History of Philadelphia, 1609-1884, Part 153

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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Appointments to the Admiralty were made directly under the crown, and in the appointment of William Assheton the crown had a magistrate who was dis- posed to render all due service, and inflict the rigors of his court upon those who did not. We quote portions of the comments of David Paul Brown (" Forum") on a case adjudicated by him in 1723: "Two persons brought before the judge, adherents of the cause of Charles Stnart, and Scotsmen, most prob- ably, had ventured to call George Guelph ' the Pre- tender,' and one of them, it appeared, had not only spoken ill of the king, but had been guilty of that which might naturally impress the court as a still greater offense,-disobeying and publicly affronting magistrates." One of the men had confessed his guilt and submitted, but the other was contumacious, and it had to be proved upon him. Judge Assheton goes into the whole general subject of contempt, ex- plaining exactly what they are, "in order that the people may know when they incur guilt, and though they are fully predetermined in their own opinions against clear conviction, they may at least be so dis- creet as to reform their manners." He does not tell either the prisoners or us how exactly contempts against the king fell within the Admiralty jurisdic- tion. He may, perhaps, have felt secure in the fact that the subject of contempt is not one for revision by any one except the courts which commit, and have usurped a power. After telling them what is con- tempt against the king, he tells them "that it is greatly impudent and presumptuous for private per- sons to intermeddle with matters of so high a nature, and it will be impossible to preserve the peace unless subjects will quietly submit themselves to those whom Providence has placed over them." "Though it be," he says, "the duty of a magistrate, and an excellent qualification in him to temper justice with prudence, and severity with gentleness and forbearance, yet it

Robert Assheton was prothonotary of the Supreme Court from 1722 to 1726. In the former year he was also a master in chancery. He was one of those who favored the establishment of a separate High Court of Chancery, and having been prominent in the Councils concerning the former establishment of courts, it was he who originated the bill for the Court of Chancery that was endeavored to be set up prior to that of Governor Keith in 1720, of which the Lieutenant-Governor was made chancellor, and a portion of his Council masters. He was a member of the Council as early as 1711, and probably was more > must be confessed, much more for the common ad-

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vantage to have such magistrates as incline to the and it was this that made for a Wayorite with the Governor and the home goverevent. Bemgamin was the son of the preceding by his wife Mary Galloway, and was born in 1722, at the home of the family, then on West River, Md. Brought up a Quaker, though not after the straitest sect, he lived to aban- don that faith entirely, and return to that of his an- cestors. Being intended for the bar, he was sent to the office of Andrew Hamilton, who died when his student was nineteen years old. After this event he was sent to England, and entered the Middle Temple. Returning in 1743, he began the practice of his pro- fession at Dover. In 1754, after having discharged the duties of several offices under commission of the Legislature of Delaware, he removed to Philadel- phia. Ile was made attorney-general in the follow- ing year, and held that office until 1769. In the same year he was made recorder of the city, and so con- tinued until 1774. He was also in the same year (1755) called to the Provincial Council. As Speaker of the Assembly of the lower counties, he vigorously and successfully exerted himself in obtaining from them supplies during the embarrassing times suc- ceeding the defeat of Gen. Braddock. In addition excess of sharpness and rigor than those who are dis- posed to mildness and easiness and compassion. . . . The strict and harsh magistrate is the better restraint, the stronger curb. The mild and merciful one ex- poses the laws to contempt, makes magistracy cheap, and lessens the prince, who makes both the law and the magistrate." After giving a somewhat milder sentence to the prisoner who confessed his guilt and submitted to sentence, namely, that he "shall stand under this court-house for the space of one hour on two market days, with one paper fixed on his breast, and another on his back, with these words written upon them in fair characters, 'I stand here for speaking contemptuously against my sovereign, Lord King George,' pay twenty marks sterling, and the charges of prosecution," the judge goes on to the other one, who had been contumacious, and " heartily wishing that the sentence might have a good effect upon him," pronouncing his doom thus, "I do adjudicate and decree that you shall stand in the pillory, in this market-place, for the space of two hours, on two market days; that afterward, on the said days, you shall be tied to the tail of a cart, and be drawn round two of this city squares, and then you shall be , to the duties of the offices aforementioned, he was whipped on your bare back with forty-one lashes, aud be imprisoned till you have paid the charges of prosecution."

