USA > Pennsylvania > The twentieth century bench and bar of Pennsylvania, volume II > Part 68
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By the amendments to the constitution, in 1838 the term of office of the judges was made for years instead of for life. The judges of the Supreme Court were to hold office for fifteen years, and those of all other eourts of reeord for ten years. The most important change during the history of our judiciary was that which made our judi- ciary offices eleetive instead of being ap- pointed by the governor. There was a great deal of opposition to the ehange, but it was in- evitable that sueh ehange should take place. There ean be no eoneeivable reason why the people eannot be trusted with the power of choosing the judges as it has been, of ehoos- ing the exeeutive and legislative offieers. By the amendment passed in 1850 the offiees of judges of all of our eourts of record beeame eleetive. In spite of the prediction of those
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who were opposed to the ehange, experience has proven that no mistake was made in lodg- ing in the people the choice of the judiciary.
The first judges elected by the people for Philadelphia under the new system were Os- wald Thompson, William D. Kelley and Joseph Allison for the Court of Common Pleas, and George Sharswood, George M. Stroud and J. I. Clark Hare for the District Court. Of these men, Judges Thompson, Al- lison and Hare were placed on the beneh for the first time, the other men having been judges either at the time of their eleetion or somewhat before that time. Of this list .Joseph Allison served the public in the capac- ity as judge for forty-three years, being for many years presiding judge of the Court of Common Pleas No. 1. When he was elected, he is said to have been the youngest judge in Pennsylvania.
When Judge Allison died, in 1896, the community lost a great judge and a good citizen. In the memory of his long and faith- ful service to the public and of the regard with which he was held by the bar of Phila- delphia, a bust of Judge Allison was pre- sented to Court No. 1, by the Philadelphia bar.
Of George Sharswood we will say more later on. Suffice it to say that he was one of the greatest jurists Pennsylvania ever produced. Judge Hare for many years pre- sided over the District Court, and after the abolishment of that court, he presided over court No 2. At the time of his eleetion, Judge Hare was a young man, but he proved himself a great judge, and their choice proved that the people could be trusted in electing its own judiciary. One of the judges of the Supreme Court and a former colleague of Judge Hare, said that he is the most learned of living jurists. After many years of service Judge Hare retired from ae- tive labors, and to-day enjoys the rest and leisure which he earned after a long term of judicial activity.
By the constitution of 1874 the term of office of the judge of the Supreme Court was made twenty years, and they are not eligible for re-election. The term of office of the other judges remains for ten years and they are capable of re-election. By an unwritten law of the community, a judge who had served one term of office and has proven hin- self by his character and by his abilities a good judge, is worthy of re-election. The bar of Philadelphia invariably exercises its infinenee for the election of such a judge. It is thus that we have a judiciary of Phila- delphia, elective for ten years but virtually holding office during good behavior. This system, in the words of the president judge of Common Pleas No. 1, Hon. Craig Biddle, "has given us the best judiciary in the world."
-THE BAR.
Of the bar of Philadelphia at the period of the Revolution, little need be said besides what has already been said. Our bar at that time and for many years afterwards continued to be the greatest community of lawyers, of advocates and of counsellors in the whole country. On the list were men who were famous throughout the country for their commanding achievements and great powers. It is impossible to give a sketch of all the men of our bar who have occupied the front ranks of our profession. We have here chosen a few names in each period down to our times, who, in onr opin- ions, may serve as representative gentlemen of the bar of their respective times. And the perusal of their lives, even in the small com- pass in which we have here set them down, may cause the present members of our bar to feel proud that we belong to the same profession in which those illustrious men were engaged.
James Wilson was one of the prominent men of the period of the Revolution and the years immediately after the Revolution.
