USA > Pennsylvania > The twentieth century bench and bar of Pennsylvania, volume II > Part 67
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age of thirty-three. He was an able man, and much loved in the community. His death was mourned by the whole city.
William Allen. One who was intimately connected with the career of Andrew Hamil- ton was William Allen, who was born in Philadelphia in 1704. His father was a man of wealth, and sent William to England to pursue his studies at the Temple. William Allen supported Andrew Hamilton in secur- ing the purchase, by the assembly, of the lot where now stands Independenee Ilall, for a State House. He became the son-in-law of Andrew Hamilton by marrying his daughter Margaret.
Mr. Allen was appointed reeorder of the city in 1741, and held that position until 1850, when, on the death of John Kinsey, he beeame chief justice of the provinee. He continued to be chief justice for twenty-five years, and was one of the best judges of the Colonial period of our history. The story is told that, while Chief Justice Allen was on the bench, a deputation of Quakers ealled on him, that he, in the capacity of chief justice, should order a certain company of players, who held theater in Philadelphia, to leave the place. This was the first appearance of a theater in Philadelphia. The chief justice refused to take any action in the matter, saying that he had received as good moral instructions from players as from any of their sermons.
The last days of the life of this great judge were embittered by the contemplation of the struggle of the people of the eolony against England for independenee. He deemed this struggle as unnecessary, as it was in his eyes unjustifiable. He did in 1780, during the progress of the war of the Revo- lution.
Benjamin Chew was another man, who, while he outlived the Revolution and held positions of trust in the Government of the commonwealth, was in temperament and in training a pre-revolutionary eharaeter. Ben-
jamin Chew was a son of a physician who had become converted to the Quaker faith and came to the vicinity of Philadelphia to live. Benjamin was born in Maryland in 1722. Being destined for the bar, he studied under Andrew Hamilton, and later went to England, where he finished his education at the Temple. On his return to America, he practieed in Dover, Delaware, and in 1754 he came to Philadelphia, believing that there was a larger field for him in the great eom- mercial eity. The year after he came to Philadelphia he was made attorney general of the provinee and held that position for fourteen years, until 1769. At the same time he was a member of the provincial council and recorder of the eity. Both those offices he held until the Revolution. On April 24, 1774, he sueeeeded William Allen as chief justiee of Pennsylvania. This offiee was, at the outbreak of the Revolution, rendered nugatory, and on the Declaration of Inde- pendenee the authority of the chief justice, as well as other proprietary offiees, eeased altogether.
During the progress of the Revolution, Chew took sides neither for nor against the patriots. Ile refused to take the oath of allegianee to the new Government, and his sympathies were with the royal party. Hav- ing held office so many years under the old order of things, he could not see its authority shattered at a blow without taking sides with a lost eause. He was one of those men who were in sympathy with the people as long as they resisted the unjust aggression of the erown. He was one of the signers of the non-importation agreement of 1765. But when the first shot was fired at Lexington, and when these thirteen colonies were, in 1776, deelared to be free and independent states. he could not take sides with the Revo- hitionists. He did no overt aet against the Government throughont those trying years. He was. however, arrested by order of the Continental Congress and placed on parole.
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Mr. Chew, in 1763, erected a fine mansion in Germantown, known as the Chew House, which became a historic spot, having played a very conspicuous part in the battle of Ger- mantown, and being the unconscious eause for the loss of the battle.
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After the war, Chew resumed the praetiee of his profession until 1791, when he was made presiding justice of the High Court of Errors and Appeals, which position he filled until 1808, when the court was abolished. He died in Philadelphia two years later. The respect with which he was held in the com- munity could be shown in no greater way than by the fact that he succeeded in proving to the people that, though at first in sym- pathy with the royal party, yet he was one of the people, and in his judicial capacity murder a new order of things he could fulfill the trust and confidenee which was imposed upon him with the utmost fidelity and in- tegrity.
CHAPTER II. POST-REVOLUTIONARY HISTORY. THE COURTS-ADMIRALTY.
The Continental Congress recommended the legislatures of the several united Colonies to create courts of admiralty with appeal to the Congress, in all cases. Under this recom- mendation Pennsylvania established a court of admiralty in April, 1776, with George Ross, as the sole judge thereof. Ile served in that eapaeity until his death, in 1779, when he was sueeeeded by Francis Hopkinson.
