The twentieth century bench and bar of Pennsylvania, volume I, Part 3

Author:
Publication date: 1903
Publisher: Chicago, H. C. Cooper, jr., bro. & co.
Number of Pages: 1102

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Of James Hamilton, James Riddle, Charles Smith, John Joseph Henry and Thomas Smith, all of whom practiced at this period but beeame judges subsequently, we will speak later.

David Watts was another lawyer admitted during this period, one of the strongest mem- bers of the early bar. He was a son of Frederiek Watts, who was a member of the

THE BENCH AND BAR OF PENNSYLVANIA

early provincial council, and was born in Cumberland county October 29, 1764. Hc was graduated from the first class which left the then unpretentious halls of Dickin- son college in 1787. He afterwards read law in Philadelphia under the eminent jurist and advocate, William Lewis, LL. D., and was admitted to our bar in October, 1790. He soon acquired an immense practice and be- came the acknowledged rival of Thomas Duncan, who had been for years the recog- nized leader on this circuit. He was engaged with Mr. Duncan in most of the cases which were tried during that period, and they were always employed on opposite sides. Besides this they both traveled over an extensive circuit, trying important land cases in dif- ferent portions of the state. David Watts was a man of herculean fame, had a strong, powerful voice, was a forcible and impas- sioned speaker, who generally selected only the strong points of his case and labored upon them with an impassioned energy which approached to fury. In 1794 he took part in the Whisky Insurrection upon the side of law and order. He was the father of the late Hon. Frederick Watts. David Watts died September 25, 1819.

Then there was Steele Semple, admitted on motion of James Hamilton, January, 1791, who was graduated in the first class of Dick- inson, went to Pittsburgh and died in April, 1813. And the last whom we shall mention of this period, Thomas Creigh, the son of Hon. John Creigh who emigrated from Ire- land and settled in Carlisle in 1761. John Creigh was an early justice and one of the nine representatives who signed the first Declaration, June 24, 1776, for the province of Pennsylvania. Thomas Creigh was born in Carlisle, August 16, 1769, and graduated in the second class which left Dickinson college in 1788. He probably studied law under Thomas Duncan, upon whose motion he was admitted, July, 1791. He died in Carlisle, October, 1809. He was a brother-in-law of

Samuel Alexander, Esq., of Carlisle, and of Hon. John Kennedy, of the Supreme Court.

We have now given a brief outline sketch of our bar from the earliest times down to the constitution of 1790, when, in the follow- ing year, Thomas Smith, the first president judge of our judicial district, appears upon the bench.

III.

FROM THE ADOPTION OF THE CONSTI- TUTION OF 1790.

From the adoption of the State Constitu- tion until the present, the judges who have presided over our courts are as follows : Thomas Smith, 1791; Hon. James Riddle, 1794; Hon. John Joseph Henry, 1800; Hon. James Hamilton, 1806; Hon. Charles Smith, 1819; Hon. John Reed, 1820; Hon. Samuel Hepburn, 1838; Hon. Frederick Watts, 1849; Hon. James H. Graham, 1851; Hon. Benja- min F. Junkin, 1871; Hon. Martin C. Her- man, 1875; Hon. Wilbur F. Sadler, 1885; Hon. Edward W. Biddle, 1895.

Hon. Thomas Smith first appeared upon the bench in October term, 1791. He resided in Carlisle. He had been a deputy surveyor under the government, and thus became well acquainted with the land system in Pennsylvania, then in progress of formation. He was accounted a good common-law law- yer, and did a considerable business. He was commissioned president judge by Gov- ernor Mifflin, August 20, 1791, and continued in that position until his appointment as an associate judge of the Supreme Court on the 31st of January, 1794. He was a small man, rather reserved in his manners and of not very social proclivities. He died at Phila- delphia, March 31, 1809, aged sixty-four years.

Hon. James Riddle first appears upon the bench in April term, 1794. He was born in Adams county, graduated at Princeton and read law at York. He was admitted to this

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bar upon the motion of Jasper Yeates, in January, 1785, having been previously ad- mitted to the bars of Lancaster and Frank- lin counties, Pennsylvania. He had a large practice at Chambersburg until his appoint- ment by Governor Mifflin as president judge of this judicial district in February, 1794. This district was then composed of Cumber- land, Franklin, Bedford, Huntingdon and Mifflin. He was well read in science, litera- ture and law, a good advocate and very successful with the jury. He was a tall man, broad shouldered and lusty, with a noble face and profile and pleasing manner. He was an ardent Federalist and, owing to the strong partisan feeling which existed, he resigned in 1804 his position as judge and returned to the practice of law. He died in Chambersburg about 1837.