Ralph Assheton, a younger son of Robert, was only four years of age when the family came to Philadel- phia. At the age of eigliteen he was made deputy to the clerk of the Provincial Council. This early appointment came necessarily and easily from the family connection with the Penns, who were ever in- tent to provide for their kinsfolk. In 1708, having arrived at age, he was made town clerk, succeeding to his father, who had held the office until that time, and then resigned in behalf of his son. In 1724 he was made a common councilman of Philadelphia, and in 1728 raised to the Provincial Council. He also sat as judge in both the Common Pleas and Or- phans' Courts, and was one of the masters in the Court of Chancery at the time of its abolishment in 1735. In addition to holding these offices he was also a lawyer, practicing here and there in the vari- ous courts wherein, for the time being, he was not a judge. He died in 1746.

Benjamin Chew was the great-great-grandson of John Chew, who as early as 1624 was a citizen of Jamestown, Va. His son, Samuel Chew, was, in 1648, a judge of the High Provincial Court and Court of Chancery in Maryland. The father of Benjamin, a physician near Annapolis, after becoming a convert to Quakerism, removed to Delaware, where he was appointed by Governor Thomas chief justice of the lower counties, in which position he continued until his death, in 1743. Although a Quaker, he was not conscientiously opposed to war, when entered into for obtaining rights that otherwise could not be had,

register-general of the province in 1765. When he resigned the office of attorney-general, in 1769, he devoted himself more zealously to his private prac- tice. By this time the bar of Philadelphia had be- come already, perhaps, the ablest in the country. In its circle, consisting of such as Dickinson, Tilghman, Galloway, Waln, and Francis, he competed with an ability recognized as among the very greatest. In 1761 he was appointed by the Legislature one of the commissioners to finally settle the long-disputed boundary between the two States of Pennsylvania and Maryland, which settlement was made by the adoption of the Mason and Dixon's line.

In 1774, on the resignation of William Allen, he became chief justice of the Supreme Court of the State. During the struggle for independence he took part neither with nor against it, and for some time had to remain upon his parole to avoid transportation beyond lines where he might be able, if he should so choose, to render services to the British canse. Yet, after the war was over, such was his reputation for integrity and ability that it was easy to continue the successful practice of his profession, and in 1791 was appointed judge and president of the High Court of Errors and Appeals, in which he continued to sit until 1808, when it was abolished. Ile died in Philh- delphia in 1810.

The period to which James Wilson bebisers 10 cludes that before and during, as well as thit after the Revolution. He was a native of Scotland having been born near St. Andrews, about 1712 He studied at Glasgow, St. Andrews, and Elinburch, and came to Philadelphia about 1766. His first employment was as a tutor in the college and academy He studied

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HISTORY OF PHILADELPHIA.

law under John Dickinson, and was admitted to the bar (according to John Hill Martin) in November, 1767. He sought practice in different localities, ap- pearing during the next ten years in the courts at Reading, Carlisle, and Annapolis, Md. He came back to Philadelphia in 1778, and there settled per- manently. He was a man of brilliant talents, and soon became prominent in public affairs. He was a member of the Provincial Conventions of 1774-75, and of the Continental Congress, 1775-76, and voted for the resolution of independence on the 2d, and to adopt the Declaration on the 4th of July in the latter year. He was again member of Congress in 1782-83 and 1785-87. He was a member of the Convention to frame the Constitution of the United States, of the State Convention which adopted it, and subsequently member of the Convention to amend the Constitution of the State of Pennsylvania. President Washington appointed him one of the justices of the Supreme Court of the United States in September, 1789. He was the first law professor of the University of Pennsyl- vania, appointed in 1790, and delivered lectures in that institution. In connection with Chief Justice Thomas Mckean, he wrote "Commentaries on the United States Constitution," published in London in 1792. He died on the 28th of August, 1798, at Eden- ton, North Carolina.

