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 3
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Judge Ingersoll both came upon the bench late in life, after having aehived great distinetion at the bar. That they were learned and able judges follows almost of course, but it ean- not be denied that neither fulfilled the expectations of his friends. Neither was quite equal on the bench to what he had been at the bar.
John Hallowell was born in Philadelphia in 1768. He was of a Quaker family, and after graduating at the Univer- sity of Pennsylvania, studied law with Miers Fisher, a lawyer of great eminenee and a leading member of the Society of Friends. He was admitted to the bar by special order in 1788, at the age of twenty, and got into practice rapidly. He lived and had his office at the southeast corner of Fifth and Chestnut Streets. In 1815 he was a member of the Legislature, and in 1820, having aequired what was then a considerable fortune, and desiring to retire from the cares of aetive practice, he sueeeeded Jacob Rush as president of the Court of Common Pleas. The position, however, was not agreeable to him, he had not previously practiced much in that court, the criminal business was distasteful to him, and he did not feel at home in it. He, therefore, accepted in 1825 the position of associate judge in the Distriet Court,23 and remained in that position until 1833, when he had a slight attack of paralysis and resigned. He recovered, however, and lived till 1839. Judge Hallowell was a sound, deliberate and careful judge, and was highly esteemed in all the rela- tions of life. He was the father-in-law of Judge Strond.24
In person he was short and stout, of florid complexion, and hair that turned white at a very early age. He was a
23 The tradition among the older members of the bar whom I knew was that the vacant position in the District Court was offered to Edward King, who, however, hesitated about taking it, both on account of his want of legal learning and on account of the legislative power to put an end to the court. Hallowell not being so timid on either account agreed to accept the place and make room for King in the less exacting Court of Common Pleas, where, notwithstanding the misgivings of the profession, as well as his own, as to his competency King speedily became one of the greatest judges the State ever produced. David Paul Brown gives a slightly different version in The Forum, vol. 2, p. 174.
2ยช Simpson's Lives of Eminent Philadelphians, contains a sketch of his life by Judge Stroud.
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noted epicure, and a story is told of his having once very mueh disconcerted an eminent counsel who was arguing a case before him, by calling out, in the midst of the argument, to one of the officers, "Charles, the Court forgot to go to market this morning-go down to the market and buy the Court a shad for dinner-and Charles be sure you get a fat one. "25
Charles S. Coxe was admitted to the bar in 1812, prac- ticed until 1826, when he was appointed as associate judge in place of Barnes, promoted to the presidency on the death of McKean. In 1832 he was reappointed and remained on the bench till the expiration of his commission in 1835, when he retired from practice, and still lives in the enjoyment of his health and faculties at the ripe age of eighty-four.26 I am indebted to him for some of these reminiscences of the early days of the court.
Thomas MeKean Pettit was appointed on the resigna- tion of Judge Hallowell, in 1833, and at the expiration of the current commissions in 1835, he was made president, and held that position until 1845. Judge Pettit was born in Philadelphia in 1797, graduated at the University of Penn- sylvania, studied law with Joseph R. Ingersoll, and was admitted to the bar in 1818. He got into pactice early, and into politics as an active Demoerat. In 1820 he was City Solicitor, subsequently deputy Attorney-General for Philadel- phia county, and member of the Legislature. On the expira- tion of his commission in 1845 he declined a reappointment, and was shortly after appointed United States District Attorney, and subsequently Director of the Mint, which latter office he
23 It is proper to say that this same story is told, perhaps with more pro- bability, of Barnes, whose eccentricities were notorious. Charles Pidgeon was for many years crier of the court, and it is related, in illustration of Barnes's absent-mindedness, that he would frequently ask-" Charles, what is your first name, Charles?" I am inclined to think, however, that the whole story originated in the facetious squib of the late Wm. M. Meredith called Dies Juridici, published in the Journal of Law, vol. 1, p. 337 (for May 25, 1831), a burlesque upon the court with which he had his famous controversy.
26 Ile died Nov. 19, 1879, aged 89. He had been the senior member of the Bar since the death of Horace Binney in 1875.
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retained till his death in 1853. He was a learned and able judge, and has indeed been deseribed to me by one who is himself an eminent judge, by no means given to the Ameri- can habit of indiseriminate eulogy,27 as the " soundest man in judgment " he had ever known on the beneh. He pre- sided in the District Court with great aeeeptability, though his sufferings from a painful disease induced an oeeasional petulanee of temper, distressing alike to the bar and himself.
