Chapter III

The appearance docket of the supreme court for April Term, 1776,
contains the following entry:--

“Philadelphia, s. s.

“At a Supream Court held at Philadelphia for the Province of
Pennsylvania the tenth day of April in the sixteenth year of the
reign of our Sovereign Lord George the third King of Great Britain
France and Ireland, Defender of the Faith &c and in the year of our
Lord one thousand seven hundred and seventy six: and continued by
adjournment until--”

Until when? Doomsday no doubt; for this was the last court held under
our “Sovereign Lord George” and the date of continuance was never
filled in. Independence, however, was not welcomed in Pennsylvania
with the same enthusiasm as in the New England states. At the
beginning of the conflict the influential and conservative element
in the province while opposed to the measures of parliament was
exceedingly adverse to the idea of a separation from Great Britain.
The grievances of the Pennsylvanians were not as great as those of
the other colonists; they had a liberal charter and a satisfactory
system of local government, while the proprietary family stood
between them and the Crown to soften controversies and prevent
conflicts of authority; many earnestly hoped for reconciliation and
were carried on the tide of revolution sorely against their wills.
To accelerate the movement and to get rid of the conservatives, a
bold, radical minority, with the moral support of congress, organized
and carried through a revolution in the government of Pennsylvania.
A convention called in July, 1776, and presided over by Franklin,
drew up a new constitution, which, after considerable opposition,
was declared to have been adopted. Penn’s charter was discarded,
the proprietary government ceased to exist, the old officials and
assembly retired and new men took their places.

The Constitution of 1776 was not a satisfactory instrument and was
discarded after a fourteen years’ trial, but some of its features are
worth noticing. The executive power was vested in a supreme executive
council composed of twelve members, one from the city of Philadelphia
and eleven from the respective counties. The term of office was three
years, and the president and vice-president were chosen from the
council by joint ballot of the assembly and council. The president
and council were empowered to choose and commission all judges and
other officers and fill vacancies in office. Every officer of the
state was subject to impeachment by the assembly, the impeachments to
be heard before the president and council. The principal judiciary
clauses were as follows:--

“Sec. 23. The judges of the supreme court of judicature shall
have fixed salaries, be commissioned for seven years only, though
capable of reappointment at the end of that term, but removable for
misbehaviour at any time by the general assembly; they shall not be
allowed to sit as members in the continental congress, executive
council or general assembly, nor to hold any other office, civil or
military, nor take or receive fees or perquisites of any kind.

“Sec. 25. Trials shall be by jury as heretofore, and it is
recommended to the legislature of this state to provide by law
against every corruption or partiality in the choice, return or
appointment of juries.

“Sec. 26. Courts of sessions, common pleas and orphans’ courts
shall be held quarterly in each city and county, and the
legislature shall have power to establish all such other courts as
they may judge for the good of the inhabitants of the state; all
courts shall be open, and justice shall be impartially administered
without corruption or unnecessary delay: All their officers shall
be paid an adequate but moderate compensation for their services,
and if any officer shall take greater or other fees than the laws
allow him, either directly or indirectly, it shall ever after
disqualify him from holding any office in this state.

“Sec. 27. All prosecutions shall commence in the name and by the
authority of the freemen of the commonwealth of Pennsylvania, and
all indictments shall conclude with these words--_against the peace
and dignity of the same_. The stile of all process hereafter in
this state shall be _The commonwealth of Pennsylvania_.”[290]

The office of justice of the peace was made elective, the voters
of the respective districts to choose two, one of whom was to be
commissioned by the president for the term of seven years.

A peculiar feature of the constitution was the provision for the
election every seven years of a council of censors who were to meet
and inquire whether the constitution had been preserved inviolate,
whether the laws were duly executed, and, if there appeared any
necessity to amend the constitution, to call a convention for that
purpose. While these changes were in progress and while most of
the active citizens were engaged in war or political strife, the
administration of justice was sadly neglected.

By an act of January 28, 1777,[291] passed for the purpose of putting
into effect such and so much of the laws of the province as were
necessary in the commonwealth, it was provided, that the courts of
quarter sessions and gaol delivery, petty sessions, common pleas,
orphans’ courts, supreme court, courts of oyer and terminer and
general gaol delivery should be held and kept in each respective
county at the times and places appointed by law, with all the
powers, authority and jurisdiction which by law such justices and
judges theretofore had had and exercised and such as were given by
the constitution. It was further provided that the president and
council should appoint one justice in each county to preside in the
respective courts and in his absence the justices who should attend
were to choose a president. All actions in the provincial courts were
continued in the same state as if the authority of such courts had
never ceased.

The chief justice of the new supreme court was Thomas McKean, a
signer of the Declaration of Independence and one of the most active
of the patriot party. The associate justices were William A. Atlee
and John Evans. The suspension of the courts caused considerable
inconvenience and letters and petitions complaining of the prevailing
conditions were presented to the council.[292] In the counties the
same trouble was had with regard to the justices, many of whom were
away, or unwilling to act in the unsettled state of affairs; in some
parts of the state the local committees of safety assumed judicial
power and took cognizance of minor crimes.

The first session of the common pleas, at Philadelphia, when the
style of process was altered from king to commonwealth, was held in
September, 1777, when six attorneys were admitted to practice,[293]
but the British were already marching on Philadelphia, and before
the end of the month the army of King George had expelled the new
government.

During the occupation of Philadelphia by General Howe, from
September, 1777, to June, 1778, the seat of government was in
Lancaster. With the return of the state officials to Philadelphia
the various agencies of proscription became active. Many persons
were declared traitors and their estates forfeited to the
commonwealth.[294] The most important cases tried before the newly
organized supreme court were treason trials, among which those of
Roberts and Carlisle, which are very briefly reported, aroused
great popular interest.[295] Roberts, a miller of Lower Merion
Township, was accused of acting as a guide to Sir William Howe and of
persuading various persons to enlist in the British army. Carlisle
was charged with having accepted a commission to keep watch over the
gate of the city of Philadelphia, established by Howe to prevent
the ingress and egress of persons not provided with passes. The
accused were tried on the twenty-fifth and thirtieth of September,
1778, found guilty and sentenced to be hanged. Earnest appeals for
executive clemency were made on behalf of the prisoners by petitions,
but the council was firm and both men were hanged. In these, as in
most of the other treason trials, James Wilson appeared for the
defendants and acquired such unpopularity through his faithful
efforts in behalf of his clients that his house was attacked by
a mob, which was driven off only after a fight that cost several
persons their lives.