George Ross was born in New Castle, Delaware, in 1730. IIe eame to Philadelphia when he was eighteen years old, and was admitted to the bar in 1750. He was a mem- ber of the First Continental Congress and a signer of the Declaration of Independence.
Francis Hopkinson, who succeeded Ross as judge in admiralty, was one of the most eminent men of his day. He was born in Philadelphia in 1737, and was the first pupil to graduate from the College of Philadelphia,
afterwards the University of Pennsylvania. He was admitted to the bar in 1761, when he began the practice of the law. IIe be- came a delegate to the Continental Congress from this state in 1776, and was a signer of the Declaration of Independence. He was one of the committee that drafted the Arti- cles of Confederation. He became the head of the Navy Department of the new Govern- ment, and was treasurer of the Continental Loan Office.
Mr. Hopkinson was a man of letters and possessed of keen wit. His "Battle of the Kegs," written in reference to the attempt of the English to capture Philadelphia in 1778 by floating torpedoes down the Dela- ware, had a powerful influence with the people, and afterwards his "New Roof," another humorous production of his pen, did a great deal towards making the newly framed constitution of the United States acceptable to the people.
In 1779 he was made judge of admiralty for Pennsylvania to succeed George Ross, and he continued in that position until the adoption of the Federal Constitution, which vested in the federal courts the jurisdiction in admiralty matters. On the establishment of the district court, President Washington appointed Hopkinson judge for the district of Pennsylvania. His son, Joseph Hopkin- son, a great lawyer and judge, has handed his name down to posterity as the author of "Hail Columbia."
HIGHI COURT OF ERRORS AND AP- PEALS-SUPREME AND SUPERIOR COURTS.
Another court that was established soon after the establishment of the Government of the commonwealth of Pennsylvania is the High Court of Errors and Appeal. This court was established by the act of February 28, 1780, to hear appeals from the Supreme Court, Registers' Court and the Court of Admiralty. The judges were to be the presi-
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dent of the Supreme Executive Council, the judges of the Supreme Court and three per- sons commissioned for seven years. Subse- quently this court was reorganized somewhat by constituting the judges of the Supreme Court, the president judges of the several courts of Common Pleas, and three other persons of legal leaming, the members of the court. Benjamin Chew was appointed by the governor presiding judge of this court, and presided over it until its disso- lution by an act of assembly in 1808.
After the abolishment of that court, the Supreme Court remained the court of last re- sort in Pennsylvania, and is the legitimate successor of the Provincial Court, which was established almost with the first settlement of Philadelphia. We have dwelt in the first chapter on the history of that court. After the Revolution, the Supreme Court inherited the powers as well as the history of that court, and was the only Appellate Court of this state until 1895. By the act of June 24 that year a Superior Court was established, consisting of seven judges, the one being the longest in office to be presiding judge. This court shall have final appeal in all cases from the court of Quarter Sessions, except cases involving the right of public office, when appeal would lay to the Supreme Court; and all appeals from Oyer and Terminer, except cases of felonious homicide, where appeal lay directly to the Supreme Court; and in all civil cases from Common Pleas and Or- phans' Court when the sum involved is not more than one thousand dollars (afterwards raised to one thousand five hundred dol- lars). Appeal in the following cases will lie directly to the Supreme Court :
1. If the jurisdiction of the Superior Court is in issue; or,
2. If the case involves the construction of the application of the constitution of the United States, or a statute or treaty of the United States.
3. If the cases involves the construction
or application of the constitution of Penn- sylvania.
4. If the appeal to the Supreme Court be specially allowed by the Superior Court itself, or by justice of the Supreme Court.
Under the authority of this act of June 24, 1895, the governor appointed Charles E. Rice, president judge, and Edward N. Wil- liams, James A. Beaver, Howard J. Reeder, John J. Wickham, Henry J. McCarthy and George B. Orlady as associate judges.
The present members of the bench of the Superior Court are, Charles E. Rice, presi- dent judge, and James A. Beaver, George B. Orlady, Peter P. Smith, W. D. Porter, Thomas A. Morrison and John J. Henderson, associate judges.
