The life of Chief Justice Ellis Lewis, 1798-1871 : of the first elective Supreme Court of Pennsylvania

Front matter

fuBRARV I SAH DIEGO us J

<h'2,nOD

1798-1871

Preface

Chapter I. His Welsh Ancestors Follow Penn, and Three Generations Help to Build Up the New Commonwealth i

Chapter H. His Father, Major Eli Lewis, Founds the First Newspaper at Harrisburg, and the Boy, Orphaned at Nine Years, Becomes Printer's Apprentice on the Same Paper 23

Chapter HI. Young Lewis Runs Away to New York and Baltimore, and Finally Settles as Co-Editor of "The Gazette," at Williamsport, Pennsylvania 36

Chapter IV. The Young Editor Studies Law, and Is Active In Public Affairs ; His Ability as an Independent Student 46

Chapter V. The Political Situation in Pennsylvania; His Championship of Governor Shulze; He Becomes the Deputy Attorney-General for Lycoming and Tioga Counties ; A Disastrous Illness 52

Chapter VI. He Settles at Towanda, and Is Sent to the Legislature as an Independent, But Supports Governor Wolf 64

Chapter VII. Governor Wolf Makes Him Attorney-General. . 84

Chapter VIII. He Becomes President Judge of the Eighth Judicial District, Composed of Northumberland, Lycoming, Union and Columbia Counties, and Serves Ten Years 99

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 128

Chapter X. Popular Demand for an Elective Judiciary in Pennsylvania and the Campaign for the First Elective Supreme Bench, to Which He Is Elevated 153

Chaiter XI.

Chapter XII.

Chapter XIII.

Chapter XIV.

Chapter XV.

A Justice of the Supreme Court 171

He Succeeds Jeremiah S. Black as Chief Justice 195 He Declines Unanimous Renomination by the State Democratic Convention and Retires

to Private Life 223

His Counsels on Public Affairs; Correspondence with Taney and Stanton 236

His Closing Years and His Death in 1871 252

Illustrations

T. Frontispiece, Chief Justice Ellis Lewis (See page 141). II. Nannau House, near Dolgelly, Wales 4

III. Pennsylvania Map of 1698, by Gabriel Thomas 10

IV. Map of the Three Original Counties of Pennsylvania

( See footnote on page 18) 12

V. The Lewis House, with date-stone, Kennett Square. ... 14

VI. The Original Map of Lancaster County 16

VII. Major Eli and Mrs. Lewis 30

VIII. Ellis Lewis' Indenture as a Printer's Apprentice 34

IX. Distribution of Population in Pennsylvania in 1820

(a map) 42

X. Editor John Binns, of the Philadelphia Democratic

Press 5^

XI. Mrs. Ellis Lewis, in her later years 60

XII. Governor George Wolf 66

XIII. Judge Ellis Lewis, a miniature of about 1835 100

XIV. Judge Lewis' Home at Williamsport, from a daguerreo-

type 120

XV. Judge Lewis, a silhouette of about 1843 130

XVI. The Last Appointive Supreme Court of Pennsylvania

XVII. A Democratic Supreme Court Campaign Poster, 1851.. 166

XVIII. The First Commission of an Elective Chief Justice 200

XIX. The Supreme Court in 1854, Ellis Lewis, Chief Justice 202

XX. "The Auld Lang Syne Party," from an engraving 234

XXI. Chief Justice Roger B. Taney, from an early photograph 250

XXIL Ex-Chief Justice Lewis, about 1865, a miniature 254

XXIII. The Tomb at Woodlands 262

Preface

The author's successive studies in American historical materials, based largely on Pennsylvania sources, have been a natural growth, and have sprung from his belief in the wealth and importance of those sources to the student of our national history. He has proposed to himself no artificial series, but has merely sought to explore what has seemed to him important though neglected fields, and has chosen to present what he has seen — phases or movements — under the form of a "Life" of a carefully chosen and characteristic figure in the midst of them.

