History of Philadelphia, 1609-1884, Part 154

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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Of the many names that were connected with the ' 'the merchant.' Nearly all the justices, both of the courts in one way or other, few beside those already mentioned, occurring in the first period of fifty years after the proprietary government of Penn was estab- lished, would have been known to posterity but for their appearance upon the court records that have been preserved. Of many of those who presided in the lower courts, and even on the Supreme bench, we get our principal information from the entries upon the judicial or other records stating the facts of their deaths. Of these we may say, as David Paul Brown says of Andrew Robinson and Jeremiah Langhorne, both chief justices, "Except that we know that they both died, we should not know that either of them lived."

Of the judges under the presidency of Allen, the one best known is William Coleman, who was on the bench in 1754. He was a merchant. That he was a man of considerable note we must infer from the praise of him by Benjamin Franklin, who thus refers to their relations with each other of some years an- terior to this: "William Coleman, about my age, then a merchant's clerk, had the coolest, clearest head, the best heart, and exactest morals of almost any man I ever met with. He afterwards became a merchant of great note and one of onr provincial judges. Our friendship continued without interrup- tion to his death, upwards of forty years, and the club continued almost as long, and was the best school of philosophy, morality, and politics that then existed in the province." Coleman, like many others of the judges and lawyers, was a hearty co- worker in the establishment of useful public institu- tions, as the Library Company of Philadelphia, etc., and was one of the founders and original trustees of the College of Philadelphia. He was also the first treasurer of the Pennsylvania Hospital.

Of many of the other judges, such as Lawrence Growdon, Caleb Cowpland, Alexander Stedman, John Lawrence, and John Morton, it is not known whether any of them had ever been lawyers prior to their elevation to the bench, though the " Forum" says that such has been the impression regarding Grow- don and Lawrence. Of these, John Morton lived to acquire distinction for at least one service, whatever may have been his qualifications as a judge,-that of having been not only an ardent patriot, but manifest- ing both his patriotism and his courage by being a signer of the Declaration of Independence.

It is greatly to be admired, notwithstanding the want of previous studies of legal science by the far greater portion of the provincial judges of Pennsyl- vania, in how short time they brought the courts up to a standard ever since justly celebrated. The "Forum" pays this fine tribute to them : " In look-

ing at the character of some of the persons who exercised the judicial office in the days of the prov- ince, one cannot help observing how much higher. too, in that day must have been the character of Common Pleas and the Supreme Court, Franklin ex- cepted, were merchants, yet they were men not only of much intelligence and education, but were also of a very high character as gentlemen, and bear- ing those characteristics of independence and retire- ment which Mr. Burke admired in the judicial char- acter, and which, while fit to mark especially that character, belong to the best expressions of society everywhere; hut belong not at all to the driving, eager, gambling class which too often in this day assumes to represent 'the merchant,' whose honest and honorable commerce was the commerce of our fathers."

Before the middle of the eighteenth century the tone of the bench and bar had become much exalted, and it is plain to observe the ease and dignity with which the trial of causes had gradually come to be conducted. There appears less of unscientific pro- cedure, sprung from a better acquaintance with the history of court trials in former terms, as they were read by judges and lawyers in the studies of indi- vidual cases. There was much of the learning in the reports of English decisions that men of the kind that presided in the provincial courts, however un- scientifically educated, but possessed of good judg- ment and mercantile and other business experience, would soon perceive the value of, and appropriate it to themselves. They would understand in time that this learning was founded, at least the greater part of it, upon reason, at the perfection of which the law has always aimed to attain, and that many of the forms of procedure were not only as simple, but more so than those variously used theretofore by those who, in their ignorance of others, had been accustomed to make them for themselves. The very "fictions" of the law against which Logan was used to declaim were found, upon acquaintance, neither so wicked nor so meaningless. It is interesting, therefore, to notice about this time the rise upon a higher plane, upon which there afterward walked an array of emi- nent men, a larger number of whom were illustrious than were to be found at any other bar in the whole country.