Of the many gentlemen who adorned the bench of our Supreme Court from its incep- tion, several will be spoken of when we shall come to give sketches of the famous men of our bar from the inception of the common- wealth. Among the names, not thus men- tioned, of the judges who made our Supreme Court a famous tribunal in our state and county, may be mentioned John Bannister Gibson, who was chief justice after the death of William Tilghman. (Sce sketch in Cum- berland county.)
The last three chief justices of the Su- preme Court were: Edward M. Paxson, James P. Sterrett and Henry Green. Ed- ward M. Paxson was in 1869 made judge of the old court of Common Pleas of Phila- delphia. On the re-organization of the courts in pursuance of the provisions of the constitution of 1874, Judge Paxson became judge of the Common Pleas No. 1. He did not sit in that court, however, having been elected justice of the Supreme Court, in 1875. During the time that Judge Paxson was a member of the Supreme Court he was recog- nized as one of the most learned men thereof, a man of an unusually large measure of com- mon sense, and one who readily grasped the business situation of the case in considera-
Elik . Price, aged 84 years.
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tion. In 1889, on the expiration of the term of Chief Justice Gordon, Judge Paxson be- came chief justice of the Supreme Court and presided over that tribunal until 1893, short- ly before the expiration of his term, when he resigned. Judge Paxson has since lived a retired life and has resided in this city. He is often seen at the gatherings of the bar and is always welcomed there. Occasionally Judge Paxson sits on the bench of our local court, by the side of a judge thereof, and listens with interest to the trial that is going on.
James P. Sterrett, prior to his elevation to the supreme bench, was one of the judges of the Common Pleas of Allegheny county. In 1878 he was elected one of the judges of the Supreme Court of Pennsylvania, and in 1893, on the retirement of Chief Justice Pax- son, he became chief justice of that court. (See sketch in Allegheny county.)
Henry Green, the last chief justice, was born in New Jersey in 1828. He was admit- ted to the bar of Northampton county in 1849, and from that time until he became a justice in our Supreme Court he was engaged in active practice of the law. His practice was very extensive and lucrative. In 1879 he became a member of the Supreme Court, and was still a member thereof at the time of his death in 1900, having been chief jus- tice from the time of the retirement of Judge Sterrett. Like Chief Justice Paxson, Chief Justice Green was distinguished among his associates on the bench for his great legal knowledge, and some of the opinions he wrote contain a brief but comprehensive view of the law, of the particular subject therein treated.
The present members of the Supreme Court are :
J. Brewster McCullum, Chief Justice, and James T. Mitchell, John Dean, D. Newton Fell, J. Hay Brown, S. Leslie Mestrezat and William P. Potter, associate justices. Of these justices, Mitchell and Fell were mem-
bers of the Court of Common Pleas of Phila- delphia, at the time of their elevation to the Supreme Court bench.
COMMON PLEAS AND DISTRICT COURT.
In the first days of the commonwealth, when the city of Philadelphia was the na- tional capital, the largest city in the coun- try, and an active trade center; the judi- cial system of this city was found in- adequate to answer the needs of the times. As we have already seen, our judicial sys- tem practically amounted to this, that the judges of the Court of Common Pleas were also judges of the Orphans' Court and of the Court of Quarter Sessions; thus the en- tire range of the judicial business was con- centrated in a single body of judges who maintained only a technical distinction be- tween themselves, as one court and as an- other court. Admirably as this system proved itself in a small community, it was not practicable in view of the large and multiplied business which in a community like Philadelphia is likely to be found. The evil was felt and a remedy applied in the first years of the nineteenth century.
By an act of Assembly of March 30, 1811, it was provided that "Whereas the Common Pleas of the city and county of Philadelphia from the various objects of its jurisdictions, and the great increase and accumulation of business is incompetent to the speedy and effectual administration of justice to the citi- zens of that district" as a remedy, a Court of Record shall be established by the name and style of the District Court for the city and county of Philadelphia, to consist of a presi- dent judge and two assistant judges. This court shall have jurisdiction of all civil cases where the sum in controversy is more than one hundred dollars. The president of the court was to receive a year's salary of two thousand dollars, and the two assistants five hundred dollars each, (afterwards increased
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to eight hundred dollars cach). By a sub- sequent act, the governor was authorized to appoint an assistant judge with the same salary as the president judge. By the act of 1821, it was provided for the first time that all three judges commissioned to this court shall be persons of legal knowledge.
