USA > Pennsylvania > Philadelphia County > Philadelphia > The District court of the city and county of Philadelphia, an address delivered at the final adjournment of the Court, January 4, 1875 by Hon. James T. Mitchell, one of the Judges of the Court > Part 2
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Under this act, Thomas Sergeant was appointed, Novem- ber 7, 1814, as the additional judge, or as it was popularly called and appears in the city directories, assistant or second president. Judge Sergeant's name is too familiar to need a long biography. He was a son of Jonathan Dickinson Ser- geant, the first Attorney-General of the State after the Revo- lution, and was born January 14, 1782. Ile was admitted
" Also, another dedimus directed to Wm. Annan, with William Rodeney's name inserted, for qualifying the justices of Kent in pursuance of ye said order." (2 Col. Rec , 97.) It soon became the custom for each Governor at his accession to office to issue a writ of dedimus potestatem, for the admin- istration of official oaths, to a deputy in each county-usually the Recorder of Deeds-and this practice has continued without interruption to the present day. Under this custom it has been usual fiom very early times for the judges of this county to be sworn into office by the Recorder of Deeds, acting by virtue of his writ of dedimus potestatem from the Governor. The com- mission is then recorded, and the practice was universal in former times for the judge to subscribe the oath of office in the record book. In the present case the signature "Jacob Somer," on p. 157, is apparently a copy in the handwriting of Matt. Randall, the Recorder; the proper signature of the judge, in a fair, round hand, occurs to a duplicate copy of the oath on p. 165. The same book contains the signature of Judge Simmons, written in a free, bold hand, with a dashing flourish under it, showing evident familiarity with the pen.
6 Office of Recorder of Deeds, Phila. County, Commission Book M. R. I, P. 372.
" He was an officer in the American Army during the Revolution, and later a member of the State Senate. In 1826 he was nominated for Congress by the old school Democrats of the Third District, but was not elected. He died at Smithfield, Philadelphia County, in February, 1827, aged sixty-nine years. See Westcott's History of Philadelphia, in the Sunday Dispatch, Chapter 736.
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to the bar in 1802, became Secretary of the Commonwealth in 1818, Attorney-General in 1819, and a Judge of the Supreme Court from 1834 till his resignation in 1846. He died May 8, 1860. In person he was singularly unlike his distinguished brother John, being a tall and heavily-built man, of fair complexion and light hair ; but though not pos- sessing the same brilliant forensic qualities, he was fully equal to his brother in soundness of judgment and depth of learning.
By the Act of 1811, as already said, the court was lim- ited to six years. By the Act of March 13, 1817, P. L. 105, it was continued for four years longer, with " the same num- ber of judges and associate judges as heretofore," and with the additional provisions that it should have its separate prothonotary, and that its judges should severally have the same jurisdiction to issue writs of habeas corpus as the presi- dents of the various Courts of Common Pleas throughout the Commonwealth.
Under this act, Hemphill, president, and Simmons and Sommer, assistants, were reappointed, and as the additional judge in place of Sergeant Joseph B. MeKean. In the fol- lowing year Judge Hemphill resigned, as already stated, and MeKean was made president, his plaee being filled by Joseph Barnes.
In 1821, the court was again renewed for four years by an Aet of February 20, P. L. 39, by which, for the first time, it was made imperative on the Governor to commission three persons " of legal knowledge " as judges.$
8 Mr. Brown, in The Forum, vol. 2, p. 151, states erroneously that the . associa'es were laymen " and so continued until 1835." That distinguished advocate was not adapted by temperament or habit for laborious and accurate research, and this is not the only instance in which his pleasant volumes would be apt to mislead those who take them for history. From this criticism, however, must be excepted vol. 1, chapter 2, on the Practice of the Law before the Revolution, which was written for Mr. Brown by a gentleman as distinguished for the accuracy of his antiquarian knowledge as for the charms of his style (John William Wallace, Esq.). Both Mr Brown and myself, moreover, are under obligations to a Discourse on the Judicial History of Pennsylvania, delivered before the Law Academy of Philadelphia, Septem- ber 8, 1838, by the Hon Peter McCall.