George Ross, the first judge of the Court of Ad- miralty of Pennsylvania, was commissioned to that office on the 6th of April, 1776, under recommenda- tion of the Continental Congress. He was a native of New Castle, Del., where his father was a clergyman of the Church of England, at the time of his birth in 1730. He came to Philadelphia at eighteen years of age, and commenced the study of the law, and was admitted to the bar about 1750. He went to Lan- ' being capable of actions inconsistent with what his caster and established himself in practice there in | public character had warranted all to expect, and 1751. He was a member of the Assembly for Lan- caster County, 1768-70, and a member of the first Congress of 1774. He was also a signer of the Declaration of Independence. but resigned from Con- gress in January, 1777. Appointed a judge of the Admiralty Court, he served in that office until his death, July 14, 1779, when he was succeeded in his judgeship by Francis Hopkinson.

The Tilghmans are another family of very high social position, dating back to a remote period in Eng- lish history. Long before the coming of the Tudors to the throne the Tilghmans were of high rank among the gentry in the county of Kent, their seat, Holoway Court, being at Snodland. A descendant of this family, Richard, who had been a surgeon in the British navy, purchased an estate called the Manor of Canterbury, on the Choptank River, in Maryland, and removed to it in the year 1661. He built his residence on the Chester River, and named it " The Hermitage." lle died in 1675. His son Richard having intermarried with the Lloyds, became a lead- ing member of the Assembly and Council of Mary-

land. He was the father of James, the councilor, who was born on the Hermitage. Choosing the law for his profession, he practiced at Annapolis until 1760, when he removed to Philadelphia. Already had he risen to high eminence when this change was made, whose object, doubtless, was the desire of a greater field for the employment of powers that he knew to be of the highest. Philadelphia was already the largest town in the country, and the career of Hamilton in that large sphere probably had its influ- ence in attracting him there. Five years after his arrival he was invited by John Penn, then the prin- cipal member of the proprietor's family, to become secretary of the land office. The judiciousness of the appointment soon was proven by the splendid execu- tive ability of the appointee. The year before (1764) he had been made common councilman. In 1767 he was raised to the Provincial Council. While acting in this office he became one of the commission that was sent to Virginia in order to treat concerning the boundaries of the two States, the chief purpose of which deputation was an appeal to the Virginia Gov- ernor, then Lord Dunmore, to petition the crown to settle the dispute. Indignant as he was at the injus- tice of British legislation upon the colonies, yet he was opposed to the efforts at independence, though he did not take a very active part against it. When the war of the Revolution began, he, with other leading men who were known to be opposed to the move- ment, was arrested at the motion of the Continental Congress, and placed on parole. He was allowed, in 1777, to visit his family in Maryland, where he re- mained for some time, on account of the occupation of Philadelphia. Like Chew, Shippen, and the rest of his colleagues in office, he was never suspected of

he was relieved from his parole the following year. It was doubtless intensely painful to eminent men of the class we have lately been considering, who had grown prosperous and renowned in the existing con- dition of things, to contemplate a revolution that, even if successful, seemed likely to lead to the over- throw of whatever was good and conservative that had required so many years to establish. But in colo- nial governments, unless they are extremely oppres- sive, officials in the enjoyment of safe salaries, and others grown to mature age and prosperity must be more than human to be expected to join in revolu- tionary endeavors. Several of the sons and other descendants of the councilor became eminent. They will be noticed hereafter.

John Moland, a barrister of the Inner Temple, born in London about 1700. came out to Pennsylvania with a commission of king's attorney. In 1745 he pur- chased an estate near Philadelphia, afterward known as " Rose Hill." He soon became one of the leading members of the bar, was admitted to the Council in 1759, and died two years afterward.