The Revolution brought to an end the court of vice admiralty, of
which Edward Shippen was judge, and it became necessary to create
a tribunal to take its place. The Continental Congress advised
the several legislatures to establish courts of admiralty and,
accordingly, the assembly, on March 26, 1776, passed a resolution
creating a court of admiralty to be held in the city of Philadelphia
to try cases of captured vessels brought into that port, with the
right of appeal to congress or to such person or persons as they
should appoint to hear appeals.[296] For this last purpose a
committee was appointed by congress, whose feeble and unsupported
authority was openly defied by George Ross, the Pennsylvania judge of
admiralty, in the case of the “Active,” giving rise to a memorable
controversy carried on in the courts long after the adoption of the
constitution of the United States, and nearly resulting in an armed
conflict between the federal and state authorities. This case, or
rather series of cases, pointedly illustrates the growth of the
federal power, the decree of the helpless commissioners of admiralty
of the Continental Congress, long flouted by the state judges,
prevailing, after many years, by virtue of a judgment of the supreme
court of the United States, to whose authority the state officials,
after calling out the militia to resist the marshal, yielded a sullen
obedience.[297]

Francis Hopkinson, the distinguished writer, who succeeded Ross in
1779, was the first state judge to undergo the unpleasant experience
of an impeachment by the assembly. This proceeding, which took place
in December, 1780, was the result of a complaint by the judge against
Mathew Clarkson, the marshal of the court, which resulted in his
dismissal. Clarkson in revenge made charges against the judge before
the assembly, which voted for his impeachment. The court consisted
of President Reed and the council. Smith and Galbraith managed for
the house with Attorney-General Bradford, while Judge Hopkinson
was represented by James Wilson. The principal charges against the
judge were that he had wrongfully issued a writ for the sale of the
cargo of a ship, and that he had exacted illegal fees in a prize
case. The judgment of the council, as pronounced by the president,
was an acquittal upon all the charges, although it seemed to the
council that the fees, which were charged according to the recognized
practice of the court, were excessive.[298] Upon the adoption of the
constitution of the United States admiralty jurisdiction passed to
the federal district courts and Judge Hopkinson was appointed the
first district judge for Pennsylvania under the Act of Congress of
September 14, 1789.

The necessity for a court of last resort to take the place of the
privy council of Great Britain was met by the creation of the High
Court of Errors and Appeals, under the act of February 28, 1780,[299]
to hear appeals from the supreme court, the register’s courts and the
court of admiralty.

This act, after reciting that the laws of the late province gave a
very precarious, difficult and expensive remedy to parties injured
by erroneous judgments, by appeal to the king in council, and that
as “the good people of this commonwealth, by their happy deliverance
from their late dependent condition, and by becoming free and
sovereign are released from this badge of slavery and have acquired
the transcendent benefit of having justice administered to them at
home and at moderate costs and charges,” enacted that a court of
error should be established composed of the president of the supreme
executive council, the judges of the supreme court, the judge of the
admiralty, together with three persons of known integrity and ability
commissioned for seven years, any four or more of them to constitute
a quorum. The court in this form had but a brief existence, its
composition being materially changed by the Act of April 13,
1791.[300] Of the presidents of the council, Reed and Dickinson
were leading lawyers and Dickinson rendered at least one very able
decision in the admiralty case of _Talbot_ v. _Three Brigs_.[301]
Benjamin Franklin, although he had once sat for a brief period in
the common pleas, was wise enough to know that the administration
of law required a special education, at least there is no reported
opinion by him while president. Of the extra members of the court,
Edward Shippen, judge of vice admiralty under the Crown, subsequently
became chief justice of the supreme court; Francis Hopkinson has been
mentioned and Henry Wynkoop was president judge of Bucks County.

That the Constitution of 1776 was not working smoothly was the
opinion of a majority of the council of censors which met in 1783
to consider whether the constitution was being observed and whether
it needed amendment. The committee on defects reported that the
commissioning of the judges of the supreme court for seven years
only was a material defect, because it rendered the tenure of judges
dependent on the will of the council, while the committee on abuses
reported that the section requiring fixed salaries for the judiciary
had not been complied with as it ought and that permanent salaries
should without delay be established for the judges during their
continuance in office.[302] The findings of the censors on these and
other points were to bear fruit in the Constitution of 1790.

In 1786 an addition was made to the jurisdiction of the supreme
court, which hitherto had exercised no original jurisdiction in civil
cases except in fines and common recoveries. By an act of that year
issues of fact were allowed to be tried _in banc_ or at _nisi prius_
by that court in the county of Philadelphia.[303]

A case that excited considerable interest at the time was the
outlawry of Aaron Doan, one of the famous brothers who terrorized
Bucks County and the surrounding country. The defendant, having
been attainted of robbery, was brought into the supreme court on
September 24, 1784, and after hearing before the court upon several
exceptions to the outlawry, all of which were overruled, execution
was awarded. When the transcript of the record was remitted to the
supreme executive council, in order that a warrant for the execution
should issue, the humanity of President Dickinson seems to have been
shocked that a man should be deprived of his life without a trial
by jury and, accordingly, a letter was addressed to the supreme
court inquiring whether there were any modern instances in England
of persons being executed upon outlawry, or whether that had ever
occurred in Pennsylvania, and was compatible with the constitution.
Technical objections to the record were also raised.[304] The court
replied that, while not bound to give reasons for their judgment
and desiring that this should not be construed as a precedent, they
gave it as their opinion that under the laws of the commonwealth
and the common law they had no doubt that the prisoner had been
properly outlawed and had forfeited his life, but could mention no
case in Pennsylvania of a person executed upon outlawry by judicial
proceedings alone, except that of one Daniel Dawson, who had been
executed since the Declaration of Independence, in consequence of
an attainder, by virtue of a proclamation of the supreme executive
council and judicial proceedings thereon, in which the court awarded
execution by sentence of death, no judgment having been given before.
Dickinson was still dissatisfied and addressed a special message
to the assembly on the subject, but no action was taken at that
time and the humane scruples of Dickinson did not influence his
successors, Franklin and Muhlenberg, upon the outlawry of the other
Doans, Abraham and Levi.[305] In fact except for the objections
to the proceedings, as out of harmony with modern ideas, little
sympathy would have been wasted on these desperadoes who, from all
accounts, richly deserved their sentences. By an Act of September 23,
1791,[306] the process of outlawry was better regulated, and by the
Act of April 22, 1794,[307] the death penalty was abolished for all
crimes except murder in the first degree.

This reform was largely due to the efforts of William Bradford,
who in that year became a judge of the supreme court, resigning a
few years later to accept the office of attorney-general of the
United States in Washington’s cabinet, whose brilliant career was
cut short by an early death. Prior to this time the minutes of the
supreme executive council are burdened with appeals for executive
clemency and numerous orders appear for the remission of corporal
punishment, as well as of death sentences. That the council had an
eye to dramatic effect, or were convinced of the value of mental
suggestions, is indicated by one order in which a reprieve is granted
to a prisoner “which the sheriff is not to make known to him until he
be taken under the gallows.”[308] Executions were still public and
were attended by vast crowds, drawn by the same morbid curiosity as
is exhibited by their descendants who feast on the published details
of the so-called private executions.[309]

In 1790 a new constitution for the state was drafted and adopted
by a convention called for that purpose. The old constitution had
many defects and the newly adopted constitution of the United
States offered a model which many were eager to imitate. In the new
constitution the legislative, executive and judicial powers were
distinguished and defined according to the now classic American
method, and the state was provided with a governor and a senate
as well as an assembly. In remodeling the judiciary, the subject
with which we are concerned, an earnest but unsuccessful effort was
made to establish a court of chancery. The principal changes in
the judiciary were embodied in the following clauses of Article V
relating to the judiciary:[310]--

“Sec. 2. The judges of the supreme court, and of the several courts
of common pleas, shall hold their offices during good behaviour:
But for any reasonable cause, which shall not be sufficient ground
for impeachment, the governor may remove any of them, on the
address of two-thirds of each branch of the legislature. The judges
of the supreme court, and the presidents of the several courts of
common pleas shall, at stated times, receive, for their services,
an adequate compensation, to be fixed by law; which shall not be
diminished during their continuance in office; but they shall
receive no fees or perquisites of office, nor hold any other office
of profit under this commonwealth.

