History of Philadelphia, 1609-1884, Part 155

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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Chief Justice Tilghman, though a man of decided political convictions, abstained as far as possible, con - sistently with personal freedom in their expressions,

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from prominent connection with politics. It is writ- sion, which, with the rapid advance he had made ten by Mr. Binney, " He once refused to take part in a meeting on the Missouri question, because, often obliged to decide in matters relating to slavery, he would do nothing to bring his impartiality into doubt. Yet he expressed a 'fervent wish to see the evils of this institution mitigated, and, if possible, extin- guished,' and he freed his own slaves by a plan of gradual emancipation."

He became president of the American Philosophical Society in 1824, was a trustee of the University of Pennsylvania, the first president of the Athenaeum, and a warden of the United Churches.

On the last anniversary that he was to see he wrote the following :

"This day completea my seventieth year, the period which is said to bound the life of man. My constitution ia impaired, but I cannot suffi- ciently thank God that my intellects are sound, that I am afflicted with no painful disease, and that sufficient health remaine to make life com- fortahle. I pray for the grace of the Almighty to enable me to walk, during the short retnaioder of life, in His ways. Without His aid, I am sensible that my efforts are unavailing. May I submit with gratitude to all His dispensations, never forget that He ia the witness of my actione, and even of my thoughts, and endeavor to honor, love, and obey Him with all my heart, soul, and strength."

John Ross is described by Graydon as one "who loved ease and Madeira much better than liberty and strife." During the troubles of the Revolution he "declared for neutrality," saying "let who would be king, he well knew that he would be subject." Ross was in excellent practice before 1759, and in that year was consulted by the Governor and Council, together with Mr. Moland, Benjamin Chew, Justice Coleman, and Justice Stedman, in relation to a bill for recording of warrants and surveys, and for render- ing real estate and property more secure. In the year 1761, Ross lived in the Carpenter (afterward Tilghman) mansion, on the north side of Chestnut Street, between Sixth and Seventh. He agreed to sell the premises for three thousand pounds to John Smith, because, as he said, his " wife deems it too re- mote for his family to live in. . . . He must then look out another airy place to build on, and how to succeed therein he knows not." Subsequently he built a new house farther in town, on the north side of Chestnut Street, between Fourth and Fifth. The house was afterward used for many years by the Farmers' and Mechanics' Bank, and the present bank building occupies the same site.

Thomas McKean was born at Londonderry, Chester Co., Pa., March 19, 1734. His father (William) and his mother (Lætitia, née Finny) were natives of Ire- land. After finishing his preparatory course of edu- cation, he went to the study of the law in the office of a kinsman,-David Finny,-at New Castle, Del. Shortly after entering this office he was made deputy prothonotary and register for the probate of wills, and some short time thereafter prothonotary of the Common Pleas. These offices led to speedy acquaintance with the clerical part of the profes-

in the study of its principles, led to his admission to the bar before he was of age. When he was twenty-two, he was appointed deputy attorney-gen- eral for Sussex County. The next year he was ad- mitted to practice in the Supreme Court of Pennsyl- vania, and in the same year became clerk of the Assembly. Five years afterward, when only twenty- eight years of age, he was appointed, together with Cæsar Rodney, to codify the laws of Delaware that had been passed from the beginning to the year 1751. In the same year (1762) he was elected to the Gen- eral Assembly from New Castle, which position he held for seventeen years consecutively. In 1773 he removed to Philadelphia. This change of residence, however, did not affect the confidence of his constitu- ents nor their desire for him to continue as their rep- resentative. In spite of his continued proposal to be relieved, they continuously elected him for the re- maining six years of his service in that body. When at last, in 1779, he peremptorily declined to serve another term, his old constituents asked him to make out a list of those whom he thought they would do best to choose. In vain he endeavored to decline a request imparting so delicate responsibility. He was prevailed upon to comply, and the names he rendered were elected almost with unanimity. In 1764 he was appointed by the Legislature one of the trustees of the loan office for the county of New Castle, an ap- pointment that was many times renewed. This was a most benignant measure on the part of the Legisla- ture, designed, as it was, to advance money, on rea- sonable security, and very indulgent terms, to those persons who were embarrassed with debts, yet were industrious and needed only such accommodation in order to eventually become extricated.