The struggle over the Pennsylvania constitution of 1776 was the chief subject of my The Life and Times of Thomas Smith, iy4^-i8op, and the rise of Whig and Republican movements in the Keystone State was the main theme of The Life and Speeches of Thomas Williams, 1806- i8y2. It had been my hope to next present the great colonial work for constitutional liberty wrought by David Lloyd ; but the study of Whig and Republican movements in my Williams showed the desirability of presenting the counterpart of those movements — the Democratic phase — in the "Life" of Buchanan's warm friend and nearly life-long counsellor, Chief Justice Ellis Lewis, of the state Supreme Court, for almost exactly the same period. The Lewis material, with which I had long been familiar, also furnished a unique "journey" through almost the whole career of both colony and commonwealth down beyond the Civil War, and especially made necessary treatment of that most interesting phenomenon in Pennsylvania, the movement for an elective judiciary. If Chief Justice Lewis had been a jurist only, the author would have felt no mission to present his career, but before he went on the bench he was a great power in Democratic counsels, and seldom wholly lost touch with the ablest leaders of that party during the rest of his life, as his correspondence indicates.

The volume might have been written as a "memorial," and well worthy of that treatment is the career of this popular jurist; but, fortunately or unfortunately, although frequently invited to do so, the author has no desire to write a work of that kind, nor has he ever done so, or is he likely to do so. He has deliberately chosen these studies in the spirit of monographic work for the future historian. His method causes him to present a Williams or a Lewis, with sympathy, but without approval or disapproval ; he merely desires his readers to see the characters and movements at first-hand so far as is possible without going personally to the original records, resting in the calm assurance that the reader prefers to exercise the judging function himself. Personal opinions of the historian, while interesting, are not so much the texture of history as they once were ; they have gone the way of the editorial, in some degree.

Furthermore, the author believes that the influence and significance of movements within Pennsylvania from i68i until after the Civil War are more considerable than has been generally conceded. This has been due to many causes : the difficulty many have in understanding the Quaker and his mystic attitude ; the complexity of the state's life ; the varied degrees of unity or homogeneity at different periods ; the tendency of the Quaker not to present his own exploits, individually or collectively ; the buffer position the state has always held between sections, w^hich has compelled her to be a mediator, peacemaker, compromiser, solvent of national difficulties, and deviser of practical ways and means ; not to mention very many more quite as important. It has been said that Pennsylvania collects and New England publishes, which may be another way of stating the matter. At any rate it has resulted, the author believes, in general historians, who are compelled to work so largely from meagre second-hand sources, not understanding Pennsylvania sufficiently and not recognizing adequately the claims of her unique position in national history. A distinguished historian was once asked to write a history of Pennsylvania, and he replied that it was not yet time for that — there must be a great deal of monographic work first. The point is further illustrated, for instance, in her colonial history : a distinguished New England historian recently had occasion to make a fresh, first-hand study of Penn's time and expressed his behef that he liad run upon one of the greatest figures in American colonial history and sought to know more about him. He was undoubtedly right, but how many readers of national history have seen David Lloyd given that position before? Undoubtedly every student who has gone to the original records, rather than to the second-hand and partisan pages of men like Proud, and gone to them in the spirit of first-hand research, has seen David Lloyd looming up scarcely second to Penn himself, if he was second. The same thing is true of movements, and it is the author's desire to aid in a monographic way along these lines, sometimes with men who are strong, and again with men who may be called great.

I desire at this point to reply to numerous inquiries regarding my relation to certain other works which I have long had in hand. The Life of Chief Justice Lewis made plain to me the strategic importance of the rise and fall of Democracy in Pennsylvania, because of its relation to the nation, and again postponing publication of David Lloyd (on which I was grateful enough to have more time), I undertook a "Life and Times" of Pennsylvania's candidate for Vice-President against Van Buren, William Wilkins, which will be in press during the present year. ]\Iy years of study of Lloyd was paralleled by a like study of a figure of even greater power as a constitution-maker, namely, James Wilson. A Life of Wilson was so considerable a project that I had placed it some time in the future. The appreciation which I found here and there for this pre-eminent statesman, however, in my efforts to have the state and nation join in honoring his memory in the removal of his remains to Christ Church, Philadelphia, was so genuine, so widespread and so abundant that I have yielded to the urgency of my friend, Dr. S. Weir Mitchell, and others, and arranged to undertake a full and authoritative Life and Works of James Wilson during the present year. The preparation of a Life of Lloyd will follow immediately after that of Wilson.

