CHAPTER XVII.

THE BENCH AND BAR.

RIOR to the Revolution, the Judges appointed by the Crown were, in many instances, men of inferior ability, without any professional training, and comparatively without knowledge of the law. They were mere mouthpieces of the King, owed an allegiance only to him, and their rulings were always in his favor. After the Revolutionary War, there was a decided change for the better in the character of the judicial appointments, and a few brief sketches of some of the most prominent Judges, showing their eccentricities, learning and qualities of mind will give a fair index of the manner in which justice was dispensed in the early days of the Republic.

Thomas McKean was the first Chief Justice of the Supreme Court of Pennsylvania after the Declaration of Independence. He had the honor of being one of the illustrious signers of that immortal document. He sat upon the Bench from 1777 to 1799, and subsequent to his judicial career, he was Governor of the Commonwealth of Pennsylvania, and took an active part in public affairs both in State and Nation until the opening years of the War of 1812. He was well founded in the principles of the law and familiar with every point of practice. He was a man of strong character and had the rugged qualities of the Scotch-Irish, from which race he sprang. He was an ardent partisan, bitter in his prejudices and at times his rulings on the Bench were almost despotic. He was a man of powerful physique, and nothing could daunt his courage. When presiding in the Court at Harrisburg a mob gathered outside of the building and was so noisy that the Judge summoned the Sheriff to disperse the rabble. The Sheriff, almost frightened out of his wits, reported to the Court that the crowd was beyond his control. "Then why do you not summon your posse?" roared the Judge. "I have done so, but without avail," replied the Sheriff. "Then, sir." shouted the Judge, "why do you not summon me?" The Sheriff, taking the Judge at his word, said, "I do, sir, summon you, in the name of the law." Instantly the Judge, without removing his scarlet gown, dashed from the Bench out into the courtyard, seized a couple of the rioters by the throat and ordered the rest to disperse. Quiet was restored at once.

When Governor of the Commonwealth, he appointed as Chief Justice, William Tilghman. The appointment, however, did not meet with favor by the leaders of the Democratic party and a committee waited upon McKean and made known to him the object of their visit. The Governor, profoundly bowing and assuming an air of great curiosity, asked what the Democracy desired. "We want," said the speaker of the committee, "a man more loyal to the principles of the Democratic party." "Indeed," said the Governor, "you may return to your constituents and tell them that I bow with submission to the

will of the great Democracy of Philadelphia, but by God! William Tilghman shall be Chief Justice of Pennsylvania."

Judge Samuel Chase was appointed an associate Justice of the United States Circuit Court for the District of Pennsylvania in the year of 1796. He was a man of uncommon ability and broad learning, but at times most arbitrary in his conduct and in rulings. He was never what might be called a favorite with the bar. Upon one occasion, Samuel Leake, Esquire, who practiced law in Trenton, New Jersey, appeared before the Court to take part in an argument. He was well known as a case lawyer and always cited an endless array of authorities. On the day in question before the opening of the Court, he was found busily engaged in arranging a long line and piles of law. books on the table at the bar of the court, and was taking the greatest care in placing them in orderly succession so as to have them conveniently at hand. during the course of his argument. The Judge, shortly before Court convened, appeared upon the Bench and looking down upon the lawyer arranging his books asked him in an abrupt manner, "What have you there, sir?" Mr. Leake replied, "My books." "What are they for?" said the Judge. "I intend to cite from them my authorities," said the lawyer. "To whom," said the Judge, "do you intend to cite them?" "To your honor," was the answer, and the Judge ended the colloquy by abruptly saying, "I'll be d―d if you do.” Such conduct was at least uncivil, and it is not known what course was pursued by the lawyer in the face of so sharp a denial of justice.

In proceedings for treason against a man by the name of John Freas, Justice Chase, before hearing any testimony in the case, submitted in writing to the lawyers on both sides his views upon the law as he intended to lay them down before the jury in his charge. This was so clearly a prejudging of the case, that Mr. Lewis and Mr. Dallas, representing the defendants at once withdrew, and the District Attorney was compelled to prosecute the prisoner unrepresented by counsel. The trial resulted in the conviction of the defendant and the Judge forthwith imposed upon him the sentence of death. The prisoner, was, however, subsequently pardoned and the Judge, because of his arbitrary ruling in the matter, was impeached in 1804 before the Senate of the United States, but after a long trial was acquitted.

