2.2.5. The Mid-Atlantic States (1776-1825): Key Judges and Lawyers

Thomas McKean (Pennsylvania Supreme Court, 1777-1799)

  • McKean played an important role in American as well as Pennsylvania history.  He was born in Pennsylvania in 1734; after completing his legal studies he moved to Delaware, which was legally attached to Pennsylvania at the time.  McKean served as a judge and legislator and eventually became a leader of the pro-independence faction in Delaware.  He was a signer of the Declaration of  Independence and was the primary author of Delaware’s 1776 constitution.  
  • In 1777, McKean was appointed chief justice of Pennsylvania’s new supreme court.  He moved aggressively to establish a court of broad powers, including power over military cases.  Under his leadership, the court developed a broad definition of treason and encouraged active prosecution of Pennsylvania Tories.  However, McKean believed such prosecutions were useful mainly as a warning and deterrent to “passively disaffected” Pennsylvanians, and he supported relatively lenient sentences after conviction.
  • Following independence, McKean took a centrist position between conservatives who favored maintaining English and colonial social and legal institutions wherever possible and radicals who favored expanding Revolutionary-era ideals of equality.  McKean’s court enforced the gradualist principles of Pennsylvania’s 1780 emancipation law strictly and refused to hurry freedom.  McKean also encouraged private and criminal prosecution of offensive political speech despite frequent resistance from grand juries and opposition of the legislature.
  • As the Federalist party faded in Pennsylvania, McKean moved into the moderate wing of the Jeffersonian Democracy; he was elected governor of Pennsylvania in 1799 and served in that office until 1808.  His suit against William Duane for criticizing his conduct in in office resulted in the Duane decision, discussed in section 2.2.2, in which McKean’s successors on the supreme court repudiated his view of libel law as a tool to regulate political speech.   McKean continued to be active in Pennsylvania’s civic affairs in various capacities until his death in 1817.

Hugh Henry Brackenridge (Pennsylvania Supreme Court, 1799-1816)

  • Brackenridge was the first prominent judge to be identified with Pennsylvania’s rapidly growing western frontier.  Born in 1748, he migrated with his family from Scotland to central Pennsylvania as a child.  Brackenridge had a scholarly bent:  while attending Princeton, he became friends with James Madison and the Revolutionary-era essayist Philip Freneau, and collaborated with them on several literary and political books. 
  • After graduating from college and failing in attempts to make a living at teaching and publishing, Brackenridge studied the law and was admitted to the bar in 1780.  He settled in Pittsburgh, founded one of the city’s earliest newspapers, joined the Jeffersonian Democracy early and found success in local politics.  Brackenridge gravitated to the moderate wing of his party:  he opposed efforts in his section to secede from eastern Pennsylvania, and he defended the federal government’s suppression of the Whiskey Rebellion (centered in western Pennsylvania) in 1794.  Brackenridge’s defense of federalism put an end to hopes of political advancement, but in 1799 Governor McKean, a fellow moderate Democrat, appointed him to Pennsylvania’s supreme court.
  • As a judge, Brackenridge continued his pioneer role.  He helped expand the state’s court system into the western counties and arranged for the supreme court to hold sessions there.  These actions played an important part in bringing stability and a respect for law to the frontier.  Brackenridge’s Democratic sympathies led him to support Chief Justice Tilghman in “Americanizing” the common law, but his moderate inclination led him to support his Federalist colleagues when the legislature attempted to impeach them in 1804, even though he himself escaped impeachment.
  • Brackenridge continued his literary efforts while serving on the court.  In 1804 he published Modern Chivalry, one of the first novels about American frontier life, and in 1814 he published Last Miscellanies, an early (but incomplete) attempt at a comprehensive treatise of American law.  Brackenridge’s son, Henry Marie Brackenridge (see section ___), continued the family tradition of judicial adventure:  he served as one of the first judges in both Louisiana (1812-17) and Florida territory (1821-32).

Ambrose Spencer (New York Supreme Court, 1804-1822)

  • In early republican New York, judges needed (and exercised) political skills to a degree seldom seen in other states and eras.  Spencer possessed such skills in abundance.  He was born in Connecticut in 1765; after completing his legal training he moved to Albany, where he served in the state legislature and as a district attorney from 1793 to 1804.  Spencer started as a Federalist but in 1798, as New York party alignments shifted he joined his brother-in-law DeWitt Clinton, who later became governor of New York and the guiding spirit behind the Erie Canal, in building up the Democratic party.
  • During the early 19th century the New York Democracy split into two factions:  Clinton’s supporters and his “Bucktail” opponents, led by Martin Van Buren.  In 1802 Spencer became New York’s attorney general; two years later he was appointed to the supreme court, where he remained until 1822.  Spencer’s Democratic inclinations were reflected in many of his opinions:  he generally preferred pragmatic, result-oriented judging over rigid adherence to legal precedent, and he consistently tried to adopt English common law to fit the realities of in a rapidly-changing state. 
  • Spencer was less flexible in cases involving cultural matters.  While prosecuting the Croswell free speech case (described in section 2.2.3) as attorney general, he defended the traditional but increasingly unpopular view that any speech criticizing the government should be treated as libel, even if true.  He also vigorously defended New York’s blasphemy laws and laws requiring oaths to be sworn on the Bible, against charges that they constituted state sponsorship of Christianity in violation of rights of religious freedom.
  • When New York’s 1821 constitutional convention created a new court system, Spencer found himself in the minority Democratic faction:  he was not appointed to the new court, and his judicial career terminated.  Uncomfortable with Jacksonian reform, in the late 1820s he moved into the Whig party but continued active in politics.  He died in 1848.  
James Kent (New York Supreme Court, 1804-1815; Chancellor, 1815-1823)