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Edward Shippen, son of the councilor of the same name, was also one of that body during a part of the last years of its existence. He was born in 1729, in Philadelphia. After having studied for a while in the office of Tench Francis, then the most distin- guished lawyer in the city, he went to London and was a student at the Middle Temple. On his return he soon went into good practice. In 1752 he became judge of the Admiralty Court. The place where this court was held was over the market-house on Third Street. In 1765 he became prothonotary of the Su- preme Court. It is curious to con- sider how many of- fices could be held in those times con- contemporaneous- ly that would now seem to be, many of them, inconsist- ent among them- selves, and yet the holders be occu- pied in other busi- ness besides, with little detriment to the latter's satis- factory progress. Edward Shippen, we see, at the same time, to be judge and prothonotary, and yet he was in very remunerative practice as an at- torney. The in- come to the judges of the Admiralty was not derived from salaries, as ought to be the case in all judicial, and, indeed, other officers appointed by law, but de- pended upon the costs that were levied upon the parties litigant therein. It was, therefore, quite a pecuniary Joss to the present incumbent that another office was created, occupied by a commissioner of ap- peals in Admiralty that divided the fees accruing iu cases wherein the Court of Admiralty had jurisdiction. We have seen that that jurisdiction was not limited to cases strictly concerning Admiralty, but had much to do with the trial of contempts and other cases of of the Provincial Council.

vania, while he felt, along with the rest of his fellow- citizens, the sense of wrong at the unjust legislation of the British government, yet he was averse to the project of independence. On the breaking out of the war of the Revolution he retired from public life and remained quietly at his home on the Schuylkill, near its falls, and was required to give his parole, as were the rest of officials and other prominent citizens who were known to be not in accord with the movement. During the whole struggle he was never suspected of any conduct not consistent with his parole, and such was his exalted reputation for in- tegrity and talent that, by universal desire of the com- munity, he was made, in 1784, pre- siding judge of the Court of Com- mon Pleas for the county of Phila- delphia, and in the same year made one of the judges of the High Court of Errors and Ap- peals, in which po- sition he remained until 1791, when it was abolished. In 1785 he was elected a justice of the Dock Ward, and soon afterward made president of the Quarter Ses- sions and General Jail Delivery. On the abolition of the High Court of Errors and Ap- peals and the in- stitution of the Su- preme Court, he was appointed one of the associate judges of that tri- hunal. On the election of Chief Justice Mckean Governor, in 1799, Mr. Shippen was raised to the po- sition just made vacant, and held it until Is05, when he resigned it, and died the following year. His wife was Margaret, daughter of Tench Francis, Esq., attor- ney-general, and at one time the leader of the Phila- delphia bar.

Edu Shippen C

that kind. In 1770, Edward Shippen was made one . Council of the Province of Pennsylvania, we thought

Like the most of the leading officials in Pennsyl-

Having begun with the members of the Great proper to continue through the list, notwithstanding that some of the latter survived for many years the

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HISTORY OF PHILADELPHIA.

abolition of that body. We have omitted the names of John and Richard Penn, because, though mem- bers, their connection was by virtue of their proprie- tary rights, and neither of them can properly be said to have been much connected with the bench. The notices of them, therefore, more properly belong to other departments of this work.1

The simplicity in William Penn's first institution of his government grew out of a mind that sincerely desired that all its affairs might be conducted with reference to bringing his people to the performance of all their duties, not so much by compulsion as by regard for the dictates of truth, justice, and peace. The following extract, taken from his frame of gov- ernment and laws in 1682, affords evidence of a spirit that most seriously contemplated the behests of the important mission upon which he believed himself to have been divinely sent. After referring to several passages in the sacred Scriptures relating to the duties of magistrates and people, he says, --

"This settles the divine right of government beyond exception, and that for two enda,-first, to terrify evil-doers ; secondly, to cherish those that do well,-which gives government a life beyond corruption, and makes it as durable in the world as good meu shall be. So that gov- ernment seems to me a part of religion itself,-a thing sacred in its in- stitution and eud. For, if it does not directly remove the causes, it crushes the effects of evil, and is, as such, a lower, yet an emunation of the same divine power that is both author and object of pure religion, the difference lying here : that the one is more free and mental, the other more corporal and compulsive in its operation ; but that is only to evil- doers, government itself being otherwise as capable of kindness, good- ness, and charity as a more private society. They weakly err that think there is no other use of government than correction, which is the coarsest part of it ; daily experience tells us that the care and regulation of many other affairs more soft and daily necessary make up much the greater part of government, and which must have followed the peopling of the world had Adam never have fallen, and will continue among men on earth, under the highest attainments they may arrive at, hy the coming of the blessed second Adam, the Lord from Heaven."

