The twentieth century bench and bar of Pennsylvania, volume II, Part 65

Author:
Publication date: 1903
Publisher: Chicago, H. C. Cooper, jr., bro. & co.
Number of Pages: 1180

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THE BENCH AND BAR OF PENNSYLVANIA

HI. Sieger, born 1865, was admitted in 1887. L. Smoyner, born 1845, was admitted in 1867. J. J. Snyder, born 1865, was admitted in 1888. W. H. Sowden, born 1842, was ad- mitted in 1864. H. G. Stiles, born 1859, was admitted in 1879. E. H. Steine, born 1855, was admitted in 1877. F. M. Trexler, born 1861, was admitted in 1882. L. Wise, born 1872, was admitted in 1894. J. M. Wright.

born 1855, was admitted in 1881. R. E. Wright, born 1847, was admitted in 1869. W. H. Glaee, born 1840, was admitted in 1867. A. A. Gliek, born 1860, was admitted in 1886. R. C. Hamersly, born in 1835, was admitted in 1860. O. J. Stine, born 1860, was admitted in 1882. A. N. Ulrich, born 1853, was admitted in 1886. A. J. Kistler, born 1865, was admitted in 1889.

PHILADELPHIA COUNTY

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BY SAMUEL M. ISRAELI

INTRODUCTION.

The bar of Philadelphia has had an inter- esting past. We doubt not but that it has a great future before it. We do not wish to play the part of the prophet, to foretell the future; no advantage would be derived thereby even if it were feasible. We prefer to play the part of historian. We think that this small effort on our part to give a histori- cal sketeh of the bar of Philadelphia will prove interesting reading to those who are engaged in the profession in that eity as well as elsewhere.

Certain traditions are cherished by the members of the profession of the law in every community. No less is this the ease with the gentlemen who are engaged in the profession of the law in the City of Brotherly Love. The traditions of the bar, however, differ from those of the people of the olden times, the tradition of the Hebrew, the Greeks, the Teutons. Their traditions were handed down from father to son, from father to son, and so on for many generations. In faet they gained in volume and in the marvelous with the advanee of age. The traditions of the bar, however, do not thus aeeumulate. They do not last more than a generation. Thus the great names in the minds of the members of our bar to-day, are those that flourished in the last generation; Binney, Meredith, Sharswood, ete., while the gentle- men who flourished in the previous genera- tions are as much as forgotten.

We consider that the traditions of our bar are as worthy for us to cherish as the tradi- tions of the ancient times were to the an- cient peoples. It is with this thought in

mind that we have tried to put in writing the legal history of our great eity. We can- not elaim that it is complete in every detail, nor have we, within the limit of our work, thought it advisable to inelude all the men who have been prominent in the history of our bar and our beneh. The best we could do and that we have tried to accomplish with fidelity, was to inelude all the men of our eity who have played an important part in the development of the history of our great bar.

If our work has done something towards plaeing in permanent form some of the tradi- tions of the bar of Philadelphia, from its in- eeption to the present time, we shall be sat- isfied that this book is not altogether futile or unnecessary.

CHAPTER I.

EARLY COURTS OF PHILADELPHIA. COUNTY COURTS.

Probably the vaguest part of our history is the exaet structure of our eounty courts in the early days of the settlement of Phila- delphia. Nor is this surprising; litigation in a new community, consisting of but a few settlers, could not be very large or very mineh varied at first, nor could the eonstitu- tion and jurisdiction of the courts be very definite.

That there needed to be some eourts of justice, is.evident, as Philadelphia was set- tled by people coming from England who had at that time a complete and comprehen- sive system of jurisprudence, the pride of England, and one of the greatest prodnets of modern eivilization.

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It was, therefore, natural for William Penn and his advisers to look to the Englishi system for a model of the court to be estab- lished for Philadelphia and the province of Pennsylvania. But Penn, in establishing the courts for our city, seemed to have made as the groundwork of the system, the county courts which flourished in the time of Eg- bert and Alfred, but which fell into decay after the Norman conquest. The court of original jurisdiction, thus established, was the county court. Bolles, in his history of Pennsylvania, states that the county courts in this section of the country were estab- lished in 1673 under the government of the Duke of York, and Penn left this court in the form he then found it, with some im- provements in procedure. In Philadelphia this court consisted of five justices of the peace of this county, holding commissions as judges of the county court. The first set- ting of this court is said to have taken place on October 24, 1693.