  • Kent is arguably the greatest state judge America has ever produced.  He was born in Connecticut in 1763.  Like Spencer, he moved to New York after completing his legal training and rose to prominence through services as a Federalist district attorney and state legislator.  But unlike Spencer, Kent remained loyal to Federalist principles long after his party disappeared from the political scene.
  • Kent was a prodigious legal scholar, and as a young man he made himself the nation’s leading expert on both English law and continental European law.  In his judicial decisions Kent occasionally recognized the need to adapt American law to American conditions , most notably in the Croswell case where he supported Alexander Hamilton’s effort to democratize libel law.  But Kent greatly admired English law, particularly its strong instinct for protecting property rights, and he tried to preserve it in New York law wherever possible.
  • Kent is not generally considered a great original legal thinker, but he made a permanent imprint on American law through the sheer bulk of his erudition.  He allied with William Johnson, New York’s state court reporter, to good effect.  Kent filled his decisions with erudite discussion of (mostly) English precedent, synthesized into American law, thus providing a benchmark for other state judges to emulate. With the aid of New York City and Albany legal publishers and their national distribution networks, Johnson made Kent’s work known throughout the United States. 
  • Kent was appointed to New York’s supreme court in 1804.  His promotion to Chancellor in 1815 gave him sole power over all New York equity cases, and also made him a member of the state’s Council of Revision which had veto power over all laws passed by the legislature.  But the Council had incurred the public’s wrath by vetoing several popular military defense measures during the War of 1812, and Kent joined his colleagues in vetoing a number of popular bills passed by the legislature in the late 1810s to promote economic development.  Kent thus incurred the hostility of Martin Van Buren, who was becoming the leader of the New York Democracy, and contributed to a “growing but vague popular discontent with chancery as an undemocratic institution arose.”  
  • A desire for thoroughgoing judicial reform was one of the main factors that led New York to hold a constitutional convention in 1821.  Kent was elected as a delegate; at the convention he mounted a vigorous unsuccessful effort to preserve the existing court system and to limit the number of New Yorkers who could vote.    He failed on both counts:  the Bucktail-dominated convention expanded the suffrage, abolished the Council of Revision and, in a blow aimed directly at Kent, required all judges to retire at age 60.  This forced Kent to leave the bench for good in 1823.
  • Kent devoted his time in retirement to producing what became his most enduring legacy, the first comprehensive treatise of American law.  Kent’s Commentaries was first published in 1826.  It quickly became an indispensable work for lawyers and judges throughout the United States and was revised and republished numerous times, including several editions after Kent’s death in 1848.
  • Kent remained an advocate of centralized power and government promotion of business and a vocal opponent of Jacksonian principles throughout his last years.  Although he was in the political minority during most of this period, his advocacy was not in vain:  the American judiciary remained a relatively strong pocket of federalist sentiment and economic conservatism throughout the early and mid-19th century, due in no small part to Kent’s work. 

William Tilghman (Pennsylvania Supreme Court, 1806-1827)

  • Tilghman was born in 1756 into a family whose members moved back and forth between Maryland and Pennsylvania and achieved prominence in both states.  After completing his legal training in Philadelphia, Tilghman returned to Maryland to establish a law practice; he served in the state legislature and as a delegate to Maryland’s 1788 constitutional convention.  In 1793 he moved to Philadelphia, where practice opportunities appeared better.
  • Tilghman supported the Federalist party and was one of the “midnight judges” that President John Adams appointed to fill new federal appeals judgeships created at the end of his presidential term in 1801.  A new Democratic Congress abolished Tilghman’s judgeship soon after, but in 1806 Governor Thomas McKean appointed Tilghman chief justice of the Pennsylvania supreme court.
  • Tilghman’s chief service to the court was to give it stability following a period of strife between Federalist justices and the Jeffersonians who controlled Pennsylvania’s legislature – a period marked by impeachment of two of the justices.  Tilghman was perceived as a moderate and respected as such.  Like other Federalist judges, he admired the English common law system but unlike many, he actively helped modify the system to accommodate conditions of American life.  Tilghman remained on the court until his death in 1827.
Chief Justice Thomas McKean (Pennsylvania) - courtesy New York Public Library

Justice Hugh H. Brackenridge (Pennsylvania) - courtesy New York Public Library

Chief Justice Ambrose Spencer (New York) - courtesy Wikipedia

Chancellor James Kent (New York) - courtesy New York Public Library

Chief Justice William Tilghman (Pennsylvania) - courtesy New York Public Library