fuBRARV I SAH DIEGO us J rTsr .s vi.v Ai^riA .w AV i: ,^ i^ J K R s .-ey^ Pennsylvania in 1698 From the map in the first edition of Galiriel Thomas' account of that colony, at tlic Historical Society of Pennsylvania. Philadelpliia HIS WELSH ANCESTORS ii Wharfs, as also several large and fine Timbcr-Yards," especially, as Thomas said "before Robert Turner's Great and Famous House, where are built ships of considerable Burthen ;^ they cart their goods from that wharf into the city of Philadelphia, under an Arch, over which part of the Street is built, which is called Chcsnut-Strect- Wharf, besides other Wharfs, as High-Street [Market] Wharf, Mnlberry-Street-Wharf , and Vinc-Street-Wharf," and a few others. And what did Thomas' books say of this fringe of houses along the banks of the Delaware? "It contains above two thousand Houses, all Inhabited ; and most of them Stately, and of Brick, generally three Stories high, after the Mode in London, and as many several Families in each. There are very many Lanes and Alleys, as First, Hnttons-Lane, Morris-Lane, J ones' s- Lane, wherein are very good Buildings ; Shorters-Alley Tozvers-Lane, Wallers- Alley, Turners-Lane, Sikes-Alley, and Flowers- Alley. All these Alleys and Lanes extend from the Front Street to the Second Street. There is another Alley in the Second Street, called Carters-Alley. There are also besides these Alleys and Lanes, several fine Squares and Courts within this magnificent city (for so I may justly call it). As for the particular Names of the several Streets contained therein the Principal are as follows, viz., Walnut- Street, Vine-Street, Midherry-Street, Chesnnt-Strcet, Sassafras-Street, taking their names from the abundance of those Trees that formerly grew there ; High-Street, Broad-Street, Delaware-Street, Front-Street, with several of less Note, too tedious to insert here." The parts of all these cross-streets referred to were, of course, within two or three squares of the Delaware banks, while Broad Street was a region of country houses, not only then, but for nearly a century after- wards. Thomas admits that the place, Philadelphia, is "so obscure that neither the Map-Makers, nor Geographers, have taken the least notice of her, tho she far exceeds her Namesake of Lydia [in Asia Minor]," for he asserts that she has "Two Thousand Noble Houses for her Five Hundred Ordinary" ; but he expressed the belief that she would shortly "be a most Celebrated Emporeiim." ' Turner, Growden and Cook were leaders in the colony and served in both Assembly and Provincial Supreme Court. 12 ELLIS LEWIS The past ten years had done much to hasten that consummation, and ElHs Lewis, on landing, as he may have done some time in August, 1708, saw evidences of many improvements. For one thing, plans were on foot for the first Court house at the top of the hill in the center of High (now Market) Street, at Second, not far from the woods ; for at the April meeting of Governor Evans' Council it had been denounced as a shame that "Here, in the Capital town of Govrmt., the Magistrates are obliged to hold Courts in an ale house" !^ And even the Assembly, which was in session this very month, with their great leader, David Lloyd, as Speaker, leading them in a contest, which, before the leaves fell in autumn, would secure the replacement of Evans with a new Governor, was compelled to meet in a private house, as it had since the beginning, most of the time in Front Street.- This was no serious matter though, for the legislative body had only twenty-six members from the three counties, so that its quorum was often scarcely a score. Even the Provincial (or Supreme) Court, which held its sessions in all three counties, had no better accommodations in Philadelphia ; but neither was this any great matter, for their meetings were few, short and far-between, as the Assembly had been fighting for nearly a quarter of a century to establish its judiciary system by law, and Judges often refused to serve at all.^ Lewis, however, did not purpose living in Philadel- phia. Thomas had said that "in this Province are Four Great Market-Towns, viz., Chester, the German Tozvn, New Castle, and Lewis-Tozvn" — the last two, of course, being ill what is now Delaware. "Between these Towns," said Thomas, "the Water-Men constantly Ply their Wherries; Likewise all those towns have Fairs kept in them, besides there are several Country Villages, viz., Dublin, Harford [Haverford], Merioneth [Merion], and Radnor in C ambry; all which Tozvns, Villages and Rivers took their names from the several Countries whence the present Inhabitants ' Colonial Records, Vol. II, p. 409. -Mease (181 1), in his "The Picture of Philadelphia," page 318, intimates that the sessions were held in private houses in Front Street even after the court house was finished. ^ One of the most serious troubles of this date was the power of any plain- tiff or defendant to get a "corner" on the lawyer supply. A complaint was niade before the Governor's Council in April of this year that Judge Growden himself had done so, but he denied it — said he never employed but one. Prepared from original sources by the aullior. (see footnrte, patje 18) HIS WELSH ANCESTORS 13 came." And it was the village of Haverford where his Uncle Rowland Ellis lived that was apparently the first objective of Ellis Lewis. ^ Just where he lived for the next five years does not appear, although it was near Concord after the first year ; but it is known where he finally settled, and that about his old home still hangs a famous tale. Even while in Mount Mellick he must have heard, or even read, if he had chosen to look up the records of their "Meeting," how one of the leading men, Nicholas "Newlands," as they wrote it, or "Newlin," as he himself preferred, had, in February, 1683, been reluctantly granted a certificate of removal to Pennsylvania because he coveted more "worldly libert}'" than Ireland afforded ; and that he and his twenty-three-year-old son Nathaniel had gone there with the family. Lewis must have heard how, after Penn left, he was a member of the Provincial Council, lieaded by Thomas Lloyd, for almost three years (1685-87) ; how he was a Justice of the Chester Courts and a man of great wealth ; how, after his death, his son. Nathaniel, had become equally influential — a member of Assembly several times, and even this very year of special interest, 1713, he was one of the able supporters therein of his fellow-member from Chester and powerful leader, David Lloyd.- Lewis must have recalled how Newlin had been a member of the stormy Assembly of 1700, with Rowland Ellis and others, when a new "Frame" or constitution of government was desired by the Assembly, and how Newlin was made a member of the committee to draft it.""* And Lewis became a frequent visitor at the brick residence of the Hon. Nathaniel Newlin at Concord, ' Young Lewis had lost his father before 1700 and his mother, Mary, had married Owen Roberts. The family seems to have all come together and. like Rowland Ellis, settled in Gwynedd. H. M. Jenkins, in his "Historical Col- lections of Gwynedd," gives a letter of 1-16 addressed to Owen and Mary Rob- erts by Benjamin and Ann Mendenhall of Concord, in which Ellis Lewis is referred to. Kllis Lewis' mother was alive in 1732-3, as she is mentioned by him in his first will of that date, an instrument which was in 1894 in possession of Thomas PL Darlington of West Chester, according to Futhey and Cope's history of Chester County. - The votes of .Xssembly of 1713 show Newlin to have been the usual choice, with one other, to notify the Governor of various desires of the Assem- bly; while David Lloyd was usually chairman of important committees for drafting laws or addresses. Ellis Lewis is said by Futhey and Cope, p. 669, to have moved within the bounds of Concord Meeting in 1709, the year after his arrival, where the Mendenhalls and Newlins both owned much land. See Smith's Atlas of Delaware Countv, map 5. •' Votes of Assembly, Vol. t, p. 123. Newlin was afterwards one of the Proprietary's Commissioners of Property and a trustee of the Provincial Loan- OfHce. He later became owner of a 7.000-acre tract of land which, as a town- ship, still bears his name. Futhey and Cope's History, p. 669. 14 ELLIS LEWIS because, being a bachelor of thirty-three years, he had conchided that Miss EHzabeth NewHn, some seven years younger, sliould become his wife.^ After their marriage at Concord Meeting in 1713, they lived but three years near Concord, and finally settled at Kennett, where, among other children, the last child, a third son, was born May 22, 1719, and given his own name, Ellis Lewis, junior.- This child hardly emerged from babyhood before he lost his mother, and on the nth of March, 1723, his father was married again, this time to the Widow Mary Baldwin, at Falls Meeting in Bucks County.^ Mr. Lewis had no children by his second marriage, but he must have been prosperous. He owned a mill, and when they had been married four years a home was built opposite on the hill, which has become famous the world over wherever "The Story of Kennett" has been read.* Indeed, Ellis, junior, might have had many of the experiences of Taylor's hero, Gilbert Potter. "The house," reads the novelist's very accurate description, "built like most other old farm houses in that part of the county, of hornblende stone, stood near the bottom of a rounded knoll, overhanging the deep, winding valley. It was two stories in height, the gable looking towards the road, and showing, just under the broad double chim- ney, a limestone slab, upon which were rudely carved the initials of the builder and his wife, and the date ^1727.' A low portico, overgrown with woodbine and trumpet-flower, ran along the front. In the narrow flower-bed, under it, the crocuses and dafifodils were beginning to thrust up their green points. A walk of flag-stones separated them from the vegetable garden, which was bounded at the bottom by a mill-race, carry- ing half the water of the creek to the saw and grist mill on the other side of the road. Although this road was the principal thoroughfare between Kennett Square and Wilmington, the house was so screened from the observa- ^ Miss Newlin was born March 3, 1687, or, in old form, ist mo. 3rd, 1687- 8. Futhey and Cope, p. 669. " Conner's "Pedigree." "There were four children: Robert, born March 21, 1714; Mary, on March 6, 1716, and married to Joshua Pusey; Nathaniel, born December 11, 1717; and Ellis, junior. Futhey and Cope, p. 635. ■* The Story of Kennett, by Bayard Taylor. The Putnam edition of 1902 lias a view of this house on the cover. The description is on pages 23-4. The Lewis House, Kennett Square HIS WELSH ANCESTORS IS tion of travellers, both by the barn and by some huge, spreadinc^ apple-trees which occupied the space between the garden and the road, that its inmates seemed to live in absolute seclusion. Looking from the front door across a narrow green meadow, a wooded hill completely shut out all glimpse of the adjoining farms; while an angle of the valley, to the eastward, hid from sight the warm, fertile fields higher up the stream." And here Ellis Lewis, junior, spent a large part of his 3'outh ; not all, indeed, for he was of an adventurous spirit, and required even more "worldly liberty" than his great-grandfather, Nevvlin. When ten years old he might have heard how the Assembly at Philadelphia, presided over by the venerable Chief Justice, David. Lloyd — his last service as Speaker — had objected to the great influx of "Irish Papists and convicts" into the population and, as they believed, the consequent dis- orders ; and of how the increased population necessitated an increase of paper-money — 50,000 pounds, the Assem- bly thought, and 30,000, Governor Gordon believed ; how the new settlers in "upper Chester County" — the "upper Parts of the Province of Pennsylvania, lying towards Sasquehanna, Concstogoe, Donncgal, Sec," asked for a fourth county, and how the Governor, while claiming that he had the right to create counties and cities, yet yielded to the Assembly because it would involve new members in that body; how it was passed on May 10 (1729), and the new county beyond the Octoraro and Schuylkill to wherever the Province might end was to be called Lan- caster. He may not have known, however, that no Indian lands had been secured west of the Susquehanna, and probably none Init traders thought of settling so far into the wilderness.^ But, seven years later, late in 1736, 'Votes of Assembly, Vol. Ill, pp. 69-71; and Hall and Sellers Laws of Pennsylvania, 1700-75, p. 152. For maps, etc., illustrating Indian purchases see "The Life and Times of Thomas Smith, 1745-1809, a Pennsylvania Member of the Continental Congress," by Burton Alva Konkle, p. 28, et al. The accom- panying map of the original Lancaster County is the first made, so far as the author is aware. The vagueness of outline is due to the fact the settle- ments were within the last Indian purchase of 1718, and the law did not allow settlement beyond. The county legally extended, however, to the lim- its of Penn's colony grant. The terms of the boundary part of the act arc inter- esting: "Be it enacted by the Honourable Patrick Gordon, Esf|., (lovcrnor of the Province of Pennsylvania, I'ic, by and with the advice and consent of the Freemen of said Province, in Assembly met, and hy the Authority of the same. That all and singular the Lands within the Province of Pennsylvania, lying to the Northward of Octcraro Creek, and to the Westward of a Ime of marked Trees, running from the North Branch of said Octoraro Creek, Northeasterly to the River Schuylkill, be erected into a County, and the Same is hereby i6 ELLIS LEWIS when he was a young man of seventeen or eighteen, and he had no doubt heard how many venturesome settlers had crossed the Susquehanna into Indian lands and caused so much trouble both with the Indians and Mary- landers that a council just held in Philadelphia had bought more titles to land all the way back to the "Ke- kachtanium Hills" and now the lands were open.^ The exodus for the new lands particularly enlisted the new German, Irish and Scotch settlers, and the young men of the old counties, notably Chester, and young Ellis Lewis joined a company composed of Thomas Hall, John McFesson, Joseph Bennett and John Rankin. They were on horse-back, and when they came to the Susque- hanna found no mode of crossing but canoes ; but Ben- nett, Rankin and Lewis, who seemed equal to all emergencies, fastened two canoes abreast, placed the horses' fore-feet in one and the hinder feet in the other, and succeeded in transporting their animals to the prom- ised land! They finally reached the virgin valley just over the hills below John Harris' trading post and ferry, now Harrisburg, and staked their claims on the red soil and underlying red rock of what they, in consequence, named the Red Land Valley. As Bennett seemed to be the leader of this trio of adventurous spirits, the creek in the midst of it was given his name." As the seasons passed, the Red Land Valley got rather more than its share of westward settlers, as it was a great favorite with Chester County Friends, who added to its population nearly every year. And about eight years later, when Ellis Lewis had become a man of twenty-five, he went back to the old Birmingham Meeting, northwestward of Concord, where, on April erected into a County, named, and from henceforth to be called Lancaster- County"; and these lines with the Schuylkill were to be the boundaries be- tween it and Chester and Philadelphia Counties. The Italics are the author's. ' Colonial Records, Vol. IV, p. 88. These are the Kittatinny or Blue Mountains. ^ History of York County, by W. C. Carter and A. J. Glossbrenner, 1834, p. 28. Ellis Lewis, Senior, lived at the old place at Kennett until 1749, when he "went to the city" — Wilmington — and died there the next year, on August 31 (1750). (Futhey and Cope, p. 635.) His will was proved at New Castle on October 29th following (Book G., Vol. I, p. 430), and is now at Wilmington in the Register of Wills' office. His property was equally divided between his four children, after certain provisions for his wife, his brother's children, and two cousins, daughters of Rowland Ellis. Lewis bore out in life-long character the indications of his youth, as "a man of good understanding" and long an elder of Friends. He was buried at Kennett. The old place was advertised for sale in the Gazette by Ellis, the son of his eldest son, Robert, shortly before the Revolution. Prepared from original sources l)y the autlior HIS WELSH ANCESTORS 17 25th (1744), he secured a wife, in the person of Ruth, the daughter of John Wilson, and made him a home of his own in the beautiful Red Land Valley of imperial Lancaster County.^ The following year he took a cer- tificate to the Sadsbury Meeting in that county, it Is said, and the records of some of the meetings of which he became a member show that he required a "worldly liberty" in "high living," to which the Friends objected, especially in the use of "liquer" — not an uncommon incident of frontier life of that day.- He was an important man of his community, and in later years became a trustee of the school in Newberry Township, and a man held in high esteem, but it was years before he gave up "high living."'* He had been married but five years, when the growth in the vast county of Lancaster beyond the Susquehanna was so great that in the summer of 1749 he joined the other settlers in the region between the South Mountain and that river who appealed to Governor Hamilton and the Assembly, then at the new State House in the western part of Philadelphia, where Chief Justice John Kinsey, like David Lloyd, before him, sat as Speaker, and Benjamin Franklin was Clerk — urging the creation of a fifth county, to be called York. This course stirred the people in the Cumberland Valley beyond them to demand a sixth county. The one was granted in August, and its boundaries limited as above indicated, but the other, Cumberland, was created the following January and contained the remainder of the former imperial domain of Lancaster to the bounds of the province — "bounded northward and westward with the line of the province," says the act itself, "eastward partly with the river Susquehanna, and partly with the said county of ' Concord Meeting Record, \'ol. I, p. 159. ' The records of the Warrington meeting show that "liquer" was used in the harvest field, but it was a serious matter to get "light-headed." One of his two old friends tried to avoid sunstroke in this way and explanations were required. Warrington Monthly Meeting Records, 1747-1856, p. 2. ■'• This "high living" must be interpreted in the light of severe Quaker spirituality, and not other than the side-board customs of most leading families of that day. It was a species of "worldly liberty." He took his letter back to Kennett in 1753, and Kennett, after disowning him for a time, gave him a cer- tificate in 1770 to Warrington Meeting on his giving up his "worldly" tastes. The records show that he was an exemplary Friend ever afterwards — events which have no small bearing on the rest of this narrative. Abstract of War- rington Monthly Meeting, 1747-1850, p. 321, and also other records. i8 ELLIS LEWIS York, and i)art by the line dividing the said province from that of Maryland."^ Not far from the time when the news spread over the province that the aged Quaker leader, Chief Justice and long-time Speaker of the Assembly, John Kinsey, was stricken with apoplexy one day while visiting in Burlington — an event that heralded the downfall of Quaker control in the government of the province — Air. and Mrs. Lewis had born to them a son, whose advent occurred the last day of January, 1756, and whose name was Eli.- When he was about four years old his mother got a certificate to Warrington Meeting for herself and young Eli, and the young man grew up in the little settlement about his home, which was finally to bear his name. Like his father before him, when he was about eighteen years old, and the first rumblings of the impending trouble with the mother-country arose, young Eli went to Philadelphia, the place, no doubt, where he learned the printer's trade, which Mr. Franklin had been making so popular and powerful.^ He appears to have been there about a year and a half (at least that is the period between his certificate of removal and re- ^ Dallas' "Laws," Vol. I, p. 330. As the original bounds of Philadelphia and Bucks Counties bear upon these boundaries, it may be stated that the original three counties were only vaguely indicated by Penn in a private con- versation with Surveyor Holmes, who put them upon his map with equal vague- ness of county, though not of township lines. Gilbert Cope says "it is said" that this was done November 25, 1682, but he knows no authority for it. This was the pviblic understanding also, for so late as April, 1685, "several members of Councill" witnessed that the Governor had said that "Poaquesson Creek" with Southampton and Warminster Townships, "and thence backward" was, and they declared, should henceforth be the Bucks-Philadelphia line, and one of the counsellors was Nicholas Newlin, himself. As to Chester, "Symcock" and Wood witnessed that Penn had told them "Bough Creek," at upper end of Tinicum Island, to Mill Creek, etc., making the irregular line to the Schuyl- kill, now so well known, and the said Schuylkill "afterwards to be the natitrall bounds." (Col. Rec, Vol. I, p. 126.) Even in March, 1689, the matter was up again in Council, who seemed to be ignorant of such a vital matter. They took deposition and Thomas Usher, Chester's sheriff, told why Penn wanted the Philadelphia line to go beyond Schuylkill, namely, because robbers could get away from the city too easily. He also said Penn intended to enlarge the county down to the Brandywine. Council stood by the record of 1685, after they found it! Therefore the projection of the Bucks County southerly line to the limits of the province completed the original bounds of Bucks County; and the Schuylkill source would be the end of the line of separation between Chester and Philadelphia, beyond which they would merge until it became necessary to define them. (lb., p. 263-4.) - They had but one other child— Ellis, who died some time previous to his father's death, the latter event occurring between December 28, 1794. and Feb- ruary 16, 179s, at the age of nearly seventy-six years. Abstract of York Wills, p. 299. » He was given a certificate to the Southern District of Philadelphia the 8th of January, 1774, and returned one June 10, the following year. Abstract of Warrington Records, p. 321. A quaint old home-wrought pocket-book was made for him in 1774, with the year and his initials worked in them, presented no doubt for this journey. It is now in possession of Miss Josephme Lewis, Philadelphia, and contains the parchment certificate of marriage of the first Ellis Lewis to Mary Baldwin. HIS WELSH ANCESTORS 19 turn), but when it became evident in May (1775) that the Assembly was to join the Continental Congress, and were beginning to break with Governor John Penn, he got his letter before the June meeting of the Assembly and was back in the Lewis settlement of Red Lands Valley by the loth of the latter month. Now, his father, Ellis, had five years before abandoned all desire for "worldly liberty," and, as far as can be known, was, like most Quakers in York County as well as elsewhere, opposed to war and the taking of oaths as much as the free use of "liquer." So young Eli had a painful choice to make when the Associators began organizing that autumn, and it became evident that in that respect he would require "worldly liberty." Events moved rapidly. Two companies had already been formed in York County before he came home, and imme- diately after his return the summer was noisy with Associators and militia organizations. L^nfortunately there seems to be no record of his course in 1775-6, but he must have had even modest part in military prepara- tions, for in 1777, when operations against Philadelphia aroused the State, he was, on October ist, commissioned Major of the First Battalion of York County Associa- tors, and it is said that he took part in the battles of Brandywine and Germantown, becoming a prisoner either then or soon after in the old Sugar House in Philadelphia.^ He must have been soon released on parole, for several months before the evacuation of Philadelphia he was at Wilmington, Delaware, and in Maryland, in which latter State he writes a very cir- cumspect letter on January 29, 1778, to his father, be- ginning with "I have more leisure and opportunity to write more largely than heretofore." He wrote again from Wilmington, when he said, "I continue making cards.- We have no news in town, but what the Papers relate. In which the accounts of the Indians are * Pennsylvania Archives, Vol. XXIII, p. 464, in a "Miscellaneous List of Revolutionary officers," for the commission only. He is said to have had command of protection of line of supply train. ^ As a printer, he was in all prohability making visiting cards, which, according to custom, were playing cards with tlie person's name printed on the plain white back. Cards of this kind can be seen at the Pennsylvania His- torical Society. John Paul Jones had such cards, the backs having a border and his name printed thereon. The author has a photograph of the latter card kindly furnished by Mr. Uringhurst, of Wilmington. Wool-carding machines were also made at that city, but the probabilities point to printing as his occupation. 20 ELLIS LEWIS very Terrifying, But perhaps your accounts from them are more favourable. Since I wrote last I saw an inhabitant of York Town who gives me a more favour- able account from there than I expected to hear. There has been strange overturnings in the face of things beyond what many who were accounted people of reflec- tion imagined" — no doubt referring to the evacuation of Philadelphia by the British in June, as he was writing "August the 9th, 1778." "A considerable succession of Events," he continues, "seems to convince many that Providence is about to Establish an Empire in our Western World, Nor think It strange when the History of every Age From the Confusion of Tongues to the present time furnish us with Instances of the like kind. God has ever appear'd to have This grand design in view, to wit : the Debasing the arrogance and taking away the self dependance of his Creatures and sub- stituting Humility and a Reliance on his divine [not plain] in their Place. England and xA-merica United were growing the terror of the world and a spirit of Arrogance and self-sufficiency was dayly increasing in their Councils. Then Why should it be strange that God in his wisdom should separate them, and play their Pride and arrogance against each other till that they shall know that the Most High ruleth in the Kingdom of men and sitteth up and pulleth down according to his pleasure. And surely there is no government better calculated for the good of mankind than that of Provi- dence whether immediate or instrumental. Then Let us since he ruleth in the Kingdom of men setting up and pulling down at his pleasure submit with a cheerful willingness to that government that he is pleased to set over us, for however the condition we are in may appear to thwart our Natural Inclination let us rest assured that if it is the choice of providence it is best for us — I shall just conclude these remarks with a few lines from Pope which I always much admired, viz. : "All Nature is but art unknown to thee All Chance Direction which thou can'st not see All Discord Harmony not understood All partial Evil Universal good In spite of pride in Erring Reason's sight One Truth is Clear — Whatever is is Right." HIS WELSH ANCESTORS 21 He adds that he expects to be home by autumn, a plan which was no doubt accomplished, for he was in "New- bury" the following year.^ On the 14th of July of the latter year, he writes to a friend in Chester County, saying: "Having an oppor- tunity I think safe by way of Goshen, I shall embrace it with satisfaction. Thine by T. Kirk I had the Pleasure of receiving Being glad to hear of thy Welfare and that I am still held in Remembrance by a friend I much esteem What Reason thou hast to believe Me thoughtful about engaging in that Weighty affair of Marriage, I am unacquainted, but as I don't approve of being over delicate I am free to own It is a subject that has engaged many of my thoughtful hours" — and more follows on the philosophy of this institution in a vein as old as the divine passion itself. He is much exercised though because "the Times are so precarious," and cites two cases of broken engagements of interest to his friend ! His plans culminated two months later, for on the ilth of September he requested a certificate to Newgarden Meeting to marry Pamela W^ebster, which request was granted on October 9th, and they were married on the loth of the following month. - Major Lewis was a comparatively wealthy man for such a community and his merchandise store was the nucleus of a rising village. His example was therefore a matter of serious concern to devout Quakers, and when the war was fully over, the various meetings brought the numerous warrior Friends to account. "Newberry" Meeting brought before the Warrington Monthly Meet- ing the military record of Major Lewis and his taking of the test oath demanded under the State Constitution of 1776. They complained that he neglected meetings, "attending an Election for the Choice of Military officers, setting up for a Colonel among them, also attending a muster." The Warrington Meeting, after considering it until April 10, 1784, disowned him. He indicated later to them that he intended to appeal to the Quarterly Meet- ing, and was in no mood to view his course as wrong ' Letters in the possession of A. E. Lewis, Tr., Washington, D. C. * Her father was John Webster and her motner Jane Brinton Webster, who was a descendant of the first William Brinton, who was a member of the As- sembly as early as 1703. Warrington Records, 1747-1856, p. 322, for marriage certificate grant. 22 ELLIS LEWIS at this period, at least. The appeal did no good, how- ever, and he entered with even greater enthusiasm into patriotic and political movements, as a disowned Friend, or as the world at large would denominate him — "a fight- ing Quaker."^ ' Warrington Records, as before, p. 323, and the Quarterly Records, p. 181, in abstract at the Pennsylvania Historical Society. CHAPTER II His Father, Major Eli Lewis, Founds the First Newspaper at Harrisburg, and the Boy, Or- phaned AT Nine Years, Becomes Printer's Apprentice on the Same Paper 1788 The presence of the capital of the United States in York County during the revolution and the State capital in Lancaster at the same period had no small influence on political thought in central Pennsylvania then and long afterwards. Franklin's Gazette had been printed at York at the same time and it is not surprising that, under the circumstances, when, in 1787, M. Bartgis and T. Roberts started a paper in York called The Pennsylva- nia Chronicle and York Weekly Advertiser, Major Lewis, whose very letters show some literary ability and who had some experience in the printer's art, should have become interested. He was a devoted Federalist, and during the following summer he rallied his friends in Newberry Township — "The Tribe of Eli" — as they were called in the Chronicle, in support of the new National Constitution.^ With the final adoption of this great instrument came the jubilation all over the land with procession and song. Major Lewis wrote a "Federal Song," which was set to music by the local music teacher, Edward Tyler, and after the parade and toasts, at York borough, it was sung by a chorus accompanied by hautboys. "No more shall anarchy bear sway. Nor petty states pursue their way, But all united firm as one, Shall seek the gen'ral good alone. "Great Washington shall rule the land. While Franklin's council aids his hand." ' This term "Tribe of Eli" was used of him in an election of 1789 for sheriff. His own name was on a ticket for the Assembly, but he failed to be elected. 23 24 ELLIS LEWIS "The gilded toys of Europe's shore Shall rob us of our wealth no more, Imposts their dang'rous progress stop And premiums bear Industry up. "Great Washington," etc. "The wasted soil its strength renews. Collecting from the rains and dews; With proper tillage stronger grows. Such skill true agriculture knows. "Great Washington," etc. "The Arts of Peace shall flourish here, Nor slavish nations interfere; At home as thirteen states we're known, While foreign courts shall feel us one. "Great Washington," etc. "Thus Halcyon days shall bless our life, And party rage forget its strife. Like children of one parent still. Under one vine and fig-tree dwell. "Great Washington shall rule the land, While Franklin's council aids his hand."^ IMeanwhile the Chronicle and Advertiser at York was about to have a rival, which was started scarcely six months after the above song appeared, namely in Janu- ary, 1789.^ This may have been encouraged by the fact that the owners of the Chronicle plant proposed to move to a new and growing center of great interest, not far away on the Susquehanna beyond the Red Lands Valley. Old John Harris at Harris' Ferry and his son, John, junior, were able and ambitious men. His stone resi- dence on Front Street had been overlooking the Ferry and the mountains beyond ever since 1766, and a settle- ment had grown up in the beautiful situation, whose attractiveness had been witnessed to in the journals of Mannasseh Cutler and John Penn within two years past. He had secured creation of a new county of Dauphin (in honor of public feeling for the King and Dauphin of France) on March 4, 1785, and laid out a town called Harrisburg and secured it for the county seat, altho' it is said Chief Justice McKean, through some pique toward Harris, attempted to name it Louis- bourg, in honor of Louis XVL^ Furthermore, his ambi- ' This appeared in the Pennsylvania Packet of Philadelphia of Tuesday, .August 5, 1788, with a full account of the proceedings. 2 Gibson's York County, p. 378. * Dr. Egle's History of Dauphin County, p. 297. MAJOR ELI LEWIS AND THE PRESS 25 tion extended not only to niakinp; of his town a county seat, hut even a State, and, wliat is more, the National Capital as well ! On August 25th of this very year, 1789, Senator William Maclay, Mr. Harris* son-in-law, presented in the First Congress at New York several Pennsylvania sites for the proposed National Capital, and among them Harrishurg.' It was ahout this time that the York Chronicle's plant was moved over to this ambitious town by its owners, T. Roberts & Company, and there is every reason to believe Major Eli Lewis was one of the "Company." At any rate they issued, later in that month, the first number of The Harrisburg Journal and The Weekly Adi-crtiser, and on the 9th of September issue No. 3 appeared, containing a poetical effusion entitled "liARRisnuRt; Explaixed, in the following petition," under the pcn-namc "Cives," which, in all proba- bility, was Major Lewi^ : "Whereas it is of consequence, Congress should fix its residence — That seat of honor and renown, Call'd long since the 'federal town'; The people now of Harrisburgh, From a conviction not absurd That there's no other situation, Can equal this in all the nation; Your honors do must humbly pray. To make it your abode for aye" — after which Harrisburg is "explained" — i. e., described in a spirit of jollity and hopefulness.^ Within a year the paper was bought out entirely by Major Lewis and a Mr. Prague and the name changed to The Harrisburg Monitor and Weekly Advertiser about September, 1790.^ Unfortunately no file of Major Lewis' paper is known to exist, but somewhat over a year later, a few weeks after the defeat of St. Clair by the Indians in the Wabash country on November 4, 1791, he wrote an extended poem on that theme which was published in pamphlet form during 1792. Its title page read: "St. * Annals of Congress, ist Congress, 1789-1791, Vol. I, p. 71. * This issue. No. 3, is preserved at the Pennsylvania Historical Society. Mr. George R. Prowell, of the York County Historical Society, has a copy of issue No. 20, the only copies known to the author. ' In the Philadelphia Inquirer of April 19, i860, a writer says he has before him the 20th number of The Harrisburg Monitor and IVcckly Advcrliser, under date of February i. 1791, published by Lewis & Prague, and that the senior editor was Major Eli Lewis. No copy of this has yet been discovered by the author. 26 ELLIS LEWIS Clair's Defeat, a Poem by Eli Lewis," with the following couplet : "A tale, which strongly claims the pitying tear, And ev'ry feeling heart must bleed to hear." Below is the legend : "Harrisburgh. Printed iMDCCX- CII."^ It opens as follows : "Inspir'd by grief, to tender friendship due, The trembling hand, unfolds the tale to view — A tale which strongly claims the pitying tear. And ev'ry feeling heart must bleed to hear But chiefly ye, the keenest pains shall know. And fiercest sorrows in your breasts shall glow ; Where fates, severe, their bitter draughts impart, And burst the cords of nature from the heart, Nor less, Lavania, shall thy bosom feel. Where suffering love, its scorching wounds conceal ; While custom's laws, unfeeling and severe. To grief-charg'd hearts, deny the soft'ning tear" — Then follows a symbolic picture of this chapter in the tragedy of the race war in the West, and this expressed for many a home in Pennsylvania the hideous reality that was only too keenly felt : "Thro' clustering beech, whose boughs obscure the day, A fearless band pursue the devious way. And 'midst this dark, impenetrable wood St. Mary's river rolls her silent flood. There boding Horror stalks around her cell. And beats responses to the savage yell. 'Twas her's, the cheerful walks of life to shun And hide in vales, sequester'd from the sun. Where prowling wolves and fearless panthers roam. And savage men, more dreadful, make their home. These with unwearied footsteps trace the wood, And thirst insatiate, for revenge and blood, Strangers to fear — by burning rancour led, Their hostile bands had wide destruction spread. Where infant arts had just begun to dawn. And smiling verdure deck'd the cheerful lawn. These Horror once had chosen for her own. And with exulting shouts her choice made known. The sounds, terrific, beat the trembling air. And savage yells, their loud assent declare. To check their inroads, and relieve the land. The great St. Clair led out this warlike band. These Horror saw, as late encamp'd they lay, And ghastly smiling, mark'd them for her prey. Swift to her savage sons the Daemon strode, ^ The only copy of this booklet known to the author is the one in the library of the late Dr. W. H. Egle of Harrisburg. A manuscript copy is in possession of Miss Josephine Lewis of Philadelphia. MAJOR ELI LEWIS AND THE PRESS 27 And call'd a council in the dark abode. Her standard, scarce unfnrl'd, salutes the air, 'Till round the Fiend her warlike host repair, From distant woods, from lands to fame unknown, Where hateful malice, seeds of strife had sown; By warlike chiefs, to blood and murder bred. The hostile tribes of various lands were led. These crowd her standard on the extensive plain. And o'er their arms with lix'd attention lean. Whilst thro' the various tribes she cast her eyes. High o'er their heads the tluttering banner flies; Of tyger pelts, from Lybean mountains brought. With curious art, the wondrous Hag was wrought, Phosphorean dies, the living figure mark, Which glow the liveliest in the deadliest dark. Around the edge, a range of circles shows. Each fill'd with some device of human woes — Here to a sapling seems a victim bound; While slow-consuming fires enclose him round, And while their tort'ring flames the suff' rer feels. Thro' every pore the wasting spirit steals. There to a stake another victim stands, Stuck thick with arrows from infantile hands. Whose hands, too weak to deal a deadly blow, But feebly urge the arrow from the bow; With force enough to pierce the outer part, But leave uncheck'd life's current round the heart. Next shows a maid in pride of beauty crown'd, Whose tender hands to distant stakes are bound; In either breast a bunch of pine splints glows, Which quick consumes the lily and the rose. That just before upon her face contend. Which most their stains with pleasing grace should blend. And e'er fond life will cease its scat to claim. In each fair socket sinks the scorching flame. Deep piteous cries her crisp burnt lips impart. And late — late — burst life's cords about her heart. Next sits a mother held by savage hands, Whose grief-burnt heart all friendly tears withstands; Before her eyes, upon a lance is borne Her lovely babe, just from her bosom torn; Fierce inward pains all tort'ring powers defy. And prompt her soul their strongest force to try ; She raving dares the hottest flames deride. And, with her taunts their tardy progress chide ; But hearts like theirs all tenderness defy. Her life they spare, because she seeks to die. And thus around the num'rous circles show The various tortures of the savage foe ; With all the height'ned coul'ring Fiends cou'd give, Or, hell-taught artists prompted minds conceive. The field within a curious landscape seems, Whose fertile space with wond'rous prospects teems. The scene, no doubt, which gave the Daemon birth, When the arch Fiend led all his legions forth To, vainly, combat with th' immortal sire, 'Till his just rage enwrapt them all in fire. Where by fierce flames in circling whirlwinds hurl'd ELLIS LEWIS Around the coniines of th' infernal world, With wild confusion all the host is driven, While fate, eternal, bars their way to heaven. As round her sons she cast her gleaming eyes, Infernal joys within her bosom rise; Forth from her lips the issuing accents broke, Hell heard with joy and list'ned while she spoke. 'Adopted sons — my last — my chiefest care, For whose success I toil nor watching spare; From scenes of peace, of order and of love, I flew to you, these gloomy haunts to prove; Where hollow beech their rugged branches spread, And boding owls sit croaking o'er the head ; Where fearful ghosts are mix'd with ev'ry breeze. Whose doleful shrieks pierce awful thro' the trees. To you I come. Then hear a mother's charge, With deadly venom let each breast enlarge. Behold our foe— see Order's sons appear, And by yon stream their waving banners rear. Should they succeed, these doleful haunts no more Shall yield us pleasure as in days of yore; But o'er this wide resort of wolf and bear. Will yellow fields and deep green meads appear. Then where — Ah where! Shall we, my sons, retire? In what dark wood shall blaze our lonely fire? Nay, sooner shou'd dark chaos spread her reign And night eternal her lost empire gain. Surround the foe, while these dark shades prevail, And at my signal all their force assail. My voice shall rise — Your yells shall mix with mine, And kindred daemons the loud chorus join." In hollow caves the fearful murmurs groan, And Order's sons its chilling power own. They hear — obey — and instant take their stand, And silent wait on Horror's loud command. Her standard lifted wide expands in air, And thro' the night the living colours glare. This Order's sons beheld, bright, gleaming far, And silent wait the dark, eventful war, Yet firm resolved, in conquest or in death. To keep their honor with their latest breath. In this dread night, where Horror's pow'rs combined To crowd with painful thoughts each feeling mind, Portentous dreams obtrude on Lev-ret's breast. As 'gainst an oak, in arms, he lean'd for rest. Fair, soft and pleasing as the op'ning dawn. Beheld by shepherds o'er the extensive lawn, Lavina's form came issuing from the wood. And full, to view, before her lover stood. As lightning swift, he flees to clasp the fair, But the lov'd phantom wide desolves in air, And such, alas ! Shall all thy prospects prove Thy long try'd faith in firm, unshaken love, And thou to savage foes resign thy breath, Securelv lodg'd in the dark caves of death ; Where no returning day the soul regales, But one long night eternally prevails, Where doors are lock'd by dark Oblivion's seal. MAJOR I'lLI LEWIS AND THE PRESS 29 And nicm'ry more no past events reveal. And now the gloom of night begins to fade, And bright'ning dawn is o'er her curtain spread; When watchful Horror, as the day appears. Beneath her Hag her tow'ring head uprcars. Thrice pierc'd her eye with t'lercc and dreadful glare, And thrice her wide expanded lungs inhale the air. When burning Etna, by some earthquake rent. Admits her fires where close the air is pent. Th' expanding element all force defies, And floods of lava spout against the skies ; So from her breast where hateful malice burns, With ten-fold rage, the heated air returns, The savage yells mix with the dreadful sounds, 'Till owls' hoarse croaks the dying echo drowns. Stern slaughter then came stalking thro' the woods, With gleaming eyes and hands bcsmear'd with blood. On every side the sons of Order fall. And Horror soon thro' all their lines prevail. Long, long th' unequal conflict was maintain'd. And the wide wood with human blood bestain'd. Here, gallant Butler, ripe in glory, fell. With more whose names some abler muse will tell. Here, Kelso, too, amidst this tragic strife, Cut early oflf from opening scenes of life; Whose generous soul each manly virtue crown'd. Lies a cold corpse upon the blood-stain'd ground. And e'er the brave St. Clair the day will yield, Full half his army dies upon the field. But most for thee, to love and friendship dear, Lamented Anderson descends the tear, While love and virtue thy sad fall bewail. And glowing friendship sickens at the tale. Ye tender minds which rending anguish tear. Immoderate grief for fallen friends forbear. Since hand unseen our secret actions guides, And o'er the walks of restless life presides. In this, submit to heaven's supreme control, And peace once more shall smile upon the soul. FINIS. Whether Major Lewi.s became convinced during- the year that Mr. Harris' ambitious hopes for his Susque- hanna town were not to be reahzed, or whether, indeed, he intended his family should live in Harrisburg at all, is not known. It is known, however, that late in the year, October, 1792, he sold his paper to Allen and Wyeth, who, as was the custom, changed its name to that of The Oracle of Dauphin and Harrisburg Advertiser, issue No. 3 of which appeared on the following- November 3d. The new proprietors announced that they "wanted" "Ai> Apprentice to the I^rinting business, a stout, active lad, well recommended, and having a good education," who would "be taught the art of printing at the office 30 ELLIS LEWIS of the Oracle'"^ — a want, by the way, that was to be felt more than once in the years following, and one which had much to do with the career of at least one of the late editor's family. Major Eli Lewis returned in due time to the Red Lands Valley and the old home, the birthplace of his children. At this time he had six children, the eldest of whom, Dr. Webster Lewis, became a physician of considerable ability. Two more were born in the next four years, one of whom, James, became a success- ful lawyer, and to his artistic tendencies is due two amateur efforts at portaits of his father and mother, Major Eli and Mrs. Pamela Lewis, which are reproduced herewith.- The year 1798 was a notable year with Major Lewis, for it became evident to him that the increased settle- ment about his country store warranted the laying out of a town. He procured the services of his neighbor. Surveyor Isaac Kirk, and forthwith a village was platted and christened Lewisberry, and it grew with a prosperity that many years later led to its incorporation. It would be interesting if one could state, beyond the possibility of a doubt, that this town was created in honor of the birth of the Major's last and most distinguished child; it is a fact, however, that, on May i6th of this same year, there was born to him a son who inherited many of his talents and was chosen to perpetuate the name of the first American ancestor of the family and furnish the line its most distinguished career. The Major and his wife were by no means advanced in age, as he was but forty-two and she but three years younger, but this son, Ellis, was destined to lose them both in a compara- tively short time. Less than five years passed, when, on February 20th (1803) "after a painful illness," said a local paper, "which she bore as she had ever been in the habit of bearing every other dispensation of Divine ^ This issue is the first in the excellent files at the State Library in Harrisburg. * Original paintings by Dr. Webster Lewis are said to be the basis of these pen-drawings, or that of the Major at least, and this one was known to exist until within a few years past, in the possession of Miss Josephine Lewis at one time and Miss Mary Lewis — both of Philadelphia — at another, but seems to be irrecoverably lost, so that this is the only known portrait of Major Lewis. William Penn Lloyd, Esq., of Mechanicsburg, Pa., tells the author that he has a portrait of an ancestor of his own, painted by Dr. Webster Lewis,, which he values highly. These portraits have been reputed in the family to be very fair likenesses in a general way. The other children were Eliza, who married Robert Hamersly; Phoebe, Pamela, Eli, Jr., and Juliet. Major Kli and .Mrs. I^ewis From a pen and ink copy of old portraits, now unknown, in possession of Miss Josephine Lewis, Philadelphia MAJOR ELI LEWIS AND THE PRESS 31 Providence, with the strongly marked submission which gave the correctest evidence of her faith, by her works," his mother died, a devoted member of the Society of Friends.^ No doubt it was the result, in large part, of the grief that such a highly sensitive poetic nature as that of Major Lewis, the father, must have felt that led him, about two years later, namely, on March 9, 1805, to appear before the meeting which had disowned him for the part he had taken in war and the test oath of loyalty to the Constitution of 1776, and ofter acknowl- edgment for "his former misconduct," and secure rein- statement as an orthodox Quaker.- Indeed, it must have broken his life forces to a still greater degree, for his old paper, The Oracle of Dauphin, at Harrisburg, scarcely two years later, namely, on St. Valentine's Day of February, 1807, had occasion to announce that there died "On Sunday, the 2d inst., at Lewisberry, York County, Mr. Eli Lewis, formerly of this town, an Editor of the first newspaper published in this borough."^ Before passing from the career of Major Lewis to that of his more distinguished son, one element of the heritage left by him must not be overlooked. Although in a region in which not a few opposed the new National Constitution — the region which supported the party which suggested most of its amendments — he was, as has been seen, an enthusiastic Federalist. Nevertheless, when the upheaval occurred in 1801, that, probably through Governor McKean more than any other one man. swept the author of the "Declaration" into the Presidency, Major Lewis espoused the new democracy with equal zeal. "The Tribe of Eli" — almost all of New- berry Township — held a meeting, which was reported in the York Recorder of May 20, 1801, some half-dozen years before his death, and adopted the following- letter to their hero : "To Thomas Jefifcrson, President of the United States — "Called on by the United States to perform the most important of her tasks, we flatter ourselves that assur- • The York Recorder, February 23, 1803, in possession of Miss Mary Lewis of Philadelphia. - Abstract of WarrinRton Monthly Meeting Records, 1747-1856, p. 324 — at the Historical Society of Pennsylvania. ' Tlie family records give his death as occurring on the ist instead of the 2d, so that the paper was slightly in error. 32 ELLIS LEWIS ances of tlie attaclimeiit and support of any description of your fellow-citizens will be acceptable, and being highly gratified with the sentiments you have announced as the governing principles of your administration, we conceive it our duty, and we feel it our pleasure, to tender you our sincere attachment and support. May that spirit of benevolent toleration which so conspicu-. ously distinguish you amidst the conflicting elements of party, spread like oil on the troubled ocean, until all is soothed into order and peace. "Signed by order of the said meeting: "Henry Kreiger, "James Todd, "Jesse Glancy, "Eli Lewis, "Robert Hamersly, jun." In May, Mr. Kreiger received, postmarked "Wash. City, May nth," with the well-known script of the great leader of democracy on the upper left-hand corner — "free Th. JefTerson" — in lieu of postage, the following letter. Opening the seal, he read thus : Washington, May 8, 1801. "Gentlemen : "Assurances of attachment & support from any description of my fellow citizens are accepted with thankfulness & satisfaction. I will ask that attach- ment and support no longer than I endeavor to deserve them by a faithful administration of their affairs in the true spirit of the Constitution, and according to laws framed in consonance with that. The sentiments ex- pressed on my undertaking the important charge con- fided to me, were expressed in the sincerity of my heart ; and after security & freedom of our common country, no object lies so near my heart as to heal the wounded confidences of society, & see men & fellow citizens in affectionate union with one another. I join therefore with the inhabitants of Newberry Township, who have been pleased to address me through you, in earnest desires that a spirit of benevolence and of mutual tolera- tion may soothe the great family of mankind once more into order & peace : and I pray you to assure them of MAJOR ELI LEWIS AND THE PRESS 33 my sincere concern for their particular happiness, and of my high consideration & respect. "Tir. Jeffersox." As the whole matter was undoubtedly the work of Major Lewis, the prized letter became his property and de- scended to his young son with a large share of Jeffer- sonian principles as his even more precious heritage after the Major's death.* Young Ellis Lewis was thus left an orphan at nine years of age, but his brothers and sisters cared well for him, and, with his guardian, Mr. Hugh Foster, gave attention to his preliminary education. The boy's tastes soon began to show some similarity to those of his father, as much so, that even the following autumn, when John Wyeth announced in the Oracle again his need of an apprentice, it might have suggested even then such a career for young Ellis. As 1808 and '9 passed on and they . heard of the success of Joseph Findley's academy in Harrisburg and a good night school during part of the year, both of which were advertised in their father's old paper, the editor, Wyeth, himself, being publicly interested in both, it must have recurred to them with increasing force. And it would be no small opportunity to a youth to be in John Wyeth's printing office, for, as was not infrequently the custom in interior towns in those days, the newspaper office was the book- store and general literary clearing-house of the entire region. Wyeth's collection, as advertised in his paper, on November 5, 1808, contained Scott's Marmion, De Stael's Corinna, Campbell's Ecclesiastical history. An- drew's Elements of Logic, the chief Latin and Greek classics, Junius' Letters, etc., among the "just received" list. His announcements often included two columns of small print, and on January 28. 1809, "a partial cata- logue" occupied four closely-printed columns and was "continued" through several issues in the same way. It was in both quality and quantity a really great library for that day that would have done honor to Philadelphia herself. But when the long, long contest to get the * The letter was folded throuRh the President's name lengthwise, and as time wore on the fold broke and the bottom ribbon of paper became lost, leaving- only the upper part of the larger letters. The frank signature on the outside is oerfect, however. The letter is among the Lewis papers in the pos- session of Miss Josephine Lewis. 34 ELLIS LEWIS State Capital away from Philadelphia and then away from Lancaster culminated in the passage of a law in February, 1810, finally settling it where John Harris had long ago proposed, the project of apprenticing young Ellis Lewis to Editor John Wyeth soon took final forni.^ Late in that year, November 24, 1810, when the boy was in his thirteenth year, his brother James and Mr. Foster took him over the hills and river to Harrisburg and to the Oracle office and book-store in 'Mulberry Street between Front and Second, near the Bank, and there Mr. Wyeth agreed to teach him "the art and mystery of a Printer," take care of him for seven years, and "give him during the said term three-quarters of night school- ing," and at the end two suits of "apparel, one whereof to be new." The boy was to be a dutiful apprentice and not absent himself from his "master's" service without leave.- He entered upon the office duties at once, and no doubt revelled in Mr. Wyeth's collection of books, so that by the time the State government was fully established in the old court house — predecessor of the recent one — and Governor Snyder, the successor of the original Democratic war-horse of Pennsylvania, McKean, was settled in his gubernatorial home, young Ellis had made considerable progress in the handling of the types. He often had his Quaker blood stirred by accounts of the actions during the war of i8i2r-i5, and he always made a bonfire for the victories, but his indenture bound him to service until nearly 1818, his twentieth year.^ He had been there nearly five years by the time he heard of General Jackson's great victory at New Orleans in January, 1815. Five years was a long time, and it is an especially long time at the age of eighteen, when the "storm and stress" period overtakes the young man, so the following summer he betrayed evident signs of serious discontent. His brother Eli had lost his wife ' Laws of Pennsylvania (Bioren), 1809-10, p. 30. Preparations were to be made so the removal could take place in October, 1812. - The "Indenture" is in the possession of Miss Josephine Lewis. The author has a copy of the seal of Mr. Wyeth, which was kindly given him by the well-known antiquary at the Pennsylvania capital. Wyeth very soon changed his location to a two-story frame building at the corner of Market Street and Square, opposite that of the Commonwealth Hotel, and on the same side of the Square farthest from the river. Here were his office and book-store. The Oracle. Vol. XXII, No. i, and A. Boyd Hamil- ton in Notes and Queries, Vol. Ill, Third Series, p. 310. ^Democratic Review, 1847, p. 363. A sketch in this review says: "He illuminated for our victories during the War of 1812, when he was but a mere boy, * * *." '*v- ^ 7/5 INDjE.NTUREmade they/iYrr^y^^^Hayof tfi>,itilht year of our L>rd me ihoutand eight bundreJ anfft^r^ viUneitetb that '■■/ / « •>'■ sf//", an;/ iy these pretentt doth volanlarily and of ^i^ oin'fru v;ill and acford Y,^,,,'^ — -y -^/ ' — . — ,/^ Ji " /viih b(r>^ttfier ibe manner of an apprentice lo serve, from lie .__~^ day of^h~{/'ir^^— /2rf~e ^.'till the term ofjh^f-cx ff, ^1 >^ l>e completed and ended. During alt vihieh time or term, the said apprentice h^^ jaij/ '*•"-'•»*' /^ viell fnd faithfully shall serv, b ii lecrtes keep, andb c* lawful commands every where at all limes readily obey ■• he shall not do damage lib ^v7^~ seasonable notice thereof 'TTt. shall not viaste the goods of b C6 said ?/' AJS^ nor lend them unlavifully to any. -rzit shall not commit fornication nor contract matrimony viiihin the said term ■■ Jl cards, dice, or any other unlawful game be shall not play. H'iihoul licence from biJ said ?7i/tiZtt; be shall neither buy nor sell : he shall not absent b t.rr\self day n^ night from be^ saidni/iTUi-^ service nilhout leave : but in all things and at all times be shall carry and be- have bitnselfas a good and faithful apprentice ought towards be4 said .'/ioSZt'ondalllie-f during the said term. ^^"""""V ^ i Jnd the satd /»-/> > i / >V/ C- /^i' ' on ■/> imparl, iMtljcreby promise, covenant and t/gree that bevoill during the said term, leach, or cause the said apprentice to be laifgbl or instrudedjby the bat way or means he can, in the art and mystery of a 4^ z < —and also provide for said apprentice sufficient meat, drink, •^?7/'ji. // ^i tT^ lodging and •cashing fitting for an apprentice ^t > 1 jp^ e r^^- yf^^^Tj^'TTt'^ "^^^ .T^r-^ /c^Ar; y-^ r- atfdfor the true performance of all and singular the said covenants and agreements, tht said parti bind ihemiclves firmly by these presents. ■~5caM «iid (lelivcrol ^ 'T/t^'Ay -^ in the prcfcncc of /■ ■^^^^ ^^ (yvYii^ County, ff. ' tfi ^^.^» DON K anil acknowlc Igtfd ihc \Seal.\ AnnoDomiai 160 ttaMi'L\'m\miiirnm Indenture of Kllis Lewis as a printer's apprentice, in possession of Miss Josephine Lewis, Pliilaiklphia MAJOR ELI LEWIS AND THE PRESS 35 early in July and in wrilinf^ Ellis of his sorrow, expressed a trust that he was more reconciled to his situation, but the young printer, on July 28th, replied, after expressing sympathy, boldly disabusing his brother's mind of such hopes. "I am not rcconcilctl at all," he writes. "I like Wyeth well enough," but he did not like certain members of the household, "added to which I believe I am getting the consumption, and the business does not agree with me at all." lie asks that his haste in writing be pardoned, as the 29th is ])ublication day. His discontent grew so rapidly that before the end of the year he determined to break his bonds, and about Christmas time he made a visit to his old home and soon afterward left Harrisburg and the ofifice. The causes that precipitated the event can never be known in all probability, but whatever it was, it left Mr. Wyeth in no mood to lose about two years of his apprentice's services, and he advertised for him, offering a reward of twenty dollars and accusing some of the young fellow's friends of abetting his escape.^ * The advertisement, which appeared in The Oracle of February 8, 1816, a file of which is in the private possession of Luther H. Kelker, Esq., of the Archives Division of the State Library at Harrisburg, is as follows: — "20 Dollars Reward" "Oracle Office, Feb. 8th, 1816 "Absconded from this office on Sunday morning last, an indentured ap- prentice to the printing business, named "Ellis Lewis aged about 19 years, about 5 feet i or 2 inches high, slim built, pale coun- tenance, and down look. He was decently clad when he went away, but as it is pretty well ascertained that he was encouraged and enticed to his deser- tion by those whose sense of moral obligations is equal to his own, it is prob- able he will be provided with funds to change his apparel. The above reward, and all reasonable expences will be paid for his apprehension and delivery to his master. All persons are forbidden harboring him at their peril. .-Vnd the young man himself may rest assured, that however he may hug himself on his dexterity at running away, justice, sooner or later, will overtake him, to his cost. "John Wyeth "Editors of newspapers will please to give the above an insertion or two, and a similar favor will be reciprocated." CHAPTER III Young Lewis Runs Away to New York and Balti- more, AND Finally Settles as Co-Editor OF "The Gazette," at Williams- port, Pennsylvania 1815 For over eight months no news was heard of the whereabouts of the young printer, for whose capture and return Editor Wyeth was so vigorously advertising. That he should go outside of the State and to a city where his skill as a printer could be exercised was undoubtedly a foregone conclusion. New York, which, at this very time — the mid-winter season of 1815-16 — was enthused under the leadership of Mayor De Witt Clinton in the determination to secure a waterway to Lake Erie, had long been the metropolis, and Baltimore, after Philadelphia, was the next great city of the land; but the latter was so near to central Pennsylvania that his fear of discovery and belief in its greater opportuni- ties soon led him to New York. The Swiftsure Mail Stage long advertised "Cheap Travelling to Philadelphia" in the old New York Courier and its successors, "Stage Fare, $5."^ The most rapid travel from Washington to New York was thirty-six hours.