It is to Thomas Mckean that we are indebted for having made the first, at least the most public and effectual, move toward the establishment of that prin- ciple in our Federal government which resulted in placing the smaller States in the United States Senate on a level with the larger. He was representative in the Colonial Congress of 1765 from Delaware. Thia has generally been styled " the Stamp Act" Congress. Early in its sittings Mr. Mckean contended that on the votings upon the important subject for which the body was mainly assembled, Delaware, though the smallest in territory and population, should count evenly with all the rest. Ilis opinions prevailed. It was a great question, destined, after the attainment of independence, to become one of the most exciting of those to be discussed before the final settlement upon the basis of a Federal Union, which was compromised by allowing the disparity in population to be counted only in the House of Representatives. Young as ho was, he was one of the most prominent figures in this Convention, and among other appointments to which he was assigned was that of being one of the com- mittee to draw the memorial of the colonies to the

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Parliament of Great Britain. An interesting inci- dent is told in Armor's "Lives of the Governors of Pennsylvania" (Philadelphia : James K. Simon, 1872) :

"One circumstance which occurred near the close of the session ao well illustrates the open, manly boldness with which he met every ques- tion that it merits recital. It is given by the author of the sketch of Mr. McKesn published in 'The Signers of the Declaration.' 'When the business was concluded,' he says, 'and on the last day of the ses- sion, the president and some timid memhere refused to sign the proceed- ings. Mr. Mckean then rose, and, addressing himself personally to the president, remarked that as he had not made a solitary objection to any of the measures which had been finally adopted, nor n single observa- tion indicative of disapprobation, he requested that he would now assign his reasons for refusing to sign the petition. To this demand the preei- dent replied that he did not conceive himself bound to state the cense of his objections. Mr. Mckean rejoined that the gentlemen present bad met together to obtain the repeal of an unconstitutional and oppressive act of the British Parliament and a redress of other grievances; that as unanimity and harmony had hitherto prevailed among them, it appeared very extraordinary that any member should refuse to affix his name to what he had at least apparently approved, without any excuse or observation on the occa- Bioo ; and that if there was any- thing treasonable, offensive, or indecent in the proceedings, he thought it would be an act of comity, nay, of duty, to advise his brethren of it. Other delegates spoke briefly to the same purport. Thua pressed to an explanation, the president, after a long pause, obeerved that it was againet his conscience. Mr. McKean now rung the changes on the word conscience so long aod lond that a plain challenge was giveo and accepted in the presence of the whole Congress; but the president departed from New York the next morning before the dawn of day.'"

The course of their rep- resentative was approved by the people of Delaware even enthusiastically. On his return he was appoint- ed notary public and ta- bellion for the lower coun- ties on the Delaware and justice of the peace and of the Quarter Sessions for New Castle County. When the period arrived for the Stamp Act to go into operation, Justice Mckean promptly issued an order that the officers of the court should not delay in the performance of their duties, but continne them with the use of unstamped paper. This action has generally been considered the first of its kind in that momentous era.

In 1774, Mr. McKean finally removed to Phila- delphia, and took np his residence as a citizen. But the people of Delaware, for a long time indeed a part of Pennsylvania, insisted upon at least having him continue their representative in all matters pertaining to the public coalition of the colonies. He never had the heart to decline their urgent solicitations, and

from this time forth to the end of the Revolutionary war and the settlement of the Federal Union, he, though a resident and citizen of Philadelphia, con- tinued to represent Delaware. As her representative he went to the First Continental Congress in New York, and is noted as being the only man who from this date to the final settlement, a period of more than eight years, was continuously a member.

A very singular error occurred in the matter of the Declaration of Independence by which by very many persons afterward Mr. Mckean was believed not to have signed that paper, although known to have been one of the most ardent and eloquent among those who effected its adoption. The error is accounted for in this manner (in Armor's "Lives of the Governors of Penn- sylvania") :

"It appears that on the 19th of July, two weeks after its passage, Congress directed that a copy of the Declaration should be en- grossed on parchment and signed by every member. This engrossed copy was finished, and on the 2d of August was produced and signed. But previous to this day Mckean had obtained leave of absence, be- ing then an officer of militia, and for several weeks succeeding be was not in hie place, he being ab- sent on the 2d of August and before his signature was affixed. But his presence was too notorions to occa- sion any question as to the fact, even without his own testimony. When the preliminary vote was taken on the 2d of July all the States declared in favor of it, ex- cept Pennsylvania and Delaware. Of these McKean voted for it, Read agaiost it, and Rodney, the third, was abseot. Seeing that the vote of his State was likely to be lost, Mckean sent & messenger, at his own expense, posthaste, to sum- mon the absent member. He ar- rived in time to vote for the meas- ure, thus carrying the State in its favor, and some of the opposing members of the Pennsylvania dele- gation absentiog themselves, the vote was finally made unanimous."1