Space forbids acknowledgment of the many courtesies received during the preparation of this work, but one cannot pass by the thoughtfulness and encouragement of Miss Josephine Lewis, of Philadelphia, the officers of the Historical Society of Pennsylvania, especially Miss Wylie of the department of manuscripts, the officers of the Law Association of Philadelphia, those of the State Library and the New York Historical Society, Mr. Heverly, of Towanda, Pa., and others whose names occur elsewhere in the text

or footnotes.

Burton Alva Konkle.

Swarthmore

CHAPTER I His Welsh Ancestors Follow Penn, and Three

Generations Help to Build Up the

New Commonwealth

If the year 1680 and her sister years on either side were as the Three Fates to Britain in certain respects, even more truly were they as the Three Graces to many of the British people in the matter of liberty and law. The term "Whig" came, in that year, to mean something very definite to the ears of the King who needed no parliament, Charles H ; and if the year before brought great relief to the persecuted dissenters in the hardly won habeas corpus act, the year following 1680 brought to many their heart's desire, in the possibility of escape to a land of promised freedom, under the guidance of the son of King Charles' late Admiral, Penn, even though the "grant" was in payment of a long-standing debt.

For a burning, spiritual revolt was abroad over more than one land, and new flames enkindled new fires as they leaped from heart to heart. Leaders, like George Fox, of the Quaker element, were everywhere encouraging the persecuted. "Now I had some Inclination." he writes during one of these years, in London, "to have gone into the country to a Meeting: But hearing that there would be a Bustle at our Meetings, and feeling a great Disquietness in People's Spirits in the City about choosing Sheriffs, it was upon me to stay in the city, and go to the Meeting in Gracious-sfrcct upon the Firstday of the Week. IVilUam Penn went with me, and spake in the Meeting: and while he was declaring the Truth to the People, a Constable came in with his great stafif, and bid him give over, and come down : but William Penn held on, declaring Truth in the Power of God. After a while the Constable drew back ; and when William Penn had done, I stood up, and declared to the People, 'the everlasting- Gospel, which was preached in the Apostles' days, and to Abraham; and which the church in the Apostles days did receive, and came to be Heirs of.' "^

Such meetings dotted all Britain and Ireland, and even the continent and the colonies, and nowhere was soil more hospitable to them than in the beautiful mountains of western Wales, where "towering Cader Idris" overlooked the waters of Cardigan Bay, not a half-dozen miles from its base, and even peered beyond the Irish Sea to the more than twenty-league-distant coasts below Dublin.- Happily, one may look in upon one of these meetings and witness an incident of much significance, but it shall be approached from picturesque Lake Bala, whence the beholder may view the crown of this same Cader Idris in the skies more than a dozen miles to the southwestvvard. For the way to Dolgelly — otherwise "Hazel-dale" — passes the water-shed between the Dee and Winion, and "here," says an observing artist who once traversed it, "commences a long and gradual descent to Dolgelly, which at every step becomes more and more magnificent, as the road follows the course of the Winion as it foams through a spreading region of wild forest, and the stern and noble outline of Cader Idris bursts upon us like an enormous rampart, almost striding across the distant vale, its long ridges and perpendicular precipices successively developing themselves as we near the little gray town of Dolgelly, above which they tower with a grandeur superior to any other mountains in Wales. Dolgelly is deliciously placed in the lap of this , woody valley, surrounded with heights gradually rising from it in almost Alpine character and variety, and full of charming passages of wood and brook scenery — an excellent headquarters for numerous pleasant excursions. Travellers are generally severe upon the Welsh towns, and Dolgelly, in particular, has come in for much reproach for its irregularity and dinginess ; but the former is a picturesque quality in a mountain town, and the latter, produced by the gray stone and slate of the materials, after all, is more pleasing to the eye than

' Fox's Journal, Vol. II, pp. 375-6, under date of 1682. Penn was then thirty-eight years of age and Fox was in liis prime. The Italics are only a typographical fashion of that day.

