The twentieth century bench and bar of Pennsylvania, volume II, Part 66

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

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his hat on if it be contrary to his conscience to appear with uncovered head.

At first the court was very popular, but it soon lost its popularity by reason of great delay and costs of the eases therein. There is extant a complete record of the proceed- ings before this court which was discovered by Mr. William Henry Rawle, and to which he printed an appendix to his essay on the Ilistory of Equity in Pennsylvania.

THE JUDICIARY OF THE COLONIAL PERIOD.

It may be stated as a general rule that in the early days of Philadelphia it was very seldom that a lawyer was raised to the bench. This is true of the County Courts as well as of the City Court. In the latter eourt, the recorder, who was the president of the court, was usually an attorney. Outside of the reeorder, the associate judges were laymen. Indeed, the same may be said about our Supreme Court or Provineial Couneil. At first, probably all the judges of the Supreme Court were laymen. Afterwards, the chief justiee, or prior judge, as he was ealled, was the only judge who was required to be learn- ed in the law. His associates continued to be laymen. This was true until late in the eighteenth eentury-perhaps until the Revo- lution.

It was not until late in the nineteenth century that the associate judges of the Common Pleas were required to be learned in the law. This was the ease as late as 1835. Indeed, at first, the man possessing a good share of common sense, and having a large business experience, was equal to the attor- ney who prepared for the bar within the colony. The law books to be found in this city were very few, and these could be learned with but little effort. Moreover. the attorneys to be found in Philadelphia for the first several decades after its settlement were very few, as we will have occasion to say a little later, and it is probable that most of

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them held several positions of public trust in the colony at the same time. This much may be said with regard to the judges of our courts in the primitive days of the growth of Philadelphia, that while most of them were not learned in the law, they were usually men of large experience in life, and men of learning and ability. They were men of affairs-for the most part merchants. They were influenced by principles of integrity and by desire for the public welfare of the colony.

THE BAR.

So much for a glimpse of the early courts of Philadelphia. The bar of Philadelphia. has had in the early days a great deal to eontend against. The spirit of the settlers was decidedly hostile to lawyers. William Penn, a man of singularly clear head and possessing sound judgment and political acumen, far ahead of his time, seems to have shared the prejudices of the colonists against the profession of the law. He looked upon lawyers as people fostering litigation and encouraging quarreling among the people of the community. It has always been the policy of the common law to discourage litigation. This was especially the case in a Quaker community. In such a community, a great many disputes, thongh wholly secular, were settled by the disputants in the meetings. It was therefore natural that Penn and the other Friends who settled in Philadelphia should desire that the colonists should settle their eivil differences peaceably, or at least by a tribunal having as little of the forms and the terrors of the law as possible. These convictions and these desires found expres- sion in the act of 1683, by which a tribunal of peacemakers was established. This act provides that in every preeinct three persons should be elosen as common peacemakers, whose judgment, duly certified to the County . that he, neither directly nor indirectly, has Court, should be as eonelusive as a judgment of the court.

The peacemakers gave way to the arbi- trators, and we find that as early as 1705 an arbitration act was passed, declaring that parties having aecounts against each other may consent to refer the matter to arbitra- tors, and the findings of the arbitrators en- tered upon record shall be as conducive as a verdiet of the jury or a judgment of the courts. Although the act provides for arbi- tration only in case of accounts, it was soon extended to matters in dispute that did not involve accounts. To this day there are various provisions on our statute books regu- lating arbitration, and in everyday life, arbi- tration is often resorted to as a mode of set- tling differences that arise between man and man. Thus the idea of the Quaker fathers of Philadelphia arc to a certain extent per- petuated to this day.