“Sec. 3. The jurisdiction of the supreme court shall extend over
the state; and the judges thereof shall, by virtue of their
offices, be justices of oyer and terminer and general gaol delivery
in the several counties.

“Sec. 4. Until it shall be otherwise directed by law, the several
courts of common pleas shall be established in the following
manner: The governor shall appoint in each county, not fewer than
three, not more than four judges, who, during their continuance in
office, shall reside in such county: The state shall be, by law,
divided into circuits, none of which shall include more than six,
nor fewer than three counties. A president shall be appointed of
the courts in each circuit, who, during his continuance in office,
shall reside therein. The president and judges, any two of whom
shall be a quorum, shall compose the respective courts of common
pleas.

“Sec. 5. The judges of the court of common pleas in each county
shall, by virtue of their offices, be justices of oyer and terminer
and general gaol delivery, for the trial of capital and other
offenders therein; and two of the said judges, the president being
one, shall be a quorum; but they shall not hold a court of oyer and
terminer or gaol delivery in any county, when the judges of the
supreme court, or any of them, shall be sitting in the same county.
The party accused, as well as the commonwealth, may, under such
regulations as shall be prescribed by law, remove the indictment
and proceedings, or a transcript thereof, into the supreme court.”

The most important changes, as will readily be seen, were the
restoration of life tenure to the judges and the grouping of the
counties into circuits with a president for the common pleas courts
therein, a measure rendered necessary by the growth of the state,
particularly in the West. By the appointment of judges learned in the
law to preside over the lower courts in the respective circuits some
measure of relief was afforded to the supreme court, whose work was
becoming increasingly arduous.

By the Act of April 13, 1791,[311] the courts were established
in conformity with the new constitution. The supreme court was
required to hold three terms a year and courts of _nisi prius_ in
the intervals. The state was divided into five circuits or districts
(increased in 1806 to ten), each comprising a group of counties, and
for each district a president judge learned in the law was appointed
by the governor who, with not less than three, or more than four
other persons, commissioned as judges for each of the counties in
the circuit, formed for such counties, respectively, the courts of
common pleas, oyer and terminer, quarter sessions and orphans’ court.
The president and any two of the judges, with the register of wills,
comprised the register’s court.

In cases involving more than four hundred dollars, a writ of error
lay from the supreme court and the register’s court to the high court
of errors and appeals, which was also remodeled, and, under this
act, comprised the judges of the supreme court and the presidents of
the common pleas, with three other persons of known legal ability
commissioned in the same manner as the judges of the supreme court.
It was further provided that such judges as should have given
judgment below should be excluded from sitting on the hearing of that
cause on appeal. The high court of errors and appeals sat once a year
in Philadelphia. On the organization of this court Benjamin Chew, the
former provincial chief justice, was named as an extra member and was
made president of the court, the other extra places not being filled.

By another act of the same date the salaries of the judges were fixed
as follows: Chief justice of the supreme court £1000, associate
justices and president judge of first district £600, presidents of
other districts £500.[312] When it is remembered that these are
not pounds sterling, but Pennsylvania currency, the modesty of the
salaries is but too evident. Thirty shillings a day were allowed
to each justice of the supreme court for traveling expenses when
on circuit. In 1796 the salaries of the associate justices and the
president of the first district were raised $400 and of the other
presidents $266.67. At the time of the Constitutional Convention of
1837, the salary of the chief justice of the supreme court was $2666
and of the associate justices $2000 each, with an allowance for
mileage and expenses on circuit. The judges of the district courts
were paid $2000 each, as well as the judges of the common pleas for
the first judicial district. In the other districts the president
judges of the common pleas received $1600 and the associates $140
with mileage.[313]

In 1799, further changes were made in the jurisdiction of the
courts, which for some time were the subject of constant legislative
experiments. As the population grew, the impracticability of keeping
up the system of _nisi prius_ sessions of the supreme court became
more and more obvious, while to the suitors and the bar, the hardship
and expense of crossing the Alleghenies to attend a session of the
court _in banc_, at Philadelphia, in the days before railroads,
amounted to a denial of justice. But the bar was not yet prepared to
give up its inherited fondness for itinerant justice, and the courts
of common pleas of the newly established judicial districts had not
been long enough in operation to be recognized as the true solution
of the problem. The Act of March 20, 1799,[314] therefore provided
that instead of _nisi prius_ courts, there should be held, except in
the county of Philadelphia, circuit courts which were of the same
nature as the court of _nisi prius_ except that the judges holding
the same were empowered to give judgment, pass decrees and award
execution in as ample a manner on circuit as when sitting _in banc_.
The right of appeal to the supreme court was preserved under special
conditions.

Although not required by the act by which these courts were
constituted, it continued to be the practice, as before, for two
judges to ride on circuit and sit together at trials in these courts.
This was unnecessary, as the time of the judges could have been
better distributed by sitting singly on jury trials, while trials
conducted by two judges were subject to the same inconvenience as
when conducted by the four judges sitting _in banc_, which, as Judge
Brackenridge has remarked,[315] caused great delay, as documents
offered in evidence had to be read by all the judges in turn and a
note taken by each.

Trials _in banc_ were abolished in Philadelphia by the Act of
February 24, 1806,[316] which also established a western district
for the supreme court, which was required to hold its September term
at Pittsburg. It was also provided that in the future circuit courts
should be held by one judge and that the judges should alternate
so that the same judge would not sit oftener than once in the same
county in every fourth successive term. The act also abolished the
high court of errors and appeals and vested its powers in the supreme
court. As respects the common pleas, the state was divided into ten
judicial districts and a president judge appointed in each of the new
districts. It was further provided that whenever required by either
party or counsel the judge should reduce his opinion to writing with
his reasons and file the same of record in the cause.[317]

By an act of April 10, 1807,[318] a middle district was established
for the supreme court, the term to be held at Sunbury, and again in
1809[319] two additional districts were established, the Lancaster
district, and the southern to be held at Chambersburg. By this act
the circuit courts were abolished, and the cases undetermined therein
relegated to the common pleas or, where appeals were pending, to the
supreme court. The number of judges of the supreme court was reduced
from four to three. By another supplement to the Act of 1806, enacted
in 1810,[320] the original jurisdiction of the supreme court was
restored in Philadelphia County in cases involving over $500, the
judges being required to hold _nisi prius_ courts there thirty-three
weeks in the year.

To dispose of the accumulation of business a new court called the
district court was created for the city and county of Philadelphia,
by the Act of March 30, 1811,[321] to consist of a president and two
assistant judges with power to hear and determine all civil pleas and
actions where the sum in controversy exceeded one hundred dollars.
The act was experimental and limited to six years, but the court was
such an unqualified success that it was continued, made permanent,
and similar courts established later in Pittsburg and Lancaster. From
the first this court absorbed the most important legal business of
the county and acquired an “enduring reputation as a great law court
for the trial of civil issues,”[322] the greatest this commonwealth
has ever seen; but the names of its most famous judges belong to a
later period.