Immediately after the adoption of the Declaration by Congress the State of Pennsylvania appointed Mr. McKean to the command of the regiments hastily formed to be sent to Perth Amboy to the support of Washington, who, with inadequate forces, was en-

1 The following shows what important consequences may sometimes follow en omission that at the time of its occurrence is scarcely regarded. Mr. Alexander James Dallas called the attention of Mckean to the cir- cumstance afterward, and received an answer, part of which ie as fol- lows: " My name is not in the printed journals of Congress ne a party to the Declaration of Independence, and this, like an error in the first Con- vention, has vitinted most of the subsequent publications ; and yet the fact is, that I was then a member for the State of Delaware, was person- ally present in Congress, voted in favor of independence on the 4th of July, 1776, and signed the Declaration after it had been engrossed on parchment, where my name, in my own handwriting, still appears."

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deavoring to protect New Jersey from the British. As soon as relieved from this duty he returned to Phila- delphia, where he ascertained that the people of Delaware had chosen him as a member of their con- vention, now assembled for the purpose of forming a Constitution. He set off without delay for Dover, and during the night of his arrival wrote out that docu-

For three consecutive terms Mckean was elected Governor. In his last term he was impeached, to such a degree had political animosities risen. But the trial of the impeachment was never had. A ment which, on the very next day, was unanimously . paper that he submitted to the Legislature defining adopted. In 1777 he was appointed chief justice of Pennsylvania, and accepted the office not without much reluctance. The prodigious powers for busi- ness that he possessed are known from the fact that he was yet a member of Congress, and that his little native State, unable to part from the service of her favorite son, elected him her president. It is interest- ing to consider this long, even affectionate, attach- ment between Mr. Mckean and the State of Dela- ware. As he had done while its representative in the Assembly, he remonstrated with it in 1780, beg- ging them to allow him, on account of the pressure of his other duties, to resign the presidency. But the people could not be brought to comply with his re- quest, and it is another evidence of the greatness of his spirit that he was receiving no salary for his ser- vices. On the 10th of July he was elected president of Congress, which position he continued to hold until November, when he resigned it, preparatory to pro- ceeding to take his seat upon the Supreme bench. In this capacity he served until 1799, when he was elected Governor of Pennsylvania. the relative powers and duties of the three branches of government was so exhaustive and convincing that the prosecution was allowed to drop, from the con- viction of his enemies that it could not succeed and ought not. This is considered one of the ablest State papers that the country has produced. At the end of his third term he retired from office. In a letter to John Adams (with whom, in spite of his adhesion to the school of Jefferson, he had ever had very friendly relations), written after his retirement, he says, " Three years ago I shook hands with the world, and we said farewell to each other ; the toys and rattles of child- hood would, in a few years more, be probably as suited to me as office, honor, or wealth; but, thank God! the faculties of my mind are as yet little, if anything, impaired, and my affections and friendships remain unshaken. Since my exemption from pro- fessional and official duties I have enjoyed a tran- quility never (during a long, protracted life) before experienced, and my wealth and comforts are suf- ficient for a moderate man." He died on the 24th of June, 1817, and was buried in the yard of the Presby- terian Church, in Market Street, Philadelphia.

In the first establishment of hostile parties, led as these were by Adams and Jefferson, McKeau, with all the ardor common to his spirit, aligned himself with the latter, and it was as a Republican of the Jeffersonian school that he was elected. The hostility between these parties was most acrimonious, and men of great parts and great courage, who were placed in public positions, must personally have known what it was to attack and defend in long-continued and bitter warfare. In that period many questions that were new must have constantly arisen, in the study and discussion of which it is not to be wondered that many men became illustrious. The office of Governor at that day had a hundredfold more numerous and weighty responsibilities than have ever attached to it since. Thus Governor Mckean writes, not long after he had been settled in office,-

" Though my situation in life is changed my cares remain. I have never had greater employment for body and mind than for the Inet six months, unless when I was president of Congress. I have waded through a sea of troubles and surmounted my principal difficulties. I have been obliged (thongh no Hercules) to cleanse the Augean stable 1