The character of the members of the bench through those fifty years was such, however, as to impart to their bearing, official and personal, a dignity far be- yond what would have been expected of their limited knowledge of laws. There was a decorum in their courts the like of which, though it continued for many years, has long since passed away, not only from Pennsylvania, but the other States, among some of which it formerly obtained, to the great honor of the bench during its continuance. David Paul Brown, in that excellent work we have referred and

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HISTORY OF PHILADELPHIA.

shall refer to often hereafter (" The Forum"), in speak- ing of the Common Pleas, says, " We know little of the formalities which belonged to the court-room, nor indeed-unless it was in Market Street, at the crossing of Second Street-do we know exactly where the court-room was. We have reason to believe, how- ever, that those ceremonies of respect which the wisdom of past times thought so much connected with respect itself were observed with becoming at- tention. An escutcheon which has descended to our time shows that the crown and royal arms were placed behind the bench, as the emblem of its au- thority. An ancient portrait of Justice Maddox, painted by Hessellius in 1751, represented the vener- able and benignant-looking man costumed with care and dignity in the fashion of the day, short-clothes, ruffled wrist-sleeves, and a wig,-not in any sort of a robe, however,-with a velvet cap laid upon the judicial table, the top of which is covered with a dark cloth, the sides being hung with crimson velvet ; him- self seated in a crimson velvet-covered and cushioned chair of office, the cushion and arm-rests of which are tasseled with cords and golden fringe. Un- doubtedly it looks like a seat which its incumbent, when ordering it, considered that he would have the right to use for the residue of his life." In this con- nectiou, the same author refers to a portrait of Andrew Hamilton, which he supposes to have been painted when Hamilton was in England. "He is dressed in a long flowing wig, a scarlet coat, frilled bosom, and bands precisely like those worn by some denomina- tions of the clergy in our time. It is manifest that if this, or anything like this, was the ordinary costume of the bar, it must have generated an observance of propriety in manner which belongs to a different and a better school than that of the sack-coat and ' squash' hat. Indeed, the beauty and bright intelligence of his cleanly-shaven face would present a contrast with many countenances now to be seen of a Saturday morning in our court-rooms which would not argue much in favor of the improved personal appearance of the men of this generation." Mr. Brown also tells of a portrait by Benjamin West of Chief Justice Allen, which was then (in 1856) in possession of one of his descendants in Philadelphia, which is "of three- quarters length, and taken standing ; he has a curled wig and ruffled sleeves, but is otherwise dressed as plainly as possible."

Before proceeding to the notice of the leading members of the bench and bar who succeeded those already mentioned, we notice some changes made in the organization of the courts. The Assembly of 1759 passed an act entitled " A supplement to an act for establishing courts of judicature in that province." Martin ("Bench and Bar") says (in his notice of the Court of Common Pleas for the city and county of Philadelphia), this act provides "that five persons, of the best discretion, capacity, judgment, and in- tegrity, may be, and no more, appointed and commis-

sioned to hold the county court of record, styled and called 'the Court of Common Pleas,' in each county, and there to hold a court; and by the second session they are authorized to hold the Orphans' Court. Justices of the Quarter Sessions not to be judges of the Common Pleas. The judges of the Court of Com- mon Pleas and Orphans' Court in Philadelphia ap- pointed under this act were Thomas Yorke, Rowland Evans, John Potts, Samuel Wharton, and John Hughes. The act was repealed by the Privy Council, Sept. 2, 1760, and on Feb. 28, 1761, . . . writs of super- sedeas were issued to the above-named judges, forbid- ding them exercising the powers granted under their commissions from Governor Denny."

The same author thus continues, giving account of the establishment of the District Court :

" By the repeal of the act of Sept. 29, 1759, the justices of the peace, commissioned as justices of the county courts, held the Common Pleas, Quarter Sessions, and Orphans' Court until Sept. 1. 1791. The act does not mention the presiding justices, and I have out been able to find any law conferring that dignity previons to the passage of the act of Jau. 28, 1777; but, as 1 have before stated in this work, I believe there has always been a presiding justice, being the prior justice on each com- mission."1

By the act of April 13, 1791, in order to render effectual the provisions of the Constitution of 1790, establishing Courts of Common Pleas, the State was divided into five districts, the city and county of Philadelphia, Bucks, Montgomery, and Delaware constituting the First District, and a president judge learned in the law was to be appointed for each dis- trict, and not fewer than three nor more than four other persons appointed in each county as judges, which said president and judges were empowered to execute the powers, jurisdictions, and authorities of judges of the Court of Common Pleas, justices of the Courts of Oyer and Terminer and General Gaol De- livery, judges of the Orphans' Courts and of the Register's Court, and justices of the Courts of Quarter Sessions of the Peace, agreeably to the laws and Con- stitution. We have attempted in vain to obtain an ac- count and description of the forms and ceremonies observed previous to the Revolution in opening the