No further experiments were tried with the supreme court until 1826,
when an act was passed increasing the number of justices to five
and restoring the circuit courts.[323] The cup of that overworked
body was now full. They were required to hear all cases of error and
appeal sitting in six districts, to hold a court of _nisi prius_
in Philadelphia, to go on circuit through the counties, beside
exercising original jurisdiction in cases of _quo warranto_ and
_mandamus_. Relief came in the Act of April 14, 1834,[324] passed
on the recommendation of the commissioners appointed to revise the
civil code. Circuit courts were finally abolished and the number of
districts reduced to four (the eastern at Philadelphia, northern at
Sunbury, middle at Harrisburg and western at Pittsburg); courts of
_nisi prius_ continued to be held twice a year in Philadelphia by a
single justice for the trial of civil actions involving more than
five hundred dollars, reviewable by the court _in banc_ upon motions
for new trial or in arrest of judgment.

At the risk of being tedious we have briefly reviewed the many
changes in the judiciary system between the Revolution and the
revision of the civil code in 1834-36, touching on these acts in
but a cursory manner without attempting to point out many important
features which were incorporated into later legislation and became
a permanent part of the system. The changes made were many of them
experimental, some met with success, others were doomed to failure;
they were forced by the extraordinary growth of the commonwealth in
population and wealth and the increase in the amount and importance
of the business of the courts. The law of real estate still had first
place, land was the principal asset of the inhabitants, and the loose
methods of the land office were an invitation to litigation, not
to speak of the additional complications arising from Connecticut
and Virginia titles. Ejectments innumerable occupied the attention
of the courts. But commercial law was every day becoming more
important, particularly in Philadelphia, then the first city in the
country and for some years the nation’s capital. The legal profession
enjoyed great prosperity during the early days of independence;
recklessness and paper money inflation had increased private debts to
an enormous extent and this, with the settlement of the loyalists’
estates, filled the dockets with more cases than could be tried. This
naturally led to envy and jealousy of the bar, which in Massachusetts
culminated in riots directed against the courts, an incident referred
to in history as Shays’ rebellion.[325]

In Pennsylvania there was no open attack on the courts while McKean
was chief justice, whose stern judicial deportment and inflexible
courage were sufficient to awe the mob. No one could doubt his
devotion to the cause of independence, but if a democrat in theory
he was an aristocrat in bearing. David Paul Brown relates[326] that
“shortly after his appointment, a petition was presented to him
directed to the Right Honorable Thomas McKean, Esq., lord chief
justice of Pennsylvania, upon which he complacently observed--‘these
are, perhaps, more titles than I can fairly lay claim to, but at all
events the petitioner has erred on the right side.’” Court was, in
his time, opened with great ceremony and form, and the chief justice
held the attendants to a rigid observance of duty. There are several
cases which illustrate this jealousy of the authority of the court,
of which the famous libel case _Respublica_ v. _Oswald_,[327] may
be taken as an example, as well as the following incident stated
by Brown to have occurred in 1778. The chief justice had issued
a warrant for the arrest of Colonel Robert L. Hooper, a deputy
quartermaster, on a charge of libel. Colonel Hooper informed General
Greene, who wrote to the chief justice stating that there was no one
to fill the colonel’s place and requesting that he might be permitted
to enter into a recognizance to appear at court later. The chief
justice replied as follows:--

“Yorktown, June 9th, 1778.

“Sir:--I have just now received your favor of the 3d inst., and
am not a little surprised that the sheriff of Northampton county
should have permitted Colonel Robert L. Hooper, after he was
arrested by virtue of my precept, to wait upon _you_ until he
appeared before _me_.

“You say, sir, ‘Colonel Hooper waited upon me to communicate his
situation, and to know if the circumstances of the army would
admit of his absence; but, as the army is just upon the wing, and
part of it will, in all probability, march through his district, I
could not, without great necessity, consent to his being absent, as
there is no other person that can give the necessary aid upon this
occasion.’

“I do not think, sir, that the absence, sickness, or even death
of Mr. Hooper could be attended with such a consequence, that no
other person could be found who could give the necessary aid upon
this occasion; but what attracts my attention the most, is your
observation that _you_ cannot, without great necessity consent to
his being absent. As to that, sir, I shall not _ask_ your consent,
nor that of any other person, in or out of the army, whether _my
precept_ shall be obeyed or not in Pennsylvania.

“The warrant for the arrest of Mr. Hooper being special, no other
magistrate can take cognizance thereof but myself. The mode you
propose, of giving bail, cannot be adopted, for many reasons.

“I should be very sorry to find that the execution of criminal law
should impede the operations of the army, in any instance; but much
more so to find the latter impede the former.

“I am, sir, with much respect,
“Your most obedient, humble servant,
Thomas M’Kean.”[328]

In 1799 McKean was elected governor and was succeeded on the bench
by Judge Shippen, then seventy years old, who had studied under
Tench Francis and at the Middle Temple. Chief Justice Shippen
was a patient, practical and discriminating lawyer and it was
from his notes that the first reported cases in Pennsylvania were
taken. He indeed formed a connecting link between the courts of
the province and those of the commonwealth, having sat on the
bench during both periods. This very fact, which caused him to be
venerated by the bar, was calculated to increase the hatred with
which he and his colleagues, Yeates and Smith, were regarded by the
radical politicians. The three judges from their wealth and social
connections were regarded as representatives of the old aristocracy,
while the defeat of the Federalist party, in 1799, left those who
had taken office in its day of power exposed to all the dangers of
political revenge. The tenure of the judiciary was for life and it
filled the earnest partisans of the new democracy with rage to see
all the places on the bench filled with those whose sentiments were
scarcely less detested than those of the Tories.

The first to be marked for attack was Alexander Addison, president
judge of the fifth judicial district, which, when formed in 1791,
comprised Westmoreland, Fayette, Washington and Allegheny Counties,
all of the western part of the state. Addison, a Scotchman by birth,
had been educated for the ministry, but had changed to the law, and
while practicing in the western counties had served as a member of
the convention that framed the Constitution of 1790. An aggressive
Federalist, his views were out of harmony with those of the greater
portion of the local population, while his strong opposition to the
Whiskey Insurrection did not increase his popularity with the rough
inhabitants of that wild region. It was Addison’s habit to deliver
political sermons from the bench under the guise of charges to
the grand jury. These interminable discourses were published and
greatly admired by the Federalists, but detested by the Democrats,
who, in attending court as parties or jurors, were obliged to
listen respectfully to the heavy campaign literature of their
opponents.[329] Judge Addison was particularly fond of dwelling upon
the enormities of the French revolutionists as a warning to good
citizens against those admirers of that revolution who were prominent
among the Anti-Federalists. Aside from these foibles, Addison was
an able, upright and energetic judge, and had toiled ceaselessly to
bring order out of confusion in the western district. His learning
was regarded with respect by the bar and his firmness had won the
confidence of the better class of citizens. When the party of
Jefferson triumphed in 1799, Addison was the first victim of their
revenge. His leading enemy was, like himself, a theologian who had
turned to the law, had built up an extensive practice and had just
been appointed to the supreme court, Hugh Henry Brackenridge, of whom
more hereafter.

