USA > Pennsylvania > Cumberland County > Biographical and Portrait Cyclopedia of the Nineteenth Congressional District, Pennsylvania > Part 12
USA > Pennsylvania > Adams County > Biographical and Portrait Cyclopedia of the Nineteenth Congressional District, Pennsylvania > Part 12
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"I. That William Kieth's warrant being issued in 1722 with- out authority, all proceedings on it were absolutely void, and that neither the war- rant nor survey had ever been returned into the land office. 2. That Governor Hamilton's warrant was issued in 1762 to re-survey a manor which had never been legally surveyed, and was in that respect to be regarded as a superstructure without a foundation. 3. That the recitals of Gov- ernor Hamilton's warrant are not founded in fact, and that considering the survey, in pursuance of it, as an original survey, it was void as against campact, law and jus- tice; that the proprietor should assume, for a manor, land settled by individuals." The court finally adjudged the question by holding that the Penn family as sole pro- prietors of the soil of Pennsylvania, prior to 1779, had a legal right to withdraw from the general body of land any not appro- priated to other persons and to set the same apart to their individual use; that the claimant of proprietary tenth or manor must make title under the divesting act of 1779, and show that it was known by the name of such manor and duly surveyed and returned into the land office before July 4, 1776; that a warrant to survey, if the con- sideration be paid, is a legal title against the proprietary and a survey, under a war-
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rant of re-survey, is good as an original survey, though it recite another which is invalid. The question was handled with care in the case of Kirk and others vs. Smith, ex-demise of Penn, and reported in 9 Wheaton, page 241, Henry Clay and Daniel Webster appearing for the plain- tiffs in error and Attorney-General William Wirt and John Sergeant for the defendants in error; Chief Justice Marshall delivering an exhaustive opinion confirming the hold- ing of the Circuit Court.
In 1779 the Legislature passed an act vesting the estates of the late proprietaries of Pennsylvania, in the Commonwealth of Pennsylvania, since "to have suffered the Penn family to retain those rights which they held strictly in their proprietary char- acter would have been inconsistent with the complete political independence of the State. The province was a fief held imme- diately from the Crown and the Revolu- tion would have operated very inefficiently toward complete emancipation, if the feu- dal relation had been suffered to remain. It was therefore necessary to extinguish all foreign interest in the soil, as well as for- eign jurisdiction in the matter of govern- ment. We are then to regard the Revolu- tion and these Acts of Assembly as eman- cipating every acre of soil in Pennsyl- sylvania from the ground characteristic of the feudal system. Even as to the lands held by the proprietaries themselves, they held them as other citizens held under the Commonwealth and that by a title purely allodial .... The State became the proprie- tor of all lands, but instead of giving them like a feudal lord to an enslaved tenantry she has sold them for the best price she could get, and conferred on the purchaser the same absolute estate she held herself." (7 Sergeant and Rawle, page 188; 8 Wright page 501). While the title of the proprie- taries to all other lands was divested by
this Act, it did not affect the proprietary manors. The courts holding that the lands within the survey of the manor were excepted out of the general operation of the Act, and were not vested in the Com- monwealth (Wallace vs. Harmstead, 8 Wright, 492).
These decisions placed a quietus on land title troubles.
Early dates concerning the local bench and bar are not easily fixed. The judiciary commences with the induction into office of the justices of the peace, and the records show five lawyers to have practiced in 1749, the year of the organization of the courts. To what extent in the bench and bar his- tory these were inceptive or formative in- fluences cannot be determined by sharp lines of clearage.
After the organization of Courts there was no interruption except during the War of the Revolution, when court work sus- pended for more than a year, until the con- vention to frame the first Constitution for Pennsylvania met in Philadelphia, July 15, 1776, the transition from the Colonial to State government being not unmixed with inconvenience and dissatisfaction. The test oath required of magistrates and offi- cers probably was a strong force in pre- venting the convening of courts. This convention on the 3rd of September en- acted an ordinance nominating and ap- pointing Michael Swoope, of York county, as a justice of the peace for the State at Large, and the following as justices for York county: Robert McPherson, Martin Eichelberger, Samuel Edie, David Mc- Conaughty, Richard McAllister, Henry Slagle, Matthew Dill, William Rankin, William Lees, William Bailey, William Scott, William Smith, William McClaskey, Josias Scott, Thomas Latta, William Mc- Clean and John Nickle, the younger. Jus- tice McClean made repeated efforts to con-
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vene courts, but the first indictment pre- sented to the grand jury in the name of the Commonwealth was as late as the January Term, 1778, an Orphans' Court having convened the 3rd of December preceding.