1 The statement here referred to is on page 37. After referring to the establishment of the Supreme Court, with a chief justice and two (in- creased to three in 1767) associates, in 1722, with power to hear appeals from the then existing courts, and a Supreme Court of General Sessions of Oyer and Terminer, etc., he proceeds thus :

"On Jan. 28, 1777, au act was passed directing that one justice in each county should be appointed to preside in the respective Courts of Common Pleas, General Quarter Sessions, and Orphans' Court. But this office had existed from the foundation of Pena's government, for we find in 1 (. R., page IS, that an attested copy of the laws 'Should be transmitted to ye Presid' or Clerk of each county Court,' and on the 24th of the Sixth month, 1684, a Council ' ordered that the next Justice in Comoris ion to be Presdt of the Court of New Castle, doe officiate in the same till further order.' The cause of that order was, without doubt, the death of William Welch, who was, I have no hesitation in stating, the president of the court of New Castle, aud at Philadelphia also; for in ) C. R., page 67 (1st edition), on ye 11th of ye Seventh month, 1684, ' It bring proposed by a member in Council that a new commis- sion of the peace be granted for the countys of Philadelphia and New Castle, by reason of ye removeall and Decease of ye sayd Presde, it was unanimously agreed that new Commissioners should be Issued out.'"

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THE BENCH AND BAR.

terms of onr courts, which was done in the most formal manner, and with forms and ceremonies un- known to the present race of lawyers. The portraits of Chief Justice Logan represent him in wig, band, and gown. No doubt that before 1776 the courts ob- served all the forms then in force in England, and the judges wore the costume prescribed therein.

The overthrow of the royal government could scarcely avoid being followed by the discarding even of many of the forms in the administration of public officers which were not only harmless but contribu - tory to the decent conduct of business therein. Our ancestors, tired ont with paying adulation to kings and others high in authority, seemed to wish that what authority it might appear necessary to preserve or establish under different régime should have as little resemblance as possi- ble to that which had been destroyed ; that judges, even if as authoritative as before, should not seem by their dress and the other appointments of office to be any greater than the people, who instead of a king were now their mas- ters. Natural as was this revulsion, it has ever been regarded by the most thoughtful minds as hurt- ful to the bench, in dimin- ishing the respect that is due from the rest of the community to the office, to which, and not to any incumbent, it is becoming and important that the highest honor and rev- erence should be paid. A judge in Pennsylvania is as exalted an officer as a judge in England, and the judges in England have been those who, in spite of exceptional cases of servility, have been instrumental both in the cstab- lishment of the rights of the English people, and the sure ascertainment of them when infringed by the crown and its favorites. To this day is to be seen the superior dignity over others of those courts in this country wherein is observed the decorous and digni- fied etiquette of those of former times.

We now pass to the review of those men who made up the second generation of the bench and bar.

William Tilghman, whose reputation is probably not surpassed by that of any other lawyer and judge whom this whole country has produced, was the son of the counselor James Tilghman and Anne, daugh- ter of Tench Francis, who was long leader of the bar in his time, and who was the first of his profession

WILLIAM TILGHMAN, LL.D.

