THE BARNEY HOLE CASE

As controversionalist, either on or off the bench, Judge Black was always picturesque. One of the most breezy quarrels of his life was over the case of Hole vs. Rittenhouse, 7 Harris, 305; 1 Casey, 491; 2 Philadelphia, 411.

A claimant of land under color of title cannot defeat the assertion of the legal title unless he show exercise of dominion over the part in contest of such notorious character as to compel notice of the possession of the disseisor. There must be pedis possesio within the interference to give title under the statute of limitations.

This is a principle of Pennsylvania law that no one has questioned or desired to change since the decision of Holevs. Rittenhouse, I Wright. 116.

The brief and unimpassioned opinion by Judge Woodward therein gives slight suggestion of the fierceness of the judicial conflict that had preceded.

To recall some of the incidents may be interesting, for the purpose of showing that our hero was a man of like passions as we; and further, that the conduct that certainly was inappropriate and so incensed his brethren, was the result of a burning zeal for legal truth as he saw it and a battle for principles that to most men are abstract, but to him weremore vital than his own life and honor.

Barney Hole was undoubtedly a squatter. James Rittenhouse and John Thompson brought ejectment against him. They showed title out of the Commonwealth since 1793. Barney produced evidence that in 1785 the State had given title to John Graeff. No one knew who Graeff was or what became of him or his warrant. Nevertheless, as the plaintiff in ejectment must recover on the strength of his own title and as it was shown that the Graeff warrant was the earlier, Rittenhouse and Thompson undertook to maketheir color of title good by showing possession for twentyone years. The verdict was for Rittenhouse, but for too much, and the judges of the Supreme Court all agreed to a

reversal, but disagreed as to the lines upon which the re-trial should be had. BACK, C. J., delivered the opinion on the supposed authority of a case of Judge Gibson, Waggoner vs. Hastings, 5 Barr, 300, saying that to make the reasoning of the judge stronger or clearer would be extravagant presumption. He argued that the English rule that protects nothing but what the occupant has under his feet was not suited to the conditions here, where a large portion of the land was unenclosed. In regard to the cases overruled by Waggoner vs. Hastings, he says:

"But these ancient authorities, respectable as they may have been in their day, have been rightly overruled as obsolete, unsuited to the condition of our country, and out of harmony with modern opinions on the statute of limitations. Those who would give to these dead and buried notions of a past age a resurrection and a new life, and consign to the grave they occupy the law as it now is, would be doing the public no service. There are some subjects on which the jurisprudence of the country must keep, at least, in sight of the times. The statute of limitations is one in which we have made some progress, and the judiciary could hardly do a worse thing than to turn its face around, and retrace its steps back again to the darkness and error from which it has escaped."

LOWRIE, J., filed a short concurring opinion, and Mr. Justice Gibson concurred fully with the Chief Justice. LEWIS, J., and WOODWARD, J., dissented.

Judge Conyngham retried the case in Columbia County, in accordance with the views expressed in the opinion of the Chief Justice, and no doubt congratulated himself that he must now be right. The verdict and judgment was for Rittenhouse, and the unterrified Barney took a writ of error.

In the meantime, death had claimed Judge Gibson, and Lowrie seems to have deserted to the other side. Lewis, then Chief Justice, delivered the second opinion of the Court reversing the first decision and treating Judge Black's opinion therein with much satire, and the Waggoner and

Hastings case of Black's idolized Gibson, with scant courtesy, as follows:

"Believing that the principle affirmed in Waggoner vs. Hastings, and in the cases governed by it, was a departure from the settled law, and a dangerous invasion of the right of property, tending to render the titles to uncultivated land insecure and worthless to the owners, we are constrained to overrule it and adhere to the law as it stood before that error was committed. It is not our duty to 'impart immortality to error,' where we can correct it before it has become an established rule of property. It cannot be said, with any show of reason, that a principle affirmed for the first time in 1847, standing in opposition to all previous authorities, and in conflict with a solemn decision made the year afterward, is an established rule of property. It was against the general sense of the profession, and no injury can result from adhering to the ancient landmarks as they stood before they were disturbed. The Court had no more right to alter the law, as was attempted in Waggoner vs. Hastings, than an individual has to remove his neighbor's landmark. To adhere to the error, after we are convinced of it, and see its destructive tendency, would be to prove ourselves unworthy of the high trust reposed in us. To maintain the right of any Court to overthrow all the established decisions, and to trample down the rights of property which have grown up under them, as was attempted, although inadvertently, in Waggoner vs. Hastings, would be to expunge the whole doctrine of stare decisis, to substitute error for truth, and to place the arbitrary will of a judge above the rules of law and justice."