^ The "Swiftsure" line left No. 48, at the corner of Courtlandt and Greenwich Streets, at 8 A. M. daily, except Sundays. The metropolis had a population of almost a hundred thousand. The chief seat of the foreign trade was along East River. The wholesale region was about Pearl and Broad Streets and Hanover Square, while the retail trade was in William Street, reaching from Wall to Fair (now Fulton) Streets, and many of the families lived over their stores or shops. Broadway, ^ The New York Daily Advertiser, April 15, 1817, et al. ' New York City and Vicinity During the War of 1812-15, by R. S. Guernsey, 1889, Vol. I, p. 34. 36 ELLIS LEWIS— PRINTER AND EDITOR 37 below Leonard and Greenwich Streets, held first rank as an "elegant" residence street, while Pearl followed a close second. Chatham Street, with Park Row, was of like character. The boat-landings were chiefiy on Wash- ington Street. Greenwich was the most closely-built street, and some very prominent families lived in Wall and State Streets. Indeed, the built-up portion of the city was mainly for about three and a half miles from the Battery up the East River bank and but two miles on the Hudson or North River side. The post-office was at the southwest corner of William and Garden streets (now Exchange Place), and the postmaster, one of Jefferson's appointees, afTorded the community about one hundred boxes and six carriers, and himself and family lived in the same building. The exchange was at the Tontine Cofifee House in Wall Street, where the members, as three o'clock closed business, took dinner in the second floor ordinary. Assuming the name Henry Van Ellenburg to elude Editor Wyeth's search, he soon found work as a printer, and also found, to his annoyance, that the field of book- making, which was a part of a New York printer's work, was one with which the Oracle office had not made him familiar.^ He soon acquired the necessary knowledge and got along as well as a young new arrival could expect. Apparently he and his brother, James, had started off together, but James remained in Philadelphia, so when a letter from their brother, Eli, was received at New York on September i6th (1816) he secured it, forwarded it and then replied : "New York, September 17th, 1816. "Dear Brother: "A letter directed in your hand writing to James fell into my hands yesterday. James I believe is in Phila- delphia, however I forwarded the letter to him there. "It is now a period of more than eight months since I left the place of my nativity and never, during the whole of that time have I written to my dear relatives, ' This was not because Wyeth did not publish books, and good ones, too, for the author has seen excellent examples of his work, notably draydon's Memoirs, which was done in 1811, during Lewis' first or second year of in- denture, and a German music book published in 1815 just before his departure. Mr. Luther H. Kelker of Harrisburg gives assurances that his publications were quite numerous for that date. 38 ELLIS LEWIS but 3'ou know my dear brother, you know what restrained me ; therefore that is my only excuse. "Here I am — behold me at the age of eighteen, alone and unprotected, cast on a tempestuous and unfeeling world, to do and act for myself. In a city where the most shocking immoralities * '•' ''' have full sway — where every allurement is offered to seduce youth from morality and rectitude, it is scarcely to be expected that I should remain free and uncontaminated amid this chaos of immoralities ; — but I believe 1 am as well, and perhaps better, than many others in similar situations with myself. ''In writing to you," he continues, he sends words to the family and then adds, "I would not now venture to write, but I intend leaving this city in about three weeks ; I wish very much to hear from home (indeed I have a kind of hankering to be there) therefore I will look for a letter immediately on receipt of this ; — I would wish to know if my affair has been settled : my indenture would be of great service to me ; I read an adv't offering 20 dolls, and accusing some friends of aiding, which heaven knows was not the case. If you should deem it safe direct to E. W. Lewis y2 William St. — if you think that will not answer, my fictitious name is Henry Van Ellenburg, New York. With either directions I will get the letter but be sure and not put the No. of the street, if you direct to H. V. E. — I should like to be informed of my circumstances in the world, i. e. how much Foster has of my property, in his possession ; and whether one or two lots fell to my share ; — If you will take the trouble to ascertain, and sum up the whole of my property, small as it may be, it will afford me some consolation to know how much it really is. "I am barely living, decently, not laying up much — when I came I knew nothing about book work, but now I have the presumption to call myself a 'tolerable workman.' ^ ^ ^ ^ ^ ^ ;;< "My health is tolerable, but I believe I will never be fat, as long as I follow the printing business. — Rather than follow it another year I will go to sea as a common sailor. I have some notion of going to South ELLIS LEWIS— PRINTER AND EDITOR 39 America, as a printer; three liave been advertised for; our foreman promises to use his interest in getting me a birtli — the result of which will be known to-morrow. "Yours affectionately, "E. W. Li-:\vis."i Whether the hoped-for "birth" was a position on the old New York Courier or not cannot now be known, but, in all probability, it was, for he did join the Courier force under Mr. Barent Gardenier's reign, and that editor's management closed within six months from the time this letter was written, namely, on the 19th of February, 1817.- The change was made because Mr. Theodore Dwight, of the Albany Daily Advertiser, was ambitious to come to the metropolis, for he announced on the 20th of February that he should return as soon as he could settle his Albany affairs, which he did by April 9th, and on that date the old paper came out in new form and with a new title. The Neiv York Daily Advertiser. By the 26th it was at new offices, too, at 27 William Street, one door south of the post-office. Lewis "continued in the office of the new paper," says an old friend of those days in reminiscences published in the Printer. "He was employed in the same offices with our late lamented ' Years later, when he had become prominent, he related some interesting details of this experience to Hon. C. D. Eldred, who gives the facts in \'ol. Ill, No. 3, p. 55, of "Now and Then," edited and published by J. M. M. Clernerd at Muncy, I'a., in 1890. Speaking of Ellis Lewis, he writes: "His ambition did not allow him to serve out his full term as an apprentice to the printing busi- ness, but with his worldly effects tied up in a handkerchief, he made his way to Philadelphia on foot in search of work. He failed to find it there and went to New York. After searching out a private boarding house kept by a widow lady, he went the rounds of the printmg offices for employment, but failed in his purpose. He had not money enough to pay a week's board, and feared the denouement when his host should make demand. She made none at the end of the first week, and he renewed his exertions at the printing offices, leaving his name and the number of his boarding house at each. The next week had partly passed when, returning to his lodgings for supper with a heavy heart, he chanced to pass a busy wood-sawyer. He halted and inquired as to the pay and demand for his business, and was informed fully and particularly upon the subject. Here was work that he could and would do, until something better offered, and he went to his lodgings planning how he might sell or pawn some of his clothes for money enough to buy a wood buck and saw, and feeling much relieved by the thought. The same evening a note was left for him from one of the printing offices offering him a temporary position at a case, during the indisposition of a hand, and he accepted it witli thanks. The second Satur- day night he was enabled to pay his two weeks' board; but the invalid whose place he had taken was now convalescent and would soon report. He thought again of his wood saw and buck as an alternative, but was agreeably surprised to find another case given to his indisi)osed friend when able to work, and himself retained. I-'rom thenceforth he found no want of employment, * * *." He further tells how Lewis later visited New York and hunted up his former landlady, told her the circumstances to her great ;oy, and presented her a silk dress as a token of his gratitude to her as a one-time friend in need. Lewis related these facts to his friend Eldred not long before his death. -The New York Courier, February 19, 1817, at the New York Historical Society. Also the Advertiser of date mentioned. 40 ELLIS LEWIS brother, Gen. Morris, Samuel Woodworth, one of the Harpers, and many others of the old school." During the year he became a member of the New York Typo- graphical Society at the nomination of Thomas Snowden, and there made some of the warmest friendships of his life, especially with George P. Morris, above mentioned. Years after, Lewis looked "back to the days of my youth, spent among the intelligent and noble-hearted members of the New York Typographical Society" and avowed that his certificate of membership was "pressed with more affectionate fondness to my heart than all the other honors I have ever received."^ The year 1817 passed with plenty of hard work and hard study, for young Lewis had learned both arts, even at that date, with a thoroughness that never left him, and which recalls, in its zeal and ceaseless per- sistence, the habits of two great university-presidents whose fiame of vitality went out all too soon. He often read in the Advertiser the list of books "recently pub- lished" : "Ramsay's History of the United States, Gallisdon's Reports of Judge Storey's Decisions, Ele- ments of Criticism by Hon. Henry Home of Kames, The Life and Studies of Benjamin West, Esq., President of the Royal Academy, Chateaubriand's Recollections, etc., Brackenridge's History of the Late War between the United States and Great Britain, Guy Mannering by the author of Waverly, The Works of Lord Byron, Thomson's Seasons, Warden's Letters on Napoleon, and many others." He, no doubt, noted with interest on April I2th that "The electioneering campaign in Penn- sylvania is conducted with great spirit, and no little bit- terness, between the two divisions of the former demo- cratic party" ; and on May 2d that the Federalists at Philadelphia have announced that they will present no candidate for Governor and that the editor thinks the ^'Old School" and "New School" of the democratic party will have the field to themselves ; or on the i6th that "Now, Leib and Duane avow their attachments to a more refined democracy, if possible, than Findlay and ^ "Typographical Reminiscences," by Charles McDevitt, in The Printer. The author is assured by officers of the present Typographical Union of New York that the old society became defunct and that its papers were destroyed by a fire in Fulton Street. The expressions by Lewis are from a letter quoted by Mr. AIcDevitt. Dwight, it should be stated, was the editor and owner of the Advertiser, but John W. Walker published it for him. ELLIS LEWIS— PRINTER AND EDITOR 41 Binns" and that Pennsylvania seems to be the "storm center" of poHtics. He noted the advent in July of Moore's "new poems, so long expected" — "Lalla Rookh" and as a lover of poetry no doubt read "Southey, the present British poet-laureate." There is evidence that he studied both Latin and French during the year, too, and that all of this strain told severely upon his health. In February (the 15th) of the following winter, 1818, he wrote his brother Eli as follows: "I am in very low health at present and have been so for some time past. Being no longer able to perform the macerating duties of my situation on the Daily Advertiser I have left it. Since that time I have been employed for three weeks in the first printing office, either in England, or in this country, but 'that jewel, which none know how to prize but those who've lost it,' prevented me from holding a situation there. I have been thinking about taking a voyage to Europe, under the impression that the sea- air may conduce to my recovery. I feel confident that I shall never be able to do anything of consequence at the printing business. Perhaps it would be better were I to go to the Southward. What would you advise upon the subject?'' He tells his brother that he had written to Wyeth asking for terms of settlement, but had received no reply. He closes by asking pardon for the looks of the letter, as it was written in a room where "its inhabit- ants are keeping up. without cessation, 'vox ct proctcrca nihiV ; besides which I have a very bad pen and no knife to mend it," referring, of course, to his cjuill. As the seven-year period of his indenture expired the previous November and he had indicated his willing- ness to make a just settlement with his former "master," some result was no doubt effected and it is probable that his brother advised going "southward." At any rate, by June. 1818. he was in Frederick City, Md., trying to make a deal for a plant for a newspaper and printing- office, in one of two or three surrounding towns, espe- cially Union and Westminster.^ Writing from the latter place on July 3d he says : "This part of the country is thickly settled and this place is equi-distant from Fred- • During part of the interval between February and June, 1818, it is said by a writer in the Democratic Review of New York, April, 1847, that the young printer was with Dr. Webster Lewis at the old home town studying medicine. 42 ELLIS LEWIS erick and r.altiniore; — twenty-six miles from each. Union is iive miles from here. I proposed establishing an 'Impartial Recorder,' in the latter town, to one of its citizens, who immediately said he would become answer- able for twenty subscribers, and pay the office rent himself, — and actually got twenty-eight subscribers in less than an hour — and also had a house engaged in that time for the office." He explains his purpose to go to Baltimore and arrange the further details, and that he is to begin as soon as two hundred subscribers are secured by the gentlemen interested. He expected to do a good deal of book-work for Baltimore houses, and made his way there on July 4th. His plans involved a loan of two or three hundred dollars from his brother, and while waiting he heard of the death of the latter's wife, which seemed about to disarrange his plans. He wrote expressing his sympathy: "Let not this weigh down your spirits. I would oifer Christian consolation but I am no Christian. I have supported myself in sorrows (which are many and unknown) by reflections like these : — 'Of chance, or change, Oh ! let not man complain ! Else will he never, never cease to wail ; For, from the imperial down to where the swain Rears the lone cottage in the silent dale : All feel the assault of fortune's fickle gale. Art, Empire, Earth itself to change are doom'd ; Earthquakes have raised to heaven the humblest vales, And gulphs the mountain's mighty mass entomb'd. And where the Atlantic rolls wide continents have bloom'd." —Bcatty.'^ This, of course, meant merely that he was in the agnostic period which most virile-minded young men pass who have not happened to have a tactful leading by some one in whose character and ability both they have confidence. It should be recalled, although it is difficult to realize it, that at the time young Lewis was born it was almost entirely about the southern half of Pennsylvania that was the well-settled part, and that even so late as the year of his indenture to John Wyeth comparatively little encroachment had been made into the northern half, except up the banks of the Susquehanna and along its ^ Letter of July 24, 1818. These letters are in possession of Miss Josephine Lewis, Philadelphia. Map Showing Distribution of Population in Pennsylvania in 1820, in the Census Pureau Atlas ELLIS LEWIS— PRINTER AND EDITOR 43 northern branch and np the Allegheny River. And it will surprise one who has not investigated it to discover that central Maryland about Frederick City was one of the most thickly-settled regions of the United States — equal to those about Baltimore, upper Delaware and southeastern Pennsylvania and the Jersey, Hudson and New England regions. But by the time Ellis Lewis was contemplating the foundation of his "Impartial Recorder" at Westminster, thorough settlement had begun to press further into the northern half of his native State, with Sunbury, at the junction of the branches of the Susque- hanna, as a radiating- center, and the newer development was quite marked up the West Branch, the region made notable by the rise and fall of the surveyor and "land king," Samuel Wallis, some years before.' It is true, the original Lycoming County and its county seat, Williams- port, had been organized before Lewis was born, and the latter had been an incorporated borough for a dozen years past; while at this very time it was large enough to have two newspapers — the Gazette, owned by J. K. Torbert, and the Advertiser, owned by a Mr. Simpson.^ So that young Lewis, even while in Wyeth's office, must have been familiar with newspaper conditions there. Just how he became interested in Simpson's Advertiser is unknown, but before the summer closed he left Balti- more, and by September was in Williamsport negotiating with the gentleman for a part ownership. On September 2d (1818) he writes his brother, from the latter place, saying, among other things: "The Wednesday previous to my arrival here he [Simpson] announced to his patrons that his editorial duties had ceased, and that mi}ic had commenced": but the efYort to press the young printer into a bargain that he did not approve, made this announcement both premature and not quite accurate ; for, in disgust, young Lewis went over to the Gaaetie office, where, the letter continues, "I am now employed as a journeyman with Mr. Torbett — probably I may enter into partnership with him."^ He also says he has 'John F. Meginness, in his History of Lycoming County, p. 66, gives a considerable account of the litigation over the Wallis lands, and their loss by the Wallis family. ^ Mr. Meginness' History, p. 382, says the Advertiser, was started in 1815 and lasted about six months only, but this is an error, as will be seen by Mr. Lewis' letter. "The J-cwis papers. 44 ELLIS LEWIS transferred the subscribers he received in Lewisberry from the Advertiser "to Mr. Torbett's list." On the 19th he writes that he is getting "five dollars per week !" and has made an agreement of partnership to take effect on the 27th of October. He is to pay three hundred dollars by April ist, 1819, which he considers fair, as there are three presses and various types which he describes in detail. He says Mr. Torbert's ill health had caused so much trouble that the subscription list was reduced to 357. Eight months later Mr. Torbert's affairs were in such shape that Lewis secretly bought his share of the office to head off a possible public sale of it. This was not made public, however, during that year. The same letter, namely that of May 19, 1819, frankly tells of his failure in affairs of the heart — apparently of a not very serious grade. By mid-summer, the young editor had had many experiences. "At a time," he writes on July 15th, "when this part of the country was thinly populated (with a population, too, not the most enlightened), — a man of common talent might answer very well for an editor of a paper. But, at the present time, when the people are becoming more intelligent, and when that intelligence is increased by the constant influx of well-informed ad- venturers, I constantly feel myself inefficient to the management of a public print, like the one under my charge — (I may say 'under my charge,' for Torbert has never written half a dozen lines for the paper since I entered into partnership with him). I have thought of a number of plans for the accomplishment of my wishes. At times I have thought of getting you to take the place of Torbert or myself. At other times I have thought of uniting with Wadsworth (the author of a piece signed 'Fair Play' in our paper) in the practice of the law and the publishing of the paper. And finally of getting married as soon as I can and taking the whole of the establish- ment into my hands and conducting it as well as I know how, &c., &c., &c." Finally he had occasion to be the "fighting editor," in defending himself from assault by the man Simpson — who seems to have dropped his paper and become a kind of legal practitioner, — because he refused to print an article containing personalities. In- ELLIS LEWIS— PRINTER AND EDITOR 45 deed, this former editor of the defunct Advertiser became an avowed enemy and attempted to make capital out of the old Wyeth affair. He had threatened to have the citizens call Lewis "a Federalist" and thereby "d — mn" Lewis, to quote the belligerent's language, but it was all in vain. A single copy of the Lycoming Gazette, "New Series, Vol. II, No. II," issued on January 5, 1820, with the motto "Be just and fear not. — Let all the ends thou aim'st at be thy Country's, thy God's, and Truth's," — the only copy during his reign known — indicates a paper in prosperous condition.^ Mr. Torbert advertises that all debts must be paid him at once or suit will follow. This indicates the seriousness of Lewis's purpose to get one of his brothers to buy out Torbert. In a letter of April 22d following this issue he tells his brother that Torbert will now sell for $600; that the whole proceeds of the ofifice for eighteen months past is estimated at $3,290; that the subscription is valued at $1,500 annually; and that the job work from April, 1819 to April, 1820, brought over $751. He wants to do some book work, but his partner is timid ; he believes a compilation of certain laws would sell well. He is determined to close with Mr. Torbert at the end of the year, and advises his brother Eli to come and examine the situation. "We will support Mr. Findlay in preference to Hiester or perhaps any other candidate that may be nominated," he writes, the first note of entry into State politics. He also avows he is "really in love in earnest," and also that he desires his "certificate" — from the Friends Meet- ing no doubt — "for I have a notion to be religious — at least much more so than I have been."- With this, the period of "storm and stress" and "wander lust" had apparently closed and he was an established editor, with all the opportunities of central Pennsylvania before him. ' This copy is in possession of the historical collection of the Pennsylvania State Bar Association at the University Law School, Philadelphia. In a letter to the Lycoming Gazette, years later, he says he gave it a motto from Henry VIII. The earliest copy known, namely, one of 1808, is in possession of J. H. McMinn, Esq., of VVilliamsport. The next after that is one of January 10, 1810, issued on Wednesday and numbered 26, of \'ol. Ill, and is in possession of J. M. M. (lernerd, ICsq., of Muncy, J'a. Mr. McMinn also has a mutilated copy of an issue of 181S. Tunison Coryell left a fine file which was placed in an old puMic library in W'illiamsport which went into decay, and his son, John H. Coryell, lisq., of the same city, one day found them so nearly destroyed that he succeeded in saving but a small remnant. ' rile Lewis letters in possession of Miss Josephine Lewis, Philadelphia. CHAPTER IV The Young Editor Studies Law, and Is Active in Public Affairs. His Ability as an Independent Student 1820 The smaller interior towns at this period demanded both the editor and the lawyer, but for a man who had abilities to equal the expectations in both cases, the returns were not always sufficiently remunerative. It was a very common thing, therefore, for men to unite the two in themselves, not only for this reason, but because such a combination was peculiarly fitted to open the way to a public career. The young editor's brother, James, at York, like many another over this and other States, had made this combination, for he had studied law and was now part owner of the Recorder, of that borough. He was attracted to the opening at Williams- port, and in June (1820) proposed buying Mr. Torbert's share in the Gazette, instructing Ellis in the law and becoming an equal partner in both professions. While the latter was a devoted admirer of his brother Eli and had great confidence in his wisdom, this proposition from James seemed to be so perfectly adapted to his secret aspirations that he plainly manifested his pleasure at the prospect. The ofTer came, too, at a time when he felt the need of companionship and a more engrossing interest, for, like many another before and since his time, he seems to have had another unsuccessful love aflfair and with stoical resignation argues that two courses are open to him : to sell out and leave, or have James come in as partner and begin "intense application" to business and to law in his "leisure hours" — as if "intense application" had not been his constant habit for years past ! The most significant occurrences during this month of June, however, were those that indicated the desire 46 HE STUDIES LAW AND POLITICS 47 of the youii.c^ editor for a part in public affairs. He wrote his brother, EH, then postmaster at Lewisberry, that he wanted the office of Reji^ister and Recorder at Wil- liamsport, in case Mr. Tunison Coryell was to be dis- placed. He believed his relation to Governor Findlay, as well as to the people, warranted him in the belief that he could secure the position. His standing, he said, was due to the fact that he had championed the cause of "the plain, blunt men," the common people, often in opposition to the influential element, generally known as "the Hepburn connexion." In this he had been strengthened the previous winter by a public address he had made, by request, in a debate at Jersey Shore on the Missouri compromise question, and the letter of June 24th, in which this event is described, manifests an incipient skill in managing a campaign in public affairs. His brothers, however, both discouraged this particular plan for the offices mentioned, and he yielded to their judgment; "this," said he, "I feel the less reluct- ance in doing, as we are likely to [be] drawn into more warmth on the subject of Mr. Findlay than we at first expected, and my motives might be misconstrued by the opponents of Mr. Findlay." This course proved to be a wise one, for this Governor of Pennsylvania, who had been in office since 1817, during which time he had laid the corner-stone of the new capitol, was now up for re- election against a rival Democrat, with an equally dis- tinguished career in the public life of the State, Colonel Joseph Hiester, of the Berks County family so well known in the previous public life of the State, and party spirit ran so high and the assaults on the Governor were so bitter that his rival was successful.^ This incident, however, served to show that Ellis Lewis had, at the age of twenty-two, "found himself" at last, and that his abandonment of the purpose to enter public life was ' Governor William Findlay, 1768- 1846, was in the Legislature in 1797 and 1803, and from 1807 was for a decade State Treasurer. After his defeat a com- promise sent him to the United States Senate for one term, and from 1827 to 1840 he was treasurer of the Mint at Philadelphia. He died in Ilarrisburg in 1846. Governor Joseph Hiester, 1752-18,1:;, a cousin of Daniel and John Hiester, both prominent in public life of "the .State, was a Colonel of the Revolution, a member of both State Constitutional Conventions, and of both Houses of the Legislature, a Major-General of Militia, and a Congressman from 1797 to 1805 and from 1815 to i8ro, when he resigned to take his last post in public life, the Governorship. He died in Reading in 1832. 48 ELLIS LEWIS only a temporary concession to the combined wisdom of his two brothers. James had not come to a positive decision by the 20th of July, the end of a new quarter when Ellis had determined to close his relation with Mr. Torbert, and he thereupon purchased the entire plant himself, in hopes of the favorable action of his brother. He was much depressed during the summer and urged Eli to come and take the entire plant and let him get away for awhile. He made a visit to his old home late in the year, and incidentally visited Wyeth's book-store for the first time since he took leave of it. He did an excellent business for a year more in his management of the Gazette, but his eyes had been turned more and more to the law, and as he dipped into it increasingly and was influenced by James in the same direction, although the latter found himself unable to make a partnership, he concluded to dispose of his paper in July, 1821, to his friend, Tunison Coryell, and devote himself wholly to the law.^ It is not known just when he began the study of the law, but so early as the middle of 1820 he has been seen to know enough about the laws to have a publication in mind, and it is also known that at this very time the Deputy Attorney-General for Lycoming County was Espy Van Horn, Esq., who had then been in office a year and who is known to, at some time, have been Mr. Lewis' pre- ceptor. It is said, also, upon the same authority,- that he succeeded Mr. Van Horn at this very date and served for 1820, but it seems as if his correspondence must have had some reference to it, even if he were his preceptor's assistant only, and that is all he could have been, for * In Mr. Meginness' Plistory of Lycoming County, p. 380, he states that this sale occurred, but mistakenly speaks of a partnership between Brindle & Lewis — probably a typographical error. On p. 290 he states that Mr. Lewis was Deputy Attorney-General for the rest of 1820 — an error also. In a manuscript left by Tunison Coryell to his son John B. Coryell, Esq., of Williamsport, on p. 22, he says: "In 1821 I purchased the Gazette of Ellis Lewis, which had only four hundred subscribers." He then describes how he, Coryell, increased its circulation and finally sold it in August, 1823, namely, he got the Tioga people to agree to take 200 copies if he woiild secure them a mail route, and he suc- ceeded. I-Ie says also that he was instrumental in getting Lewis to join Tor- bert, and explains that Torbert had been a teacher and was the author of "Tor- bert's Arithmetic," a school-book of the day. He also adds that Lewis boarded with him while studying law in \'an Horn's office— "he was an industrious reader & was first admitted to practice in the courts of Lycoming County. He had but a small practice and became discouraged and after much persuasion on my part prevailed on him to persevere and not attempt to change his situ- ation," and that as he had "put the plow in operation not to look back and that he would eventually succeed." ■^ Ibid. HE STUDIES LAW AND POLITICS 49 he was not yet admitted to the bar. In a letter of March 2, 1822, nearly a year after he disposed of his paper, he writes his brother, Eli, who had evidently tried to per- suade him to study in York, that he believed "it would be better to finish my studies in this place" — that is, Williamsport. He was prospering, however, whatever he was doing, for on July 27th following he says he is now free of debt, except what he owed Eli, and on the 3d of September (1822), after examination by three attorneys, Thomas Burnsidc, Samuel Hepburn and Alem Marr, he was admitted to the bar.^ He had become a great favorite in Williamsport and was readily recognized by leaders there and over the State as a force to be reckoned with in democratic politics. To i\Ir. Torbert he was such a hero in wresting success from failure, in newspaper management at least, that the latter named a son Ellis Lewis Torbert, about two months before the admission to the bar above men- tioned. His brother, Eli, meanwhile had gone to York and become an owner of a paper there, probably with James, so that with Ellis' influence in the journalism and politics of Williamsport and Eli's and James' power at York, the "tribe of Eli" was an even larger influence than in the days of the author of "St. Clair's Defeat."^ And one event occurred which extended this influence, and that was his own marriage into the Wallis family, made famous in that region by the career of the surveyor and "land-king," Samuel Wallis, and his half-brother, Joseph Jacob Wallis, a partner in many of his enterprises, in the closing years of the preceding century. The event occurred on November 21st (1822), and on the 30th, he writes his brother: "I am now, I believe, permanently fixed in this place. I am married to the daughter of j\Ir. J. J. Wallis, one of the gentlemen who called at your office to see me, when I was in Your county about a year ago." It seems that when he came to the real affair of the heart, it was, as is often the case, the one on which he preserved most silence. Miss Josephine ' His certificate of admission among the Lewis papers gives the date as September 3d, not 2d, as Mr. Meginness' history has it. His examiners' names are given by the latter, and are believed to l)e correct. ^ In a letter of July 27, 1822, stating some of these facts, Mr. Lewis shows that but little cash was used in the Williamsport region. Individual paper was used a great deal — "for almost everything goes by trade here," he adds. There was "paper" and "par-paper," terms that were constantly in use. so ELLIS LEWIS Wallis, born January 2, 1804. and thus about six years the junior of Attorney Lewis, was the daughter of Joseph J. and EHzabeth Wallis, of Williamsport, so that they were respectively twenty-four and eighteen years of age. They were inclined to look upon marriage as a "stern reality," as the young attorney expressed it in his letter, and later events proved both the happiness and the wisdom of their mutual choice. Professionally, he was forging ahead. "I am con- cerned in a murder case to come on next week," he continues, in the same letter, — "fee $90 — a habeas corpus case fee $20 — a certiorari, fee $10. An assault & bat- tery and disturbing religious meeting — [not plain] — and several in Tioga. I think I shall get into business here." By the following spring he was equally successful. "I am very well satisfied with the practice of the Law," he writes on March 4th (1823). "My business as might be expected is not very extensive. But it is as much so as I could reasonably have anticipated." He also considers his citizenship a part of his life business and proposes to be a force in it. The letter above mentioned was written on the day of the democratic State convention. "This day," he writes, "will, I suppose, decide who's to be our governor. I trust that George Bryan," a son of President Bryan, of the Revolution, "will be nominated — and should very much wish him supported, or at least not warmly opposed, by my friends in York — I want noth- ing for myself, and while I am able to practice law shall ask nothing. But I have a most anxious desire, as we all ought to have, to see Mr. Hamersly continued. Should Mr. Bryan be elected I have the strongest reason for believing that I could speak to him through my friends in a language that would be heard, and thus be enabled to throw a mite along with the general exer- tions which might be made for Mr. Hamersly."^ Mr. Bryan was not the nominee of the convention, however, and Mr. Lewis and his friends were compelled to accept the candidacy of Mr. Shulze. In a letter of the 24th, however, he says he knows but one man, Wadsworth, who is personally acquainted with Shulze, and while he thinks Mr. Wadsworth would do anything for him that ' Mr. Robert Hamersly, as will be recalled, was his brother-in-law. HK STUDIES LAW AND POLITICS 51 he could, he sees hope for his brother-in-law only in a prudent personal course. The candidacy of the nominee was not generally acquiesced in in many parts of the State, and there were meetinjjs for revolt. "We have had a meetinj^^ liere," he writes on May 10th, "in opposition to Mr. Shultz. My father-in-law was secretary of the meeting. I was first nominated for secretary, but I rose and declined — stating that I had a small notion of supporting Mr. Shultz, and alleging other reasons in excuse. In Center County they have had a meeting of the same complexion. In case Bryan should be nominated and consent to run, I think there is little doubt of success. In answer to your incjuiry what course the Lycoming Gazette will take in that event, I state confidentially that Mr. C's friendship for Mr. B. will make it impossible for him to oppose him actively, while, at the same time, he has gone so far in favor of Shultz since the nomination, that the paper cannot consistently with-draw itself from Mr. S. A sale of the establishment I think is in contemplation to extricate the editor from an[y] difficulty on that score, should it occur." CHAPTER V The Political Situation in Pennsylvania. His Championship of Governor Shulze. He Be- comes THE Deputy Attorney - General FOR Lycoming and Tioga Coun- ties. A Disastrous Illness 1823 To understand the political attitude assumed by Ellis Lewis in the summer of 1823, as indicated in these letters, it must be recalled that the "Sage of Monticello" — author of the "Declaration" and leader of the great upheaval against the Federalist Republicans by the Democratic Republicans in 1801, was still alive and exercised a tremendous influence in occasional letters sent out from his Virginia retreat. Said he in a letter to the Lieutenant- Governor of Kentucky in the previous summer, "in the civil revolution of 1801, very many and very meritorious were the worthy patriots who assisted in bringing back our government to its republican track. To preserve it in that will require unremitting vigilance. Whether the surrender of our opponents, their reception into our camp, their assumption of our name, and apparent acces- sion to our objects, may strengthen or weaken the genuine principles of republicanism, may be a good or an evil, is yet to be seen. I consider the party division of whig and tory the most wholesome which can exist in any government, and well worthy of being nourished, to keep out those of a more dangerous character. We already see the power, installed for life, responsible to no authority, for impeachment is not even a scare-crow, advancing with noiseless and steady pace to the great object of consolidation; the foundations are already deeply laid, by their decisions, for the annihilation of state rights, and the removal of every check, every coun- terpoise to the ingulfing power of which themselves are 52 PENNSYLVANIA'S POLITICAL SITUATION 53 to make a sovereign part. If ever this vast country is brought under a single government, it will be one of the most extensive corruptions, indifferent and incapable of a wholesome care over so wide a spread of surface. This will not be borne, and you will have to choose between reformation and revolution. If I know the spirit of this country, the one or the other is inevitable. Before the canker is become inveterate, before its venom has reached so much of the body politic as to get beyond controul, remedy should be applied. Let the future appointments of judges be for four or six years, and removable by the president and Senate. This will bring their conduct, at regular periods, under revision and probation, and may keep them in equipoise between the general and special governments. We have erred in this point by copying England, where certainly it is a good thing to have the judges independent of the King; but we have omitted to copy their caution also, which makes a judge removable on the address of both legislative houses. That there should be public func- tionaries independent of the nation, whatever may be their demerit, is a solecism in a republic, of the first order of absurdity and inconsistence."^ The intense conviction and apprehension exhibited in this letter animated most of his followers, especially in the State which had, as has been said, made his dominance possible through the fiery leadership of Governor Thomas Mc- Kean, who had died but a half-dozen years before; the great victory of 1808, when the man of the people, the late lamented Simon Snyder, was made chief executive of Pennsylvania, also seemed to add to intensity of conviction the confidence which is begotten of success. - The passing of the old leaders of the revolution and the chaos of a seething political caldron of candidacy for new leadership all combined to make the next gover- norship, that of William Findlay, a most stormy one, and the next, namely, that of Joseph Hiester, scarcely * Letter to Lieutenant-Governor Barry of Kentuckyj from Thomas Jeflfer- son, dated at Monticello, July 2, 1822, in the Franklin Gasctte of Philadelphia, of January 11, 1823. ' Simon Snyder, 1759-1819, was a native of Lancaster and resident of Selinsgrove, Pa. He was in the convention that framed the Constitution of 1791; the House of Representatives in 1797 and was Speaker in 1802, and for six successive terms; was Governor in 1808 and Senator in 1817. Snyder County bears his name. 54 ELLIS LEWIS less so. It was a period of leadership that was a contest between the merely political leader and those who were believed to aim at the standards of the old statesmen. It was a war between the tendencies to the dominance of those with Federalist leanings within the Republican party and those who were the original Democratic Re- publicans, and it was the more bitter because a war of tendencies. "A variety of circumstances," said the editor of the Franklin Gazette, describing those two administra- tions, "familiar to all, many years since, produced a partial secession from the great body of the party, the individuals attached to which were but too apt to throw their weight in the scale of their old political opponents. The result of the last election of Governor [Hiester], produced by a similar but more extensive amalgamation, has afforded such a demonstration of its disastrous con- sequences, that the most sceptical have become convinced that the supposed errors of their democratic brethren are secondary in comparison with the effects of Federal misrule. — The predicament was indeed novel in which democratic Pennsylvania found herself placed by the eccentric course of the gubernatorial election. Governed by principles which, in the hour of political trial she was the first to repudiate, receiving into her councils men whose unpopular and anti-national principles had long before consigned them to their proper sphere, the shades of private life, her situation was both irk-some and un- natural. The feverish irratibility that produced this morbid action soon subsided. Thousands have rejoined the party who had been long estranged from it, con- vinced from the experience of the last three years, that in any union of democracy with federalism, the former must necessarily be injured."^ The territorial expression of the contest between Findlay for a second term and Hiester, the successful candidate, was very curious : With a few exceptions on both sides, it may be said that generally the old settled part of Pennsylvania, say all south of a line drawn from Trenton to Altoona and down the Allegheny ridge, went for Hiester, while the rest of the State stood by Governor Findlay. In consequence, Ellis Lewis, when he took * Issue of March 28, 1823. Norvell was the editor. PENNSYLVANIA'S POLITICAL SITUATION 55 an independent stand for Governor Hiester was in oppo- sition to the prevailing sentiment on the upper waters of the Susquehanna, both east and west. And it was, in a general way. the latter element which favored the nomination of George Bryan, of Lancaster, or reluctantly acquiesced finally in the nomination of John Andrew Shulze in 1823. In leadership this contest was expressed even more curiously. The previous year there had died in Philadel- phia a man who had been a most powerful political leader of the Jefferson party, Dr. Michael Lieb, 1759-1822, then the city's postmaster, but one-time Congressman and United States Senator. His colleague in political leader- ship was a remarkable journalist, named William Duane, 1760-1835. editor of The Aurora, of Philadelphia, the sometime most powerful JefTerson paper in the United States, one which Mr. Jefiferson acknowledged, it is said, as the most effective journal in his elevation.^ Duane had gradually dropped out of journalism though after the removal of the capital to Washington. Allied with these had been Alexander James Dallas, of Philadelphia, 1759-1817, and his son, George Mifflin Dallas, 1792-1864, the former of whom had been a most distinguished cabinet officer, and previous to his death had been United States District Attorney for the Eastern District of Pennsylvania, while the latter was at this very date Deputy Attorney-General for Philadelphia, and his brother-in-law, William Wilkins, 1779-1865. was the President Judge of the "old Fifth District" at Pittsburgh. Into this situation years before had come a protege of Editor Duane. whom the latter had met in London, namely. John Binns, 1772-1860, an Irishman who, after his imprisonment at home as a revolutionist, had come to Baltimore in 1801. and the following year had estab- lished a paper in Northumberland, near the forks of the Susquehanna, called the Republican Argus. Binns became ' Duane had a remarkable career. Born in New York in 1760, he was educated in Ireland, became rich as a journalist in India, was captured by the Sepoys and finally returned to London, where he edited the General Advertiser (afterwards merged with the Times), and in 17Q5 became editor of the Aurora in Philadelphia. Jefferson made him a Lieutenant-Colonel in 1805 and he served in the War of 1812. After the Capital was removed to Washington he left the Aurora and traveled and wrote hooks for many years. He finally came back to Philadelphia and closed his days in the same way that his latest successor is doing, in the office of Prolhonotary of the Supreme Court for the Eastern District. 56 ELLIS LEWIS a powerful supporter of Snyder both the first time, when unsuccessful, and the second time, when successful. He was encouraged to come to Philadelphia even before he went up on the Susquehanna, by the editor of the Aurora, and on March 27, 1807, he had done so. Duane advised him against the title he had chosen for his paper — "The Democratic Press ;" recalling to him that Jefferson him- self had said : "We are all Republicans ; we are all Federalists," and insisting himself that "The word demo- crat or democratic is not used indeed, or scarcely known, as applied to politics or parties."^ Mr. Binns persisted, however, and said he, "It was the 'first paper published in the Union, or anywhere else, under the title of Demo- cratic, and it was some years before the title was adopted by any other newspaper or by the party. It, however, in time, won its way into public favor," and the Democratic Press became the successor to the power and influence of the Aurora. It was thought to have elected Findlay, and because he favored General Hiester in 1820 instead of Findlay, he was roundly charged with Hiester's suc- cess by the opposition and dubbed "The Apostate," by his rival, the Franklin Gazette, which was, since his cham- pionship of Governor Hiester, coming to receive the favor of the conservative managers. This was recognized by Mr. Binns, and in his issue of February 4th, 1823, it was expressed by his endorsement of a quotation from another paper, which was a friend of the candidacy of George Bryan : "Neiv Catechism for a Federal Proselyte." Q. What is Democracy? A. The Franklin Gazette. Q. Explain its principles. A. Offices for the Family. Q. What do you understand by the term 'Family'? A. Thomas Sergeant, George M. Dallas, Richard Bache, T. B. Dallas, W. Wilkins, &c. Q. Do you believe the Franklin Gazette is the oracle of the Party ? A. I do — because the Family say so, and through it expect honor, office and a competency. • Recollections of The Life of John Binns, by Himself, 1854, p. 197. i;i:iTOR John ISinns engraving in his autobiography PENNSYLVANIA'S POLITICAL SITUATION 57 Q. You are admitted a Democrat. Remember Ingham and Adams is the word!"' Mr. Binn's paper, however, accepted the candidacy of Shulzc, and the fight was then on against the Fed- eralist candidate, Andrew Gregg. And why should the gubernatorial election be the center and circumference of Pennsylvania State politics? Important as it is now, it does not in any degree approach the place it had in politics at this period, so that it is difficult for a citizen of the twentieth century to fully realize its significance, although the cause of it can be easily stated. This cause was the fact that nearly all public offices in the State and counties were filled by appointment of the Governor, under the constitution of 1790, then in force. This made the gubernatorial patron- age simply astounding, at least to the eyes of one accustomed to the extensive elective features of the present constitution.^ And it made the task of a governor next to impossible of accomplishment without sowing seeds of discord in every nook and corner of the Common- wealth. It was Governor Hiester's efforts to conciliate all elements by a distribution of these offices that was one fruitful source of the bitterness against his adminis- tration and all who favored it. Mr. Binn's appoftitment as an alderman of Philadelphia especially enraged the now dominant element, and they attributed to this the source of the "apostacy" of the Democratic Press and its editor in the last gubernatorial election. All were now agreed on Shulze, except his defeated rival, George Bryan, of Lancaster, whose public letters to this effect were made the butt of ridicule by both the Gazette and Press. "Who is Shulzc?" said the Bryanites and the Fed- eralists, and it may be well to gain some idea of the man to whose cause Ellis Lewis, of Williamsport, attached himself. He was born in Berks County in 1775. the son of Rev. Christopher E. Shulze, a native of Saxony, who was educated at the universities of Jena ' Ingham was one of the candidates for Governor before the convention ■finally decided on Shulze. * Article II, Section VIII of the Constitution of 1790-1: "He shall appoint all officers, whose offices are established by this Constitution, or shall be established by law, and whose appointments are not herein otherwise provided for," etc. 58 KLLIS LEWIS and Halle and was a professor in the latter. The father came to America in 1765 and became a German Lutheran pastor in Philadelphia and in Berks County, and married the daughter of Rev. Dr. Henry M. Muhlenberg. The son, John Andrew, was educated for the ministry in Lancaster and New York under the supervision of his father and uncle. He was finally ordained to the ministry and served in Berks. County for six years. In 1802 ill-health compelled him to do something else, and he became a merchant with eminent success. He served in the Legislature and declined an appointment as Surveyor-General under Governor Snyder, who then appointed him to the various clerical offices of Lebanon County. He was elected to the Legislature again and in 1822 to the Senate for Dauphin and Lebanon.'^ He was accustomed to success in elections, and when the complete returns came in in October he had carried the State by over 25,000, the only regions giving a majority to his Federalist opponent being Philadelphia city, Dela- ware, Bucks, Chester, Lancaster, Adams and Luzerne Counties." The "small notion of supporting Mr. Shultz" which Ellis Lewis held on May loth developed into vigorous championship, so that with Shulze's election he claimed two offices for himself and Coryell, and his own was the Deputy Attorney-General's office. *T have this moment returned from Harrisburg," he writes his brother on January 24, 1824, "and hasten to answer your letter. * * * We have had a hard struggle to get Coryell appointed. His opponents were first Turk, then Wood, and lastly CoL McMcans himself. After a great deal of squabbling in Harrisburg on the subject I succeeded on Tuesday last in getting the commissions in my pocket. This will be an advantage to me — and to say the least of it, I needed it much — the former proty [prothonotary] and shff [sheriff] being both friendly to others deprived me of all the business they could — the appointment of Deputy Atty Genl will also help me some — * * * was sworn in on Saturday last. * * I was appointed through the recommenda- ' From the Pennsylvania Intelligencer, reprinted in the Franklin Gasette of May 13, 1823. Also Lamb's Biographical Dictionary. * The exact majority being 25,802, according to the Franklin Gazette of November i, 1823. PENNSYLVANIA'S POLITICAL SITUATION 59 tions of Judge Chapman and his associates of Lycoming County, Judge Hcrrick and his associates of Tioga and both our members, — with many other warm friends. But McMeans and Burnside are ^atly against me." He adds that the latter tried to secure Van Home's appoint- ment, when Van Home and Lewis had a mode of agree- ment of their own, by which it was to be decided which should make application.^ 'J'he young Deputy Attorney-General of these two counties had now been victorious in journalism, law and politics on a local scale and was generally recognized as on the high road to success.- As he was deputy for both Lycoming and Tioga it seemed wise for him to live for a time at least in Wellsborough, and he moved there during the year 1824. His bright prospects were sud- denly and seriously threatened, however, by the appear- ance of a disease in one of the lower bones of the leg. On January 14. iS^S, he writes from his new home: "The hand of afliiction has been long and heavy upon me. Ever since November I have suffered and been entirely unable to attend to business, by reason of a sore leg. I had to send' twenty-seven miles for surgical aid ; but instead of amputating, it has been opened to the bone as many as five or six times ; it is a little better now, but I am sometimes fearful that 1 shall have to lose it — I was prepared for amputation in the early stage of the complaint and could have borne it freely, but I have been reduced so very much that I feel as if I dread it now." By the following month his condition was so serious that Mr. Wallis' family desired him to be brought back to W'illiamsport where they could give him more attention. This was done, and on February 5th, he writes Eli Lewis at York that he is unable to attend to any kind of business, and that Mrs. Wallis' care has improved him somewhat. "No man," said he, "can sufficiently vmderstand the agony of mind I experienced when, after removing to Tioga, using every exertion, late and early, and at last gathering sufficient to place ' This commission, amon^ the Lewis papers,^ bears date of January 13, 1824, under the hand of Attorney-Cieneral Frederick Smith. * Tunison Coryell, in his manuscript autobiographical notes, in possession of his son, John |5. Coryell, Esq., of Williamsport, says that as Deputy Attorney-Cieneral he "won the respect of the senior bar," and that he had "a strong legal mind." 6o ELLIS LEWIS mc entirely out of debt, and having business enough to ensure a good living — suddenly every hope — every cheerful anticipation was blasted by the dreadful stroke under which I am now suffering — my business neces- sarily neglected — my little stock of money dwindling away — and the bark which I had rowed up stream with so much toil rapidly descending to the place from whence I started." He was still hopeful, however, and stated that he was building a house in Wellsborough and should go up there in the spring again. The hopefulness of the ambitious young Deputy — or, as the office is now called. District Attorney — was well founded, and in due time he was in his Wells- borough home, a two-story log-house, about the site of the Packer residence. Courts had been held in Wells- borough — as it was then spelled — scarcely more than ten years, and there was but one other resident attorney there — a William Patton, and he died in i82'3, so that to many Ellis Lewis was ever after known as the first resident lawyer, and therefore "the father of the Wells- borough bar." This log-house, which was his first home there, was two stories high. He used the upper floor as an office and, in order to economize space, used a ladder to reach it, drawing it up after him. At the appearance of a visitor who wished to interview the Deputy Attor- ney-General, Mrs. Lewis called to him, the ladder was lowered and the visitor climbed to the source of the law.^ Law students ascended by this means also, for at least one is known to have begun in April of this very year, 1825, namely, Hon. James Lowrey, 1802- 1875^. ^^""^ i^ "^^y ^^ noted that during the summer another friend called more than once. Dr. William Gar- retson, a cultivated man who had been reading medicine for sometime past with Attorney Lewis' brother, Dr. Webster Lewis, of Lewisberry, and now made Wells- borough his home, and by September 13th following was so well advanced in the law also as to be admitted.^ What is more, his office also became, late in the year, ^ A History of Tioga County, 1897, pp. 153-4 and 317. While this volume is inaccurate regarding Lewis' life elsewhere, it seems reliable on his life at Wells- boro. Mr. Garretson became so well-known that Buchanan, when Minister to the Court of St. James, offered him the post of private secretary, which he declined. 2 Ibid. 3 Ibid. Mrs. Ellis Lewis From a daguerreotype in possession of Miss Josephine Lewis, Philadelphia PENNSYLVANIA'S POLITICAL SITUATION 6i the first editorial rooms in Wellsborough, for liis nephew, Rankin Lewis, probably a graduate of Eli Lewis' print- ing office in York, was persuaded to start The Tioga Pioneer, with his uncle Ellis as editor, and launched the first number on December 3, 1825/ The motto was significantly different from that of the Gazette, for it held that "knowledge is power — is wealth — ^is happi- ness." It is possible that Garretson often contributed to its columns and gained the ideas that made him its editor some years later. The printing outfit had been secured at Sunbury and the paper put on a basis that carried it for over a year. His condition and the amount of business as Deputy Attorney-General led him to conclude to devote himself only to Lycoming County, and on January 27, 1827, Attorney-General Frederick Smith commissioned him for that county alone, and he gave up the paper, which was sold to interests in a rival town. It should be stated at this point that while at the bar in Williamsport he had the leading influence in securing the establishment of the United States Court there and had a considerable practice in that tribunal. One case in this court comes down to us. "A number of years ago a fugitive slave was rescued from the pos- session of his owner, in the town of Danville, Pennsylva- nia," says a writer in the Democratic Rcviczv,^ "through the instrumentality of a writ of hmnim replegiando. The Hon. David Petriken (who subsequently acquired in Congress the cognomen of 'previous question' ) was the prothonotary who issued the writ. An action of tres- pass, and separate actions for the penalty of five hundred dollars, under the act of Congress of February 12, 1793, were brought against him, and each of the persons engaged in the issuing and service of the writ; and after the collection of several penalties, with costs, from some of the most responsible parties, Mr. George Sweeney, an editor of a public journal, was lodged in jail for the penalty recovered against him for the same rescue. So high was Ellis Lewis' reputation for abilities, and a knowledge of the ])ractice in the United States Court, ' Years later, March g, 1833, the Towanda Northern Banner stated tliat its own name was originally used by Ellis Lewis in Tioga County, as it was informed. -The Democratic Review of New York, for .April, 1847, p. 359. 62 ELLIS LEWIS that Mr. Sweeney supposed he could extricate him, even after his other counsel had failed, and after judgment had been recovered against him ; and he accordingly sent a distance of nearly a hundred miles to engage his profes- sional services in his behalf. His expectations were not disappointed." During 1827, his leg, which had caused him more or less trouble ever since his first attack, grew worse as the year wore on, and on November 4th, he writes Eli at York : "I have been long confined unable to rise from my bed and a great part of the time unable even to stir myself without assistance. It is occassioned by the sore leg with which I have been so long afflicted. * * * * I am now just able to sit up. I wrote for Webster, * * '■'•' I think it probable that as soon as I can be got able to ride I will have to go to Phila. to have a consultation, and amputation of my leg if necessary — I begin to fear that nothing else will save my life — and I am so far gone that I am not certain even that will. If Webster should come I shall do as he advises of course." Dr. Lewis and his brothers, Eli and James, at once urged that Ellis be brought down to the doctor's home in Fairview Township, and on December 8th Ellis writes from there : "I have arrived at Webster's with Josephine at last. Mr. Wallis brought us down in his carriage."^ He was detained in Williamsport a week and improved enough so he could stand a forty-mile ride to Northumberland. A stop was made here, and at Halifax and Harrisburg for as many nights. The next day Dr. Lewis and Dr. Roberts, of Harrisburg, performed an operation, which revealed that about an inch and a half of length of the tibia, or large bone of the lower leg, had been destroyed by necrosis, and that a shell of new bone had entirely surrounded the dead bone, except two apertures. In a delicate operation, and most successful one for the period and region, the dead matter was removed. "Ellis bore this tedious and painful operation with great firmness — even amounting to heroism," said Dr. Lewis in a letter on December 9th to Eli — "never once flinching in the slightest degree — he even occasionally interrupted vis with a joke. He is ' He was carried down on a stretcher (see C. D. E. in "Now and Then"). PENNSYLVANIA'S POLITICAL SITUATION 63 now in high spirits." He also says that he wishes they could persuade Ellis to settle near tlicm, as a rapid recovery was entirely probable.* » Dr. Lewis' letter describing the disease and operation ought to be among the records of Pennsylvania surnery. It is now in the possession of the College of Physicians, Philadelphia. CHAPTER VI He Settles at Towanda, and is Sent to the Legisla- ture AS AN Independent, But Supports Governor Wolf 1829 Just how long the Deputy Attorney-General was convalescent is not known, but there is reason to believe that it was long enough to last well into the year 1828, and that he found it wise to remain near the Wallis home in Williamsport, where he could receive good care and at the same time be near enough to his business in the various counties about the forks of the Susquehanna. During January, however, his condition was such that he concluded to forward his resignation to Attorney- General Smith. The latter replied on the 9th of Feb- ruary, stating that he had received his letter of the 4th instant containing his resignation on account of ill- health. "I most freely declare," he added, "that you conducted the prosecutions of the Commonwealth, con- stantly, to my entire satisfaction ; no indictment of yours having been quashed to my knowledge."^ His fears were not realized, however, for he steadily improved and soon began to look after his business there and in the surrounding counties. Bradford, immediately east of Tioga and northward of Lycoming, was growing in a most vigorous way at this period, so that it was passing old Lycoming County itself, in the matter of population.- He had some business in the courts at Towanda, its capital, and he was admitted there early the following year.