Charles Huston .- It was while Judge Riddle was upon the bench that Charles Huston, afterwards (1826) a judge of the Supreme Court, was admitted (August, 1795), upon the motion of his preceptor, Thomas Duncan, his committee of examina- tion being Thomas Hartley, Ralph Bowie and Charles Smith, Esqs.

John Kennedy, later of the Supreme Court, was also admitted under Riddle, August term, 1798. He was born in Cumber- land county (June, 1774) and graduated from Dickinson college, 1795. He had read law with James Hamilton, and was examined by the same committee as Huston. He al- most immediately removed to a northern circuit, where he became the compeer of men like James Ross, John Lyon, Parker Campbell and others scarcely less distin- guished. For sixteen years he sat upon the bench of the Supreme Court from 1830 until his death August 27, 1846. His opinions are distinguished for their lucid argumen- tation and laborious research.

John Joseph Henry, the third president judge of our judicial district, was from Lancaster and was born about the year 1758.

He was appointed in 1800. He had previous- ly been the first president judge of Dauphin county in 1793. He was, as a youth, in the expedition against Quebec under General Benedict Arnold, was taken prisoner and subsequently wrote an account of the expe- dition, with which also was young Aaron Burr, then a cadet of twenty. Judge Henry was a large man, probably over six feet in height. He died in Lancaster in 1810.

THE BAR IN 1800.

And now we have arrived at the dawn of a new century. A change had come or was coming upon us, and many of the old forms and customs of colonial days were passing away. The continental dress, the knee breeches and powdered queue, the dignificd ceremonials of the courts and the refined manners of the gentlemen of the old regime were then becoming a matter more of mem- ory than of observation. Judge Henry was upon the bench. Watts and Duncan were unquestionably the leading lawyers. They were engaged probably in more than one- half of the cases which were tried, and were always upon opposite sides; and Hamilton, six years afterwards, to be upon the bench. There was also Charles Smith, who was to succeed Hamilton; Bowie of York, and Ship- pen of Lancaster, with thin queues and con- tinental knee breeches, and Thomas Hartley also, of the older set, and the Duncan brothers, James and Samuel, and Thomas Creigh, all of them engaged in active prac- tice at our bar in the beginning of the cen- tury. And, at this time, in the office of that renowned lawyer, David Watts, there were then, or within a few years, as students, William Wilkins, born in Carlisle (1779), admitted in November, 1801, who was to become a distinguished member of the Pittsburgh bar, United States Senator, min- ister to Russia under President Jackson, and secretary of war under Tyler; Jolın B. Alexander, also born in Carlisle (1782), ad-

THE BENCH AND BAR OF PENNSYLVANIA

mitted in September, 1804, afterwards of Greensburg, and the foremost member of the Pennsylvania bar west of the Alle- ghenies; and George Metzger and Andrew Carothers, of Carlisle. And under Thomas Duncan, Esq., as students at this time (1801) was Alexander P. Lyon and James Caroth- ers, and John Bannister Gibson, afterwards the great chief justice of Pennsylvania-all admitted on motion of Thomas Duncan, their preceptor, at the March term, 1803, with Ralph Bowie and Charles Smith and William Brown, Esqs., as their committee.

At this time the lawyers still traveled upon the circuit and Circuit Courts were held, as will be seen by the following entry : "Circuit Court held at Carlisle for the county of Cumberland, this 4th day of May, 1801, before Hon. Jasper Yeates, and Hon. Hugh Henry Brackenridge, justices of the Supreme Court."

Hon. John Bannister Gibson .- Of the above, Gibson was, at the time of his admis- sion, about twenty-three, having been born November 8, 1780. He was graduated from Dickinson college in the class of 1798. From 1805 to 1812 he seems to have had a fair legal practice in Cumberland county, par- ticularly when we consider that the field was then "occupied by such men as Duncan, Watts, Bowie of York, and Smith of Lan- caster, who, at the time of which we speak, had but few equals in the state." (See Porter's Essay on Gibson.) His reputation, however, at this period, was not that of dili- gence in his profession, and it is probable that at this time he had no great liking for it.