The civil jurisdiction of this court was clearly defined. It covered all actions of debt, account, trespass, and actions involving title to real estate. An appeal lay from this court to the Provincial Council. In the course of time this court embraced within its jurisdiction other matters, some of them executive rather than judicial in their na- ture. Thus, for example, the County Courts superintended the laying out of public roads, apportioned town lots to responsible persons, acknowledged deeds and registered private brands and marks of the owners of cattle. This court granted letters of administration, appointed guardians and trustees, dis- charged insolvents, confirmed partitions of property, and made regulations of the wharves.

In consequence of the great scareity of money in the colony, some of the judgments rendered by the county courts were peculiar. One judgment was entered for "172 pounds of pork and two bushels of wheat." In an-

other case judgment was entered for "1,000 of sixpenny nails, and three bottles of rum."

From 1683 the judges of the County Court held session as judges of the Orphans' Court twice every year. But by the act of March 27, 1713, a District Orphans' Court was established. The judges of this court also presided over the Court of Quarter Ses- sions. The doekets of the Orphans' Court are complete from April 9, 1719, till 1731, and the printed record of the entire pro- ceedings of the court from 1719 till 1731 fills only twenty-five 12mo pages. This will give the reader an idea of the extensive business of the court in those early days.

Besides the Common Pleas and Orphans' Court, the judges of the County Court held court of Quarter Sessions until 1713, when the same judges who held Orphans' Court also presided in the Court of Quarter Ses- sions. That court had from the earliest times jurisdiction of the criminal cases, except the more serious crimes, which were tried by the Provineial Council. The most numerous of- fenses were for swearing, working on Sun- days, shooting and maiming hogs, encourag- ing drunkenness and selling drinks to the Indians. Occasionally some man was tried for the infamous crime of appearing on the street dressed as a woman. The most famous case which was tried during the colonial pe- riod was the libel proceedings against Wil- liam Bradford, the printer, in 1692. Bradford was the first printer of the colony. He learned his trade with a Quaker printer in London, and later came to Philadelphia. The Philadelphians needed a printer and they agreed to pay Bradford forty pounds a year as a bonus, besides giving him all their print- ing business.

Bradford was for many years in the eolony, and got along sufficiently well with its settlers. Later he gained some liberal ideas from George Kieth, in opposition to the Quaker doctrines, and thenceforth openly opposed the tenets of the Quakers. He print-

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ed several pamphlets casting reflections on the doctrine of the Quakers. In 1692 he pub- lished a paper called an "Appeal," criticis- ing some acts of the magistrates. He was then arrested on the charge of libelous pub- lication, which, it was alleged by the govern- ment authorities, was malicious and seditious in character. He was placed on trial before the Court of Quarter Sessions. David Lloyd appeared for the prosecution, and contended that the only question the jury have to find is whether the defendant printed the paper, and that it is for the court to decide whether or not the paper is seditious in character. Bradford, who appeared in his own defense, contended, on the other hand, that the jury are to decide not only the question whether he printed the paper, but also whether the paper is "sedition paper or not, and whether it does not tend to the weakening of the hands of the magistrate."

Samuel Jennings, who presided over this court, instructed the jury that they were to find: First, Whether that paper called "The Appeal" has not a tendency to weak- ening the hands of the magistrate and en- couraging wickedness? Secondly, Whether it did not tend to the disturbance of the peace ? Thirdly, Whether William Bradford did not print it without putting his name to it, as the law requires ?

This is the first time in the history of the common law jurisprudence that a court of competent jurisdiction has left it with the jury to determine the question of the libel- ous character of the writing complained of. The jury failed to agree upon a verdict and were discharged. This seems to have ended the cause. The principle established in the case is, however, of paramount importance. Upon this principle rests the liberty of the press. The popular establishment of it took place in the trial of the Zenger case in New York more than thirty years afterwards. There can be no doubt, however, but what Hamilton, the defender of Zenger in that

case, knew what William Bradford contend- ed for, and that the court adjudged the prin- ciple of law as contended by Bradford.