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He was born near St. Andrews, in Seotland, in 1742. Ile obtained his education in his native eountry and attained special distinc- tion in the classics. He emigrated to this country in 1763, and shortly afterwards came to Philadelphia. He was a tutor for a while at the college of Philadelphia, the institution which, afterwards, under the name of the "University of Pennsylvania," assumed the high position of one of the great institutions of learning in this country. Wil- son shortly afterwards studied law in the office of John Dickerson, and was admitted to the Philadelphia bar in 1778. He soon beeame prominent as an attorney, and fa- mous as a man of learning. As an advocate Wilson ranked among the first of his time. General Washington advised his nephew, Bushard Washington, who afterwards achieved fame as associate justiee of the Supreme Court of the United States, to study law under Wilson, and his adviee was aeeepted.
In politieal affairs Wilson had a great and varied experienee. He was an ardent advocate of Independence, and for six years was a member of the Continental Congress where he took a very prominent part in all measures which concerned the new govern- ment. He was director general of the Penn- sylvania Militia during a part of the war. Moreover, Wilson was conspicuously eon- neeted with the efforts of the country that resulted in the establishment of our glorious government under our great constitution. He was a member of the convention of 1787 which framed the constitution, and of the Pennsylvania assembly that adopted it. In the latter convention Wilson was the only member who was also a member of the Na- tional Convention of 1787, and he was the leader of the forces that advocated its adop- tion. By his side was Thomas MeKean, who was said by John Adams to be one of the best tried and foremost pillars of the Revo- lution.
It is due to the eloquence and arguments of Wilson that Pennsylvania voted in favor of adopting the constitution.
In 1789 Wilson was appointed, by Presi- dent Washington, associate justice of the Su- preme Court of the United States. It was said that Judge Wilson on the bench was not equal to Mr. Wilson at the bar. Nevertheless, Wilson was considered the most learned man of the beneh of his day. The most famous case deeided by Judge Wilson was that of Chisholm vs. The State of Georgia, wherein it was deeided that a state can be sued in the United States courts by a eitizen of an- other state. This led to the adoption of the eleventh amendment to the Federal eon- stitution.
Wilson died in 1798 at the age of fifty-six, at the home of his associate, Mr. Justiee Iredell, at Edenton, North Carolina.
Thomas Mckean, the most eonspieuous member of the bar of Philadelphia, of the Revolutionary period, was born in Chester eounty, Pennsylvania, in 1734. After finish- ing his preparatory education, MeKean went to Delaware where he praetieed until 1773, when he removed to Philadelphia. While a resident of Delaware, he held several offiees of some importanee and when only twenty- five years of age, he was appointed in eon- junetion with another gentleman to eodify the laws of Delaware. The love of the little state of Delaware for its distinguished eiti- zen was never abated, even after he removed to Philadelphia. He was a representative of Delaware to the Colonial Congress of 1775 and was one of the most distinguished delegates of that convention, and continued to represent her in Congress until the end of the Revolution. Mr. MeKean is noted as the only man whe served in Congress eontinu- ously from the time of the first Continental Congress to the end of the war. As a dele- gate from Delaware he signed the Deelara- tion of Independence. In 1777 he was elected president of the Continental Cong-
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ress, but resigned his position in November of that year on assuming the office of chief justice of Pennsylvania to which he had been appointed.
He was the first chief justice of Pennsylva- nia after the Declaration of Independence, and acted in that capacity until 1779 when he was elected governor of Pennsylvania. He was re-elected for three successive terms. On the last term of his office, impeachment proceedings were commenced by his politi- cal enemies but the trial never took place. After the third term, he retired from office and lived in quiet until his death which happened in 1817.
Justice McKean was of commanding ap- pearance, tall and straight even in his old age. He was of somewhat stern aspect and with a tendency to be despotic. He was of intrepid courage. In Brown's "Forum" the story is told that on one occasion, while the Supreme Court was holding an important session, during a period of intense political excitement, a large assembly of people gath- ered in the vicinity of the court room, This caused so much turmoil that it interfered with the business of the court. The chief justice sent for the sheriff and directed him to suppress the riot. The sheriff returned in a few minutes and said that he could not suppress the turmoil. "Why, sir, do you not summon your posse to your aid ?" asked the chief justice. "I have summoned them," was the answer, "but they are totally in- efficient, and the mob disregards them." "Why do you not summon mne ?" demanded McKcan. The sheriff looked somewhat con- fused, but at last said : "Well, sir, I do sum- mon you." Chief Justice Mckean imme- diately left the bench, proceeded to the scene of the riot, and, scizing two ring leaders, placed them in custody. This, together with the respect the chief justice commanded, and the anthority of his great office, at once caused the riot to subside and order to be restored.
