History of Philadelphia, 1609-1884, Part 152

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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Contemporaneously with the bill of the Assembly providing for the issue of paper money, rather an ap- pendix to the same, was the provision for a legislative hall, the sittings heretofore having been held in a pri- vate house. This was in 1729. For this purpose two thousand pounds was appropriated. Hamilton, Thomas Lawrence, and Dr. John Kearsley were appointed a committee to oversee its construction. The location that had been proposed was Third and Market Streets, but Hamilton, in conjunction with William Allen, who afterward became his son-in-law, took the liberty of purchasing the square on Chestnut Street, between Fifth and Sixth Streets, afterward known as "Inde- pendence Square," and succeeded in having it adopted. Hamilton also succeeded in obtaining the adoption of : his plan for the construction of the building, and superintended the work, which was finished in the fall of 1736, nearly enough for the first sitting therein of the Assembly.

The coming forward so early of such a lawyer as Andrew Hamilton is the more remarkable when we call to mind the prejudice against lawyers, which was at one time so strong as to lead to an attempt at a

prohibition against their practice for fees and re- wards. Against this prejudice, rather in spite of it, a profession so indispensable to all civilized society must necessarily continue to grow in strength and importance and be recognized by the community. In 1722 some departure was made from the spirit of suspicion that had obtained theretofore. It seems to have been made with reluctance and prudent-at least intended as prudent-conservatism. It was or- dained by the Assembly that " there may be a com- petent number of persons, of an honest disposition, and learned in the law, admitted by the justices of the said respective courts, to practice as attorneys there."

From an early day, however, there had at all times been in the province one or more lawyers trained in the English inns of court, and with a competent ac- quaintance with the forms of legal procedure. The obligations of their successors to David Lloyd and the two Asshetons, in this regard, has already been mentioned.

In this connection we should say that the law was not the only profession against which there was a prejudice in the minds of these sturdy settlers of Pennsylvania; but medicine, at least that branch which is founded upon preliminary studies in works upon science, had its share also. In 1698 a volume was printed in London entitled " A Historical and Geographical Account of the Province and the Country of Pennsylvania, and of West New Jersey in America, etc., with a map of both countries. By Gabriel Thomas, who resided there about fifteen years." Regarding these two professions, the author thus writes: "Of lawyers and physicians I shall say nothing, because the country is very peaceable and healthy ; long may it continue so and never have occasion for the tongue of the one and the pen of the other, both equally destructive to men's estates and lives; besides, forsooth, they, hangman-like, have a license to murder and make mischief."

It can scarcely be doubted that the early policy of the framers of the provincial government of Penn- sylvania exerted a benign influence in introducing that simpler model of conducting business which has since obtained throughout the whole country to the exclusion of the complications of the English courts. It was, in fact, but a few years when such court papers as we cannot but smile at when reading, were followed by those which stand the test of criticism from those most noted in the science of pleading. " We perceive," says David Paul Brown in his "Forum," "by the legislative enactments of the early part of our provincial history,-especially many acts passed in 1705,-as the act for taking lands in execution, etc., the act about arbitrations and defaulting, the act concerning the probates of written and nuncupative wills, and for confirming devices of lands, and several others, some of which were repealed by the Queen in council; some of which remain at this day in force

1503

THE BENCH AND BAR.

as original enactments, and others of which have been incorporated, almost verbatim, into one revised code, that there was no want in the legislative council, at an early date, of good legal mind and good legal education. But whoever the lawyers were, they seemed to have been inclined to make a Pennsylvania system of jurisprudence rather than to introduce the English ; and everything relating to the jurisprudence of the earlier years of the century has a very plain and practical form."

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 individual 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 Bradford, the first printer in Philadelphia, whose prosecution by David Lloyd is mentioned in the chapter on the literature and literary men of Pennsylvania.

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 Lancey, chief justice of the prov- ince, Frederick Phillipse, second judge. Zenger was defended 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, attor- neys in this court, 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 name 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 James Alexander and William Smith be excluded from any further practice in this court, and that their names be struek out of the roll of attorneys of this court. Per cur. JAMES LYLE, CI."