Upon the death of Judge Brackenridge, in 1816, Judge Gibson was appointed by Governor Snyder associate justice of the Supreme Court, where, as it has been said, if Tilghman was the Nestor, Gibson became the Ulysses of the bench. This appointment seems first to have awakened his intellect and stimulated his ambition. He became

more devoted to study and seems to have resolved to make himself master of the law as a science. Coke, particularly, seems to have been his favorite author, and his quaint, forcible and condensed style as well as the severity of his logic, seem to have had no small influence in the development of Gib- son's mind, and in implanting there the seeds of that love for the English connnon law which was afterwards everywhere so conspicuous in his writings.

Upon the death of Judge Tilghman, Gib- son was appointed his successor as chief justice of Pennsylvania, commissioned May 18, 1827. "From this time forward," says Col. A. Porter, in his admirable essay, "the gradual and uniform progress of his mind may be traced in his opinions with a cer- tainty and satisfaction which perhaps are not offered in the case of any other judge known to annals. His original style, com- pared to that in which he now began to write, was like the sinews of a growing lad compared to the well-knit muscles of a man. No one who has carefully studied his opin- ions could have failed to remark the in- creased power and pith which distinguish them from this time forward." In the lan- guage of Hon. Thaddeus Stevens, "He lived to an advanced age, his knowledge increas- ing with increasing years, while his great intellect remained unimpaired."

His opinions were among the earliest American decisions to be recognized in the courts of Westminster, England. It has been said of them that they can be "picked out from others like gold coin from among copper." He was for more than half of a long life an associate or chief justice upon the bench, and his opinions extend through no less than seventy volumes of our reports (from 2 Sergeant and Rawle to 7 Harris), an imperishable monument to his memory. He died in Philadelphia, May 3, 1853. Upon the marble monument erected over his re- mains in the old graveyard at Carlisle is the

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following beautiful inscription from the pen of the late Hon. Jeremiah S. Black :

"In the various knowledge Which forms the perfect Scholar IIe had no superior. Independent, upright and able,

He had all the highest qualities of a great Judge.

In the difficult science of jurisprudence He mastered every Department, Discussed almost every question, and Touched no subject which he did not adorn. He won in early manhood, And retained to the close of a long life, The affection of his brethren on the Bench, The Respect of the Bar, And the Confidence of the people."

Judge Gibson was a man of large propor- tions, a giant both in physique and intellect. He was considerably over six feet in height, with a muscular and well proportioned frame, indicative of strength and energy, and a countenance expressing strong char- acter and manly beauty. "His face," says David Paul Brown, "was full of intellect, sprightliness and benevolence, and, of course, eminently handsome; his manners were remarkable for their simplicity, warmth, frankness and generosity. There never was a man more free from affectation or pretention of any sort." "Until the day of his death," says Porter, "although his bearing was mild and unostentatious, so striking was his personal appearance that few persons to whom he was unknown could have passed him by in the street without remark."

Of his wide learning in language and lit- erature, and in other sciences than law, we have not space to speak, and we must refer the reader to the able tributes of men like Judge Black and Thaddeus Stevens, and to the more lengthy biographical notices of this great judge, of whom, as yet, no suf- ficient biography exists.

"Alas!" said the brilliant Rufus Choate, realizing the evanescent character of a law- yer's fame, "there is no immortality but a book." But the learned Grotius, who had written many books, sceing still deeper, that fame was but a postponed oblivion, ex- claimed when dying, "Alas! I have con- sumed my life with laborious trifling." He had not done so, nor did Gibson, whose autobiography is clearly written in the his- tory of the growth and development of the Common Law in Pennsylvania.

Judge Gibson's extra judicial accomplish- ments were very extraordinary. He was a born musician and the natural talent had been highly cultivated. He was a connois- seur in painting and statuary, at home with the ancient classics, familiar with the whole range of English literature, fond of the drama, and well versed in the dramatists of the Restoration. He had studied medicine in his youth (under Dr. McCrosky, of Car- lisle) and understood it well. He seemed to absorb all kinds of knowledge with scarcely an effort.

As to his mental habits, he was a deep, but not a close student; he worked most effectively, but he worked reluctantly. The concurrent testimony of all who knew him was that he seldom or never wrote except when under the pressure of necessity, but when he once brought the powers of his mind to a focus and took up the pen, he wrote continuously and without erasure. When he once began to write an opinion, he very rarely laid it aside until it was com- pleted. This, with the broad grasp with which he took hold of his subject, gave to his opinion a consistency and unity other- wise difficult to have attained. These opin- ions very seldon give a history of decided cases, but invariably put the decision upon some leading principle of law, referring to but few cases by way of illustration, or to show exceptions to the rule.