Justice Chase was succeeded by Bushrod Washington, one of the greatest Judges that ever sat upon the Bench in this country or in any other. He had devoted his whole life to the study of law and gave but little time or thought to any branches of learning outside of it. His opinions were written in a clear, simple style but without any adornment. He never indulged in the custom so common in those days of quoting from the classics, or even from standard English authors. In fact, it was said by some one who knew him well that it was a question whether he knew by whom Hamlet was written. But his purity of mind, his fairness, his amiability, his patience made him an ideal Judge and his reputation as a jurist is linked with that of the great Mansfield. Upon a tablet which appears on the walls of the District Court of the United States in this district, recording the respect and affection of the members of the Philadelphia Bar, the following language sums up eloquently his attributes: "Distinguished for simplicity of manners and purity of heart. Fearless

and enlightened as a Judge, no influence or interest could touch his integrity or bias his judgment."

With the name and reputation of Bushrod Washington may be coupled that of William Tilghman. He was appointed in March, 1801, by President Adams, Chief Justice of the United States Circuit Court for this circuit. He was called one of the "midnight judges" from the fact that President Adams, just before his retirement, made a batch of Judicial appointments, among which was named Judge Tilghman. A better selection could not have been made, for he was not only learned in the law, but had every attribute that made him preeminently a jurist of the first order. With integrity, without bias, with deep learning and with a cultured mind, he must be reckoned among the great ornaments of the Bench. The Act creating the Circuit Court was subsequently repealed by Congress. Mr. Tilghman was born on August twelfth, 1756, in Talbot County, on the eastern shore of Maryland. His family owned an extensive plantation on the Chester River in Queen Anne's County, and it was here, from 1776 to 1783, he pursued his legal duties. Part of this time he resided in Chestertown, the County Seat of Kent, in those days an important settlement in Maryland, and a port of entry. He subsequently removed to Philadelphia where he practiced law successfully until his appointment in 1806 to the Bench as Chief Justice of the Supreme Court of this State. His two Associate Justices in this Court were Jasper Yeates and Hugh Henry Breckenridge, both interesting men because of their peculiarities.

He was

The former was a tall, dignified man in appearance, most careful in the matter of his attire, and possessed of a good knowledge of the law. Breckenridge was almost as tall as his colleague, but was raw boned and with a slight stoop in his shoulders. He was dark, with sallow complexion and wrinkled face, he was generally unshaven and his hair uncombed. most careless in his manner and style of dress. As a usual thing he wore a rusty coat that appeared as if it had not been touched with a whisk or brush for months. He wore small clothes, without suspenders and at times it looked as if his breeches were losing their bearing. He was always shod with great heavy boots, and a cravat was twisted around his neck which a wag remarked, resembled a hangman's noose. Often when presiding at a trial, if the weather was hot or oppressive, he would remove his coat and vest, pull off his boots and prop his stockinged feet against the desk. He seemed to delight in ignoring every form of etiquette and decorum and this too in the presence of as refined, as cultured and as accomplished a group of lawyers as ever practiced at any bar. If it had not been for his known integrity and his really great power as a judge his unseemly conduct would, no doubt, have induced his impeach

ment.

In those days the Judges rode the circuit on horse-back and upon one occasion, when journeying to his Court, the Judge was overtaken by a terrific storm of wind and rain. Not having any clothes with him other than those which he wore, he got off his horse, undressed, wrapped his garments in a wad and placed them under the saddle and with nothing on but his hat and boots, jumped upon his steed and pursued his way. Meeting a friend on the road, he explained his condition by saying, "Though I am a Judge, I have but one

suit and if I had not resorted to this scheme it would have been ruined, whereas the shower bath can only give me a dressing." Breckenridge and Yeates were not on the best of terms. There was always a want of harmony between them, and at times there existed a personal enmity. Upon one occasion, the two Judges reached the Court before the arrival of the Chief Justice, and took their accustomed seats. While waiting for the coming of Mr. Tilghman, Judge Yeates occupied the time in eating an apple, and the noise he made seemed to give great annoyance to Mr. Breckenridge, who, growing impatient, said, “I thought, sir, you once informed me that you had been in London, visited Westminster Hall, the courts of law, and saw Lord Mansfield?" "Yes, sir," said Judge Yeates, puffing out with importance, "I had that honor." "Pray, sir," was Breckenridge's reply, "did you ever see his Lordship munch a pippin on the bench?" It is not known whether Judge Yeates continued devouring the apple or threw the core at his colleague's head.