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Under this act Jared Ingersoll was appointed president, MeKean reappointed a judge, and Benjamin R. Morgan the other judge. The popular title of second president seems to have been retained, though there was no longer any warrant for it in the law. Perhaps it was in deference to Judge MeKean's former rank ; but he continued to appear in the directory as president or second president.
Judge Ingersoll died in October, 1822, and in December of the same year Moses Levy was appointed president in his place.
By the Act of March 1, 1825, P. L. 41, the court was again renewed for seven years. The Acts of 1817 and 1821 had been short acts, simply continuing the court as organized under the original Act of 1811, with the important addition, in the Act of 1821, that the Judges should be "of legal knowledge." The present act was a carefully drawn statute of much wider scope. By the first section the court was continued, with the powers and jurisdiction conferred by the Act of 1811, and was to consist of three judges "of com- petent legal learning." By section two, all actions, matters, and things pending in the old court were continued under the new as if there had been no limitation to the old court. By section three, any one of the judges was, for the first time, empowered to try cases and grant motions, to sit sepa- rately for those purposes, and to reserve for the court in bane questions of law arising at the trial. Other scetions provided for a prothonotary, the summoning of juries, etc., cte. By section eight, the Commissioners of the City and County of Philadelphia were directed to provide "suitable apartments in which the trials shall be had, as provided for by this act." By seetion nine, an important addition was made to the future business of this court by the repeal, as to all future actions, of all laws or parts of laws which vested the Supreme Court with original jurisdiction of actions com- meneed in Philadelphia county, or which authorized original suits or actions commenced in the said county to be trans- ferred to the Supreme Court for trial. By this section, the
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business which would otherwise have been brought in the- Court of Nisi Prius, was diverted into the District Court.
Under this act MeKean was again appointed president, and Barnes associate, with John Hallowell as the other asso- ciate in place of Morgan. The next year Judge MeKean died and Barnes was made president, and Charles S. Coxe took his place as associate.
By this act the working capacity of the court was more than doubled. Hitherto but one court for jury trials could be held at a time, for, although in the interval from 1814 to 1821 there were four judges, any two of whom were by law competent to hold a court, yet it does not appear to have been the intention that two branches of the court should sit sepa- rately at the same time, and the minute-books show that, in fact, they never did. The provision for the fourth judge seems to have been intended solely to avoid the stoppage of the business in case of the absence of the president, or the not less objectionable alternative of a court held by the two lay judges alone. Except during this period, two courts at the same time had never been legally possible.
The first District Court sat in the centre building of the State House, in the west room so long occupied in our day by the Common Pleas, and now (1875) by the National Museum.
In Mease's Picture of Philadelphia in 1811, p. 319, it is stated that the centre State House building " is now oceu- pied by the Supreme and District State Courts below, and l'eale's Museum above," and it is well known that the Supreme Court sat in Independence Hall.9
The building at the corner of Sixth and Chestnut was built between 1787 and 1790 by the County of Philadelphia. nominally as a County Court House, but probably with a double view of offering it to Congress, if Philadelphia should
9 In 1787, however, it appears by the Journal of Manasseh Cutler, that the Supreme Court, under the presidency of Chief Justice MCKEAN, sat on the west side of the hall, then open as now (1899) restored. See 12 Pa., Mag. of History, 108.
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be retained as the capital of the nation.10 The building inter- mally was entirely different from its present arrangement.11 There was no entrance on Sixth Street, no partition between the present Quarter Sessions room 12 and the room of the Highway Department,13 and no stairs at that point leading to the second story. The entrance was on Chestnut Street into a vestibule, thence into a sort of second vestibule or foyer for spectators, and then a large room, ocenpied, during the time Congress sat here after its completion, by the House of Rep- resentatives. The stairease to the second story was in the vestibule next to Chestnut Street, and led up to a similar vestibule from which ran a broad entry southward to the Senate Chamber, which was the present District Court Room No. 1.14 The space now occupied by the District Court Room No. 2, and the witness-rooms, lately the Law Library, was divided into four committee-rooms, two on each side of the broad entry I have mentioned. On the north side of the Senate Chamber was a gallery, attainable only by a steep spiral stairease leading up from what has since been the east or conversation-room of the Law Library. This gallery was not a part of the original plan of the building, and was put there after the room was accepted by the Senate. It was very close to the ceiling, narrow, dark and uncomfortable. After the room came to be used by the courts the gallery was commonly kept elosed, as I learn from Judge Coxe, because it beeame a place of resort for the hangers- on, who frequently went to sleep and snored, to the great disturbance of the proceedings. It was finally removed in 1835.