While the efforts on behalf of peace have, to a degree, succeeded, being attempted in directions entirely wholesome, the further steps to prevent the growth of the profession of the law which we are about to relate, failed entirely of their purpose, beeause they were detrimental to the true needs of so- ciety. One of the early laws of the province agreed upon in England, provides that in all courts all persons of any persuasion may freely appear in their own way and accord- ing to their own manner, and there person- ally plead their own eause, themselves, or, if unable to do so, by their friends. And in the early time the litigants did usually appear in their own behalf, or their friends appeared for them. There is, indeed, an act passed in 1686, entitled, ".An Act for the avoiding of two frequent clamours and manifest inconvenienees which usually attend mercenary pleadings in civil causes." This aet provides that no person shall plead in any civil cause in any court of the colony, unless he shall solemnly attest in open court received or will receive any benefit or re- ward for his so pleading under the penalty

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of five pounds, if the contrary be made to appear.

It will be readily seen that such an act would not tend to increase the number of attorneys within this province. Whether because of such legislation or for other reasons, it is true that the trials were gen- erally conducted by the parties themselves or by their friends. The result was that a great deal of confusion attended these trials, the parties wandered from the real issue in the cause and engaged in casting refleetions, not only on each other but often included in their reerimination the judge and the jury.

The confusion and disorder consequent upon such proceedings was sought to be remedied by the court adopting certain rules, among others the following: "That no per- son that is not immediately connected in the business in litigation shall presume to speak without leave."

"That plaintiff's, defendants, and all other persons shall speak directly to the point in question-and that they forbear reflections and reeriminations either on the court, the juries or on one another."

Whether these and like rules had the effect desired we have no means of knowing. It was not long, however, before parties began to plead by their attorneys, both in eivil and in criminal cases. We may also state with assurance that the attorneys received re- muneration generally directly, for so plead- ing. and the act providing to the contrary became a dead letter. We have here por- trayed the spirit of the times which, as we have seen, was decidedly hostile to the growth of a large bar in Philadelphia ; and, indeed, the bar of Philadelphia was for many years very small. This may be seen from the fact that, in 1699 or 1700, William Penn spoke of David Lloyd, the attorney general, and of the King's Advocate as the only two lawyers in Philadelphia, and Pastorious, the founder of Germantown in 1709, entered a complaint to the eouneil that his adversary,

with a design of forestalling justice, had retained the only four attorneys in the colony. The names of these four men undoubtedly were David Lloyd, George Lowther, Thomas Clark and Thomas Mc- Namrary.

Another fact pertaining to the early his- tory of our bar is that in these days the pro- fession of the law was very largely a social distinction, and the members of the legal profession belonged to certain families of the highest social rank in the city. It was mueh later that the profession ceased to be so exclusive and offered its privileges and opportunities to all those who believed that their field of activities lay before them as members of our bar, provided they be hon- est and honorable and have the required legal training and education.

Although this soil was so uncongenial to lawyers, and although our bar grew slowly, still the bar of Philadelphia beeame, in emi- nence, in learning, and in the integrity of its members the most prominent bar in the whole country. There were many circum- stances which tended to produce sueh a re- sult. Philadelphia was for many years before the Revolution the metropolis of the coun- try. It was for a quarter of a century the seat of the Federal Government. It was therefore natural that the large commercial and political interests of the community should call forth a prominent and accom- plished class of attorneys and advocates. Moreover, quite a number of the early mem- bers of the bar had been trained at the Inns of Court in London, and with their superior education and training produeed a powerful impression on the bar of Philadelphia, and tended to elevate it. Lastly, but of no mean importance, the bar of Philadelphia eon- tained the names of those who, by their great ability and achievements made a national reputation for themselves and for the eom- munity wherein they worked and labored. Such names as Andrew Hamilton, James

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Wilson, William and Edward Tilghman, Thomas MeKean and David Lloyd.

The first name on the roll of attorneys of Philadelphia is probably David Lloyd, a very conspicuous figure of the first half century of the settlement of Philadelphia. Lloyd came to Philadelphia in 1686, and upon reaching the eity presented to the couneil a commission appointing him attorney general of the province. It seems that two other persons had previously been appointed attor- ney general by the eouneil, John White in 1683, and Samuel Hersent a little later: but the former was appointed only for a special purpose, and the latter was sheriff of Phila- delphia, and his duties seemed to have been limited to proseeute criminals within the linits of the eity. Lloyd may, therefore, with propriety, be called the first attorney general of the colony. David Lloyd was born in 1659 in North Wales, and the Welsh blood which manifested itself in Thomas Jefferson and other of our Revolutionary heroes for liberty and freedom from oppression, was shown nearly one hundred years previously in David Lloyd.