Joel Jones was a native of Connecticut, but came to this State early in life, and was admitted to the bar in Easton. where he praetieed till his appointment to the bench in 1835. In 1845 he was made president judge and continued in that offiee until January, 1848, when he resigned to accept the presideney of Girard College. This office he resigned, how- ever, in 1849, having been elected Mayor of the City of Philadelphia. This was before Consolidation, and it is an illustration of the inconvenienees which that act remedied, that Mayor Jones having dismissed a couple of police officers . for drunkenness, a quo warranto was brought against him at their suggestion, on the ground that he had not been a resident of the city as required by the charter, Girard Col- lege being in Penn township. The writ, however, was quashed, as having been imaprovidently issued at the suit of private relators. without the allocatur of the court. (Com- monwealth vs. Jones, 2 Jones, 365.) At the end of his term as Mayor, he returned to the bar, and remained in practice until his death, February 3, 1860, at the age of sixty-four. He was a sound and learned lawyer, particularly well-versed in blaek letter and eeelesiastieal law, to which his tastes inclined him. In person he was of medium height, inclined to stoutness ; of very dark complexion, and black hair. His eyes were blaek and deeply set under heavy blaek brows, which in his latter years, as I remember him, to a careless observer, gave his face an air of sternness very far removed
21 Judge Cadwalader. Hon, Henry M. Phillips also said to me, that Pettit, though not a brilliant or original, or even a learned man, had a very sound judgment, " when a case was well argued before him he always decided it right."
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from his gentle and amiable nature. He dressed uniformly in black cloth, and had very much the appearance and manner of a clergyman, for which, as the story is told, he was mistaken upon going out to Girard College after being elected its president, and refused admittance, in obedience to the well-known provision of Girard's will. 28
John K. Findlay is a son of William Findlay, the fourth Governor of Pennsylvania. He was born in Franklin county, but spent most of his earlier years in Lancaster and Harrisburg, in turn the seat of government, to which his father was called by public office. He graduated with high rank at the United States Military Academy at West Point, in the class of 1824; remained in the army four years, and then resigned and was admitted to the bar of Dauphin county in 1831.2) He settled in Laneaster and practiced
26 Since writing the above I have been favored with a copy of an obituary notice read before the American Philosophical Society, by the Ilon. George Sharswood, from which I am glad to inake some extracts. Judge Jones " was born October 22, 1796, in Coventry, Connecticut. On his father's side he was a lineal descendant of Colonel John Jones, who married Henrietta, the second sister of Oliver Cromwell, and was one of the judges who sat on the trial of Charles the First. His son, William Jones, was for several years deputy Governor of New Haven and Connecticut, From him Joel Jones was the fourth in descent." Joel graduated from Yale College in 1817, and studied law in the famous Litchfield Law School of Judges Reeve and Gould. On the completion of his studies, he removed to Wilkesbarre in this State, with his parents, and was admitted to the bar, but settled in practice at Easton. " As a judge he was remarkable for great courtesy, immovable patience, and unwearied attention. He was, therefore, a safe, though it must be confessed, a slow judge. When he had once formed an opinion at Nisi Prius, which was after great deliberation, he was hardly ever known to change it. His law learning was very considerable, but it lay more among the ancient than the modern books ; and it was with much difficulty that he could turn the current of his ideas upon legal subjects into new channels, *
* * He was an excellent Hebrew and Greek scholar, and an earnest student of the Bible in the original tongues. IIe published a volume entitled ' The Patriarchal Age, or the Story of Joseph,' in which much critical acuteness as well as exten- sive Oriental erudition was exhibited. * * * Kind in his disposition, yielding in his temper, affable in his manner, unbending in his integrity, and pure in his life, his memory as that of the just, is blessed."