10 See a Discourse at the Inauguration of the new hall of the Historical Society of Pennsylvania, March 11, 1872, by John William Wallace, Appendix IV.
11 I. e., 1875.
12 The rear or south room on the first floor.
13 The north or front room on Chestnut Street, subsequently occupied by the Prothonotary of the four Courts of Common Pleas after 1875.
1+ The eagle still remaining over the bench in this room is a relic of Congressional days, which has been preserved and twice retouched with pious hand, since 1800, while with a singular incongruity of taste the surrounding galaxy of stars has been enlarged from the original thirteen to thirty-pre- sumably the number of States at the time of the last repainting.
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When the building was changed to its present arrange- ment I have not been able to learn in the brief time I have had for preparation of this notice, but it was certainly prior to 1824, as in that year the Senate Chamber or Distriet Court Room No. 1 was occupied by the United States Courts ; the District Court Room No. 2 by the Supreme Court of the State ; the west witness-room between No. 1 and No. 2 by the Law Library, as it was until very recently ; the present Highway Department by the District Court, and the present old Quarter Sessions Room by the Common Pleas. 15
Nor have I been able to ascertain when the District Court moved from the State House to the County Court House, to the room now used by the Highway Department, except as already stated that it was prior to 1824. Neither the minute books of this court nor of the United States Circuit Court take any notice of the place where their sessions were held. Fortunately the clerk of the United States District Court, having his local attachments or his love of detail better developed,16 has preserved for us the time when the Federal Courts vacated the Senate Chamber, and it
15 Philadelphia in IS24, pp. 98 and 133. On the latter page is a plan of the building showing the arrangement as above described.
A writer in the Sunday Dispatch of 25th January, 1872, quoted by Mr. Wallace in his Discourse (ante, p. 288. n. 10) states that the entrance on Sixth Street was made during the latter part of the interval between IS15 and 1821. Mr. Binney recollects arguing a certain case before the Supreme Court in 1819, and that it then sat in Independence Hall. This confirms the opinion that the building was altered and the courts moved about 1820 or IS21.
It is very greatly to be hoped that this venerable and interesting building, in which the first Congress of the United States sat, and the City Hall, at the corner of Fifth Street, will be preserved, and as far as practicable restored to their original condition. On the completion of the new public buildings and the removal of the courts, the admirable suggestion of the Committee on the Restoration of Independence Hall ought to be carried out, and these buildings assigned to the use of the Historical and American Philosophical Societies. The fine and valuable collections of those societies could then be made avail- able for general exhibition, and by changing the row offices into galleries leading into the National Museum and Independence Hall, a collection would thus be brought together for purposes of public view which would be unrivalled in any other American city.
16 Perhaps his carefulness in this respect was stimulated by the migratory habits of the court. During the time of Judge Peters, the court was not unfrequently held at his residence at Belmont on the Schuylkill (now in Fairmount Park), and is so noted in the minutes.
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acquired its now familiar title of District Court Room No. 1.17 The minute-book of that conrt, under date of September 8, 1826, begins with this entry-" Court is opened, pursuant to adjournment, at the District Court Room," and concludes " Conrt adjourned to 15th, at 11 a. m., at same place." On the 15th the entry reads-" Court is opened, pursuant to adjournment, at the District Court Room, and the same is- further adjourned to the 22d inst., at 11 a. m., at the room of the District Court, in the building of the Franklin Insti- tute." The entries procced in the same way to describe the room as in the building of the Franklin Institute for some. weeks, until the clerk having apparently become habituated. to his new quarters, drops the loealizing deseription and pro- ceeds as formerly to call it the room of the District Court. These entries, fixing the date with exactness, confirm the recollection of Judge Coxe, that when he went on the bench, in October, 1826, our District Court occupied its room No. 1 for the court in banc, and the present Highway Department for its additional room for jury trials. I infer, therefore, that it was the Act of 1825, empowering the judges of the District Court to sit separately for jury trials, and directing the City Commissioners to provide suitable rooms therefor, which led to a rearrangement of court rooms, and the assignment of No. 1 to the District Court in banc, where it sat until the inerease of judges to five rendered the bench too- crowded, and it removed to the present room No. 4,15 in. which it has assembled to-day for the last time.