The Act of Assembly of January 28, 1777 providing for the appointment of one of the justices of each county to preside in the respective courts was complied with November 18, 1780, by the commissioning of Richard McAllister for York county. Two days later Hon. James Smith was ap- pointed one of the judges of the Court of Errors and Appeals. This court was insti- tuted by Act of Assembly of February 28, preceding, sitting once a year in Philadel- phia on errors assigned to judgments of the Supreme Court, but was abolished Febru- ary 24, 1806.
The earlier justices of the peace were eligible through good character, but under the Constitution framed by the Convention of 1789-90 those "of knowledge and integ- rity, skilled in the laws" only were appoint- able to president judgeships, while by the same act a number of other proper persons not fewer than three and not more than four were to be appointed to associate judgeships. The president judge and asso- ciates or any two of them and the Register of Wills had the power of holding a Reg- ister's Court, while the associate judges could hold any of the courts in the absence of the president judge except Oyer and Terminer.
The first Quarter Sessions Court under the new constitution was held before Hon. William Augustus Atlee, October 24, 1791, with Hon. Henry Schlegel, Hon. Samuel Edie, Hon. William Scott and Hon. Jacob Rudisill as associate judges. The first Common Pleas Court was held the follow- ing day. Judge Atlee continued in office until his death, April 9, 1793. Hon. John Joseph Henry filling the vacancy. Adams
county was created out of York county January 22, 1800, and as associate judges Schlegel, Edie and Scott lived within its limits others had to be appointed. Hon. John Stewart and Hon. Hugh Glasgow re- ceived the commissions. Judge Rudisill died on the 6th of December, but no suc- cessor was appointed and from this time forward the number of associate judges was two. Hon. Jacob Hostetter was the next commissioned judge, succeeding Judge Stewart, who received an election to Con- gress. In January, 1811, Judge Henry re- signed and was succeeded by Hon. Walter Franklin on the 18th of the same month. Hon. George Barnitz received a judge's commission on the 29th of March, 1813, to succeed Judge Glasgow, who was also sent to Congress. On the 10th of December Hon. John L. Hinkle was commissioned to succeed Judge Hostetter, who "met the same fate as his predecessors, that is, was sent to Congress." Changes in the judi- cial district had taken place in the mean- time. Chester county was taken from the Second district in 1806, leaving Lancaster, York and Dauphin counties, while in 1815 Dauphin was annexed to the Twelfth Dis- trict. A district court for York county was organized under the Act passed April 10, 1826, giving concurrent jurisdiction with the courts of Common Pleas. The court consisted of a President and an associate judge, both learned in the law. By Act passed April 8, 1833, York and Lancaster counties were formed into separate dis- tricts and Hon. Daniel Durkee was ap- pointed the first judge of the York Dis- trict, the act providing for one judge for each district. These courts ceased to ex- ist, by the Act of 1833, on the first of May, 1840.
On the 14th of May, 1835, York and Adams counties became the nineteenth ju- dicial district. Hon. Daniel Durkee judge
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of the District Court, was commissioned president judge of the Common Pleas of this district. In 1838 the Constitutional Convention limited the term of the presi- dent judge to ten years and that of the as- sociate judges to five years. This conven- tion also ordained that the associate judges should be divided into four classes accord- ing to seniority of commission, the terms of those in the first class to expire February 27, 1840, and of those in the remaining classes, one, two and three years later, re- spectively. Judge Barnitz was in the first class and was succeeded by Hon. Samuel C. Bonham, March 26, 1840; Judge Hinkle who was in the second class, was succeeded by Hon. George Dare, April 3, 1841; Judge Durkee resigned shortly before his term expired and Hon. William N. Irvine was appointed February 10, 1846, as his suc- cessor, serving until 1849, when he re- signed and Judge Durkee was re-appointed on the 6th of April. Judge Dare was suc- ceeded by Hon. George Hammond on the 28th of March, 1746, and Judge Bonham was succeeded by Hon. Jacob Kirk in 1850.