^ Indeed, he seems to have been ' Letter among the Lewis papers. * The Settler was quoted in the Democratic Press of May 19, 1829, as saying that from the 6th to the 19th of the preceding month — April of this year 1829, "1,099 rafts and 236 arks, navigated by 3,083 men, and laden with produce ■vahied at $400,000 passed the town of Towanda." * History of Bradford County, 1878, p. 182, based upon a prepared list in the Prothonotary's office, says he was admitted in 1828, but the Quarter Sessions Docket, No. 2, p. 193, states that he was admitted and sworn in as attorney and counsellor in the several courts on May 11, 1829. David VVilmot, 64 A MEMBER OF THE LEGISLATURE 65 uncertain about not only his health, but uncertain where to settle during the whole year of 1828, when the Jackson campaign was at its high tide of enthusiasm. Dr. Webster Lewis tried hard to persuade him to settle in York County, but his brother, Eli, had gone to Balti- more and- he felt drawn to the region where he won his first place in the world. While on his various visits to Wellsborough and Towanda he became much interested in the latter's growth, and especially in the newspaper plant, as he was also in one at Sunbury. The fact, how- ever, that his wife and her sister, who was the wife of the editor at Towanda, were especially devoted to each other and that Ellis Lewis himself was greatly impressed with her husband, James P. Bull, led him to consider the situation in that place with special favor. Lewis' old antagonist, Simpson, had tried to start a paper in Towanda years before in vain, and about the close of the war of i'8i2. Generals Samuel McKean and Henry Willis and others of similar JefTersonian interests founded the Gazette. This in 1818 was changed to the Bradford Settler, and was published with eminent success by Mr. Bull, who was an editor of considerable talent. He was a partner in other business, however, and tried to persuade his brother-in-law, Lewis, to join him. and the latter was inclined to consider it favorably and persuade Eli to come up from Baltimore and join them. "This is, perhaps, the last letter you will receive from me. written at this place," he writes to the latter from Williamsport on March 14, 1829. "I believe I informed you in the last letter I wrote you of our intended removal to the Borough of Towanda, Bradford county," and after referring to Dr. Lewis' plans to keep him in York County, he explains that he removes "to Towanda to practice law. and, in order that Josephine may be near her sister, Mrs. Bull, who has also been a sister to me. I have also a great regard for Mr. Bull." He then presents his plan for Eli to buy out the Settler. Towanda was a strategic place to settle at this time for several reasons, for the General McKean interests con- stituted one of the wedges which "The Family" or of Wilmot Proviso fame, was admitted about five years later. September 8, 1834, and in a sense became Lewis' successor at the Towanda bar. if not in politics. 66 ELLIS LEWIS administration element had used to break up the old Bryanite wing of the Jeffersonian, now Jacksonian, party. For Jackson had swept Pennsylvania as well as the rest of the country^ and "The Family," as the Demo- cratic Press persisted in dubbing the administration ele- ment in the State, was stronger than ever ; for Mr. Binns had made the mistake of his life in opposing the doughty victor of New Orleans, and thereafter lost his great influence in the party to which he had contributed so much to give a permanent name — the Democracy. On the very day, March 4, 1829, when, after having been sworn in at the capitol, General, now President Jackson, mounted his white horse and was riding in democratic or western simplicity, or both, back to the White House, the gubernatorial convention of Jackson Democrats was at Harrisburg casting its first ballots for the next candidate. And the candidate that led all the rest, with twenty-five votes, was that of the Brad- ford Settler, General Samuel McKean, of Towanda, with Bernard, of Chester, a close second in a list numbering fifteen in all, and George Wolf, of Northampton, stand- ing about midway with an even dozen followers. There was balloting all the next day without result, except to show that the Chester man had the most votes, but that there was an opposition which was destined to succeed on any one of three names. Mr. Binns' paper had some very shrewd comments on the situation, showing that "The Eleven," as he called "The Family" combination who had recommended Ingham for President Jackson's Secretary of the Treasury, were determined that Mc- Kean, Stevenson or Wolf should be the nominee.- On the morning of the 6th, the McKean supporters all went over to Wolf and the Stevenson men followed, giving seventy to the Northampton man and sixty-two for the candidate from Chester.^ On the loth, Binns ' For an idea of how Jackson captured the State see map illustrating it in Vol. I, of "The Life and Speeches of Thomas Williams, 1806-1871," by Burton Alva Konkle, 1905. - Binns' Democratic Press of March 7, 1829. ^ The MacKian, or McKean family — as it was spelled when it became Americanized — came from Scotland to Cecil County, Maryland, about 1740. Here General McKean's father was born and in 1791 settled in what is now Bradford County, Pa. The General's birth had occurred on April 7, 1787, ,in Huntingdon County, and at sixteen years of age he had been sent to live with his maternal uncle in Maryland— a Quaker of some learning, who took his education in hand. In due time he returned to what is now Bradford County and became successful in trade and in politics by opposing the Federalists. George Wolf, From an engraving- ir. CiOVERNoR Of Pennsylvania l,.inir.i(-ri"- National I'ortrait Gallery A MEMBER OF THE LEGISLATURE 67 g-ently poked fun at the P^radford Settler and expressed mock anxiety as to whether the northern counties would do themselves violence in their chaVol. II, p. 546. * The Democratic Review, 1847, p. 361. ii8 ELLIS LEWIS at this time, occurred about two years after the above case was tried. Early in 1838, shortly before the Iowa Territory was cut out of Wisconsin on June 12th fol- lowing, and when courts were not yet ready, two men were caught charged with passing counterfeit money. Dubuque was then a frontier settlement only five years old — established the very year that Ellis Lewis became a judge in "the far east." "As the people had no other court in operation at the time, what is known as a lynch court was constituted. It consisted of a sort of town meeting, with a gentleman of the name of Peter Hill Engle acting as president. The two men accused were fairly tried and convicted. The testimony against one of them was perfectly clear; he had passed a number of spurious notes, and had a large quantity in his pos- session. He was sentenced to receive a certain number of lashes, as there were no jails or penitentiaries. The other convict had passed no spurious notes, nor had any been found in his possession ; on the contrary, all the money in his possession, amounting to eight hundred dollars, was admitted to be genuine. But the evidence was that the two had lodged at the same inn the night before, and had travelled together that day. This primi- tive tribunal drew the inference, from the circumstances, that one passed the notes, and the other was the treasurer, to take charge of the genuine money received in their business operations. The one found guilty of being the treasurer of the company immediately appealed from the decision. On being asked to what tribunal he appealed, he paused a moment, and then answered : T appeal to Judge Lewis, of Pennsylvania.' " "The record, with the evidence," says David Paul Brown, who gives the incident in his Forum, "was accordingly certified to Judge Lewis, by President Engle, with his written opinion, giving the reasons of the court for the decision. The defendant, whose name was Titus Losey, had been sentenced to pay a fine of eight hundred dollars, and the record showed that the fine had been collected. Judge Lewis entertained the jurisdiction, and gave a written opinion that the mere circumstance of being found in company with a counter- feiter was not sufficient to repel the general presump- PRESIDENT JUDGE AT WILLI AMSPORT 119 tion of innocence ; that man was naturally a social ani- mal ; that this feeling would be manifested more readily where two strangers meet in a new country, and hap- pened to lodge in the same inn, and to be journeying in the same direction. On the whole evidence, the judgment below was reversed, and restitution of the fine (which had been collected) awarded. The record was duly remitted to Judge Engle, to be carried into execution, and the decision was promptly obeyed and the money refunded."^ During the year 1838 occurred an event that had a most important bearing upon the career of the President of the Eighth District. His predecessor had practically spent his entire active life in that position, and Judge Lewis might have followed a like course had not popular discontent with some features of the current State con- stitution been coming to a climax since long before he came to the bench. A vote had been provided for when Governor Wolf had signed the act of April 14, 1835, and the people had voted 86,570 to 73,166 for revision of the constitution. A call was issued by Governor Ritner on March 29, 1836, and the convention opened May 2, 1837. The result was ready for ratification at the October election of 1838, when the "Constitution of 1838" — as it is sometimes called, although more properly the "Amendments of 1838 to the constitution of 1791" — was adopted by a bare majority of 1212 votes. The counties which went against it were Cambria, Chester, Dauphin, Delaware, Franklin, Huntingdon, Indiana, Juniata, Lancaster (by the largest majority of all), Lebanon, Lehigh. ^lifflin, Montgomery. Northampton, Northumberland, Perr}', Philadelphia, Schuylkill, Somer- set, Union and York.^ And what was the meaning of this change in the old constitution? "This instrument," said Governor Porter, who came to the executive chair in the upheaval, which was accompanied by "The Ruck- shot War; or The Last Kick of Anti-Masonry" — to use a current title of the day'' — "gives to popular suffrage ' The Forum, \o\. II. p. 120. Mr. Brown is in error as to the date, as he is in placin^r I.ancaster in the Eighth District, and his service there at twelve years. The incident was evidently procured from Lewis himself, who was living at the date of Prown's article. - "Proceedings and Debates," 1837, p. 261. ^ "Life and Speeches of Thomas Williams," 1806-1872, by Burton Alva Konkle, Vol. I, p. 120, et al. 120 ELLIS LEWIS the decision of many appointments heretofore vested in the executive, and changes the duration of the judicial tenure from that of good behavior to a term of years. It shortens the period of eligibiHty to the executive chair, and reduces the Senatorial term, enlarges the right of suffrage, and changes other provisions, all of which are important in the conduct of the government of the State."^ In other words, it was a victory for popular suffrage and an effort to strike a blow at the political system which centralized so much patronage in the gubernatorial office. It was also a long Jeffersonian step toward making the judiciary responsible to the people alone. It was an echo of the contest between the con- stitution of 1776 and that of 1790. In the convention a delegate from Philadelphia stated that Pennsylvania had had the limited tenure ; "The people have never asked a change in that system," he exclaimed. "In Pennsylvania it was changed by an act of usurpation in 1790; and the people, ever discontented with the change, are now about to right themselves." "I con- fidently trust," he continued, "that Pennsylvania is now about to return to the virtuous institutions of which she was wrongfully deprived ; and I look forward with hope and confidence for the day when there will not exist a life officer in the United States of America."- The second section of the fifth article, as amended, provided that the president judges' terms should be ten years and the schedule of inauguration of the amended instrument provided, among other things, that the commissions of such judges as had not yet served ten years should expire on the 27th of February next following the expiration of his decade of service. Judge Lewis, therefore, knew that as his decade would close in October, 1843, his commission would expire on February 27, 1844. Probably the most notable of the cases which came before him in the Eighth District was one of both national and international interest, which was tried near the close of his decade there. In August, 1842, a case came before Judge Lewis' court at Williamsport in which a Baptist minister by the name of Hall asked for protection against the threats of a man named Arm- ^ Governor Porter's Message of January 15, 1839. ^ "Proceedings and Debates," 1838, \'ol. X, p. 192. The Lewis Home in Williamsport, 1'ennsylvania From a daguerreotype in possession of Miss Josephine Lewis, I'liil.-idcliihia PRESIDENT JUDGE AT WILLI AMSPORT 121 strong, because the latter's daughter, a minor, who had been baptized in her mother's faith ( Presbyterian) had been re-baptized by immersion l)y Hall, against the father's absolute prohibition. The court i)laced the father under l)on(ls to keep the peace, but also found Hall's action unlawful. After treating of the nature of parental authority, and quoting Dr. Adam Clark's com- mentaries, Paley's Ethics, and President Wayland, of Brown University, he shows the common law on the subject. Even "the highest judicial power in the com- monwealth," said Judge Lewis, "dare not attempt to estrange the child from the religious faith of its parents. Shall this power be exercised by a i)rivate individual because he happens to be a minister of the gospel ! Shall any man, high or low, be allowed to invade the domestic sanctuary — to disregard the parental authority estab- lished by the Almighty, to set at naught the religious obligations incurred in behalf of the child at its baptism — to seduce it away from its filial obedience — or even to participate in its disregard of parental authority, for the purpose of estranging it from the faith of its parents, or introducing it into a religious denomination different from that to which its parents belong? God forbid that the noblest and holiest feelings of the human heart should be thus violated — that the endearing relations of parent and child should be thus disturbed — that the harmony of the domestic circle should be thus broken up — and that the family altar itself should be thus ruth- lessly rent in twain and trodden in the dust. "One of the members of this court is a minister of the gospel of the Methodist persuasion, and he makes no claim in behalf of that denomination to the exercise of any such authority. Another of the judges is attached to the Episcopal church,^ and he repudiates every pre- tence of such a claim on behalf of that church — the remaining judge belongs to no particular religious de- nomination, and he denies to all alike the exercise of any such power. No member of this court belongs to either of the religious societies whose rights have been brought into confiict in this investigation. This decision must therefore be free from denominational influences. * Judge Lewis himself left the Friends and was at this time a vestryman of the Episcopal Church at Williamsport. 122 ELLIS LEWIS It is as niucli in i)rotection of parental authority among" the Baptists as it is in affirmance of similar rights among the Presbyterians. The principle of parental authority and filial obedience has its home in the human heart — is in accordance with the law of nature, and will ever be near and dear to every good man of every religion under the sun. It has already been remarked that there is no limit to that authority save that which is neces- sary for the preservation of the health and morals of the child. Without the slightest disrespect for the Baptists, for whom there is every respect for their virtues and piety, it may safely be affirmed that the morals of the child were not endangered by remaining within the folds of the Presbyterian church, in which it had been baptized, and to which its mother belonged. There was therefore no just ground for interfering with the parents" authority, or for participating in the act of filial disobedience committed by the child. The pro- ceeding cannot be justified under any claim founded upon the rights of conscience. The child whose con- science stimulates it into open rebellion against the lawful authority of its father, stands more in need of proper instruction and discipline under that authority than any other. If every child, under a claim founded on the supposed rights of conscience, were allowed to carry into effect every decision of its immature judgment where is this to end? Who shall prescribe limits to the crude conceptions of its youth and inexperience? — shall it be allowed, vmder this pretence, to violate the law of God? — to repudiate the Christian religion? to become a Jew or a Mohammedan? Or, retaining the Christian name, shall it be allowed to mingle with the Battle-axe community, who make it a matter of conscience to dis- regard the holy institution of marriage? Or, upon this pretence, shall the beloved daughter of a Christian parent, in a moment of delusion, and in the tender years of her minority, be allowed to become one of the secret wives of the Mormon prophet? "It is dangerous to depart from established principles. Parental authority is not to be subverted so long as it is exercised within the limits which the law has pre- scribed. It is the duty of the parent to regulate the PRESIDENT JUDGE AT WILLIAMSPORT 123. conscience of the child by a proper attention to its education ; and there is no security for the offspring during the tender years of its minority but in obedience to the authority of its parents, in all things not injurious to its health or morals. "We wish it to be distinctly understood that no imputations are cast upon the motives of Rev. Mr. Hall. We believe that he acted conscientiously as he conceived to be right. But, in our opinion, he has transcended the divine and human law in disregarding the authority of the father over his offspring while in its minority. This is the opinion of the constitutional authority — the result of our conscientious convictions of the law, and it is hoped that he will feel himself bound to respect it accordingly in any after proceedings. In refusing to render to Caesar the things that are Caesar's, he has fallen under the condemnation of the law. It is therefore ordered that he pay the costs on this application."' "This opinion," says an editorial in the Daily Pcnnsyl- vanian," "was republished almost universally throughout this country, with the cordial approbation of every religious denomination, except a few of those who belonged to that of the offending preacher. The Roman Catholics themselves were among the loudest in their tones of approbation. The Hon. Joseph R. Chandler, then editor of the United States Gazette, took occasion to say that his impressions were decidedly with Judge Lewis. Mr. Chandler is an eminent and intelligent Roman Catholic, and now represents this country at Naples. But this is not all. We have been informed that a Roman Catholic of the highest ecclesiastical standing in this country published a work in which the decision of Judge Lewis was cited with the cordial endorsement of the author. That work, in the Latin language, has, it is said, for years formed part of the Pope's library, and the Pope himself has referred his American priests to the book and to the decision in terms of the highest gratification." As soon as it was published Chancellor James Kent made a note of it for a revised edition of his commentaries and wrote Judge Lewis that he had ' United States Criminal Law. Lewis, pp. 20-24. - I'hiladclpliia, December 30, 1858. 124 ELLIS LEWIS done so, "as a just explanation and application of the parental authority, to a case like the one before you."^ Robert C. Grier, afterwards of the Supreme Court, called it "clear as a demonstration, and the conclusion incontrovertible, by any who acknowledge themselves bound by the law of the land, or the word of God :;= -'f :i: ."2 y^hiie Prcsidcnt Wayland described it as "sound in principle and impartial in spirit."^ At this point it is necessary to glance at his relations to politics, in order to understand the changes that accompanied the expiration of his commission. His well- known friendship for Governor Wolf led to his being invited to write a sketch of him in 1835 — after he had been something over two years on the bench — for Long- acre's Portrait Gallery of Distinguished Americans. In this he says : "Although Governor Wolf was a supporter of General Jackson on each of the occasions when that individual was before the American people for the dis- tinguished station of President of the United States, still, there were some important measures of public policy in which he entertained opinions somewhat at variance with those of the President. Believing the United States Bank to possess a salutary influence in regulating the currency of the country, he approved and signed a reso- lution of the Pennsylvania Legislature in favor of re- chartering that institution. After the publication of General Jackson's celebrated veto, and during the prog- ress of the electioneering campaign, some of the friends of the bank endeavored to procure from the Governor an expression of opinion adverse to the reelection of General Jackson. But Governor Wolf's opinion of the qualifications of Andrew Jackson for the presidency, at that critical period of the history of the country, did not depend upon the views entertained by the General on the bank question. Under these circumstances, the friends of the bank in Pennsylvania, in order the more effectually to reach General Jackson, at the election which was td take place in November, 1832, united with ' The letter was dated "New York, October 5, 1842." The note is on pp. 262-3 of Kent's Commentaries, edition of 1844, where he refers to Judge Lewis' "learned examination of the subject." Brown's Forum also gives the de- cision in full with extended comments on it in Vol. II, pp. 123-8. - Letter of October 14, 1842. ' United States Criminal Law. Lewis, p. 24. PRESIDENT JUDGE AT WILLIAMSPORT 125 the Anti-Masonic and Anli-Improvement party in oppos- ing the reelection of Governor Wolf, which took place in the October preceding-. Notwithstanding this pro- cedure on the part of the friends of the bank, Governor Wolf, on his reelection, in his first message to the Legis- lature, reiterated his opinions in favor of the United States Bank."' On March 15th of the year this sketch was written, Judge Lewis, while visiting at Bethlehem, Pennsylvania, drafted a letter to Van Buren, in which he refers to a conversation they had had in '33, on the situation in Pennsylvania.- He had predicted all that had, by 1835, come to pass — namely, that Pennsylvania would ulti- mately favor Van Buren for President. "As one of the many htunble instruments in the hands of the. people," Judge Lewis continues, "I have contributed my mite to produce this result. It is a result which accords with my feelings and is sanctioned by my best judgment. Surrounded as every influential man must be with thou- sands of greedy office-hunters seeking their own advance- ment more than the public interest, it must be gratifying to receive a line occasionally from an individual who has no request to make either for himself or friends. There is no office either in the General or State govern- ment which I would accept in exchange for the one I already hold. You may therefore place my agency in the support I have given to your nomination entirely to the account of public interest. The first object I had in view was the nomination of Gov. Wolf. The interests of internal improvement and education required this. If Wolf is not sustained in his fearless course on these subjects the example will be dangerous and demoralizing in its influence upon all public men in time to come. The people should so act in reference to their public men as to teach and keep teaching the lesson that public men will always be sustained while they act with a firm and fearless devotion to the public interest. The next 'Vol. II, closing sketch. It was not until 1873 that the authorship of this and its companion sketches were generally known. On October 29th, of that year, John Jay Smith, Ksq., one of the writers, with the aid of the daughter of James \\. Longacre, Mrs. John F. Keen, gave a communication to the I'hiladclphia Press, in which a nearly complete list of writers of the articles are given and the sketch of Wolf is given as the work of Judge Ellis Lewis of Williamsport.. ^ The introductory paragraph is given elsewhere in this volume. 126 ELLIS LEWIS ol)jcct I had at heart was your nomination for President. In tliis I am free to say that there was nothing of per- sonal fceUng involved. It was a matter of principle alone. 1 approve the measures of General Jackson's administra- tion and I think that you are the man most likely of all others to perpetuate and sustain them. In this view I am sincerely desirous of seeing you elevated to the Presidency and have no doubt of your ability to do honor to the station. "Your nomination has been made by 83 delegates who were sincerely and truly the friends of Gov. Wolf — 67 would have been sufficient to make the nomina- tion in a convention of 133, but 83 united in the measure. Those who claim to be your exclusive friends — who say they enjoy your exclusive confidence — did not participate in the nomination. The nomination was made by men attached to union & harmony — men who are sincere in their determination to sustain both candidates named. Why ought there to be any further discord between your friends & those of Gov. Wolf? Thus far the discord may have answered one good purpose. / zvill not say that it has not aided me in bringing about the result I had in viezv before I left home. But I am certain that every step, it progresses further zvill produce utter ruin, so far as our national politics are concerned} It can do no good — it must do harm. You know that there has arisen a mutual distrust between the friends of the State administration and those claiming to be your exclusive friends. This distrust ought to cease — and the evidences of it ought to be no longer furnished by either party to the other. The officers of the general government (with one excep- tion * * * ) ^iXid the applicants for office to that government, whenever they acted as delegates at the late convention, acted against Gov. Wolf. [Here fol- lows mention of names and actions in detail.] * * * These are only a few instances. But many more might be named. The conduct of these men is calculated to induce a belief that there is an influence at Washington hostile to the State administration. As these men pro- fess friendship for you it is calculated to create an impression that you have some agency in their proceed- ' What this reference is there have been no means of discovering. PRESIDENT JUDGE AT VVILLIAMSPORT 127 ings. Every one justly or unjustly is thus made to suffer for the conduct of his friends. Do you know of any means to induce these men to unite and harmonize with the party?" The letter is marked "Not sent," which fact, however, does not affect its force as an illustration not only of the political influences of the day, but shows Judg;e Lewis' close touch with prevailing influences in the JDemocracy of Pennsylvania and his desire for the general welfare of that party. It also shows his love for the judicial life, and particularly the post he then occupied. Seven years later, when David R. Porter was Gov- ernor by virtue of this united Democracy, Ingham, the one-time Secretary of the Treasury under Jackson, issued a pamphlet which contained an attack on Judge Lewis. Just why there should be such an attack at this time, No- vember 8, 1842, near the expiration of Judge Lewis' term, does not seem clear, unless Judge Lewis' name was being considered in Washington for some national position. Governor Porter in a letter of above date to Judge Lewis, says : "Soon after the conversation we had last spring about affairs at Washington, I ascertained enough to satisfy myself that no change was seriously thought of ; and subsequent events have gone far to confirm that opinion. And I tell you now that if any change be made at all, there will be but one ; and in that event Gushing will come into the War Department or probably the Treasury. In this I think I cannot be mistaken. So do not give it another thought." He then compliments Judge Lewis on his "address to [on?] the Hero of the Thames" — no other note of which has been found — and then devotes the rest of his letter to the Ingham pamphlet (a part of the letter already quoted on page 76), saying, among other things, "I think you ought to give him a skinning, and a severe one." Whatever else the incident may or may not show, it serves to illustrate the consideration which Governor Porter and the Democracy of Pennsylvania had for the President Judge of the Eighth Judicial District, the expiration of whose term of service was now so near at hand. CHAPTER IX His President-Judgeship of the Lancaster District AND His Authorship of "An Abridgment of the Criminal Law of the United States," to Supplement "Kent's Commentaries." Medical Jurisprudence 1843 During 1842 it was evident that the Democracy of Pennsylvania intended to honor President Judge Lewis, of WiUiamsport, and those who feared his power in that party's counsels began to attack him. Chief among these was Jackson's late Secretary of the Treasury, Hon. Samuel D. Ingham, whose plans Lewis had de- feated in Bradford County, as Governor Porter's letter, before referred to, has stated. Mr. Ingham had tried to interpret Judge Lewis' interest in the banking laws of 1840 and his presence in Harrisburg as reflecting on the Judge's honor.^ The only reply to this made by Judge Lewis was his request, on August 18, 1842, of Thomas Chambers, Esq., of the Montour Iron Works, on whose alleged statements Ingham based his charges, for a signed statement such as he would be willing to swear to should it be required. In this statement Mr. Chambers absolutely denied Ingham's charges, and Judge Lewis gave the two letters to the public. There- upon Ingham got out a pamphlet at his own cost and tried most ingeniously to make his case, with the result that Governor Porter thought he deserved the "skin- ning" which Lewis ought to execute.- The Judge, how- ' The suspension of specie payments by the banks of Pennsylvania and the movement in the Legislature of 1840 to compel resumption at some wisely agreed upon time was a matter that enlisted the personal interest of every citizen and was one upon which a variety of opinion existed. So far as can be learned Judge Lewis and Governor Porter were at one in opinion as to a wise medium course. ^ The only copy of this pamphlet which the author has been able to find is in the Ridgway Library, Philadelphia. On May 28, 1844, other efforts of Mr. Ingham's friends were made because, according to a letter of Ingham's of June 3d following — now at the Historical Society among the Buchanan Papers — Lewis was a candidate for the vacancy on the National Supreme 128 JUDGE, AUTHOR AND PROFESSOR OF LAW 129 ever, considered it a closed incident, and his party was more than ever determined to honor him. It was about this time tliat Hon. Benjamin Champ- neys, President Judge of the Second District, embracing Lancaster County, resigned in order to be a candidate for the State Senate, and as the Second District was the most important outside of Philadelphia and Pitts- burgh, Governor Porter on January 5, 1843, nominated Judge Lewis as successor to Judge, now Senator, Champ- neys, and the latter gentleman so desired Lewis as his successor that he made a motion to waive the rules on January 6th, and consent to the nomination.' Some obstructives objected, however, and it was delayed, but on the same day, when the nominations for the United States Senate were made for successor to Senator James Buchanan, Judge Lewis' name was presented by Senator Kidder for this high office also. Lewis' name was withdrawn the next day, however, and soon after- wards Senator Buchanan was made his own successor. - On the 14th of January the little group of obstructives in the Senate attempted to prevent the nomination of Lewis and compel him to still further reply to Ingham, but by a vote of 25 to 4 Judge Lewis was confirmed as President Judge of the Second District and resigned from his old post, the term of which was about to expire. One of those who opposed him in the Senate was Senator Darsie, of Pittsburgh, who, on January 23rd, made a motion that looked much like a determination to follow his defeat by further efforts at persecution. This was an effort to have the special "District Court" at Lancaster merged into the regular Second District, but it also failed. This "District Court," technically so- called, was a relief court, like similar ones in Philadel- phia and Pittsburgh, and had been established in Lan- caster so early as 1820, when it was presided over by the learned editor of Smith's Laws. The court had had a varied experience, but by the act of March 11, 1840, IJcnch caused by the death of Justice Baldwin. A letter of Judge Lewis' of October 23, 1845, to Huclianan denies that he was a candidate or was making application — "The office is entirely too exalted to be sought for by any such process," he adds. ' The custom of appointing a judge without regard to his residence seems rather startling to the present generation, but dissatisfaction with it was of cornparatively slow growth, and a change came only with a vital change in judicial constitution. - The I'tiblic Ledger, January 9, 1843. Also Senate Journal for that year. 130 ELLIS LEWIS it was re-established for ten years, and its Presiding- Judge was Hon. Alexander Hayes. To have abolished this court would have thrown on Judge Lewis' shoul- ders, as President Judge of the regular Common Pleas Court of the Second District, the burden of the entire business of Lancaster County. And this was a serious matter — especially at this time, for, omitting Philadel- phia and Pittsburgh, the business of the Lancaster judiciary was the greatest in the State. Fortunately, an analysis of the business of the courts of the counties of Pennsylvania has been made for nearly the exact decade during which Judge Lewis sat on the Second District bench. ^ In the mere matter of number of days in jury trials, which covered 90, and other trials, which covered 92, a total of 182 days of court, no county in the State, except the metropolis of the east and the west, compared with Lancaster. Chester came the nearest, with 106 days. Criminal cases were not so numerous in the Second District, there being but 120, but only Montgomery and Erie had more. The list of civil cases was tremendous, however, going far beyond all counties — always omitting Philadelphia and Pitts- burgh — the number reaching 720, the nearest approach to this being 400 in Lycoming County, from which Judge Lewis had been transferred. What is more, 480 of the 720 cases were tried, and only two other counties had tried so many as 100, these two, Northumberland and Montgomery, having but 141 and 140 respectively. The cases continued were 33/^ per cent, of the cases tried — a record equalled by but one other county, while but four others had a smaller proportion. It will be well to remember in this connection that in 1850 Lan- caster County had a population of 99,003, with a total assessed valuation of $721,774, the only other county approaching it (omitting the two with largest cities) being Berks, with 77,176 people, with no other one con- taining so many as 75,000, while in assessments Lan- caster was the only one quoted above $525,000. But with all this extensive business in Lancaster County, Judge Lewis had handled his share of it for six years with such care and dispatch that, on February 5, 1849, the ' Report to the Legislature on the judiciary for 1841 to 1850, omitting Philadelphia and Pittsburgh. jiiic.E Ellis Lewis Sillioiuttf made at Saratoga in 1843. in possession of the Historical Collection ot the Pennsylvania liar Association, Philadelphia JUDGE, AUTHOR AND PROFESSOR OF LAW 131 special "District Court" was abolished and the business turned over to the court presided over by Judge Lewis. For the six years previous to this consolidation, few appeals were made from the Common Pleas Court of Lancaster County. There was but one in 1843, and that was affirmed, and the two in '44 furnished both an affirmation and reversal. The reversals in '45 were two with one affirmation, while 1846 furnished three to two; but 1847 balanced this by five affirmations and but two reversals. In 1848 there were four appeals with but one affirmation. With the consolidation in 1849 there was a great increase in appeals, the number reaching nine in that year, although six of these were affirmed ; while in 1850 there were eleven, seven of which were affirmed. A few that went over into 1852 gave three reversals and two affirmations — all of which was a most creditable record. In the first of these cases, the Supreme Court did him the honor to say that "the reasons given for the opinion of the Common Pleas are so full to the purpose, and in such entire accordance with the sentiments of this court, that nothing material remains to be added," and they use it in full. "The claim," says Judge Lewis in his opinion, "is a strictly legal one, or it is nothing. 'It is without a particle of equity.' It might also be said that it is against equity, as it is certainly against the common feelings of natural justice that the real estate of the wife should be taken from her mother and brothers and given to those who are strangers to her family. The husband's representatives depend entirely on a legal claim under the date of 1832. This they have failed to establish, as the paper was not filed, nor any order obtained awarding the money to the husband until after the rights of the defendants as heirs of the wife had vested."' In most of these cases the matter was largely technical, and are sufficiently known to the legal reader. One case in 1849, an instance of a husband's will divert- ing property in case the wife married again, roused the Judge to an interesting expression on the preservation of the human species, although his decision was not sustained by the Supreme Court, whose opinion was ' 5 Watts & Sergeant, 504. 132 ELLIS LEWIS expressed by Chief Justice Gibson.^ Another case bear- ing on this field, a medico-legal case, was of such inter- est that the distinguished physician, Dr. Washington L. Atlee, sent the decision to the American Journal of the Medical Sciences, Philadelphia, and it appeared with one other in the October number, 1846.- Another opinion that was more widely published was one which has a most interesting expression in it on declaration of unconstitutionality of an act by a court.-^ "This opinion," says Judge Lewis in closing, "is of course confined to the case before the court. It is presumed that the legis- lature did not intend the general expressions of the act of 1842 to operate upon mortgages executed before its passage. There is ample scope for the operation of the law upon cases subsequently arising, and upon cases where there was no specific pledge of property by con- tract. As the members of the legislature are under oath to support the constitution, it is the duty of the court to reconcile their acts with that instrument if possible. It is not every general expression in a legis- lative act that should be construed into a violation of the constitution. But if the act of 1842 was intended to operate upon cases like the one before the court, it is our duty to obey the constitutional mandate of the people, in opposition to the unauthorized acts of their servants. So far as the law may be understood to operate upon mortgages executed and recorded before its passage, it is unconstitutional and void." The Balti- more Patriot of March 5, 1845, in reprinting the decision, says: "It is gratifying to perceive that there are men in good old Pennsylvania determined to shake ofif repudiation in any form. When we see a judge rising above the influences by which he is surrounded, and fearlessly casting the shield of the constitution over the rights of the humblest citizen, as a protection against the encroachments of power, we feel a renewed confi- dence in the stability of our government, and in the ' 10 Barr, 352-3. ^ Commonwealth vs. Hoover. 3 Lancaster Savings' Institution vs. Reigart, April term, 1844. This was published in the Pemisylvania Law Journal, well-known to lawyers, and in various metropolitan dailies. Counsel for the defendant in this case was Thaddeus Stevens. This decision was all the more notable because it was against the Supreme Court of the State, but sustained by that of the Nation. Democratic Review, 1847, p. 361. JUDGE, AUTHOR AND PROFi:SSOR 01' LAW 133 security of our liberties. We may add that the hi^^h legal reputation enjoyed by the author of this decision is a guaranty for the soundness of its law, no less than for its conformity to the received notions of equal and exact justice between man and man." During his judicial career in Lancaster many of Judge Lewis' opinions were published. During his last year at VVilliamsport, Messrs. Wallace and David, at Philadelphia, began the issue of the Pennsylvania Law Journal, when they were able to say : "We are aware of but one publication which may be called a law magazine in the United States. We refer to the United States Law Reporter." and later explained that they did not mention the American Jurist because it was more of the nature of a review than a magazine. In this Judge Lewis' decision on the Rev. Wm. S. Hall case was pub- lished, together with Chancellor Kent's letter regarding it, and from that time on his opinions frequently, indeed almost regularly, appeared in that journal, to which he gave much counsel in an editorial way.' In 1845 ^ well- known law publisher in Harrisburg sought his services as an editor of a "New Library of Law and Equity," since well-known to the profession, the board of editors embracing Francis J. Troubat, Esq., of Philadelphia ; Hon. Ellis Lewis, of Lancaster, and Wilson McCandless, Esq., of Pittsburgh. This continued most of the rest of his career in the Second District. - During 1845, ^oo- ^""^ delivered a eulogy at the death of Andrew Jackson, which has some interesting expres- sions. The address was given at the request of a large committee of arrangements, among whom was Thaddeus Stevens, and delivered in the Lutheran Church on June 26th. He begins by noting the general good feeling for Jackson, without regard to party, and, said he, for the purpose of doing him honor, "all have united in selecting to address you, on this melancholy occasion, an early but a humble friend of the deceased — one who has generally approved of his public acts — who has partici- pated in the hospitalities of his house and table — who has loved him for his private virtues — and who can • David W'ebster, Esq., one of the proprietors of the Journal soon after its establishment, relates this. See Legal Gazelle, Vol. 3, p. 93. - Vol. XV, the last, was issued in 1849. 134 ELLIS LEWIS personally bear testimony to the deep humility of his Christian devotions, in the period of his highest earthly exaltation." The address is replete with tender feeling and portrays the side of Jackson which won affection as much as anything ever written on that soldier-states- man. One other extract on Jackson's financial fight may be given : "An immense money corporation had been created by Congress, with its branches extending into every part of the Union. He believed it was misman- aging the funds of the nation — interfering with the freedom of election — controlling the operations of gov- ernment — and dangerous to the liberties of the people. Good men and wise men have differed on the question how far this opinion was correct. But all sound-judging men will admit that, so long as the President entertained that opinion, the duty of his station required that he should use all the efforts in his power to save the funds and the liberties of the people from threatened danger. Accordingly, he decided that its connection with the government should be dissolved, and that, so far as depended upon him, its charter should not be renewed. The political warfare which followed was as fearful as any he had ever encountered in arms."^ "Among the many efforts," wrote Chief Justice Taney, in acknowledging the receipt of a copy of this Jackson address, "which have been made since the death of Genl. Jackson to do justice to his memory, I have seen none more happy than the Eulogium delivered by you. It was his fortune on several occasions to be placed in situations of great difficulty and responsibility — and his acts therefore speak for him, and enable us to understand his true character far better than by a labored analysis of the high qualities for which he was distinguished. You have judiciously selected the leading- incidents of his life — those which most strikingly marked his character — and in a few words pointed out the virtues they displayed. I read with particular pleasure the passage in relation to his refusal to disband at Natchez the volunteers who had rallied at his call and followed him from Tennessee. This has always appeared to me to be one of the noblest actions of his * A copy of the address is at the Historical Society of Pennsylvania. JUDGE, AUTHOR AND PROFESSOR OF LAW 135 life, in which lie put lo hazzard his character and stand- ing as a military officer with the government — and sub- jected himself to the danger of the heaviest punishment, rather than be made the instrument of committing an act of injustice and oppression. The act is the more worthy of commemoration, when he thus took upon himself the high responsibility of protecting those gallant and pathetic men from the cruel and heartless order which had been issued at Washington, he was but little known to the great body of the people of the U. States, and had not that high and commanding con- fidence and intluence to support him which he afterwards so justly and worthily obtained. "Perhaps," he continues, "no topic was more difficult to manage upon such an occasion than that of the Bank, as you were addressing an assembly composed of men of all parties, many of whom were yet sore from the recollections of that violent and protracted conflict — ■ and some of them perhaps the more sensitive from mis- givings arising, from subsequent events, that Genl. Jackson might have been right and they in the wrong. This difficult point is I think very happily touched upon and disposed of. Yet I am persuaded that the time cannot be distant when the honest and patriotic men of all parties will, with one accord, do justice to the men concerned in that measure ; and will admit the overthrow of the monster was the greatest of all the great public services of Genl. Jackson ; and that nothing but the removal of the deposits could have secured the victory. So I thought when I first advised that measure, and also when I afterwards carried it into execution — and subseciuent events have confirmed that opinion. For if is now evident from the immense power displayed by the Bank in that conflict that it would have been too powerful for the government under almost any other chief; and if the deposits had not been removed and the decisive conflict thereby brought on during the administration of Genl. Jackson, the Bank would have been rechartered in spite of his successor — or rather no one could have been elected to succeed him who was not devoted to the Bank — and that corporation would at this day have been virtually governing the country; — 136 ELLIS LEWIS corrupting its councils — and directing the operations of the government as might best suit the cupidity or ambi- tion of those at the head of the corporation. "Accept my cordial thanks," he adds, "for the kind terms used in your letter. I have always remembered the commencement of our acquaintance with great pleasure and your course since that time has been too elevated and honorable to yourself to allow any one who had known you to forget you ; and it has given me much pleasure to witness the marks of public respect and confidence which you have received on all hands to have been so justly and deservedly bestowed. "With great respect & regard "I am Dr. Sir your friend & Servt., "R. B. Taney/'i That so learned a judge should be in a college town and not to be thought of as a Professor of Law was hardly within the realm of probability. Franklin Col- lege, which dated back almost to the Revolution, had had a varied experience, but during the " '40's" was in a condition sufficiently prosperous to be called a revival. This was some half-dozen years before its union with Marshall College. During the summer of 1846, several members of the bar of Lancaster petitioned the trustees of Franklin College to establish a professorship of Law and Medical Jurisprudence, for which they evidently had in mind this President Judge. The board had no funds to go to additional expense regarding it, but favored the plan with that exception, which seems to have been agreed to. and on September 7th (1846) Judge Lewis was chosen to that chair. Dr. J. H. Dubbs, the historian of the college, finds no record of the further progress of this professorship. Statements appear in several contemporary sketches which must have been known to Judge Lewis himself, which state that he did fill the chair for a time at least. A letter from Hon. James Buchanan, then Secretary of State at Washing- ton, dated January 14, 1847, after saying that he "shall ever feel proud to have been a member of the bar of Lancaster," says : "I rejoice that you have determined to devote your time and talents to the instruction of ' Dated October 25, 1845, Baltimore. Lewis Papers. JUDGE, AUTHOR AND PROFESSOR OF LAW 137 young gentlemen destined for the profession. In no other sphere can you be more useful ; & with your well known energy in whatever you undertake, you cannot fail to prove successful. The provision of the charter of the Franklin College vacating the seats of those trustees who have ceased to reside in the state for the period of a year would, in my opinion, deprive me of this office. It is most certain that I intend to return to the State & to lay my bones in my native earth should God spare my life; but it can hardly be said, with any regard to the fact, that I now reside in Pennsylvania. I have not lost my citizenship, but surely I now reside in this "city."^ In April, 1847, following, the Democratic Rcz'iccV, of New York, states that "Judge Lewis also discharges the duties of professor of law and medical jurisprudence in Franklin College, one of the oldest endowed institutions in the State."- It may have been these duties which prevented him attending the Demo- cratic National Convention at Ijaltimore to which he was chosen a delegate ; for he did not attend the con- vention which nominated Lewis Cass, of Michigan, for the Presidency, and was prevented by some unknown circumstances." Whether his law instruction or his editorial experi- ences suggested his next and most extensive literary work is not known ; it is known, however, that both of these as well as his judicial work led to a warm friend- ship with the aged author of Kent's "Commentaries on American Law." The latter work, it will be recalled, was, like Blackstone's, revised law lectures, given in Columbia College, the first volume appearing in 1826 and the fourth and last in 1830. In the latter volume, Chancellor Kent, speaking of fields his work does not attempt to cover, says : "The law of crimes and punish- ments is, no doubt, a very important part of our legal system, but this is a code that rests in each state upon an exact knowledge of local law ; and, since the institu- ' Lewis Papers. He devotes a page to the legal aspects of the question and asks Lewis' advice as to whether there is a difference between "inhabi- tant" and "resident." The letter is in reply to one of January 7, 1847, dated "Franklin College, F^ancaster." On the 16th Judge Lewis writes a most in- teresting opinion on the "resident" question, claiming Buchanan's residence still in I.ancaster. ' Vol. XX, p. 359. David Paul Brown in his Forum sketch years later con- firms it also. '^ Ibid., p. 363. 138 ELLIS LEWIS tion of the penitentiary system, and the ahiiost total abolition of corporal punishment, it has become quite simple in its principles, and concise and uniform in its details. Our criminal codes bear no kind of comparison with the complex and appalling catalogue of crimes and punishments which, in England, constitute the basis of the system of the pleas of the crown."' Just when it was that Judge Lewis first began to think of this field of the criminal law as one needing a treatise is not known, but, in all probability, Chancellor Kent himself personally suggested his undertaking it. In a copy of a letter by Judge Lewis to the aged Chancellor, dated October 15, 1847, the Judge says : "In the course of conversation last spring, you were kind enough to favor the project of writing a volume on the Crim. Law of the U. S. upon the plan of your Commentaries and to accompany them^ as a fifth volume, upon a branch of jurisprudence not covered by them."- What the aged jurist thought of Lewis is stated well in a letter of April 18, 1846, where he says: "Everything that I have seen from your judicial pen denotes research, accuracy and judgment. * * '■' I am induced to drop this line by the pleasure of bring- ing you before me and to assure you of my great respect and regard. You are aware that I am very far advanced in life, and by the kindness of Providence I am in good and active health, with my hearing considerably im- paired, but my relish and ardor for studies and legal learning continue unabated and I have the blessing of good eyes. Without meddling actively in political con- cerns I am an observer of what passes and with lively sensibility. Yours most truly, James Kent."^ Late in 1847, however, the great jurist was in rapid decline, at the age of eighty-four years, and Judge Lewis, with a modest estimate of his book, which was ready for dedi- ciition on October ist, merely issued the work with a dedication to Chancellor Kent, who was even then passing through his last sufferings. * Vol. IV, p. 528. It is curious to note that Lewis puts on his title-page, not Kent's reference to this field, but Blackstone's, which says it "is of the utmost importance to every individual in the state." * Lewis Papers. ** Judge Lewis has engrossed this letter as a copy, stating that he sent the original to James Buchanan. JUDGE, AUTHOR AND PROFESSOR OF LAW 139 "To the Hon. James Kent," reads the dedicatory note to "An Abridgment of the Criminal Law of the United States." etc., "by ElHs Lewis, President of the Second Judicial District of Pennsylvania." "As a very humble but sincere admirer, I desire to commit this imperfect production to the public under the shadow of your great name. In doing so, I acknowledge my grati- tude for the friendly counsels with which you have cheered me in the performance of difficult and responsi- ble duties — my respect for the patience, politeness, and pureness of heart, by which you have won the affection of all, and presented to the world an illustrious example as a Presiding Magistrate in the highest tribunals of Law and Equity — and finally my veneration for those exalted abilities which have been the great ornament of the common law, and the shining light of the Chancery jurisdictions in this country. Purity and temperance have secured to you length of days ; and a habit of industry has rendered your long life a blessing to every State and Nation which acknowledges the common law as its rule of decision. Your labors have commanded the applause of the present generation, and shall excite the admiration and gratitude of future ages. In your lofty solitude, may the consolations of a well spent life render the evening of your career as happy as its mid- day has been useful and brilliant. Your Very Sincere Friend, Ellis Lewis. Lancaster, Pa., October 1st, 1847." This note had been submitted to Chancellor Kent for his consent, and on November 9th he replied, saying: "My extreme sickness has confined me to my home and reduced me to a skeleton, & that must be my apology for delay in acknowledging your very friendly letter of the 15th ult. ******! have read your pro- posed dedication. It is far too highly complimentary, but it is a beautiful composition & I shall be your great Debtor for the honourable & candid commendation you have been pleased to [not plain]." Within two weeks the work appeared, and on the 22nd of November — almost exactly three weeks before his death — he wrote : "I have had the pleasure of receiving your great work on the Criminal Lcrw of the U. States; but I have not been able to examine it as I ought, for I am so unwell & 140 ELLIS LEWIS weak as hardly to get up & hold a pen. You must excuse me from making any further observations on the work at present. I am with affectionate Regard, yours &c. James Kent." He died on the 12th of the next month, and in reply to a letter of condolence, his son, William Kent, wrote Judge Lewis: "I am truly grateful to you for your kind and feeling letter. Nor can I ade- Cjuatel}^ thank you for the beautiful dedication of your late work on Criminal Law. My poor father, though racked with pain, read it with delight. He placed your letter accompanying it, on his table, but a long time elapsed before he could answer. It was an affecting sight, when he tottered to his table, & though absolutely gasping with pain, wrote you a few lines in reply. I believe it was the last letter he ever wrote."^ The volume was reviewed in the Pennsylvania Laiv Journal of January, 1848, in a discriminating way, showing both its excellence and its defects, but with the conclusion that "Wherever in the United States criminal law is practiced, the United States Criminal Law must find its way," and it did. The reviewer also says : "We under- stand that for a number of years Judge Lewis has devoted himself to the study of criminal law, and the result of his labors has been the work before us."- His learning and character had made him, by this time, one of the best known of Pennsylvania jurists, and one or two institutions of learning took occasion to recognize it at their commencements in the spring of 1848. Transylvania University at Lexington, Kentucky, the oldest institution of the West, since become Ken- tucky University, conferred upon him the degree of Doctor of Laws, and the Philadelphia College of Medi- cine, in recognition of his learning in the realm of medical jurisprudence, bestowed upon him the honorary degree of Doctor of Medicine.^ ^ Lewis Papers, in possession of Miss Josephine Lewis, Philadelphia. - Pennsylvania Law Journal, 1848, pp. 154-5. Wharton's Criminal Law of the United States was issued in 1846, and successive editions were issued from time to time and revised by the author. So far as is known, but one edition of Lewis' work was issued. ^ Pennsylvania Laiv Journal, October, 1848, p. 191, quoting the Lexington Atlas, the Lancaster Tribune and the Philadelphia B^illetin. Jefferson College also gave him the degree of Doctor of Laws. James S. Green, Professor of Law in Princeton College, nominated him for the same degree in that insti- tution shortly after Lewis heard of the Transylvania degree. The Judge was not certain whether he should accept more than one, and on August 31, 1848, wrote his friend Buchanan to have Mr. Green withdraw the nomination at JUDGE, AUTHOR AND PROFESSOR OF LAW 141 With the appearance of these honors, the April num- ber of The United States Magazine and Democratic Reviciv, of New York, which was then running an ilUistrated series of "Political Portraits with Pen and Pencil," had the most able and extended sketch of Judge Lewis that had so far appeared. The frontispiece of the issue was a portrait of Judge Lewis, a mezzotint engraving by Doney from a daguerreotype by Plumbe, which is here reproduced. "One trait in his character," says the sketch, "is too honorable to be here overlooked. Him- self emphatically one of the people — sprung frcnn their midst, and sympathizing with their feelings and wants — Ellis Lewis has ever been the fast friend of the people. Whether we scan his actions as advocate, legislator or judge, the result is the same. We behold him the same fearless and able defender of the rights and interests of the masses. In this he seems to have been bent on loyalty to the stern teachings of his own early struggles, and to have kept constantly before him, as worthy models, those great republican lawyers of the English commonwealth, and of our own colonial and revolution- ary era, who were on all occasions the most devoted, as their great intellects and better training constituted them the most able friends of liberty."^ Notwithstanding his judicial, educational and literary occupation at this date, he was a silent but considerable force in the democratic powers of both State and Nation, and his counsels were often availed of, and frequently well-known to leaders of that political party. Probably no better expression of his beliefs on the vital questions of that day exist than that in a letter to Vice-President Dallas, during the autumn of this year, 1847. "As one of tlie old-fashioned democrats, still adhering to the ancient faith." it reads, under date of October 7th, "I rejoice to perceive from your Pittsburgh speech that your long tried democratic principles have not been extinguished by the centralism which has so long been at war with the rights of the States. There was a time when a strict construction of the Federal Constitution was the great principle which distinguished the democratic party Princeton. Jefferson College, however, seems to have done so without his knowledce. FUichanan I'apers at the Historical Society of Pennsylvania. ' Vol. XX, p. 360. 142 ELLIS LEWIS from those whose licentious construction of that instru- ment gave to the federal authorities almost unrestrained power over all our social and political rights. 'Power is continually stealing from the many to the few.' 