Page:The Green Bag (1889–1914), Volume 03.pdf/41

 22

The names of Tench Francis and Andrew Hamilton must be mentioned, both Attor neys-General, and most astute and able men. Tench Francis gave Edward Shippen, Chief-Justice afterward, his first legal teaching; and he was one of the roots of a family tree that bore numerous distin guished lawyers, -- such as the Tilghmans, and to-day the Hon. Thomas Francis Bay ard. Andrew Hamilton is known most widely through his voluntary services in a case in a neighboring court. The most celebrated case in the colonial history was the trial of John Peter Zenger, printer, for Libel, before the Chief-Justice of the Supreme Court of New York, the Hon. James Delancey. Andrew Hamilton came from Philadelphia to defend Zenger, and triumphed in so signal a manner that the Corporation of New York demonstrated their gratitude for his unpaid championing of Lib erty's cause and the freedom of the press by presenting Hamilton with the freedom of the city. That day has probably gone. There being no Courts of Equity in Penn sylvania (that were allowed to stay), the skill of the early lawyers was greatly devoted to "getting round " many things. Hence came what has been called the fusion of Law and Equity in Pennsylvania. By this is meant not only the allowing of fraud, mistake, or duress, etc., to be pleaded in actions, but much more besides that is Pennsylvania's original invention and served its end very well in many cases. Naturally, men in those days also, made contracts to convey land at a set future date, and became subsequently desirous to shirk their bargains. There was no means for getting a decree for specific performance. But the lawyers were sensible as well as ingenious. They saw that busi ness necessity compelled some check upon such evasions. They therefore concocted a device for bringing ejectment on an equi table title, and they invented a machine that worked just as effectively as any decree for specific performance. The scholarly attorney who learns this for the first time may feel it

a violent piece of news, and be tempted to call such shifts no fusion of Law and Equity, but merely confusion. When certain Eng lish statutes were mentioned to Caleb dish ing as tending toward a similar fusion, he scouted the idea, remarking, " Nobody 'd be such a damned fool as that! ". And certainly a very natural curiosity is aroused to know how you are going to stir up rem and personam simultaneously in the same vessel of juris diction without exploding it into grotesque and useless fragments. A discussion of these legal inventions in Pennsylvania is reserved for the second number of this account of the Supreme Court. In John Kinsey, commissioned April 5, 1743, the court acquired the fifth profes sional lawyer in fifteen commissioned ChiefJustices! After him, no layman ever sat in that place, though plenty of them sat as asso ciates and in the other courts. Perhaps one layman did come after, — his successor, William Allen, who was undoubtedly a mer chant in this country. But there is a state ment that he was admitted before 1730 in London. This is founded on his father's will, which left him immediately £500 ster ling for his expenses there, — an unusually large sum; and also upon his being once mentioned as " a distinguished barrister in London." An examination of the records in the Middle Temple would settle this ques tion. But at the Middle Temple they'll do nothing for you unless you give them five guineas; and when any man comes whose anxiety to know if William Allen was a law yer or not equals five guineas, the doubt will end. Connected with John Kinsey is an anec dote, here given for its value as a piece of local color. Sir William Keith, the Governor, determined to have a proper Equity Court, all Quakerdom notwithstand ing. In 1720 he instituted his short-lived Court of Chancery, which John Kinsey one day in 1725 was obliged to attend in the course of his business. Appearing with his hat on, like the good Quaker that he was, it