This court met on May 6, 1811. Joseph Hemphill was commissioned president of this court, and Anthony Simmons assistant judge. When the court met next on June 3, of the same year the commission appoint- ing Jacob Somers as assistant judge was read. Then Joseph B. MeKcan moved for his admission to the bar of the court and was sworn in. After that, seventy-two per- sons, including all the great names of the bar of that day, were admitted by order of the court. On the following day the court applied itself vigorously to business.
From that day on, the business of this court continued to flow in a steady stream. The court was renewed by the act of 1817, and later by that of 1821, and by other acts from time to time. By the act of 1851, the limitation of the existence of this court was removed in advance, and the court continued with all its powers and jurisdiction until it should be abolished by law. Long before 1851, this court acquired a solid and endur- ing reputation in the community as a great court for the trial of civil issues.
There were several circumstances that tended to produce this result. The first and probably the most important was that the District Court was the only court of original jurisdiction in Philadelphia, all judges of which were learned in the law. While prior to the act of 1821, the assistant judges were not required to be trained lawyers, that was the invariable practice. Simmons and Som- ers were the only laymen who ever sat upon the bench of this court. If we contrast this record with that of the Common Pleas, we find that while the practice in the later court was that the presiding judge of that court
was a lawyer, his two assistants continued to be laymen until 1833, when by law one of the associates was required to be learned in the law. The second associate remained a layman until the passing of the act of 1836, which provides that all the judges of the Common Pleas are required to be trained in the law. Moreover, while the salary of the judges of the District Court was two thou- sand dollars a year cach, the salary of the associate judge of the Common Pleas con- tinucd until 1831 to be only four hundred dollars a year.
In addition to this the bench of the District Court was occupied by some of the most emi- nent men of Philadelphia, such as George Sharswood, George M. Stroud, J. I. Clark Hare, and other mnen great in character, in learning and as judges. All these circum- stances combined, made the District Court one of the greatest courts of original juris- diction recorded anywhere. In the words uttered by Mr. Justice Mitchell on the oc- casion of the final adjournment of this court, of which he was a member: "As a court of original jurisdiction for the rapid, punctual, just and satisfactory transaction of business, I venture, without disparagement to others, to say that the record of the District Court is unrivaled in this commonwealth and sur- passed in no other in the world.
By the constitution of 1873, the District Court and Court of Common Pleas, were consolidated, and the powers thereof vested in four courts of Common Pleas, with three judges in each court. Un- der the act of 1874, passed in pursuance of the provision of the constitution, the District Court was abolished to take cf- fect the First of September, 1875. On the 4th of January, 1875, this court held its ses- sion for the last time. Honorable James T. Mitchell, who had only about three years be- force become a member of the court, gave a very interesting historical sketch of this court. Honorable Benjamin H. Brewster,
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on behalf of the bar, spoke of the respect with which the court was held by the legal fraternity of this city and Hon. J. I. Clark HIare, the president judge of the court, in a few touching words responded. This closed one of the most interesting chapters of the judicial history of our great city.
At the time of the abolishing of this court, Judge Hare was the president judge; Judges Thayer, Lloyd, Mitchell, and Briggs were the associate judges. Judge Hare became presi- dent and Judge Mitchell associate judge of Common Pleas No. 2. Afterwards Judge Mitchell became a member of the Supreme Court and is to-day in priority of service on the bench of our Supreme Court next to Chief Justice McCullum. Judge Lloyd be- came associate judge of the court No. 3; Judge Thayer became president judge of the court No. 4, which office he held for many years ; and Judge Briggs became associate judge of that court.