to lead the way to the practice in the provincial courts upon a plane comparable with those in the mother country. Tench Francis, then a citizen of Maryland, resided in Talbot County, his estate being named Fansley. Thereon William Tilghman was born Aug. 12, 1756. Distinguished while in college especially for his love and progress in classic liter- ature, he left hefore graduation, and when sixteen years old began the study of law in the office of Benjamin Chew. The family had been residing in Philadelphia sinee an early period in his infancy. After remaining in the office of Mr. Chew four years, he removed to his native State. During the war of independence he remained in retirement, pursuing the while his law studies, and not until it was well over did he apply for admission to the bar. This took place in 1783, when he was then twenty-seven years old. For several years he was a member of the Maryland Legisla- ture, either the Senate or the House of Delegates, and bore a conspicuous part in the adoption by that State of the Federal Constitution. In 1793 he was married to Margaret Elizabeth, daughter of James Allen, son of Wil- liam Allen, chief justice of Pennsylvania, who, as we have seen, was son-in- law to Andrew Hamilton, and the wealthiest man in the State. Shortly before this marriage he returned to Philadelphia. Besides the lawyers of the city, he was thrown into frequent competition with emi- nent lawyers from other States, as Ames, Hamil- ton, Hooper, Pringle, etc., for Philadelphia was then not only the most populous city in the United States, but its beneh and bar far ontranked those in any other city. Among his contemporaries Mr. Tilghman was noticeable for modesty and distrust of his own ability, which attended him throughout his high career. These, as Cicero (De Oratore) argues, are valnable helps in the formation of an orator when not pre- vailing to excess. In the study of classic literature, acquaintance with the best examples in threek and Roman eloquence, he held before himself a standard that he knew was difficult to attain, and his persistent endeavors resulted in a splendid success, which, how- ever unsatisfactory to himself, was the admiration and wonder of his compeers.

The first judicial office to which he was raised was in

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the United States Circuit Court, of which he became, by appointment of John Adams, in 1801, one of what were called " The Midnight Judges."1 The opposi- tion of Mr. Jefferson to this act caused its repeal in 1802. In the year 1805 Tilghman was made presi- dent of the Court of Common Pleas of Philadelphia County, and on the resignation of Judge Coxe, in 1805, he was appointed by Governor Mckean presi- dent of the First Judicial Circuit of Pennsylvania, and in the following year to be chief justice of the Supreme Court of the State. This was done after the resignation of that position by Judge Shippen. Here Justice Tilghman remained until his death, on the 30th of April, 1827. Mr. Binney, in his eulogium, says,-

" An intimate friend of the chief justice has said that in all his inter- course he never knew him allude to the circumstance of having been a judge of the Federal Court. There was doubtless a painful recollection connected with it. It is known that his opinion was against the validity of the repealing law. 'A nickname, intended as one of reproach, inti- mating collusion in undarhand practices, is often the more painful to eensitive minds the greater the consciousness of innocence.'"

The administration of Chief Justice Tilghman has always been spoken of with unqualified praise. Com- ing to the bench during the period when was being settled what portions of English law were yet in force in Pennsylvania and what changes should be made in them, his services were of inestimable value. In the eulogium by Horace Binney, already referred to, it is said,-

" It was reserved for Judge Tilghman, with the aid of able and en- lightened colleagues, to carry into effect the plan which the genius of his great predecessor (Judge Shippen) had conceived. His philosophi- ical mind perceived at once how equity could be combined with law ; how two systems, apparently discordant, could be amalgamated into ona homogeneous whole. He found in the common law itself principles

1 Thompson Westcott, author of the "History of Philadelphia," is qnoted by John Hill Martin, in a note to the latter'e " Bench and Bar," aa having (in the Sunday Dispatch, Oct. 8, 1876) this following account of the "Midnight Judges:" "John Adams, while President, toward the end of his term, seriously urged a raorganization of the Federal judiciary. The Circuit Courts were held by the judges of the Supreme Court, but the business was increased so much that the appointment of additional judges was considered necessary. On the 13th of February, 1801, an act was passed reducing the number of the judges of the Supreme Court to five,-whenever a vacancy occurred,-and released those judges from all circuit duty. Tha number of United States District Courts was in- creased to twenty-three, and the districts were arranged in six circuits, each circuit with three judges. The result was to create sixteen new judgea, besides attorneys, clerks, marshals, and othor officers. As it waa near the end of Adams' term, and as Jefferson was elected four days after the act was passed, it was supposed that the President would allow hie successor to make the appointments; but he did nothing of the sort. He sent to the Senate, on the 18th, the names of Charles Lee, of the District of Columbia; Jared Ingersoll, of Pennsylvania; Richard Bas- eett, of Delaware; William Griffith, of New Jersey ; Egbert Benson, of New York ; Oliver Wolcott, of Connecticut ; Samuel Hitchcock, of Ver- mont ; Philip Barton Key, of Maryland; John Davis, of Massachusetts; Jacob Read, of South Carolina ; Elijah Paine, of Vermont ; Ray Greene, of Rhode Island; John Sitgreaves, of North Carolina ; Joseph Clay, of Georgia; William McClurg, of Kentucky ; and William H. Hill, of North Carolina."