While MeKean was governor, he appointed William Tilghman, chief justice of Pennsyl- vania, to succeed Edward Shippen. This choice was very distasteful to the leaders of the Democratic party, who, as a committee appointed at a town meeting, called upon the governor and explained to him that his choice was very distasteful. After listening to the address of the committee, Mckean answered: "Inform your constituents that I bow with submission to the will of the great Democracy of Philadelphia, but by G-d, William Tilghman shall be chief justice of Pennsylvania."
During the time that he was governor, Judges Shippen, Yeates and Smith were brought before the bar of the Senate, charged with oppressive committment of a certain person for the publication of an article tonching a suit pending before the Supreme Court. After a trial which lasted fourteen days, the judges were acquitted. During the progress of the case which created this trial, the governor appointed H. H. Breckenridge to the Supreme Court. Judge Breckenridge was not a member of the court at the original hearing of the case, and therefore was not included in the trial before the Senate. He was, however, present at the final hearing, and thoroughly approved of the decision of the court. Hle therefore very gallantly re- quested to share the fate of his associates. The house took him at his word, and sent an address to Governor MeKean requesting his removal. The governor, however, refused to lend his aid to the passions of the time and to punish an innocent man because of the clamour of a party. The committee of the House which waited on the governor and requested him to remove this judge, urged that the provision of the constitution which says that "the governor may remove a judge from office for good canse" means that he must do so. The governor answered that he would let them know that " 'may' some- times means 'won't.' "'
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Joseph Reed was intimately connected with the activities of the Revolutionary period, and played as heroic a part therein as did Thomas Mckean. Of Irish descent, Reed was born in 1741 in a town near Trenton, New Jersey. He graduated from Princeton College at the age of sixteen, and soon after that began to study law and was admitted to the bar in 1763. Not satisfied with the preparation of the bar he received in the colonies, Mr. Reed went to England and studied law for two years at the Middle Temple. On returning to this country, he re-entered the practice of his profession, and in 1770 he removed to Philadelphia. While in England, Reed formed an attachment with a daughter of Mr. Berdt, a prominent mer- chant of London, and afterwards they were married. Mr. Reed also took the opportunity during his stay in England to make a thor- ough study of the political situation of his country. By his marriage he became con- nected with the leading families of London society, and by extensive correspondence he tried to convince Lord Dartmouth of the folly the English are perpetrating in driving the colonies to adopt extreme measures for the protection of their civil rights.
Personally, Mr. Reed was opposed to the action of his wig cotemporaries in driving their country headlong into a terrific strug- gle with the mother country. He was espe- cially opposed to the measures adopted by the patriots of Philadelphia in overturning the old order of things and in the adoption of the constitution of 1776. In 1775, when George Washington, then a member of the Continental Congress, was elected to be com- mander-in-chief of the armies of the United States, Mr. Reed was made his military sec- retary. His acceptance of this post of duty was a surprise to those who knew his con- servative ideas. In 1776 on the recommend- ation of General Washington, he was made adjutant general on the vacancy of that office occasioned by the promotion of General
Gates. In 1777 he was offered the position of chief justice of Pennsylvania, but he de- clined. In 1778 he was elected, by the unani- mous choice of the Executive Council of the state, president of the commonwealth of Pennsylvania, and resigned his seat in Con- gress to which he had previously been elect- ed, to assume the office of president of the state. He served three successive terms as president, the limit of eligibility under the constitution of 1776. By virtue of his office, Reed was commander of the military troops of the state, and he took an active part in superintending the recruiting service and the discipline of the troops, occasionally lead- ing them in person to the field of action. By virtue of his office as Chief Executive, Mr. Reed was also presiding officer of the High Court of Error and Appeals. Thus, the his- tory of the life of President Reed during the term of his office was the history of the state of Pennsylvania.