Besides the County Courts already de- scribed, there was the City Court. This court consisted of the mayor of the city, the re- corder, who was actually the presiding judge of the court, and the aldermen of the city. Of these judges, the recorder was usually a lawyer, but the other judges were, as a rule, laymen. To this court belonged exclusively the trying of all the petty crimes committed within the limits of the city, and also the adjustment of civil cases involving small amounts. This court was abolished by the act of March 11, 1789.

PROVINCIAL COUNCIL.

The most conspicnous of all our early tri- bnnals was the Provincial Council, the court of last resort for the province of Pennsyl- vania. While this court was the court for the whole province, still its early history and that of the Supreme Court, its subsequent outgrowth, is intimately connected with the legal history of Philadelphia. This high tribunal was established by the Royal Char- ter of William Penn, dated March 4, 1681. and by the order of the Executive Council in 1684, and was reorganized from time to time by different acts of assembly. It con- sisted of the most influential men of the com- munity -- men of affairs and of large business experience. William Penn, while he was in Philadelphia and gave his personal attention to the affairs of the colony, presided in per- son over the deliberations of this tribunal.

It is difficult to exactly define the powers of this conrt. It is clear, however, that this body exercised a general supervision of some matters pertaining to the state. As a purely judicial tribunal it was the high- est Court of Appeals in the province. and appeal of the cases decided by the County Courts lay to this conrt. It, moreover. exercised original jurisdiction in certain

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cases. It is hard to draw the line between its original and its appellate jurisdiction. That there was some line of demarkation is certain, however. This court tried cases of ordinary jurisdiction, such as actions for the recovery of money; it entertained a petition pertaining to decedents' estates, granting letters of administration, etc. Thus, in the matter of the petition of Lawrier, decided by the council, and reported in Pennypack- er's Colonial Cases, page 55, Harmon Law- rier, asked, and was granted permission, upon giving security, to remove four chil- dren, of whom he was the guardian, to New York. This case was decided in 1695.

The council also had within its jurisdiction the trying of the most serious criminal of- fenses. One of the most famous cases that came before this council during the first few years of its existence as a court of original jurisdiction was the trial of Margaret Matt- son in 1683. This prisoner was charged with being a witch. William Penn presided over the tribunal during the trial, and delivered the charge to the jury. The jury returned a verdict of "not guilty of being a witch, but guilty of the common fame of a witch." In this manner the first and last trial for witchcraft in Pennsylvania was ended. The case happened at a time when all the world believed in witchcraft, and if we remember the blind fury that took possession of the colonists in New England, the result reached by the jury in the Mattson trial was as praise- worthy and as honorable as it was just, and it casts equal credit on the court before which the case was tried, and on the jury who decided it.

Another famous case that was tried before the council while Penn presided over its de- liberations was the trial of Charles Picker- ing. This trial also took place in 1683, and is reported in Pennypacker's Colonial Cases, page 32. Pickering, with two confederates, was arrested on the charge of the "Hyenous and grievous crime" of counterfeiting Span-

ish bitts and Boston money, silver coins cir- culating in the colony. The prisoners were tried before a jury, Penn delivering the charge, and the jury returned a verdict of "guilty." Pickering was sentenced that he should pay to every person who shall, with- in the period of one month, bring any of this counterfeit money, according to their re- spective proportion, and pay a fine of forty pounds, to go to the building of a court house. His fellow prisoners were given light sentences, as they were only his accomplices in the crime.

As we have said, in its civil jurisdiction the council heard appeals of decisions from the County Court, as well as entertaining original jurisdiction. A characteristic de- cision of this council was made in the case of Noble vs. Man, reported in Pennypacker's Colonial cases, page 27. This case was an appeal from the County Court of Philadel- phia county. The council decided that a judgment was rendered to the wrong party in the litigation, and that the County Court of Philadelphia county pay a fine of forty pounds for giving judgment against the law.

Another decision equally characteristic, though not so harsh, was rendered by the council in 1684, in the case of Johnson vs. Peterson. It is as follows: "There being a difference pending between them, the gover- nor and council advised them to shake hands and forgive one another, and ordered that they should enter in bonds for fifty pounds apiece for their good observance, which accordingly they did. It was also ordered that the records of court concerning that business should be burnt." This case will also be found in Pennypacker's Colonial cases, page 38.