In 1851 a Constitutional amendment made the judgeship elective, the number remained unchanged. At the first elec- tion under the new law, held on the second Tuesday of October, 1851, Hon. Robert J. Fisher was elected President Judge and Hon. Isaac Koller and Hon. Miles Hays associate judges. Judge Koller served until his death in 1854, when Hon. John Rieman was appointed by the Governor in whom vested the right of appointment to a vacancy created by death. Judge Rieman was elected to the office in 1855 and re-elected in 1860. In 1856 Hon. Adam Ebaugh succeeded Judge Hays. In 1861 Judge Fisher received a re-election as president judge and Judge Ebaugh as as- sociate judge. The death of Judge Rie- man occurred in 1862 and Hon. David
Fahs was appointed to fill the vacancy on the 5th of November, 1862, holding the of- fice until the election of Hon. Peter McIn- tyre a year later. Judge Ebaugh was suc- ceeded by Hon. David Newcomer in 1866. Judge McIntyre was re-elected in 1868 but tion in 1871, Hon. John Moore at the ing appointed to fill the vacancy. Hon. Peter Ahl was elected to the position in 1870. Judge Fahs received a second elec- tion in 1871. Hon. John Moore at the same time succeeding Judge Newcomer. Judge Ahl died in 1873 and Hon. J. C. E. Moore held the position for six months when Hon. Valentine Trout was elected in October. Underthe constitution of 1873the office of associate judge not learned in the law was abolished in counties forming sep- arate judicial districts, York county be- coming by reason of its increase in popu- lation, the Nineteenth, and Adams county the Forty-second district. Judge Moore's term expired in 1875. Judge Trout's three years later, the latter being the last of the associate judges. By the act of April 12, 1875, York county was given an additional law judge. Hon. Pere L. Wickes receiv- ing the election. In 1881 Hon. John Gib- son succeeded Judge Fisher who had served thirty consecutive years. Hon. James W. Latimer succeeded Judge Wickes in 1885. The death of Judge Gibson oc- curred during his term in 1890. Hon. John W. Bittenger being elected his suc- cessor and assumed the duties of office in 1891. The term of Judge Latimer con- cluding in 1895, Hon W. F. Bay Stewart was elected his successor.
The number of attorneys admitted to practice in the courts of York County since 1749 reaches nearly five hundred, many of whom, however, were admitted for the trial of a special case only, and never practiced regularly. The early names on the roster of practitioners show a wide lapse of time
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between admissions. The present enroll- ment of nearly sixty members being indi- cative of the growth and advancement of the county. This fact being doubly patent when it is known that the work of the counselor is rapidly displacing the sphere of the advocate.
The members of the bar are men of pro- bity, leaders in various ranges of mind and action in their communities, and whose con- scientious efforts for their clientele unitedly make a faithful and efficient public service.
Adams County. The first court held in the county was in June 1800, when there were no resident lawyers at Gettysburg, and the first bar con- sisted of ten visiting or traveling law- yers who were a part of the number called "circuit riders" who followed the courts in the frontier and western counties. The first resident attorney was Jonathan F. Haight, who was admitted in November 1800, but left in 1803. Each year new members were admitted and soon there were resident law- yers enough to constitute a fair bar. Fran- cis S. Key, the author of "The Star Spangled Banner;" Thaddeus Stevens, the "Great Commoner," James Buchanan, the Bachelor President, and other distinguished lawyers practiced in the courts of Adams county. Moses McClean admitted in 1826 afterwards became distinguished in politi- cal life serving in the State Legislature and in Congress. Admitted with McClean was Andrew G. Miller, afterwards a United States judge in Wisconsin. Another early lawyer of distinction was Daniel M. Smyser, who was admitted in 1831, and af- terwards served in the legislature and as president judge of Bucks and Montgomery counties from 1851 to 1861. Following Smyser came James Cooper, whose admis- sion was in 1834, and who was an able lawyer and a State Legislator, a member of Congress and finally winning a seat in the
United States Senate. In 1835, Robert J. Fisher, who afterwards came to the bench, was admitted, and the next year among members admitted were Gottleib S. Orth and Conrad Baker, both of whom went to Indiana which sent them to Congress and made Baker governor. Among those of distinction who followed Orth and Baker was William McSherry, and David Wills, the former prominent as a member of both houses of the Pennsylvania Legislature, and the latter served as president judge of the district in 1873-74, yet is best known as the originator of the movement that se- cured the National Cemetery at Gettysburg.
Adams county with Cumberland formed a judicial district until 1835, when Adams and York became a judicial district, and in 1832, Adams was placed with Fulton county to make the forty-second district. The president judges have been: John T. Henry, 1800; James Hamilton, 1805; Charles Smith, 1809; John Reed, 1820; Daniel Durkee, 1835; William N. Irvine, 1846; William N. Durkee, 1849; Robert J. Fisher, 1851; David Wills, 1873; William M. McClean, 1874; S. M'Curdy Swope, 1897.
Of these judges only Wills and McClean are Adams county men and receive men- tion elsewhere in this volume.