One of the early Judges of the Court of Common Pleas of Philadelphia County was Jacob Rush, brother of the distinguished Dr. Benjamin Rush, one of the signers of the Declaration of Independence. Jacob Rush was a man of great ability and of deep religious devotion, as will be seen by the language used in the following unique sentence which he imposed upon Richard Smith in 1816, who had been convicted of the murder of a man by the name of Carson. Addressing the prisoner, the Judge solemnly said: "As your continuance in this world will be for a short time, it becomes you seriously to reflect upon the world of spirits into which you will soon be launched. Dream not, I beseech you, of annihilation or that death is an eternal sleep. The more you indulge in such unfounded speculations the greater your disappointment and horror will be when you awake in the eternal world. Life and immortality are brought to light by the Gospel. In this precious volume one has discovered a true man and the fall and depravity of man and all his elevation and happiness through the atoning blood of the Son of God. Here and here alone a soul lost and bewildered in the maze and difficulty can find a clue to guide him to the day spring on high-the Saviour of sinners.

"A particular feature of this display of infinite wisdom and goodness is that it opens a door for the most abandoned sinners to return to a means of repentance.

"Murderers have been pardoned. Therefore, you may be pardoned in the face of your repentance and wash over your sins in the blood of Jesus that cleanses from all sins. To this blood you must apply if you wish to escape the regions of perpetual sorrow and despair. I, therefore, advise you to strive to another end to accomplish what is good. Double diligence, nay, tenfold diligence is necessary in your alarming situation. You have but a short time to live and a great work to accomplish in the space of a few weeks. It becomes you, therefore, to work out your salvation in fear and trembling, for it is God that works in you the will to do His own good pleasure.

"You are a young man, cut off by vice in the morning of your days. Your sun is scarcely risen before it is set, not, I hope in the shades of everlasting night, but that on the morning of the resurrection you may shine in robes of innocence, purchased in the blood of the Lamb.

"Now, to the Court's mercy and to the goodness of God, I commend you, and conclude with this request, that immediately upon your return to prison you send for some pious divine to pray with you and assist you in preparing for the awful change that soon awaits you.

"The sentence is that you be taken from hence to the jail of the City and County of Philadelphia from whence you came and from thence to the place of execution and be hanged by the neck until you are dead, and may God have mercy upon your soul."

The same Judge, in charging the Grand Jury respecting horse racing said: "It is attended with many evils which seem interwoven in its very nature and a horse ground is a theatre and hot-bed of every vice. The spirit of gambling is infectious, and often seizes persons of ardent and impetuous temper who being once caught in the toils are seldom able to extract themselves from its enfolding chains.

"The report of a horse race spreads far and wide without the aid of a newspaper and is a well known signal for collecting together from all parts of the community sharpers and gamblers of every character and description. Thither they repair as to their native elements to practice all of the deceitful arts of their profession with great latitude and success. In short, it would be hardly possible to name the spot upon the face of the earth which combines so many means of destroying the virtue and morality of a country as a horse race." This charge has the ring of one of the messages of Justice Hughes of the Supreme Court of the United States, transmitted to the New York Legislature when he was Governor.

Another Judge, of that period, of preeminent ability was John Bannister Gibson, born on the eighth of November, in the year 1780. His father was a Colonel in the American army, and was killed at St. Clair's defeat by the Indians in 1799. His early educational advantages were very meagre, but by dint of industry and application he was enabled to enter the Junior year at Dickinson College, which institution, however, he left in his senior year, without graduation. He then entered the office of Judge Duncan, a well known lawyer of that day and after a course of study was admitted to the bar in March, 1803. He began the practice of his profession in Beaver County in this State, but meeting here with little success he afterwards went to Hagerstown, Maryland, then to Carlisle, where he built up a fair practice. He was Scotch-Irish, and had all the qualities that characterize that sturdy race of men. In 1816, upon the death of Judge Breckenridge, he was appointed his successor. Tilghman was still Chief Justice, and with Gibson as an associate, the Court became one of the most distinguished in this country. In fact, its opinions were quoted as authority in the English Courts. These two great men, without in any wise detracting from the merits of each other, formed a combination that gave lustre to the American Bench and Bar. Gibson was a tall man, about six feet four inches in height. He was warm in his manner and as simple, as frank and open as a child. He was most companionable in disposition and loved at times to indulge in the pleasures of the table. He was not, as a rule, an indefatigable worker and would not exert himself unless the occasion required it. His mind was clear, analytical and logical, and his power of expression most lucid, for