The Act of 1825 continued the court for seven years, and by the Act of March 26, 1832, P. L. 184, it was again
17 Subsequently known as Court Room C of the Court of Common Pleas- No. 2-the old Senate Chamber as already noted. See Address on Congress. Hall by Hon. S. W. Pennypacker, 1895.
18 The second-story East room in the west wing of the State House, over what was familiarly known for so many years as " the row " (i. e. of offices for Prothonotary, Sheriff, Clerk of Orphans' Court, etc.). The buildings appear to. have been intended for storage of records. The walls were of enormous thickness and the ceilings of arched brick. The rooms had been used by various city departments, but were changed to court icoms to give additional accommodation to the District Court, after the Act of 1872 for the election of a fifth judge.
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renewed for three years, with some notable changes in its jurisdiction and practice. For the first time the present monthly return days were introduced; the jurisdiction of appeals from the judgments of aldermen was taken away from the Common Pleas and transferred to the District Court, whose judges were required to issue a separate venire, and hold a separate trial list of at least two weeks in each term for the trial of said appeals.
The judges then in commission were reappointed under this act by Governor Wolf. In 1833 Judge Hallowell resigned, and Thomas MeKean Pettit was appointed in his place.
By the Act of March 28, 1835, P. L. 88, the court was again renewed for ten years, the longest time for which it had been yet established. This is a substantial re-enactment of the Act of 1832, with two important additions in sections 2 and 3, the first containing the provision under which the court has continued to practice, authorizing judgments for want of an affidavit of defence, and the latter repealing, as to this court, the law providing for a compulsory reference of suits to arbitration.
A Supplementary Act was passed March 11, 1836, P. L. 76, authorizing each judge sitting separately to enter judgments for want of an affidavit of defence; and intro- ducing a new feature in practice, by authorizing the judge presiding at a trial to enter a compulsory non-suit, if, in his opinion, the plaintiff's evidence is not sufficient in law to maintain the action.
Under this act Pettit was appointed president, and George M. Strond and Joel Jones associates, in 1835, and they continued in office until the expiration of their com- missions in 1845.
By the Aet of March 28, 1845, P. L. 253, the court was again renewed for ten years, and Governor Shunk appointed Joel Jones, president, and John K. Findlay and George Sharswood, associates. Judge Jones having resigned in 1848, Judge Sharswood was promoted to the presidency
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and George M. Stroud was again appointed to his former . position as associate.
Finally, by the Act of April 3, 1851, P. L. 308, the limitation was removed in advance, and the court was con- tinued with all its powers and jurisdiction until it should be abolished by law.
In the history of the court few things are more notice- able than the apparent uncertainty of the tenure by which it held its existence for a few years at a time, and yet the unbroken regularity with which it was always renewed in advance of its expiration. It has not unfrequently proved that the shortest terms of office have led practically to the longest tenure. A notable instance is to be found in the judi- cial history of Vermont, where the judges of the Supreme Court held office for one year ouly. The rotation of such an officer out of his position at such an interval was too glaring a violation of all rules of justice and good policy to be car- ried out at the end of the first or even the second year. But one or two re-elections soon established a sort of common law that controlled the statute, and re-election followed as a matter of course, until some special reason arose for a change. In this way Chief Justice Redfield held office for twenty-five years, by annual re-election by a legislature with a majority of a different political party. (See 36 Vt. app.) Something of this spirit may have contributed to the practical stability of the District Court, notwithstanding the theo- retical uncertainty of its duration. But the system must have been felt to be a bad one, and it is difficult to account for its continuance, unless we adopt the theory hinted to me by one whose experience and insight into prac- tical affairs make even his unstudied suggestions weighty (Chief Justice Sharswood), that the governors were reluctant to relinquish the patronage which the short terms of the judges constantly brought back to their hands. Party politics dur- ing most of the time ran exceedingly high, and the uncere- monious way in which successive governors dropped the
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judges appointed by their predecessors, unless they happened to be political friends of their own, gives much color to the suggestion. It is no small tribute to the honorable position traditionally held by the bench in this State, that notwith- standing the meagreness of the compensation and the uneer- tainties of the tenure, the bench of the District Court was filled for a long succession of years with lawyers, not only of integrity and learning, but of a degree of experience, ability and reputation that would naturally have suggested to them a desire for the greater pecuniary rewards of a successful practice, or the honors of a more conspicuous public station.