In 1689 Lloyd was elerk of the County Courts, and in such position got himself into difficulties with the eouneil for refusing to produee the records of his court before the couneil. Probably, as a punishment, he was afterwards, in 1698, deprived of his offiee as attorney general. That office was then given to John Moore. During these years Lloyd was engaged in aetive practice, and appeared in many important eases.

After he was deprived of the office of attorney general, he became active in politi- cal affairs, and headed the popular party against the proprietary. He was elected to the assembly in 1701, and was a member thereof for many years. While in the assem- bly. he was hostile to the Government, and by his fertile mind and great abilities was able to hold together the forces against the Government. He was, moreover, the framer

of many laws for the improvement of the administration of justice in the colony, and was always alert to defend and secure fur- ther the liberties of the people. At one time, in 1704, during Evan's administration, he went so far as to prepare and sign as speaker of the assembly an address, pretended to be by the assembly, to the Proprietary, which was so offensive to William Penn that he demanded that Lloyd be prosecuted for high erime. This was not done, however, prob- ably through the influence of James Logan. In 1718 Lloyd was appointed chief justice of the provinee by Governor Keith, and filled that position to his death, in 1731, at the age of seventy-two. During the latter years of his life he lost his great mental powers, and, indeed, a few months before his death, the council declared that he was mentally unfit to aet. Death came, however, before he was relieved from offiee.

Andrew Hamilton, the most conspieuous figure of the early history of the Philadel- phia bar, was born in 1676 in England, and when about of age, eame to this eountry. He lived first in Virginia, where he taught school and was afterwards a steward on a plantation. On the death of the owner of the plantation, Hamilton married his widow. IIe afterwards returned to England, where he entered as a student at Gray's Inn in 1712, and was shortly afterwards admitted to the bar. Ile came to Philadelphia in 1715, and soon proved himself the greatest lawyer of his time in the whole country. He was engaged in the most important eases, and his fame spread to the neighboring colonies. He early took a leading part in the affairs of the colony, and became president of the executive couneil of the province and also attorney general. In 1724, having resigned his offiee as attorney general, he sailed for England and appeared as solieitor in the Court of Chancery in England to prove the will of William Penn. For his serviees to the Penn family he received a grant of one

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hundred and fifty acres of land in the north- ern part of the city. On that land he built himself a mansion which he called Rush Hill. Upon his return to America, he was made prothonotary of the Court of Common Pleas. In 1728 he was also made recorder of the city. In 1737 Hamilton was commissioned judge of vice admiralty. While holding these offices, he was a member of the assembly, and part of the time speaker of that body. It was while speaker of the House that he took a most active part in the erection of the State House, since become famous as the hall where the resolutions that "These Thirteen Colonies are and of right ought to be free and independent states, and that all political connection with England is and of right ought to be cut off," were adopted. Hamil- ton caused the purchase of the lot between Fifth and Sixth streets and between Chest- nut and Walnut streets for the State House, and it is believed that the structure was erected according to the architectural plans of Mr. Hamilton. He selected the lot, planned and superintended the construction of the building that has since, as Independence Hall, become one of the shrines of American liberty, and which has recently been restored and stands now facing Chestnut street, be- tween Fifth and Sixth streets.

While Hamilton was engaged in the many public positions, he attended to his practice, which increased in proportion during all that time. The case which won for Hamilton a great and lasting reputation, was that of John Peter Zenger in New York. We have heretofore described the trial of William Bradford before the council of Philadelphia, which resulted in the establishment of the principles that the jury is to determine whether the publication of a certain matter is libelous or not. When Andrew Hamilton came to Philadelphia, the recollection of that case was, beyond doubt, still in the minds of many people in the colony. It is most likely that Hamilton heard of the case and of the

principle which it involved. This is to be borne in mind when we discuss the Zenger case.