Mr. Reed retired from office shortly after Cornwallis surrendered at Yorktown. At that time Mr. Reed's health was permanently broken down, but he began again the active practice of his profession. He was employed by the state as counsel in the controversy with the state of Connecticut over the settle- ment of Wyoming. Associated with him in that case were William Bradford, James Wil- son and Jonathan Dickinson Sergeant. After argument before the court at Trenton, N. J., judgment was given in favor of Pennsyl- vania.
At the time General Reed retired from the office of president, he was about forty years of age, a period of life when most men of our profession have before them the opportunity to achieve all the success and the laurels of their calling. But because of the arduous labors he had undergone during the years of the Revolution, the health of General Reed was permanently broken beyond all hope of repairs. He made a voyage to England to recuperate his strength, but he was not suc-
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cessful in this, and returned to Philadelphia, where he died in 1785 at the early age of forty-four years.
Edward Shippen was the second chief jus- tice of Pennsylvania. ITis father, Edward Shippen, was one of the early settlers of Philadelphia, and held many important offices in the province and was the first mayor of the city of Philadelphia. Edward Shippen, the younger, was born in Philadel- phia in 1728. He studied law in the office of Teneh Francis, a famous attorney of those days, and was afterwards sent to England to finish his legal education. He studied law at the Middle Temple and returned to Phila- delphia in 1750 when he began his practice of law. He had a very extensive praetiee.
In 1752. Shippen was made judge of the court of admiralty, and subsequently he also held the position of prothonotary of the Supreme Court. In 1770 he became a mem- ber of the Provincial Council. During the Revolution, Shippen assumed the same atti- tude as Benjamin Chew and others who held important offiees under the old order of things, that is, he remained neutral through- ont the struggle. In attitude Shippen be- longed therefore to the pre-revolutionary times. His great work, however, remained for him to accomplish after the revolution. It was as chief justice of the Commonwealth of Pennsylvania that Shippen is best rem- embered in history.
Though Edward Shippen did not make himself a party to the momentous struggle for independence in which his fellow eoun- trymen were engaged. the people did not, on that aceonnt, lose faith in his integrity and ability, and in 1784 he was made president judge of the Court of Common Pleas of Philadelphia. In 1791 he became one of the associate justices of the Supreme Court, and, on the election of MeKean to the governor- ship of the state, in 1799 Shippen became. chief justice and held that position umtil 1805, when he resigned. He died the follow-
ing year. Judge Shippen is called the father of the law of Replevin in Pennsylvania, as he first placed upon a scientific basis that great branch of the law, which, in Pennsyl- vania, has become the most extensive method of trying title to chattels. Judge Shippen is also the father of the law of Foreign Attach- ments.
William Tilghman was probably, without exception, the greatest judge on the bench of the Supreme Court. He was born in 1756, in Maryland. He graduated from the Uni- versity of Pennsylvania and began to study law with Benjamin Chew in 1772. During the Revolution, Tilghman lived in retirement and pursued his legal studies. It was prob- ably due to the fact that he did not partici- pate in that great struggle that the choice of Tilghman to the position of chief justice by Governor Mckean was so distasteful to the great mass of the people of Philadelphia.
In 1793, Tilghman began to practice in this city and continued to be engaged in his pro- fession until 1801, when he was appointed by President Adams, Chief Justice of the Circuit Court of the United States for this circuit. He is one of the judges who were ealled the Midnight Judges. When Jeffer- son, the great politieal opponent of Adams and Alexander Hamilton, became president, he had the act ereating these courts repealed, and thus Tilghman and the other judges appointed by Adams were deprived of their offices. Mr. Tilghman, through life, had the eonvietion that this action was wrong, and never referred to the faet of this judgeship.
In 1805 Tilghman was appointed presi- dent judge of Common Pleas for the First Judicial District, and in the following year, .on the resignation of Chief Justice Shippen, Governor MeKean appointed him chief jus- tice of Pennsylvania. Tilghman continued in this office until the time of his death, which occurred in 1827.