A brief notice of the judges already named is all that the oeeasion permits.
Joseph B. MeKean, who succeeded Hemphill as Presi- dent of the Court in 1818, was a son of Thomas MeKean, the first Chief Justice and second Governor of the State, and was admitted to the bar in 1785. He was Attorney- General of the State from 1800 till 1809, and one of the founders of the Law Association. His signature to its first charter, approving it as Attorney-General, may be seen yet in the library. He died September 3, 1826, at his country seat, in Cheltenham township, in the sixty-third year of his age. A fair obituary of him appears in " Poulson's Ameri- can Daily Advertiser " of the following day, in which it is said that he was " learned, indefatigable. patient and candid, an excellent model of judicial conduct." His library, advertised for sale by " M. & S. Thomas, 87 Chest- nut Street," was for that day a notably large and valnable collection.
Joseph Barnes, the next judge, was admitted to the bar in 1805, and was at various times Prothonotary of the Supreme Court and Register of Wills, besides holding the perhaps nominal office of Professor of the Common and Statute Law of Pennsylvania at the Law Academy He was a good lawyer and a man of great natural quickness, but he was small in person, shabby in his dress, and remembered
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chiefly by his cotemporaries for his eccentricities and his inveterate habit of joking both on and off the bench.19
Benjamin R. Morgan, who suceceded Barnes in 1821, was in remarkable contrast. He was a large man, of florid complexion, with the gracious and rather elaborate manners of the old school. He came of a Quaker family, and like many others when he left the plain garb he took to laec ruf- fles, wore his hair powdered and in a queue, and became noted for care and attention to his dress and personal appear- anee. He was admitted to the bar with MeKean in 1785, and went early into political life as an ardent, or as he was described to me by one who remembered him,20 an "arrogant" Federalist, and was a member of the Legislature.21 He was a sound lawyer and a man of character and mark in his day.
Of Jared Ingersoll it is not necessary to speak. IIc was one of the most distinguished lawyers of his day ; was Attor- ney-General of the State from 1791 to 1800, and had a most extensive practice. He was the preceptor of Horace Binney, and has been most pleasantly and graphically described by him in his sketch of the Leaders of the Old Bar.
Moses Levy, who succeeded Ingersoll, was also a man whose name is familiar to the present generation, chiefly from the association of his witty brother Samson. He was admitted in 1778 and enjoyed a very large practice. From 1802 to 1808 he held the office of Recorder of Philadelphia, then a judicial office of much dignity.22 Judge Levy and 19 From a memorandum for which I am indebted to the late Hon. Henry D. Maxwell, of Easton, I learn that Judge Barnes was born at Lanesborough, Mass., in 1778, graduated from Williams College in 1800, studied law in Phila- delphia, where he was admitted to the bar September 16, 1805. It is also said that in his professorship at the Law Academy he delivered three courses of lectures, 1822-1825. He married Ann, daughter of John Dean, of Bucks County, by whom he had nine children. He died at his residence, 148 Arch Street, Philadelphia, April 22, 1839, and was buried at Laurel Hill.
20 Judge Cadwalader.
21 He was principal manager or the House of Representatives in the impeachment of John Nicholson in 1794. See Pa. State Trials, Vol. I. Trial of John Nicholson, Esq., Comptroller-General of Pennsylvania. Phila- delphia, 1794. Judge Morgan. died November 19, 1840, aged 76. See Martin's Bench and Bar of Philadelphia, and 2 Weekly Notes of Cases 193.
22 He was born in Philadelphia, August 9, 1 756, graduated at the Univer- sity of Pennsylvania in 1 772, read law with Andrew Allen, Attorney- General and was admitted March 19, 1778. He died May 9, 1826. These particulars I learn from his daughter Mrs. John J. Milligan.
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