John Peter Zenger, a printer, who evident- ly learned his trade from William Bradford, was engaged in his trade in New York, and printed a book, for which he was, in 1735, indicted on a charge of libeling the gov- ernment. He was represented by James Alexander and Peter Smith, of New York. These attorneys took exception to the juris- diction of the conrt on the ground that its commission was irregular. The court, there- upon, ordered that the names of these gen- tlemen be stricken from the list of attorneys, and they were disbarred from further prac- ticing in that court. The court appointed an attorney, whose well-known reputation was such as to promise a speedy conviction of the criminal. Zenger's friends were not satisfied with him, and came to Hamilton and asked him to defend Zenger.

Hamilton was at that time sixty years of age and not of very good health, but the liberty of the press of this country was at stake, and he determined to defend the printer. At that trial Ilamilton took the bold stand that the jury were the judges as to whether the written matter was libelous. Zenger was acquitted at the hands of the jury. This result was hailed with joy by the people of New York. Hamilton was pre- sented by the city corporation with the free- dom of the city, and the certificate of his admission was enclosed in a gold box with appropriate inscriptions. He returned to Philadelphia, where he died August 4, 1741.

The principles won by Bradford and by Hamilton insured the liberty of our press and prevented the institution of a censor- ship thereof. These cases, especially the Zenger case, were widely discussed, and became the basis of our libel law in this country. Its influence was felt in England as well as in this country, for the passage of Fox's libel act was largely due to the

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public interest and discussion to which these cases gave rise.

On a leaf of the continuance doeket of the Court of Common Pleas of Philadelphia, June, 1775, there appeared the following entry without signature: "Departed Saints of the law with whom I have been at the bar." Then followed a list of fifty-two names of those attorneys who flourished dur- ing the memory of the writer. This list is headed by Andrew Hamilton.

John Kinsey. A member of our bar who early won renown as a great lawyer, was John Kinsey. Not so conspicuous a figure in our history as Andrew Hamilton, John Kin- sey was probably superior to him in learn- ing, and as a trained attorney. He was born in New Jersey in 1696. Ilis father had been a prominent figure in New Jersey politics, and the last few years of his life was speaker of the legislative assembly of that state. The family to which John Kinsey belonged were all Quakers, and John himself was a stauneh Quaker through life.

Kinsey was as prominent as his father in New Jersey polities, and was speaker of the New Jersey assembly for three years, and in that capacity led the effort which finally sue- ceeded in separating New Jersey from New York.

Mr. Kinsey came to Philadelphia in 1739, and was made the leader of the Quaker forces of the colony. He was, in faet, a worthy suceessor of David Lloyd, whom he greatly admired. A leader of the Quakers and as a Speaker of the House, which posi- tion he oeeupied the last ten years of his life, John Kinsey was the prime mover of the forees which were engaged in the struggle against the Government and the proprietary party. In his fight Kinsey had the support of Benjamin Franklin, who was clerk of the assembly during those years.

We have already seen that in a Court of Chaneery John Kinsey was engaged in nearly all the eases. This gives us some idea

of his standing at the bar which must have been of the highest. In 1743 Kinsey was appointed chief justice. He has been called the last of the Quaker chief justices. Lloyd, Logan and Jeremiah Langhorne, all stauneh Quakers, have preceded Kinsey in the office of chief justice. With the death of Kinsey the dominenee of the Quakers in Philadel- phia politics was gone forever.

Chief Justice Kinsey adorned the bench only for the period of seven years. He died suddenly one day in 1750 while in Burling- ton, New Jersey. He was then only fifty years old, and his death eame like a shock to the people of Philadelphia as well as to those of the neighboring colonies.

Judge Kinsey's residenee in the eity was a spacious mansion on Market street, below Seventh. This house, years after his death, beeame the home of the first hospital in this country, the Pennsylvania hospital.