1 The allusion to this one of the " labors of Hercules" was suggested by the habit lately adopted by the followers of Mr. Jefferson of putting into practice the motto, ascribed to him, " to the victors belong the spoile." A man of the temper of Mckean might be expected, if he ran this schedule at all, to run it through regardless of all opposition. That he approved it was early evinceil both by his actions and his words. Thus, in three months after Mr. Jefferson's Inauguration, he writes (July 10, 1801) to him: "It appears that the anti-Republicans, oven

with little or no aid, for I Am iny own minister and at mumpsis. A Governor of Pennsylvania hns more duty to perform thun ind president of the United States or any other Governor in the U'nios -

Judge Mckean was the first to preside upon the bench of the Supreme Court after the Declaration of Independence. In spite of the deliverance from royal government, yet it was too soon to throw away all forms which had prevailed in the tribunals of justice, and there was a dignity in the conduct of business very different from what afterward came to prevail there, as in courts elsewhere, except that of the United States. "The judges, it is true, had thrown off their wigs, but they nevertheless retained the robes and such appliances as probably, in their opin- ion, contributed to make 'ambition virtue.' In tak- ing their seats at the opening of the court in the city, as well as in the counties, with all their professed republican principles, they followed and imitated at no great distance the examples of the judges of the English court of king's bench. The sheriff in all his pomp, together with the tipstaves and attendants, assembled at the commencement of the term, and swelled the retinue of the chief justice and his asso-

those in office, are as hostile as over, as insolent. T. Non me them they must be ehaven, for in their offices (Ilkr Suns it's hairdin ka their grent strength lieth. Their disposition for mischief to remain, but their power of doing it will be gone. It is out of the nun norder of nature to prefer enemies to friends, the deepisers of the people sh uld not be their rulers, nor men be vested with authority in s government which they wish to destroy. A dagger ought not to be put into the hands of an assassin. Sayings of this import are in the months of ever) . budy, and self-preservation seems to demand some attention t theto."

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ciates as they proceeded to assume their respective places upon the judicial seat." 1

It is not uncommon for a man who has been most restive under authority that he considers oppression, when once invested with it himself, to employ it after the arbitrary manner of which it had been his wont to complain in others. This was the principal fault that the bar of that time had to complain in the ad- ministration of Judge Mckean. David Paul Brown says that, but for the courage of those who were leaders in the profession, his rule would have been a very hard one. In spite of the inflexibility of his integrity, his imperious temper sometimes rendered it most unpleasant to practice in his court. Before such a judge coolness and courage are often very available. The anthor just alluded to gives an in- stance in the case of Gouverneur Morris. "While Gouverneur Morris was addressing him some remark that he made gave offense to his Honor, who, turning to the counsel somewhat roughly, commanded him to take his seat. Mr. Morris, who was a man of lofty spirit, replied, ' If, sir, you do not wish to hear me, I will cease speaking ; but whether I shall sit or stand depends upon my own convenience, and I prefer standing.'" Ardent as was his temper, arbitrary as was his rule, he was never a man to exert his author- ity strenuously, except where, in his opinion, it seemed becoming. On one occasion, when his warrant for the arrest of a quartermaster who was then serving under Gen. Greene, at the encampment at Valley Forge, and when that general had written to him that he could not spare his subaltern from the service just at that time, and asking that he might be allowed to put in his recognizance for his appearance at court here- after, the judge, in firing indignation at the interfer- ence with his authority, wrote to the general a letter, in which, among others like, occurs the following : "I do not think, sir, that the absence, sickness, or even death of Mr. Hooper could be attended with such a consequence that no person could be found who could give the necessary aid upon this occasion ; but what attracts my attention the most is your ob- servation that you cannot, without great necessity, consent to his being absent. As to that, sir, I shall not ask your consent, nor that of any other person in or out of the army, whether my precept shall be obeyed or not in Pennsylvania."

When a man who is suspected of wishing to be despotic is himself of intrepid conrage, ready to employ it on occasions of whatever emergency, and especially in the cause of right, he cannot but obtain great respect, even among those who suffer most under his rule. The "Forum" gives the following account of his action on one of such occasions : " It happened upon one occasion, while the Supreme Court was holding an important session, during a period of great political and public excitement, a

large assemblage of persons and a consequent tumult occurred in the immediate vicinity of the court- room, and interfered materially with the transaction of business. The chief justice sent for the sheriff, and directed him immediately to suppress the riot. The sheriff soon afterward returned, and declared his inability to do so. 'Why, sir,' said the chief justice, 'do you not summon your posse to your aid?' 'I have summoned them,' was the reply, 'but they are totally inefficient, and the mob disregard them.' 'Why do you not summon ME?' said the chief justice.' The sheriff, looking somewhat confused for a time at this direct appeal, at length said, 'Well, sir, I DO summon you.' Whereupon the chief justice immediately left the bench, proceeded to the scene of disorder, and seizing two of the ring- leaders, placed them in custody, which, together with the influence of his standing and authority, at once restored matters to peace."

