Gambar halaman

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, 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:2—

"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This act was repealed in 1836.3

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 drag

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

2 Brackenridge's Law Miscellanies, 525. 3 Act of March 29, 1836, P. L. 224.

ging each other from the bench. 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,''2 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

1 McMaster's History of the American People, Vol. III, 154.

2 Recollections of the West, H. M. Brackenridge. tract in Hazard's Pennsylvania Register, Vol. XIV, 172.

See ex


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

excuse and the defendant suffered the extreme penalty of the law. In the early days when the fifth judicial district embraced practically all of western Pennslyvania 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.

1 History of Allegheny County (Errett), chapter xiv.

"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."1

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.”

An adequate life of his great successor, John Bannister Gibson, has still to be written.3 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

1 The Forum, Vol. I, 343.

3 See Binney's Eulogy on Chief Justice Tilghman, 16 Sergeant & Rawle's Reports, 444.

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

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. gestion 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. Such leaders as William Lewis,

At the sug

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

« SebelumnyaLanjutkan »