Being the duty of the court to appoint for the defend- ant counsel, as he was now without, they named one whose servility was such as to promise a speedy con- viction. It was at this conjuncture that the friends of Zenger applied to Andrew Hamilton, whose fame, es- pecially as a courageous defender of the innocent and oppressed, had spread throughout the whole country. He accepted the call and repaired to New York. Whatever were his opinions concerning the exceptions taken by his predecessors, Alexander and Smith, he was too astute to wage a warfare at a point shown to be impregnable, and, with a boldness amounting to au- dacity, assumed the position taken by William Brad- ford nearly half a century before, admitted the truth

of the facts alleged to have been comtofed, and then proposed to adduce testimony to their existence. This proposition was of course refused by the court. But Hamilton entered upon an argument, wherem 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 of that other provision that in criminal trials the jury, however unlearned they might be, when they were brought within the court- room were invested with powers equal to the judges who sat upon the bench above them in deciding what were the laws in such cases, with the added power of saying whether or not they had been violated. Without derogating from the powers of the court, he enlarged upon the equality of the jurors, and then he appealed to them 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 would feel that he had the right to do, not only without punishment, but without the fear of it. Most masterly was his praise of truth, and the argument that nobody, high or low, had canse to complain when it was spoken of his actions. His peroration was spoken of as the very highest height of majestic eloquence. He called to mind many of the brave of all ages who had suffered for the truth, and compared their memories with those of 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 his terror of being numbered among the oppres- sors of the innocent, he was quite willing to throw the responsibility of deeiding this ease upon the jury. These, after a brief conference, brought in a verdict of not guilty. The defense made a profound impres- sion, not only throughout this country but in Eng- land, 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 at New York."

The defense of Zenger did not hurt Hamilton in England so as to hinder his receiving a commission, two years afterward, as judge of the Vice-Admiralty Court. We say this because appointments to that court seem to have been made by commission directly from the crown. But the reputation of the appointee was well known to the home government, and that was, that, zealous as he was in the defense of every right of his elients, he was faithful to the demands of every office he had held or might hold. He resigned all other offices except this, and retired from it only a short time before his death, which occurred in 1741.

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HISTORY OF PHILADELPHIA.

The argument given in favor of the appointment by the crown to the Vice-Admiralty is thus stated by David Paul Brown in his "Forum": "We may infer this, both from the nature of the jurisdiction and from the fact that even in early times they appear to have belonged to the Church of England ; for the only two whom we know to have been judges were wardens of Christ Church in this city" ( Philadelphia). One of the earliest of these was William Assheton, who died in September, 1723, at the early age of thirty-three, being at that time the rector's warden. 1

Joshua Maddox was an English gentleman of studi- ous and contemplative tastes, liberally, but not, we believe, professionally, educated in England,-a man of dignity and fortune. Though a scholar unques- tionably, he had pursued commerce, as we know, and pursued it with skill, reputation, and success. Yet he sat, as the records of the Orphans' Court show, from March, 1741, till his death in April, 1759, a term of eighteen years, upon the seat of judgment, constantly partaking in its exercises and attending to its adjudications; and when he died, at the age of seventy-four, had almost become personified in this province with the administration of its local justice. Mr. Maddox, like his associate justice, Lawrence, was a warden of Christ Church, in the burial-ground of which, at the corner of Fifth and Arch Streets, close by the grave of his other associate, Franklin, bis monument may yet be seen.

We mention a case in one of the courts to illustrate the tone of the community regarding prosecutions for challenging to the duel. One Peter Evans having taken offense at certain conduct of one Francis Phillips, who is described in the papers as a " clerk," sent him a letter in the following words :

"SIR-You have lately scandalized a gentle-woman that I have a prefevad respect for ; and for my part, I shall give you a fair oppor- tunity to defend yourself to-morrow morning, on the west side of Jos. Carpenter's garden, betwixt seven and eight, where I shall expect to meet you gladio cinctus. In failure whereof, depend upon the usage yon deserve, from Yours, etc.,

" Jan. 21, 1714. " PET. EVANS.

" I am at the Pewter Platter."

Mr. Phillips declined to meet the sender of the letter so early in the morning, and, whether in appre- hension of the " usage" which had been threatened, or willing to make an example of such wickedness, indicted Evans. On the trial of the case the jury found their verdict thus,-

" We, the jury, do find that Peter Evans, in the in- dictment mentioned, did send a letter in writing to Francis Phillips containing these words" (quoting the letter in full). "If upon the whole the court do

judge the words contained in the said letter to be a challenge, then we do find the said Peter Evans guilty ; but if the court do judge the words contained in the said letter are no regular challenge, then we do find the said Peter Evans not guilty." This finding seemed to have been a poser to the learned judges. They reserved their decision for another time, and that time seems never to have come, as there was no further entry upon the records. This plainly shows that in that society-controlled, however, by peaceful Quakers-either dneling was held in not so great ab- horrence as we would have supposed, or that in this instance disgust for the meanness of a man who had scandalized a gentlewoman was too great to let pun- ishment fall only upon the man who had undertaken, though in an unlawful manner, to defend her. It is amusing to speculate upon the attempt of the jury to cast upon the court the responsibility of so ugly a case, and the conclusion of the judges not to assume it. This was certainly one issue at least wherein the court would heartily have consented for the jury to decide upon the law, independent of all interference from the bench. Whether this Evans was the officer of the court we cannot say. The same name is found among those containing a list of the registers of wills, and it is probable that he was the same person.