The appointment of William Tilghman as chief justice of the State was very distasteful to the Demo- cratic party, especially the leaders. A man so modest and so reserved, who had kept himself to his profes- sion, and taken no prominent part in politics, could not be expected to receive the warm support of those who had already begun to know how to make politics something of a trade. Then the aristocratic bearing of Mr. Tilghman was against him. A town-meeting had been held in Philadelphia, wherein resolutions were adopted by the Democrats of that city express- ing their objections to him, and a committee was appointed to wait upon the Governor, now in the second term of office, present the resolutions, and beg him to withhold the nomination of one thus shown to be obnoxious to so large a number of the party that had elected him Governor. He received the committee, listened to the address of the chair- man, and then answered, "Indeed! Inform your constituents that I bow with submission to the will of the great Democracy of Philadelphia, but, by G-d! William Tilghman shall be chief justice of Pennsylvania !" He was a man of noble presence, tall, erect, usually wearing a cocked hat, and carrying a gold-headed cane.

Bushrod Washington must be noticed among the oc- cupants of the bench and bar of Philadelphia, as much of his career was spent in the city from his appoint- ment under John Adams as associate justice of the Supreme Court of the United States (1798) until his death, in 1829. This appointment was of scarcely less importance than that, shortly afterward, of Mar- shall to be chief justice. The career of no man who ever sat upon the bench in any of the courts of the United States has been the subject of higher praise than that of Bushrod Washington. A man of small stature, delicate, gentle, almost feminine in appear- ance and manners, yet he united the qualities that these might be expected to exhibit, with a strength of purpose and will that altogether made him as

1 Brown's Forum.

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nearly perfect a judge as ever lived. It has ever been remarked how more impressive are the fully-deter- mined mandates of those who utter them without passion, yet with the appearance of inflexible purpose to have them executed, than those intemperate, hasty, and irate, that come from the passionate and fretful. Before Justice Washington, while those disposed to be overbearing to the juniors at the bar might be quietly and easily restrained, the young and the modest found in him a most valuable ally in supplying them, as far as was consistent with his judicial position, with confidence and courage. Even to the lower officers of his court he was wont to speak with the respect which a good man, however exalted in position, always feels for every other who is acting in his sphere, however lowly, with fidelity. The very hardest expression re- corded of him in his relation with these inferior offi- cers is that when, upon an occasion, when on ac- count of the crowded state of the court-room, hinder- ing somewhat the usual transaction of its business, a bailiff, disposed, as it appeared, more to exhibit his own importance than to suppress the confusion, had ordered silence several times in a very loud tone to little purpose. The judge said to him, " Mr. - , it seems to me that you make much more noise than you suppress, and if I should have occasion to speak again upon the subject, it will be to your successor." Two men could scarcely have been more unlike than authority of the latter was fully as complete in his firm and inflexible, he was just the sort of judge that was most suited to every class of practitioners. He early established that rule whereby a lawyer is made to testify in a case, if so asked, against his client in matters that come to his knowledge outside and in- dependent of the communications of his client. It was in a trial where counsel had been asked by the opposing lawyer to testify merely in regard to the situation of the property, the right to the posses- sion of which was being tried, and he had refused to take the stand, urging his privilege in that behalf. But the judge, without waiting to hear argument from the counsel who had made the motion, disposed of it summarily, thus, " You are not asked to state anything confided in you by your client; but the re- lation of client and counsel does not impart to the counsel any exemption from the obligation to testify to what he independently knows; if you know, there- fore, you must state who was in possession of the land. Were it otherwise, when a member of the bar has knowledge of a fact important for the case of one party, it would only be requisite for the other party to employ him, and thereby defeat the purposes of justice." With all his reticence and gentleness of manner, he was sometimes, not often, driven to words that showed that he had within a spirit that, however he habitually restrained it, was strong enough for any purpose for which it might be thought necessary to

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History of Philadelphia, 1609-1884, Part 155

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