Shortly after assuming the office of Chief Justice, Tilghman and the other members of
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the Supreme Court were directed by an Act of Assembly to report what English statutes were in force in Pennsylvania, and Tilgh- man proceeded vigorously to accomplish this difficult and critical task. The great work of Tilghman, however, and his great privilege was to place the law of Pennsyl- vania on the high plane on which it stands to-day. Ilis great work for which he will ever be remembered is the thorough incor- poration of the principles of scientific equity in Pennsylvania, or rather by the reiteration by this bench that, with few exceptions, the principles of equity form an inseparable part of the common law.
After the establishment of a separate court of chancery and its abolition in the very in- fancy of its existence, chancery powers were no longer exercised. Scientific equity lost its existence, and, with few exceptions, was made to give way to a spurious equity com- pounded with the temper of the judge and the feelings of the jury. Chief Justice Tilgh- man set vigorously to work to establish a system of equity in this commonwealth on a truly scientific basis, and it is because he succeeded in his task that the present system of equity exists in Pennsylvania-a system whereby equitable relief is given under com- mon law form by common law judges. Bin- ney in his eulogy of Tilghman uses these words which we may appropriately quote as giving an estimate of the great judge by a contemporary great lawyer: "He will not be remembered merely as an upright and able judge who has maintained the dignity of his profession and office, but as one who has stamped his peculiar principles and modes of thought upon the code, and who has imparted to it as much of the philosoph- ical cast of his own mind as could with safety be carried into a science that is as well a science of authority as it is of principles. Upon the whole, his character as a judge was a combination of the finest elements that have been united in that office."
Richard Peters was born in Philadelphia in 1744, and was educated at the Philadel- phia academy, where he graduated in 1761. He studied law and was admitted to the Philadelphia bar in 1763. Through his con- nection with his uncle, Reverend Richard Pe- ters, who exercised the duties of secretary of the land office, Richard became thoroughly acquainted with land titles, which accom- plishment was of great assistance to him when he became judge. On the outbreak of the Revolution, he took sides with the patri- ots, though his nearest relation took sides with the mother country. Richard was in active service, serving as Captain in the army, and later he was secretary of the board of war, and in 1779 he was commissioner of war, and in that capacity performed invalu- able service to Washington in furnishing him material aid to carry out his campaign and in particular the attack upon Cornwallis at Yorktown.
On the death of Judge Francis Hopkinson in 1792, Mr. Peters was appointed judge of the United States District Court, and he was on the bench for thirty-six years. In 1786 Belmont mansion was conveyed by William Peters, the father of Richard, to Richard. This was the paternal residence constructed by Mr. William Peters, and Richard was born in that house. The house was during its occupancy by Judge Peters a famous re- sort for President Washington, who loved to call on Judge Peters at his home for a chat and recreation. All the great men connected with the Federal government and the men of fame who visited this country were ac- customed to visit Belmont mansion. To-day Belmont mansion is a part of Fairmount park, and a short time ago was the popular pleasure resort of the city in summer.
Judge Peters died in 1828. During the years that he sat as judge, the court was enlivened by a constant flow of wit and humor from his lips. As a judge, Richard Peters was conscientious, punctual and care-
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ful. He was especially versed in the land titles from his early eonneetion with the land office of the eolony. He was moreover master of maritime law.
His son, Riehard Peters, sueeeedcd Henry Wheaton as reporter of the decisions of the United States Supreme Court, and also pub- lished report of the United States Cireuit Court between 1803 and 1855. Judge Peters is also the author of admiralty decisions in the United States Distriet Court for Pennsyl- vania between 1789 and 1801.
William Lewis was the leader of the bar during the years that these eminent judges oeeupied the beneh, viz: those who flourished immediately after the Revolutionary period. William Lewis was born in 1745 in Chester county. He was brought up on a farm and his early advantages for the aequirement of an education were very seant. It is said that some years before the Revolution, Lewis de- livered a load of hay in Philadelphia and dropped in eourt, at that time in session, and was so enamored with the arguments of counsel that he determined then and there to follow the profession of law.
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