James Logan. We have already spoken of three men who have held the position of chief justiees of the province, Nieholas Moore, David Lloyd and John Kinsey. An- other conspicuous figure of the period was James Logan, who afterwards beeame the chief justice of Pennsylvania. Logan was born in 1674, and was invited by Penn to aeeompany him to Philadelphia, and, on their arrival to the colony, he was made secretary of the Executive Council. From that day Logan took a very prominent part in the publie affairs of the colony, and when Penn returned to England, Logan beeame his busi- ness agent in America. He was ever a loyal friend of Penn, and in his zeal for Penn's interest he was often in conflict with the governor and sometimes with the popular party.

He was particularly on bad terms with Governor Gotkin and with Governor Keith. In fact, his rupture with Keith was at one time so great that Keith threatened him with arrest, imprisonment and impeachment. When Patriek Gordon sueceeded Keith as

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governor, he restored to Logan all his offiees, and appointed him one of the judges of the Supreme Court, and in 1731, at the death of Lloyd, Logan became chief justice of the eolony. He died in Philadelphia in 1751.

Besides being, perhaps, the most active man of the colony in the affairs of state throughout his career in Philadelphia, Logan found time for literary pursuit, and was considered by his contemporaries "a gentleman of universal learning and the best judge of books of this part." He also found the Logonian library for the use of the eitizens of Philadelphia. He intended to endow this library by his will, but failed to do so legally. His deseendants, however, not only carried out his intentions, but en- dowed the institution more than the founder intended to do. Subsequently in 1792 the Logonian library became part of the Library Company of Philadelphia.

The Asshetons. If there is one family that has played a more important part in the early legal development of this community than another it is this family, and it be- hooves us to say a few words about the Asshetons. The earliest Asheton in this colony is Robert. He was a kinsman of William Penn. He was edueated in England for the law, and in 1699, on Penn's invitation eame to Philadelphia and beeame, at once, prothonotary of the City and County Courts. When Philadelphia was chartered, in 1701, Assheton beeame the town elerk, and in 1708 he was made the recorder. He also held the position of prothonotary of the Supreme Court from 1722 to 1726.

Robert Assheton was one of those who urged very strongly for the establishment of a separate Court of Chaneery and on the establishment of the eourt, he was one of the Masters of Chancery. He died in this eity in 1727.

Ralph Assheton, a younger son of Robert, was four years old when the family eame to Philadelphia. At the age of eighteen he was

made deputy clerk of the Provincial Council, and in 1708, when he was of age, he succeed- ed his father as town clerk. In 1728 he be- came a member of the Provincial Council, and was also judge of the Court of Common Pleas and Orphans' Court. Ralph was also one of the Masters of Chaneery at the time of its diseontinuanee.

William Assheton. The most famous of the Assheton family was William Assheton, an older son of Robert, who was born in 1690. He was edueated for the bar at Gray's Inn, London. In 1722 he became a member of the couneil, and he also held the position of Master in Chaneery, the same as his father and brother. The most distinguished position that William Asshelton held was that of judge of the Viee Admiralty Court. He held that offiee from 1718 until 1723, the time of his death.

While he was judge of the Court of Ad- miralty, two men were brought before him, one for speaking ill of the King, the other, besides being charged with that crime, was also charged with disobeying and publicly affronting a magistrate. The first man eon- fessed his guilt, and was senteneed to stand under the court house for the space of one hour on two market days with a paper fixed on his breast and another on his baek with these words written in fair eharaeters: "I stand here for speaking contemptuously against my sovereign Lord, King George," and to pay twenty marks and the eost of the prosecution. The second person refused to confess, and the charges had to be proven against him. He was senteneed "to stand in the pillory in this market place for the space of two hours on two market days; that afterwards on the same market days you shall be tied to a eart and be drawn around two of the city squares, and then you shall be whipped on your bare back with forty-one lashes and imprisoned till you have paid the cost of the prosecution."

Judge Assheton died in 1723 at the early

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The twentieth century bench and bar of Pennsylvania, volume II, Part 66

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