Jared Ingereoll having declined the appointment, Mr. Tilghman wae afterwards nominated in his place. The term " Midnight Judges" arosa from a story that the names of some of them were confirmed just before midnight, 1801, when Mr. Adams' term expired. This act was repealed the following year.

analogous to those which courte of equity enforce, principles too long obscured by the unmeaning distinctions and frivolous niceties of scho- lastic men ; he wiped off the dust from the diamond and restored it to ite primitive splendor. And though he did not entirely complete that immense work, which atill wants tha aid of wise legislatora and liberal judges, he brought it to that degree of perfection which defiea all at- tempts to destroy it in future, and Pennaylvania boaste of a code of laws which her ordinary courts may safely administer, without the fear of doing injustice aud without needing to be checked by an extraordinary tribunal professing a different system of jurisprudence.

"With tha same enlightened and philosophical spirit, Judge Tilgh- man alwaya gave a fair and liberal construction to the statutes which the Legislature mado from time to time for the amendment of the law and simplifying the forms of proceeding, which, however they might be suited to the meridian of England, were not well calculated for this country. If those statutes were not always drawn with the requisite akill, he would supply it by their spirit, and would, as much as, indeed, he could, carry into effect the intentioua of the legislator. Thus, by his interpretation of the statutas called of Jeofail, our practice is now free from those technical entanglements by which justice was too often caught, as it were, in a uet, and the merits of s canee made to yield to formal niceties, while chicane rejoiced at the triumph of iniquity.

"Chief Justice Tilghman could have done as much with thie bar by the force of his authority as any judge that ever sat io hie aeat. Hia investigationa were known to be ao faithful, his reasonings so just, and his convictions ao impartial, that there would have been & ready acceptance of his conclusions, without a knowledge of the steps that Jed to them. He asked, however, for submission to no authority so raraly as to his own. You may search hia opiniona in vain for anything like personal assertion. He never threw the weight of his office into the scale which the weight of his argument did not turn He spoke and wrote as the minister of reason, claiming obedience to her, and selecting with scrupulous modesty such language as, while it sustained the dig- nity of his office, kept down from the relief, in which he might wall have appeared, the individual who filled it. Look over the judgments of more than twenty years, many of them rendered by this excellent magistrate after his title to unlimited deference was established by a right more divine than kings. There is not to be found one arrogant, one supercilions expression, turned against the opinions of other judges, one vainglorious regard toward himself. Ha does not write as if it occurred to him that his writings would be examined to fix his measure, when compared with his standard of great men, but aa if their exclusiva use was to assist in fixing a standard of the law."

The praise which is given of Chief Justice Tilgh- man's compassion for those tried for criminal offenses is one of the noblest panegyrics to be found :

"Ha could not but pronounce the sentence of the law upon such as were condemned to hear it, but the calmness, the dignity, the impar- tiality with which he ordered their trials, the deep attention which he gave to such as involved life, and the touching manner of hia last office to the convicted, demonstrated his sense of the peculiar responsibility which belonged to this part of his functions. In civil controveraies, auch excepted as by some feature of injustice demanded a notice of the parties, he reduced the issue freely much to an abstract form, and solved it as if it had been an algebraic problem. But in criminal cases there was a constant reference to the wretched persons whose fate was suspended before him, and in the very celerity with which he endeavored to dis- pose of the accusation he evinced hia sympathy. It was his invariable effort, without regard to his own health, to finish a capital case at oue sitting, if any portion of the night would suffice for the object, aod one of his declared notione wae to terminate, as soon as possible, that har- rowing solicitude, worse even than the worst certainty, which a pro- tracted trial brings to the unhappy prisoner. He never pronounced the sentence of death without severe pain: in the first instance it was the occasion of anguish. In this, as in many other pointe, he bore a strong resemblance to Sir Matthew Hale. His awful reverence of the Great Judge of all mankind, and the humility with which he habitually walked in that presence, made him uplift the sword of justice as if it scarcely belonged to man, himself a suppliant, to let it fall on the neck of hia fellow-man."

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History of Philadelphia, 1609-1884, Part 154

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