There is a curious document, being an entry, with- out signature, upon the continuance docket of the Court of Common Pleas of Philadelphia in 1775. It runs thus: "Departed Saints of the Law whom I have known." Upon this list the first is Andrew Hamilton and the second Peter Evans. The gallant defendant in the case at the instance of Phillips may have been he.

William Allen was a native of Philadelphia, born in 1704. His family were from Dungannon, Ireland, and were Presbyterians. His father, being a man of large wealth, sent him to Eogland. to pursue his studies, which were carried ou at the Temple. On his return, instead of going to the practice of his pro- fession, he became a merchant, and in 1727, when only twenty-three years of age, became one of the Common Council of the city. We saw, in the notice of Andrew Hamilton, that Allen had joined with him in the preference for the State-House upon the present Independence Square over the other site that had been agreed upon. From 1731 to 1739 he was a mem- ber of the Assembly. In 1733 he married Margaret Hamilton, the same whose feud with the Misses Gor- don brought out the Deputy Governor's successful opposition to her father's return to the Assembly. Two years after his marriage he became mayor. He retired from the Assembly in 1739. When the war with Spain came on he again came to the front, and, in opposition to the conservative policy of Isaac Norris, became the head of the Anti-Quaker party. Defeated at the polls in 1742, he yet held his position as recorder, to which he was chosen the year before, and he boldly held the city government to the side of the

1 The appointments to the vice-admiralty may, in a customary loose- ness of language, he said to have been made by " the crown," but this does not mean that they were made by the king, or even that he had been consulted in relation to them. l'hey were made by the commis- sioners of admiralty in England. See " Bench and Bar," by John Hill Martin. Being appointed in England by churchmen, the judges of vice- admiralty could scarcely be expected to have been Quakers.

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THE BENCH AND BAR.

Governor, against the policy of the Assembly, then controlled by Norris and his friends. This position he held, together with those (alternately) of judge of the Common Pleas and Orphans' Courts, until the year 1750, when he resigned the first to accept the chief justiceship of the province. This office he continued to hold for nearly a quarter of a century. His career in this exalted position has ever been regarded as comparing favorably with those of the greatest judges of Pennsylvania. His learning, his wealth, his cour- age, his conservatism, his social standing, all com- bined to give to his administration an eclat equal, or nearly equal, to the best even of those who succeeded him. His mercantile business, however, was never suspended, and he acquired a wealth which was said to be greater than that possessed by any other citizen of the province in his time. He was most munificent in his donations in behalf of public institutions, and contributed largely to the expedition made in search of the Northwest Passage. While upon another visit to England, in 1763, he rendered most important ser- vice to the colonies in the matter of the taxation bills in Parliament. Through his influence with many of the leaders in both Houses, the passage of the Stamp Act was delayed for that session. During the disputes of the colonies with Great Britain he sided with the former, yet was opposed to the plan of independence. His last years were embittered by the contemplation of a struggle that seemed to him unnecessary and unjustifiable. He died in 1780. He was the founder of Allentown. One of his daughters married John Penn, son of the proprietor.

Clement Plumsted was intimately connected with the Hamiltons and Allens, and even before the com- ing to Philadelphia of Andrew had been concerned with him in real estate transactions that were emi- nently successful. The family (the earliest known of them) were resident of the county of Norfolk. The father of Clement was a merchant of London. The son immigrated to America just before or shortly after his attaining his majority. He became a com- mon councilman in 1712, when thirty-two years of age, and in 1723 succeeded James Logan as mayor. He was a member of the Assembly during several sessions, and was given, in 1717, along with others, commission for holding the Courts of Common Pleas, Quarter Sessions, and Orphans' Court of the county. In 1727 he was appointed to the Governor's Council, and in 1730 became a master in chancery. He died in 1745.

William Plumsted, the son of Clement, born in 1708, was somewhat conspicuous, though less so than his father. He became common councilman in 1739. In 1745 he became register-general of wills for the province, which office he held until his death, though serving as mayor three terms,-1750, 1754, and 1755. Clement Plumsted was a Quaker of the moderate class in that sect. This moderation descending to his son culminated in his renouncement of that faith

altogether and becoming an Episcopalont, even be- coming a subscriber to the Dancing Assembly in 1748, the original of that institution in the city. He afterward became one of the founders of Christ Church, was its first warden, and one of its first vestrymen. He died in 1765.