Going to work with these benignant intentions, upon his arrival he called his Assembly, and pro- ceeded, as we have seen, with the establishment of his courts and issuing commissions for the judges. It was a body compliant and prompt. Its first session lasted twenty-two days, the last work being (for Philadelphia) the establishment of a seal (an anchor) and the appointment of John Test as sheriff. A grand jury was summoned in a few weeks afterward, specially for Pickering's case of issuing counterfeit money. The courts were to sit every two months,

1 In this connection we must again express as well our indebtedoess as our thanks to Charles P. Keith, for his most complete work, "The Provincial Councilors of Pennsylvania," published in 1883. To it we owe the greatest number of facts which have been related In the foregoing part of this chapter, and it will serve other purposes hereafter when we come to apeak of others, who, although not members of the Council, yet were connected with them by either marriage or descent. This is not quite yet the place to speak fully of the extraordinary standard that was raised at a very early period by the bench of Philadelphia in the social being of that city. It is interesting, and It is wonderful to follow, in Mr. Keith's book, the preservation of that standard among ao many generations of families that yet, or more than a century and a half ago, are fully equal to the best in wealth, culture, talent, mannera, and social importance in the many Stutes wherein they reside.

and the presiding judges were commissioned for two years. Of these judges (Nicholas More, William Welch, William Wood, Robert Turner, and John Eckley, the earliest appointees) it is somewhat singu- lar that the first-named should have been impeached. He was a person, however, of obstinate courage, and refused to appear to the summons of the Assembly, who, in resentment against his contumacy, ordered his suspension until the impeachment could be fully heard. The proprietor, then in England, interfered in the prosecution, believing it to have had insufficient foundation, and More afterward rose to get higher employments in the government.

In spite of the prejudices against lawyers, not only among the people, but the government officials, these must come on quickly, in a community whose progress in every direction was so rapid. Already (in 1722) had the profession advanced far when the Assembly enacted the law regulating their appointment and conduct. Distinguished as was Andrew Hamilton, there was one who equaled him in professional acquirements, whose abilities and whose personal character were doubtless among the causes that led to the removal of the prejudice of which we have spoken. This was John Kinsey. In Proud's " His- tory of Pennsylvania" is given a list of the members of the Assembly elected in 1740. Among them John Kinsey appears as Speaker. He is there recorded as from Philadelphia County, while those for Philadel- phia City were Israel Pemberton and John Kearsley. Three years after this date he was made chief jus- tice of the State, and so continued until his death, in 1750. The following is a note from Proud's "History":

"In May, 1750, died at Burlington, in West Jersey, of an apoplectic fit, John Kinsey, of Philadelphia. He was an eminent lawyer, and during the last seven years of his life chief justice of Pennsylvania, which station he held with an unblemished integrity, and with so much reputation that even the chief part of the lower courts followed him there. He had been many years a member and Speaker of the Assembly of New Jersey, where he distinguished himself with so much zeal and true patriotism as greatly endeared him to the people of that province. On his removal to Philadelphia, in 1730, he was chosen into the Assembly there, of which he was Speaker during the last ten years of his life successively, except a month or two, when he being on an embassy to an Indian treaty held at Albany, John Wright . . . officiated in his stead. He had very much practice and success in the law, and was for some time attor- ney-general, his long experience and great ability in the management of public affairs, his skill in the laws, and readiness for communicating his knowledge therein, often without fee or reward, and his tender- ness to his friends (the people called Quakers), by whom he was deservedly esteemed a valuable mem- ber in their religious society, with the exercise of

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many civil and social virtues, are said to have ren- dered his life very useful and valuable, and his death much lamented as a great and universal loss to these provinces."

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History of Philadelphia, 1609-1884, Part 153

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