Instigated by Brackenridge, John B. C. Lucas, a justice of the peace,
unlearned in the law, at the court of quarter sessions of Allegheny
County, attempted to address the grand jury and was prevented by
Judge Addison on the ground that in such matters the president judge
was the mouthpiece of the court. Lucas brought the matter before
the supreme court on a motion for leave to file an information
against Addison for misconduct on the bench, but the court declined
to interfere, although of opinion that the associate judges had a
right to express their opinions.[330] Lucas again attempted, at the
court held June 22, 1801, to address the grand jury and was again
prevented by Judge Addison with the concurrence of another colleague.
The paper Lucas intended to read had nothing to do with the duties
of the jury, but contained some trifling remarks of a semi-political
nature, composed perhaps by Brackenridge.[331] For this act Addison
was impeached by the house of representatives on January 26, 1803,
convicted by the senate, by a vote of twenty to four, and sentenced
to be removed from office and forever disqualified from holding the
office of judge in the commonwealth. Judge Agnew has described this
trial as “the most flagitious ever urged on by vicious hate and
obnoxious partisanship,”[332] and the conduct of the legislature in
this matter has met with general reprobation. Under the circumstances
Addison had acted perhaps injudiciously, but his purpose was to
preserve the dignity of the court and the punishment he received was
unreasonably harsh.

Having tasted blood, the legislature next turned its attention to
the supreme court. In February, 1803, a petition was presented to
the house of representatives by one Thomas Passmore, complaining
that he had been arbitrarily fined and imprisoned for a constructive
contempt of court in violation of the bill of rights and praying for
the impeachment of the judges who had taken part in the proceedings.
The matter went over to the following session when it was referred
to a committee which recommended the impeachment of Chief Justice
Shippen and Justices Yeates and Smith, and accordingly, articles of
impeachment, adopted on March 23, 1804, were presented to the senate.
On January 5, 1805, at Lancaster, then the capital of the state, the
trial began. The cause of this impeachment was a proceeding in the
supreme court, which will be found reported in the case of _Bayard_
v. _Passmore_.[333] The brig _Minerva_ belonging to Passmore, which
had been insured in 1801 by certain underwriters including the firm
of Petit and Bayard, sprang a-leak and put into New Brunswick where
Passmore abandoned her to the underwriters. Some of the latter
refused to pay on the ground that the vessel was unseaworthy when she
sailed. An amicable action was entered and the matter referred to
arbitrators, who made an award in favor of the plaintiff. Judgment
was entered on the award and a _fi. fa._ issued, but, on motion, the
execution was set aside, and a rule granted to set aside the award,
on exceptions filed by the defendant. These exceptions were based
partly on irregularities in the proceedings and partly on the merits
of the case. While the exceptions were pending, Passmore, who seems
to have been exasperated at the delay, posted on a board in the
exchange room of the city tavern the following notice:--

“The subscriber publicly declares, that Petit and Bayard, of this
city, merchants and quibbling underwriters, has basely kept from
me the said subscriber for nine months about 500 dollars, and that
Andrew Bayard, the partner of Andrew Petit, did on the 3d or 4th
inst. go before John Inskeep, esq., aldermen, and swore to that
which is not true, by which the said Bayard and Petit is enabled to
keep the subscriber out of his money for about three months longer,
and the said Bayard has meanly attempted to prevent others from
paying the subscriber about 2500 dollars but in this mean and dirty
action he was disappointed in; I therefore do publickly declare,
that Andrew Bayard is a liar, a rascal and a coward, and do offer
two and a half per cent. to any good person or persons to insure
the solvency of the said Bayard and Petit for about four months
from this date.

“Philadelphia, September 8, 1802.

“Thomas Passmore.”

Thereupon Mr. Dallas, the attorney for Bayard and Petit, moved for
an attachment against Passmore for contempt of court, which was
granted and interrogatories filed, which Passmore answered. On the
issuing of the attachment the court expressed its opinion that an
apology was due to the defendants. The answer of Passmore disclaimed
any intention to treat the court with contempt and admitted that the
paper had been posted in a moment of irritation but declined to make
an apology to the defendants. It was argued that there was no suit
pending when the notice was posted, the proceedings having closed
with the award of the arbitrators, but the court held otherwise,
being of the opinion that a contempt had been committed. As Passmore
declined to make any atonement to the injured individuals which would
influence the court to leniency, he was sentenced to pay a fine of
fifty dollars and suffer imprisonment for thirty days. This sentence
was carried out.

As the law then stood Passmore was clearly guilty, and even if not,
the sentence was given after a patient hearing and full argument and
amounted at most to an error of law, for which Passmore had a remedy
by appeal to the high court of errors and appeals, a point upon which
he was advised by William Lewis, one of the leaders of the bar. But
this remedy was not pursued. Passmore paid his fine, served his
sentence and sought revenge by the aid of a partisan assembly.

When the time of the trial arrived public feeling had turned in
favor of the judges, the better class of newspapers took their side
and the bar rallied to their defense; in fact the assembly found it
impossible to procure eminent local counsel to assist them in their
odious task and Cæsar A. Rodney of Delaware, was retained for the
prosecution. The defendants were represented by Jared Ingersoll and
Alexander J. Dallas.

The trial began on the eighth of January, 1805, and lasted until the
twenty-eighth of the month.[334] Many witnesses were called and all
the litigation which gave rise to Passmore’s commitment was minutely
reviewed. In summing up Mr. Boileau, one of the managers for the
house, argued that Passmore had not been punished because he had
committed a contempt of court but because he would not apologize to
Bayard, and declared that the court had no authority to direct one
individual to apologize to another. His address was a violent attack
on English precedents and the legal profession in general, with the
usual platitudes on the rights of man and the principles of the
Revolution. Mr. Rodney’s speech was more dignified and it is apparent
that his task was uncongenial. For the defense the speeches of Dallas
and Ingersoll were brilliant and exhaustive, replete with reported
precedents as well as manuscript records, which their industry had
discovered and which throw much light on the early practice of the
courts in attachments. That any doubt could be felt as to the issue
of this trial is a matter for wonder, and that thirteen out of
twenty-four senators voted for conviction is a lasting disgrace to
their names. Fortunately, the prosecutors failed by three votes to
obtain a two-thirds vote, and the judges were declared acquitted.

One incident of the trial deserves mention. Judge Brackenridge was
not on the bench when the motion for the attachment of Passmore was
made, and at the time of the argument was returning from a special
court in Northumberland County, but was present when sentence was
passed. He was not included in the impeachment, but at once wrote to
the house of representatives stating that he concurred in the opinion
of his brethren, and while not courting prosecution, could see no
distinction in his case and asked to be included in the impeachment.
The house sent up an address to Governor McKean for his removal,
which was refused, and when a committee urged that the term in the
constitution “may remove” meant “must remove,” he replied that he
would have them know that “may” sometimes meant “won’t.”[335]