'The price of liberty is eternal vigilance,' and it behooves the friends of state rights to be constant in their watchful- ness of the insidious approach of consolidation. So long as the sons of Pennsylvania shall be virtuous they will be careful of her liberty and independence. "At one time," he continues, "we were told that the States have no right to pass laws in favor of surrender- ing fugitive slaves to their masters. The whirlwinds of abolition and the storms of slavery, lulled by the beguil- ing zephyrs of compromise, unite in a gentle breeze which waft[s] to the free states of the Union the new dogma of federalism that the general government has exclusive cognizance of surrendering fugitive slaves, not because it is so 'nominated in the bond' of union, but because the States are presumed to be too dishonest to fulfill their constitutional obligations on a subject of so much delicacy. And as soon as. one of the greatest states of the Union, mortified at the usurpations of her rights, withdraws all her legislation from the subject, in obedi- ence to the insulting dogma, and prohibits her officers from all interference in such cases, the riot, and blood- shed, and murder to be expected from such a heresy, followed as a natural consequence ; and then we are told that a state has no right to prohibit her own officers from accepting legislative commissions from Congress ! There was a time when it was conceded by all who understood our institutions that Congress had no powers whatever except those expressly granted, or those abso- lutely necessary to the exercise of powers thus clearly conferred. But now although no power was ever given by [to?] Congress to interfere with the domestic institu- tions of the States, political heresies are constantly springing up in quarters so intelligent as to command our entire respect, and so influential as to create the most serious alarm. In one part of the Union we hear it said that the principles of the Ordinance of 1787 (Northern Territory) may be enforced upon new states by the National Legislature. In another section where such JUDGE, AUTHOR AND TROFESSOR OF LAW 143 daring invasion of the rights of the states would, under ordinary circumstances be repudiated with indignation, the doctrine is to some extent received with favor under the name of a compromise by which the constitution sliall be construed to authorize sucli federal interference within certain geographical limits and to exclude it from other portions of the Union. Thus a great constitutional question becomes a geographical one and the constitution itself becomes a nose of wax or a face of dough, to be moulded into every desirable form as geographical posi- tion may require. "I protest against this false system of Hermencutics. The clause which confers certain pozvers for the purpose of providing for the 'general welfare' has been occa- sionally claimed to authorize the exercise of every other power which Congress might deem necessary to promote that object. But if this be tolerated there is no limit to the powers of the federal government, and there is an end to State sovereignty. Such a licentious con- struction was attempted in France when the authority to 'watch over the safety of the State' was construed as justifying the annihilation of another clause which 'guaranteed the liberty of the press.' But the memorable 'three days' in July, 1830, overturned this construction and drove its authors from power. God grant that the centralizing influence in our country may never be car- ried to an extent so absurd, or require a remedy so terrible. "Under our constitution the States of the Union are upon terms of entire equality. There is not one rule for States lying south of 36° 30' and another for those north of that line. The constitution furnishes the same rule for all. Every State has a right to insist on three- fifths of her slave population being taken into the calculation apportioning her representation in Congress. This may seem a hard-ship upon those who do not choose to hold slaves, but the right is distinctly granted and is granted to all alike. There is a perfect ecjuality. All may claim its advantages, if disposed. But I trust that the day will be far distant when Pennsylvania shall desire to be restored to those advantages. By her own voluntary act she put them away from her as neither 144 ELLIS LEWIS consistent with her interests or her sense of justice. When other states can with equal safety imitate her example, they will doubtless do so. But until that time shall arrive, what authority has the general government to interfere with their domestic rights? Where in the constitution has the power been granted to Congress to control the States in this respect? The territories which belong to the nation are of course under national legisla- tion. Of the extent to which this may be rightfully exercised it is not my purpose now to speak. But new states if admitted as such must necessarily be admitted upon terms of equality with the original states, because as already remarked we have but one constitution and it operates equally upon all. Congress has no power except what is derived from that instrument. They may admit new states, or when under no treaty stipulations they may refuse such admission. But they can add no condi- tions not authorized by the constitution. Such conditions if added may be disregarded by the states so admitted, and there is no power in the government to enforce them. A state admitted into the Union with a Congres- sional restriction upon her rights would be restored to her rights by the supreme power of the constitution itself, the moment she came into the Union and under its protection. "The ordinance of 1787 in its terms only applied to the territory northwest of the Ohio. It never operated upon Louisiana, which was not acquired until 1803 ; and of course it was never intended to apply to territory to be acquired by purchase or by conquest from Mexico. Nor was it ever intended to operate upon independent states. The moment territories are admitted into the Union they become entitled, under the paramount law of the Constitution, to the right of legislation on this subject for themselves. In respect to Louisiana, the French government had a right at the time of cession to secure to her citizens then inhabiting the territory the right of admission into the Union upon an equality with the citizens of the original states; it was not only the right of France to make this provision, but she was careful to exercise that right. And we were accordingly bound bv our treatv with France to admit the inhabitants JUDGE, AUTHOR AND PROFESSOR OF LAW 145 of the ceded territory 'as soon as possible' to 'all the rights, advantages and immunities of citizens of the United States,' not according to such congressional restrictions as may be thought proper, but 'according to the principles of the Federal Constitution.' Our failure to fulfill this obligation would be a breach of integrity, a violation of good faith and a just cause of war on the part of France. So long as we are bound by the consti- tution or regard our treaty stipulation with TVance, neither the Wilmot Proviso nor the principles of the Missouri Compromise can ever be extended to any por- tion of the territory which constituted a part of Louisiana in 1803. lilissouri, although north of the alleged com- promise line, was admitted with all her slavery clauses in her constitution. loiva, although in like manner north of the [line], was also admitted without any restriction upon her right to hold slaves. Texas, although including territory on both sides of the alleged line of compromise, was admitted without the slightest restriction upon her right to hold slaves in ei'ery part of her jurisdiction. It is true that there has been some 'Buncombe' legislation accompanying the acts of admission, in the case of Mis- souri and Texas. It was said when Missouri was admit- ted that in future cases 36° 30' should be the division line between the free states and the slave states, but, although according to that line, Missouri should not have been allowed to hold slaves, good care was taken not to apply the compromise principle to herself. The same thing was said again when Texas was admitted, but although according to the alleged line of compromise a portion of Texas ought to have been excluded from the privilege of holding slaves, good care was taken not to apply the principle to Texas herself. In the case or Iowa the principle of the alleged compromise was disregarded without even a promise of its application at some other time or to some other case. In truth the restriction will never be attempted, because it is perfectly well understood that there is no power to enforce it. There never was any such compromise. The subject did not admit of compromise. There were no parties competent to make such a compromise. As for Pennsylvania it is certain that she never was a party to it. She stood out 146 ELLIS LEWIS against it to the last, and when one of her representatives (and there was only one I beheve) voted for the admis- sion of Missouri some of his constituents burnt him in efifigy in order to manifest their dissent from any such compromise. "The southern politicians are shrewd and wise. They know that all such restrictions upon state rights are nugatory and they can never be enforced against the will of a state desiring to hold slaves. They have there- fore everything to gain by the compromise, but nothing to lose. Driven almost to the wall by the pressure of the abolitionists, and the advocates of the 'Wilmot Proviso,' some of them are willing to put on a grave face and talk about the principles of the Missouri Com- promise ! As a matter of curiosity I should like to see an old-fashioned democrat of the Ancient Dominion zvJicii he put his countenance in order for the purpose of addressing Northern Democrats in favor of the principles of the Missouri Compromise. I have many reasons to admire Mr. Ritchie and I imagine his countenance must be peculiarly grave and solemn in its appearance when he is about preparing an editorial on this subject for the Union ! But the intellectual light could not all be con- cealed. The silver edges of the cloud would betray the sun-light behind ! It is not intended to censure our southern friends for their eloquent praises of the blessings of the Missouri Compromise. By that elo- quence they may succeed in getting new slave states admitted which otherwise might be excluded. But the great statesmen of the nation should look this question directly in the face. So far as regards the rights of the states we are bound by our present constitution to let the subject 'alone entirely.' When we are under no treaty obligation members of Congress may be governed by such motives as satisfy their own consciences in casting their votes on the question of admitting a new State. They may be influenced by geographical or numerical calculations, and there is no power but their own sense of justice to control them. But when their votes are once cast for admission, the question of slavery or freedom has passed out of their control. So that each case must alwavs be decided as it arises — indepen- JUDGR, AUTHOR AND PROFESSOR OF LAW 147 dent of any supposed compromise. One Conp^ress can- not bind its successors. Each has the riglit to act for itself. If we desire to impose the restrictions recjuired by the principles of the Missouri Compromise, or those of the Wilmot Proviso we can only do so by amending the constitution so as to confer the necessary power upon Congress. If this amendment should be proposed 1 should not be disposed to adopt the line of the Missouri Compromise or any other line until we know what terri- tory was to be the subject of compromise or division. At present we know not the extent of territory to be acquired. It is as likely to be the whole of Mexico as a part. I perceive no other way to bring the present war to a close, than that of entire subjugation of a people who have wronged us by land and sea, who refuse all indemnity for the past and atonement for the future, who claim to deprive a free state of her liberty and in- dependence, who invaded our territory and sought to hold in worse than Egyptian bondage the youngest of our confederacy ; and also who, after a succession of unexampled victories on our part, as an ultimatum tell us that we must surrender to a weak and wicked enemy the very soil which has been rendered sacred by the blood and the graves of our brethren, and glorious by their brilliant achievements in arms."^ To this letter Vice-President Dallas replied on the i6th instant as follows : "There are some constitutional views essential to the permanency of the national demo- cratic party : — as soon as they cease to be the basis of political action, if we do not turn federalists, we become something less honorable — mere expediency men. It refreshed me greatly to read your letter of the 7th instant, for which I heartily thank you. In return, I send you a short speech delivered by me at Hollidays- burg on the 23rd Sept. last. You will perceive that while I harmonize with the argument and great current of your letter, I do not admit the broad un(]ualified posi- tion that 'the territories which belong to the nation are of course under national legislation,' be the subject matter of legislation what it may. If by 'territory more is meant than "land' : if it include men: — then as soon as * A contemporary copy among the Lewis Papers. 148 ELLIS LEWIS the soil becomes the property of the American People, 1 claim to consider the men upon it as a part of the American People, in whom certain inalienable and reserved rights exist ; and I say that Congress has not been vested by the Constitution with a power to destroy arbitrarily the local and domestic rights and relation of that or any other portion of the American People. 'Compromise,' in one aspect, is encroachment: in another aspect, it is base and unfaithful surrender : — in no aspect is it constitutional."^ Evidently the repeal of the Mis- souri Compromise was in rapid preparation. With the year 1848, however, came the Whig suc- cesses in nation and state, President Taylor and Gov- ernor Johnston leading in each respectively, and Judge Lewis had little occasion to consider political move- ments except so far as they related to the reorganization of the judiciary. On the part of those interested in reorganization an attempt was made to get a joint resolu- tion passed to secure an elective judiciary, but it failed ; on the part of the friends of the judiciary there was considerable agitation to secure an increase in their salaries. With the consolidation of the courts in Lan- caster County, already mentioned, it was believed that justice demanded the increase of the salary of Judge Lewis. The latter had, late in January, 1849, come before the Legislature in a communication on the sub- ject of capital punishment, in which he advocated the substitution of solitary imprisonment, but a Whig gov- ernment was not likely to respond with great alacrity to the suggestion of so good and able a Democrat as the President of the Lancaster courts. This was all the more true since one branch of the Legislature, while content that the work of a mayor's court and the special "District" court should be thrown on the shoulders of the President of the Second District were not willing to adjust the salary to the change. Leading members of the Lancaster bar, knowing this and fearing Judge Lewis would resign, addressed him on the subject, saying, among other things : "We have heard it inti- mated, since the Legislature have refused to render you this act of justice, that you contemplated a resignation. ' Lewis Papers. JUDGE, AUTHOR AND PROFESSOR OF LAW 149 We hope that such is not your resolve — that you will still preside on a bench which you have adorned with so much learninij and ability, until another effort can be made to have justice done both unto yourself and unto those whom you have so well, and truly, and faith- fully served."' "Gentlemen": replied Judge Lewis on the ist of February (1849), "your communication relative to the judicial business of this District has been received, and I return the most heartfelt acknowledgments for its expressions of regard and of approbation of the manner in which my official duties have been discharged. Com- ing from individuals whose education and pursuits render them the most competent judges — springing sponta- neously from all parties — from the mature judgment of experienced age, and from the fresh hearts of vigorous youth — from men heretofore distinguished by exalted official stations, and from others who are deservedly reaping a rich harvest in the field of professional labor, such a testimony is the highest reward, next to an approving conscience, which a public servant can receive upon earth. Prizing your favorable judgment thus highly, and regarding it as representing the kindness and confidence which have ever been extended to me by the upright and intelligent citizens of Lancaster County, it will be my constant endeavor to deserve its con- tinuance. "The proposition to repeal two other Courts, of nearly thirty years' standing, and to require from the Judges of the Common Pleas, ivithout any provision whatcz'cr for compensation, the performance of onerous duties which have heretofore been valued and paid for by the State at $2600 per annum, is so unjust in its operation, and so startling in the principle involved, as to preclude all hesitation in regard to the course to be pursued. The hardship and injustice of this proposition is the more apparent when it is stated that although I consented to accept the office which I now hold in consideration that the salary was $2000 per annum, yet a great portion of this sum has been withheld for six years and only the small sum of $1600 per annum actually appropriated, for • The names signed to this paper included forty of the ablest members of the bar. The Pennsylvanian, May ii, 1849, reprinted from the Lancasterian. ISO ELLIS LEWIS discharging the laborious duties of the President of the Common Pleas — of the Orphans' Court — of the Regis- ter's Court — and of the Court of Quarter Sessions, and Oyer and Terminer, for the large and populous county of Lancaster. The inadequate compensation provided for judicial services throughout the State, and partic- ularly for those rendered by the Judges of the Supreme Court, has been lamented by the wisest and purest men in the Commonwealth, as tending to deprive the public of the services of the most competent officers. But the question presented in this district is zvhethcr the constitu- tional provision respecting compensation may be entirely abrogated by the imposition of new and enormous labors, zvithoiit any compensation zuhatever. If this may be done the Judges may be indirectly legislated out of office, whenever a change of parties may off^er a temptation to the eager expectants of patronage. "The great feature of our government is the distinct recognition of three co-ordinate and independent depart- ments, intended to operate as checks upon each other. The rights of life, liberty, and property depend, in an especial manner, upon preserving the independence of the Judicial Department. It was not for the benefit of the Judges, but for the higher purpose of enabling them to protect the citizen in his rights, that the constitution threw its guards around them, and denied to the Legis- lature the power either to require 'services' without pro- viding an 'adequate compensation,' or to 'diminish' that compensation, after it shall have been 'fixed by law,' either at the time of accepting the office, or when the increased duties were imposed. When new and onerous duties are requird, the legislative powers may adjudicate upon the amount of compensation, and its judgment is necessarily conclusive; but where no such judgment is given, and no compensation whatever is provided for such increased services, there can be but one opinion among sound jurists and honest men, on the question of constitutional power. The Legislature of this free commonwealth possesses not the boasted omnipotence of the British Parliament. On the contrary, with the exception of jurisdiction over its members, each House is clothed only 'with the powers necessary for JUDGE, AUTHOR AND PROFESSOR OF LAW 151 a branch of the Legislature of a free State.' Under this restriction, the law-making power is not authorized to perpetrate a manifest wrong — or to reduce to slavish dependence upon its will a co-ordinate branch of the gov- ernment, by imposing enormous labors without com- pensation. It cannot abolish existing tribunals, without providing others to give 'remedy by due course of law ;' nor can it throw obstructions in the stream of that 'jus- tice,' which the courts cannot arrest, and which the Legislature can neither 'deny or delay.' There is no power in a 'free" government to produce such a state of anarchy and injustice. "The comity due from one department to another will always induce a postponement or waiver of ques- tions of this nature, when there is nothing intolerable in the burthens imposed, and nothing indicating danger to the constitutional authority of the Judiciary ; and, consequently, to the rights of the people. But when these are threatened, there is no course left but that of a faithful and firm adherence to the paramount law. The Judge who clings to office with such tenacity as to shrink from his high duty in this respect, disgraces himself, dishonors the Bench, and is totally unworthy the con- fidence of an enlightened people. Entertaining these views, and having my ambition abundantly gratified by the marks of public confidence already received, it was my wish to make room, at once, for some one who might be willing to accept the burthens proposed to be imposed, and thus to dispose of the constitutional question and avoid, at the same time, the public embarrassment which may contingently arise. But, in obedience to the kind wishes of the Bar, I shall remain at my post, and shall, as ever, do my part in maintaining the independence of the Judicial Power in all its constitutional vigor. "Those who are familiar with legislation know how to appreciate and excuse the embarrassment and delays Avhich occasionally occur in the actions of deliberative bodies. It is generally the result of conflicting opinions as to the proper time or proper means of accomplishing the end desired, and not the offspring of intentional wrong. I would be the last to impute to the enlightened representatives of the people a desire to deny to the 152 ELLIS LEWIS 'laborer' 'his hire,' or to disregard the plain provisions of the Constitution. If such should, however, be the result of the ultimate legislation on this subject, I have said enough to indicate that it cannot be successful, unless followed by a further outrage of sufficient magni- tude to attract the attention of the people to the ques- tion. From my knowledge of the gentlemen composing the present Legislature, the belief is indulged that justice will be done in the premises, before the adjourn- ment."^ And the Legislature did so far meet the require- ments indicated as to, in two clauses headed "Provided" and "And provided further," allow compensation to "the present President Judge" up to but not over two thousand dollars yearly. This was a species of compromise that permitted Judge Lewis to continue as President Judge of the Second District with its new burdens ; and indeed he so distinguished himself in subduing the great mass of business that it marked him for higher honors, should the attack on the whole judiciary, which was making such quiet headway even at this time, become eflfective. ' Pennsylvania Laws, 1849, p. 256-7. The salaries of Judges in Pennsylvania at this period were interesting as compared with those of to-day. The Judges of the Supreme Court had, including mileage: $4,024.67 for Chief Justice Gib- son; $3,576.06 for first Associate Rogers; the others, Justices Bell, Coulter and Burnside getting $2,482 each. The First District (Philadelphia) judges received $2,600 apiece, all these figures including mileage, so that those who had no travelling to do are favored ones. The districts having the next to these were those having $2,000 salaries, or slightly over that, with mileage: Lewis' district, Woodward's district, McClure's district, Black's district, Bredin's and A. S. Wilson's. Church and Eldred had $i,8oo and over; Jones, Krause, Knox, Jessup, Williston, Gilmore, Durkee, Kidder and Tay- lor $1,700 and over; and the rest were $1,600 and over. These were the figures, as nearly as investigators at the time could compile them. The Pennsylvanian, Feburary 19, 1851. Molton C. Rogers From a daguerreotype in possession of the Misses Foard, Camden, N. J. Thomas Burnside From a portrait of his early years in possession of Mrs. H. C. Valentine, Bellefonte, Pa. John Bannister Gibson. Chief Justice, From a print in Roberts' Sketches of Gibson, Law Association, Philadelphia Richard Coulter From an engraving in the office of the Prothonotary of the Supreme Court, Philadelphia Thomas S. Bell From a photograph in possession of the Law Association, Philadelphia Th^ Last Ai'kointive Sitreme Court of I'ennsvl\ am/ before the elective judiciary of iSso CHAPTER X Popular Demand for an Elective Judiciary in Pennsylvania and the Campaign for the First Elective Supreme Bench, to Which He Is Elevated 1850 For more than a decade past there had been two sources of rumbling discontent so far as the judicial system was concerned, but as it had little immediate relation to the career of Judge Lewis, but slight notice of it was necessary in describing the period. The contest which produced the constitutional amendment left a feeling with the people that a limited term was not suffi- cient to bring the judges under full responsibility to them, while a great number of the best judges and lawyers resented the innovation as pure radicalism. Many of even the highest members of the bench were not slow to express their discontent in unmistakable terms. This smouldering element on both sides boded no good to this feature of the new constitution. Into this situation was injected another element which had been long in operation, but which political conditions intensified, namely, the custom of appointing judges to districts without regard to residence in them. There is no evidence that Judge Lewis did not believe in the measures the people had taken, and it would be in keep- ing with his whole career if he thoroughly approved of the restrictions of 1838; nor, in consequence, were the people other than friendly to him personally, and, although he was imported into Lancaster district, he was popular there and soon won even affection and loyalty. Such was not the case in some parts of the state, however, and especially in those counties or dis- tricts which were of a different political complexion from that of the Governor who appointed their judges, and it was at this particular part of the machinery that fric- 153 154 ELLIS LEWIS tion arose, so violent in character that it set the whole state aflame. Not that the question was in any particular degree a question of judicial ability, for it was not. The twenty- four districts of Pennsylvania were presided over at this time by as able a body of law judges as ever graced the benches of the state. In the spring of 1849, when Ellis Lewis became the sole presiding judge in Lancaster County, there were in the First District, Philadelphia, Judges Edward King, Anson V. Parsons, James Campbell and William D. Kelly, and a special "District Court" bench composed of Judges George Sharswood, John King Findlay and George M. Stroud. In the Third, Northampton and Lehigh, was Judge J. Pringle Jones; in the Fourth (Centre, Clinton and Clearfield), Judge George W. Woodward; while in Allegheny, the Fifth, was Judge Benjamin Patton and a special "District Court," as in Philadelphia. Judge Gaylord Church presided in the Sixth, including Erie, Crawford and Warren ; while in Montgomery and Bucks, the Seventh, was Judge David Krause. Judge Joseph B. Anthony had finally been elevated to the old Eighth District, where Judge Lewis had sat ; Judge Frederick Watts presided in the Ninth, embracing Cumberland, Perry and Juniata ; and Judge John C. Knox was in Westmoreland, Indiana and Armstrong. In Luzerne, Susquehanna and Wyoming was Judge William Jessup, and in the Twelfth (Dauphin and Lebanon) Judge John J. Pearson presided as the law judge. Bradford, Tioga, Potter and McKean had Judge Horace Williston, and the Fourteenth, Washington, Fayette and Greene, had Judge Samuel A. Gilmore ; while in the Fifteenth (Ches- ter and Delaware) Hon. Henry Chapman presided. The Presiding Judge in the Sixteenth (Franklin, Bedford and Somerset) was Hon. Jeremiah S. Black, while Beaver, Butler and Mercer plead their causes before Judge John Bredin, and Hon. Joseph Bufifington heard them in the Eighteenth (Venango, Clarion, Jefferson, Elk and Forest). Decisions were rendered in the Nineteenth District (York and Adams) by Hon. Daniel Durkee, and by Judge Abraham S. Wilson in Mifflin and Union. Schuylkill County, as the Twenty-first District,. THE ELECTIVE JUDICIARY MOVEMENT 155 had Judge Luther Kidder, and Hon. Nathaniel B. Eldred presided in Monroe, Pike and Carbon. The Twenty-third and Twenty-fourth were composed re- spectively of Berks on the one hand and Huntingdon, Blair and Cambria on the other, with Judge David F. Gordon in Berks, and the Hon. George Taylor in the Twenty-fourth.* It was not a personal question and the real nature of it can be seen by an examination of the Tenth District, composed of Indiana, Armstrong and Westmoreland, presided over, as has been indicated, by Hon. John C. Knox, whom the Governor imported from Tioga County on the northern border. In 1846 the Whigs and Anti-Masons were so success- ful that they captured both houses of the Legislature, so that the Governor and the Senate dead-locked on many questions, among them judicial nominations. The term of Judge Thomas White,^ of the Tenth District, approaching its expiration, "16,000," says Col. A. K. ]\Ic- Clure in his "Reminiscences," "embracing nearly an equal number of Whigs and Democrats" of that district, "signed petitions to Governor Shunk asking for his re- appointment. There was no blemish on Judge White's judicial record that could be urged against him, but Governor Shunk, in obedience to the imperious demands of party interests, refused to nominate the Whig Judge. At different times he sent several names of Democrats to the Senate to fill Judge White's place, and all of them were admittedly eminently qualified, alike in character and attainments, to fill the judicial chair, but the Whig Senators decided with entire unanimity that they would not be a party to the sacrifice of one of the ablest and most popular Judges of the state simply because of his political faith, and every nomination sent to the Senate was promptly rejected. The agitation became intense in Judge White's district, and the contest naturally attracted very general attention throughout the state. The Senate claimed that it was part of the appointing power as a co-ordinate branch of the Govern- ment, and that it could not consistently permit a com- petent and faithful Judge to be smitten because he hap- * The Pennsylvanian (Forney, editor). April 26, 1849. Just why the Pitts- burgh "district court" list should be omitted here is not known. - Judge White was the father of Judge Harry White, long well known as the President Judge of the bench of Indiana County in recent years. IS6 ELLIS LEWIS pened to harmonize with the Senate in political faith rather than with the executive. It was the burning question of the state for a year or more, and it started in every section of the commonwealth an organized effort to strip the executive of the appointment of Judges in the interest of a non-partisan judiciary. In the meantime Judge White's district was without a Judge, and great inconvenience was suffered by the peo- ple. The result was, after Shunk's reelection in the fall of 1847, the Whig Senators regarded the contest as hopeless, and they finally indicated a Democrat who could command an affirmative vote in the Senate. John C. Knox had been several sessions in the House as a Representative from Tioga County, and was accepted as the Democratic leader of the body. He was young, delightful in companionship, able in council or debate, and personally popular with both sides of the chamber. He was indicated by the Whig Senators as the man they would confirm, and he was nominated by the Governor, who was glad to emerge from the conflict with a Demo- cratic judge, * * '^ ." It required but one or two similar contests to convince the people that if justice was to be subordinate to party interests they could do that well themselves and possibly improve upon it. This was a long step to the conviction that now was the time for the people to elect the judiciary themselves. What they actually did may be seen, after it was done, through the eyes of one of the ablest opposers of the elective principle, namely, the distinguished Phila- delphia lawyer, Charles J. Ingersoll, writing late in 1849, two years after the above incident. ''As lately as the session of 1848," he says in the leading published argu- ment against the system, "a Senate resolution for elect- ing the judges, found in the House, among the imme- diate representatives of the people, but twenty-four members to vote for it; and, as no debate on this subject had been heard there between the concurrence with the Senate resolution in 1849, ^^^ the refusal to concur, in 1848, it is not easy to understand upon what new motive or warrant this most important step was ventured. We verily believe that, so far from our fellow-citizens gen- erally having called for and expected it at the hands of THE ELECTIVE JUDICIARY MOVEMENT 157 the Legislature, there were few men within the four corners of the state who knew that such a measure was in serious progress. The newspapers gave little or no information about it. The papers of the 1st of March, 1849, announced that, on the 28th of February, the day before, in 'the Senate, the resolution relative to an amendment of the constitution so as to make the judges elective, was taken up, and opposed by Messrs. Overfield, King and Drum, and supported by Mr. Small ; passed second reading, and was ordered to be transcribed for a third reading,' and those of the 2d of March, that, on the 1st of March, 'the bill for the election of the judges by the people was read a third time, and passed ; yeas 21, nays 8.' But no debates, or reports of debates, no public agitation or discussion, either in, or out of doors, of this most grave topic arrested the attention of the country, or gave warning of what was at hand. When the question came before the House, on the 2d of April, after being reported against by the Judiciary Committee, members, incredible as it may appear, would listen to no discussion ; the previous question was called, debate cut off, and Mr. Corny n, of Huntingdon County, who was addressing them in strong and convincing terms, was stopped in the midst of his speech. It is actually a fact, established by eye-witnesses, and vouched by the journal, that the constitution of the state was not, by the representatives of the people, thought to be w^orh an argument. While, as the same journal exuberantly proves, divorce bills, bank bills, charters for hose com- panies, gas works and graveyards, bills to change men's names, to gratify their whims and fancies, or facilitate the conveyance of their estates, bills, in a word, for the relief, ease, or comfort of this or that individual, could be debated ad libitum, this high constitutional question, which, for good or evil, touched the condition of every man, woman and child in Pennsylvania, was denied the de<;ency of a hearing!" Referring to the judiciary he adds: "Its enemies say, and they are not a few, in the year 1790 we made the judiciary independent, we gave it the life tenure, we entrusted the power of appointment to the executive, and we then made a forty-nine years' experiment of it, and il failed. In 1839 we modified it, T58 FXLIS LEWIS making- the tenure of office for a term of years only, instead of for life, but still leaving the appointing power with the governor, to be aided by the Senate ; we then had a nine years' experiment of it, and it failed again. And now we are going to make root and branch work ; it shall go to the polls with the governor and Legisla- ture." With this, by the way of introduction, Mr. In- gersoll takes up his argument to overcome that vote of 21 to 8 in one house and 56 to 26 in the other, which was based not merely upon the political rivalry of the legislative and executive branches of the state govern- ment, but upon the fact that other states had decided for an elective judiciary, notably New York, which had had nearly two years' experience under the system.^ Fortunately, a member of the Legislature who favored the amendment, now a venerable metropolitan judge, has happily told his story of it also. "The first question that I recall of great public interest connected with our profession," said Hon. Craig Biddle, of Philadelphia, in an address some years since, "was the question whether it Avould not be desirable that the judges of our court should be made elective by the people, instead of, as then, appointed by the Governor and confirmed by the Senate. A vacancy had recently occurred in our Com- mon Pleas Court and our community was, of course, very desirous that it should be acceptably filled. The contest for the ofifice named had brought itself down to two of our fellow-citizens, both of whom had warm adherents. The Governor was asked to give their friends a hearing, so that they might present to him their respective merits. A day was named by the Gov- ernor, and the parties found, rather to their surprise, on arriving, that the same day and same hour had been appointed for both of them. The interview was had, and at its conclusion the Governor said that he had no doubt the worthy gentlemen named were admirably suited to the office, but he had made up his mind to appoint a political friend of his own, who resided in the ^ "Some Objections to a Joint Resolution, Passed at The Last Session of the Legislature, and About to be Submitted at the Approaching Session, Kecommending to the People of Pennsylvania An Elective Judiciary, Decem- ber, 1849." It was well known at the time to be the work of Mr. IngersoU, although his name does not appear on the pamphlet. THE ELECTIVF. JUDICIARY MOVEMENT 159 interior of the State, and he \vould at once send him down. This certainly solved the difficulty, and, at the same time, offended the friends of both candidates. While they were prepared to submit to the result of the choice between them, they were quite unprepared to have a non-resident stranger placed over the heads of both of them. After this, the idea that Judges should be elected by the citizens of their respective districts met with very receptive minds in our community. * ''' * It happened, fortunately, that I was a member of the Legislature for 1849 ^'^^^ 1850, as a representative from the city of Philadelphia, and Judge Finletter, in 1850, was a delegate from the County of Philadelphia, they then having different representatives. We are both in accord on this question. In the Legislature of 1849 there was very little organized opposition to the passage of the amendment, it being supposed that it could readily be defeated ; but, through the exertion of Mr. Swartz- welder, an able lawyer from Pittsburgh, we succeeded in carrying it. "Before the meeting of the next Legislature," con- tinues the venerable Philadelphia jurist, "it began to be realized that its passage would remove from office every Judge in Pennsylvania, then numbering about one hun- dred and sixty. They and their numerous friends every- where were rallied for its defeat. Mr. James Madison Porter, at one time Secretary of War, an able lawyer and forcible speaker, was sent to the House of Repre- sentatives from Northampton County and led the opposi- tion. Mr. Horace IJinney gave his great name and influence against it here in Philadelphia. The ablest attack on it, however, was from Mr. Charles Ingersoll, of Philadelphia, who, in an admirable pamphlet of sixty pages, stated in vigorous terms all that could be said against it. This, of course, we from Philadelphia were especially expected to reply to in our speeches on the floor, and we made it the object of attack. The amend- ment * * '-^^ had * * to go before the people. Of them we had no fear, the average politician, we thought, would be very shy of going before the people and trying to convince them that their intelligence was i6o ELLIS LEWIS insufficient to enable them to choose their own Judges."^ During the session of the early half of 1850 this pamphlet, as well as other intiuences, produced an amount of debate in the Legislature so exhaustive as to quite balance the absence of it the previous session. The result showed it all in vain, however, and the amendment went before the people in October. On the 5th of that month, Forney's Pennsylvanian said edito- rially: "We consider that the day has passed for argu- ment on this subject, and particularly with the Demo- cratic party — that party of liberty and progress, as a mass, have already decided the question. They passed the law for submitting the amendment to the people, and beyond doubt the party in general will most triumph- antly carry it at the polls. Why not? Are not the people of Pennsylvania as well qualified to select their Judges as those of New York, Mississippi and other states, where it has been found to work so well? Un- doubtedly they are, and they will demonstrate their ability to do so by first carrying the amendment, and next by doing themselves honor in carrying its pro- visions into eiTect" — all of which was, allowing some- thing for campaign exhuberance, a pretty accurate state- ment of the situation, although not quite enough credit was given to a great body of Whigs and other parties. The amendment carried overwhelmingly, by a vote of 142,390 to 71,352. The only counties which gave a majority against it were Adams,- Blair, Cambria, Carbon, Chester, Cumberland, Dauphin, Huntingdon, Lehigh, Mifflin, Northampton and Schuylkill — a most interesting set of groups, namely, Adams, Cumberland, Dauphin, Mifflin, Huntingdon. Cambria and Blair, on the one hand, with Northampton, Lehigh, Carbon and Schuylkill on the other, and Chester in the southeast. Here were the conservative influences that sympathized with the be- liefs of such men as Chief Justice Gibson, who felt so strongly on the subject that he described himself as the ^ "Reminiscences of the Bench and Bar," an address delivered by Honor- able Craig Biddle, LL.D., President Judge of the Court of Common Pleas, No. 1, of Philadelphia County, before the Law Academy of Philadelphia, May 17, 1900. ^ Forney's Feiiiixyhaniaii, 23d October, 1850. Armstrong County is omitted from Forney's list. THE ELECTIVE JUDICIARY MOVEMENT i6i last of the Chief Justices of Pennsylvania. Gradually the state began to prepare for the great election, and by No- vember most of the Democratic press of the state were convinced that measures should at once be taken for a separate judicial convention for the Justices of the Su- preme Court. Up to this date Air. Forney states that only one Democratic paper had opposed it,* It was decided to call one, however, for June 6, 1851, although this was so close to the gubernatorial convention that it was destined to be put off a little later, namely, the nth, at Harrisburg. Candidates for the Supreme Bench were brought forward during the winter, and it was plain that the home of James Buchanan was intent upon their Presi- dent Judge for one of the places. Hon. James Campbell, of Philadelphia, was one of the candidates and the one who was attacked the most bitterly because he was a Catholic. On the 17th of January, 185 1, Judge Lewis presided at a banquet in Lancaster to celebrate Frank- lin's birthday. It was so important an event as to be reported in full in the Philadelphia papers, and one of the toasts was to the presiding officer himself. Along in February (the nth) a letter appeared in the Pennsylva- nian telling of a remarkable case of dispatch in Judge Lewis' court : It was a case of slander, the words being spoken on September 5, 1850, the action brought on December 4th, plea entered December 28th, and verdict rendered February 5th. "When it is recollectd," said the writer, who signed himself "S," that Lancaster County contains one-seventeenth of the population, and one-tenth of the property of Pennsylvania, exclusive of the counties of Philadelphia and Allegheny, in which there are District Courts, and that one law judge now transacts the entire business of Lancaster City and County, in which it was formerly thought necessary to maintain a District Court and a Mayor's Court, this dispatch cannot fail to appear extraordinary." On March 15th, the Democratic county convention met at Lancaster, and among other things they resolved "that we are in favor of selecting as candidates for the Judiciary men whose moral characters are above re- ' Ibid., November ii, 1850. i62 ELLIS LEWIS proach, who are known to possess talents of a high order, and whose honesty and integrity as jurists will be sufficient guarantee that in their hands the rights, liberty, and property of the people will be safe. And as, from the size, population and importance of Lancaster County, we deem her claim to one of the candidates to be entitled to proper consideration, we respectfully recommend to the State convention our esteemed fellow citizen, Hon, Ellis Lewis, whose well-known talents, energy and in- dustry, have very properly placed him in the front rank of Pennsylvania jurists, and whose great popularity in Lancaster County, and throughout the State, would strengthen the judicial ticket, and insure its election by a triumphant majority."^ They also lauded the name of Buchanan as a candidate for the presidency. Another important feature of the life of Judge Lewis may be mentioned at this point in connection with the announcement on May 7th that he was reelected Presi- dent of the Williamsport and Elmira Railroad, in which he had been long interested. This was to connect with the New York and Erie road. "When it is considered," said an editorial in a Philadelphia paper, "that the Lake trade, for the year 1848, amounted to the enormous value of $186,484,905, being forty millions of dollars more than the whole foreign export trade of the United States — that this trade is constantly increasing — that a very large portion of it will proceed to the seaboard by way of the New York and Erie Railroad — that on arriving at Elmira, both Philadelphia and Baltimore may be reached by the W. and E. Railroad, at a shorter distance and by better grades than to New York City — it is manifest that the Williamsport and Erie Railroad must be regarded as one of the most important and profitable Railroads in the United States."^ It was not yet completed. The road was one of the oldest chartered in the United States, dating back to 1832. It is inter- esting also to note that the first twenty-five miles of this road was laid with wooden rails and that horses were the motive power. It was only two or three years after this date that these gave way to iron rails and ^ The current Lancaster Intelligencer. ' The Fennsylvanian, May 7, 1851. THE ELECTIVE JUDICIARY MOVEMENT 163 engines. It is now a part of the Pennsylvania's Northern Central Line.^ The railway was a mere incident in Judge Lewis' experiences during the spring of 1851. The Judicial convention met on June nth at Harrisburg, and Hon. William Wilkins, of Pittsburgh, was made permanent chairman. "We are called upon," said he, "in accordance ■with the provisions of an amendment to the Constitution, to designate the individuals — for I firmly believe they whom we designate will be elected — who shall occupy the Supreme Bench of the State of Pennsylvania. And here it becomes us to reflect upon the nature of this highest department in the government. It may be styled an oligarchy — an aristocracy — so illimitable is its power. They can, by their decisions, nullify the combined action of the Legislature and the Executive power, and upon them devolves the construction of our Constitution." He then expressed regret that the people did not provide for direct election of a Chief Justice, instead of allowing it to be done by "the toss of a copper." The nominations were then made in the following order: James Campbell, John B. Gibson (then Chief Justice), Jeremiah S. Black, Luther Kidder, Richard Coulter (then of that court), Walter H. Lowrie, Joel Jones, Thomas S. Bell (also then of the court), Ellis Lewis, George W. Woodward, David Krause, Molton C. Rogers (also of the court), H. Hep- burn, A. J. Wilson, and James Thompson, omitting those withdrawn. The vote was to be taken on the basis that the five having the greatest number of votes should he the candidates. The first ballot settled the matter by giving Black, of Somerset, 99; Campbell, of Philadel- phia, 87; Lewis, of Lancaster, 78; Chief Justice Gibson, of Cumberland, 69; Lowrie, of Pittsburgh, 68; — the suc- cessful ones, with Kidder, Bell, Thompson, Maynard, Woodward, Coulter (with 23), Wilson, Rogers, Jones, and Krause in that order. The result was generally well received. Editor Forney, who was generally able to express public sentiment well, said : "It is in truth a proud spectacle to be called upon to vote for five such men, and the friends of the Elective Judiciary have rea- son to congratulate themselves upon a result which the * Wilson's History of The Pennsylvania Railroad, Vol. I, pp. 271-2. i64 ELLIS LEWIS efforts of enemies of that system led us to fear, would not be effected without the most disastrous dissensions." He also said : "Of Ellis Lewis we need say little ; for his name is everywhere accepted as the name of one of the boldest, ablest, and most thorough jurists of the country. His legal works are standards in the profes- sion, and display the energy, the learning, and the research, which arc so essentially his characteristics. He has long been identified with the Bench and the Bar ; and, though still in the vigor and prime of life, he has contributed vastly to the simplification of the practice, and to the popular elucidation of the principles of the existing code." A public letter stated that all the dele- gates from counties in which he had lived voted for Judge Lewis. ^ The opposition ticket was that of the Whigs, which was placed in nomination by the convention held at Lancaster a few days later, namely, on June 25th. In this convention, which claimed to choose judicial nom- inees without regard to party, Richard Coulter, of Westmoreland (then of the court), received 113 votes; Joshua A. Comly, of Montour, 104; George Chambers, of Franklin (of the court also), 96; William M. Mere- dith, of Philadelphia, yj ; and William Jessup, of Susque- hanna, 62 (on another ballot, yj), were chosen.- The campaign was then on in earnest, for the two tickets were both excellent, although the Democratic ticket, as a whole, was undoubtedly more in touch with the people. The fact that Campbell, of Philadelphia, was, from the first mention of his name, bitterly attacked as a Roman Catholic, indicated a weak point in the probability of success, while the co-relative fact that Justice Coulter had been nominated in both conventions and received the highest number of votes in the Whig convention suggested a probable solution of the election problem. President Wilkins and his vice-presidents issued a strong address to the people on the judicial nominations, reciting facts, so far as Judge Lewis is concerned, that need not be repeated. "We have in Pennsylvania," says one paragraph of the address, "a beautiful system of jurisprudence. It is said to be peculiar. It certainly is ' The Pennsylvanian, June 12th, 14th, i6th and 25th. 'North American and Untied States Gasette, 26 June, 1851. THE ELECTIVE JUDICIARY MOVEMENT 165 not very well understood out of the State, and its excel- lence is not fully appreciated by all within it. Casting aside the trammels of technicality, we combine in one forum and essentially under the same form of proceed- ing, the administration of law and equity. With us law and equity, if not synonomous terms, are both parts of a great whole. For this admirable system we are much indebted to the wisdom and forecast of our ancestors. "Wherever a party would, in other States or countries, be entitled to redress at law or in equity, he can obtain it here under our combined system. If a person who has a just or lawful claim enters one door of the temple of justice, we do not deny his suit, turn him out and bid him enter another to seek the relief to which he is entitled. Our temple of justice has but one door of entrance, and our system is simple and harmonious in its action when properly understood and intelligently carried into execution. It is challenging and will con- tinue to challenge, the admiration of other governments, who are beginning to adopt it, and we should be careful how we mar its symmetry, entail upon our posterity the evils, delay, expense and arbitrary power of a separate equity administration, and fall back upon that which the wisdom of experience is abandoning elsewhere. It fol- lows that in Pennsylvania a man to be a good lawyer or a good judge must be familiar as well with the rules and principles of law as of those of equity. We looked for these qualifications in the candidates before us, and believe we have essentially obtained them in the gentle- men selected." Judge Lewis was the senior of this list, if the venera- ble Chief Justice Gibson, then seventy-one years of age, be excepted — an exception that the Whigs tried to make much of. Lewis was fifty-three, while the others were what would properly be called young men : Judge Lowrie, of Pittsburgh, being but forty-four; Judge P)lack, forty-one, and Judge Campbell thirty-eight. Gibson had been on the Supreme Bench for thirty-five years and was one of the legal luminaries of the world, but a new generation's influence was somewhat against him. Black's powerful personality stood him in good stead as well as his ten years' experience on the Sixteenth i66 ELLIS LEWIS District bench. Campbell had a remarkable career, having had almost as long an experience as a law judge on the Philadelphia Common Pleas, to which he was elevated when but twenty-nine years of age, but the feeling against Roman Catholics in ofifice was a serious obstacle in his path. Judge Lowrie, who had been Pro- fessor of Law at Pittsburgh, in the Western University, had been the successor of Grier and Hepburn in the District Court there, with about five years' experience and great popularity. "As will always be the case," reads the address, "their minds differ from each other, yet in that very difference, making up, collectively, as able a bench as perhaps we have ever had in Pennsylva- nia, and one which we cannot too strongly recommend to your support. They are all pure democratic repub- licans — all born and educated within the bounds of our own Commonwealth — have all long served in the demo- cratic ranks. Before their appointment to their present judicial stations (as it will be observed they were all at this moment Judges of high standing) they were men of prominence in the party, and enjoyed its confidence in a very high degree."^ The Whigs attacked the various Democratic can- didates, and, among these attacks, brought up Lewis' experiences as an apprentice. His friends thereupon published an opinion of his on a somewhat similar case, Commonwealth v. Hcmperly, the last paragraph of which says: *Tn this case the master had no right to demand the services of the apprentice in matters not connected with the trade which the one was to teach and the other to learn, and violated his indenture in forcibly compelling the apprentice to render such services, from time to time, as the master's convenience required, during the whole period that the boy remained with him. For these rea- sons the apprentice is discharged from his apprentice- ship, and from the articles, covenants and agreements of his indenture of apprenticeship." The editor asserts that Lewis had to clothe himself during his apprentice- ship days, showing that his was a case of injustice also.^ Nor did they neglect to remind the public how, in 1833, many were"sick and in prison" and he'Visited them" and * The Pennsylvanian, July 3, 1851. 2 The Fennsylvanian, August 13, 1851. Democratic Poster of the campaign for the First Elective Supreme Court in 1851, in possession of Chief Justice .Tames T. Mitchell. Philadelphia THE ELECTIVE JUDICIARY MOVEMENT 167 liberated them in the first law of aboHtion of debt im- prisonment. Nor did Whigs generally favor the attacks made by some of their members. The Whig Tribune, of Lancaster, on August 26th, in a fine tribute to their President Judge said that such attacks only hurt the Whigs themselves and were deprecated by "intelligent and respectable Whigs." No attack seemed to have any influence, however, on the prospects of any of the ticket, except that on Judge Campbell. On October 4th the Philadelphia Bulletin seemed to head an eflfort to put out tickets on which Coulter's name displaced that of Campbell ; at least editor Forney charged the Bulletin with leadership in the matter. This proved to be an effectively concerted movement with an issue of circulars, stating that many Democrats had accepted the substitution as the best thing for the strength of the ticket. The Democratic powers had put out an illustrated circular with a group of portraits of their candidates, including Judge Camp- bell.^ The State Central Committee issued a warning against the Coulter substitution on October 6th in emphatic capitals of all sizes. By October 2r3rd, when the returns were coming in, the interest centered in the Governor and Judge Campbell — the rest of the Demo- cratic ticket seemed to be certain of election ; but this anxiety only foreshadowed the defeat of Campbell. The returns published on the 27th as official, except those from Potter County, in which case an estimate was inserted, gave Governor Bigler 186,507 votes. Among the Supreme Judges, Black received the highest number — though not equal to the Governor's — namely, 185,761 ; Lowrie came next with 185,429; Gibson followed with 184,363, and Lewis with nearly the same, 184,064; while Coulter received 180,130, as against Campbell's 176,071 votes, which latter was nearly 3000 votes ahead of the rest of the Whig judicial candidates. The new court was to meet on November 7th at Harrisburg to cast lots for the shortest term and the Chief Justiceship and • This print is rare now. The author found four of these portraits some years since in the possession of the late Richard Winship. Tne only otlier ones he has seen are the one in charge of the Historical Collection of the Pennsylvania State Bar Association, at the University Law School, Philadel- phia, and the one here reproduced through the courtesy of Hon. James T. Mitchell, Chief Justice. i68 ELLIS LEWIS receive their commissions, while they were to have their first session en banc in Philadelphia the second Monday in December. The casting of lots resulted as follows : the three-year term and Chief Justiceship for Black ; the six-year term for Lewis, with succession to Chief Justice- ship; the nine-year term to the ex-Chief Justice Gibson; the twelve-year term to Lowrie and the fifteen-year term to Judge Coulter. On December 8th (1851), the Chief Justice and Justices Lewis and Lowrie were at McKib- bin's JNIerchants' Hotel, at 36 North Fourth street; ex- Chief Justice Gibson was at the United States Hotel, on Chestnut between Fourth and Fifth, and Justice Coulter at Jones', 152 Chestnut street, and the organiza- tion of the court was perfected that day at the court room at Independence Square, and late the following month James Campbell became Attorney-General."^ Before passing from this final conflict in the long struggle of the people of Pennsylvania to create their own judiciary directly — a struggle that began with the creation of the Provincial Supreme Court in 1684 — it will be interesting to note a view of this conflict a quarter of a century later by one who was in the judicial convention that nominated Justice Lewis. "The greatest fear of the thoughtful," said James Alexander Fulton, referring to this period in a letter written in 1873, "was, that the judicial office would become at once the prize and the prey of the politicians " * * . But the very greatness of the interests at stake inspired caution and forbearance in the outstart; * It is interesting to note that of the twenty-four President Judges elected in the State, fourteen were Democrats and ten Whigs. The former were as follows: First District (Philadelphia), Oswald Thompson; Third (Northampton and Lehigh), Washington McCartney; Fourth (McKean, Tioga, Potter and Elk), R. G. White; Eighth (Northumberland, Lycoming, Centre and Clinton), Alexander Jordan; Ninth (Cumberland, Perry and Juniata), James H. Graham; Tenth (Westmoreland, Indiana and Armstrong), J. M. Burrell; Eleventh (Luzerne, Wyoming, Montour and Columbia), John N. Conyngham; Thirteenth (Bradford, Susquehanna and Sullivan), David Wil- mot; Fourteenth (Fayette, Washington and Greene), Samuel A. Gilmore; Eighteenth (Venango, Clarion, Jefferson and Forest), John C. Knox; Nineteenth (York and Adams), Robert J. Fisher; Twentieth (Mifflin and Union), A. S. Wilson; Twenty-first (Schuylkill), Charles W. Hegins; Twenty-second (Monroe, Pike, Wayne and Carbon), N. B. Eldred; and Twenty-third (Berks), J. Pringle Jones. The Whigs were as follows: Second (Lancaster), Henry G. Long; Fifth (Allegheny), William B. McClure; Sixth (Erie, Crawford and Warren), Elijah Babbitt; Seventh (Bucks and Mont- gomery), D. M. Smyser; Twelfth (Dauphin and Lebanon), J. J. Pearson; Fifteenth (Chester and Delaware), Townsend Haines; Sixteenth (Franklin, Bedford, Somerset and Fulton), F. M. Kimmell; Seventeenth (Beaver, But- ler, Mercer and Lawrence), Daniel Agnew; and the Twenty-fourth (Hunting- don, Blair and Cambria), George Taylor. — 6 Harris 4. THE ELECTIVE JUDICIARY MOVEMENT 169 and, thanks to the virtue and discriminating:^ intelligence of the citizens of that noble old commonwealth [Penn- sylvania], have been able to maintain a conservative public opinion ever since. The small number of the class from which the law judj:jes had to be taken, and the infrequency of judicial elections, no doubt somewhat abashed the professional politicians, and did much to withdraw the judicial office from the seething caldron of politics. The same year the amendment was adopted, elections were held for state officers; and, although neither the Democrats nor Whigs had yet held their nominating conventions, yet, by common consent, both these great parties resolved to hold two distinct conven- tions, one to nominate candidates for judicial, and the other for political, office. This was a wise and conserva- tive measure, and has had much to do to keep the judiciary out of mere politics ever since. "Of the constituents of the Whig convention I can- not now speak, but having been a member of the Demo- cratic judicial convention, I am able to say that it was composed almost entirely of lawyers, and largely repre- sented the learning, ability and honor of the Democratic bar of Pennsylvania. To maintain the high character of the bench was its first and great aim. Hence, political considerations were almost entirely discarded, and the remark oftenest heard was, T came here to nominate the ablest and best men we have.' Indeed, very few of the members of that convention were politicians, and would not have gone to a merely political convention. They were lawyers, and went to maintain the integrity and vin- dicate the honor of the bench, by the selection of honest and capable men. The result of their deliberation was the nomination of as good a ticket for supreme judges — all the state conventions had a right to make — as ever was presented to an intelligent constituency. They were John B. Gibson, Ellis Lewis, Jeremiah S. Black, Walter H. Lowrie and James Campbell. They were all nominated on the first ballot, and were all elected but the last. All of them by their subsequent conduct, justi- fied the confidence of the convention, and made for them- selves a reputation far more extensive than the limits of their own State. The bar took the work in hand 170 ELLIS LEWIS promptly and earnestly, and did it well and success- fully. "In most of the districts," continues the writer, "the opinion of the bar has had a controlling influence in the selection of the bench ever since the amendment was adopted ; and, in some, a direct and absolute control. It is doubtful whether there is now a single district in Pennsylvania in which the opinion of the bar has been disregarded in the selection of the judges. Even in Philadelphia, where the politicians, as a class, are notoriously venal and corrupt, their degrading and baneful influence in this department is counteracted and amelioriated by the conservative and healthful influence of her bar, who, upon this subject, lay aside their political preferences and unite upon candidates whom they believe to be above reproach, and thus, generally, secure their triumphant election. By such influences the judiciary of Pennsylvania has been preserved in its integrity, and stands now, perhaps, as high in the esteem and confidence of her people as ever it did. "The old system gave us for supreme judges such men as McKean, Tilghman, Yeates, Huston, Rogers, Sergeant and Bell ; the new has given us Black, Lewis, Lowrie, Woodward, Thompson, Agnew and Sharswood ; while both have given us Coulter and Gibson. I shall not compare them or speak of their respective merits, but only say that they all do honor to the exalted and responsible positions they have respectively held. It is because this system, under the amendment, has worked so well and satisfactorily" that the writer thinks it will not be abandoned. "Indeed," he' adds, "I may remark in conclusion, that the selection of the judges in Penn- sylvania has ever been in the hands of the bar. When they were appointed, the executive was greatly influ- enced, if not absolutely controlled, by its wishes, and now, since they are elected, we see the same power directing and controlling as before. In both cases the result is a bench as distinguished for its ability as for its purity — one that is an honor to the law and to the great State whose judicial system they both represent and uphold."