- Cader Idris ("Seat of Idris") is the third mountain in heighth in Wales. A Topographical Dictionary of Wales, by Samuel Lewis, 1833.

would be modern garish brick or plaster; such at least would be the opinion of an artist. The principal inn is the 'Golden Lion,' the garden of which opens on the green, affording a delightful walk. The shallow river, passing under a picturesque ivied bridge, sweeps rippling on one side of this grassy area, under a wooded bank, above which is seen a rural Gothic school of recent erection ; on the other is the town and church, with numerous neat country houses, finely placed among the hills, which ascend stage by stage to the base of precipitous Cader Tdris. The facetious Fuller, who wrote more than a century ago, gives a singular enigmatical account of Dolgelly.

'I. The walls thereof are three miles high.

2. Men go into it over the water; but

3. Go out of it under the water.

4. The steeple thereof doth grow therein.

5. There are more alehouses than houses' "

the first referring to the mountains, the second to the entrance bridge, the third to an artificial elevated waterway for a mill-wheel opposite, the fourth to the fact that the town bells were in a yew-tree, and finally, that in fair-time almost every house sold Welsh ale.^

Nor would any impression of this parish be adequate that failed to include the glamour of nobility that hovered over this part of the shire of Merioneth through the house of Nannau, descendants of Prince Cadwigan, of ancient Powys of the upper Dee and Severn.- For not more than two miles to the north of Dolgelly, as the crow flies, stands the vine-clad walls of Nannau, the seat of the ancient family of Vychan or Vaughan from the middle centuries of our era down to 1859, when the direct line ceased with the passing of Sir Robert. Prince Cadwigan, fifth in descent from King Howell, the famous law-giver of Wales, was himself Lord of Nannau, and tenth in descent from him followed another Howell, Lord of Nannau, one of

' "The Tourist in Wales," published by George Virtue, in 1857, and written by the artists, Bartlett and W'illmore, who have so beautifully illustrated it. "Dolgelley" is the spelling used in Lewis' Topographical Dictionary.

- In ;he Ancient^ Laws and Institutes of Wales, those of Howell, the Good, Book VIII, Chap. XI, p. 492, it says: "The word of a man of Gwynedd is not to be credited against the word of a man of Powys, nor that of a man of Powys against a man of Gwynedd, nor that of a man of South Wales against a man of Powys or Gwynedd: for there are those three unconnected countries in Cymru" — the native name for Wales.

whose grandsons (a grandson through his son Griffith) passed out of his ancestral halls, because of Britain's law of primogeniture, and entered into the great middle classes of the realm, enriched with noble blood as they have been since the first promulgation of that law. This grandson, John, made him a home in this parish of Dolgelly and gave his son a name that was destined to become a family name — when such an institution began to be adopted — in both home-land and colonies Two generations were to pass, however, before Lewis — for such was the name — was to have a descendant bear it again. ^ This Lewis ap Robert, i. e., son of Robert, had a sister, Margaret, who became the wife of a man of great strength of character both there and over-sea, named Rowland ap Ellis, or, as he used it later in life, Rowland Ellis ; for, it may be observed, when a family name began to be the fashion, there was much confusion in method, for some would have made it Ellis Rowland ; or, if necessary, have used the grandfather's instead of the father's name. So it was that Lewis ap Robert became known, not only as Lewis Robert, but Lewis Owen and Owen Lewis as well.^

It was a son of this Lewis, who was born during the triad of years about 1680, and was given the name Ellis Lewis, who finally determined the family name, especially in the new lands beyond the sea, and particularly, as a boy of about a dozen years, made so notable one of the many meetings that dotted western Wales at this period that an account of it has been handed down to this generation. "The 30th of the 4th month, 1690, upon the first day of the week," says an account found among the papers of a descendant, and signed by Rowland Owen, "we having assembled ourselves together according to our usual manner at the house of Lewis Owen, in the parish of Dolgelly, Merionethshire, in Wales, to wait for the appearance of God, in which we have comfort and power, beyond every other power, of

* The Pedigree of David Lewis, Esq., of Philadelphia, prepared by P. S. P. Conner, member of the Pennsylvania Historical and Genealogical Societies, 1894. Lewis had two sons, Owen and Rees, and it was the grandson of Owen (through Robert) who again bore the name Lewis.

