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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. 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 housecleaning 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. 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
1 The reports of the commissioners form a most instructive commentary upon the early statute law of Pennsylvania.
2 Hepburn's Historical Development of Code Pleading (1897).
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 1874.1 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. Both are courts for the hearing of appeals, none of the judges sitting at risi 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.3
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.
1 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.
2 Act of June 25, 1895, P. L. 212, and its supplements.
3 For the present personnel of the courts, see Smull's Legislative Handbook, current issue.
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.
One of the most troublesome questions with which the colonial administrator had to deal was equity jurisprudence. In the early years of the seventeenth century politics entered into the contest for jurisdiction between the English court of chancery and the courts of common law, beclouding the issues and retarding a settlement of their respective spheres of action. Popular dislike pictured the chancellorship as a great political office closely identified with the Crown, and grudgingly admitted its importance in the complex judicial system of England. On the other hand, the chancellor too frequently subordinated the judicial functions of his office to ministerial policy and permitted abuses in the organization and administration of his court that impaired its usefulness and checked the growth of its business. At this early period chancery practice was concerned chiefly with questions connected with the devolution and management of real property and property held in trust, and many of the broader doctrines of equity were still in process of growth. Lord Nottingham, the father of modern equity, held the office of chancellor from 1673 to 1682, but was succeeded by several chancellors of inferior capacity who added nothing to the prestige of the court, while the masters and inferior officers were chiefly distinguished for rapacity and extortion, not to speak of incompetency and dishonesty, in the management of property committed to their care. Reform came, but too late to convince the more democratic communities of the positive advantages of chancery procedure, while the prevailing fanatical devotion to
1 Parkes's History of the High Court of Chancery.