We continued to have four Courts of Com- mon Pleas for this county until 1901, when the legislature, by an act passed February 13, 1901, P. L. 7, created a new court of Common Pleas for Philadelphia, to be desig- nated as Common Pleas No. 5. In the fol- lowing month the governor appointed J. Willis Martin, president judge, Robert Rals- ton and Maxwell Stevenson associate judges. At the election in November of that year, Judges Martin and Ralston and G. Harry Davis were elected as judges of this court. The members of this court, both those ap- pointed and elected by the people, are men of learning and integrity, and we doubt not but what Common Pleas No. 5 will help to make in the future what the history of the Courts of Common Pleas and the District Court has been in the past. So that Phila- delphia will always have, as it has to-day and as it had in the days that are past, a judiciary of which she is justly proud. Our community feels that the gentlemen that oc- cupy the bench in our courts are all men
of intelligence and character, without ex- ceptions good jurists, and possessing a strong sense of justice. Men who have the interest of the people, whose servants they are, at heart, men who will not brook to political influence, but in all cases vindicate the right of the people, the right of the con- stitution, and the right of the law.
QUARTER SESSIONS AND ORPHANS' COURT.
By the act of March 19, 1838, a court of Criminal Sessions was established to succeed to the power and duties of the city court and the recorder's court of the Northern Liberties and Kensington. The court was to consist of one presiding judge and two associate judges, all learned in the law. This court was abolished by the act of February 27, 1840, which created a court of General Sessions, consisting of three judges learned in the law, who shall have exclusive juris- dietion of all criminal matters. This court lasted three years and was abolished by the act of February 3, 1843, and the former court re-established.
By the constitution of 1873 provision was made that the Court of Common Pleas shall from time to time detail one or more of their judges to hold court of Oyer and Ter- miner and Quarter Sessions of the Peace in such manner as may be directed by law.
By the act of May 21, 1901 P. L. 279, a Juvenile Court was established to try of- fenses of children under the age of sixteen, and place such children as are neglected or dependent in suitable homes or institutions. The judges of Over and Terminer and Quarter Sessions shall desig- nate one or more of their numbers to hold Juvenile Court.
The Orphans' Court has been in existence as a separate court from the earliest days, but has not had a separate judiciary. The delay and expense of settling estates of de- cedents led the framers of the constitution
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of 1873 to authorize eounties of a population of over one hundred and fifty thousand to establish a separate Orphans' Court. The register of wills was then made elerk of sueh court.
Aeeordingly, by the act of May 19, 1874, a separate Orphans' Court was established for Philadelphia, with three judges; subse- quently, in 1883 the number of judges was raised to four. At first there was no presid- ing judge of the court, but by the aet of 1878 which provided that the one having the old- est commissions shall be president judge. William B. Ilanna beeame the presiding judge and Thomas B. Dwight and Dennis W. O'Brien were the associate judges. The present members of this eourt are William B. Hanna, president; William N. Ashman, Clement B. Penrose and Joseph C. Ferguson, the associate judges.
JUDICIARY. TENURE OF OFFICE.
Under the original frame of government, on the founding of Philadelphia, the gov- ernor was to choose yearly the judges from a, double number of justices of the peace presented by the Provincial Couneil, and the justiees of the peaee from a similar number of names nominated by the freemen of the city. This scheme was never carried into effeet. The first eommission of the judges of the Provincial Couneil was for three years. During the early period of the colony, the judges were appointed for a short period often only for a single term of eourt. In- deed, on one oeeasion, the commission of the judges of the Common Pleas was for three days and no longer.
It was early seen that this system was a positive evil. The system made the judges dependent entirely on the will of the govern- or, and when political faetions increased in intensity, it beeame more and more apparent
that it was necessary to establish a judiciary upon such basis as would elevate it above the wave of popular factions, and place it beyond the reach of proprietary influenee.
The judges were aceused of truckling to power and yielding to a favorite attorney upon whose influence depended their official existenee.
At length in 1759, an aet was passed which marked the beginning of a new era in our judicial history. By the act passed on Sep- tember 29, 1759, the tenure of office of the judges of the Supreme Court and the Court of Common Pleas, was made during good behavior. This aet was repealed by the King in eouneil in the following year, and things continued in this shape until the Revolu- tion. Under the constitution of 1776, the judges of the Supreme Court held eommis- sion for seven years, though eapable of re- appointment. It was early seen that this was a bad system, and under the eonstitu- tion of 1790, the tenure of office was made during good behavior, and the judges of the Supreme Court were made independent in their salaries.
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