* The author is assured by several Welsh students that this confusion was common, and it seems to be in keeping with the family tradition indicated below. Both are given, and the reader may choose for himself.

N'annau House

near Dolgelly, Wales

From a photograiih in possession of Miss Josephine Lewis, I'hihulclphia which we were made witnesses accordin<:j to our measure, and we being upon the day above mentioned met together at the same place, and those that used to bear a public testimony amongst us, having taken their liberty, and after a considerable time there was something like a vail not removed, and as a covering not moved away, and in this condition I was moved to encourage my friends to labour and take Christ Jesus, his advice to strive to enter in at the strait gate, which leadeth into the kingdom of freedom, and to seek for the fountain which Christ spake of that would be in them, springing up into eternal life — and yet there was a stop remaining as to our speech at that time, for it was an unusual thing to the people, and 1 waited and found ease to my mind. But after some time it was manifested unto me that the Lord would raise his own seed into dominion some way or other — but I knew not what way, and in earnestness of supplication and prayer and tears springing up amongst us, from that Immortal Seed, and a child amongst us, being but between twelve and thirteen years of age (which was Ellis Lewis, the third son of Owen Lewis), he having wept and groaned a long while amongst us, at last broke out into words in the English language, which he was not perfect in. And he praised the name of the Lord God of Heaven and earth, who he said had opened his heart amongst us this day — and in filling the hearts of his little ones, his babes, who is comforting and nourishing them one day and time after another.

And often he mentioned the Almighty, which he said had opened my heart amongst us this day — so that it was not the words we made most observation of, but the life and heavenly authority that went along with the words. And the life sprang and ran amongst us to the comforting of our hearts, both old and young, great and small, so that the living springs opened in our hearts. And these living streams made a great river, which made glad the city of God. And many did admire and wonder that heard the child's voice, but those that knew not the living words from whence the true words do proceed, were ready (I thought) to say with those that said of Christ's Apostles — 'they were full of wine.' But we are of the Apostle Peter's mind and judgment, who said that the Lord God should in latter days pour forth his spirit upon all flesh, as it is signified by the mouth of his servant Joel — and we are witnesses of that Scripture, which saith that through the mouths of babes and sucklings praises shall be perfected unto the Lord, even by them that suck at the breast of God's everlasting consolation, who are in their spirits enlightened to see the goodness of the Almighty in the land of the living. And I have not found even in my mind, until I had written these few lines, that they might be in remembrance for the generations after us, to see and understand how good and fatherly the Lord was to us, and how his living witness hath moved in our hearts, and upon the hearts of the youth amongst us, so that just witness hath been quickened in our hearts, that doth at all times testify against evil and corruption. And we have spent that season to the comfort of our poor souls, and in some measure to the praise, honour and glory of the Lord our God, who is the author of all our mercies, unto whom for this reason, and all his goodness to us, be thanksgiving, and unto his blessed name be it given, henceforth and forever more. Amen, saith

"Rowland Owen."

Something over six months after the meeting above described, the boy, who was then visiting in Newington, a short distance south of London, wrote for the meeting at that suburb, "A Little Offering offered to you, my brethren in brotherly love, by a child who came up to see how it fared with you, my honourable brethren.

"This is the word of the Lord to you, fathers and young men — quench not the spirit, neither despise prophecy, lest the Lord should smite you with dryness and barrenness. For the spirits of the Prophets are to be subject to the Prophets, and we all, as members that are useful, are to be subject to Christ, our head, and one to another in Him. And if any be otherwise minded, and lust to be contentious, I see no such custom nor examples in the churches of Christ. Therefore let your words be few and savoury, seasoned with grace, that they may administer life to the hearers, for life begets life, and death begets death. Given forth by one whose name is

"Ellis Lewis."