By the charter of 1701, provision is made that no persons should at any time thereafter be obliged to answer any complaint, matter or thing whatsoever, relating to property before the governor and council or any other place but in the ordinary course of justice,

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unless appeal thereto shall be afterwards by law appointed.

The first chief justice or prior judge of the Provincial Council was Nicholas Moore. He received his appointment in 1684. He had hardly assumed his duties as chief justice when impeachment proceedings were begun against him before the council. Nicholas Moore had held positions of great power and responsibility in the colony. Hle came to Philadelphia with Penn, in 1682, was a mem- ber of the assembly in 1682, and was its speaker in 1683. While in the assembly he incurred the enmity of one Abraham Mann, apparently a political intriguer of his day, and it was Mann who brought about the im- peachment proceedings against Moore. The impeachment was never heard, nor did Moore seem to have suffered any in the esti- mation of Penn as a result thereof, for he was afterwards employed in the very im- portant office of commissioner of the govern- inent.

ADMIRALTY.

Penn and his Council exercised jurisdic- tion in admiralty cases. This court was known as the Court of Vice Admiralty, but after Penn's departure from the colony a District Court of Admiralty was established, and the judges thereof were commissioned from England. The first judge of vice ad- miralty, Benjamin Fletcher, received his commission in 1692. During the times that Penn lost his prestige in the court of Eng- land, while William III occupied the throne, Col. Robert Quarry was commissioned judge of vice admiralty. He was an able and ener- getic man, and proceeded to exercise the powers of his office with vigor. He was a member of the Church of England, and, therefore, did not have much sympathy with the Quakers, and made himself obnoxious to almost everybody, even to William Penn himself. In the case of Adams vs. Webb (Pennypacker's Colonial Cases, page 59),

Quarry came in collision with the County Court, which issued a replevin of goods in possession of the marshal of the Court of Vice Admiralty. The marshal complained to Judge Quarry, who became very indignant over the disregard of his powers, and laid the matter before the council. On the ap- pointed hour the marshal appeared before the council with his commission, which had on it the effigy of the King of England, and the seal which was in a tin box. David Lloyd, one of the most famous attorneys of those times with whom the magistrates con- sulted before issuing the writ of replevin. exclaimed, "What is this? Do you mean to scare us with a great box (meaning the seal in a thin box) and a little baby (meaning the picture or effigy) ?" " "Tis true," says he, "fine pictures please children: we are not to be frightened at such a rate." The case, however, notwithstanding the eloquence of Lloyd, was decided in favor of the marshal.

On the accession of Queen Anne, Penn regained his prestige at the court, and swift work was made of Quarry, who was at once deprived of his commission, and Robert Mompesson, who, indeed, had been commis- sioned judge of vice admiralty before, but whose office was practically worthless while Quarry exercised jurisdiction in admiralty matters, became the actual judicial head of the Court of the Admiralty.

EQUITY AND THE CHANCERY COURTS.

One of the most interesting chapters of the judicial history of Pennsylvania is that which relates to the development of the equity powers of our courts. It is probable that from the earliest times the courts and. in particular, the Provincial Council, exer- cised both common law and equity powers. Several acts were passed at regular intervals by our assembly relating to procedure in equity, and these acts were as regularly re- pealed by the Privy Council of England. It is a curious fact that the time between the

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passing of the act in the colony and its repeal in England was about five years. The fact can, however, be easily explained. Under the original royal charter to Penn, the King re- served the right to repeal such acts that were passed by the legislature of the colony, as seemed in derogation of the rights and interests of the crown. The colony was given the right to submit any bill within five years from the time that it was passed. The result was that the colonists waited as long as they thought safe before they submitted the bills to the crown, and generally they could wait nearly the limit of five years before doing so. When such bill was repealed, the colonists, under the leadership of David Lloyd, would pass another law as nearly like the former as they dared to do, and the law was again in foree for another period of five years. Especially was this done with reference to procedure in the courts. This method was continued until the first part of the eigh- teenth century with reference to the courts of equity and the procedure in equity.