^ * A letter to the Albany Law Journal of February 8, 1873, by James Alex- ander Fulton, then of Dover, Delaware, in relation to the Constitutional Con- vention of 1873-4. CHAPTER XI A Justice of the Supreme Court 1851 Tlie career of a justice of the Supreme Court, on its technical side, is a part of every lawyer's library and training;, namely, the opinions rendered by him which are preserved in the official reports. These are, as a rule, the decisions of the whole court, formulated by him at their request. In consequence, the substance of his opinion — the material of decision — cannot properly be considered personal, as it is the common product of the entire court ; although even the professional follower of the law at times unconsciously attaches it overmuch to the person. In the expression of this common decision, however, a vast amount of the human individual char- acteristic is injected, so that decisions of jurists become most interesting expositions of both mind and character in varying degrees — and the mind and character of the members of the highest tribunals in our states and nation are of the inmost texture of the history of those commonwealths and the national body. At the first session of the newly-elected Supreme Bench at Philadelphia in the winter of 1851-2, there were one hundred and seven decisions rendered which required expression in an opinion, an average of about twenty- one opinions to each justice had they been evenly dis- tributed. These opinions were not, however, evenly dis- tributed, but whether this was due to the ill-health of Justice Coulter or the advanced years of the late Chief Justice or from some other cause is not now known. For some reason though an unusual number of these opinions were assigned to Justice Lewis, so great a num- ber, namely, forty, as to be practically the share of two men. And what interesting contrasts the opinions of this body furnish ! And what various ideals each of these justices seemed to have ! There was the virile 171 172 ELLIS LEWIS free expression of Black ; the finished and classically complete opinion of Gibson; the vigorous warmth of Coulter; the full treatment and ethical flavor of Lowrie; and the direct, exact and learned expression of Lewis. Not, of course, that these features would always appear equally noticeable, for often an opinion is so purely technical as to be of interest to the legally trained alone, but in a large number of opinions there occur many that are especially characteristic. Justice Lewis' first expression that has been reported was a dissent, in a case where Justice Lowrie expressed the opinion of the rest of the court ;^ but in this entire long session he had but two other occasions to disagree with the majority of the court. His first opinion was on a construction of the will of Stephen Girard :- "It is certainly true," said he, "that there is a looseness of expression in the instrument before us ; but this only demands, with more urgency, that the general intent shall overbear small objections of expression and punct- uation. There is as much propriety in understanding the testator to speak distributively in reference to the docks and platforms as in regard to the wharves. The wharf, the dock and the platform are so connected with each other in their construction and in their uses, that they may be regarded, for many purposes, as identical. The dock is useless without the wharf ; the latter is of no value independent of the dock ; the platform is but an extension of the wharf ; and the owner of the wharf receives the profits of the whole. Why then should the charges of keeping the whole of this structure in proper condition for its uses be divided? Why should a stranger assume the duty of keeping the docks in order, while the owner, who receives all the profits of the dock and wharf, is only required to keep the wharf in order? An unequivocal declaration of such intention would, of course, be regarded and enforced ; but, in our opinion, no such intention is expressed." In another opinion is seen a luminous expression on corporations, showing his editorial experience in bring- ing a difficult subject within range of popular compre- hension: "But as those who enacted the by-law give it ^ 5 Harris, 103. 'Ibid., III. A FIRST ELECTIVE SUPREME COURT JUSTICE 175 a different interpretation, and claim the power to pass by-laws affecting contracts previously made, it is proper to state our opinion on this question also. Corporations are the creations of the law, and possess such powers as are specifically granted. In general, acts of incorpora- tion are designed to give them only the like capacity to act, in respect to the particular objects for which they are created, that natural persons possess in respect to their own affairs. A corporation has no power to invade the rights of individuals. A by-law, when used for this purpose, is totally misapplied." And further on, after stating a situation, he says : "The soundness of this posi- tion may not readily be perceived, because corporate action assimilates in form to the action of sovereignties, and the aggregation of intelligence and influence which exists in such cases, creates habits of thought, and, in practice, produces a power which tends to obscure the sense of right and equality."^ The new court had not finished its Philadelphia ses- sion before its ranks were broken by the loss of the one member who was not on the original Democratic ticket. Justice Coulter died on the 20th of April, 1852, and was replaced the next month by one of the prominent names before the Democratic convention, Hon. George W. Woodward. Justice Woodward was a native of Wayne County, son of one of the associate judges of it, who was of the old Connecticut-Pennsylvania blood. He was now only forty-three years old, had learned his law under Garrick Mallory at Wilkes-Barre and succeeded to his practice when Alallery went on the bench in Wolf's administration. He had been in the constitutional con- ventions of 1837-8 and had been a President Judge from 1841 until the elective judiciary law went into effect. President Polk had nominated him for the National Supreme Bench in 1845, but through Cameron and Buchanan, it is said, he was not confirmed. Governor Bigler appointed him to succeed Justice Coulter and he was elected to the position in the fall of that year and had a long service of fifteen years. Judge Woodward was at once recognized as one of the ablest of this dis- * 5 Harris, 141. Mr. Buchanan, writing from Wheatland, February 4, 1852, says: "I am rejoiced to learn from different sources that your Judicial career thus far has given great satisfaction in Philadelphia. .May it ever so continue!" 174 ELLIS LEWIS tinguished bench and a worthy successor of the late Justice Coulter/ The session of 1852 that sat in Harrisburg must have brought anew old memories to Justice Lewis as he walked the streets where he had spent his apprentice days in Wyeth's old printing establishment forty years before and danced around bonfires for the victories of 1812. Justice Lewis was now fifty-four years old as he joined Black, Lowrie, Gibson and Woodward on the bench at the state capital. The session here was, of course, not so crowded as in Philadelphia, as there were but sixty-two cases on the docket, and these were this time more evenly distributed, Lewis delivering fifteen of the sixty-two opinions and dissenting but once. In one of these opinions is found the following: "For- tunately for the consistent and humane administration of justice, the courts of this country are no longer in- fluenced by the feudal policy which favored the eldest son to the exclusion of other claims ; and are not restrained, as Lord Eldon was, from contradicting a decision of the House of Lords, if founded upon a principle which has no existence in this country, and the decision be opposed to reason and justice, and to the opinions of enlightened jurists, in that countrv as well as this."- Again, referring to financial liabilities made solely from motives of friendship, believing that they ought to be preferred creditors, and opposing any change of this presumption, he said : "At all events, a change so important in the business transactions of the people ought not to be put into operation by the courts until the Legislative will to that effect be plainly -expressed."^ One other expression may be noted : "After the lapse of three score years and ten the memory fails, witnesses die, and documents are lost or mislaid. It is therefore difficult, and frequently impossible, to •establish, by positive evidence, the facts of an ancient transaction. The law, in furtherance of justice, and for the protection of society, has, in such cases, substituted for positive evidence the doctrine of presumptions. A • Sketch of Hon. George W. Woodward, by George B. Kulp, Esq. * 7 Harris, 56. ^Ibid., 61. A FIRST ELECTIVE SUPREME COURT JUSTICE 175 possession of twenty-one years is not only sufficient defense to an ejectment, but is a title on which a plaintiff may support such an action against another. Deeds thirty years old, in accordance with the possession, may be given in evidence without proof. Thus, as 'the scythe of time destroys the evidences of title, the hour- glass measures out the period when those evidences are no longer necessary.' "^ The Sunbury session of 1852? also brought him again into a region where his real life had begun and where he had made a name as the people's friend in the very troublesome settlement of land titles which so long afflicted that part of the state. But thirty-one opinions were the result of this session, and seven of them were assigned to Justice Lewis, while he was constrained to disagree with the court in two instances. It was upon the subject of land titles here that one of his most interesting expressions occurred: "If any branch of the law," said he, "has peculiar claims upon the firmness of the bench, it is that which relates to land titles. The contest is frequently between distant owners and in- dividuals claiming by possession or settlement. In such cases the hardships and poverty of the latter always secure the sympathies of their benevolent neighbors, when called into the jury box. Under such circum- stances the Court should hold the scales of justice with a steady hand. When the law is explicitly declared by the judge selected for the purpose, there is among our intelligent and upright people an abiding devotion to its supremacy which will always insure a correct decision. "- "As an honest man," he says in another interesting expression, "it is natural that he should feel his con- science touched by the peril in which his own mistake, in a duty which he had undertaken to perform with fidelity, had placed the party who confided in his knowledge, accuracy and integrity. Precisely to the same extent would the case reach the conscience of a chancellor. It is not always possible to ascertain whether an error of this kind is occasioned by fraud or mistake. For this reason the law in its wisdom declares ' 7 Harris, 69. ' Ibid., 210. 1/6 ELLIS LEWIS that it shall not be taken advantage of by the party who caused it. No one shall profit by his own wrong."^ The remaining session of 1852 at Pittsburgh, the home of Justice Lowrie, resulted in as many opinions as at Harrisburg and Sunbury combined, and nearly as many as at the previous Philadelphia session — ninety- four, an average of about eighteen to each of the five members of the court. As before, Justice Lewis had more than his share — twenty-two — or nearly one-fourth, and found but two occasions of disagreement with his brethren. In one of these opinions he says, regarding free speech : "The freedom of the press is as well deserv- ing protection as the liberty of speech ; but no one, in his wildest enthusiasm in favor of the former, has claimed the right to establish printing presses in the public streets."- Again, in referring to the words "equity and justice" in a certain act of Assembly of 1840, he said : "This may be understood as adopting the principles of equity which had heretofore governed Courts of Chancery, in applications of this kind. It was certainly not the "intention of the Legislature to keep litigation on foot for a longer period than necessary for the pur- poses of justice; or to nullify the solemn decisions of the Courts, at the mere will and pleasure of any party who chose to demand a rehearing, within five years, upon the same questions oi fact which had been fully heard and decided on the first trial. To allow this to a party who cannot allege that any error in lazv appears on the face of the decree, or that he has discovered any new evidence, or that any new matter has arisen, wovtid be contrary to the maxim that 'no one shall be twice vexed for the same cause,' and would not be administering 'jus- tice' or 'equity.' "'■^ Another opinion says : "It strength- ens our confidence in the justice of the country when we see a principle, so just in itself, and so beneficial in its general results, sternly and constantly enforced. Every relaxation in the rules in view of the supposed hardships of particular cases is but the opening door to the most dangerous abuses of the process of the law."* Referring to the decision in a case known as Summer's * 7 Harris, 239. - Ibid., 413. ^ Ibid., 433. * 8 Harris, 49. A FIRST ELECTIVE SUPREME COURT JUSTICE 177 appeal, he says: "In overruling it we correct a plain mistake; we affirm, as a principle not to be denied, that the judicial power is not authorized to make new and inconvenient innovations upon the rights of the people, or to alter the law of the land upon a mere 'glimmering' of legislative intent ; and we replace ourselves upon ancient foundations, in accordance with the true doc- trines of stare decisis, and in obedience to the authoritative voice of the law."^ With the advent of December, of the winter of 1852- 3, the court returned to State House Row in Philadelphia to enter upon a most important session. Of the ninety- seven opinions rendered from the work of this session, Justice Lewis is responsible for twenty, and he dissented formally but twice. In one of these opinions is a rather startling expression that, it may be surmised, drew a smile from the Court: "A dead man cannot be said to refrain from drinking to excess, within the meaning of the testator," referring to a contingency, if he had lived, which would control a certain legacy — "although, in another sense, nothing is a more peremptory termina- tion of such excesses than the solemn sobriety of the grave. Nor can it, with any propriety, be said of him that, while quietly reposing under the clods of the earth, he indulged in intemperate habits ; * * " p ^\iq ex- pression, however, was a perfectly natural part of the exposition and reasoning of the case. In another case, where a party objected to the lower court's instructions as "impairing the effect" of the counsel's argument, he said : "An affirmative answer to the points put by counsel would frequently produce an effect which would lead the jury into error. A judge is acting in the line of his duties when he accompanies his answers with such observations as are necessary to guard the jury against such a result. There are many cases in which affirma- tive answers to the point put by counsel, although strictly correct, as far as they go, would produce an improper efifect. It is just that this 'effect' should be 'impaired' by 'pertinent observation' from the judge. "^ It was seldom that Justice Lewis departed from scru- ' Ibid., 67. - Ibid., 244. ^ 9 Harris, 72. 178 ELLIS LEWIS pulous directness in reasoning to use an illustration, as he did during this session on one occasion in reference to the rule that taxation follows domicile, when he spoke of the results and cause of Joseph and Mary's journey from Nazareth to Bethlehem. "When the decree for taxing the empire was issued, the presence of Joseph in the city of David became necessary in order that he might 'be taxed in his own city,' for 'he was of the house and lineage of David ;' and the presence of Mary was indispensable to a correct registry in relation to the anticipated birth, because Roman law establishing the first census required the citizens to register the names of their wives and children. By the observance of the rule that taxation follows the domicile, Bethlehem became the birthplace of the Redeemer. This rule is of great antiquity and of great obligation."^ It was at the Philadelphia session that what was called, by Chief Justice Black, "beyond all comparison, the most im- portant cause that has ever been in this court since the formation of the government," was decided, namely, the famous Sharpless case on municipal subscription to rail- ways, which finally caused an amendment to the con- stitution. The three opinions in this case were given by the three who formed the majority decision. Chief Justice Black and Justices Woodward and Knox. Justices Lewis and Lowrie "dissented vigorously. "- Shortly before the May term at Harrisburg the court lost the venerable figure that had given it more fame than any other, not excepting Tilghman and McKean. On May 3, 1853, Justice Gibson had died, and on the 9th, at Harrisburg, Thaddeus Stevens, of Lancaster, on the assembly of the court announced the fact in becom- ing terms. He had reached the age of three score and sixteen. "None of us," said Chief Justice Black, "ever saw the Supreme Court before he was in it ; and to some of us his character as a great judge was familiar even in childhood. The earliest knowledge of the law we had was derived in part from his luminous expositions of it. He was a judge of the Common Pleas before the ^ 9 Harris, 115. 2 The deciding opinions are in 9 Harris, 158. The dissent is mentioned by Thomas Williams of Pittsburgh, who appeared in the case by courtesy. See "Life and Speeches of Thomas Williams, 1806- 1872," by Burton Alva Konkle, Vol. I, p. 332, foot-note. A FIRST ELECTIVE SUPREME COURT JUSTICE 179 youngest of us was born, and was a member of this court long before the oldest was admitted to the bar. He sat here with twenty-six different associates of whom eighteen preceded him to the grave. For nearly a quarter of a century he was Chief Justice, and when he was nominally superseded by another as the head of the court, his great learning, venerable character and over- shadowing reputation still made him the only Chief whom the hearts of the people would know. * * * At the time of his death he had been longer in office than any contemporary judge in the world; and in some points of character he had not his equal on the earth. Such vigor, clearness and precision of thought were never before united with the same felicity of diction."^ The new member who succeeded Gibson was the popular jurist who had been placed on the bench of the old Tenth District to replace Judge Thomas White to quiet the agitation which did so much to precipitate the struggle for an elective judiciary,^ Justice John C. Knox, This and the next session of 1853, at Harrisburg and Sunbury, were productive of very few opinions ; the former with but fifty-three, of which Justice Lewis, for some reason, gave only five — far below the average, and the latter with but ten opinions, three of which were assigned to him. Most of these opinions are excellent examples of his directness and scrupulous devotion to the exact case before him, rather than to general princi- ples. But very few instances of expression of a general principle occurs, although on one occasion he remarked that "We must administer the law as a system intended * 7 Harris, ii. ' An interesting commentary on this new appointment is a letter of James Buchanan's to Judge Lewis, dated June 13, 1853. "I recommended Judge Bell voluntarily as I had done Judge Campbell. I knew him to be an able Judge, a sound lawyer, & an honest man; & I thought that the Governor would not proscribe that district in the State in which two-thirds of the business of the Court originates. Besides, I felt a little compunction, because my efforts in your favor had to some extent indirectly been the means of defeating the nomination of Bell. It is true, I knew at the time that my recommendation would not weigh a feather with the Governor, as I told Judge Bell whom I saw the day after it was sent. It now appears that it was the ludges who defeated Bell & had Knox appointed. If I desired to play tlie Demagogue, a thing which I have never done, I would not desire a better subject, before the people, than a Court desirous of becoming a close monopoly & perpetu- ating themselves by filling their own vacancies, as the Magistrates formerly did in N'irginia, & a Governor submitting to their dictation & then calling upon the people in convention to sanction the deed. But all this is far from me. I desire peace & tranc^uility for the remainder of my life. I have heard of no opposition to Judge Knox & I shall certainly make none." Lewis Papers. This letter is in reply to one of Lewis' stating that Knox was the •choice of the rest of the court. Buchanan Papers. i8o ELLIS LEWIS to promote justice, and not as a snare to entrap the innocent."^ In a decision at Sunbury he had occasion to say: "When the law is settled, judges ought not to unsettle it, except upon the most urgent necessity. But when it is rightly settled in a way that promotes justice and accords with the public convenience, there is no justification whatever for disturbing it. But we are told that it is very hard to commit the defendant until he complies with the sentence, and that he cannot abate the nuisance while he is in prison. Doubtless it is so; but 'the way of the transgressor' is always 'hard.' The sentence was not intended so much for his convenience as for that of the public whose rights he has violated."^ It should be stated, while referring to these two sessions, that at Harrisburg he found three occasions to disagree with his fellow-justices — an unusual proportion. The Pittsburgh session of 1853 was as productive of opinions as usual, there being eighty-three, of which Justice Lewis had his usually large proportion, namely, twenty-two, one of which was the first "additional" opinion he had been felt called upon to render. He had three occasions of dissent at this session also. "Public policy," said he in one of these opinions, "and the inter- ests of debtors and creditors require that sales, made under decrees of courts of competent authority, should be sustained after final confirmation. The confidence reposed by the people in the justice and authority of the judicial tribunal ought not to be made the means of ensnaring them to their destruction."^ The "addi- tional" opinion above mentioned, i. e., an opinion con- curring with the court, but stating elements that the regular opinion is believed not to emphasize sufficiently, in all probability arose from Justice Lewis' knowledge of medicine and surgery. After stating how a surgeon is taught to treat a broken bone so that the limb shall preserve its normal length, he says: "Entertaining these views of the case, I am bound to say that the plaintiff in error has failed to satisfy me, either upon philosophical principles or by surgical authority, that the means made use of for the purpose of producing 'extension and * 9 Harris, 448. "Ibid., 531. ^ 10 Harris, 202. A FIRST ELECTIVE SUPREME COURT JUSTICE i8i counter-extension' were adequate or even proper for the purpose." He then analyzes the course that was taken by the surgeon much to the disadvantage of the latter and in a way that even the layman can comprehend. This medico-surgical knowledge, which, however well it bore upon justice in the original trial, was too much for Chief Justice Black, who closed the matter with a remark bordering on asperity. "We are not authority on questions of surgery. Our hands are abundantly full of questions which belong to our profession, without volunteering opinions on sciences which relate to others. I think it necessary to say this in order to prevent the court below on second trial from supposing that we intend to give them any instruction on matters in which we have no jurisdiction. But this is my own opinion, for which no other member of the court is responsible."^ A very good example of how Justice Lewis sustained conservative principles occurred at this session. "This decision," said he, "has never been reversed, and the argument by which it is sustained by the lamented jurist by whom it was delivered has never been satisfactorily answered. The public and professional confidence in its soundness has been so unhesitating and abiding that it has regulated the practice throughout the state. In the Eastern District it is necessarily regarded as a bind- ing authority. In the Western District no opinion which the District Judge, or any other single judge might have entertained, could be expected to overthrow its influence. The ability with which the opinion is maintained, the great eminence of its distinguished author, and the justice and public convenience which it tended to promote, commanded the general respect and acquiescence of the community. It has governed in the purchases and sales of land derived through pro- ceedings in bankruptcy for the last twelve years. Many titles and extensive landed interests depend upon it. To overthrow it now, and to pronounce all these titles void, would be a most unjust proceeding, which would spread consternation and ruin throughout the state. We are perfectly aware of the existence of opinions in favor of enlarging the jurisdiction of the United States Court, ' 10 Harris, 273-4. i82 ELLIS LEWIS and extending', by construction, the operation of the Act of Congress. But we affirm, without fear of contradic- tion, that if the construction, now claimed by the plaintiff in error as the true meaning of the bankrupt law, had been engrafted upon it at the time the bill was under consideration in Congress, it never would have received the sanction of that body."^ The closing year of the Chief Justiceship of Black began with the session at Philadelphia in the winter of 1853-4. Eighty-four opinions were the result of this term, and to Justice Lewis fell almost exactly his share of them, namely, seventeen, and he dissented from his brethren but once. Lewis had a pride in the Pennsylva- nia system of jurisprudence, and more than once took occasion to express it. In one instance during this session he said, after describing the English course in such a matter : "But in Pennsylvania we have no occasion to lament the want of power to do justice. The Courts have, by the constitution, the power of a court of chancery in cases of that kind."^ In another case he touches upon the field of art in the Academy of the Fine Arts' taxation case. "It is true," said he, "that the arts of painting and sculpture are refining and elevating in their tendencies. They advance the fame and fortunes of all who are qualified for the beautiful creations which belong to them. Like the kindred arts of poetry and music, they furnish 'a joy forever' to those whose tastes invite, and those whose circumstances permit them to drink at the Castalian fountain. But we make but indifferent progress in the improvement of our moral sentiments if we desire to reach the pleasures and the profits of these refinements at the expense of others, whose tastes lead in a different direction, or whose circumstances preclude them from participating in such gratifications. '^ * '^ * The Academy of Fine Arts presents us with pictures of life, zvith action. The Academy of Music, with its proposed opera, may furnish us with pictures of life zvithout action.^ We may differ in our estimates of the merits of these institutions ; but we do not perceive much ground for any difference of * 10 Harris, 411. ^ Ibid., 469. 3 The ascription of "action" to Painting and not to Music, especially opera, is no doubt a slip of the pen, and probably was intended vice versa. A FIRST ELECTIVE SUPREME COURT JUSTICE 183 opinion on the question whether it is just to wring from the labors of those who derive but little pleasure or profit from them the taxes necessary for their support. The public charges are already onerous. We are not prepared to increase them — for purposes in which the people at large have but small interest, until the legis- lature shall direct us to do so in language not to be misunderstood."^ In view of Justice Lewis' services to the debtor class during his public career, an expression on this subject is of interest. "Notwithstanding the benevolent pro- visions of the statute in favor of unfortunate and thoughtless debtors it was far from the intention of the legislature to deprive the free citizens of the state of the right, upon due deliberation, to make their own contracts in their own way, in regard to securing the payment of debts honestly due. Creditors are still recognized as having some rights ; and it was not the intention of the legislature to destroy them by impairing the obligations of contracts. It frequently happens that the creditor is more in need of public sympathy than the debtor. When a poor man is unjustly kept out of money due to him, the distress arising from the want of it is often greater than that caused to the other party by its collection. If the suffering was but equal, it is plain that one man should not suffer for the follies or misfortunes of another. Every one should bear his own burthen."^ "We should never forget," said he in another opinion, "that judicial tribunals are established for the purpose of administering justice,"^ and such a reminder often served to raise the tone of the whole case. During the Philadelphia session of '53-4 he received some interesting letters from Minister James Buchanan, in London, who was one of his most intimate friends at Lancaster. "Pray write me a long letter," Mr. Buchanan says in a letter of December 9, 1853, "& give me a gossiping account of all matters & things relating to Lancaster, the world in general, & 'the rest of man- kind.' I am sadly in want of such information. * * * * * I believe I shall be able to give you a favorable ' 10 Harris, 499. ' II Harris, 94. * Ibid., 170. l84 ELLIS LEWIS introduction to the Sages of the Law, when you visit England next summer. It has so happened that the Lord Chancellor & the Chief Justice of the Queen's Bench, particularly Lord Campbell, have treated me with great civility & kindness since my arrival in Lon- don. The latter has given me a special invitation to visit the Queen's Bench, where he says I shall be received with distinguished honors. What he means by this I do not understand. We have had no conversation on any legal subject, except what incidentally arose from a question of mine as to the period when Lord Holt was Chief Justice in which I had a meaning. This induced him to speak of the decision in the case of Coggs V. Bernard, in which rusty as I am I felt at home. I then asked him if he was aware that Lord Holt had decided that under the law of England negro slaves were merchandise. This was after we had risen from the table of the Duke of Newcastle, where Mrs. Stowe, her book & American slavery had been a subject of conversation. Upon that occasion I spoke right out & was agreeably surprised to find that most of the gentlemen at table concurred with me in opinion as to the impropriety & the consequences of their interference on the subject. " ' 'Tis distance lends enchantment to the view,' " he continues. *Tn the power & facility of general conversa- tion, I would be willing to stake Wheatland that the Chief Justice & yourself would excell the Lord Chancel- lor & the Lord Chief Justice. It is true that in general society they are too polite to converse upon professional subjects where I have no doubt they would find them- selves at home. The official costume of the Judges of the Queen's Bench, — large crimson gowns, is truly ridiculous. That of the Chancellor & Vice Chancellor is far richer, though but little more becoming. In a plain suit of black, I met the Grand dignitaries, at the Lord Mayor's dinner, all arrayed in their official robes. If I were twenty years younger, I have no doubt I should be much pleased with a residence at this court. As it is, I shall endeavor to make the best of it. My heart, however, is still in my native land ; my dream of life is, that I shall pass the remnant of my days, A FIRST ELECTIVE SUPREME COURT JUSTICE 185 should a merciful Providence prolong them, in retirement at Wheatland. I would now rather have a conversation with Alderman Kautz than with the Lord Chancellor of England. "A few days ago," the letter continues, "I went to pay a visit to the Marchioness of Wellesley & Lady Stafford at Hampton Court. The former was very ill with dropsy & I did not see her. The latter, I found in much trepidation, in consequence of a notice which she had just received through the official papers of the court to appear before you on the first Monday of January. [Here follows a half page of obliterated matter and the following marginal explanation of it : T obliterate this not because there is anything objectionable in it; but because I have always felt an abhorrence to make allu- sion to a Judge about a case before his court, even without expressing any opinion.'] They asked me to recommend an agent for them for their lands in Penn- sylvania & I suggested the name of our friend Christo- pher L. Ward. These ladies have experienced an astonishing fate. They have all married titled noble- men ; & no lady stood higher or was more respected at court than Lady Wellesley. Being the sister-in-law of the Duke of Wellington & a great favorite with him, she has amused me very much by relating private anec- dotes of that remarkable man. She is now a widow, in a dying condition & has scarcely income sufficient for her support in the rank to which she has been accus- tomed. Lady Stafford is, also, a widow & is a fine woman ; but neither she nor the Duchess of Leeds is at all equal to Lady Wellesley. I like them all for the strong & ardent American feeling which they still retain. I have no doubt, they would have been happier had they remained at home & married independent & worthy American gentlemen. But enough & far more than enough of this. "The English," he continues, "just reverse our cus- tom in regard to Town & Country life. The nobility & gentry visit London only in the summer. The season, as they call it, commences a few weeks after the meeting of Parliament in February & terminates with its adjournment, in the beginning of August. All the i86 ELLIS LEWIS rest of the year they are upon their estates or roaming^ over the continent. If you happen to meet one of them, he will tell you that there is now nobody in Town — a town which contains two millions & a half of people. They are great sportsmen ; men & women are devoted to exercise in the open air, both on foot & on horse back. Their ladies are more robust & healthy looking then our own ; but they are deficient in that delicacy of beauty for which our countrywomen are so distinguished. Of course the ministers & officials of the crown & Judges of the court must be in London, after the ist of Novem- ber; but they all have a time of it in the country from the adjournment of Parliament up till that day. 'T wish I could change the habits of our ladies," continues this distinguished bachelor minister to St. James, "& induce them to take more exercise in the open air. This would contribute both to their health & their beauty. You never see a lady here on the street in full dress. With thick shoes & warmly clad, they move at a rapid rate. I am persuaded that the mass of the people are far, very far behind our own in almost every respect. The rate of interest & the rate of wages are now so high here, that our manufacturers have but little to fear. The emigration of laborers to America & Australia have produced this effect on labor; but it is a problem which I cannot solve, why money should be so scarce throughout all the commercial nations of the world, notwithstanding the immense production of gold in California & Australia. Negotiations here in new Rail Road Bonds are at an end for some time to come. ***** Your friend, James Buchanan."^ During the winter of 1853-4 Justice Lewis removed to Philadelphia — the region which, even then, as Buchanan had said, furnished two-thirds of the business of the court. The judicial vicinage was the region of "State House Row," but Justice Lewis finally decided to go somewhat "out of town," and sought a home on the west side of the park at Penn Square, a house which bore the number "20" on the block called "West Penn Square" — now the east front of Broad Street Station, ' Lewis Papers. Judge Lewis gave him a "gosippy" letter on January 5th, stating that he would be in his "N. W. Penn Square" home in March.. The letter is so interesting that the author regrets the demands of space prevent his giving it in full. A FIRST ELECTIVE SUPREME COURT JUSTICE 187 of the Pennsylvania Railroad.' lie had rcpHed to Mr. Buchanan's letter at once from Lancaster, and the latter wrote him ag^ain from 56 Harley Street, London, on June 2nd, 1854. "I regretted very much to learn from Miss Lane," said he, "that you had removed tc» I'hiladelphia. I had anticipated many a pleasant tSc instructive hour with you at Wheatland and in Lancaster. This is another link at least partially broken. [He then refers to the death of a friend there.] I have but little to say in regard to myself. 'The London Season,' as it is called, is now in full blast. The nobility & gentry of England never consider London as their home. They come up here for about three months each year between Easter & the adjournment of Parliament & turn the town upside down. We have dinner parties every day at 8 o'clock & evening parties every night; & between the dissipation & late hours I am nearly done over. When the season ends, which thank Heaven it will do in about four weeks, the fashionable crowds disperse to their homes in the country, &c., &c., & we shall hear little more of them until next spring. I go out far more than I would on account of Miss Lane. "You will be Chief Justice next year," he continues, & then I hope you will pay us a visit. I shall be most happy to introduce the C. J. of Pennsylvania to the high dignitaries both of the law & the Church in this country, as a gentleman eminent both in the legal & theological sphere. My time will not be up till August, 1855. I dined yesterday with the Lord Bishop of London at his Palace of Fulham. It is an old & magnificent structure for a successor of the poor fishermen. In conversing about the church with him & the Bishop of Winchester, I could not resist the inclination which I felt to condemn the practice prevalent here of selling church living — the care of souls at public auction to the highest bidder. This cannot be done if the incumbent is dead & a vacancy actually exists. The sale must be made in the life time of the incumbent ; & then as inducement to the bidders the advertisements often state that he is old, mentioning his years & in feeble health, holding out the prospect of a speedy vacancy. The Bishop evidently did not * He is not given in McElroy's Philadelphia Directory as at 20 West Penn Square until the issue of 1856, which was made up in 1855, no doubt. i88 ELLIS LEWIS approve the practice, though he was cautious in expres- sing his opinions. He said that all they could do was to take care not to ordain any unworthy clergyman. An attempt has been made in Parliament to abolish this practice ; but it was successfully resisted, because it would be an interference with private property ! "The war lingers on," the letter proceeds, "& I can truly tell you no more about it than what you see in the public journals. John Bull is fond of a fight & to do the old gentleman justice, he bears himself right manfully in the contest. This war is still very popular ; but he is at some loss to know precisely for what he is fighting. He has a formidable enemy in the Emperor of Russia. They now begin to discover that it will not be easy to take Cronstadt & Sebastopol. The other day at a dinner I was asked my opinion of the result & told them I would give it concerning the nature of the contest in the words of one of their own poets: "Now gallant Saxon hold thine own, No maiden arm is round thee thrown, That desperate grasp thy frame might feel Through bars of brass & triple steel." — They have behaved well in regard to their declaration in favor of neutrals' rights & they no longer think of impressment. Indeed public opinion would not for a moment endure a Press Gang in the country. I had some agency in these matters. ******** * Your friend, James Buchanan."^ But while Justice Lewis' distinguished friend in Lon- don was preparing to join with his fellow-ministers to France and Spain the following autumn in the famous announcement regarding a proposed purpose of the United States to secure Cuba at all hazards, known as the "Ostend Manifesto" — a program that was calculated to land Mr. Buchanan in a stormy Presidential chair instead of the seclusion of Wheatland for which he ex- pressed great longing, Judge Lewis was deeply engrossed in the cause of justice in the session at Harrisburg. The opinions of this session were fewer than usual, reaching the number of but forty-eight, with the eleven assigned to Justice Lewis, and the first absence noted in the 1 The Lewis Papers. A FIRST ELECTIVE SUPREME COURT JUSTICE 189 course of his term. "Where all the competitors arrive at the goal within a few minutes of each other, the race is too close to concede to either any merit on the ground of superior vigilance," said he in one of these. "The presumption is that the debts are all eciually just, and if so, the principle of equity requires that they should all participate equally in the remnant of their debtor's prop- erty. So that the introduction of the fractional principle, so far from being justified by unavoidable necessity for the purpose of doing justice, would be productive of the gross injustice of giving a monopoly of the assets to one creditor, to the exclusion of other claims equally just. Thus the wholesome principle of the common law would be departed from for a purpose which a chancellor would never lend his aid to accomplish."^ In view of later atti- tudes toward competition one of these opinions is an interesting commentary: "It is the policy of the law to promote competition, and thus to produce the highest and best price which can be obtained."^ The opinions of Justice Lewis seemed to grow more and more strictly professional as these years passed, so that it is with great difficulty that parts of one of them may be properly separated from the context. The close texture of the reasoning and its limitation to the imme- diate point of issue, while adding to the perfection of their technical character and making them ideally learned in law, increase their interest for the professionally interested rather than for the general student. So many of his opinions at this period are of this nature and are such models of precision and close logical texture that the question arises whether the interest of the reasoning might not overcome the disinclination of most minds to unfamiliar technicality — as it certainly would to those minds which enjoy clear logical process wherever used. An ordinary example of this, selected only because it refers to the structure of the court itself, is the following: "This case came before us at the Middle District, on a writ of error directed to the Court of Quarter Sessions of Allegheny County. As that county is part of the Western District, a question arises in relation to the power of this Court to hear and determine the cause ' II Harris, 301. ' Ibid., 310. 190 ELLIS LEWIS out of its proper place. It is true that the parties do not raise the question ; but as their consent cannot give jurisdiction, we are bound to ascertain, before we pro- ceed, how far we have authority over the case. By the fourth section of the fifth article of the Constitution, it is expressly declared that the 'jurisdiction of the Supreme Court shall extend over the State.' As the Constitution itself fixes the extent of our jurisdiction, it is plain that an Act of Assembly cannot contract its limits. But the Act of 14th April, 1834, dividing the State into districts, was not designed to circumscribe the jurisdiction of the court. The object was merely to give suitors the privilege of having their cases heard within convenient distances from the places in which they originated, and, where, generally, the parties are presumed to reside. This, like any other advantage, may be waived with the consent of the Court. There is nothing in the statute which is repugnant to such a waiver. The Act of Assembly requires the Supreme Court to be held at stated times annually in the several districts. This has always been done ; so that the statute, in that particular, has been satisfied. But justice may sometimes require that a case be taken up out of its proper district. A delay which works irreparable mischief is sufficient to call for the exercise of this power, under the constitu- tional injunction that 'justice shall be adminisitered without denial or delay. So, an abuse of process or a mistake in entering a judgment has been deemed suffi- cient to justify the interference of the Court, although, at the time, not sitting in the district where the mistake or abuse occurred. In one instance we have made an order in the Eastern District to grant relief against process issued on a judgment erroneously entered in the Western District ; and it is a common practice to pronounce judgment in one district on causes originating in another. In the case now before us, as the parties make no objection, and as our jurisdiction over them and over the subject matter in controversy is not doubted, the propriety of exercising it in the manner proposed is to be decided by considerations of expediency alone. As the punishment imposed by the sentence would be fullv suirered and ended before the cause could A FIRST ELECTIVE SUPREME COURT JUSTICE 191 be reached in the ordinary course, and this would pro- duce injustice, if erroneous, for which there in no ade- quate redress, we deem it our duty to proceed to the examination of the record returned."' The Sunbury session was decidedly short in 1854, the entire list of opinions produced by it being but eleven, with but two of these and an "additional" opinion credited to Justice Lewis — a condition which may have been due to the fact that he dissented in two other cases. The "additional" opinion is so characteristic that it is given entire: "The object of a sheriff's sale is the con- version of the debtor's estate into money for the payment of debts. It is the policy of the law that the highest price should be obtained at the least expense. It is against the interest of debtors and creditors that the property should be sold for less than its value, or that the proceeds should be eaten up by the cost of unneces- sary proceedings. Common humanity requires that the misfortunes of life should not be aggravated by such harshness, and common justice demands that legal pro- ceedings should not be made a snare for innocent citizens who repose confidence in them. When the officers of the law sell the real estate of a debtor for the price publicly bid for it, it is unjust to exact anything more than the sum thus agreed upon to be paid, or to deprive the purchaser of the benefit of his purchase, by means of encumbrances not understood to be continuing hens. Such an act in an individual would be condemned as fraud. It loses none of its turpitude by being clothed in the garb of public authority. Even the boasted omnipotence of Parliament cannot change the code of morals, and make that just which is in its nature abso- lutely wrong. In accordance with these principles, it was the settled law, in regard to judicial sales for the payment of debts, that the parties interested were not put to the expense of any more than one sale — that such a sale worked an absolute conversion of the property into money, and consequently discharged the land in the hands of the purchaser from all encumbrances which in their nature admitted of being reduced to certainty in amount. It substituted the proceeds for the land, and ' II Harris, 362. 192 ELLIS LEWIS g^ave to the lien-creditors a claim on the fund instead of their liens on the land. The salutary effect of this rule was, that it encouraged competitors at such sales, and property brought its full value. The plain business man could bid with as much safety as the more wary speculator. Thus, all parties interested in the property derived the full advantage of its conversion into money. But the Act of 1830 changed this policy so far as to protect the holders of mortgages, having prior liens, from sales under judgments entered subsequently. Under that statute several sales are necessary where one was sufficient before. Whether the title or a mere equity of redemption is sold, depends upon circumstances not always known or easily ascertained at the sale. Hence, no one can safely bid at a sheriff's sale without previously examining the records for judgment, mort- gages, and other liens not only against the defendant in the execution, but against all persons who had ever before had any interest in the property. Few men are willing to put themselves to the trouble and expense of these searches on a mere possibility — that they may become the purchasers. The field is therefore abandoned to those who follow the business of making profit out of the misfortunes of their fellows. These men generally obtain their purchases at a price so low as to indemnify themselves against the risks they encounter. But if a creditor, anxious to secure his demand, or a business man, desirous of obtaining a place for his business, or a home for himself and his family, ventures to run the property up to its value, he frequently discovers, after it is too late to recede, that a mortgage exists against the property which sweeps it away from him after he has paid all that it is worth. "Many innocent men have been ruined by the pur- chase of property at judicial sales since the Act of 1830. After ten years' experience of the evils produced by that Act, the Supreme Court, in 1840, declared that 'the con- sequences of the Act, wherever we have had occasion to observe them, have been disastrous:' 6 Wharton, 216. After fourteen years' further opportunity to witness the operation of that statute, we are compelled to bear the same testimony against it. Under its provisions no un- A FIRST ELECTIVE SUPREME COURT JUSTICE 193 learned man can with safety bid at a judicial sale. It was therefore very properly held in Berger v. Heister, 6 Wharton, 214, that 'the disastrous consequences of the Act is a legitimate reason why it should not be pushed beyond the supposed mischief;' and, in the same case, it was distinctly declared that the design of the Act was to protect the mortgagee from the intermeddling of subsequent creditors,' and that 'a judgment-creditor ivho is himself the prior mortgagee, was not to be deemed a subsequent creditor within the purview of the statute, or, in his capacity of mortgagee, an object of protection against himself.' 'When he appears in a double capacity,' it was held,'that a case has arisen which was not contemplated nor consequently provided for:' 6 Wharton, 216. Al- though the authority cited was the case of a sale on one of the mortgage bonds, it was declared that this made no difference — that the consequences would be the same were the securities arising out of different trans- actions ; and the case was put upon the impregnable ground that the Act was not intended to protect the mortgagee against himself — that the sale was by virtue of a judgment under his ozvn control, and that by not proposing to sell subject to his uwrtgage he was taken to sell discharged of it: 6 Wharton, 216. That principle settles the case before us. It is, in my opinion, the true meaning of the statute. We have, therefore, sound principles as well as binding authority in support of the justice of this case. The property in question was sold by virtue of a judgment under the control of Dr. Gibson, the mortgagee, and it was not offered for sale subject to the mortgage. He must therefore be taken to have sold discharged of it. The purchaser took a clear title, and the proceeds should be distributed among all the lien creditors according to their priority. If the sale were held to be within the operation of the Act of 1830, the result would be that the owner of the property must lose the use of it for a year, and must pay to those who thus wrong him the sum of $1500 to get it back; and those who purchased it and agreed to pay for it, instead of fulfilling their contract, are allowed a premium for violating it ! Justice forbids the sanction of such a gross iniquity. In my opinion the proper way to do justice in this case is to 194 ELLIS LEWIS enforce the true construction of the Act of 1830 by- holding- that it was not designed to protect mortgagees against their own acts. But, without affirming or deny- ing the soundness of this construction, the majority of the judges have determined to reheve the mortgagee from the hardship of his case by sending the cause back with such directions as will enable the Court of Common Pleas to set aside the sale. As a general rule, ignorance of the law is no ground for relief from the obligation of a contract. But where the contract is made in some sort with the court themselves, and where the highest of these tribunals has actually represented that the pur- chaser, under circumstances like those existing in this case, would take the land discharged of encumbrances, either that representation ought to be carried out, or the purchaser, acting on the faith of it, should be relieved. Failing to secure the first, I resort to the second as the only alternative left. For these reasons I concur in the decree."^ With the Pittsburgh session of 1854 comes the last one under the Chief Justiceship of Jeremiah S. Black. The session produced forty-one opinions, or forty-two, if one of Justice Lewis' is included, which was carried over to the next term. Of these, counting the last men- tioned opinion, he delivered twelve, which was more nearly his usually large number. "It is impossible to administer justice," said he in one of these opinions, "by giving mere isolated responses to points unconnected with the facts of the case. If a plaintiff in error may demand a response on one abstract principle he has the same right in respect to all other questions of law, whether they arise in the case of not. To permit such a practice would be to place the time and attention of the judicial tribunals at the disposal of any one who chooses for his amusement or instruction to put interrogatories, and would unnecessarily vex the parties by exposing their judgments to the danger of reversal for immaterial errors. Courts of justice are established to determine controversies actually existing, not to decide abstract principles. "- ^ n Harris, 513. 2 12 Harris, 75. CHAPTER XII He Succeeds Jeremiah S. Black as Chief Justice 1854 With the approaching expiration of the three years' term of Chief Justice Black in 1854, he was at once nom- inated for reelection as a Justice on the same bench, and the voting in October restored him to the court for the full fifteen-year term, but not to the Chief Justiceship. The latter office, stripped of its ancient glory, as the late Chief Justice Gibson believed, and as many others likewise thought, automatically fell to the Justice having the term next in length to the three years' term, namely, the six years' term which the drawing of lots had given to Justice Ellis Lewis. When the result of the election was known Governor Bigler wrote Justice Lewis saying, in part: "You, Ellis Lewis, one of the Judges of the Supreme Court, are hereby notified that by virtue of the foregoing provisions of the Constitution and the forms thereby prescribed you are the Chief Justice of the Supreme Court of Pennsylvania and entitled to that rank from Monday the 5th of the present month until the expiration of your commission."^ This was dated for December, but was sent on November 27th, with the following letter: "I have commissioned you as Chief Justice in the room of J. S. Black and have sent an announcement of the fact to the Pcnnsylvanian. It will appear in the next number. I have said about you just what I pleased for I am just now in a condition to [be] very independent."^ The "commission" was merely a private letter of notification from the Governor, unat- tested by the Secretary of the Commonwealth, and in no proper sense a "commission, ' as Justices Lewis, Lowrie and Knox believed. It was plainly stated in 4 Harris' Reports that Judge Black had been "commis- * Partial copy among the Lewis Papers. ' Original among the Lewis Papers. This notice appeared as an editorial and was very complimentary. 196 ELLIS LEWIS sioned as Chief Justice for the term of three years," and, the court not being in session Justice Lewis communi- cated with the above fellow-Justices, who were conve- niently at hand, and, concluding that the existence of a Justice's commission had caused the Governor to think a notification sufificient and they believing other- wise, prepared a legal form to supplement the Justice's commission, reciting the facts of the notification, but "declaring," says Chief Justice Lewis, "that by virtue of the Constitution there is granted full power &c. as in a regular commission."^ This Justice Knox took to Governor Bigler and argued for its issue about Decem- best 1st. About the time the Governor received this communi- cation from Justice Knox, he also received one from ex-Chief Justice Black, dated November 25th, at Som- erset, as did Judge Lewis also. The one to Judge Lewis indicates the substance of the other: "I have been told," Judge Black's letter reads, "that you have re- quested the Governor to give you a commission as Chief Justice of the Supreme Court. I object to this for several reasons some of which I will state. It is unconstitutional and illegal. You have a commission. That is the only one you are entitled to. The power of the Executive was functus officio with reference to your election when that was issued. You are C. J. by virtue of the fact that your term of office expires first. You were elected a Judge of the Sup. Ct. — and the Governor has no right to commission you for anything else. Johnston asked me if I should be commissioned as C. J. and I said no. I would neither be commissioned nor sworn for an office I was not elected to. Harris says somewhere in one of his books that I was commis- sioned as C. J. but he is not authority & it is not true. But all I could say about law and constitution you know as well as I do. 'T have another objection," he continues. "It will expose you to imputations which if you knew them would be unpleasant. It will prejudice your reputation for manliness & good sense. You have talents and learning which will honor any judicial place you occupy. ' Statement by Chief Justice Lewis among the Lewis Papers. CHIEF JUSTICE OF PENNSYLVANIA 197 If you look to those qualities and to them alone for character you will never be disappointed. But it is right for me to tell you in all candor and friendship that many persons — a majority I think — expect you to be much elated with the consciousness of being at the head of the court — that you put a wonderful value on that empty title — and that you are perfectly 'ravished with the whistling of a name.' I have heard very much of this since our last adjournment and something of it was said in the far West. You assured me at Pittsburgh that it was not true and I denied it on your authority. But how would I be able to explain your anxiety to get a void commission which you and everybody else knows can have nothing in it but the mere sound of the title? I say sound for the title itself, empty as it is, comes in another way. A thousand eyes will be on you and if you open your new career with an act like this, every one will explain it by your supposed peculiarities of mind. But if you will take your place as a matter of course and as a duty you disappoint them and excite more admiration than you could do by causing a thou- sand trumpets to be blown before you. "I object to it," he further continues, "on Bigler's account. We need him as one of the supporters of the Constitution. We cannot afford to have him weakened by such a violation of it. If it were done to secure a great object it might be borne. But this is a purpose which has less ii> it than nothing and the act would be clearly wrong without a thing to redeem it. Bigler must not do anything inconsistent with his past history and what is expected of him in the future. These are times when every friend of the Constitution must hus- band every atom of his power. You will think (I fear so at least) that this is none of my business. But I am a free citizen of the State and have a right to speak of public matters — I am a member of the Supreme Court and am concerned in its character — I am a believer in the Constitution and will not see it violated in any particular without protest. I have but one more sug- gestion to make. Does not the taking of a new com- mission imply a surrender of the old one? Certainly there is no way to answer this except by the humiliating 198 ELLIS LEWIS confession tliat the new one was taken for the mere name of the thing. But suppose the new administration should take the other view of it a quo tvarranto would be an ngly thing, would it not? Collins was destroyed, Darlington was killed & Gibson's life was embittered by accepting new commissions. But they walked over the Constitution and gave some dignity to their breach of it by doing it for a substantial purpose — to add time and power and emolument to their public life — not merely to make their titles more sonorous. Pollock and his Attorney General would have a triumphant party and the sympathies of thousands of democrats to back them. The other members of the Court might stand like Horatius at the head of the bridge and break back the host alone — that is, perhaps they might and perhaps not, for may be the law as well as public opinion would be against you. In any event the discussion of the sub- ject would injure us and you while it would do our adversaries great good. They are not such fools as to misunderstand this advantage. I have said my say. You may differ as much as you please. But do not be offended if I express my opinion at another time and place more at length and more emphatically than I have done here. Mayhap you don't believe it but it is true nevertheless that I am your friend and well-wisher — J. S. Black."^ Evidently ex-Chief Justice Black felt deeply on the subject and his colleague, Justice Woodward, likewise dissented from the unofficial opinions of Justices Lewis, Lowrie and Knox, for Judge Woodward also addressed the Chief Justice a letter, of the very same date, Decem- ber 2nd : "Dear Judge," he begins, 'T hope you have not accepted the new commission. I have looked at the constitutional amendment and the Acts of Assembly and it seems to me that they displace the old law — and that according to them no one was to be commissioned as Chief Justice, but that among those commissioned the Chief Justice was to be determined by the duration of existing commissions — the shortest to be Chief. This I say is the way it seems to me tlio' I differ from your clear conclusions with great deference in this instance ^ Lewis Papers. This letter was only a temporary ebullition; they were as good friends as ever soon afterward. CHIEF JUSTICE OF PENNSYLVANIA 199 as in all others. But suppose you should chance to be wrong — having surrendered the old commission & taken the new, would you not be out of ofifice? A doubt on this point makes me hope you will not accept the new com'n."^ The Governor, however, argued the matter, in his letter to ex-Chief Justice Black on December 2nd, as follows: After noting Black's objections he said, "The correctness of this opinion must depend very largely on what is meant by a commission. An official evidence of facts that are matters of record in this Department, could, it seems to' me, work harm to no one; and could by no possible construction be held as a violation of the Constitution. A commission, in this instance, would be the mere evidence of facts. It could neither make nor unmake a Judge — it could not add an hour to the tenure of his office, diminish or extend his duties, nor add one iota to the honors or dignities of the station. It can but be a mere abstract form or recital of therecordswhich constitute the true evidence of the election under the laws and Constitution. In issuing it the executive per- forms but a ministerial duty. The officer not being appointed by the Governor were he to neglect or refuse to issue a commission, the person elected would be none the less entitled to the office ; though his performance of the duties might be disputed. Were a dozen of com- missions issued they would all state the same facts, and that certainly could not violate the Constitution or be in derogation of the laws. Were a Governor to attempt to confer by commission powers and prerogatives not recognized by the Constitution or otherwise inconsistent with the laws, he would be guilty of misdemeanor and the commission would not be worth a straw. It would be a lie and a nullity, and whilst it might do no harm to the public the act would reffect great disgrace upon the officer. But nothing of this kind has been contem- plated for a moment, nor has it been contended that a commission should be issued to supersede that already issued, or that could in any way conflict with it. "With the limited reflection I have given this sub- ject," he continued, "I am not entirely clear as to what ' Letter among the Lewis Papers. 