"Newixgton, 2nd of nth mo., 1690."^

The boy's short Hfe of a dozen years had witnessed the makinp^ of great history. Three Kings had ruled at London, Charles II, James II, and William and Mary, which latter he might have seen on this visit to Xewington. Two short years before, the very year that John Biinyan died, the revolution had driven James from his throne ; and while, under Charles, the child's short career had seen the rise of the Whigs and permanent political parties with cabinet government, it likewise witnessed, under William, the establishment of the "Bill of Rights," which, with Magna Charta and the Petition of Right of 1629, forms the chief part of the British Constitution that is written. Since his birth, too, he had beheld the ever increasing harshness of the laws against all those groups of Christians who dissented from the established church, until the Toleration Act of William's time.^ And the very year this letter was written, the boy must have heard how the prosperous Quaker experiment in government on the banks of the Delaware across the sea, whither many of their friends had gone, had received a severe blow in the arrest and species of imprisonment of its beloved leader, William Penn, who at that very time was in seclusion in London under surveillance of the King and Queen. For, since the boy's l)irth King Charles had not only created Penn's colony, but he and James after him had more than once granted it royal favor, so that in the year this letter was written, when King William was having great difficulty in sup-

' These two papers were found among the papers of Mrs. Phoebe Pemberton, who (lied in 1812, and was a granddaughter of this boy. They were published in the Bizarre of May 13th, 1854, with the explanation that it would be interesting "to the many descendants of the gentleman in this city." It was found by William D. Lewis, in 1862, and sent to Judge Lewis as "relating to an old namesake of yours." In "A Collection of the Sufferings of the People called Quakers," by Joseph Besse, London, 1753, Vol. I, p. 743, an account is given of the arrest, abuse or imprisonment of Owen Lewis and twenty-two others in Merionethshire for holding meetings for worship in August, 1660. ^lr. Connor, in his genealogical outline, raises a question as to this young exhortcr being a cousin of the proper Ellis Lewis, but the author inclines to give the family tradition the preference.

2 It must be recalled that these harsh acts, beginning with those laws of the 6o's called the Clarendon Code, were political rather than religious, intended to prevent the dissenters uniting politically to overturn the monarchy and form a commonwealth again. It was chiefly precaution, rather than retaliation.

pressing the uprisings in Ireland caused by James' efforts to displace him, and Penn was among the many who received written appeals from the deposed King for support, the King and Queen arrested the Quaker leader and caused him to seclude himself and keep away from the young colony bearing his name, for a period of three years. Furthermore, this absence enabled the King to take over the colony as a royal province under his Captain-General at New York as a means of anticipating the moves of Louis XIV in his plans to further the aims of both the deposed James and himself, by an attack on the colonies at that point.

About eight years passed, and Ellis Lewis, then about eighteen, with his mother and Owen Robert, her second husband, and other members of the family, were persuaded by their friends in the now restored colony of Pennsylvania to make preparations for a voyage thither, and even went so far as to forward their household goods, when an illness in the family caused them to abandon their departure temporarily.^ The delay proved to be more serious than was intended, for, apparently, they were caught up in the movement under William and Mary's government to displace the Irish Catholics with Protestant settlers from Britain, and were carried past Dublin southwestward through Kildare into northern Queens County in the neighborhood of Mount Mellick.- Whether the ten years of delay was all spent here cannot be known, but the continual strife stirred up between Catholics and Protestants by the interests for and against the Pretender after Queen Anne's accession were so intensified by the events following the union with Scotland in 1707 and consequent aggressive legislation in Ireland that peaceful Friends must have had little inducement to further delay removal to the colony which Rowland Ellis found so attractive. Certain it is, that Ellis Lewis' and his mother's family did undertake

^ There can be little doubt that it was the appearance in London of a little book, written by one who had lived almost continuously in the Delaware settlements since the founding of Penn's colony, namely, Gabriel Thomas, which, in considerable degree, caused this movement to America. It was entitled "An Historical and Geographical Account of the Province and Country of Pensilvania; and of West-New- Jersey in America," and was issued at the "O.ron Arms in Warwick-Lane" in this year 1698, and dedicated to "Friend William Penn."