2) I trust he will pardon a short extract from his characteristically modest note in answer to one of inquiry from me. "I was commissioned in the artillery and remained in the army four years. At that time there was pro- found peace. Even the Indians behaved themselves. The prospect of pro- motion was extremely gloomy, as the event has shown. It took General Robert Anderson, who defended Fort Sumter, thirty-six years to attain the grade of Major, although in the meantime there had occurred the Florida and Mexican Wars. I resigned from the army when, as I afterwards learned, I had a fair, indeed a pretty sure prospect of being made Aide to the then Commander-in-Chief, General Macomb."
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until 1845, when he was appointed, without his knowledge, to the bench of the District Court, by Governor Shunk. Judge Findlay's commission having expired under the Amendment to the Constitution in 1851, he returned to practice, but upon the death of Judge McCartney in 1856, was elected President Judge of the Third Distriet, compris- ing the counties of Lehigh and Northampton. Judge McCartney's death, however, took place July 15th, and the election occurred October 14th, less than the three months required by the act of 15th April, 1851, and accordingly Governor Polloek elaimed the right to appoint, and com- missioned Hon. Henry D. Maxwell President Judge of that Distriet until December, 1857, and this action was sustained by the Supreme Court. (Commonwealth vs. Maxwell, 3 Casey, 444.) In 1857 Judge Findlay was again elected, and and remained president of that conrt until 1862, when he resigned, and returned to the bar of Philadelphia. 30
From the foundation of the court in 1811 it had steadily grown in the estimation of the bar and thence of the commu- nity, and long before 1851 it had acquired a solid and endur- ing reputation as a great law court for the trial of civil issues. Many things combined in effecting this result : the first and principal one undoubtedly was that it was the first, and for many years the only court of original jurisdiction in the Commonwealth whose judges were all learned in the law. Prior to 1821, as we have seen, there was no positive require- ment of the statute that even the president should be learned in the law, but as the list shows, the practice was to appoint lawyers, and, in fact, Simmons and Sommer, the two asso- ciates appointed in 1811, were the only laymen that ever sat upon the bench of this eourt. Down to about the beginning of this century, there was no positive requirement that the presidents of the Common Pleas should be learned in the law, though the practice has been nuiforin since the Revolution to
30 He was appointed by Col. Wm. B. Mann Keeper of the Records and occupied a desk in the Prothonotary's office for several years before his death, which took place on September 13, 1853, in his Sist year.
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appoint only lawyers. But the associates remained laymen in the Common Pleas of Philadelphia until 1833, when one of them was required to be learned in the law, and " one to be appointed under the existing laws of the Commonwealth," (Act of February 8, 1833. P. L., 23 ;) and the other associate remained a layman until 1836 ; after which all the judges of that court were required to be learned in the law. (Act of March 11, 1836, P. L., 76.) So late as 1831 the salaries of the associate judges of the Common Pleas of Philadelphia were only four hundred dollars each, while the salaries of the judges of the District Court and the president of the Common Pleas were two thousand dollars each.
The District Court was, however, not only a court of lawyers, but of lawyers eminent, as I have said, for their learning, their ability, and their experience. These qualities laid the foundation for a capacity for business beyond the average of courts even in large cities. The compactness of its jurisdiction, moreover, enabled the judges to have a close supervision over all of its business, and this, with the uncommon administrative talents of its later presidents, prevented arrearages of half-finished work, and reduced all its working machinery to the simplest and most effective system.
By the amendment of 1850, to the Constitution of Pennsylvania, the judges of the several courts, required to be learned in the law, were to be elected for ten years. Under this amendment, in 1851, Judge Sharswood and Judge Stroud were elected to the offices of president and associate, which they had held before by appointment, and the third place was filled by a new judge, young in years, but already known to the profession as a learned and accurate lawyer, the present president of the court. Under this organization the court remained without change for sixteen years, until the transfer of Judge Sharswood to the bench of the Supreme Court in December, 1867.31
31 For the sake of completeness, the subsequent changes in the court may be here noted. To the great honor of Philadelphia it is to be said that it has always done its best to avoid the evils to which the election of judges by
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This is the District Court as the present generation of the bar have known it, and as it will be remembered here . after. Of its individual members, there are reasons sufficiently obvious why I may not, on this occasion, speak with entire freedom, but I may be permitted to say that I doubt if any three men selected under the most careful system in the world could have supplemented each other's peculiar abilities more completely and produced a stronger combined result. In their hands the reputation of the court for industry, learn- ing, sagacity, and that subtle essence of all the higher qualities, which, for want of a more descriptive name, we call tone, inherited from their predecessors, grew with the advanc- ing years.