200 ELLIS LEWIS is right and proper. I incline to the opinion, however, that the commissions are not issued in the proper form and that your advice to Governor Johnston was wrong. They ought to have recited the exact words of the Con- stitution — that the judge holding the oldest commission should be entitled to the rank of Chief Justice. You say that you were not elected to the office of Chief Justice. I think you were. I think you were under the obliga- tions of an oath to discharge the duties of that station just as clearly as if you had been so denominated on the ballots that elected you. But this is unimportant, "Whilst I do not incline to the opinion that a formal commission is necessary, I do think it ^entirely proper that a formal notice be given whenever the contingency provided for by the Constitution shall occur. Most certainly the record in this office should be complete and should constitute a ready indication to those who shall come after us who filled this important office at different periods of time ; and I can see no reason why the individual should be deprived of the tangible evidence of a fact that may be so very agreeable to his posterity. Under the present practice should no record come into existence, and as you say, Harris' Reports are not good authority, there will be no record of the fact in the public Archives. "Besides," he continues, "the individual holding the place should have evidence in his possession of the right to do so. You say the Constitution furnishes evidence of that fact. So it does, and the laws and the election returns, with the Constitution furnishes the evidence that the individual was made a Judge, and thus your argument is good against any commission. Were the right of Judge Lewis disputed, he would be obliged to send here and procure a copy of the allotment, and then show by virtue of the Constitution and the age of his commission, that he was entitled to the place. If a notice be issued by the Governor whenever the contin- gency provided for in the Constitution arises, and that notice be recorded here, it will make a plain record for the State and a ready witness for the individual holding the office. If I comprehend you rightly, this would not t. . V I.\ nili.lUJUlvHVTHEAl 1 llOHmOKniKfI»1.11(«WK\J,TH OK l'EV\SVJ;i.VMA /:/....■ „..., /'/!^ ... /£ t /.:... ./W.ay^../'..../'^)t:y,.:.^. — ...//■a ./i^' dir.^^ X/a a/.'f./f'::/'^ ./ ...J ii/r. tt /!.. -...^ .«.-*' ./v»—,<,„.^. /*; ^tf:/.^ AK ..//if. f^.^A.■- 'V- .y//^..^...^^- ;^ 'I'he Commission of Chief Justice Ellis Lewis. the first commission of a Chief Justice under the elective system, in possession of Miss Joscpliine Lewis, I'liiladclphia CHIEF JUSTICE OF PENNSYLVANIA 20i conflict with your views. Sure I am that such a simple statement of truth can harm no man. "I enclose a copy of the notice sent Judge Lewis. When you all meet at Piiiladelphia, you can talk the subject over, and see what is deemed best. You are in error as to Judge Lewis having asked me for a com- mission as Chief Justice. The idea was suggested to me by Judge Knox, and taking Harris' Reports as true, and your commission as a precedent, it is a wonder I did not at once issue a broad, full and formal commis- sion. You will pardon what may seem crude in this, for I have written in haste, and with but little reflection. I esteem your good opinion too highly to be willing to hazard it in a matter of no more moment than that which I have just been considering."^ When the Governor received the form of commission approved by Chief Justice Lewis and Justices Lowrie and Knox, he made a proper copy on December 5th, but did not forward it until the court had had abundant time to consider the question. Chief Justice Lewis, through delicacy or for some other reason, omitted to return the notification form, but on January 3, 1855, did so, stating that he had omitted it. The result was that the com- mission proper, reciting, first, that Lewis was elected Justice in 1851 ; secondly, that a commission was issued then ; thirdly, that the Constitution provided that the Justice whose commission shall first expire shall be Chief Justice ; fourthly, that Black's term had expired and that Lewis was entitled to the office of Chief Justice; and finally that because of these facts Lewis was now granted all that pertained to the Chief Justiceship for the term of three years, was issued thus complementing his commission as Justice, so that he possessed both commissions — a custom which has now prevailed for over a half century with none of the disastrous results apprehended by the distinguished ex-Chief Justice, al- though it has caused him to be the only Chief Justice in the history of Pennsylvania who received no commis- sion as such.^ ' Copy sent by Governor Bigler to Chief Justice Lewis. ' Both these commissions are in the possession of Miss Josephine Lewis, Philadelphia. The commission as Chief Justice is reproducecl in reduced size herewith. It is interesting to note that tlie oath of office inscribed in form on the back of it was taken before Justice Lowrie. 202 ELLIS LEWIS The Supreme Court of Pennsylvania has often in its history been without a fixed home, compelled to use temporary quarters or an ordinary court-room not in use by the local court. It was so at this time. Its old quarters had been given up by Councils to District Court No. 2 at Sixth and Chestnut, and it was pro- posed to send the Supreme Court to Spring Garden Hall, which was then in the consolidated city. There was some objection to the latter project for many reasons, one of them, voiced by Justice Woodward, being that the law meant that the sessions should be held in the old city of Philadelphia.^ Room No. 5 had been the Nisi Prius court-room in which these sessions were held by members of the court, and opposite this room in the Court House, at Independence Square were rooms devoted to the Grand Jury and District Attorney which Councils had arranged to put in order for the Supreme Court en banc. As it would take some time to make the alterations, it was declared that that court at its De- cember session, with Chief Justice Lewis presiding, should use the Nisi Prius room, No. 5, until the altera- tions were complete.- It was at a Nisi Prius session held by Lewis and Woodward in No. 5 that an opinion was rendered by Chief Justice Lewis which was looked upon as one of the most notable of his opinions as a member of the Supreme Court. ^ This was in the case of William Thomas v. James Crossin et al., an opinion in Nisi Prius of which he was the sole author, although Woodward concurred. In an editorial of December 13, 1854, in the Pennsylvanian, the same day the opinion was published, it says: "In determining this question, the whole matter of State Rights, with the powers delegated to the United States, came up for consideration, and the decision could not certainly have been intrusted to safer, nor more able hands. It is a happy thing for our country that the decision of this question arose at a time when peace and good order reigned in our midst, and that the Chief Justice of our Supreme Court was called in for its settle- ment. The jurisdictions of the State and United States * Letter of Justice Woodward's to Chief Justice Lewis of December 2, 1854- ^ Legal Intelligencer, December i, 1854. ^ For an account of the Nisi Prius Court see "The Life and Times of Thomas Smith, 1745-1809," by Burton Alva Konkle, pp. 164-5. Wal'er H. Lowrie From a photograph in the Lewis Material in possession of the I'ennsylvania Bar Association, Philadelphia George W. Woodward From a photograph in the Lewis Material in possession of the Pennsylvania Bar Association, Philadelphia Ellis Lewis, Chief Justice, From an engraving in posses- sion of the Pennsylvania Bar Association, Philadelphia John C. Knox From a photograph in possession of Mrs. C. F. Woodward, Lawrenceville, Pennsylvania Jeremiah C. Black From a photograph in posse* sion of the Pennsylvania Bar Association, Philadelphia The Si'PRF.ME CoiRT OF Pennsylvania in 1854 CHIEF JUSTICE OF PENNSYLVANIA 203 courts have several times recently come into conllict, and threatened serious consequences. * * '-'" * * Chief Justice Lewis has the happy faculty of making every- thing lucid and even elo(juent which his mind touches, without detracting in the slightest degree from the force of his argument. * * * * Every citizen of the Union should read the opinion of Chief Justice Lewis, as it will give a more full and accurate knowledge of the relative rights of the State and the United States than anything we have seen in print. * * * * yi^e opin- ion will add to the already eminent standing of its author." While the opinion is too long to reproduce, one or two significant extracts will illustrate its point: "Was the sheriff bound to obey the order made by the Circuit Court of the United States? The answer to this question depends upon another : Had the Circuit Court of the United States jurisdiction over the parties and the ques- tion in the manner in which it was exercised? In con- sidering a question of this kind, it should not be forgotten that the States of this Union are separate, free, and independent sovereignties, in all particulars, except those over which they have voluntarily given the control to the government of the United States ; that the States are, in general, unlimited in their authority, while the United States government is one of limited and enumerated powers, and is strictly confined to the exercise of powers thus enumerated. This fundamental principle of the Union is distinctly stated in the Federal Constitution itself. After enumerating the powers granted to the United States, the Constitution proceeds to declare 'that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are re- served to the States respectively, or to the people.' It is upon this principle of State sovereignty that each State has an undoubted right to regulate its own domestic institutions according to its own wisdom, and that neither its sister States, nor the Congress of the United States, have any right to interfere with such regulation." Then after an exhaustive argument in which he finds that the sheriflf was not bound to execute the order, he says: "In giving this opinion, there is not 204 ELLIS LEWIS the slightest feeling of disrespect for the learning and integrity of the Judges of the Circuit Court. On the contrary, we can appreciate the feeling and excuse the errors of a judgment likely to be excited by the dis- orderly movement of a class of individuals who, setting up their own judgments as a 'higher law' than the Con- stitution, are constantly endeavoring to defeat the operation of certain laws of the United States. But these considerations do not absolve us from the dis- charge of our official obligations." But records of his work in Nisi Prius are so incom- plete that no extended treatment of it can be attempted. Turning to the session of the court en banc, but fifty-five opinions are reported for the entire court at its first meeting in Philadelphia in 1854-5, with but eleven of these rendered by the Chief Justice.^ One of these is interesting as an early railway case. ''Limited means," reads the opinion, "may perhaps limit the amount of business done by a railroad company, but it can never furnish an excuse for appropriating all its energies to any particular individuals. If it possessed this power it might build up one set of men and destroy others ; ad- vance one kind of business and break down another; and might make even religion and politics the tests in the distribution of its favors. Such a power in a rail- road corporation might produce evils of the most alarm- ing character. The rights of the people are not subject to any such corporate control."" Only forty cases are reported for Harrisburg in 1855 with fifteen, one of which is an "additional" opinion, as the work of Chief Justice Lewis. Two of these are such excellent examples of the direct, exact, and luminous exposition of the point at issue that the entire body of the opinion is of general interest, although but a part of each is here given. "For aught we know," the first in 12 Harris, 3'90, reads, "the evidence given on the trial might have fully justified the jury in deciding that tlie crime was murder of the first degree. But, as they have not done so, the [Supreme] Court cannot look into the evidence for the purpose of ascertaining the ^ Dissents have probably been sufficiently noted to show their rarity, in the preceding chapter, and need not be noted in the present one. * 12 Harris, 382. CHIEF JUSTICE OF PENNSYLVANIA 205 character of the offense. This would be an infriiif^emcnt of tlie trial by jury. They have found the prisoner "ji^uilty in manner and form as he stands indicted,' without other- wise 'ascertaining' the degree." In the second he says : "Our constitution gives the people the right of electing the clerks of the several Courts of original jurisdiction, and of bestowing these offices from time to time upon inexperienced men. If the records made up by these public servants are not construed with great liberality, justice cannot be administered. ******** The common law embodies in itself sufficient reason and common sense to reject the monstrous doctrine that a prisoner whose guilt is established by regular verdict is to escape punishment altogether, because the Court committed an error in passing the sentence. If this court sanctioned such a rule, it would fail to perform the chief duty for which it was established. Our duty is to correct errors, and 'to minister justice.' But such a course would perpetuate error, and produce the most intolerable injustice."^ The latter is an "additional'* opinion — a class that is almost invariably of peculiar strength, no doubt because it is the result of unusual conviction in the mind of its author.^ Omitting the Sunbury session, of which but five opinions are reported, with but one from the Chief Justice, and turning to the Pittsburgh term of 1855, the remarkable list of one hundred and twenty-seven opin- ions appears. Of this list forty-four are credited to Chief Justice Lewis. ^ In one of these he said: "This construction accords with our usages, and with the spirit of our institutions. It is most conducive to the interests of all parties to the contract, and we hold it to be the law of Pennsylvania."* On the point of the number of pounds of metal to a ton on the Allegheny River, where custom made a ton larger than the law did, he referred to Solomon's remarks about "diverse weights" and ' 1 Casey, 22. 'Chief Justice Lewis received the following self-explanatory letter from President Pierce, dated October 6, 1855: "It affords me much pleasure to in- form you, that a vacancy in the Marine Corps enables me to tender an appointment to your son, James. I trust that he may find the positior* agreeable to his tastes and that he may eminently adorn the profession." Lewis Papers. ' In 2 Casey eight more are credited to this term with one to the Chief Justice, p. 358. * I Casey, 140. 2o6 ELLIS LEWIS Magna Charta's demands on the same line because of abuses in England, and then said: "The example of evasion in England is an abomination to us. Like all other evil customs it ought to be abolished. It is 'more honored in the breach than in the observance.' Con- sidering the commercial spirit of the age, it is of great importance to guard against fraudulent practices, and to furnish a standard of weight and measure which shall be uniform throughout the State, and which shall be binding upon all men within our jurisdiction."^ In another case where a claim was made to rights of commons pasture is a, for him, rare instance of ironical expression: "The herbage [on this commons]" said he, "is about as abundant as that which might be found in a recently disinterred street of Herculaneum."^ Again he says, in another case: "If his right exists, it presents the unusual spectacle of a right without a remedy to enforce it. It is idlei to talk of such a right. If not recognized and enforced at law, it is the same as if it had no existence. This is the practical view of the subject. The law deals with the substance, not with the shadow."^ He administered a rebuke to an attorney at this term, as follows: "Allegations respecting the charge of the judge, giving a different version of it from that filed of record under the sanction of his oath of office, are highly indecorous. He is not a party to the case, and cannot be heard in his defense. It is, therefore, out of order to make the argument of a writ of error an opportunity for attacking his integrity. A writ of error is not a commission to settle questions of veracity or integrity between the judge and the counsel; and the counsellor who perverts it to such a purpose abuses his privilege."* Again, speaking of the relations of client and counsel, he says: "As the necessities of litigation compel confidence on the one side, the policy of the law requires fidelity on the other. The policy which enjoins good faith requires that it should never be violated. The reason for requiring it at all demand that it shall be perpetual. * * * Where fidelity is required, the law prohibits everything which presents a temptation to ' I Casey, 115. 'Ibid., 180. * Ibid., 199. * Ibid., 335. CHIEF JUSTICE OF PENNSYLVANIA 207 betray the trust. The orison which deprecates tempta- tion is the offspring of infinite wisdom, and the rule of law in accordance with it rests upon the most substan- tial foundations."' His increased prominence as Chief Justice led David Paul Brown to make him the subject of a sketch in the second volume of his Forum issued this year. It was in a series on the then late Justice Henry Baldwin and Justice Robert C. Grier, of the National Supreme Court ; ex-Chief Justice Black and the other members of the State Supreme bench. While not always reliable as to facts, Mr. Brown's estimates of character are always interesting and, for, their period, rank as classics on the characters with which they deal, as do Binney's sketches of the "Old Bar" of Philadelphia. "Judge Lewis," says Brown, "has received the degree of Doctor of Laws and Doctor of Medicine, and he richly merited both. Indeed, if his honors had been equal to his deserts, D. D. might also have been appropriately conferred upon him.- To say that these distinctions are not matters of pride with him would hardly be believed ; for if we were called upon for an opinion as to what is his highest ambition, we should incline to the belief that it is directed to eminence in all, rather than any particular science. The diversity of his application is such that the change seems to afiford relief, and he knows each branch of his studies better, from extraordinary familiarity with all. P)Ut his highest quality is his con- scientiousness. His judgment is sometimes eccentric, but his conscience, never. No influence can swerve or sway him from what he believes to be right. * * * * Since Judge Lewis has been in his present situation he has abundantly sustained his former character, and ful- filled the expectations and hopes of those who knew him best and loved him most. For industry he is unequalled ; and industry such as his, let it be observed, is rarely ' Ibid., 359. *A letter from the rector (W. H. Odenheimer) of St. Peter's, of Decem- ber 8, 1853, to Judge Lewis seems to confirm this idea. He had presented the Judge a copy of Hooker's Works, and a correspondence arose, in which, says this letter, you show yourself at home in the Theological as well as the Legal Profession." He also adds: "I do not hesitate to say, that it will be difficult for the ablest professional student of this historical question, to combine so brief & get so satisfactory a resolution of it, as your letter to me embodies." Lewis Papers. 2o8 ELLIS LEWIS the companion of a genius so comprehensive and various." "Chief Justice Lewis," he continues farther on, "is now in the 57th year of his age ; five feet seven inches high ; of a slender, but agile person ; black hair ; a dark, deep-set, penetrating eye, indicative of great kindness, great spirit, and great quickness of apprehension. Any one to look at him would know him at once to have been a model of industry all his life. He is perhaps too much of a politician ; but that is not his fault so much as the fault of the circumstances into which he has been thrown, by those accidents which are ever attendant upon the wayward footsteps of self-taught men. But, politician as he is, no one shall justly assert that he ever was a political strategist, or deny that, in all his relations, private or public, political, professional, or official, he has always proved a faithful and an honest man. He ever bears in mind the doctrine of Socrates, that 'Three things belong to a judge : to hear courteously, consider soberly, and give judgment without partiality.' To say that he is an ambitious man is to say no more than may be readily conceived from the traits of his life already exhibited ; but his ambition has ever had an honorable direction, and never stooped from its lofty flight to unite with meanness, or play the pander to power, at the sacrifice of principle. He is a humane though a just judge ; conciliatory and forbearing with the bar, indulgent to the young and inexperienced, and especially sympathetic towards those who struggle for advancement in their profession, under sullen influences, and against adverse circumstances — 'Taught by that power that pitied him, 'He learns to pity them' " ' The Philadelphia session of 1855-6 resulted in eighty- two opinions, eighteen of which were the work of the Chief Justice. He had occasion in one of these opinions to quote himself when President Judge, namely, in the Atlee V. Lancaster County case already noticed, saying that "The correctness of that decision has never been questioned. On the contrary, its principles were fully sanctioned by the Supreme Court afterwards," where- * The Forum, by David Paul Brown, Vol. II, pp. 118-33. CHIEF JUSTICE OF PENNSYLVANIA 209 upon he names the two cases in whicli it was clone. "In this enlightened age," said he, "a coroner who would consign to the grave the body over which he had held an inquest without availing himself of the lights which the medical science has placed within his reach would in most cases fall short of what his official duty requires. A thorough examination, aided by the professional skill, is in general absolutely necessary to the proper adminis- tration of justice. Without such examination, ground- less suspicions may be entertained, and prosecutions commenced, at once cruel to the objects of them, ex- pensive to the county, and wasteful of the time and talents of all persons engaged in them. But this is not all. Without an examination of the body recently after death, and a complete demonstration from the evidence thus in the power of the commonwealth, that the death was caused by violence, the guilty agent cannot be convicted. Where, from an omission to employ a physician to examine the body, the cause of death is left in doubt, the accused must in general escape ; because in all cases of doubt he has a right, under the law, to demand an acquittal. Thus the guilty may be again let loose upon society, and the people be deprived of that protection which the law was intended to provide."^ The opinions of Chief Justice Lewis, as has been said, grew more and more direct and are so stripped of any- thing but the actual technical argument or exposition that great difficulty is experienced in using an extract for illustration. It need hardly be said that no analysis of the work of a given character is so next to impossible as the work of a jurist, whose opinions are so largely the product of the entire court. To point out just what part he has taken in the Court's choice of the main elements of decision is of course impossible, because of the privacy of the consultation room ; to indicate just the bearing of his technical mastery, his experience, his wide learning, liis conciliatory spirit, the effect and soundness of his wisdom, his broad common sense, his social, economic, political or spiritual philosophy, his ideals, his personal relationships, and the thousand-and- one elements that go to make up the character and power • 2 Casey, 157-8. 210 ELLIS LEWIS of any great jurist is a result that can only be suggested, not accomplished. An examination of the thirteen opin- ions rendered by the Chief Justice, out of the total of fifty-five at the Harrisburg session of 1856, tends to confirm this conclusion. His method and characteristics produce short opinions as a rule, with a directness,, intensity and vigor of presentation that leave on the mind an impression of great mental energy and peculiar singleness of aim. Omitting the Sunbury session where he rendered two of the eleven opinions, and turning to the Pittsburgh court, there is a list of sixty-nine opinions, nearly one- third of which were written by Chief Justice Lewis, one of them being an "additional" opinion. "The trial by jury," said he in one of these, "is a right so sacred that the courts should guard it with jealous care. If a party entitled to it is willing to comply with the terms required by law, he is not to be deprived of his rights by an error of the officer having charge of the record. This principle covers the case before us."^ In the "additional" opinion referred to — an opinion written when he was Justice — he had occasion to express himself on railways, which were then largely in their infancy. "The right to cross a public road in the construction of a railroad," said he, "is as clear as the right to construct the railroad itself. The angle at which it crosses must necessarily depend upon circumstances. It is certainly not restricted to a right angle where this would require dangerous curves. Short curves in a railroad interfere with that velocity which is the main object of this description of improvement. They also endanger the lives of pas- sengers on the ordinary roads, as well as those in the railroad cars. It is therefore of primary importance that the line of the railroad be straight. This paramount object ought to be secured, if possible, although in doing it the common roads may be crossed repeatedly, and at various angles, or even approached so near as to alarm the horses and cattle in sections of country unused to the noise of the locomotive, or to the grand and imposing spectacle of a long train of cars, filled with thousands [ ?] of human beings, or freighted with many hundred tons ' 3 Casey, 263. CHIEF JUSTICE OF PENNSYLVANIA 211 of merchandise, whizzing past them with ahnost light- ning speed. The idea that a railroad must be made crooked in order to avoid proximity to, or crossing an ordinary road, is one which would embarrass and impair the usefulness of this, the greatest improvement in com- mercial intercourse which the world ever saw. It places an object of minor importance above that which, in its tendency to promote the general benefit, is so far superior as to be altogether inestimable. It places ignorance above science, indolence above enterprise, and the mi- nority above the majority. It is of close kindred with the doctrine that the owners of the adjacent lands have a right to pasture their cattle on the railroad track, and to compel the engineers and conductors to stop a long train of cars while they endeavor, by means of sticks, clods, and stones, to drive off, and keep off the cattle long enough for the train to pass in safety." Another paragraph in this interesting opinion is as follows: "I regret most sincerely that a majority of my brethren have thought that the proper construction of the charter requires these inconvenient and dangerous deviations from a straight line, in one of the most ex- tensively travelled railroads on the continent. But it is clear that we have no authority to control the company further than to confine it within the limit of its charter. We have therefore no right to deprive its directors of the discretion reposed in them by law ; and we cannot compel them to adopt the locations recommended by the authorities of Erie. On this part of the case I fully concur with the Chief Justice in the opinion just deliv- ered. The result is, that the railroad has been seriously injured, and the company put to great expense, while the citizens of Erie have entirely failed in securing the object of their exertions. The change of locations thus forced upon the company will produce no advantage what- ever to any one, and least of all to the people of Erie. If this decree could be forgotten, like a judgment in an ordinary personal action, I should feel less mortification at the result. But, in impairing the usefulness of this great thoroughfare of the western world, we have erected a lasting monument. Its voice [?]. like the herdsman's call, will reverberate along the hills and valleys after 212 ELLIS LEWIS the original sound shall have died away ; and the light which it sheds upon railroad science, like that reflected in the evening sky, will remain after the body from which it emanates shall have departed."' Probably the most serious questions before the court at this period were those of the railways, as those of the canal system were in the days of his Attorney-Gen- eralship.^ In the Mercer County case he voiced the decision of the court, in which case Black was absent and Knox dissented. He says "the action of the grand jury was intended to be mandatory — a command and not merely an authority — is manifest from what has been already said. The 'advice and recommendation' of the grand jury was to be regarded as an order, which the commissioners were not at liberty to disobey. This is the plain meaning of the act. It breathes through every word, and speaks out in every line. As if to leave not a particle of doubt on this question, the legislature, ii; a subsequent part of the act, speak of the amount of such subscription as 'ordered and designated as afore- said.' It follows that the commissioners had no dis- cretionary authority whatever in the matter ; they were merely permitted to hold the pen, and to write precisely what they were directed by the grand jury to write. Nothing more — nothing less. We can readily see many good reasons for this. The commissioners are selected so long in advance of the decision to be made that all persons who may be disposed to apply improper influ- ences have abundant opportunities of so domg. They are but three in number, and two of these might decide the fate of the county. These two might lack the wisdom necessary for such an important measure. They might also lack the integrity required for such a high trust. It is not necessary to deal in ambiguous language when discussing such a subject. From the beginning of the world to the present time, history has been teach- ing her lessons of human frailty, beguiled and cor- rupted by human wickedness. It is fair to presume that these lessons were not lost on the legislature. ' 3 Casey, 370 and 373. ^ See "The Life and Speeches of Thomas Williams, 1806-1872," by Burton. Alva Konkle, under index titles "Municipal Subscriptions to Railways," "Transportation," etc., for a treatment of this subject. CHIEF JUSTICE OF PENNSYLVANIA 213 Although they could not distinctly see the wily serpent of corruption, the waving grass often indicated his stealthy course. It is therefore not improbable that one of the objects of the restrictions in the Act of 1852 was to guard against bribery. Whatever may have been the motive, the legislature were unwilling to place the for- tune of the whole county at the disposal of two county commissioners. * * * * * * * The grand jury are not so readily influenced by improper suggestions. They are selected for their judgment and integrity, and come from all parts of the county, without respect to party politics. They are exposed to temptation for too brief a period to be safely approached — * * * * jj^ the multitude of their counsel there is comparative safety. * :i= * I3ut it is sufficient for the court to know that the law is so written and must be obeyed."' With the opening of the Philadelphia session of 1856-7 began the last year of his Chief Justiceship, and, as before, out of the eighty-nine opinions of the court at the metropolis, almost exactly one-third were the work of the head of the court — counting in the list one "additional" opinion. One of these is an example of his broad and profound sense of justice. "In the section of the Act of 1855, in question here, there is nothing to show that the terms 'charitable uses' were used in a restricted or popular sense. Nor can we fairly infer from any other part of the act that they were so used. We are, therefore, bound to understand them in their legal and technical signification. We have no doubt that they were so understood by the legislature, and that they were intended to embrace objects of a religious, literary, and scientific character, as well as those which related to the poor and afHictcd. We cannot close our eyes to the mischief supposed to exist, and which the Act of 1855 was intended to remedy. The object was to protect the heirs and next of kin from large and improvident dispositions by persons on their death-beds, or when their minds were enfeebled by the hopes and fears of approaching dissolution. Gifts to objects of a scientific or literary character were certainly as much within the mischief as any other gifts to charitable uses. * 3 Casey, 401-2. 214 ELLIS LEWIS To hold, therefore, that tlie legislature intended to lay a heavy hand only on gifts for the relief of the destitute, the afflicted, and the helpless, while donations for objects of a merely literary and scientific character were to be exempted from the restriction, would be doing great injustice to the benevolence and common sense of our law-makers. In all cases where the validity of such devises has depended upon holding them to be for charitable uses, they have uniformly been sustained as falling within that description. Now, when a restriction has been imposed upon such devises, we are asked to evade the restriction by declaring that they are not for charitable uses. We cannot blow hot and cold in the same breath. We cannot, for the purpose of sustaining such a gift, declare it to be a good gift for charitable uses, and at the same moment, for the purpose of evading the provisions of the Act of 1855, hold that it is not such a gift. The argument which confines the statute to gifts for the relief of the poor and afflicted, if successful, would convict the legislature of an intent which would do violence to the most ordinary impulses of human nature. It says, in effect, that when the bereaved widow, the helpless orphan, and the wretched sufferer from dis- ease, cry aloud from the depths of their poverty and distress for relief which is absolutely necessary to sustain life, the policy of the State is to throw obstructions in the streams of charity which gush spontaneously from the hearts of the people ; but when schools, academies, colleges, and universities seek for aid to educate children whose parents are able to educate them without such aid, or to advance 'gentlemen's sons' in the learned profes- sions, all obstructions are to be removed ! — thus, accom- plishments are preferred to the necessaries of life — the rich are exempt from the restrictions, and the poor are stripped of the charity which benevolence would extend to them. We cannot adopt any such construction of the act."^ An expression in an opinion in a case of a constable's compensation in certain instances is characteristic. "If the object of the law," said he, "was to encourage the peace of^cers in the prosecution of all oiTenders deserv- * 4 Casey, 36-7. CHIEF JUSTICE OF PENNSYLVANIA 215 ing imprisonment at hard labour, then the cases before us fall within the spirit of the act, because the legisla- ture have deemed the offenses of drunkenness and vagrancy deserving of this punishment. We fully concur with them in their judgment in this respect. Drunken- ness and vagrancy are not only evils in themselves, but they are productive of innumerable vices and crimes of great magnitude. They are nuisances in the body politic which ought to be suppressed at every hazard ; and if we were obliged to declare that the law was so defective and unjust as to recjuire constables to pursue and arrest offenders of this description, while it denied them com- pensation for such services, we should perform the un- gracious duty with mortification and regret. But we are happy to say that the law is not so unreasonable; and that the letter and spirit of the Act of Assembly requires that the county should compensate the officers and witnesses for the Commonwealth, where the persons convicted of these offenses have not property sufficient for the purpose. The judgment of the court below was right."^ During the spring of 1857 there came the first of several changes in the court that, during the year amounted to almost total reorganization. Justice Black had a long term to serve, but the exigencies of Demo- cratic politics caused by James Buchanan's election ta the Presidency of the United States the previous autumn made it necessary that he should go into the President's cabinet as solution of conflicting claims, and the Presi- dent commissioned him Attorney-General on March 6th and he resigned from the Supreme Bench five days later.^ His place was filled on April 6th by the appoint- ment of Justice James Armstrong, who served only until the November election. The Harrisburg session was productive of forty-six decisions, but eight of which were written by the Chief Justice, but none of these seem to answer the purpose of illustration, so that one may turn toi the final session of the court under Chief Justice Lewis at Pittsburgh. In this instance he had almost exactly one-fifth of the * 4 Casey, 175. ' "Reminiscences of Jeremiah Sullivan Black," by Mary Black Clayton, p. 99. 5 Casey. 2i6 ELLIS LEWIS eighty-nine opinions delivered, namely, eighteen. In the case of Miller v. Kirkpatrick, the Chief Justice had occasion to touch the religious field. It was on the question of the taxation of the salary of a minister em- ployed by a religious society. "It is not our province," said he, "to decide whether persons learned in theology may regard the emoluments of a minister's calling as 'gifts of the altar — as spiritualities.' The question here is, how are they to be regarded in a court of law, when the government demands of them a contribution to pay the debt and expenses of the State. The money paid to a minister for his services, and designed for his per- sonal benefit, is very far from being a mere 'spirituality.' It is designed to supply his temporal wants. It is appro- priated to that object alone. His services to the con- gregation may indeed be spiritual; but he would not be able to live long if his compensation were of the same character. Fortunately for him, it is not so; but is paid in a currency as tangible and purely temporal as the wants it provides for. He may hold his 'appointment of God.' 'All power is of God.' 'The powers that be are ordained of God,' and he has 'no right to resist their ordinances,' or to refuse 'tribute,' or to renounce 'alle- giance to the State.' It is his duty as a Christian 'to be subject not only for wrath, but for conscience sake,' and to pay 'tribute to whom tribute is due, custom to whom custom.' The Savior came into the world, at the very period when his earthly parents, at great inconvenience to themselves, were setting an example of allegiance to the government, and of obedience to its revenue laws. His precepts afterwards were always in accordance with that example. And the law, resting upon the foundation of that Christian morality which requires all who receive protection from government to contribute a just share to its support, will enforce its claims." "We do not see," he continues, "how a law which makes no distinction between ecclesiastical occupations and other pursuits, but taxes all alike, can tend to a union of Church and State. To hold that a minister of the gospel cannot be taxed at all, lest religious rivalry might lead to the abuse of that power, would furnish a precedent for denying all power of taxation ; for there CHIEF JUSTICE OF PENNSYLVANIA 217 is no power which might not be abused l^y bad men. We must trust to the intelligence of the people to guard against this evil. So far from seeing any constitutional objection to the imposition of taxes upon clergymen, as well as upon other professions, it has been seriously questioned whether they can constitutionally be ex- empted from their share of the public taxes. The Con- stitution declares that 'no man can of right be compelled to support any place of worship, or to maintain any ministry against his consent.' A numerous class of our citizens still hold to the faith of the founders of this Commonwealth, and bear their testimony against what they call a 'hireling ministry.' Many others read their Bibles in their own way, disclaiming all connection with religious congregations. If these classes of citizens should be compelled to pay more than their just propor- tion of taxes, in order that ministers of the gospel might be exempt, it is substantially the same thing as collecting the excess of taxes and paying it to the ministers to aid in maintaining them. Such a partial rule of taxation compels the Protestant to aid in maintaining the min- istry of the Roman Catholic, constrains both to aid in supporting the Jewish priesthood ; forces each to support a form of religion which his conscience rejects, and com- pels the opponents of all to aid in supporting all. These suggestions may serve to show that the claim to con- stitutional exemption is not only rejected, but met by a counter claim, which may deserve consideration when the question arises."^ In one of the cases against the , Commonwealth Chief Justice Lewis discussed the juror and judge in a characteristically luminous manner. "It is made matter of complaint," said he, "that the judge in his charge, among other remarks, said that 'he who is to pass on the question (of guilt or innocence) is not at liberty to disbelieve as a juror while he believes as a )na>i.' Notwithstanding the high authority which sanctions the use of this language, it is possible that some jurors may occasionally be misled by it. Men, in their social conduct and business transactions, often act on bare susf>iciou, without evidence, and this, some jurors might possibly • 5 Casey, 230. 2i8 ELLIS LEWIS suppose, is what is meant by their belief as men, contra- distinguished from their behef as jurors. But it is im- possible for us to supply jurors with intelligence and judgment, and equally out of our power to prescribe to the courts below the language which the judges are to use in communicating instructions. The judge who en- deavors to express his thoughts in a style so plain and simple that he will be readily understood by the most unlearned men on the jury, best performs this part of the duties of his high office. The question for us to decide, however, is not whether the court made use of the language best understood by the jury, but whether instructions have been given which are erroneous in point of law. It must be remembered that jurors are men, and that it is because they have human hearts and sympathies and judgments that they are selected to determine upon the rights of their fellow-men. If they were more or less than men they would not be the con- stitutional peers of the prisoner, and would be disquali- fied to decide his cause. The term 'juror' means nothing more than tzvelve men qualified and sworn to try a cause according to the evidence. Their oaths as jurors rest on their consciences as men, and as men they are accountable to God and their country for a verdict. Nothing more is demanded of them as jurors than an honest exercise of their judgments as men. The evidence which pro- duces conviction on their minds in one capacity works the same result in another. Their behef is the same in both. There was therefore no error in law in adopting" the language used by Chief Justice Gibson in the Com- monwealth v. Bridget Harman : 4 Barr, 273."^ The above is the last but two of the opinions of Chief Justice Lewis, and, curiously enough, the last opinion reported for the Pittsburgh session and the expiration of his period as head of the court is one to determine the exact date of the termination of his occupancy of that high office. In this opinion, of course, he had no part, and the decision of the court was rendered by Justice Woodward, whose own language happily ex- presses the interesting complications of the subject and incidentally interprets officially the status of the Chief ' S Casey, 438- CHIEF JUSTICE OF PENNSYLVANIA 219 Justice's commission to his high office, about which, it will be recalled, there was some controversy. "In order," said Justice Woodward on November 3, 1857, "that writs out of this court may be tested in the name of the proper officer, and that judgments and decrees may be duly entered between the first and seventh days of December, proximo, it bcomes necessary to decide whether the commission of Chief Justice Lewis will expire on the first day of that month, or continue until the 7th, which will be the first Monday. "If we should follow the strict letter of the constitu- tional amendment of 1850," continues Justice Wood- ward, "which first introduced an elective judiciary into our system of government, it would be obvious that Judge Lewis' commission could not extend beyond the 1st of December, because, elected in 1851, at the first election under the amendment, and the term of six years assigned to him by the lot therein prescribed, he was commissioned on the first Monday, which happened, that year, to be the first day of December, 185 1, for six years — a period that would expire at midnight of the last day of November, 1857. He received subsequently a commission as Chief Justice, which, however, was founded on that granted in 185 1, and in no wise super- seded it, or affected the limitation therein expressed. The title to his office was derived not from the commis- sion which designated him as the Chief Justice, but from the popular election of 185 1, and the commission in pursuance thereof and according to these, upon a literal reading of the Constitution, his title would expire with the present month of November. But we are satisfied that the spirit and true meaning of the amend- ment are rather to be followed than its strict letter; and, according to these, the first Monday of December is made the terminus a quo and ad quern of judicial com- missions, so that whether we reckon the special tenures assigned to the first five judges elected to this court, or the general tenures of fifteen years assigned to all subsequently elected judges, they are to be considered as running from the first Monday of December next succeeding the election to the first Monday of December in the rear of their limitation. In other words, we hold 220 ELLIS LEWIS that the years mentioned in the amendment are to be counted from Monday to Monday, and not from the day of the month to the day of the month. "The amendment itself," the decision continues, "implies that this is a sound construction. It fixed, expressly, the first Monday of December, 185 1, as the day on which all prior judicial commissions should ex- pire, and, of course, indicated that as the day on which the new ones should commence. And it was the first Monday, without regard to the day of the month on which the day of the week should fall. That year the first Monday happened to be the first day, but that day was not selected because it was the first day, but because it was the first Monday of December. The framers of the amendment very well knew that the first Monday would not always fall on the first day. And so, in case of a vacancy happening, it shall be filled, says the amend- ment, by executive appointment, to 'continue till the first Monday of December succeeding the next general election.' Our brother Armstrong is on the bench by executive appointment under this clause of the Consti- tution, and his commission, by its own limitation, must extend to the first Monday, this year the seventh day of December. It is unreasonable to suppose that the amendment, which was designed to establish an elective judiciary, meant to make a distinction in favor of an executive appointment, and against a popular election, and we should mar the symmetry of the system by so administering it. If both classes of judges, however, those elected for a term of years, and those appointed to fill vacancies, are conformed to the same rule — if both hold to the first Monday of December, we have a system that is simple, consistent, and harmonious in all its parts. "This constitutional amendment originated in and was draughted by the legislature," Judge Woodward continues. A legislative interpretation of the meaning of its terms is therefore entitled to peculiar respect. We have a legislative construction of it in the eleventh section of the Act of Assembly of 15th April, 1857, regulating the election of judges, wherein it is provided that as soon as practicable, after the first Tuesday in CHIEF JUSTICE OF PENNSYLVANIA 221 November next following any election of judges, 'the governor shall grant the persons elected respectively commissions as now recjuired by law to hold their respec- tive offices from and after the first Monday of December next follozving sucJi election, for and during their respective terms of office,' &c. The constitutional amendment having failed to fix, in terms, the date at which the com- missions of elective judges should take effect, the legis- lature supplied it in this section, and. of course, supplied it according to their understanding of the meaning of the Constitution. "The gentlemen recently elected, Messrs. Strong and Thompson, will be commissioned under this section, and cannot, of course, come upon the bench before the 7th of December," proceeds the decision. "If Judge Lewis should go out on the first, there would be a vacancy in the office for a week, and vacancies, says the constitu- tional amendment, happening from whatever cause, are to be filled by executive appointment to continue till the first Monday of December succeeding the next gen- eral election. It is not to be supposed that the governor would exercise his power of filling this vacancy, but if the Constitution be construed according to its letter, the power of appointment would clearly exist ; if exercised, the appointee of the governor would be in possession of the office by virtue of a constitutional grant, whilst the newly-elected judges would claim it only in virtue of a legislative rcgtdation. The inferior law would, of course, have to yield to the superior, and one of the elected judges would have to stand back for a year. But which of them ? The Constitution and laws afford no means of determining. Elected at the same time and for the same time, and to retire necessarily at the same time, a difference of a year would exist in their tenures, but no man could tell which was the short one. The Con- stitution was never meant to produce results so absurd and unjust. It provides that the Supreme Court shall consist of five judges, and it established the court as a perpetual institution. It contemplated the possibility of vacancies, and provided for filling them, but they were vacancies happening from death, resignation, or other cause external to the Constitution itself. In its own Icgiti- 222 ELLIS LEWIS mate and necessary operation it would cause no vacan- cies. It would dismiss no one of its servants until it had provided a qualified successor. It would not con- stitute the court, even for a week, with less than five judges, nor give the governor power to displace for a year the judge chosen of the people. "To give our fundamental law its intended efifect," he continues, "and to prevent confusion and disorder. Chief Justice Lewis's commission must be regarded as extending to the first Monday of December. If it be said that this is adding a week by judicial construction to his prescribed term, it must be accepted as a necessary consequence. And if, fifteen years hence, the first Monday shall fall on the third day of December, the terms of Messrs. Strong and Thompson will be abbre- viated a week, but that, too, must be borne as a necessary result of the indefinite terms in which the constitutional amendment was conceived. It is a common fault of our legislation, and the amendment of 1850 shares it largely, that phraseology is not carefully considered. In the preparation of the amendment of 1838 nothing was more anxiously attended to than the language in which com- prehensive rules were to be expressed, and the conse- quence has been that less doubt and litigation have grown out of those numerous amendments than have sprung from the single amendment of 1850. Reading it, however, as we have construed it in respect to the termination of judicial commissions, we avoid vexatious embarrassment, and give effect to its spirit and inten- tion ; and as to the week added to one judicial tenure and taken off from another, the maxim must be applied, De minimis non curat lex. The prothonotaries of the sev- eral districts will test writs in the name of Chief Justice Lewis until 7th December, 1857.''^ ^ S Casey, 518. CHAPTER XIII He Declines Unanimous Renomination by the State Democratic Convention and Retires TO Private Life 1857 Two days before the inauguration of James Buchanan as President of the United States in March, 1857, and four days before Chief Justice Taney's Dred Scott decision, the State Democratic Convention was called to order at the hall of the House of Representatives at Harrisburg by Colonel John W. Forney, chairman of the State Central Committee, for the purpose of making nominations for Governor, a Judge of the Supreme Court and Canal Commissioners.^ The vote on the first officer resulted in the nomination of William F. Packer for Governor. During the evening names were presented for the Supreme Court nomination, and G. G. Westcott, of Philadelphia, proposed that of Hon. Ellis Lewis to succeed himself. Immediately it became evident that the elective judiciary was now on trial again, for certain main districts of the State were prepared to press their candidates for the place which good public policy dictated should go to the distinguished jurist who was then filling it so ably. The name of William Strong, Samuel Hep- burn, William Axon Stokes,- James Thompson and several others were then presented by their friends. Mr. W^estcott asked that a letter in his hand from leading members of the bar of Philadelphia regarding Chief Justice Lewis might be read, but the friends of other candidates objected to that project, at least before the ' It will be recalled that Taney's decision was followed the next day by the dissenting opinions, especially that of Justice Benjamin R. Curtis, an alleged irregular reply to which by Chief Justice Taney, with a rather strained correspondence between the two, confirmed Justice Curtis' previous inclination to resign on account of inadequate salary. A few knew of his inclinations at this time, although he did not formally resign until September ist. See "The Life and Writings of B. R. Curtis," by his son. * For an account of Major-General Stokes see "'1 he Life and Speeches of Thomas Williams, 1806-1872," by Burton Alva Konkle. Index. 223 224 ELLIS LEWIS vote was taken, and the convention yielded. A letter from Major-General Stokes, insisting that his name was used against his will was read, however, and one para- graph of it said that "as the people of Pennsylvania have vindicated their wisdom by the election of Judges who are, at least, equal as a body to those of any former period of the history of the Commonwealth, they should exhibit their constancy by re-electing those who have proved themselves worthy of their trust. Judge Lewis has been tried and has not been found wanting. The Democrat of true conservatism demands that he should receive the reward of his well doing."^ On the first ballot the Chief Justice received 43 votes. Strong received 37, Hepburn 20, Thompson 3, and others received from 9 votes down to i. The second ballot, however, closed with 73 for Lewis, 47 for Strong, and 12' for Hepburn, whereupon it was made a unanimous renomination for Chief Justice Ellis Lewis. It was then deemed proper to read the letter from members of the Philadelphia bar, addressed to Mr. Westcott and other members of the Philadelphia delegation. "The undersigned, members of the bar of Philadelphia," it reads, "address you as delegates to the Convention which meets at Harrisburg on the second of March to nominate a candidate for the Supreme Bench, on the expiration of Judge Lewis' term. We wish to be understood as writing this letter with no reference, direct or indirect, to party politics, but from a sense of duty to the public and the cause of the administration of the law in which, as professional men, we are deeply interested. We are desirous that Judge Lewis should be renominated by his political friends. Since he has been known to us as a Judge, he has commanded respect by his learning and ability, and conciliated the regard of us all by his uni- form courtesy and kindness of deportment. This is, we believe, the unanimous sentiment of this bar. His nomination and election will give general satisfaction from these personal considerations alone. "But there are others of still greater import which we take the liberty of suggesting to you," it proceeds. "The instability of our elective judiciary can only be 'The Daily Pcniisylraiiiaii, Philadelphia, March 5, 1859. DECLINES UNANIMOUS RE-NOMINATION 225 corrected by the proof that a re-election can always be commanded by good conduct ; and that the people will not change theii judges merely for the sake of change. In the case of the first vacancy which' occurred by rota- tion on the Bench, the incumbent was without dissent renominated, and without difficulty re-elected. This was the case of Judge Black, whose original term was the shortest, being but for three years. Judge Lewis' term of six years is now expiring, and we shall be much gratified, if by his political friends at least the same rule can apply to him. In thus addressing you, we earnestly disclaim any intention to intrude our counsel on you, or the Convention of which you are a member. With the party you represent, some of us have no connection. But as citizens and lawyers, we feel we are doing an act of simple justice to a most meritorious public officer by bringing this matter to your view." This was signed by the following now well-known names: B. Gerhard, Benj. H. Brewster, Theo. Cuyler, Constant Gillou, Saml. H. Perkins, Robert P. Kane, Saml. C. Perkins, Henry J. Williams, A. V. Parsons. Edward Wain, Fred. C. Pirightly, P. McCall, F. Carroll Brewster, John Fallon, W. L. Hirst, John Hamilton, Jr., P. P. Morris, Frederick C. Kreider, John T. Montgomery, Geo. L. Ashmead, E. Ingersoll, James R. Ludlow% J. Randall, Wm. E. Lehman,* Eli K. Price, H. R. Kness, Wm. S. Price, Joseph A, Clay, Geo. Northrup, N. B. Brov^ne, G. M. Wharton, A. J. Fisher, C. Ingersoll, James C. Vandyke. St. Geo. T. Campbell, Henry M. Phillips, J. F. Johnson, Henry Johnston, Francis Wharton, J. A. Phillips, Geo. Junkin, Jr., H. C. Townsend, Wm. W. Juvenal, S. Serhll, Thomas J. Diehl, Geo. Barton, Charles E. Lex, W. J. McElroy, Wm. Sergeant, Henry M. Dechert, Andrew Miller, Jas. Bayard, W. Heyward Dayton, William B. Reed, Geo. W. Biddle, Ed. E. Law, Wm. Henry Rawle, J. A. Spencer, Horatio Gates Jones, M. Russell Thayer.^ The new nomination was at once taken up with enthusiasm, even the followers of Strong stating that they "submitted willingly," as the Reading Gazette put it, and counted it "a great compliment" to their can- didate that he could gain so "handsome" a vote against ' The Daily Pennsyhanian, Philadelphia, March 5, 1857. 226 ELLIS LEWIS "such a competitor" as Chief Justice Lewis, Less than ten days later than this, as it will be recalled, Justice Black resigned to accept the cabinet position under President Buchanan. Immediately the friends of Strong and others pressed their claims for ex-Justice Black's place with intensity. Hon. William Strong (1808-1895} was a native of Connecticut and a graduate of Yale. He was admitted to the bar of Reading, Pennsylvania, just the year before Lewis became Attorney-General, and in 1846, while Lewis was at the head of the Lancas- ter bench, he began two terms of service in Congress.^ Those events seemed to have great effect on the con- sideration of the question of acceptance by Chief Justice Lewis, for there could be no manner of doubt that President Buchanan's state would have elected him — that, indeed, was a foregone conclusion. But, after about two weeks more of thought on the subject, after Black's call to the cabinet, he astonished nearly every- body in Pennsylvania by the following letter from his residence in West Penn Square to Chairman Charles R. Buckalew, of the Democratic State Central Committee, dated March 25, 1857: "Dear Sir:" the letter begins, "At the late Demo- cratic State Convention, the local claims of the different sections of the State were generously waived for the purpose of securing my continuance in the high and important office of Supreme Judge. The energy with which those claims are nozv urged for the office recently vacated on the Supreme Bench, shows the extent of the sacrifices then made, and the nature of the dissatisfaction which may exist after one section shall be gratified and the other disappointed by the anticipated nomination. The Convention, when re-assembled, might be able to harmonize these claims, if that body had two nominations to make instead of one. I therefore feel at liberty to decline, as I now do, the renomination tendered to me by the Democratic State Convention. In thus promot- ing harmony, I consult my own earnest desire to retire from judicial life, and at the same time put the delegates to no inconvenience, as they will be obliged to come * He afterward became a member of the National Supreme Court between 1870 and 1880. DECLINES UNANIMOUS RE-NOMINATION 227 together again for the purpose of nominating a candidate to fill the existing vacancy. "I have been laboriously engaged in judicial duties," the Chief Justice continues, "nearly twenty-four years — a longer period of service than that of any living Judge in Pennsylvania. I have been thus engaged under three changes of the Constitution. I have aided to the extent of my abilities in bringing up the arrearages of business, in replacing upon their ancient foundations some of the landmarks of the law which had inadvertently been removed, and in maintaining the purity and the inde- pendence of the Judiciary; I have constantly endeavored to do justice without delay, fear, favor, affection or ill- will. I now occupy, by the voice of the people of my native State, the highest judicial station in it. My long career as a Judge has received the approbation of the Democratic party in the renomination so generously and unanimously made by the State Convention. All my ambition is satisfied. I have but one wish left, and that is to return to the freedom and independence of private life. I do this with a grateful heart for the long continued confidence of my fellow citizens, and in the full trust that they will appreciate and approve of my motives. Very respectfully yours, Ellis Lewis. "^ This news proved to be, indeed, startling to the public, for the Chief Justice would scarcely be sixty years old when his term should expire in the following December. Morton McMichael's editorial in the North American of the same date — an opposition paper — said : ^'Judge Lewis w^as among the first who were chosen to fill judicial seats by the popular vote; and it is conceded even by those who have not had, and have not now any large amount of faith in that mode of election, that in his case the choice was a most fortunate one. Certainly, there are few better read lawyers to be found anywhere ; and his diligence in the discharge of his onerous duties has been most exemplary. There have been times when we have had occasion to dissent from his decisions ; and occasionally we have thought the earnestness of his partisanship affected the tone in which his opinions were uttered; but we have very grave doubts whether his ^ The Daily Pennsylvanian, Philadelphia, March 27, 1857. 