Of his style much has been said. Said

THIE BENCH AND BAR OF PENNSYLVANIA

Stevens, "I do not know by whom it has been surpassed." It is a judicial style at once compact, technical and exact. Its meaning does not always lie upon the sur- face, but when it is perceived it is certain and without ambiguity. It may be interest- ing to state, in this connection, that Judge Gibson often thought out his opinions while playing upon his favorite instrument, the violin. As to his accuracy of language, he was in the habit of carrying with him in his satchel a book of synonyms. These facts were told to the writer by his son, the late Col. George Gibson, of the United States Army.

The following sketch was written by Hon. B. F. Junkin, a life-long friend and acquaint- ance of Justice Gibson, and is particularly interesting insomuch as it gives an insight into the boyhood days of the famous judge :

Chief Justice John Bannister Gibson was born and raised in what is now Perry county, at a point on Sherman's creek six miles east of the present county seat. This spot has been my fishing ground for sixty years, and I never approach it without feeling as Moses did when he saw the burning bush, that the ground was canonized and holy. It is as rugged a spot as exists in the county, with hills and rocky bluffs enclosing it, an old moss-covered stone grist mill, operated by a spring of water a mile distant, and with not a level acre on the farm except an alluvial meadow made by the creek; just what his rugged surroundings had to do in training his powerful mind is hard to tell, but doubt- less were not without influence.

Just below the old mill a heavy perpen- dicular Hamilstone bluff, one hundred feet high, projects into the creek, and in con- structing the highway, instead of cutting this bluff to the level of the road, they cut under it, thus leaving the bluff overhanging the wagon track. There were three Gibson brothers, the Judge, Frank and George. As

they depended chiefly on game and fish for their living, not much farming was done, a little buckwheat and rye only was raised, consequently the boys were often short in powder and shot. At that time (1800) there were neither canals nor railroads, and all the flour that the people did not eat them- selves was hauled in broad-wheeled wagons to Baltimore as the nearest market, and the farmers generally moved their teams in droves of eight and ten wagons, and all had to pass under Gibson's rock. The three boys (to raise the wind) one night placed light props under the hanging rock, carefully wedged, and brought to bear on the bluff, as if supporting it; whereas, in fact, these props could no more hold up Gibson's rock than a tallow-dip could sustain the Wash- ington monument. The drove of wagons came on next morning and the teamsters were confounded to find the rock supported by props, and were afraid to remove them, all appearing bona fide. They sent for the Gibson brothers, who appeared and magni- fied the danger, but proposed for a small compensation (enough to buy a week's powder and ball) to remove them, and did so with as much seeming apprehension of danger and imminent death as if they them- selves had not placed them in position.

The mother of the Gibson brothers was an Episcopalian and worshipped in Carlisle, and on one occasion the bishop from Phila- delphia was present and the mother pre- vailed upon him to go over the mountain to the Gibson mansion to baptize the three boys. The bishop drove over in a coach and four, and when the mother introduced the bishop to father Gibson the former deemed it necessary to explain his presence, and said, "Your wife has brought me over to baptize the boys, and have you any objec- tions?" The father replied, "Not any, if you can catch them." Next morning the boys were out with their rifles at four o'clock, and although the bishop stayed a whole

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week he never got sight of one of them; they never returned from the hunt until the bishop was in bed, and there was no baptiz- ing done.

The last time I saw the chief justice was at the sitting of the Supreme Court in May, 1852, and this happened: James X. Mc- Lanahan (then our member of Congress) and I had been amusing ourselves about town, and together entered the Herr (now Lochiel) hotel about eleven o'clock at night, where we found Judge Gibson sitting, sipping his night-cap, and MeLanahan said to the Judge : "I have just returned from Europe, and while in London I heard a great compli- ment paid you. I was in the Court of West- minster in London, where the twelve judges were sitting in banc, and a sergeant was arguing a question of law and read an opin- ion of the Supreme Court of Pennsylvania without giving the name of the judge deliv- ering it. The chief justice said: 'That is an opinion by Chief Justice Gibson.' The sergeant said: 'Yes;' the chief justice re- plied : 'Ah, sir, his opinions have great weight with this court.' The judge was deeply affected, tears filled his eyes, and he remarked 'that a prophet is not without honor, save in his own country.' "'

When the judiciary became elective he was chosen, in 1851, a judge of the Supreme Court, and had he lived (he died May 30, 1853) until 1855 he would have again be- come chief justice. Chief Justice Black's eulogy on Gibson (7 Harris, 10, 11, 12, 13 and 14) is so grand, so expressive and mag- ically overwhelming, that it renders any attempt to open the subject prohibitory, for to add to it is ultra vires.