This offer to stand impeachment with his colleagues was the most
courageous act in the public career of the most eccentric genius
that ever sat on our supreme bench, about whom a few words may be
interesting. Hugh Henry Brackenridge, born in Scotland, of poor
parents, was brought as a child to this country. By teaching school
he saved enough to attend Princeton College, where he became a tutor,
studied divinity and later served as a chaplain in the Revolutionary
army. In 1778 he commenced the study of law with Samuel Chase,
afterwards a justice of the supreme court of the United States,
and, locating at Pittsburg, soon became a leader of the western
bar. During the whiskey insurrection Brackenridge’s conduct was not
free from suspicion. His opinions were opposed to the excise tax,
and, if he did not join the insurgents, he did not take a very firm
stand against them. He was marked for arrest by Hamilton, but was
saved, it is said, by James Ross, the rival bar leader of the western
district, afterwards United States senator. At the bar Brackenridge
was noted for his shrewdness, wit and eloquence, and was a writer
of considerable talent; “Modern Chivalry,” a satirical work from
his pen, has gone through several editions. On the bench he did not
display the same power as at the bar; his opinions were racy, but not
profound and failed to do justice to his real learning; an untiring
student, his dislike of convention led him at times into a show of
flippancy. The enmity between Judges Yeates and Brackenridge was a
curious incident of the times. It probably dated from the time of the
whiskey insurrection when Yeates served as one of the commissioners
to deal with the insurgents. No two men were ever more dissimilar in
appearance, habits and opinions: Judge Yeates a tall, florid, portly
man, rich, aristocratic and fond of society; Brackenridge dark and
sallow, of moderate means, a bookworm and recluse, and absolutely
indifferent to his appearance. An examination of the reports will
show that the associates rarely agreed, and the position of Chief
Justice Tilghman must have been peculiarly difficult. Indeed the
eccentricities of Brackenridge, if half the traditions are true,
would almost amount to insanity, but it is difficult at this day to
say whether his want of judicial decorum arose from this cause or
from his utter contempt for social conventions. Among the odd stories
told of him is one narrated by David Paul Brown:[336]--

“During the time, as has been said, the circuits existed, a friend
of the judge, riding in his carriage in the western part of the
state, while a prodigious storm of wind and rain prevailed, saw a
figure approaching, which resembled, what might be conceived of
Don Quixote, in one of his wildest moods; a man, with nothing on
but his hat and boots, mounted upon a tall, raw-boned Rosenant,
and riding deliberately through the tempest. On nearer approach he
discovered it to be Judge Brackenridge, and upon inquiring what was
the cause of the strange phenomenon, Brackenridge informed him,
that seeing the storm coming on, he had stripped himself and put
the clothes under the saddle; ‘because,’ said he, ‘though I am a
judge, I have but one suit, and the storm, you know, would spoil
the clothes; but it couldn’t spoil me.’”

The interminable criticism of and complaints against the judiciary
during the early years of the nineteenth century were in a large
measure due to the fact that judges held office for life. The same
processes were to be seen at work in the other states, culminating
in the abolition of life tenure and the substitution of a term of
office varying, under the different constitutions, from one to twenty
years. In Pennsylvania this result was accomplished by one of the
constitutional amendments adopted in 1838, by which the terms of
the supreme court judges were fixed at fifteen years and those of
the common pleas judges at ten. This change was not adopted without
vigorous opposition on the part of the leaders of the bar[337] and
is a subject upon which opinions differ today. We may suspect that,
however loudly the political leaders who advocated the change may
have declaimed against the dangers of caste prejudice, favoritism
and despotic conduct, they were really looking at the offices with
envious eyes and plotting to divert the meagre salaries to partisan
purposes. This was the period when American political life, in its
outward aspects at least, reached its lowest depths of degradation,
and that the judiciary should suffer thereby was inevitable.
Americans had yet to learn that democracy was not synonymous with
vulgarity and provincialism, that the American Revolution had not
severed us from the traditions of our race, and that the French
Revolution had not emancipated us from the rules of social decorum.
The American “Sans Culotte” was an unlovely type, an iconoclast and
a bitter partisan, and that he should have done his best to add
the judiciary to the spoils system is not the least count in his
indictment.

The citation of English decisions in the opinions of the courts
greatly exasperated the radical element. What were these precedents
but the rags of despotism, who were the judges that had rendered
them but tyrants, sycophants, oppressors of the people and enemies
of liberty! There was danger that our courts might be contaminated
by the source from which they drew their inspiration, so an act
was passed March 19, 1810,[338] which provided that it should not
be lawful to read or quote in any court of this commonwealth, any
British precedent or adjudication which had been given or made
subsequent to the fourth of July, 1776, except those relating to
maritime law or the law of nations. Upon this act Judge Brackenridge
wittily remarked:[339]--

“Were it not that I should be unwilling to enter into a contest
with the legislature, where public opinion, or prejudice is on
their side, I might be disposed to question the constitutionality
of this act. It would seem to be abridging the right of the
judiciary, to hear all reason on a question before them.

----What is’t to us
Though it were said by Trismegistus?

“But if we are to hear the saying of a lord, years, or centuries
ago; and before the 4th July, 1776, why not what another lord has
said since, to explain or contradict the adjudication? The fact is,
early decisions were, many of them narrow; and why drink out of the
neck of a gourd, rather than out of an open goblet; more especially
if the fountain was muddy, out of which the gourd was filled; the
stream of law in that country, now runs more clear in particular
cases than centuries ago; and it will always remain so, the law
being an improvable science.”

This act was repealed in 1836.[340]

* * * * *

It may be said, however, for those who railed against the courts,
that many of the lay associate judges set anything but a good
example of judicial dignity, and quarreled even to the point of
coming to blows and dragging each other from the bench.[341] The
law judges, who rode the circuits, manfully attempted to preserve in
the log court houses of remote counties the dignity of Westminster
Hall, and added to their unpopularity with the uncouth inhabitants
by instructing them in manners as well as in the law. In his
“Recollections of the West,”[342] Judge Brackenridge’s son, himself
also a judge, gives an amusing picture of the first court held in
Butler County. The court house was a log cabin into which bench,
bar and the entire village population were crowded. The audience
hung from the rafters like bats, and when these were cleared away
by the sheriff, a big Irishman objected to being removed. The Court
sentenced him to an hour’s imprisonment for contempt, whereupon
the sheriff was greatly puzzled as to what he should do with his
prisoner, as there was no jail. It was finally decided that he should
be incarcerated in a pig pen, emptied to prepare a feast for the
court, but the prisoner was too much for his captors and made his
escape into the brush.

Rapid as was the tide of immigration into western Pennsylvania it was
only by slow degrees that a well organized system of local government
was introduced. Westmoreland County, comprising most of the western
district, was established in 1773 with a county seat at Hannastown,
but the confusion incident to the Revolution and the boundary dispute
between Pennsylvania and Virginia retarded the growth of local
institutions. Court was held at the house of Robert Hanna where petty
offenders were sentenced to the pillory, stocks and whipping post,
erected before the log jail. The first person, it is said, convicted
of murder and hanged west of the Alleghenies was an Indian of the
Delaware tribe named Mamachatoga, who in 1785, while drunk, killed a
white man near Pittsburg. At the trial at Hannastown he was defended
by Brackenridge, but Chief Justice McKean who presided held that
drunkenness was no excuse and the defendant suffered the extreme
penalty of the law.[343] In the early days when the fifth judicial
district embraced practically all of western Pennsylvania litigation
was slow, owing to the long intervals between the terms of court and
the difficulty in procuring the attendance of witnesses. The law
judge rode the circuit from county to county, attended or followed by
the members of the bar, who, during the sessions of court, generally
put up at one tavern and made a lively time of it.