Joseph Growdon, father of Lawrence, of a family among the gentry of Cornwall, emigrated to Pennsyl- vania not long after the purchase (together with his father, Lawrence Growdon of a large body of land from William Penn. He was a member of the As- sembly from Bucks County during several sessions, and several times elected Speaker. The Provincial Council at one time was an elective body, and he was made a member by the votes of the people. After tbe change in the Constitution whereby the Council ceased to be elective, he was appointed to that hody by Penn, though he did not habitually attend the meetings thereafter. For some time he was justice of the Supreme Court. His son Lawrence, now being considered, was born in 1693. Having received a comfortable estate under the will of his grandfather of the same name, he went to England, and for some time was a merchant in the eity of Bristol. His resi- dence, during the greater part of his life after return- ing to America, was on his estate, called Trevose, in the county of Bucks, wherein he became a justice of the County Court, and from 1734 to 1737 represented that county in the Assembly. He was commissioned, along with Rev. Richard Peters, to run the boundary line, with commissioners from Maryland, between that State and Pennsylvania, a matter which cost a great deal of money, time, and anger until, long after this attempt, it was definitely settled. Growdon was raised to the Governor's Council in 1737. He was the second in rank on the Supreme Court bench, where he sat for twelve years. He left a very large estate when he died, in 1770. David Lloyd, the great leader of the party among Quakers hostile to Penn, was his brother-in-law, having married his sister Grace.

The most distinguished of the family of Hop- kinson was Francis, who will be mentioned when we come to a later period. Thomas was born in London in 1709, and, having studied law, came to America in 1731. He became first clerk of the Orphans' Court, afterward prothonotary of the county, and in 1741 common councilman and judge of the Admiralty. lle was raised to the Provincial Council in 1747. Thomas Hopkinson devoted much of his time to investigations in science, to some of which Franklin acknowledged himself indelitedl for much of his own success in discoveries, partich arly affecting electricity. llis early death put an end to what most probably would have been a very eminent career. Ile died in 1751.

Like many others of the founders of the bench and bar of Philadelphia, the 1-sheten- were of dis- tinguished family. These it is easy to trace to the

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HISTORY OF PHILADELPHIA.

Lords of Ashton-under-Lyne, in Salford Hundred, Lancashire. Robert Assheton was a kinsman of Wil- liam Penn. He had been educated to the law in his native county, and came over to Philadelphia about 1699, at Penn's invitation, and was placed in office, straightway becoming clerk and prothonotary of the city and county of Philadelphia. He was town clerk of the city in 1701, at the time of its being chartered, and in 1708 became recorder, an officer who, as we have seen, was generally a lawyer, and presided, along with the mayor and aldermen, over a court which had concurrent jurisdiction in some cases with the other courts. After the coming of Robert Assheton the proceedings of the courts began to be conducted in a style far superior to what had preceded. "After 1704," says the "Forum," " the indictments, which are drawn by one of the Asshetons, are entirely scientific, and indeed all the proceedings of the officers, or the court proceedings,-I mean only clerical,-appear in general to be good. The indictments after this year, however, present, equally with those before them, a curious record of the times, though less than the earlier ones such records of the law. There are great numbers of them for forestalling the markets and ne- gotiating, although the extent of the purchases do not, from the specification of the indictments, seem to be alarming."

The mention of Robert Assheton calls to our minds again the name of the Francis Phillips who, instead of accepting the challenge of Peter Evans for the insult offered to a lady, indicted him before the grand jury. David Paul Brown seems to have supposed that this man, from being styled " clerk," was a clergyman. He, at all events, was one who brought no honor to the cloth he wore, of whatever kind it was, for thus says the " Forum :" " We find this same 'Francis Phillips, clerk,'-who, if he was a clergyman, must have been one of the few disrep- utable clergymen who were here before the Revolu- tion,-very soon afterward" (the prosecution of Evans) "the subject himself of an indictment for having 'as much as in him lied,' attempted to de- prive, annihilate, and contemn the authority of the recorder, mayor, and justices of the peace by saying, ' Tell the mayor, Richard Hill, and Robert Assheton, the recorder, that I say they are no better than rogues, villains, and scoundrels.' "

influential than any other one man in his day in shaping the legal forms as well as the legislation of the province. In the disputes that arose between | Governor Keith and the Penns during the Lieutenant- Governorship of the former, Assheton took the part of the Penns, and in resentment therefor he was dropped from the Council in 1719, but recalled in 1722, and continued in the position until his death, in 1727.

William Assheton, his son, who had been educated for the law at Gray's Inn, was called to the Council in the same year, 1722, wherein his father had been recalled by Governor Keith. The reconciliation of the Governor appears to have been most hearty when two of a family were simultaneously invited to a position so exalted. William was also one of the masters in chancery. It was, however, as judge of the Admiralty Court that William Assheton was most distinguished, though he held the place only a few years, dying in 1723, at the early age of thirty-three.

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History of Philadelphia, 1609-1884, Part 152

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