This was too much for Judge Black, the only one left of the former majority. He filed a dissent so biting in its satire that it is said the other judges considered the propriety of calling him to account in some manner for contempt of the Court of which he was a member. His dissent closes with probably the most remarkable arraignment ever made by one member of a court of his brethren:

"The judgment now about to be given is one of 'Death's doings.' No one can doubt that if Judge Gibson and Judge Coulter had lived, the plaintiff could not have been thus deprived of his property; and thousands of other men would have been saved from the imminent danger to which they are now exposed of losing the

homes they have labored and paid for. But they are dead; and the law which should have protected those sacred rights has died with them. It is a melancholy reflection that the property of a citizen should be held by a tenure so frail. But 'new lords, new laws,' is the order of the day. Hereafter if any man be offered a title which the Supreme Court has decided to be good, let him not buy if the judges who made the decision are dead; if they are living, let him get an insurance on their lives; for ye know not what a day or an hour may bring forth.

"The majority of this court changes, on the average, once every nine years, without counting the chances of death and resignation. If each new set of judges shall consider themselves at liberty to overthrow the doctrine of their predecessors, our system of jurisprudence (if system it can be called) would be the most fickle, uncertain and vicious that the civilized world ever saw. A French constitution, or a South American republic, or a Mexican administration would be an immortal thing in comparison to the short-lived principles of Pennsylvania law. The rules of property which ought to be as steadfast as the hills, will become as unstable as the waves. To avoid this great calamity, I know of no resource but that of stare decisis. I claim nothing for the great men who have gone before us on the score of their marked and manifest superiority. But I would stand by their decisions, because they have passed into the law and become a part of it-have been relied and acted on-and rights have grown up under them which it is unjust and cruel to take away."

Judge Black nursed the wound, and from the vantage ground of the bar of the Supreme Court of the United States, in the argument of Fossat vs. The United States, sent a last contemptuous shot at Judge Lewis and his partisans.

"In Pennsylvania it has been held that the Supreme Court may reverse a Judge of the Common Pleas, and then when he follows the decision reverse him again, and so on toties quoties, as often as the higher tribunal sees proper to change its mind. I maintain that a decision when pronounced by the Court of last resort becomes the law of the case and all courts, including the one that made it, are bound by it ever afterwards so far as that case is concerned."

This spicy clash of brilliant minds is interesting but nevertheless regrettable. To most of us the heat and dog

matism appear unwarranted, especially in view of the present unanimous opinion as to the legal proposition to the contrary.

It was the exhibition of excess of noble traits.

The reversal of the first decision by the second seemed to Judge Black an insult to the fame of the great jurist whom he had almost worshipped in life and whose canonization he had signalized with the eloquence of his great eulogy. What the venerable Gibson had approved was the inspiration of very truth and to doubt it was as the sin of sacrilege.

CONSTITUTIONAL CONVENTION OF 1873

There was martial quality in Judge Black's character. After his death the speeches in regard to him ring with note of bugle, trumpet call and clang of steel on shield.

The style of his biographers is unwittingly heroic. They picture him as mail-clad knight with helmet, banner, spear and sword. He was an undaunted champion for the right, ever ready in its defence to rush to the forlorn hope, believing that present defeat is but the prelude of the ultimate triumph of the truth.

His love of country was of purer quality than the politician's pretence, that uses the flag of patriotism to mask a partisan's narrowness or a spoilsman's greed.

It was that freedom under law, that logical system of constitutional self-government that makes our land worth loving, to which he gave the full measure of his devotion.

In the Constitutional Convention of 1873 he was possibly the most conspicuous figure. His position was unique. He was a statesman of experience, a profound jurist, a brilliant debater. He was without political ambition or desire of preferment. There was no interest, hope or fear that could in the slightest affect the impartiality and purity of the wisdom and vigor which he freely offered that the State might be purged of its distempers and lifted to a better life.