228 ELLIS LEWIS political friends will be able to offer any one for his place who will combine so much legal learning, and patient research, and well-digested information on gen- eral subjects, as he has constantly manifested." The Pennsylvanian, the leading organ of his own party, on the same date, said editorially : "This determination of Judge Lewis will be a matter of the most sincere regret to every sound lawyer in Pennsylvania. No man within our Commonwealth has had the judicial experi- ence of the present Chief Justice, and no Judge has labored more zealously to free the docket of the Supreme Court of the accumulated litigation of ages. The whole legal fraternity have had the utmost confidence in the soundness of his opinion, and have looked to him for the settled law of the State. We doubt much whether Judge Lewis has ever been equalled in industry on the Bench. With him, it seemed to be a conscientious duty promptly to decide all cases argued before him, even at the loss of his own bodily comfort, by divesting himself of the hours which should have been devoted to rest or recrea- tion. No litigant ever had cause to complain of delay where Judge Lewis had the trial of his cause, and few ever murmured at his decisions. The clearness of his head, in all his conclusions, was equalled by the integrity of his heart, and it may be said of him, as of Lord Thurlow, that he had a head of crystal with nerves of brass, which nothing could shake from the line of con- viction and duty. "But it is not the legal profession only that will regret the step Judge Lewis has taken," the editorial continues. "The people, with whom he has always been a great favorite, because they knew him to be an upright and learned judicial magistrate, will endure painful sensa- tions at the loss of so enlightened a jurist and so valued a friend. Another Judge, whose mind may be filled with the love of the law, may be called to his seat on the Supreme Bench ; but it will require many years of prac- tical experience as a Justice of the court of last resort before a new man can attain to the position which Judge Lewis has reached in the confidence of the Bar and the people. We look upon the declination of the Chief Justice as little short of a public calamity, as he is lost DECLINES UNANIMOUS RE-NOMINATION 229 to the Bench at a time when the ripeness of his intellect is of untold value. Although the patriarch of the Judiciary, so far as length of service is concerned, he is still at the very zenith of his mental power, and might continue to impress upon our legal code the clear light of his own lucid mind. As the Judge is a man of great decision of character, we presume that his present determination not to be a candidate is a finality. "In parting with him," it adds, "we can only say in addition, that if a resolute performance of a duty con- scientiously — if great legal knowledge, combined with untiring industry — if a determination to rescue legal decisions from having a double voice — -if an inflexible integrity which nothing could shake, sustained by a courage that admitted of no faltering — can entitle a Judge to a lofty place in the niche of fame, no judicial ofificer within the present quarter of a century has earned it with more intelligent labors than Chief Justice Ellis Lewis has done during his long legal career. The thanks of the citizens of Pennsylvania will follow him into his retirement, and history will enroll his name among the honored sons of our noble Commonwealth. If the Chief Justice should ever again be induced to exercise judicial functions, we trust that he may be called to a seat on the Supreme Bench of the United States, that the nation may possess what our State has lost by his declination."^ Mr. Forney, whose sentiments were thus expressed, may have known that there was liable to be a vacancy on the National Supreme Bench at this time, for the Dred Scott decision had made some irritation which was rapidly being intensified between Chief Justice Taney and the Masachusetts member. Justice Curtis, which, together with the latter's belief that the salary was inadequate, did lead to his resignation in the early autumn. President Buchanan, of course, was constrained to fill this place with another New Englander. Justice Clifford, of Maine. Mr, Forney's desires, however, were wholly personal to himself, and those who best knew the Chief Justice knew that his letter exactly stated the case so far as he himself was concerned, and it was a • Carson's "History of the Supreme Court of the United States," and "The Life and Writings of B. R. Curtis" indicate the conditions that made this remark significant at this time. 230 ELLIS LEWIS real retirement that he sought. In due time he saw the nominations of Strong and Thompson for the two va- cancies, and the October elections made sure their elevation to the bench in December, with the post of Chief Justice falling to the latter.^ Meanwhile, in November, at the closing Pittsburgh session, he received on the 17th of that month a letter from the leading members of that bar requesting him to name a date convenient for him to attend a dinner at the Monongahela House as an appropriate occasion to express their "high estimate" of his "personal and ofBcial character." "Having declined a re-election," they added, "the expiration of your present term will soon sever the relation that for several years has existed between your- self and the members of the bar, a relation that enables them to bear witness to the great learning, long experi- ence, unwearied industry and eminent ability with which your duties as a Judge and Chief Justice of the Supreme Court of this Commonwealth have been discharged. And while your long and successful career in public service entitle you now to retire with the highest honors and to seek the ease of private life, we beg you to accept the assurance that you bear with you the sincere regard and professional respect of Your Friends," etc., after which followed the signatures of seventy-two of the ablest members of that bar, reproductions of which appear on an accompanying page. On the following Wednesday — as the Chief Justice was to leave for Philadelphia on Thursday — the banquet was held. "At nine o'clock," said the account of it in the Pittsburgh Chronicle, "the doors of the dining room were thrown open, and a moment later the names of the officers of the evening were announced. The venera- ble Judge [William] Wilkins presided, and never have we seen a gentleman discharge the duties of his office ' A very good sketch of Chief Justice Lewis was issued by the State Com- mittee immediately after the convention. It mentioned the following decisions regarding land law: 7 Harris, 424; 1 Casey, 45; i Casey, 103; 2 Casey, 407; 7 Harris, 203; 10 Harris, 144; and : Casey, 491, the last as especially striking. The following were illustrations of his attitude toward agriculture and mining: 5 Harris, 262; i Casey, 530; 6 Harris, 235. For commerce, transportation and insurance it gave: 5 Harris, 290, and 136; 9 Harris, 513; 2 Casey, 259; 11 Harris, 137; 6 Harris, 426; 12 Harris, 378; and 7 Harris, 344. The Reigert case was mentioned and the Philadelphia Gas case. On State and National sovereignty, 10 Harris, 406, and the Passmore Williamson case, and in Medical Juris- prudence the Earl and Hoover cases and the McCandless case were men- tioned. DECLINES UNANIMOUS RE-NOMINATION 231 better. On his right sat the guest of the evening, Chief Justice Lewis, and Judge Knox, and on his left, Judges Armstrong and Woodward, both of the Supreme Bench, Judge Williams, of the District Court, and McClurc, of the Common Pleas, occupied seats at the same table, while in their neighborhood sat Judge Shaler, Judge Hepburn, Mr. Loomis, G. P. Hamilton, and other celebrities of the Pittsburgh Bar. "When the 'good things' set before the company were discussed, the Secretary read the toasts prepared for the occasion, and a number of interesting and really beauti- ful speeches followed. Judge Wilkins made a very happy and eloquent address. He remarked that he had been called to preside over the meeting for the reason, he believed, that he could say more than any other present of the excellent citizen and profound jurist, whose connection with the Bench and the profession was so shortly to be severed. He knew Judge Lewis for a number of years, both as a Judge and a citizen. He knew him well, and was happy to be able to bear testimony to his profound legal knowledge as a jurist and worth as a citizen. The Judge then referred to the early history of the Chief Justice, and traced his career from the time when, like Benjamin Franklin, he left his home to become a printer, to a not very remote period, when, by the suffrages of the people of the Com- monwealth, he was called to the high position he now occupied. The man whose transcendent abilities and profound legal knowledge were now filling us with admiration and respect, began his life as a poor printer's boy at Harrisburg. Friendless and alone, his great genius carried him over every obstacle, and in the end placed him in a position the highest, he might say, in the gift of the people. There was a lesson in the history of the Chief Justice which the young men of the Bar would do well to study. They should emulate his in- dustry, his application to business, and rectitude of conduct, and in the end their ambition might lead them to the same goal which he had so worthily reached. "The speaker next referred to the Judiciary of the State, and remarked that now, as ever, he was opposed to the system under which it was chosen. He was 232 ELLIS LEWIS opposed to an elective judiciary. It brought strangers together to decide on the laws of the State, and look at what it does now. It strikes from the bench the highest legal luminary in the Commonwealth, and, at a time, too, when his career of usefulness has not been half run. He would not trust the people with a duty so important as that of choosing a Judiciary. They might elect their Governor, their members of Congress, or their Senators ; for, as compared with the Judiciary, their duties were not of much moment ; but he desired to see the appointment of Judges rest with another power, and to have their term of office continue, not for ten or fifteen years, but so long as they were able to discharge its duties in a proper and fitting manner. The gentleman continued in this strain for some time, and closed his very interesting address with a beautiful compliment to the guest of the evening, whose virtues and abilities he extolled, and whose example he desired the young men around him to emulate. "A toast complimentary to the Chief Justice, and expressing regret that his connection with the bench was so soon to cease, 'brought out' that gentleman, and secured for the audience a very happy and well conceived address. The gentleman commenced his remarks by stating that he was weighed down by the kindness which he had experienced at the hands of the members of the Bar, and felt as if he had not language to express his feelings. But a few days ago, he was looking to the period when his judicial duties would cease with pleasure. He had pictured to himself the domestic comfort he should enjoy, the recreation he should indulge in, and the satisfaction he should feel in a trip to the Sunny South and distant lands ; but now his feelings were otherwise. The kindness of the Pittsburgh Bar overwhelmed him, and his retirement from the Bench, to which he before looked with satisfaction, would bring him many regrets — regrets, because it separated him from the true and warm-hearted friends who then sur- rounded him. "The learned gentleman then referred to his brethren on the Bench," the Chronicle continues, "and spoke in the highest terms of their abilities. Judge Armstrong DECLINES UNANIMOUS RE-NOMINATION 233 he knew in Williamsport. They were boys together, and many were their struggles in the Lycoming courts for the mastery. He was an old and valued friend, and he felt proud to be able to bear testimony to his worth as a man and profound knowledge as a jurist. Of Judge Woodward he could say much. Their intimacy and intercourse had always been of the pleasantest character, and he felt sad when he reflected that their associations were so soon to be sundered. He would not speak of brother Woodward's public life. It was well and widely known, and spoke for the character of the man in much stronger terms than any language he might use on the subject. Judge Knox, he knew when a little boy playing marbles in the street. He had grown up, as it were, under his eyes. He watched his admission to the bar, then his course in the Legislature, and saw, with the most intense satisfaction, his elevation to the Bench. It didn't take him long to get there, either — in fact, it didn't take Judge Knox long to get anywhere, so bril- liant were his acquirements and agreeable and pleasing his manners. "Judge Lowrie," continues the Chronicle, "was not present, but the speaker knew him well. He was an ornament to his profession and the Bench, and he would part with him with regret. In short, his associations with his brother Judges were of the most pleasant char- acter throughout, and long, long would he remember them. He felt pained that they were about to be broken oiT, but he could not help this. A life of labor had nearly worn him out, and he desired retirement. He knew the members of the Pittsburgh Bar well. They might think he did not know them, but he knew every one of them, and all about them. They must not look astonished now, for it was a fact — he knew them, but he knew noth- ing bad about them. They were upright, eloquent and intelligent, and should ever command his esteemed respect. The gentleman spoke in this way for some time, and closed his address by toasting the Pittsburgh Bar, and expressing the deepest sorrow that his associa- tion with its members was so soon to cease." He was followed by Judges Armtrong, Woodward, Knox, Wil- hams, McClure, Shaler and Shannon and various leaders 234 ELLIS LEWIS of the Bar, Judge Woodward amusing the company by a humorous description of one of the Chief Justice's early efforts at the Bar. Almost exactly a month after this invitation, and but ten days after his actual retirement, namely, on December i8th (1857), the "Auld Lang Syne Party" of Philadelphia, of which he was a member, invited him to a dinner "at Dorsey's," on the 22nd instant. Shortly before this there was issued in Philadelphia an American edition ot Burns' Poems by one of this "Auld Lang Syne Party" in honor of that social club, which also thus became a species of memorial of the Chief Justice's retirement, as the frontispiece of the volume was an engraving of the entire "Party" at a dinner, in the act of joining in the song of "Auld Lang Syne." "But," says a current review of the volume,^ "it is to the charm- ing vignette that we would especially refer. This will repay more than a cursory glance. It represents a com- pany of gentlemen seated around the festive board, where wine, and light, and song, are conspiring to give cheer and delight, and who are now in the attitude of singing the chorus of 'Auld Lang Syne,' and, hand in hand, are pledging each other's health — in a word, laying the solid foundation of a happy 'lang syne' for future memory. Nor is this all : these gentlemen are not the mystic creations of the painter and engraver, but 'coun- terfeit presentments' of real, living men, grouped by their friend, the publisher, as an illustrious American illustration of Burns' song. These are, unless our Lavater memory has deceived us: Chief Justice Ellis Lewis, a man known not more for his eminent fame as a jurist than for his noble virtues as a man; near him is William D. Lewis, an eminent citizen of Philadelphia, formerly Collector of the Port ; seated appropriately at the head of the table is John Grigg, Esq., a man of great wealth and influence, but, besides, as honorable a gentle- man, as distinguished a social character and as benev- olent a man as the country can produce ; Morton Mc- Michael. the famous editor and unrivalled orator, is there ; John C. Knox, the distinguished Judge of the Supreme Court; hearty Louis A. Godey, of the 'Lady's ' The Home Journal of December 19, 1857. E. H. Butler & Company were the publishers of this book. The Auld Lang Syne Party From an engraving in possession of the Pennsylvania Bar Association, I'liiladelphia DECLINES UNANIMOUS RE-NOMINATION 235 Book'; learned and clever Professor Hart, of the High School ; there, too, we recognize on old West Pointer, Captain Coppee, of the United States Artillery, who has given up arms for the civic toga. Besides these are Mitchell, the pleasant Roanoke of the Knickerbocker; philosophic l^ancoast ; Green, the surgeon ; Cope and Wickersham. Rising in his chair, and joining with heart and hand, is Butler himself, like the King of Mis- rule. But, stay; who is that hearty man who faces us as lord of the ascendant, and either guides or starts the music? That is the Chief Magistrate of Philadelphia, Hon. Richard Vaux — a man of generous sympathies, high integrity, and most genial heart. Him we know well 'lang syne.' Such is the 'Auld Lang Syne Party' who grace the frontispiece of the new edition of Burns. The fancy is new, and it has been most happily exe- cuted. Many of the faces (especially that of Mr. Grigg) are excellent likenesses. Although they were originally engraved in England, they were entirely retouched, and altogether improved, by Mr. Sartain, of Philadelphia. The original drawings are by Schmolze, the Philadelphia artist."^ * The engraving which is here reproduced is in possession of the Penn- sylvania State Bar Association's historical collection in Philadelphia. CHAPTER XIV His Counsels on Public Affairs. Correspondence WITH Taney and Stanton 1858-60 Scarcely had the echoes of "Auld Lang Syne" died away, with its prospective joys of retirement for ex- Chief Justice Lewis, when the message of President Buchanan appeared, in which he acknowledged the legality of the Lecompton Constitution and recommended the admission under it of Kansas as a state. The bloody struggle of the slavery and anti-slavery elements in that unhappy territory roused the entire land, and mass-meetings of all sorts were held for and against the course of the President. The Democracy of Philadel- phia issued a call for a mass-meeting at Jayne's Hall, on Chestnut Street below Seventh, for the evening of Monday, the 28th [December], and urged the ex-Chief Justice to preside. After several refusals he finally con- sented, and with the hall full to overflowing, and most of the one hundred and thirty-two vice-presidents on the platform, while the hurrahs of the delegations that filled the street outside could be heard, he rose amidst prolonged applause and began his introductory address. 'T beg leave," he said, "to tender my sincere thanks to this meeting for the honor conferred in selecting me to preside over its deliberations. At the same time, justice to my own feelings requires me to say that I accept the honor with reluctance, and had repeatedly declined it when proposed by the Committee of Arrange- ments, because, when I retired from the highest judicial station in my native State, and declined the nomination for re-election so generously tendered by the Democratic Convention, it was my sincere desire to be relieved from the responsibilities of all prominent public or political stations. But the wishes of my fellow-citizens have been manifested in a way not to be disregarded, and I 236 HIS COUNSELS ON PUBLIC AFFAIRS 237 yield to their wishes with profound acknowledgments for this high mark of their confidence. "We are assembled," he continued, "to deliberate on the measures of the President in relation to the admis- sion of the Territory of Kansas into the Federal Union, as an independent State. By the Constitution of the United States, Congress possesses the power to 'dispose of and make all needful rules and regulations respecting the Territories or other property belonging to the United States.' This clause has been thought, by some, to be confined merely to the regulation of the Terri- tories, as property, and not to the government of the people inhabiting the Territories. It may be safely con- ceded that this is correct. But it must be remembered that the Government has the power to declare war — to make peace and to make treaties. In the exercise of these powers. Territories may be acquired either by conquest or by treaty. When the Government, by either of these methods, acquires the jurisdiction over and the right of property in a Territory, the right to make laws for its government results as a necessary incident to the acquisition. Although the United States Government is one of limited powers, it is certainly supreme within the limits prescribed ; and, in addition to the powers expressely granted, possesses all the powers necessary to the exercise of authorities conferred by the express terms of the Constitution. Under this construction of the Constitution, Congress has, ever since the foundation of the Government, claimed and exercised the right of sovereignty over the people of the Territories ; and the doctrine of popular sovereignty has never been carried to the extent of claiming for the people of the Territories a right to set themselves up in opposition to the sovereign power of the United States. No territory has ever been organized for governmental purposes but by authority of Congress, and in conformity to its enactments. The people of a territory, before it is organized for the pur- poses of government, are bound by the Constitution and laws of the Union as far only as they apply to such ter- ritory. With this exception, the inhabitants of a ter- ritory, before it is organized, are in a state of nature — each man prescribes laws for himself and administers 238 ELLIS LEWIS justice to himself in his own way. As all have an equal right in this respect, no one has rightful power over another. Sovereignty implies superiority. Where all are equal there can be no such thing as sovereignty. Sovereignty, instead of existing among people in a state of nature, has no existence at all until government be established. The creation of governmental power is the birth of sovereignty. Even popular sovereignty has no existence until the aggregation of individual rights, given up for the purpose, is vested in the appointed authorities. But in the case of the Territories belonging to the United States, the sovereignty exists in the Federal Govern- ment. The people of the Territories have no powers beyond those secured to them by the Constitution of the United States, or voluntarily granted by Congress. It is only by authority of Congress that they can have a Territorial Legislature. It is only under the same authority that they can rightfully be admitted into the Union as independent States. In accordance with these principles. Congress, by act of 30th May, 1854, organized the Territory of Kansas. It was declared to be 'the true interest and meaning of this act not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way.' Under this act Kansas, when admitted as a State, was to be received into the Union with or without slavery, as their Constitution may prescribe at the time of their admission. On the 19th February, 1857, the Territorial Legislature of Kansas passed a law providing for the election of delegates to a convention, to meet on the first Monday of September, for the purpose of framing a Constitution preparatory to admission into the Union. Delegates were elected under this law, and they assem- bled in convention and framed a Constitution. The convention, by a close vote, decided to submit the pro- visions respecting slavery to the people, and directed an •election to be held for that purpose on the 21st of the present month. Thus the people, by their representa- tives, proceeded 'in their own way.' The result of the election has not reached us. What new aspect the case may ultimately present, it is impossible at this moment HIS COUNSELS ON PUBLIC AFFAIRS 239 to foresee. But the President proposes to abide the result of that election, and admit Kansas into the Union at once under the Constitution thus framed. What objection can there be to this? All will agree that the affairs of Kansas have already occupied too much of the nation's time and attention. The sooner we clothe that unfortunate Territory with the powers of a State, and thus localize the slavery question, the better for Kansas and the better for the Union. But it is objected that the whole Constitution ought to have been submit- ted to the people, and not the slavery question alone. The answer to this is that neither the Act of Congress nor the Act of the Territorial Legislature required the convention to submit the Constitution, or any part of it, to the people. If the delegates of their own accord thought proper to take the opinion of their constituents on the slavery question, it does not follow that they were bound to submit every other question. As they acted within the scope of their powers derived from the people, the presumption is that they had good reasons for the course which they thought proper to pursue. They knew that a portion of the population were in open rebellion against the law under which they were acting, and would oppose any Constitution which they might frame ; and they also, doubtless, knew that their con- stituents, who were supporting law and order, were satisfied with every provision of the Constitution, except that which had relation to slavery. This was submitted, because there was an honest difference of opinion about it. It is complained that the people cannot vote on the slavery question without voting for the Constitution. This is mere matter of form, because the other provisions of the Constitution are not intended to be submitted to the people. Their voice is already expressed through their delegates. The Constitution, with the exception of the slavery clause, was framed by their representa- tives, to be submitted to Congress, where the legal and ultimate sovereignty undoubtedly at present resides. It is further objected that the Legislature which authorized the election of delegates was not legally elected. It is sufficient for us to know that it is the only Legislature which has ever been acknowledged by the 240 ELLIS LEWIS Government of the United States — that it is the Legisla- ture dc facto; and, until its powers are revoked or annulled by Congress, its acts must be treated as valid. It is also complained that the delegates who framed the Constitution were not voted for by a majority of the people. The answer to this is, that all the people had a right to vote and that those who declined to exercise that right have no just cause to complain. The call was made by the only Government known to exist. The people had an ample opportunity to vote for representa- tives to frame a Constitution, and thus they had tendered to them the usual rights of popular sovereignty. If they desired more, they should have demanded it at the hands of their Territorial Legislature. Failing in this, they should have influenced the action of their Constitutional Convention. If that action does not suit them, they can amend their Constitution in a very short time after their admission. In no view of the case does it appear to me to be proper that the whole nation should be disturbed con- tinually with what is properly a merely local question. Let Kansas be admitted at once, and then let her settle this question for herself. The largest privilege of pop- ular sovereignty is conceded to her when she is admitted as a State on an equal footing with the other States. Any course which would hold her any longer in the help- less and distracted condition of a Territory must surely be anything but a fair extension of the privilege of popular sovereignty."^ Other speakers followed and letters were read from members of President Buchanan's cabinet and others. The Attorney-General, ex-Chief Justice Black, wrote,^ among other things : "The President seeing a Constitu- tion about to be established for Kansas by legal au- thority, what could he do? He might regret some things that were done — he might disapprove of others — he might wish that it had been different in many respects ; but still it was the lawful work of a lawful body. Could he set it aside? Could he order the election not to be held under it? Could he drive the people away from the polls? He had no more power to do any of these things than he had to veto an act of the Pennsylvania ' The Daily Pennsylvanian of December 29, 1857. HIS COUNSELS ON PUBLIC AFFAIRS 241 Legislature. ***=>=********* Of one thing I am sure : that James Buchanan is the last public man in the country who need fear the place which will be assigned to him in the history of these proceedings ; and this will be proved to the heart's con- tent of all who live long enough to see the accounts made up."* The meeting passed strong resolutions endorsing the position taken by the President and the immense demonstration closed, and with it the ex-Chief Justice believed he closed his relations to public affairs. Such was not to be, however, for during the winter of 1857-8 the Legislature considered a law to provide for a revision of the penal code of the State, which was finally passed and approved on April 19, 1858.- Imme- diately Governor Packer, by means of the National Telegraph Lines, wired the ex-Chief Justice : "Will you accept of the post of commissioner to revise the Penal Code — answer immediately." Judge Lewis replied fa- vorably, and the following day the Governor sent to the Senate the name of ex-Chief Justice Lewis, Hon. Charles R. Buckalew and Attorney-General Knox as the commis- sion in full.'' The act provided that the work should be reported by April i, 1859, and allowed a salary at the rate of $2,000 per annum. The commission entered upon its work at once, although Mr. Buckalew's place was soon taken by District-Attorney David Webster, of Philadelphia. This prevented a trip abroad which Judge Lewis had so favorably contemplated this year that he already had letters of introduction from President Buchanan to Lord Chief Justice Campbell and like digni- taries in Great Britain and elsewhere. What the results were is stated a year later in a letter from Judge Lewis to the Governor. "As soon as I was appointed one of the commissioners to revise the Penal Code of Pennsylvania," said he, "I diligently devoted to the duties of the appointment all the time, reflection and labor in my power to bestow. As the period for making the report approached, it became manifest to the whole Board that it would be impossible to do justice to a subject of such magnitude within the period • The Daily Pennsylvanian. ' Laws of Pennsylvania, 1858, p. 524. 'Pennsylvania Archives, Fourth Series, \'ol. \'III, p. 78. 242 ELLIS LEWIS limited by the act of Assembly. An application was therefore made for an extension of time. But this, it appears by a recent vote of the Senate, it is not deemed expedient to grant. It therefore becomes necessary either to unite in reporting a Penal Code which has not been so thoroughly examined, revised and considered as to be satisfactory, even to the commissioners themselves, or to tender my resignation. I adopt the latter alterna- tive without hesitation. "It is unnecessary to say to an Executive, who has long been personally familiar with the manner in which I have heretofore performed all my public duties, that I have not neglected the duties of this important appoint- ment. I accepted the appointment, originally, and united in the application for a brief extension of time after- wards, from the single desire to render a useful service to my native State. I think I am rendering that service faithfully while I stand on the ancient statutes and usages with which the people and the profession are familiar, until perfectly satisfied, after the most careful consideration of the subject, that a change has become necessary. "I have not drawn from the Treasury any compensation for my services on this commission, and I decline receiving any part of the salary provided by the act under which I was appointed. "Thanking you for the honor conferred, I hereby resign the appointment of commissioner to revise the Penal Code of Pennsylvania. Yours, very sincerely "Ellis Lewis."^ "The refusal of the Senate to grant any more time," said the Public Ledger editorially on April 6th, "because it involved additional expense, was unwise economy, either of time or money. It has broken up the commission by the voluntary withdrawal of Judge Lewis. The progress already made will be lost, and the whole work will have to be begun anew. ***** A work of this kind, it is evident, must be done deliberately, to be of any value at all, and the time consumed, as long as it was within the bounds of reason, ought to have been considered an evi- dence of the care with which the work was executed." ^ Public Ledger, April 6, 1859. HIS COUNSELS ON PUBLIC AFFAIRS 243 The result was that Judge Edward King was appointed in his place and the Revised Penal Code report did not appear until i860, and when it did appear it said that "The term of the resolutions under which their authority is derived do not seem to the commissioners to contemplate a codi- fication of the criminal law. Such a work would have de- manded an extent of time and labor entirely inconsistent with the prompt and early report required by the resolu- tions, and judging from the results which elsewhere have followed such attempts, we think that the legislature adopted the more judicious course, in confining our duties to the collection, revision, amendment, and systematic arrangement of the penal statutes."^ Whether there was any friction on the question of a full codification while Judge Lewis was on the committee or not cannot be de- termined apparently, but this reference of the committee and the ex-Chief-Justice's remarks about "ancient statutes and usages" might suggest that there was some such question and that he himself was against codification. As the commission finally took the same ground the aim of the ex-Chief Justice, in that respect at least was secured, and, indeed, it may have been that the whole commission had resisted outside pressure for codification. During the spring and summer following (1859) ^^^ ^^'^^ at last giving himself up to the joys of retirement. Judge Lewis had often been in the habit of wooing the Muse, as his father did before him, and verse over his name had appeared in Godcy's, the Home Journal and other papers and periodicals from time to time. One of these, written on May 9th of this year, while he was visiting a friend's new country seat on Long Island, appeared in the Century of New York on July 9th and is a good example of his poems. The new country seat was built in a forest in which the pine predominated, suggesting to the Judge that the name should be Pinchouic. This was adopted and the next morning on his departure he handed his hostess the fol- lowing species of enlarged "Tannctibaunj'': "PiNEHOME "The inmates of the new-built hall Debated of the name The Pines o'er-hearcl, and one and all Did thus prefer their claim : ' Report on the Penal Code, i860, second paragraph. 244 ELLIS LEWIS " 'We've kept this spot, through sheen and gloom, By long possession right ; But we have freely yielded room To lix thy dwelling site. " 'We've given thee joists, and beams and floors. And rafters strong and true ; We've yielded frames and trusty doors. And furnished columns too. " 'We've filled thy house with useful ware ; We give thee light and heat ; And it has been our constant care To bless thy lovely seat. " 'The oak, the beach, the chestnut tall, The apple, peach and pear In summer, spring and teeming fall As summer friends, are fair. " 'But foliage, fruit and fragrant bloom. Like summer friends, depart. And leave thee, in the winter's gloom, With sad and lonely heart. " ' 'Tis then the constant Pines are seen. In faithfulness and truth ; They cheer thee with their foliage green In never-fading youth. " 'When skies are dark and winters drive The snow and wind and hail, The Pines their friendly greeting give A whisper "all is well." " 'Fear not ! Our strength has stood the storm For more than fifty years ; We'll break the blast that threatens harm : Dismiss all idle fears. " 'If lightnings come too near thy walls. We'll guard thy home with care; Our limbs and spears shall from thy halls Conduct the dangerous fire. " 'Then let us thy Penates be ! Instead of transient bloom. We give perennial constancy To thee and thy Pinehome.' "The Pines then ceased — the touching word (Repeated by the guest) Was chosen with the full accord Of every grateful breast." ' ^ Chief Justice Lewis' daughter, Mr?. Juliet H. L. Campbell, wife of Hon. James H. Campbell, an able lawyer and sometime member of Congress, was so well known as a writer and especially for her poetry, that the collections of Griswold, Read and Miss May enrolled her in the list of "The Female Poets of HIS COUNSELS ON PUBLIC AFFAIRS 245 The fierce campaign of i860 caused him great anxiety, but it did not draw him from retirement. The November election, in which the RepubHcans had elected Lincoln of Illinois as President, precipitated the rumbling storm in the South. The threats of disunion made so long by the Abolitionists and their avowed contempt for a Constitution which upheld slavery, had at last been met by the extremist slaveholders with threats to themselves break that Consti- tution should the Abolitionists win the contest. There were evidences by early December that they were making preparations to make good their threats. It was rumored, too, that Chief Justice Taney, then at the advanced age cf eighty-three years, was to retire from his important post, but denied by the Chief Justice himself. Judge Lewis did not agree with President Buchanan's ideas in some respects, and on December 8th he sat down in his West Penn Square library and wrote the following letter con- gratulating the aged jurist and expressing his opinion of the President's course. "I have often wished," said he after a paragraph of ref- erence to a private matter, "that the condition of the coun- try' was such as to enable you to retire from the very arduous duties of your high station. I have taken so much comfort and enjoyed so much health, since I retired from the Chief Justiceship of Pennsylvania, that I could not help wishing you the same blessings. But I am greatly rejoiced to learn that you feel your obligations to the country, in her present unhappy condition, above the claims of per- sonal comfort. It is very clear to my mind that your retirement, at this time, would be dangerous; and might furnish grounds for comment which your best friends would not desire to hear. I do not understand the Presi- dent, when he treats of Executive duties, in executing the laws. It is not the doctrine of "The Proclamation," as I understand it; and I do not see any reason why the revenue America." In 1857 her "Eros and Anteros; or. The Bachelor's Ward, by Judith Canute," was issued. Mrs. Campbell, who was born August 5, 1823, died December 26, 1898. She was the Chief Justice's eldest child. His second child, Elizabeth, died in infancy. Ellis, his third, was born March g, 1830, but died before reaching his majority. James, born June 2, 1832, now deceased, became a Major in the United States Marine Corps, and his sister, Ann. who was born March 19, 1835, and died March 8, 1893, m.irried Captain James Wiley, also of that branch of the military service. Aside from an infant son, deceased, the Chief Justice's only other child, and the only one now living, is Miss Josephine Lewis, of Philadelphia. Captain Wiley's home at one time was "Hardwicke," near Lancaster, the country seat built in early days by the distinguished editor of Smith's Laws, Judge Charles Smith. 246 ELLIS LEWIS should be collected by force, if the judiciary and the other branches of national government are not to be supported by the same means. There may be many considerations of expediency in the present crisis, but there should never be any hesitation to maintain the doctrine that the federal government has, like all other governments, the means of self-preservation. "The unnecessary promulgation by Judge Story of the doctrine that the states had no right to legislate ever in favor of fulfilling their constitutional obligations to 'deliver up' fugitives from servitude, has produced the most of the mischief which now afflicts the country, and endangers the Union. When he delivered his opinion, he gained some northern judges over to his doctrines by the argument that to make the constitutional clause effectual it should be construed to be exclusive of state authority. i6 Pet. 624. But his son tells us, in the Life of Judge Story, 2 vol. 392, that the Judge, when he returned to Boston, spoke of that doctrine thus announced as 'a great point gained for liberty;' so great a point indeed that, on his return from Washington he repeatedly and earnestly spoke of it to his family and his intimate friends, as being 'a triumph of freedom' P. 392. The son explains what was meant by 'a triumph of freedom" in this connection when he adds that it was 'a triumph of freedom' because it promised practically to nullify the act of Congress, it being generally supposed to be impracticable to return fugitive slaves in the free states, except with the aid of state legislation and state authority. P- 393- "It was this unfortunate opinion," Judge Lewis con- tinues, "which induced the northern states to repeal their state legislation in favor of surrendering fugitives from labor, and to enact laws prohibiting the use of their gaols, and the action of state ofBcers, in aid of such surrenders. I rejoice that in my work on the Criminal Law of the United States, ps. 24, 25, 26; in my judicial opinions; and in my action everywhere, I have always repudiated that part of Judge Story's doctrine as unsound and not arising in the case. And I rejoice that my views have been confirmed, on this last point, by the unanimous judgment of the court over which you preside, in the recent case of Moore v. the People of Illinois, 14 Howard, 20-21. HIS COUNSELS ON PUBLIC AFFAIRS 247 "With great respect and the most sincere veneration and regard, I remain your attached friend, ElHs Lewis."^ A week later and but five days before South Carohna seceded, Judge Lewis had occasion to state his ideas of pubhc affairs in a letter to an intelligent and well informed niece of his who had requested it. "You ask my views on the condition of tlie Union," he said. "The Northern States, in their official capacity, and the people of those States, as individuals, preachers and lecturers, have been guilty of the great national sin of breaking their Covenant with their Southern brethren on the slave question. The territories acquired by the blood and treasure of all the States are owned by all. The Southern slaveholder has as good a right to settle in such territory, with his slaves, as the northern man with his horses, cows and sheep. Tlie obligation to surrender a fugitive slave is as strong as that which requires the return of any other stolen property. These rights have been disregarded in the northern states, notwithstanding that they have been guaranteed by a Con- stitution and oaths to support it. It is these violaions of the Constitution on the part of the free states, that has pro- duced the present peril. The remedy is a simple one: Let the President [Buchanan] fill the vacancy in the U. S. offices in South Carolina, and then send the army, the navy and the militia of all the States, if necessary, to support the new officers and execute the United States laws, until the free states have a reasonable time to pass the necessary lazvs in fulfillment of their Constitutional obligations. If they refuse to do this within the proper time, let Congress at once acknowledge the independence of S. Carolina and all Southern States desiring to go out of the Union. Or, perhaps, it w'd be the better course to turn out of the Union those puritanical [crossed out]- States who refuse to regard the Constitu- tion of the U. S. "I have given you the remedy" he adds " but it will not be adopted, and as I see no other adequate remedy, I think that the days of this glorious Union arc numbered. Nothing but Providence can save it, and our great national ' Dated December 8, i860. Lewis Papers. ^ The crossiriR out is not so thorough but that the word "villians" can be deciphered, but his judicial spirit overruled it. 248 ELLIS LEWIS sins are so many and serious that we can expect nothing but that the judgment of Heaven will be against us. "Yours affectionately "Ellis Lewis."^ His anxiety at this time was very great, so that four days later than the above, namely, on December 19th, the day before South Carolina announced her secession, the ex- Chief Justice wrote a letter to the newly appointed suc- cessor of Jeremiah Black to the ofilice of Attorney-General of the United States, Edwin M. Stanton — then of Buchan- an's cabinet — who was an old friend at the Pittsburgh bar. Few letters reveal the chaotic condition of this date more than such a letter from and to such men as the names super — and subscribed in this epistle. "I do not write to congratulate you on your appointment to the office of At- torney General," said Judge Lewis, "but to say that I most sincerely congratulate the country in being able to receive the services of a gentleman so able and so upright as your- self. It is the misfortune of men elevated to high places that they are scarcely even able to get at the truth as re- gards the facts, or to get disinterested and independent advice, when they desire to obtain the calm judgment of wise men. Office hunters and ofifice holders think of the fate of poor Gil Bias when he ventured to speak his honest opinion of the production of his master. I believe that in you the President, when he shall desire it, will receive sound and fearless advice. "In the present alarming state of the country there is great uneasiness at the contemplation of the forts and arsenal in and about Charleston. If Major Anderson and his men should be slaughtered there will be a fearful ac- count to be rendered to the American people. The Presi- dent ought to have the strongest assurances that re- inforcements are unnecessary, in order to justify himself in leaving the public property, and that property consisting of the means of national defense, in its present unprotected condition. "It may be very sound law," he continues, "to hold that unless the U. S. offices are filled in South Carolina, the con- tingency for the application of the military and naval power of the Nation to sustain them in executing the law, cannot • Letter to Miss Mary J. Lewis, Philadelphia, dated December 15, i860, and still in her possession. HIS COUNSELS ON PUBLIC AFFAIRS 249 arise. But the responsibility of leaving these offices vacant, and thus excusing the omission to execute the law, is a fearful one, for which I hope that the President may hereafter be able to show good reasons. If a burglar threatens to invade my house I would certainly prepare to repel the aggressor, even if my preparations did cause me to get into a little excitement. I wish that the President had energetically executed the laws of the Union, and strengthened the Nation's arm in South Carolina until the Northern States had a reasonable time to come up to their Constitutional duties, in regard to Southern rights. If the Northern and eastern States are too conscientious to be honest in maintaining their own part of the Constitution, then let the independence of the Southern States be at once acknowledged. The fugitive slave law ought to be fairly executed. All state legislation against it ought to be re- pealed. Nay, more; the states have something more than a passive duty in regards to the surrender of fugitive slaves — they are under obligation to aid in the act of delivery. Prigg's case has a dictum to the contrary, but Moore's case repudiates that dictum. "As to the territories," he continues, "the slave-holding states have as good a right there as the non-slave-holding states; and if they have rights it is very clear that their rights ought to be protected by law. "I write this in kindness, and not in any spirit of fault- finding, I have been the friend of the President in most of his measures. Personally I would do anything to save him from harm. If you can aid him in steering the National ship through the troubled waters, I know that you will do so independently and in good faith. Office cannot elevate your high standing, and the loss of it can do no harm. God bless you my dear friend. Yours truly, "Ellis Lewis. "^ Mr. Buchanan's reasons for his course are well-known to all readers of his life by Mr. George Ticknor Curtis, and Mr, Stanton's attitude at this time is happily expressed in his reply to ex-Chicf Justice Lewis two days later, i. e., the 21 St, from Washington. "On my arrival home this morn- ing after ten days absence at Cincinnati, I found your favor of the 19th. The kind expressions of your regard and con- * Copy. Lewis Papers. 250 ELLIS LEWIS fidence penetrates nie with a deep feeling of gratitude. To have the confidence and regard of men Hke yourself has been the struggle and earnest desire of my life and the appearance of having acquired it is the highest reward that can be attained. "To the events of the last ten days," he continues, "I have been a stranger except so far as they appear in the public prints. I have not yet entered upon the duties as- signed me by the appointment of the President and nothing but the sad condition of public affairs could induce me to enter the office. The views you express correspond with my own judgment so far as I am advised upon the subject, and my aim will be to carry them out in such manner as shall preserve the Government. "Your advice and counsel will always be highly accept- able to me, for there is no one in whose sagacious wisdom and sound patriotism I have more confidence. Since my return I have not had any interview with any one of the officers of Government and am therefore quite ignorant of the real state of affairs and the proposed policy except so far as they are disclosed in the public prints. "I hope," he adds in closing, "you will favor me with your confidence and views on the subjects now so deeply interesting to every American citizen and fraught with the destiny of our nation and a race. By God's help every effort of mine will be directed to the firmi and faithful dis- charge of such duties as may devolve upon me, and with the aid of counsel from wise men like yourself, and the Divine helping, I still feel strong hope that the impending dangers may be passed in peace and safety. "With sincere regard and a grateful sense of your kind- ness, I remain. Truly yours, "Edwin M. Stanton."^ Scarcely had Mr. Stanton's letter been received when Chief Justice Taney, after a delay due to pressure of duties and ill-health, found time on Christmas eve to reply to Judge Lewis' letter of the 8th instant above mentioned. "As regards public affairs," he writes, after an opening paragraph on a private matter, "they are as you say full of gloom — which every day becomes darker and darker — . It is impossible to foresee to what they may lead — and I ^ Lewis Papers. Chief Justice Roger I!. 'rANF.v From a card photograph in the Lewis Material, possession of the Pennsylvania Bar Association, Philadelphia HIS COUNSELS ON PUBLIC AFFAIRS 251 do not venture to form an opinion as to the probable re- sult. End as they may we are to pass through a season of great suffering and danger. You are right in supposing that at such a time 1 should not think of resigning my place on the Bench of the Supreme Court. I am sensible that it would at this moment be highly injurious to the public — and subject me to suspicion of acting from unworthy motives. How the report got into the newspapers I do not know. It was a pure invention, for I had never said a word like it — and it has just as little foundation in truth, as the opinions on public affairs, which from time to time I see imputed to me in the newspapers — and which I never entertained and never uttered. "I have always thought," he continues, "that the de- cision in the case of Prigg vs. the Commonwealth of Penn- sylvania, an vmfortunate one and not sufficiently considered by the court — and I am persuaded that some of the Judges who formed the majority did not view the case in the same light, with Judge Story — nor intend to accomplish such an object. It certainly gave an impulse to the abolition feel- ing in the non-slave-holding States and perhaps laid the foundation for all the mischief which has since followed. The decision I still think, was an erroneous one — and con- trary to the plain words of the Constitution. "To morrow," he adds in closing, "is Christmas day — and allow me according to our old Marvdand custom to Vvish you and yours a happy one — and many happy returns of the season. "With great respect and regard "I am Dr. Sir your "friend and Servt. "R. B. Taney."^ ' Lewis Papers. On February is, 1861, scarcely two months later than the Tanney letter, Judge Lewis' inclosed to Mr. Buchanan a copy of young Story's remarks on his father's views of the Prigg case, and reiterating that "that decision has been the chief cause of most of our present difficulties with the Southern States." CHAPTER XV His Closing Years and His Death in 1871 The eventful year of 1861 found Judge Lewis a man old beyond his years. He had begun to show it for some time past. His work had always been at a high pressure such as few men care to allow and such as still fewer men can endure. It is said that on more than one occasion when he desired especially that the pressing work in hand might be finished at a given time, he had worked late into the morning hours, and when nature refused to keep the gait he had set and drowsiness delayed, he would take a cold plunge bath to rouse his jaded powers, return to his desk and work till morning.^ And nature debited these over- drawings with lowered vitality. Even in 1856, when not yet threescore years of age he showed it overmuch. During the spring of that year, while in Washington, visiting his daughter, the wife of Congressman Campbell, he attended President Buchanan's reception. "Note the elderly gentle- man," said a writer describing that functon in the Washing- ton Spectator, "conversing with Mr. C. of Georgia. He is a good deal wrinkled, for however noiseless the tread of the grey-beard, his foot-steps are always discernible. He has the sort of face you w^ould instinctively trust. Looking at it you would put your whole worldly estate — your char- acter — into his hands and feel that all were in safe keeping. Yes, dear reader, there is goodness in that face; as to di- trusting him, or his advice, we should almost as soon think of distrusting the Bible. This gentleman, so distinguished for simplicity of character and warmth of heart, is Judge Lewis, Chief Justice of the Supreme Court of Pennsyl- vania."^ In April, immediately after the fall of Fort Sumter, the Bar of Philadelphia held a meeting to raise funds to pro- vide for the families of volunteers going to the front, and ' Related to the author by Miss Mary J. Lewis, of Philadelphia, a niece of the Chief Justice. * The Spectator, Washington, D. C, of April s> 1856- 252 HIS CLOSING YEARS 253 Judge Lewis immediately sent his check for one hundred dollars. As the year passed his health was such that it was determined that he should take the long- delayed European tour, and in 1862 he did so. His itinerary included Great Britain, France, Germany and Italy. But little is known of the journey, except that when he reached Genoa and saw the birthplace of Columbus, before which was a new un- veiled statue of the discoverer, he grew reminiscent of the home-land and was led to write a letter to the old printer- publisher friend of his youth. General George P. Morris, who, with Nathaniel P. Willis, had made the Home Journal so well known. The letter, dated Hotel Teder, Genoa, September 3d, 1862, was published by Morris. "In passing up the channel between Ireland and Wales," to quote but one or two extracts, "I saw Anglesea Island, and was of course reminded of the last great struggle which the Druids made to preserve their liberties, their history, their religiorr and their learning. That their learning surpassed that generally existing on the continent is evident from the fact admitted by Caesar himself in his w-ritings, that the young men of Gaul were sent to Britain to be educated. But all the learning and the history of the Druids perished at Anglesea Island under the brute force of the Roman barbarians." "I have seen so many things in this Old World," he adds, "which bring up a rushing crowd of memories of things read of in youth, that it would take a quire to tell you half of them." He was much impressed with relics of Charlemagne at Aix-la-Chapelle: "I saw some of the bones of the great Monarch. I sat upon his marble throne, held his sceptre in my hand, and his golden crown was placed over my head; but although my head is above the average size, the crown descended very readily to my shoulders. This, and the paintings and statues of the emperor, show that he was a man of gigantic proportions." Lake Como seemed to afford him great delight, and he de- votes much space to it. "My health has improved very much," he adds in closing. "Let any man try travelling — on foot, on mules, over mountains, seas of ice, saying noth- ing of crossing the ocean — and I believe, if he survives, his health will be improved."^ ' Lewis Papers. 254 ELLIS LEWIS On his return his days were passed in the quietness appropriate to the Indian summer of one's years. With the prospective changes about Penn Square, on whose site was to rise the great pile now known as the Pubhc Build- ings or City Hall, originally designed to be the centre of Penn's city; and the site of his West Penn Square home on which was to rise the great terminal of the Pennsylvania Railroad, both of which were destined to make that centre a reality, Judge Lewis sought a new home farther out at No. 302, South Fortieth Street; where he passed his re- maining years. It was while here, late in August, 1863, that ex-Presi- dent Buchanan wrote him from "Wheatland": "'Should auld acquaintance be forgot'! I very much desire to see you and think that in this hot season, you might pass a few days agreeably at Wheatland. You shall receive a most cordial welcome. Besides, I desire to consult you on some matters important to myself and probably tO' the public." The ex-Chief Justice accepted the invitation, but something now unknown, possibly, ill-health, prevented the visit.^ Late the following spring — or early in June, 1864 — he extended the invitation of the Saturday Evening Club of Philadelphia to the ex-President to be their guest at their next meeting. The reply of Mr. Buchanan was rather interesting. "I regret that I cannot be with you," he wrote, after acknowledging the invitation. "Age loves home and this feeling has grown upon me so much that I doubt whether I shall even visit the Bedford Springs during this season. When I gave you a pressing invitation to visit me last fall, this was partly selfish. I desired to consult you respecting certain portions of my Record. I had to prepare it without assistance. Two members of my cabinet are with the Rebels, three with the Republicans, Holt, Stanton and Dix. Black so engaged in making money, and I am glad successfully, that he could not spare the time, and Toucey, 'the noblest Roman of them all,' at such a distance and he and his wife suffering from feeble health, that I made no requisition upon him. Under these circumstances I wrote to you not only from a sincere desire to see you, but from a wish to consult you about diverse legal matters: but I think the record will do as it stands. * Letters of August 22d and 28th, 1863, among the Lewis Papers. Chief Jistice Kllis Lewis about 1865 From a i)!iotograi>h miniature by I'rancis lirown. in possession of Miss Josepliinc Lewis, I'liiladelpliia HIS CLOSING YEARS 255 I would not, if I could roll back the tide of time, change a single fact on which it is founded."* These years were not eventful ones to the venerable ex- Chief Justice. He was unconnected with the great national convulsion. Probably it seemed to him as he expressed it in verse, under the title of Time and the Acorn, published in the Home Journal in 1858. It was a dream of history and the progress of F"ather Time and his scythe "And his wings, like an eagle's, as upward it flies, In its course tlirougli the air to its home in the skies, Keep their flight, till the young, like the old, become grey, And proud nations arise, and then sink in decay. And the period was filled with their crimes and their jars. With the floods and the fires, and the wrecks and the wars. That are brought upon man by his wicked career, In the justice that Heaven administers here." And further on he says: "All the deeds of this life leave results that abide, When the actions themselves float away in the tide ; Be they base, be they great, be they simple or wise. They leave marks which defy even Time as he flies." His philosophy of life, which stood as his bulwark for at least the latter half of his career, was probably not better expressed by him anywhere than in some blank verse published in Godey's Lady's Book many years before and republished at the beginning of the Civil War. It was entitled "PROPERTY, FAME, LOVE. RELIGION. "Wh.'vt is Property? 'Tis a barque full freiglited with the ills of life. Possession and Pursuit alike afflict — "He that is without it wastes his precious years, Scheming by day, and dreaming all the night Of means to grasp the phantom. He that has it, has a world of care. To save it from destruction and from man's rapacity, From claims in Chancery, and from writs at law, From fall of stocks, and frauds, and sad default — Of those whose agency he needs must trust ; All anxious to secure the splendid curse That blights the peace of ail its votaries. Barings, or Rothschilds, Astors or Girards, Whose millions and whose lives of constant labor Are paid as cheaply as the slave is paid. With food and raiment, and, when dead, a grave ; ' Dated June 24, 1864, Wheatland. Lewis Papers. The "record" here referred to was the "Autobiography" afterwards published. 256 ELLIS LEWIS With this posthumous evil superadded That spendthrift heirs and reckless devises May scatter their broad earnings to the winds, In thoughtless prodigality, till naught be left To witness that such men have lived and slaved And died, but what the world calls Fame ! "And What is Fame? " 'Tis the vibration of the viol's string, 'Tis but the echo from the distant hill, The bare reverberation of a sound, — The shadow, not the substance of men's deeds. The deeds once over and the substance gone, The echo ceases, and the shadow goes. As things that have been and are now no more. If wealth and Fame alike shall fail To recompense a life's long struggle, What else shall restless men pursue? An inexperienced and confiding youth In the warm gush of early feeling cries : — That Friendship's balm repays its cultivation, And gives a lasting solace to the mind. "And What is Friendship? " 'Tis to be cradled in the tall tree top In summer's sunshine; with o'er-hanging branches Waved by gentle zephyrs to and fro, Spreading their shady bowers and rustling leaves. Like many thousand slaves, to fan the air We breathe, and give it healthful circulation. But, when the winter's storm approaches. The zephyrs leave us to the whirlwind's rage, The sycophantic leaves withdraw their shelter. The branches give no longer their support. But yield and break beneath our pressure Like human faith when most we need its stay. What is there then in this broad world On which our best affections can repose? Some gentle maiden, with her bright black eyes Dancing with joy, amid the crimson tide That gathers in her face, as first she owns The deep emotions of her trusting heart, Looks archly up and softly answers 'Love !' "And What is Love? " 'Tis the bright sun of early morn, Lending his radiance to the dew-drop's 'round. As freely as he lights the stars of Heaven, And touching all the things of Earth With Heavenly rainbow hues. But, when the evening comes, The spangling dew-drops are exhaled and gone. The sun descends into his dusky grave And all the brightness of the glittering scene. Tint after tint is swept from view. With naught to stay the gathering gloom But dim reflections from the Western sky HIS CLOSING YEARS 257 Of light now passed away The fading memories of our early loves Estrang'd, or hushed in death ! What then shall give to wearied man The solace of repose? What stay his soul In the dark hour of sad extremity? When all is gone, and earthly hopes are fled, When all the cords that Love has twin'd are broken, When Wealth and Fame and Friendship prove unreal, Religion only can true good supply. "And What's Religion? " 'Tis not the fiery zeal that to the stake Condemns a brother for opinion's sake ; 'Tis not self-righteous dogmas dealt around By each sectarian bigot, who forgets. In mystic speculations. Christian love. And all the rights of justice and true charity. But this it is; — to fix our hopes on things to come, To oflfer up to God our heart's devotion. Yielding to Him our all confiding faith ; To love our neighbors as we love ourselves, And bless them with the charities of life; Doing to others as we would that they Should, in like circumstances, do to us. Unlike the Crescent of the Musselman, Which curves to suit the passions of mankind. And fills pure Heaven with vile lusts of Earth The Christian's Cross, with transverse arms, Strong emblem of united Faith and Works, Points first to Heaven — then round upon our brothers, In blood and suffering pleading with our race To crucify the passions and the evil thoughts That incapacitate the soul for Heaven, Teaching, in silent eloquence to all. Homage to God and deeds of love to man." ^ His days passed without history. Rarely an event rip- pled their smooth flow. Like age everywhere, he revelled in memories — such, for example, as an interesting friend- ship with Charles Dickens, when he made the journey to the United States, which produced the American Notes in 1842 and Martin Chiiadewit a little later. The venerable jurist sent him a greeting, with reference to it, in January, 1868, when the novelist was again in New York. Replying to it on 18th instant, Mr. Dickens wrote: "I have received your kind letter with sincere interest and pleasure, and I beg to thank you for it cordially. The occasion you bring back to my remembrance is as fresh and vivid as though it were of yesterday. Accept from me the accumulated * Judge Lewis, like many another Quaker, became an Episcopalian and was elected one of the oriRinal Wardens of Christ Church, VVilliamsport, at its foundation, on February 8, 1841. 