During the early years of the nineteenth century the supreme
court was presided over by chief justices of reputation equal to
any, and superior to most of those who have sat in American state
courts, Tilghman and Gibson. William Tilghman came of a family of
distinguished lawyers; his father was secretary of the provincial
land office, and his maternal grandfather, Tench Francis, the bar
leader of the provincial court of his time. His first judicial
appointment was by President Adams on March 3, 1801, to the circuit
court of the United States for this circuit; hence he was one of
the so-called “midnight judges,” commissioned a few hours before
Jefferson took office, and legislated out of office in the following
year. In 1806 he was appointed chief justice by Governor McKean on
the recommendation of his cousin, Edward Tilghman, who declined the
office. His appointment gave offense to some of the minor Democrats,
but the governor, although a leading member of that party, having
once made up his mind on the subject, was not to be moved.

“A committee, consisting of Duane, Lieper, and others, were
appointed by a town meeting to wait upon him, to inform him
that the democracy of Philadelphia were utterly opposed to the
nomination of William Tilghman as chief justice of Pennsylvania.
The committee were introduced into the executive apartments,
and the governor received them in his civil but reserved and
aristocratic manner, treating them simply as his constitutents;
when, however, they announced themselves as the representatives
from the democratic party--the sovereign people--he bowed most
profoundly, and inquired of them what the great democracy of
Philadelphia required of him. They proceeded, and stated the
purposes of their delegation, and in pretty plain terms gave him to
understand that the appointment of Mr. Tilghman would never meet
the approval of the democratic party. ‘Indeed,’ said the governor,
‘inform your constitutents 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.’”[344]

The confidence of the governor was justified by the long and
distinguished career of his appointee, whose judicial decisions are
marked by a comprehensive knowledge of the common law and an unusual
clearness of diction. “Other Judges,” says Binney, “may have had more
learning under their immediate command,--none have had their learning
under better discipline, or in a condition more effective for the
duty upon which it was employed.”[345]

An adequate life of his great successor, John Bannister Gibson, has
still to be written.[346] Appointed to the common pleas in 1812 and
to the supreme court in 1816, of which he became chief justice in
1827, his reputation increased with years, and common consent assigns
to him the first place in our judicial history. “Abroad,” said
Chief Justice Black, “he has for many years been thought the great
glory of his native state.” Chief Justice Gibson has been credited
with an abhorrence of the petty and prosaic details and drudgery of
the law, qualities that would have militated against a successful
career as an advocate, but given a problem, no judge could grasp it
more firmly or dispose of it more readily, and he was master of a
style which in vigor of expression and condensation of thought is
unrivalled. “When he brought the lens of his mind to a focus, its
power was resistless.” For one act in his career he was subjected to
some criticism. The constitutional amendments of 1838 substituted a
term of fifteen years for life appointment and the commissions of the
judges on the bench were to expire at intervals of three years. At
the suggestion of his colleagues, the chief justice resigned in 1838,
and was immediately reappointed, and thus, instead of holding for the
shortest term, enjoyed the longest. The necessity for this action was
no doubt humiliating to him, who could hardly have resumed practice
at that period of his life, but on the other hand his loss to the
state would, at that time of transition, have been irreparable, and
when his term expired in 1851, he was re-elected almost without
opposition.

If space permitted, it would be proper to say something of the bar at
this time, which was particularly distinguished.

During the greater part of this period Philadelphia was the
leading city of the nation, both in population and wealth, and the
achievements of the local bar attracted national attention.[347]
Such leaders as William Lewis, Edward Tilghman, Jared Ingersoll,
William Rawle, William Bradford, Alexander James Dallas, and Horace
Binney, both in private practice and public office, exhibited talents
that were admired and esteemed by their contemporaries and served
as models for their students and successors, while in the West
Albert Gallatin, James Ross and H. H. Brackenridge attained high
distinction. Indeed, so much has been said about the good old times,
that we are often in danger of minimizing professional progress,
which, in the nineteenth century, has been in the nature of a
world-wide forced march to keep pace with the flying wheels of Father
Time’s steam and electric chariots.

The first bar after the Revolution was a very remarkable body; most
of its leaders had been educated at the Inns of Court or in offices
steeped in black-letter traditions. Devoted to the common law, they
endeavored to inspire their pupils with the same spirit. Deprived
by legislative shortsightedness of a court of equity they applied
to the problem of working out equitable relief through common law
forms the same sort of ingenuity that their ancestors had exercised
in the invention of fictions to overcome the inelasticity of common
law actions. Masters of their profession, they were jealous of all
innovation, and the less important members of the bar took their cue
from the leaders, in blissful ignorance of the issues involved. As a
result the agitation for codification that subsequently swept over
the country was but faintly echoed in Pennsylvania.

In pursuance of resolutions adopted by the legislature in 1830 a
commission was appointed by the governor consisting of William Rawle,
T. I. Wharton and Joel Jones, to revise, collate and digest all such
public acts and statutes of the civil code of the state and all such
British statutes in force in the state as were general and permanent
in their nature. The commission made a series of reports between
1831 and 1836 with drafts of proposed acts, most of which were, with
some modifications, enacted into law.[348] That the members did their
work thoroughly and well is proved by the fact that the acts passed
on their recommendation are the basis of the present jurisdiction
of and practice in the courts of the commonwealth. Their work,
however, consisted mainly in repairing, restoring and strengthening
the existing structure, a statutory system supplemented by so much
of the common law as it had been found expedient to incorporate into
the jurisprudence of a new community. Their cautious recommendations
accorded with conservative public opinion, and the house-cleaning
then done tended, undoubtedly, to check the sentiment for
codification which has had such extraordinary results in England as
well as in many of the states.[349] Whether this is a blessing or a
curse is a question upon which opinions may differ. At least, it may
be suggested that three-quarters of a century has passed since this
revision, during which time many statutes have been enacted which do
not add clarity to the law, and that it may be worth while to examine
some of the more notable procedural reforms, with a view to the
introduction of such methods as have proved unqualifiedly successful
elsewhere and the ultimate simplification of our procedure, in
the interest of common sense and social and economic progress.
Self-laudation is one of our professional faults that frequently
leads to narrow views and unprogressive provincialism. A peep over
our neighbors’ fences may lead us to the horrifying discovery that we
are provincial in many respects.

The revision of the civil code has been fixed as the limit of this
discussion for the reason that there are members of the bar who can
speak with authority from personal recollection upon the occurrences
during the middle nineteenth century, and for the further reason that
the judicial system had by that time assumed a form which in its
main outlines, it still retains, subject to the changes introduced
by the constitution of 1874.[350] Relief has since been afforded to
the supreme court by the establishment of an intermediate court of
appeal, the superior court, and the transfer to the latter of a part
of the appellate business.[351] Both are courts for the hearing of
appeals, none of the judges sitting at _nisi prius_, an arrangement
that has been criticised as tending to disassociate the appellate
judges from the main body of the judiciary, in contradistinction
to the federal system. The number of common pleas judges has been
greatly increased and the lay associate has almost disappeared.[352]

The most glaring defect in the system is in the minor judiciary. The
magistrate, or justice of the peace, is a relic of the eighteenth
century whose intelligence, education and social position have not
kept pace with the general improvement. The holding of courts at
this day by men unlearned in the law is an anachronism, a nuisance
to those having to do with the collection of small debts and,
frequently, a source of oppression to the poor. It is to be hoped
that reform in this respect will not be unduly delayed by the
necessity for the adoption of amendments to the constitution to make
it complete.