During all these years, there was going on in the colony a contention between the gov- ernor and the Executive Council on the one side, and the General Assembly on the other, over the establishment of a separate court of chancery with the governor, ex-officio, as chancellor. The assembly, jealous of the powers of the proprietors and their repre- sentatives, was steadily opposed to such a grant. During the administration of Gov- ernor Evans, this controversy was accom- panied with a considerable degree of bitter- ness. Governor Evans was very unpopular, and it was not to be supposed that the peo- ple, remembering the abuse of the powers of chancery in England, and the great costs and delays in that court, would establish an unpopular court to favor an unpopular gov- ernor.

Godkin, who succeeded Evans as governor of the colony, was as mild and as tactful as Evans was fierce and blundering. He did

not press the claims for the office of chan- cellor. His successor in office, Sir William Keith, who became governor in 1717, was very popular in the colony, and sought to assume the office and powers of chancellor of the colony. Accordingly, in 1720, by a mes- sage to the House of Assembly, he informed its members that there was a great need for a Court of Chancery, and that he had been advised that by virtue of his commission, he had the authority to act as chancellor of the colony, and he desired to know the pleasure of the House. Upon receiving this commu- nication, the House unanimously passed a resolution, authorizing the governor to hold a Court of Chaneery for the province with the assistance of such of the council as he shall see fit.

Thus the Court of Chancery was estab- lished. The first session of the court was held on August 25, 1720, and it continued in existence until 1736. In 1726 Keith was re- moved from office by the Penns, and Patrick Gordon became governor. He communicated with the council that he had been asked several times to assume the office of chan- cellor, as he had been informed that a Court of Chancery had been established, and his predecessor had exercised the powers of the chancellor. The council answered that in their opinion he could assume such office, and so he did, and he continued to act as chancellor until 1736, when the assembly . inquired by what authority the governor with his council held court as chancellor. The governor, in reply, sent the communica- tions of 1720 to the assembly.

The assembly very opportunely discovered that the creation of such a court was in de- rogation of the provision of the charter of 1701, already referred to, which is to the effect that no person shall be obliged to answer any complaints relating to property before the governor and his couneil. Gordon, however, continued to act as chancellor until his death, but his successor did not attempt

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to exereise the powers of chancellor. It is probable that it is due to the reluctance of the Governor succeeding Gordon to assume the powers of a ehaneellor, but we have had no separate Court of Chancery in Pennsyl- vania, exeept for the short period just de- scribed.

From that day to this, only one other at- tempt was made to ereate a separate Court of Equity in Pennsylvania. This happened in the convention which framed the eonsti- tution of 1790. This attempt proved futile. As a result, in Pennsylvania there grew up a system of equity administered by the judges of the County Courts under common law forms. The same result, but from differ- ent causes, was arrived at in the New Eng- land states, where the opposition to ehaneery had more of a religious sentiment. For a long time these states stood alone in having a mixed procedure of equity and common law. That such system was not detrimental to the administration of justice is evident, not only from the history of equity in our state, but also from the faet that New York and nearly all the states have adopted our system. Indeed, in England, the mother of the Iligh Court of Chaneery, by the act of 1870, a system not greatly differing from our's, was established.

Among the counsel who praetieed in the Court of Chancery under Keith and Gordon, were John Kinsey, afterwards chief justice of Pennsylvania, who seemed to have been engaged in nearly every ease ; Andrew Ham- ilton, Peter Evans, Joseph Growden and Thomas Hopekinson. One day Mr. Kinsey came into the eourt room with his hat on, and, on being requested by the ehaneellor to remove it, refused to do so by reason of his conseienee. Thereupon the ehaneellor, who was himself a Quaker, ordered an officer of the court to remove the hat. This produeed a petition from the Quakers, with the result that a rule was adopted to the effeet that a practitioner might appear in the court with

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The twentieth century bench and bar of Pennsylvania, volume II, Part 65

Author: Publication date: 1903 Publisher: Chicago, H. C. Cooper, jr., bro. & co. Number of Pages: 1180

Author:
Publication date: 1903
Publisher: Chicago, H. C. Cooper, jr., bro. & co.
Number of Pages: 1180