2S8 ELLIS LEWIS good wishes of five and twenty years, and believe me, Dr. Sir, faithfully yours, "Charles Dickens." A letter a year later from George W. Childs, who was then in Paris, is similarly suggestive. "My Dear Judge Lewis," the letter began. "On the day of my leaving Philadelphia your very kind letter was placed in my hands, and I have many a time, amid my wanderings abroad, turned my thoughts homeward, and have felt how much I was indebted to you for the very great service you did me. It will always be one of the most agreeable recollec- tions of my life, and I expect on my return to have hand- somely printed your remarks and bind them up with the Ledger book in fine style, and present copies to such friends of yours as you may designate. I will include our mutual friend McMichael's remark in regard to yourself, etc." Then after references to the Judge's trip abroad and his own, he closed with: "I return with a higher appre- ciation of our country and her institutions, and feel proud that I am an American. What a future we have before us. It is estimated that we will have one hundred millions of people in 1900. What then. I hope your health has been no worse this winter, which I understand has been mild. With high esteem. Very truly your friend "Geo. W. Childs."^ Almost exactly two years later, when the venerable jurist had passed his allotted three-score-and-ten, by three years, his friend, Childs, had occasion to chronicle his pass- ing: "It is with great regret that we announce the decease of Hon. Ellis Lewis, formerly Justice and Chief Justice of the Supreme Court of the State of Pennsylvania. He had been in feeble health for a long period, but was able to go about his room until a few hours before his death on last Sunday afternoon [March 19th, 1871]. On that day, hav- ing expressed his readiness for the great change from mor- tality to immortality, he said quietly, 'I believe I am dying now,' and almost immediately afterwards fell back and ceased to breathe. Judge Lewis was widely and justly held in high esteem by his fellow-citizens throughout the State ' Lewis Papers. HIS CLOSING YEARS 259 of Pennsylvania as a learned lawyer and jurist, and good man."^ On Wednesday, the 22d instant, a meeting of the Bar of Piiiladelphia was held at noon in the Supreme Court room, and, said the Press, "There was a large attendance of attorneys, especially of those who have obtained emi- nence in the profession; and the meeting was a fitting tribute to the private worth and professional attainments of the deceased, so long and so favorably known to the members of the Bar of Philadelphia, both as a jurist and a citizen." On motion of Judge A. V. Parsons, Chief Justice Thompson was chosen to preside, and Colonel Snowden and Hon. Henry M. Phillips were appointed sec- retaries, "Death has taken from us our late associate. Judge Lewis," said the Chief Justice. "It is true he was full of years, and I may say, full of honors, but the loss was none the less severely felt. I can say but little at this time. I knew him long and well, and some things coming into my own special knowledge I will refer to. Many years ago (in 1832) on a cold December day, I met him first at Harrisburg as a member of the Legislature, prior to the amendment to the Constitution. The friendship com- menced then was only cemented by time. I saw him the day before he died. Though he was not able to converse, his countenance lighted up when he saw me. He was cele- brated for activity of mind, great reflective power and fore- thought. I have never known a more thorough capacity for reflection in any man whom I ever met. His reasoning was always sound, and his perceptions almost as quick as lightning. I remember the time Jackson's proclamation against nullification was brought by special messengers to Harrisburg. It was read amid great excitement, and in the debate that followed no more able speech was made than that of Judge Lewis, who said, if the acts of the nullifiers 'were not treason, they were crimsoned over with the hues of treason' — a remark which had a wonderful effect at the time. Afterward he introduced a bill for the abolition of imprisonment for debt, he having discovered many abuses by an actual inspection of the prisons. He did it at a time when opposition came from all quarters, and the ]:)assage of the act became one of the shining glories of his life." ' A sketch followed. 26o ELLIS LEWIS After reference to other events of his life, he added: "No critic can condemn any opinion ever delivered by him. His head was clear, his heart was just, — two elements that should be inseparable from the judge. He approached just near enough to genius to still retain the power of com- mon sense, which was characteristic of his judicial decisions. He was a worthy, genial, kind and trusty friend." Judge Parsons followed, with all the warmth of early friendship: "A great man has fallen. It is no discredit to those now on the bench to say that Judge Ellis Lewis stood pre-eminent amongst all the lights of the Supreme Court, and his decisions are a monument to his fame." The first case he had ever tried was in connection with Judge Lewis, whose practice in the northern counties was very extensive. The Assembly of 1832-3 was a remarkable body, said he, "and for forty-six years there has been no such collection of talent as convened on that occasion, and Judge Lewis was the peer of any one upon the floor. Few men had more popularity; he was popular with the bench and bar because of his ability, and with the people because of his innate love of justice. He was a powerful advocate, formidable in the examination of witnesses, while before the jury his were some of the finest speeches ever delivered." "He was the friend of the oppressed," he continued; "and in the struggles in Tioga, Bradford and Lycoming Coun- ties between the proprietors of land and the oppressed land holders," he took the people's side. Judge Parsons then offered the following resolutions, which were unanimously adopted: "Whereas, at the ad- vanced age of nearly seventy-three years, the Hon. Ellis IvCwis, late Chief Justice of the Supreme Court of Penn- sylvania, a gentleman who has filled many prominent political, official, and judicial stations in this Common- wealth with great efficiency, fidelity, as well as with singular satisfaction, not only to his friends, but to the bar and the whole people of this great Commonwealth ; who was a man of unblemished moral reputation, and highly esteemed for his constant benevolence to the distressed and afflicted, his varied social qualities as well as his uniform Christian deportment, died at his residence in this city, on the 19th instant, full of vears and honors, it is but proper that the MIS CLOSING YEARS 261 bar of Philadelphia, a place where he has resided for many years, should, in a public meeting, express in a fitting manner their appreciation of his excellence; therefore, "Kcsoli'cd, That in the death of this estimable citizen, distinguished lawyer, and upright judge, we feel the loss of a gentleman who by the purity of his judicial life, in the administration of justice in the various tribunals where he has been called to preside, and the profound legal learn ing which he has exhibited in all those various stations, as well as that earnest search after truth and justice in all the numerous causes which have been brought before him for adjudication, we say a great man has died. "Resolved, That we deplore the death of the Hon. Ellis Lewis as one who by his research and varied learning has also contributed largely to the medical jurisprudence of the profession, to general literature, poetry, and science, and who at all times, had a heart filled with benevolence and kindness for the suffering and afflicted, which was ever open for their relief. ''Resolved, That we believe the bar of this State will ever recognize his kind, urbane, and gentlemanly deportment to all who, in years that are passed, have had the opportunity of practicing before him, and are ready in this sad hour to express their high appreciation of his character as a judge, of his moral worth, and as a Christian gentleman. "Resolved, That a committee of seven be appointed by the chairman of the meeting to convey to the family of the deceased our deep sympathy with them in the loss they have sustained, and that a copy of these resolutions be presented at the same time. "Resolved, That in testimony of our respect for the mem- ory of our distinguished friend, we will attend his funeral this afternoon." In seconding these resolutions, George W. Biddle, Esq., said that he had known Judge Lewis since 185 1, and he came as near his "idea of a perfect judge" as any man with whom he had ever been acquainted. While profoundly learned in the law, he had a wonderful fund of practical common sense, and by it he could bring his great acquire- ments to support the justice of a case. His love, said Mr. Biddle, was for the law and for justice administered through it. "After his retirement from the bench, to which he might 262 ELLIS LEWIS have been returned for a term that would have carried him to the day of his death, he did not sit down in idleness, but devoted himself to the cultivation of his talents and the leading of an active life. He never concealed his opinions on any point. He gave the right to others, and was decided in the expression of his own." Mr. Biddle said that he and Judge Parsons had once had Judge Lewis for a client and unlike most lawyers, when clients, his ideas were as clear as to his own case as they were on others. He said the bar had, indeed, lost a great man, a man of high attainments, a great judge and a good citizen, and he desired to make this tribute to the worth of one who gave to the bench the benefit of his study and to the profession the benefit of an exemplary career. Hon. Williami A. Porter spoke of the remarkable force of Judge Lewis' expressions, which, were calculated to im- press all who heard themi, whether in speeches or conver- sation, for no one could hear him talk even without gaining ideas not soon tO' be forgotten. He referred to his rich sense of humor. He was always cheerful, never depressed in the presence of great responsibilities. He was not only laborious and learned, but had peculiar faculty for adapting the law to the duties of every day life. He was very con- siderate for the weak, but could lay strong and violent hold upon the strong man and ready debater, and would even suggest points to an attorney who seemed not to under- stand his case. David Webster, Esq., one-time editor of the Pennsyl- vania Law Journal, and District-Attorney of Philadelphia, spoke warmly and with great feeling of the noble life of this jurist and Christian gentleman, whose career from printer's boy to Chief Justice, author of over three hundred opinions that were a permanent part of our law, was a proof of the beauty of American institutions. Chief Justice Thompson appointed Hons. A. V. Par- sons and William A. Porter, Attorney-General F. C. Brew- ster, and David Webster, George W. Biddle, Henry Green,, of Northampton County, and Theodore Cuyler, Esqs., as the committee, to which, on motion of Mr. Cuyler, the officers of the meeting were added. The funeral was held at 302 South Fortieth Street in mid-afternoon, with the Rev. Dr. Yarnall, of St. Mary's Episcopal Church, and the The Tomb in Woodlands, I'mLADELPHiA HIS CLOSING YEARS 263 Rev. Dr. Rudder, of St. Stephen's, officiating.^ Besides family, friends and the numerous representatives of the bar, were representatives of the Masonic Order, in a lodge of which in New York he had always held his membership, the St. Andrews Society, the Welsh Society and in especially large numbers the Typographical Society. The pall bearers were Chief Justice Thompson, Judges Ludlow and Parsons, and Dr. Jesse R. Burden. All of these, ex- cepting relatives and close friends, honored the dis- tinguished dead by acting as escort on foot to the great cemetery not far away on Woodland avenue, where the last rites were solemnized by the two rectors and the Masonic brother, Samuel C. Perkins, R. W. D. G. M.- And there amid the shaded slopes of Woodlands still rises a stately, but simple and dignified shaft, not unlike the simplicity and dignity of the life it recalls, on which is a cross and the legend: Ellis Lewis May 16, 1798 March 19, 1871 ' Mrs. Lewis survived her husband for some years, her death occurring on January 29, 1879. Miss Josephine Lewis, of Philadelphia, is the only sur- viving member of the Judge's family. The portrait of Judge Lewis by Francis, which was in the possession of his daughter, Mrs. Campbell, was willed by her, at her death, in 1899, to the Supreme Court for their rooms, at Philadelphia, where it now hangs. " The Legal Gasette, March 24, 1891. INDEX Index Abolition (see Slavery) ; (see Missouri Compromise, The) ; contempt of, for the Consti- tution, 245. Adams, 57. Adams County, 58; 160. Advertiser, The, of Williams- port, 43. Agnew, Judge Daniel, 168, footnote; 170. Albany, cabal, 71. Albany Daily Advertiser, 39. Allegheny County (see Pitts- burgh). American Jurist, The, 133. American Sentinel, The, 70; on the U. S. Bank and New York, 71. Anderson, 29. Anderson, Major, 248. Anne, Queen (see Queen Anne). Antego, 10. Anthony, Judge or General Joseph B., 71 ; 96; 97. Anti-Improvement Party, 125. Anti-Masons, 69; 71; 75; 84; 125; ;55- Apsequinemy River, 10. "Apostate, The," 56. Armstrong, Dept. Atty. Gen. James, 104; Justice of Su- preme Court, 215; 231; Lewis on, 232-3. Armstrong - Hall case, The (see Hall case. The). Ashmcad, George L., 225. Assembly, The, meets in pri- vate house, 12; 18-19. Atlee, Dr. Washington L., 132. Attorney-General of Pennsyl- vania, Opinion of, 93-4; opinion of, 95-6. "Auld Lang Sync Party," 234-5- "Auld Lang Syne Party," edi- tion of Burns, 234. Aurora, The, 55 ; and the Democratic Press, 56. Autobiography of Buchanan. 254- Babbitt, Judge Elijah, 168, footnote. Bache, Richard, 56. Baldwin, Mary, and Ellis Lewis, marriage certificate of, 18, footnote. Baltimore, the third city, 36; 42; convention at, 72 Banks, United States, 70; in politics, 71 ; old one, how demolished, 71 ; location of, 71 ; 72; perplexity in Democ- racy caused by, 75; 79; Jackson's attack on, 92; 124; 125; 134; Chief Justice Ta- ney on, 135. Banner, The Northern, succes- sor to the Settler, 85. Bar, The, influence of in elec- tive judiciary, 170. Barbadoes, 10. Barry, Lieut. Gov. of Ken- tucky, 52-3. Bartgis, M., 23. Barton, Geo., 225. Battery, The, New York, 37. Bayard, James, 225. Bell, Justice Thomas S., 152, footnote; 163; 170; recom- mended by Buchanan, 179, footnote. Bennett, Joseph, 16. Bernard, 66. Berks County, 130. Biddle, Judge Craig, on the elective judiciary, 158-9-60. Biddle, Geo. W., 225. Bigler, Governor, 167; 173; and Chief Justice's commis- sions, 195, et ai; Chief Jus- tice Black on, 197; letter of 267 268 INDEX on the commission as Chief Justice, 199-201. Bill of Rights, establishment of, 7. Binney, Horace, 68; 159. Binns, John, 40; editor of the Democratic Press, account of, 55-6; 57; 66; 72. Bizarre, The, footnote, 7. Black-Bird-River, 10. Black, Judge Jeremiah S., 152, footnote; 154; 163; 165; 167; 169; 170; on Gibson, 178-9; and commissions as Chief Justice, 195, et al.; letter of on same, 196-8; only Chief Justice not to receive a com- mission, 201 ; becomes Attor- ney - General to President Buchanan, 215; resignation of as Justice, 226; letter of, on Buchanan and Kansas, 240-1 ; 254. Blackstone, on criminal law, 138. Blair County, 160. Books on sale in 1817, 40. Bradford County, 64; Demo- crats in, 71-2. Bradford Settler, The, 67; 72i\ 96. Brandy-Wine-River, 10. Bredin, Judge John, 152, foot- note; 154. Brewster, Benj. H., 225. Brewster, F. Carroll, 225. Brightly, Fred. C, 225. Brinton, Wm., 21, footnote. Broad Street (Broadway), New York, 36. Broad-Street, Philadelphia, 11. Broad Street Station (Phila- delphia), 254. Broadway (see Broad Street). Brown, David Paul, 118; on Lewis, 207-8; (see Forum, The). Browne, N. B., 225. Bryan, George, 50; 51; 55; 57; 66. Buchanan, of Greene County, 77- Buchanan, James, 71 ; 7:^; Sen- ator, 129; letter of, 136; and Franklin College, 137; 161; candidate for President, 161- 2; 173; on recommending Judges, 179, footnote ; letter of, while Minister at Lon- don, 183-6; letter from, 187- 8; on the Crimean War, 188; and the "Ostend Mani- festo," 188; 223; 229; 240- 41 ; Lewis' views on course of in i860, 245-7; 248-9; let- ter from, on his autobiog- raphy, cabinet, etc., 254-5. Buchanan's Cabinet, 254. Buckalew, Charles R., 225 ; 241. Bucks County, original bounds of (see Counties, Original), 58. "Buck-shot War, The," 119. Buffington, Judge Joseph, 154. Bull, Col. James P., 65; 70; 96. Bulletin, The Piiiladelphia Evening, 167. Bunyan, John, 7. Burnside, Thomas, 49; 59; Justice, 152, footnote. Burrell, Judge J. M., 168, foot- note. Butler, 29. Butler, 235. Cabinet government, rise of, 7. Cader Idris, 2. Cadwigan, Prince, 3. Cambria County, 119; 160. Cambry (see Cumbry), 12. Cameron, Senator, 173. Campaign, The First Elective Judiciary, 167. Campbell, F. C, 104. Campbell, Judge James, 154; candidate for Supreme Bench, 161 ; 163 ; 165 ; 166 ; 167 ; de- feated, but became Attorney- General, 168 ; 169 ; recom- mended by Buchanan, 179, footnote. Campbell, Hon. James H., 244. Campbell, Mrs. Juliet H. L., 244-5, footnote; 263, foot- note. Campbell, St. Geo. T., 225. Canal system of Pennsylvania, 87-8 ; opinion concerning, 93-4 ; opinion concerning, 95-6. Capital, National, at York, 23; desired at Harrisburg, 23- 4-5- Capital Punishment, 148. Capital, State, different loca- INDEX 269 tions, 33-4; settled at Har- risburg, 34. Capitol, State, in court-house, 34- Carbon County, 160. Cards (playing) as visiting cards, 19, footnote. Carolina, 10. Carter's-Alley, 11. Cases (see Lewis, Chief Jus- tice Ellis (3d)). Cass, Lewis, 137. Catholics, Irish, displaced, 8. Catholics, Roman (see Ro- man Catholics). Cedar River, 10. "Centralism" and States' Rights, 141-7. Century, The, 243. Chambers, Judge George, 164. Chambers, Thomas, 128. Chambersburg District, 68. Champneys, Hon. Benjamin, Judge and Senator, 129. Chandler, Hon. Joseph R., editor of the U. S. Gazette, 123. Chapman, Judge Henrj', 154. Chapman, Judge Seth, 59; at- tempt to remove, 89-90. Charge, A, of Judge Lewis', 102-3. Charles II, i ; 7. Chatham Street, New York, 37. Chester County, "Upper," 15; emigrants from, 16; 58; 119; 130; 160. Chester-Town, 10; 12. Chestnut-Street-Wharf, 11. Chief Justiceship of Pennsyl- vania, 160-1 ; (see also Su- preme Court, The); 163; under the elective system, 168; and its form of com- mission decided. Chapter XII ; attitude of Lewis, Lowrie and Knox on, 198. Childs, George W.. letter of, 258; on the death of Chief Justice Lewis, 258-9. Christen-River, 10. Christians (white settlers), 9. Church, Judge Gaylord, 152, footnote; 154. Clarendon Code, footnote, 7. Clay, Henry (and Sergeant ticket), 75; Republicans, 84; and public lands, 86-7. Clay, Joseph A., 225. Clifford, Justice, 229. Clinton, Mayor De Witt, of New York, 36; Vice-Presi- dent, and the old U. S. Bank, 71. Codification of Penal Code, in Pennsylvania (see Penal Code). Collins, 198. Columbia College, law lectures in, 137- Columbia County, 99. Comly, Judge Joshua A., 164. Commissions, as Justice and Chief Justice, Chapter XII; Bigler on the nature of, 199-201. Compromise, in politics (see Slavery) ; (see Missouri Compromise, The) ; 148. Concord, 13. Meeting, 14. Conestogoe, 15. Congress (see Congress, Con- tinental), First, 25. Congress, Continental, 19. Constitution of 1776, 120. Constitution of 1790, 120. "Constitution of 1838, The," 119. Constitution, The State, third attempt at revision of, 90- 91; vote on, 119; counties against revision of, 119; meaning of changes in, 119- 20. Constitution, New National, 2^; 31- Convention, Gubernatorial, of Pennsylvania, 66 ; V i c e - Presidential, 1831, 72; at Harrisburg. 72, ; Constitu- tional Revision, 119; Judi- cial, 161. Conyngham, Judge J. N., 168, footnote. Convention, Judicial (see Ju- dicial Conventions). Cook, .'\rthur, 10; 11. Cope, 235. Coppee, Captain, 235. Cornyn, Representative, 157. Corporations, an opinion on, 172-3- Coryell, Tunison, 47 ; account of Gazette by, 48, footnote ; 51 ; 58; 59. footnote. Coulter, Richard, 71 ; Justice,. 270 INDEX 152, footnote; 163; 164; and the Philadelphia Bulletin, 167; gets the fifteen-year term, 168; 170; death of, 173. Council, of Governor Evans, 12. Counterfeiting case, Frontier, 118-19. Counties, Original (Chester, Bucks and Philadelphia), boundaries of, how settled, 18. Courier (see New York Cou- rier). Court-House, First, 12. Courtlandt Street, New York, 36. Cowden, John H., 97. Crawford, George, 97. "Criminal Law of the United States, An Abridgment of," by Bllis Lewis, 139-40; works on, footnote, 140. Cumberland County created, 17; 160. Cumbry, The, 10. Cummings, Judge John, 102. Curtice, John, 10. Curtis, Justice Benj. R., foot- note, 223 ; 229. Curtis, George Ticknor, 249. Gushing, 127. Cutler, Mannasseh, journal of, 24. Cuyler, Theo., 225. Cymru, 3, footnote. Daily Pennsylvanian, The (see Pennsylvanian, The Daily). Dallas, Alexander James, 55 ; 71. Dallas, George Mifflin, 55; 56; 70; 71; 72; 73; becomes At- torney-General, 98 ; letter to, 141-7; letter from, 147-8. Dallas, T. B., 56; 89. Dam, The Bald Eiagle Creek, opinion on, 93-4. Danville, Pa., 61 ; 102. Darlington, 198. Darsie, Senator, 129. Dauphin County created, 24; 119; 160. David and Wallace (see Wal- lace and David). Davidson, Judge Asher, 102. Dayton, W. Heyward, 225. Debt (see Imprisonment for Debt). Dechert, Henry M., 225. Dee, River, 2 ; 3. Degrees, conferred on Judge Lewis, 140-1 ; also footnote. Delaware, 10; (see Pennsylva- nia). Delaware County, 58; 119. Delaware River, exploration of, 9; settlements, popula- tion of, 9. Delaware-Street, 11. Democratic Judicial Conven- tion (see Judicial Conven- tions), 223. Democracy, 56 ; 66 ; in Penn- sylvania, 72] perplexity of in 1831, 75; letter on, by Judge Lewis, 141-47; in Pennsylvania, 155; 223; of Philadelphia, in mass-meet- ing, 236. Democratic National Conven- tion, Baltimore, 137. Democratic Party, in Pennsyl- vania, "Old School" and "New School," 40; com- ments on, 54; origin of name of, 56; (see Democracy); and Judges in Pennsylvania, 168; 169-70. Democratic Press, The, the paper to give name to the party, succeeds to power of the Aurora, 56; 57; 66. Democratic Review, The, of New York, 61; 137; 141. Denny, Harmar, 71. Deposits, Removal of, Taney on (see Banks, United States), 13=1. Derby-River, 10. Derby-Town, 10. Dickens, Charles, letter of, 257-8. Dickinson College, 68. Diehl, Thomas J., 225. Districts of Supreme Court (see Supreme Court). Dissenters, harshness of laws against, 7. District Court of Lancaster, Special, 129. District Court of Philadelphia, Special, 154. District Courts of Pennsylva- INDEX 271 nia, comparative business of, 1841 to 1850, 130. Dix, of Buchanan's Cabinet, 254- Dolgclly (Dolgelley), descrip- tion of, 2-^ ; enigmatic poem on, 3 ; meeting at, 4-5 ; cot- ton manufacture in, 8, foot- note. Doney, 141. Donnegal, 15. Dougal, Dr., 105. Dred Scott Decision, 223 ; 229. Drum, Senator, 157. Duane, William, 40; account of, 55 ; also footnote ; 56. Dubbs, Dr. J. H., 136. Dublin, 12. Dubuque, Iowa, frontier trial in, 118-T9. Duncan, Thomas, 68. Durkee, Judge, 152, footnote; 154- Dwight, Theodore, editor New York Daily Advertiser, 39. Earls, Catherine, 106. Earls, John, 104. Earls Murder Case, The, 104 to 116 inclusive. East River, New York, 36; 37. Education in Pennsylvania, 125- Eighth Judicial District, The, 90-1 ; 96-7; 99; 120. Eldred, Hon. C. D., 89; 96-7; 152, footnote. Eldred, Judge Nathaniel B., 152, footnote; 155; 168, foot- note. Elective Judiciary, The, 148; popular demand for, 153; 154; 155; 156; opposition to, 157; growth towards, 157-8; and other States, 158; Judge Craig Biddle on. 158-60; amendment carried, 160; counties against it, 160; nominations for, 163 ; 164 ; 165; 166; 167; 168; James Alexander Fulton on, 168- 70; William Wilkins on, 231-2. Electoral College of Pennsyl- vania in 1832, 7y. Ellis, Rowland ap or son of, 4; 13- Ellis, Wm. Cox, 104. England (see Old-England) ; town and country life in, de- scribed in Buchanan's letter, 185-6. Engle, Peter Hill, 118. Erie Canal, 2>'^. Erie County, 130. "Eros and Anteros," 245, foot- note. European tour, 253-4. Evans, Governor, 12. Exchange Place, New York (see Garden Street). Fairs, 12. Fair (now Fulton) Street, New York, 36. Fallon, John, 225. "Family, The," 56; 65-6; 72. Family name, an institution, confusion of method in, 4. Federalism, 54; (see "Cen- tralism"). Federalists, The, in Philadel- phia, 40; in Pennsylvania, 69; 97- Financial center, change of, 70. Findlay, Governor, 40; 47, and footnote ; 53. Findley, Judge John King, 154- Findley, Joseph, Academy of, at Harrisburg, 33. Finletter, Judge, 159. Fisher, A. J., 225. Fisher, Judge Robert J., 168, footnote. Fleming, Robt., 104. Flowers-.A.lley, 11. Forney, Col. John W., editor, 161 ; 163 ; 167 ; 223 ; 229. Forney's Pcnnsyhanian (see Pennsylvanian, Forney's). Forum, The, by David Paul Brown, 118. Foster, Hugh, guardian of Ellis Lewis, z^; 34; 37. Fox, George, account of a Quaker meeting, i ; 2, foot- note. "Frame" of Government, 13. FVancis, portrait by, 263, foot- note. Frankford-River, 10. Franklin, Benjamin, 17; 18; his Ccccttc, 2T, : 24. 272 INDEX Franklin College, Law Profes- sorship in, 136; and Bu- chanan, as trustee, 137. Franklin County, 119. Frederick City, Md., 42-3. Friends (see Quakers). Front Street, 11. Fugitive Slaves (see Slavery). Fuller, 3. Fulton, James Alexander, on the elective judiciary in Pennsylvania, 168-70. Gardenier, Barent, editor of New York Courier, 39. Garden Street (Exchange Place), New York, 37. Garretson, Dr. William, 60; 61. Gazette, Franklin's, 23. Gazette, The Franklin, 54; ri- val of the Democratic Press, 56. Gazette, The, of Williamsport, 43 ; 44 ; 45, footnote ; 46 ; 48 ; footnote also; 51. Gerhard, B., 225. "General Welfare" clause, 143. German-Town, 12. Gibson, Chief Justice John Bannister, 68 ; 132 ; salary of, 152, footnote; and the elec- tive judiciary, 160-1 ; 163; 165 ; 167 ; gets the nine-year term, 168; 169; 170; death of, and eulogy of, 178-9; 198. Gillou, Constant, 225. Gilmore, Judge Samuel A., 152, footnote; 168, footnote. Girard Will, Stephen, opinion, 172. Glancy, Jesse, 32. Godey, Louis A., 234-5. Godey's Lady's Book, 243 ; 255. Gordon, Governor, 15. Gordon, Judge David F., 155. Government, Cabinet (see Cab- inet government). Government, Quaker experi- ment in, 7. Graham, Judge James H., 168, footnote. Grand Jury, Duty of, 102-3-4. Great Duck-River, 10. Gregg, Andrew, 57 ; 58. Green, Dr., 235. Greenwich Street, New York, 36; 37- Grier, Judge Robert C, 124. Griffith, of Nannau, 4. Griggs, John, 234. Growden, Judge, 10; 11; 12. Gubernatorial office, The, of Pennsylvania, relation of to politics, in 1820-3, 57; pro- posed Constitutional restric- tions on, in 1833, 90-91 ; changes of powers of, 119- 20; and the elective judici- ary (see Elective Judiciary, The). Gwynedd, 3; footnote, 13. Habeas Corpus Act, i. Haines, Judge Townsend, 168, footnote. Hall case. The, 120-124. Hall, Thomas, 16. Hamersly, Robert, Jr., 32; (?), SO. Hamilton, Governor, 17. Hamilton, G. P., 231. Hamilton, John, Jr., 225. Hanover Square, New York, 36. "Hardwicke," 245, footnote. Harford (Haverford), 12. Harpers, The, 40. Harrisburg (see Harris, John), county-seat, 24; aim to make it a national capital, 25 ; convention at, 73. Harrisburg Chronicle, The, 77 ; 85-. Harrisburg Convention, 72,. Harrisburg {The) Journal and The Weekly Advertiser (see Pennsylvania C h r n i c I e) started, 25 ; bought by Lewis & Prague, 25. Harrisburg (The) Monitor and Weekly Advertiser, suc- cessor to the Chronicle, 25. Harris, John, and Harrisburg, 16; John, Jr., 24; growth of town of, 24; ambition to make town national capital, 25 ;. 34- Harris' Reports, error in re- garding Chief Justice Black, 196; 200. Hart, Professor, 235. Haverford (see Harford), 13. Hayes, Judge Alexander, 130. Hegins, Judge Chas. W., 168, footnote. INDEX 273 Hepburn, Dr., 105. Hepburn, Judge H., 163. Hepburn, Samuel, 49. Herrick, Judge, 59. Hiester, Colonel Joseph, can- didate for Governor, 47, also footnote ; 53-4 ; efforts to conciliate, 57. High-Street-Wharf (Market), II. Hirst, W. L., 225. Holt, of Buchanan's Cabinet, 254- Home Journal, The, 243 ; 253- Howell, King, the law-giver of Wales, 3. Hoorkill-River (Lewis River), 10. Hudson (North) River, ;i7. Huntingdon County, 119; 160. Huston, Justice Charles, 68; 170. Hutton's Lane, 11. Impartial Recorder, 42. Imprisonment for Debt, first steps to abolish, 91. Indian War, pictured in "St. Clair's Defeat," a poem by Maj. Lewis, 25-29. Indiana County, 119. Ingersoll, C, 225. Ingersoll, Charles J., 70; 71; 156; 159- Ingersoll, E., 225. Ingham, S. D., 57; 66; 72; Gov. Porter on, 76, foot- note; 127; 128-9, footnote. "Institutes" of Wales (see Laws and Institutes of Ancient"). International Law (see Law, International). Iowa, 145. Iowa Territory, early trial in, 118-19. Ireland, strife in, 8. Irish Papists, 15. Jackson Democrats (see De- mocracy). Jackson, General Andrew, vic- tory of, at New Orleans, 34; 65 ; Presidential inaugura- tion of, 66; and the U. S. Bank, 71-2; 73; his Presi- dency due to Pennsylvania, 74; 77; and Governor Wolf, 124; eulogy on, by Judge Lewis, 133-4; Chief Justice Taney on, 134-6. Jamaica, 10. James II, favors Pennsylvania, 7; 8. Jayne's Hall, 236. Jefferson, Thomas, letter to, 31-2; letter from, 32-3; 37; letter of, on Federalist and Democratic tendencies, 52-3 ; 55; 66. Jessup, Judge William, 152, footnote; 164. Johnson, J. P., 225. John, son of Griffith, of Nan- nau, 4. Johnston, Governor, 148. Johnston, Henry, 225. Jones, Horatio Gates, 225. Jones, Judge Joel, 163. Jones, Judge J. Pringle, 152, footnote; 154; 168, footnote. Jones's-Lane, 11. Jordan, Judge Alexander, 168, footnote. Judges (see President Judges). Judicial Campaign, 167 ; local judges elected in, 168; 169- 79-. Judicial Candidates (Supreme Court), compared, 165-6; 169-70. Judicial Conventions, nomina- tions in, 163-4; 169. Judicial Districts, growth of, in Pennsylvania, 99; list of, 154-5; list of, also list of judges in, 168, footnote. Judicial Non-residence, 129, footnote; 153. Judiciary, The, Jefferson on, 53 ; life-tenure of, in Penn- sylvania, 68-9; 120; (see Elective Judiciary) ; salary increase, 148; compensation of, 150; salaries of, in Penn- sylvania, in 1849, 152, foot- note; ability of, 154; list of, 154; history of, 157-8; con- vention to elect (Supreme Court), 161 ; conventions for (Supreme Court), 163-4; lo- cal elective, 1851, 168, foot- note. Judiciary Committee's report, 274 INDEX 87-8; report of on elective judiciary proposals, 157. Jenkin, Geo., Jr., 225. Juniata, route, 87; county, 119. Jurisprudence, in Pennsylva- nia, 164-5. Jurists, and history, 171. Jurist, The American, 133. Justice of the Peace, report on removal of, 87-8; jurisdiction of, over canal, 95-6. Juvenal, Wm. W., 225. Kane, Robert P., 225. Kansas, admission of, 236 ; 237- 8; (see Lecompton Constitu- tion), 239. Keating, Representative, 80. Keating Resolution, yj. Kekachtanium Hills, 16. Kelly, Judge Wm. D., 154. Kelso, 29. Kennett (Square), 14; Lewis' House, in, 14; The Story of, by Bayard Taylor, 14-15-16. Kent, Chancellor James, 123- 4; "Commentaries" of, 137; on criminal law, 137-8; dedi- cation and tribute to, of Lewis' "Criminal Law" ; last letters of, 139-40. Kent County, 10. Kent, William, son of Chancel- lor, letter of, on the Chancel- lor's death, 140. Kidder, Judge Luther, 152, footnote; 154; 163. Kidder, Senator, 129. Kimmell, Judge F. M., 168. King, Judge Edward, 154; 243. King, Senator, 157. Kinsey, John, Chief Justice, 17 ; "death of, 18. Kirk, T., 21 ; Isaac, Surveyor, 30. Kittoe, Dr.. 105. Kness, H. R., 225. Knox, Judge John C, 152, footnote; 154; 156; 168, footnote ; elevation to the Supreme Bench, 179, also footnote; 231; Lewis on, 233 ; 234 ; becomes Attorney- General and Commissioner to revise Penal Code, 241. Krause, Judge David, 152, footnote; 154; 163. Kreider, Frederick C, 225. Kreiger, Henry, 32. Lacock, Representative, 80. Lancaster County, created ; terms of Act, 15; 17; 58; county, 119; 129; bar of, 148-9; Democracy in, and Judge Lewis, 161-2. Lancaster District, 68; 129; (see District Court of Lan- caster, Special) ; greatest in State, 130; 148-51. Laporte, Representative, 72 ; Speaker, yji- "Law and Equity, The New Library of" (see "Library of Law and Equity, The New"). Law, Ed. E., 225. Law Professorship, at Frank- lin College, 136. Lazv Reporter, The United States, 133. "Laws and Institutes of Wales, Ancient," 3. Lazv Journal, The Pennsylva- nia (see Pennsylvania Lazv Journal, The). Law, Mjlitary, 117; Interna- tional, 117. Lawyers, 12. Lebanon County, 119. Lecompton Constitution, Presi- dent Buchanan favors, 236; (see Kansas); 237; 238; 239; 240; 241. Legislature, The, powers of, 150-1 ; deadlock with the Governor in 1846. Lehigh County, 119; 160. Lehman, Wm. E., 225. Leib, Dr. Michael, 40; ac- count of, 55. Leonard Street, New York, 36. Lewisberry, laid out, 30. Lewis, Major Eli, birth, 18; goes to Philadelphia and learns printer's art, 18; re- turns from Philadelphia, 19; Major of First Battalion, York Associators, 19 ; at Germantown and Wilming- ton; letter of, 19-20; thinks Revolution will succeed, 20; quotes Pope, 20; INDEX 275 letter of, 21 ; marriage to Pamela Webster, 21 ; dis- owned by Quakers for mili- tary service, 21 ; literary ability of and song by, 23- 4; "Tribe of Eli," 23; buys the Chronicle and changes its name to Monitor, verse by, 25; "St. Clair's Defeat." poem by, 25-29; sells his paper to Allen & Wyeth, and returns to Red Lands Valley. 29-30; six children of, 30; portraits of, and of wife, 30; founds Lewisberry, 30; reinstated as an orthodox Friend, 31 ; death of, 31 ; a Fed- eralist, then a Jcffersonian Democrat. 31 ; signs, and is probably author of, letter to Jefferson, 32. Lewis, Eli (2nd), 37; 46-7; 49; 59; 62; 65. Lewis, Ellis, ist. 4; child speaker in meeting, 4-5 ; re- markable letter of. 6-7 ; pre- pares to go to Pennsylvania, 8-9; lands in Philadelphia, 12; at Haverford, and near Concord, 13; Mary Baldwin, second wife of. 14; his home celebrated by Bayard Taylor, 14-15; children of, 14; death of, 16, footnote ; marriage certificate of, 18, footnote. Lewis, Ellis, 2nd, or junior, 14; 15; goes to Lancaster County, 16; his marriage, "high living," and exemplary life, 17. footnote; son, Eli, born, 18; 19. Lewis (Chief Justice), Ellis, 3rd. birth of. 30; inherits JefTersonian letter and princi- ples, 33 ; early education of, 33 ; is apprenticed as printer, and makes bonfires for the victories of 1812-15. 34: dis- content of. and escape of, from printing office. 35 ; inden- ture of, 35 ; finds work in New York as Henry Van Ellen- burg, 37 ; letter of, from New York, 37-8 ; uses name, E. W. Lewis also, 38; thinks of shipping as a sailor. 38-9; gets work on the Courier, 39; his early struggles in New York, 39, footnote; a hard student and worker, 40; and late books, 40; studies Latin and French, 41 ; letter from; ill-health of, 41 ; is discouraged and de- sires to change, 41 ; offers to settle with VVycth, and goes to Frederick City, Maryland, 41; letter from, 41-2; studies medicine, 41, footnote; at- tempts to start paper in Westminster, Maryland. 42 ; love of poetry ; skepticism of, 42 ; buys a share in Torbert's Gazette, 43-4; buys out Tor- bert and declares for Find- lay, 45 ; believes a compila- tion of laws would sell well, and thinks of the law, 44-5; 46; desires offices of Reg- ister and Recorder, 47 ; makes public speech, 47; finally sells Gazette. 48; de- votes himself to the law, 48; is admitted to the bar. 49; marriage of, to Miss Jose- phine Wallis. 49-50; pros- pers in practice, 50; supports Shulze. 51 ; position of, as a local independent. 55 ; cham- pions Gov. Shulze, is ap- pointed Deputy Attorney- General for his district, 58; lives in Wellsborough, threat- ened with diseased limb, 59- 60; home of, "Father of Wellsborough bar," 60; re- signs part of district. 61 ; influential in establishing United States Court there, 61 ; incident concerning. 61- 2; letter of, on illness, 62; operation on, 62 ; moves to Towanda, 65 ; practice in- creases and becomes a force in politics, 67; and Supreme Court practice, 68-9; letter of, 69; secretary of county convention, 72 ; favors Mc- Kean, 72-3; elected delegate to Harrisburg convention, 73: speech in, 73-4; foils Ingham's plans. 73, footnote; opposes Baltimore conven- tion, 74 ; passed by. for Ma- son, 75 ; independent can- 270 INDEX didate for Legislature, 76; and Ingham, 76, footnote ; speech in Legislature on South Carolina, T] \ and the Keating Resolutions, 79-80- 81 ; member of the Judiciary and Inland Navigation and Internal Improvement Com- mittees, 82 ; two incidents of, footnote, 82 and 83; defends the Governor, 84; becomes Attorney-General, 85 ; ques- tion raised as to holding office of Representative and Attorney-General, 85 ; speech of, on State's relation to the public lands, 86-7; and the Judiciary Committee's re- port, 87-8; gives a printer's toast, 89 ; appoints Wyeth's son as a deputy, 89; incident about his deputies, foot- note, 89; and the Senatorial deadlock, 89-90; and the President Judgeship of the Eighth District, 90; au- thor of first law to abolish imprisonment for debt, 91 ; and condition at time of Jackson's attack on the U. S. Bank, 92 ; opinion of, as Attorney-General, 93-4; Mc- Kean wishes to retire, 96-7 ; attacked in Lycoming Chronicle, 97-8; made Presi- dent Judge of Eighth Judi- cial District, 98 ; letter of, to Van Buren, footnote, 97-8; first court of, at Sunbury, 99; characteristics of, as a judge 100; decisions of, in Supreme Court, loi ; rela- tions to land titles, loi ; and politics, footnote, loi ; re- versals and reaffirmations, 102; home of, at Williams- port, 102 ; a charge of, 102- 3 ; and the Earls Murder Case, 103 to 116, inclusive; a sentence by, 114; and Medical Jurisprudence, 116- 17; on Board of Visitors to West Point, report of, 117; amusing incident illustrat- ing how widely he was known as a jurist, 118-19; term of limited, date of, 120; notable case before, 120-124; a vestryman of Protestant Episcopal Church at Williamsport, footnote, 121 ; writes sketch of Gover- nor Wolf, 124; letter of, to Van Buren, 125-6; relation of, to Wolf, 125; desire for political unity, 126-7; attack on, by S. D. Ingham, 127-8; denies being candidate for the National Supreme Bench, footnote, 128-9; nominated President Judge of Second (Lancaster County) District, 129; nominated for U. S. Senate, 129; becomes Presi- dent Judge at Lancaster, 129; special "District Court" merged into court of, 131 ; affirmations and reversals of, in Supreme Court, 131-2; on unconstitutionality, 132; and the Reigart case, 132 ; opin- ions of, published, 133; edi- torial work on the Penn- sylvania Lazv Journal, and "New Library of Law and Equity," 133 ; eulogy by, on Andrew Jackson, 133-4; let- ter of Taney to, on eulogy, i34"5-6; as Professor of Law and Medical Jurispru- dence, 136 ; and Qiancellor Kent on need of a work on Criminal Law, supplemen- tary to Kent's Commentaries, 138; and Blackstone on same, 138, footnote; dedi- cates his "Criminal Law" to Kent, 130; letters to, from Kent, 139-40; degrees of Doctor of Laws conferred on, by Transylvania Univer- sity and Jefferson College, footnote also, 140-1 ; degree of Doctor of Medicine by Philadelphia College of Medicine, 140- 1 ; sketch of, and portrait of, in the United States Magazine and Demo- cratic Reviezv, 141 ; letter of, on politics, to Vice-President Dallas, 141-7; proposed in- crease in salary of, 148-51 ; proposes substitution of soli- tary confinement for capital punishment, 148; address to, from Lancaster Bar, 148-9; INDEX 277 reply of, 149-51 ; powers of, for dispatch of business, 152; and the elective judiciary principle, 153; a tribute to, 161 ; nominated for Supreme Bench by Lancaster Demo- crats, 161-2; President of the Williamsport and Elmira Railroad, 162; nominated, 163 ; Editor Forney on, 163- 4; delegates from his home counties voted for, 164; and fellows-candidates, 165; and the campaign, his printer's apprenticeship referred to, 166; vote on, and election, 167; gets six-year term, 168; 169; 170; large number of opinions assigned to, 171 ; first opinion of, 172; on cor- porations, 172-3 ; letter to, 'from Buchanan, 173, foot- note; miscellaneous selec- tions from opinions of, 174; on land-titles, 175; various opinions of, 176-7 ; on taxa- tion, and the Sharpless case, 178; letter to, from Bu- chanan, 179, footnote; a medico-legal incident, 180-1 ; conservative attitude of, 181 ; miscellaneous selections from opinions, 181-2; on creditors and debtors, 183 ; letter to, from Minister Buchanan in London, 183-6; removes to Philadelphia, at West Penn Square, 186; letter from Minister Buchanan, 187-8; and a trip abroad, 187 ; on competition, 189; character of later opinions of, 189; en- tire opinion of, 191-4; be- comes Chief Justice, 195 ; controversy on commission of as Chief Justice, 196- 201 ; and the Thomas V. Crossin case, 202-3 ; and railways, 204; other opinions of, 204-5 ; appointment of son of. 205, footnote ; further opinions of, 206; sketch of, by David Paul Brown, 207- 8; and theology, 207, foot- note; further opinions of, 209-10; influence of, 209-10; on railroads, 2to-ii; other railway opinions of, 212-13 ; on "charitable uses," 213- 14; and taxation of ministe- rial salary, 216-17; on juror and Judge, 217-18; and termination of his service, decision of by Woodward, 218-222; renomination of, 223-4; letter on, from mem- bers of Philadelphia Bar, 224-5; letter of declination from, 226-7; oldest in judi- cial service in the State, 227; describes his service, 227; his declination looked upon by the Pcnnsylvanian as a public calamity, 228; char- acter of work of, 229; men- tioned for the National Su- preme Bench by Forney, 229; reception to, at Pitts- burgh, 230-31 ; sketch of, footnote, 230; William Wil- kins on, 231-2; response to toast by, 232-3; hope of, to visit the South and distant lands, 232; dined at the "Auld Lang Syne Party," 234; and the "Auld Lang Syne Party" edition of Burns, 234; portrait in group of "Auld Lang Syne Party," 234-5 ; presides at Demo- cratic mass-meeting, 236 ; on Kansas and the questions bearing on its admission, 237-8 ; on Buchanan's course, 239-40 ; becomes Commissioner to revise Pen- al Code of Pennsylvania, 241-2-3; cultivates the Muse, in poem, "Pinehome," 243-4; children of, 244-5, footnote ; letter of, to Chief Justice Taney, on Buchanan's course, 245-7; o" self- preservative powers of the National Government, 246 ; on Judge Story, 246; letter of, advocating force with a qualification, 247; letter of, to Stanton, 248-9; letter to, from Stanton, 249-50; con- sidered the Prigg case the cause of most of the diffi- culties on national affairs in i860, 251, footnote; shows advancing age, 252; habit of work, 251 ; described, 278 INDEX when at a White House function, 252; aids Union cause, 252-3; takes Euro- pean tour, 253; letter to George P. Morris, 253; re- moves from West Penn Square to South Fortieth Street, 254; letter to, from Buchanan, 254 - 5 ; counsel sought by Buchanan, on au- tobiography, 254; poem by, "Time and the Acorn," 255; philosophy of, 255; poem by, on "Property, Fame, Love and Religion," 255-7; acquaintance of with Charles Dickens, 257; church relations of, 257, footnote ; letter to, from George W. Childs, 258 ; death of, and re- marks on, by George W. Childs, 258-9; meeting of Bar of Philadelphia regard- ing, 259; Chief Justice Thompson on, 259-60; Judge Anson V. Parsons on, 260; resolutions on, 260-61 ; George W. Biddle on, near his idea of "a perfect judge," 261-3; Hon. William A. Porter on, 262 ; David Web- ster on, 262 ; funeral of, 262-3 ; tomb of, 263 ; fam- ily of, and portrait of, 263, footnote. Lewis, Mrs. (Chief Justice) Ellis Lewis (see Wallis, Jo- sephine) ; death of, 263, footnote. Lewis, Ellis (4th), 245, foot- note. Lewis, E. W. (see Lewis, Chief Tustice Ellis (3rd) ). Lewis, Elizabeth, 245, footnote. Lewis House, in Kennett, 14- 15-16. Lewis, James, 30; 34; 2,7; 46; 47-. Lewis, Ann (see Mrs. (Cap- tain) James Wiley). Lewis, Major James (son of Chief Justice), 245, footnote. Lewis, son of John, of Nan- nau, 4. Lewis (Miss) Josephine, 245, footnote; 263, footnote. Lewis (Mrs.) Josephine (see Mrs. Chief Justice Ellis Lewis) ; (sec Wallis, Jo- sephine). Lewis, Mary J., 248, footnote. Lewis, Owen (see Robert Lewis), see footnote, 4; Ellis, son of, 5 ; imprison- ment of, for holding meet- ing, 7. Lewis, Mrs. Pamela, wife of Major Lewis (see Weljster, Pamela), death of, 30-1. Lewis, Rankin, 61. Lewis, Rees, 4, footnote. Lewis River (Hoorkill), 10. Lewis, ap, or son of, Robert, 4. Lewis, Dr. Webster, 30; 60; notable operation by, 62; 65. Lewis, William D., 234. Lewis-Town, 10; 12. Lex, Charles E., 225. Life-tenure of Judiciary, 68. "Library of Law and Equity, The New," 133. Lincoln, President, 245. Little Duck-River, 10. Lloyd, David, Speaker, 12; 13; 15- Lloyd, Thomas, 13. London, Quaker meeting in, i ; II ; diplomatic circles and in- cidents of, in Buchanan's letter, 183-6; the "season" in, described in Buchanan's letter, 187-8. Long, Judge Henry G., 168, footnote. Longacre's Portrait Gallery, etc., 124. Loomis, Attorney, of Pitts- burgh, 231. Losey, Titus, 118. Louisbourg, 24. Louis XIV, 8. Louis XVI, 24. Louisiana, 144. Lowrey, Hon. James, 60. Lowrie, Judge Walter H., 163; 165; 166; 167; gets twelve- year term, 168; 169; 170; 22,3- Ludlow, James R., 225. Ludwig, Dr. Luzerne County, 58. Lycoming Chronicle, The, 97. Lycoming County, 43 ; 61 ; judgeship in, 89-90; courts in, 130. INDEX 279 Lycoming Gazette (see Gazette, The, of Williamsport) ; 97. Maclay, Senator William, pro- poses Harrisburg for Na- tional Capital, 25. Maderas, 10. Magna Cliarta, 7. Margaret, daughter of Robert ap Owen, and wife of Row- land Ellis, 4. Mail Stage, The Swiftsure, 36. Mallory, Garrick, 69; 173. Market-Towns, 12. Marks, General, 71. Marr, Alem, 49. Mary-Land, 10. Mason, Kliphalct, 72 ; 75. Maynard, Judge, 163. McCall, Peter, 225. McCandless, Wilson, 133. McCartney, Judge Washington, 168, footnote. McClure, Col. A. K., 155. McClure, Judge Wm. B., 1.S2, footnote; 168, footnote; 231. McElroy, W. J., 225. McFesson, John, 16. McKean, Gen. Samuel, 65-6; account of, 66, footnote ; 69 ; made Secretary of the Com- monwealth, 70; 71; 72; 74; on State politics, 76; 84; 85; plans to retire Lewis from political field, 96-7. McKean, Chief Justice, 24; 34; leadership of the Democratic Republicans in Pennsylvania, 53: 71; 170. McMeans, Col., 58. McMichael, Morton, on Chief Justice Lewis, 227; 234; 258. Medical Jurisprudence, 116-17; Professorship of Law and, 136. Medical Sciences, American Journal of, 132. Mendenhalls, The, 13, footnote. Meredith, Hon. Wm. M., 164. Merion (Merioneth), 12. Merioneth, Pa. (see Merion). Merionethshire, 3; 4; 7. Mexico, 144; 147. Middle Classes, 4. Mifflin County, 119; 160. Military Law (see Law, Mili- tary). Miller, Andrew, 225. Mills (Fulling, corn, etc), 10. Mississippi, and the elective judiciary, 160. Missouri, 145. Missouri Compromise, The, 145; 147- Mitchell, 235. Mitchell, Dr., no. Mitchell, Gen. Wm. B., 92. Money, in Northern Pennsyl- vania, in the '20s, 49. "Monster, The" (see Banks, United States). Montferat, 10. Montgomery County, 119; 130. Montgomery, John T., 225. Moore's case, 249. Morris, Gen. George P., 40; 253- Morris, P. P., 225. Morris-Lane, n. Morrison, Mr., 109. Mother-Kill or Dover-River, ID. Mount Mcllick, Queens Coun- ty, Ireland, 8; 13. Muhlenberg, Henry A., 84. Muhlenberg, Rev. Dr. Henry M., 5«. Murder case. A, 102-3-4. Muskmellon-River. Mulberry-Street-Wharf, il. Nannau, House of, 3 ; Hall, seat of the Vychan or Vaughan family, 3-4. National Convention, The Democratic, 137. National Politics, 126 (see Politics) ; letter on, in 1847, 141-47. National Telegraph Lines, 241. Neshaminy-River, 10. Nevis, 10. New Berlin. 102. New Castle County, 10; Town, 12. New-England, 10; 72. New-Found-Land, 10. Newington (near London), meeting at, 6. Newlands, Nicholas (see New- lin, Nicholas). Newlin, Elizabeth, 14. Newlin, Nathaniel, 13. Newlin, Nicholas (Newlands), 13. New-York, 10. 28o INDEX New York, in 1815-16, 36-7; commercial rivalry and finan- • cial center, 70; and U. S. Bank, 71 ; and Vice-Presi- dency, 74; and the elective judiciary, 160. NeviT York and Erie Railroad, 162. New York Courier, 36; 39. New York Daily Advertiser, 39- Non-residence and the Judi- ciary (see Judiciary, The) ; (see Elective Judiciary, The). Northampton County, 119; 160. North American, The, 227. North Branch route, 87. North River (see Hudson), Northrup, George, 225. Northumberland, 55 ; 99 ; coun- ty, 119; 130. Old-England, 10. Olmsted Case, The, 79-80-81. Opinions (see Lewis, Chief Justice Ellis (3rd) ). Opinions, Supreme Court, na- ture of, 171. Oracle (The) of Dauphin and Harrisburg Advertiser, suc- cessor to the Monitor, 29; desires an apprentice, 29- 30. Ordinance of 1787, The, 142; 144. "Ostend Manifesto, The," 188. Overfield, Senator, 157. Overton, 69. Owen, Lewis (see Robert, Lewis), meeting at home of, 4-5- Owen, Rowland, statement by, 4-5- Packer, W. F., canal superin- tendent, 97; Governor, 102; 223; 241. Pancoast, 235. Park Row, New York, S7- Parsons, Anson V., 97; 104; Judge, 154; 225. Parties, Political, rise of, 7; in U. S., in 1823, 52-3. Patriot, The Baltimore, 132. Patton, Judge Benjamin, 154. Patton, William, 60. Pearl Street, New York, 36; 37. Pearson, Judge John J., 154; 168, footnote. Pedigree of David Lewis, by P. S. P. Connor, 4, foot- note. Pemberton, Mrs. Phoebe, 7, footnote. Penal Code (Pennsylvania), revision of, 241-2-3. Penn, Admiral, i. Penn, Governor John, 19; on Harrisburg, 24. Pennsylvania, Quaker experi- ment in government in, 7; created by Charles, and fa- vored by James, 7; point of attack, taken over by the King, later restored, 8; (see Delaware River, explora- tions and settlements on) ; produce in, 10; (see Phila- delphia) ; capitol an ale- house, and private houses, 12 ; market towns, 12 ; poli- tics in, 40; settled part of in 1820, 42-3 ; political changes in, 53-4; territorial relations of parties in, 54-5; relation of its gubernatorial office to its political system, 57; coun- ties of which voted for the Federalist, Gregg, 58; guber- natorial convention of, 66; life-tenure of judiciary in, 68-9; financial center, and transportation system, 70 ; and the Vice-Presidency, 70; U. S. Bank in politics of, 71 ; Democracy, 72; and New England, 72; to nominate her own Vice-President, 72; 74; and Van Buren and Wilkins, 77; "Voice of," 78; and the Olmsted case, 79-80; canal system of, 87-8 ; guber- natorial and other changes in, 120; political conditions in, 125-6 ; education in, 125 ; banks and specie payments in, 128, footnote ; business of District Courts in, for 1841- 50, 130; relative to Missouri Compromise, 145-6; judicial salaries in, 152, footnote; and judicial non-residence, 153; ability of judiciary of, INDEX 281 154; list of judges in, and districts in 1849, 154; (see Elective Judiciary, The) ; jurisprudence of, 164-5; judicial election in, 167; re- vision of Penal Code of, 241-2. Pennsylvania Chronicle (The) and York JVeekly Advertiser, 23; removal of, to Harris- burg, 24. Pennsylvania Law Journal, The, 133. Pennsylvania Railroad, North- ern Central Line (see Wil- liamsport and Elmira Rail- road). Pennsylvanian, Forney's, 160; on Chief Justice Lewis' re- tirement, 228. Pennsylvanian, The Daily, 123. Penn, William, speaks in Quaker meeting, i ; 2, foot- note ; arrest of, 7 ; receives letter from James, 8; 13. Perkins, Samuel C, 225. Perkins, Samuel H., 225. Perry County, 119. Petition of Right of 1629, 7. Petriken, Hon. David, 61. Philadelphia County, 10; city, in 1698, 11; 12; original bounds (see Counties, Orig- inal) ; city, the second, 36; Federalists in, 40; city, 58; and financial dominance, 70 ; and U. S. Bank, 71 ; county, 119; 130; Judges of, 152, footnote ; Democratic mass- meeting in, 236. Phillips, Henry M., 225. Phillips, J. A., 225. Piatt, Wm., Jr., 97. Pierson, Lydia Jane, 83, foot- note. "Pinehome," 243-4. Pittsburgh and the canal, 87 ; courts of, 130. Plumbe, 141. Poems of Judge Lewis, 243- 4; 255; 255-7- Poinsett, Secretary of War, 117. "Political Portraits with Pen and Pencil," 141. Politics, situation in Pennsyl- vania in 1820, 57; 125-6; (see National Politics). Polk, President, 173. Pollock, Governor, 198. Pope, The, 123. Population, distribution of, in Middle States in 1820. Porter, Gov. David R., on Ing- ham, 76; 119-20; letter of, 127; nominates Lewis for Second District Bench, 129. Porter, James Madison, 159. Portrait of Judge Lewis, 141. Poster, Supreme Court Polit- ical, 167, footnote also. Potter County, 167. Power, Dr. W. R., 97. Powys, 3. Presbyterian-Baptist case (see Hall Case, The). President Judges' terms of, 120; list of, in 1849, 154-5; list of first elective, 168, foot- note. Price, Eli K., 225. Price, Wm. S., 225. Prigg's case, 249; 251 and footnote. Primogeniture, law of, in Brit- ain, 4. Princeton College, footnote, 140-1. Prison, Arch-Street (Philadel- phia), 91. Produce of Pennsylvania (see Pennsylvania). "Property, Fame, Love and Religion," a poem, 255-7. Public Ledger, The, on Penal Code revision, 242. Quaker experiment in govern- ment, 7. Quaker-meeting, account of, by George Fox, i ; numerous in Europe, 2; account of, by Rowland Owen, 5. Queen Anne's accession, 8. Rowland ap Ellis (see Ellis, Rowland), 4. Radnor. 12. Randall, J., 225. Ranklin, John, 16. Rawie, Wm. Henry, 221;. Read. Almon H., 87. Red Land Vallcv. 16. Reed. Wm. B., 225. Reigart Case, The, 132. Republican Argus, The, 55. 282 INDEX Republicans, Democratic, 52 ; 54- Republican, Federalist, 52; 54. Resolutions, in Legislature, force of, 78. Review, The Democratic (see Democratic Review, The). Ritchie, Mr., 146. Ritner, Joseph, 75. Robert, Lewis (see Lewis, Owen ; Owen, Lewis ; Lewis ap Robert), 4. Roberts, Mary, mother of first Ellis Lewis, 13, footnote. Robert, Owen, second husband of Ellis Lewis' (first) moth- er), 8; 13. Robert, ap or son of, Owen, footnote, 4. Roberts T., 23 ; company, 25. Rogers, Justice Molton C, 68; 152, footnote; 163; 170. Roman Catholics, 123 ; and politics, 166. Rush, Richard, 84. Salaries (see Judiciary, The, salaries of). Saltetudeous, 10. Sartain, 235. Sassafras-Street, 11. Sasquehanna, 15. Saturday Evening Club (Phila- delphia), 254. "School-Kill-River," 10. Schmolze, 235. Schuylkill County, 119; 160. Scotland, Act of Union, 8. Second Judicial District, The (see Lancaster District). Second Street, 11. Senate, The, of Pennsylvania, and the Penal Code, 242. Senatorial (U. S.) election in Pennsylvania, 1833, 84. Sentinel, The American (see American Sentinel, The). Sergeant, John, 84. Sergeant, Thomas, 56; Justice, 170. Sergeant, Wm., 225. Serrill, S., 225. Settler, The Bradford, 65 (see Bradford Settler, The). Severn River, 3. Shaler, Judge, 231. Sharswood, Judge George, 154; 170. Ship-Yards (see Turner, Rob- ert), II. Shorters-Alley, 11. Shulze, Rev. Christopher E., 57. Shulze, John Andrew, can- didate for Governor, 50; 55; account of, 57-8. Shunk, Governor, 155; 156. Sikes-Alley, 11. Simpson, , 43. Slavery, letter on, 142-7. Small, Senator, 157. Smith, Judge Charles, 245, footnote. Smith, Attorney-General Fred- erick, 61; 64; 68; death of, 69. Smyser, Judge D. M., 168, footnote. Snowdon, Thomas, 40. Snyder, Governor, 34; account of, S3- Somerset County, 119. South Carolina, 69; 77; 80; 245-7; 248-9. Southern States, 248-9. Sovereignty, Chief Justice Lewis on, 238. Spencer, J. A., 225. Stanton, Attorney-General Ed- win M., 248; letter of, on affairs in i860, 249-50; 254. State Capital, at Lancaster, 23. State House, New, 17. "State House Row," 71. State Street, New York, 37. St. Christopher's, 10. St. Clair, 29. "St. Clair's Defeat," a poem by- Major Eli Lewis, 25-9. Stevens, Thaddeus, 83; foot- note; 133; 178. Stevenson, 66; 71. St. George's-River, 10. St. Jones's or Cranbrook- River, 10. Stokes, William Axon, 223, and footnote. Story, Justice Joseph, 251 ; (see Prigg Case). Strong, Judge William, 223; 224; sketch of, 226; 230. Stroud, Judge George M., 154. Sunbury, 43; 61. Sunbury District, 67. Supreme Court, Provincial, meeting-place, etc., 12 ; dis- tricts of, 67-8; character of. INDEX 285 68-9; State, salaries of, in 1849, 152, footnote; first con- vention for election of, 161 ; Democratic ticket for, 163 ; vote on, 167; meeting of first elective court, 167-8; lots for terms, 168; residence of new members in Philadel- phia, 168; comments on, 169-70; comments on justice of, and opinion, 171 ; first session of new elective, 171 ; Buchanan on appointment of Judges of, 179, footnote ; (see chapters on Lewis as Justice and Chief Justice) ; Justice Lewis on, 189-90; (see Chief Justiceship) ; (see commissions of Justices and Chief Justice) ; home of, 202 ; changes in bench of, 215; vote on nomination of a justice of, 224. Sussex County, 10. Susquehanna (see Sasquehan- na), 17; 43. Swartzwelder. Representative, and the elective judiciary, 159- Sweeney, George, 61. Taney, Chief Justice Roger B., letter of, on Jackson, 134-6; 223 ; 229 ; rumored retire- ment of, 245 ; letter of, on the outlook in i860, 250-1 ; on his rumored resignation, 251- Tariff, The, 69 ; 79. Taylor, Dr. James, 97. Taylor, Judge (jeorge, 152, footnote ; 168, footnote. Taylor, President, 148. Telegraph Lines, National (see National Telegraph Lines). Tenth District, The, and the elective judiciary), 155. Tenure of office, life and lim- ited, 120. Territories, The, 142-7 ; 237- 8. Texas, 145. Thayer, M. Russell, 225. Thomas, Gabriel, book of, on Pennsylvania and influence of, 8, footnote; 9; as guide- book, 10; II ; 12. Thompson, Judge James, 163; 170; 223; Chief Justice, 230. Thompson, Judge Oswald, 168. Tilghman, Chief Justice Wil- liam, 170. "Time and The Acorn," 255. Tioga County, 64. Tioga Pioneer, The, 61. Tod, Justice John, 6i8; 69. Todd, James, 32. Toleration Act (under Wil- liam), 7. Tontine Coffee House, New York, 37. Torbert, J. K., 43 ; 46 ; account of, 48. Toucey, of Buchanan's Cabinet, "the noblest Roman of them all," 254. Towanda, 64, footnote also; seat of McKean interests, 65 ; 72. Towanda Banner, 73. Townsend, H. C, 225. Transportation system of Pennsylvania, 70; legal ques- tions on, 87-8. Treasury Department, 127. "Tribe (The) of Eli," 23; 31; 49. Troubat, Francis J., 133. Turners-Lane, 11. Turner, Robert, ship-yards of, II. Tyler, Edward, 23. Typographical Society of New York, 40. Unconstitutionality, Judge Lewis on, 132. Union County, 99; 119. Union, Md., 41 ; 42. United States Bank (see Banks, United States). United States, Capital of, 23; (see Capital, National). United States', The, and the States' relations to public lands, 86-7 ; to Territories, 238. United States Lazu Reporter, The, 133. United States Magazine and Democratic Review, The (see Democratic Review, The, of New York). Upland or Chester-River, 10. 284 INDEX Van Buren, 69; and the finan- cial center, 70; and the Vice- Presidency, 72; 73; 74; letter to, by Judge Lewis, 125- 6. Van Buren-ites, 84; 126. Vandyke, James C, 225. Van Ellenburg, Henry (see Lewis, Chief Justice Ellis (3rd)). Van Horn, Espy, preceptor of Lewis, 48; 59. Vaughan or Vychan family, 3. Vaughan, Sir Robert, 3. Vaux, Mayor Richard, 235. Vaux, Robert, 82. Vine-Street, 11. Vine-Street-Wharf, 11. Virginia, 10. "Voice of Pennsylvania, The," 78. Vychan family (see Vaughan). Wadsworth, , 50. Wales, scenery in, 2-3 ; "An- cient Laws and Institutes of," 3. Wales, South, 3. Wallace & David, publishers, 133, Wallers-Alley, 11. Wallis, Elizabeth, wife of Jo- seph J., 50 ; 59 ; 63. Wallis, Miss Josephine, 49; (see Lewis, Mrs. (Chief Jus- tice) Ellis). Wallis, Joseph Jacob, 49. Wallis, Samuel, 43 ; 49. Wall Street, New York, 36; 37- Wain, Edward, 225. Walnut-Street, 11. War Department, 117; 127. War of 1812, bonfires, 34. Washington City, travel to, 36; and U. S. Bank, 71. Washington, President, 23. Washington Street, New York, 37- Watts, Judge Frederick, 154. Wayland, President, 124. Webster, David, 133, footnote; Commissioner on Revision of Penal Code, 241. Webster, Jane Brinton, 21, footnote. Webster, John, 21. Webster, Pamela, marriage to Eli Lewis, 21. Welsh ancestors, 1-8. West Branch route, 87. Westcott, G. G., 223. West Indies, produce of, 10. Westminster, Md., 41. West Point, Board of Visitors, 117. Wharton, Francis, 225. Wharton, G. M., 225. Wherries, 12. "Whig," 1 ; rise of, in Eng- land, 7; in America, 148; in Pennsylvania, 155 ; Judicial Convention, 164; judges in Pennsylvania, 168, footnote. White, Judge R. G., 168, foot- note. White, Judge Thomas, 155. Wickersham, 235. Wiley, Captain and Mrs. James Wiley, 245, footnote. Wilkins, Ross, 73. Wilkins, Judge William, 55; 56 ; 71 ; Senator, mentioned for Vice-President, 72 ; 73 ; nominated, 74; voted for by Pennsylvania, 77 ; chairman of Judiciary Convention, 163 ; Judicial address of, 164-5 5 230-1 ; on the elective ju- diciary, 231-2. William and Mary, 7; later over Pennsylvania, 8; at- tempt to displace Catholics in Ireland with Protestant settlers, 8. Williams, Henry J., 225. Williams, Joseph, 97. Williams, Judge, of Pittsburgh, 229. Williamsport, 43; the Gasette of, the Advertiser of, 43; 46; United States Court at, 61. Williamsport and Elmira Rail- road, 162-3. William Street, New York, 36; 37 ; 39- Willis, Nathaniel P., 253. Williston, Judge Horace, 152, footnote; 154. Wilmot, Judge David, 168, footnote. Wilmot Proviso, The, 145 ; 147. INDEX 285 Wilson, Judge A. J., [A. S.?l 163. Wilson, Judge Abraham S., 152, footnote; 154; 168, foot- note. Wilson, John, 17. Wilson, Ruth, 17. Winion River, 2. Wisconsin, 118. Wolf, Governor George, 66 67; 6g; 70; 72; Ty, 75; 82 hears Lewis defend him, 84 sketch of, referred to, 124 and President Jackson, 124 125. Woodward, Judge George W., 152, footnote; 154; 163; 170; elevation of to Supreme Bench, sketch of, 173 ; and the commission as Chief Justice, letter of, 198-9; 231; Lewis on, 233. Woodworth, Samuel, 40. Wool-carding, 19, footnote. Wyeth, John (see Oracle (The) of Dauphin), 29; de- sires printer's apprentice, book-store of, at Harris- burg, 33-4; secures Ellis Lewis as apprentice ; inden- ture by, 34-5 ; offers reward for escaped apprentice, 35 ; book-maker, 37, footnote ; receives letter from Lewis, 41- Yeates, Justice Jasper, 170. York County created, 17; town, 20; capital of the United States, 23 ; Franklin's Gazette published at, 23 ; Recorder, 46 ; county, 1 19. York Recorder, 31 ; 46. York Weekly Advertiser (see Pennsylvania Chronicle). ,vc&rulTV ^ft 'OOO 930 489 Iilllllliilililiil!ilillillt!lllnl!llllll!ll!lilllillllllilllllll!