The early division of the state into judicial districts has had some
unfortunate consequences. The bar of the state became divided into
a number of local bars, mutually jealous and exclusive, practicing
under dissimilar rules, without common interests or _espirit de
corps_. The tendency to disunion has been checked by the formation
of the State Bar Association, an organization that has already done
much to promote uniform legislation as well as to encourage good
fellowship in the legal fraternity. The appointment, too, by the
supreme court of a state board to examine candidates for admission to
the bar has done much to standardize legal education in the state.

Owing largely to her great natural resources Pennsylvania has enjoyed
a prosperity in which both bench and bar have shared, but the first
stages of that prosperity were attained through the liberal and
farsighted policy of William Penn, the founder. His adopted sons
should at least be willing to view with open minds the innovations
demanded by progress. The panorama from the housetop does not
necessarily lead to a suicidal leap or a broomstick ride.

FOOTNOTES:

[290] Proceedings of the Constitutional Conventions of Pennsylvania
of 1776 and 1790, 61. The equity clause will be referred to later.

[291] IX Statutes at Large, 29.

[292] VI Pennsylvania Archives (1st Series), 228, 245, 294; VII
Pennsylvania Archives (1st Series), 72; IX Colonial Records, 214, 260.

[293] Biography of William Lewis, Pennsylvania Magazine, Vol. XX, 30.

[294] X Colonial Records, 610, 745.

[295] _Respublica_ v. _Carlisle_, 1 Dallas’s Reports, 35 (1778);
_Respublica_ v. _Roberts_, 1 Dallas’s Reports, 39 (1778); and see IX
Colonial Records, 600, 613.

[296] Journal of Congress, Vol. 1, 260; VIII Statutes at Large, 519.

[297] _Ross_ v. _Rittenhouse_, 2 Dallas’s Reports, 160 (1792);
Olmstead’s Case, Brightly’s Nisi Prius Reports, 9 (1809); _United
States_ v. _Peters_, 5 Cranch (U. S.) 115 (1809); Trial of General
Bright; Federal Courts before the Constitution, 131 United States
Reports, appendix at page xxix.

[298] Pennsylvania State Trial (Hogan, 1794), 3; XII Colonial
Records, 584, December 26, 1780.

[299] X Statutes at Large, 52.

[300] 3 Smith’s Laws of Pennsylvania, 28.

[301] 1 Dallas’s Reports, 95 (1784).

[302] Proceedings of the Constitutional Conventions of Pennsylvania
of 1776 and 1790, 70, 107.

[303] XII Statutes at Large, 308; 2 Smith’s Laws of Pennsylvania. 392.

[304] _Respublica_ v. _Doan_, 1 Dallas’s Reports (Wharton’s Edition),
86 (1784).

[305] XV Colonial Records, 505, 544; Watson’s Annals of Philadelphia
(1850), Vol. II, 330.

[306] 3 Smith’s Laws of Pennsylvania, 37.

[307] 3 Smith’s Laws of Pennsylvania, 186.

[308] XV Colonial Records, 31.

[309] 12 Hazard’s Pennsylvania Register, 117; 13 Hazard’s
Pennsylvania Register, 4. When, in 1783, it was proposed in England
to do away with the public procession to Tyburn, Dr. Samuel Johnson
remarked, in his vigorous manner, to Sir William Scott: “Sir,
executions are intended to draw spectators. If they do not draw
spectators, they don’t answer their purpose. The old method was
most satisfactory to all parties; the public was gratified by a
procession; the criminal was supported by it. Why is all this to be
swept away?” Boswell’s Life of Johnson, chapter 56.

[310] Proceedings of the Constitutional Conventions of Pennsylvania
of 1776 and 1790, 301, and 3 Smith’s Laws of Pennsylvania, xxxix.

[311] 3 Smith’s Laws of Pennsylvania, 28.

[312] April 13, 1791, 3 Smith’s Laws of Pennsylvania, 26.

[313] Debates of Pennsylvania Constitutional Convention of 1837, Vol.
1, 263.

[314] 5 Carey & Bioren’s Laws of Pennsylvania, 694.

[315] Brackenridge’s Law Miscellanies, 283.

[316] 4 Smith’s Laws of Pennsylvania, 270.

[317] See also the Act of March 6, 1812 (5 Smith’s Laws of
Pennsylvania, 308).

[318] 4 Smith’s Laws of Pennsylvania, 448.

[319] March 11, 1809, 5 Smith’s Laws of Pennsylvania, 15.

[320] March 10, 1810, 5 Smith’s Laws of Pennsylvania, 158.

[321] 5 Smith’s Laws of Pennsylvania, 223.

[322] Martin’s Bench & Bar, 78.

[323] April 8, 1826, P. L. 265.

[324] P. L. 341. See Fourth Report of the Commission to Revise the
Civil Code (1834). The northern district of the supreme court was
afterwards abolished.

[325] McMaster’s History of the American People, Vol. I, 302, _et
seq._

[326] The Forum, Vol. I, 327.

[327] 1 Dallas’s Reports, 319 (1788).

[328] The Forum, Vol. I, 330.

[329] See specimens of these charges in Appendix to Addison’s Report.

[330] _Commonwealth_ v. _Addison_, 4 Dallas’s Reports, 225 (1801).

[331] See the printed report of Addison’s Trial (1803).

[332] Address before the Allegheny Bar Association, Pennsylvania
Magazine, Vol. xvi, 1.

[333] 3 Yeates’s Reports, 438 (1802).

[334] See printed report of the Judges’ Trial (1805).

[335] The Forum, Vol. I, 408.

[336] The Forum, Vol. I, 404.

[337] Debates of Pennsylvania Constitutional Convention of 1837, Vol.
X, 148 _et seq._

[338] P. L. 136. See similar Act in New Jersey passed in 1799. New
Jersey Statutes (1800), 436.

[339] Brackenridge’s Law Miscellanies, 525.

[340] Act of March 29, 1836, P. L. 224.

[341] McMaster’s History of the American People, Vol. III, 154.

[342] Recollections of the West, H. M. Brackenridge. See extract in
Hazard’s Pennsylvania Register, Vol. XIV, 172.

[343] History of Allegheny County (Errett), chapter xiv.

[344] The Forum, Vol. I, 343.

[345] See Binney’s Eulogy on Chief Justice Tilghman, 16 Sergeant &
Rawle’s Reports, 444.

[346] See Eulogies in Appendix to 19 Pennsylvania Reports; W. A.
Porter’s Essay and article in Great American Lawyers, Vol. III, 353.

[347] See the reprints and papers contained in the volume
commemorative of the One Hundredth Anniversary of the Philadelphia
Law Association.

[348] The reports of the commissioners form a most instructive
commentary upon the early statute law of Pennsylvania.

[349] Hepburn’s Historical Development of Code Pleading (1897).

[350] The Judiciary Article of the Constitution of 1874 is printed in
the Appendix to this volume. Special pleading was abolished by the
Act of May 25, 1887, P. L. 271, which substituted a hybrid system
that is neither common law nor good code pleading.

[351] Act of June 25, 1895, P. L. 212, and its supplements.

[352] For the present personnel of the courts, see Smull’s
Legislative Handbook, current issue.