Gibson's faculty of expressing the precise thought, in the precise words, as it lay in his mind, epitomized every sentence, and the thought crystallized into a harmonious setting.

George Metzger .- Of others admitted under Judge Henry, George Metzger, whom

we have mentioned, served as prosecuting attorney, and as member of the State Legis- lature in 1813-14. He was born in York county on November 19, 1782, and died in Carlisle, June 10, 1879, at the advanced age of ninety-six. He was the founder of Metz- ger college, Carlisle.

Andrew Carothers was born in Cumber- land county about 1778. He read law, as we have seen, with the elder Watts. Among his pupils was the late Hon. Frederick Watts (the son of his preceptor) and Hon. James H. Graham. "He became," says Judge Watts, "an excellent practical and learned lawyer, and very soon took a high place at the bar of Cumberland county, which at the time ranked among its members some of the best lawyers of the state." Watts, Duncan, Alexander and Mahan were at different times his competitors, and amongst these he acquired a large and lucrative practice, which continued through his whole life. Mr. Carothers was remarkable for his amiability of temper, his purity of character, his un- limited disposition of charity and his love of justice. He died July 26, 1836, aged fifty- eight years.

THE BAR UNDER HAMILTON.

James Hamilton, the fourth judge under the constitution, appears upon the bench in 1806. He was an Irishman by birth, and emigrated to America before the Revolution. He was well educated, large, very fat, very eccentric, very social, very dignified as a judge and very indifferent as to his personal appearance. He was considered an excellent lawyer and tolerable speaker.

"Judge Hamilton," says Brackenridge in his "Recollections," "was a learned and elegant lawyer, remarkably slow and im- pressive, and in his charges to the jury too uninute. * * He had received his edu- cation in Dublin. Among the younger mem- bers of the bar," continues he, "Mr. Gibson, now chief justice of the state, was the most 1

THE BENCH AND BAR OF PENNSYLVANIA

conspicuous. He even then had a high reputation for the clearness of his judgment and the superiority of his taste."

Hamilton was admitted in 1781; he had held the office of deputy attorney general at the bar, and was appointed by Governor Snyder to the bench in 1806, in which posi- tion he continued until his death in 1819, aged seventy-seven years.

We do not know whether the following manner of giving notice of the holding of the courts in the public press was cus- tomary or an innovation of Judge Hamilton, but in an old and yellow time-stained copy of the Carlisle Gazette, dated December 25, 1812, we find the following curious procla- mation :

"PROCLAMATION.

"To the Coroner, the Justices of the Peace and the Constables of the different town- ships of the County of Cumberland.

"Greeting: Know ye, that in pursuance of a precept to me directed under the hand and seal of Hon. James Hamilton, Esquire, president of the several Courts of Common Pleas in the Ninth District, consisting of the Counties of Adams, Cumberland and Frank- lin, and by virtue of his office of the Court of Oyer and Terminer and General Goal Delivery for the trial of capital and other offenders therein, and of General Court of Quarter Sessions of the Peace, and John Creigh and James Armstrong, Esquires, Judges of the same Court in the said County of Cumberland. You and each of you are hereby required that you be and appear in your proper persons with your records, recognizances, examinations and other re- membrances, before the Judges aforesaid, at Carlisle, at a Court of Oyer and Terminer and General Goal Delivery and General Quarter Sessions of the Peace, there to be holden, for the said County aforesaid on the first Monday of January next, at ten o'clock in the morning of the day, then and there to

do those things which to your several offices respectively appertain.

"Given under my hand in Carlisle this 24th day of November, in the year of our Lord one thousand eight hundred and twelve.

"John Boden, Sheriff."

It was Judge Hamilton's habit to have the tipstaves and other officers of the court at- tend him in a body when he walked to or from his residence and the court.

Watts and Duncan were still the leaders of the bar under Hamilton. Watts came to the bar somewhat later than Duncan, but both had been admitted and the latter had practiced under the justices prior to the con- stitution; but from that time (1790) both were leaders of the bar under the first five judges who presided after the constitution until the appointment of Duncan to the su- preme bench in 1817. David Watts died two years after.

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The twentieth century bench and bar of Pennsylvania, volume I, Part 3

Author: Publication date: 1903 Publisher: Chicago, H. C. Cooper, jr., bro. & co. Number of Pages: 1102

Author:
Publication date: 1903
Publisher: Chicago, H. C. Cooper, jr., bro. & co.
Number of Pages: 1102