That the court has been perfect, no one will claim ; that it should be exempt from intelligent criticism, no one will desire. An independent, even a critical bar, is the great pillar of justice ; it sustains a good court and makes an incompetent or corrupt one impossible.
popular vote is liable. Since the adoption of that vicious system by the State in 1850, no judge in Philadelphia has failed to be re-elected to the position whose duties he had faithfully discharged, whether his politics were those of the majority or otherwise. A signal example was given in the re-election of all of the judges of the District Court in 1861, notwithstanding the fact that Judge Sharswood was a Democrat, and that the election was held amid the excitement and high passions of the Civil War. The Court remained there- fore, as already said, without change from 1851 till the transfer of Judge Sharswood to the Supreme Court in 1867. On this event Judge Hate was made President and M. Ru-sell Thayer was appointed by the Governor to fill the vacancy thus created, until the next election. The election of 1868 was extremely close, and resulted in a general contest for nearly all the public offices. (See Election Cases, 16 l'. F. Smith, 20.) Judge Hare was elected President for ten years, but Thomas Greenbank received the certificate of election as associate, and took his seat on the first Monday of December, IS6S. Upon a contest, however, the Legislature declared Judge Thayer to have been elected, and he was accordingly commissioned by the Governor and resumed his seat March 27, 1869. By the Act of April 7, 1870, P. L., 1024, the number of judges was increased to four after the next election, and in October of that year James I.ynd was elected as the fourth judge. In IS71 Judge Stroud's term expired, and he having. after a service of thirty- three years, declined a renomination, James T. Mitchell was elected in his place. By the Act of March 23, 1872, P. L .. 510, the Court was increased to five judges, and Amos Briggs was appointed by the Governor till the next December, and in October elected for ten years from that date. The Court therefore consisted at the time of its termination, of Judges Hare, President, and Thayer, Lynd, Mitchell and Briggs, Associates. By the Constitution of IS73, Schedule Section IS, all the judges, together with those of the Court ( f Common Pleas, were transferred to the new Courts of Common Pleas created by that instrument.
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But I venture to think that the court has had few faults -and those of no magnitude-which did not result from an unavoidable choice of evils. From 1851 to the present date, the Appearance Docket shows the issue of 177,253 writs, an average of more than 7500 writs a year; and this is cxelu- sive of executions, judgments confessed without writs, mechanics', municipal, and tax claims filed, and some other miscellaneous matters. Making every deduction for cases not pushed, cases settled by the parties, cases disposed of by judgments for default and for want of affidavits of defence. there still remains a vast body of active litigation which the court has disposed of, and, in the main, I am confident in saying, disposed of well.
That under these circumstanees the conrt should have developed a tendency to drive business and to discountenance long argument is not to be wondered at. It was, as already said, a choice of evils, and the court has always borne in mind that it was formed for the speedy dispatch of litigation, The Act of 1811 dirceted that the judges should sit for nine months in the year, if necessary, and that the determination of no cause should be delayed beyond the fourth term, if the parties were prepared for trial. Moreover, the same act pro- hibited the removal of any suit from this court by certiorari or habeas corpus, and limited the right of review to a writ of error to the final judgment. By the Aet of 1825, the judges were authorized to sit separately and to issue separate venires for juries. A most valuable power was also added by this aet, to reserve questions of law for more deliberate considera- tion by the court in banc. By this means, when a doubtful question of law arises, which is decisive of the case, the judge is not compelled to delay the trial to hear argument and con- sider it, but may rule it, pro forma, for the plaintiff, and let it carry the verdict in his favor. If, on mature consideration, the ruling appears to be correct, the verdiet stands; but if the ruling ought to have been the other way, then judgment is entered for the defendant on the point reserved, notwith- standing the verdict, and the expense and delay of a new trial
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is saved. It has long been the practice in England to reserve points in this way by consent, but the power of the conrt to do it irrespective of the consent of parties, was first conferred by the Act of 1825, in this court. It is somewhat remark- able that so useful a power was not extended to the other courts of the State for nearly forty years. (Act of April 22, 1863, P. L. 554.)
