the province, and was therefore independent of Council. He held other offices at the same time. Lloyd arrived in Philadel- phia in the ship " Amity" on the 15th of the Fifth month, 1686, and must have received his appoint- ment from Penn in England. In 1789, Lloyd was clerk of the County Court of Philadelphia, of the Provincial Court, and deputy clerk to Thomas Lloyd, master of the rolls. In that year he came uuder cen- sure of the Council for having refused to produce the records of court before that body. The Council voted

that he was "unfit to be a public clerk or public offi- cer of record before any court in this government," and that he stand discharged therefrom till upon ac- knowledgment of his offense and giving the Council satisfaction the Governor shall think fit to commis- sion him again. James Claypole was appointed in his stead, but David Lloyd refused to give up the records to him, and immediately afterward Thomas Lloyd, who was master of the rolls, appointed David Lloyd deputy clerk of the County Court, a proceeding which caused great dissatisfaction in the Councils, the members of which looked upon the transaction as a contempt of the Governor's authority.

On the 19th of May, 1698, John Moore was ap- pointed attorney-general. He was at the time attor- ney-general for the king and prosecutor in the Admi- ralty. At first he refused to accept the office under the province, but afterward accepted that appoint- ment (first Logan Papers, p. 60). After David Lloyd ceased to be attorney-general he became quite con- spicuous in the political affairs of the province. He was elected member of the Assembly for Philadel- phia County in 1701, and was Speaker at the session of 1703, and continued to be re-elected and hold that office until and including the sessions of 1709-10. He was also a member for the county at the session of 1711-12. He removed to Chester, it is supposed by Dr. Smith, in 1710, but it is doubtful whether he was a permanent resident before 1712. During his term in the Assembly Lloyd was at the head of the anti-proprietary party, particularly in the disputes with the Assembly. He drew and signed the address to the proprietary in 1704, which was so offensive to Penn that he sent over from England directions that Lloyd as a signer of the address should be prosecuted for high crimes and indicted. This was not done, probably through the exercise of discretion by James Logan, who had the direction of Penn's affairs, and was already in hot water in consequence of previous disputes. In 1718, Lloyd was appointed chief justice of the Supreme Court, and was reappointed in 1726. On the 4th of February, 1731, the Council declared that he was "unfit to act." He died on the 5th of April, aged seventy-eight years. Lloyd was born in the year 1656, in the parish of Manavan, in the county of Montgomery, North Wales. His first wife, Sarah, was born at Cirensister, Gloucestershire, England. She came with him to America, but died some time after her arrival. Lloyd married for his second wife Grace Growden, who survived him.1

Edward Shippen was a native (born 1639) of York- shire, where his family, having removed anciently from Cheshire, had for a long period their ancestral hall,-Hellham. He emigrated, in 1668, to Boston,

1 Lloyd erected at Chester the fine old manaion "Green Bank" in 1721. In after-times it was the residence of Commodore David Porter, of the United States navy, and is atill called Green Bank. Grace Lloyd, his second wife, died in 1760 nt nn advanced age, probably ninety years .- Martin's History of Chester, p. 80.

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THE BENCH AND BAR.

where in mercantile pursuits he in a few years accu- whose salary provisions had not yet been made by the Assembly. IIenceforward Logan became the general business agent of Penn during his lifetime, and of his family after his death, being appointed to the last position by will. He was elevated to a seat in the Council in 1704. Disputes had arisen during the proprietary's first sojourn in his province, on the one side with the officers of the crown on several subjects, and with the poorer sort of Quakers, on the other, about quit-rents. Of the three Deputy (for- ernors who administered the government after his departure, Evans, Gookin, and Keith, not one was competent for the embarrassments of the province. Logan, honestly and ardently devoted to the inter- ests of his employer, was yet haughty and aristocratic in tone and bearing. The lapse of Evans while Deputy Governor into licentiousness, and his con- tinual disputes with the Assembly, were employed by David Lloyd to incite the Quakers generally against him and the government. So fierce was the resentment against Logan, who was secretary, that the Assembly presented articles of impeachment against him. The defiant attitude of Logan, united with the Governor's decision that he had no right to try impeachments, exasperated the Assembly to that degree that they ordered the sheriff of Philadelphia to arrest him while on the eve of his departure for England, and hold him in prison until he should recant some of the invectives which he had thrown upon several of its members. But the sheriff dared not obey a mandate so evidently unlawful, especially when directed against one in whom he knew the proprietor had away without molestation. mulated a fortune of ten thousand pounds. A mem- ber of the Church of England, he married Elizabeth Sybrand, a Quakeress, and adopted her faith; and during several years bore courageously his part of the persecutions inflicted on that sect by the Puritans. On the appearance, in 1693, of a meteor in the heavens, over Boston, the authorities there, supposing that they were threatened with the vengeance of heaven for their mildness in the punishment of Quakers and Baptists, turned upon them such vials of wrath that Mr. Shippen was driven to seek a home in the city of Penn. But before he left Boston he erected a monument, which he in vain endeavored and hoped to make enduring, near what he styled "a pair of gallows, where several of our friends had suffered death for the truth, and were thrown into a hole." He soon acquired by his wealth and character so high a position in his new home that he was elected (1695) Speaker of the Assembly, and made by popular vote, the next year, one of the Provincial Couneil, and returned to the same office at several successive elec- tions. In 1700 he was nominated to the same board by Penn, and became one of the justices of Philadel- phia County, and afterward the first mayor of the city. For a while he was at the head of the government, and was made one of the judges of the Provincial Supreme Court. His marriage (for the third time) led to his separation from the Quakers. He died in 1712. He was distinguished proverbially (says Keith, Provincial Council) for three great things: "the biggest person, the biggest house, and the biggest coach." His country-house stood at what is now the , such confidence, and the secretary was allowed to go southwest corner of South and Broad Streets.

James Logan was a descendant of the Baron Logan, of Restalrig, Scotland, whose property was confiscated for connection with the Gowrie conspiracy in the reign of King James VI. His father, Rev. Patrick Logan, became a Quaker, and afterward removed to Bristol, England. His son James was born at Lurgan, County Armagh, Oct. 20, 1674. He had begun a suc- cessful mercantile career, when he accepted the invi- tation of William Penn to accompany him, as seere- tary, to Pennsylvania. An amusing anecdote is told by Keith about this voyage. "On the way over the ship was attacked by pirates, and Logan took part in the defense of it, while Penn, the stancher Quaker, perhaps a Quaker by conversion, while Logan was only a Quaker by birth, retired down below. The pirates were beaten off, after which Penn expostulated with Logan for engaging in battle. Logan replied that if Penn had disapproved, Penn being Logan's master, should have ordered him down."

On their arrival in Philadelphia, Penn appointed him secretary of the Council, and two years after- ward, on his departure for England, made him one of the commissioners of property and also receiver general to collect quit-rents, look after fines and perquisites, discharge debts, and pay officers for

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History of Philadelphia, 1609-1884, Part 150

Author: Scharf, J. Thomas (John Thomas), 1843-1898. cn; Westcott, Thompson, 1820-1888, joint author Publication date: 1884 Publisher: Philadelphia, Pa. : L. H. Everts & Co. Number of Pages: 992

Author: Scharf, J. Thomas (John Thomas), 1843-1898. cn; Westcott, Thompson, 1820-1888, joint author
Publication date: 1884
Publisher: Philadelphia, Pa. : L. H. Everts & Co.
Number of Pages: 992