In 1832 a decided step in the speeding of causes was made by the establishment for this court, for the first time in the Commonwealth, of monthly return days.
The compulsory arbitration acts-the legitimate offspring of the ancient Peacemakers-passed, undoubtedly, for the speedy as well as amicable settlement of cases, had proved, as all unprofessional tribunals must, a serious source of pro- erastination and delay, and by the Act of 1835, they were repealed as to this court. By the same act, to set finally at rest all doubts upon a practice which had originated in an agreement of the Philadelphia bar, and been adopted by rules of court, judgments were authorized in default of affidavits of defence-as valuable an aet in the expediting of justice as ever was passed in any State.
The Act of March 11, 1836, contained a further pro- vision for shortening trials, by authorizing what is commonly -though, perhaps, not very logieally-called the compulsory non-suit, where the judge presiding at a trial is of opinion that the plaintiff's evidence, even if believed by the jury, is not sufficient, in law, to maintain his action. This useful power was given to the Court of Nisi Prius in 1842, but was not extended generally to the courts of the State until 1863.
These illustrations, and perhaps others might be found, show how the court was formed and maintained for the speedy dispatch of business. That the court in keeping this pur- pose always in view has not sacrificed the rights of individual suitors, or the formal and accurate administration of the law, is attested by the result of the deliberate reviewals of its judgments by the Supreme Court. From 1851 to the present time there have been 1349 writs of error to its judg-
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ments, not including 89 still pending. Of these 1349 about one-half, 671, have been affirmed by written opinions, 506 have been affirmed without opinions, non-prossed or diseon. tinned, and 172 reversed.32 Taking the whole business of the court therefore during the last twenty-three years, it has disposed, in one way or another, of more than 177,000 cases, with only 172 in which error has been found by the tri- bunal having the final adjudication of questions of law in l'ennsylvania.
In this immense mass of litigation have been included nearly all the important issues of law and fact arising in the varied business of a great city. Causes already noticed had made this the law court of Philadelphia. Two generations of lawyers had been accustomed to bring their suit at law involving more than one hundred dollars in this court. Professional habits change slowly, and although at various times the jurisdiction of the Common Pleas was enlarged to $500, the Court of Nisi Prius was re-established, and juris- diction in equity was given to this court, yet the traditional course of business was very little altered, and the bar con- tinned, as its predecessors had done, to bring its suits in equity in the Nist Prius and the Common Pleas, and to issue its writs at common law here.
One other matter of subordinate but scarcely less import- ance ought not to be passed over without notice. The spirit of the court has diffused itself through all its officers. Under the preposterous system of choosing prothonotaries by popu- lar election for short terms, the court has, for more thirty years past, had but a very imperfect legal control over the persons in charge of its records and its office business, yet such has been the force of its discipline and the influence of its administrative spirit, that it has been a matter of pride as well as of duty, in its elected prothonotaries and their depu- ties, to maintain the traditional system and carefulness of the office. The dockets and minutes have been not only well
32 These figures are given by actual count from the dockets of the Supreme Court, made for me by Mr. Vonneida and Mr. Reilly.
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but promptly kept. Millions of dollars are invested to-day in property depending for its title not only on the regularity of the proceedings of this court, but also on the completeness and accuracy of its records. Conveyaneing, almost a lost art elsewhere in America, remains in Philadelphia, notwithstand- ing the haste with which incompetent and half-taught men rush into it, as into all other professions, not only a seienee but a fine art. For aeeuraey of learning, carefulness of investigation, and beauty of execution, Philadelphia convey- aneing has acquired throughout the Union a just renown. It is a high tribute from this learned and cautious profession, that a title resting on proceedings in the District Court passes among the most careful with perfect confidence.
Such, gentlemen, is a hurried and imperfect, but not too partial retrospeet of the District Court. Take it for all in all, this present bar shall not look upon its like again. As a court of original jurisdiction for the rapid, punctual, accurate, just and satisfactory transaction of business, I venture, with- out disparagement to others, to say that the record of the District Court is unrivalled in this Commonwealth, and sur- passed in no other of the world.
The record is closed to-day ; the skilled and faithful servant is dismissed, and in his place we have new appren- tices, willing as he indeed, but, as yet, of untried capacity.
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