The associate judges have been: William Gilliland, John Agnew, William Scott, Wil- lianı Crawford, Daniel Sheffer, William McClean, George Wills, George Smyser, James McDevitt, and John McGinley and S. R. Russel, 1851; David Zeigler and Dr. David Horner, 1861; Isaac Weirman, 1863; Isaac Robinson, 1866; J. J. Kuhn, 1868; Robert McCurdy, 1869; J. J. Kuhn, 1873; A. F. White and William Gulden, 1880; John L. Jenkins, David G. Donohue.
Cumberland County. About six hun- dred members have been admitted to this bar up to the present time, most
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of whom have been forgotten. But when we glance over the long list of those who have practiced at out courts within the period of a century and a half, we have just reason to be proud. Many, whose names will long be remembered, were, upon the bench or at the bar, of great judicial learn- ing, and others were orators of peerless eloquence. Many of these men were men of strong personality, of sterling integrity, patriots in short, as well as lawyers, who fought in the field as well as legislated in the forum to lay firm and fast the founda- tions of this commonwealth which we en- joy. In the past, therefore, the bar of this county undoubtedly ranks amongst the foremost of our State, and like a Douglass can stand "bonnetted before a King" and bow down to none.
The Bar of Cumberland county had its birth in the Colonial period of our history, in the days when Pennsylvania was a Pro- vince, and when George II was the reign- ing king. His imbecile successor, George III, whose stubborn policy provoked the colonies to assert their rights, had not yet ascended the throne of England, and the Revolution was as yet far distant.
The increasing population of this por- tion of the Province made courts necessary in this section, which had been a part of Lancaster.
The county was therefore formed and the courts of justice established by the Royal authority under the seat of the Pro- prietaries, first at Shippensburg (four terms dating from 24 of July, 1750, to and including April Term 1750) but on the choice of the county seat were removed to Carlisle in the succeeding year.
Let us look into this first court held at Shippensburg. Samuel Smith, of whom we know little, except that he had already been a member of the Colonial Assembly, with his associates, presided.
John Potter was Sheriff. Hermanus Alricks, of Carlisle, who came from Hol- land in 1682 with dispatches to the Dutch on the Delaware, and who was, himself, at this time (1749-50) the first representative of Cumberland county in the Assembly, was clerk. George Ross, who had just studied law under Samuel Johnson, of York, and who was afterwards a signer of the Declaration of Independence, appears as the first "Prosecutor for the Crown."
The lawyers of that day traveled "upon the circuit." Those of older York and Lancaster practiced, during the whole of this anti-Revolutionary period, in the courts at Carlisle, even as the resident law- yers of the infant town of Carlisle practiced in the courts of York and Lancaster. Among the number were those who be- came eminent as soldiers during the Indian War and the Revolution, and three of those who practiced at our bar (the greatest of whom, by far, was a resident practitioner) Smith, Ross and Wilson, were subsequently signers of the Declaration of Independence.
The courts of that day were presided over by the justices of the respective coun- ties, all of whom were ex-officio judges of the Courts of Common Pleas and Quarter Sessions. They knew little, frequently, of technical law, and were generally selected because of their well-known integrity of character, extended business experience and sound common sense, but by close ob- servation and long experience they became well acquainted with the duties of their po- sitions and fitted to adjudicate the import- ant interests submitted to their charge. Nor was the Bar inferior. Gentlemen eminent for their legal abilities and oratorical pow- ers practiced before them, and by the gravity of their demeanor and respectful behavior shed lustre upon the proceedings and gave weight and influence to the de- cisions rendered.
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The first court held at Carlisle was in ber of the Supreme Executive Council, and the year immediately succeeding the for- mation of the county, and was "a court of general Quarter Sessions, held at Carlisle, for the County of Cumberland, the twenty- third day of July, A. D., 1751, and in the twenty-fifth year of our Sovereign Lord, King George II, over Great Britain, &c. Before Samuel Smith, Esq., and his asso- ciate justices."
These justices who presided were com- missioned, through the Governor of the Province, by the King. Their number seems to have varied from time to time, and, in presiding in the courts, they seem to have rotated without any discoverable rule of regularity. In the criminal courts, for the lighter offenses there were fines and imprisonments and for felonies the ignomi- nious punishment of the whipping post and pillory.
In the beginning of our history the pub- lic prosecutor was the Crown and all crim- inal cases were entered accordingly in the nanie of the King. George Ross was the Public Prosecutor for the Crown from 1751 to 1764; Robert Magaw followed in 1765- 66, and Jasper Yeates in 1770. The wealthy and aristocratic Benjamin Chew, who was a member of the Provincial Coun- cil, and afterwards, during the Revolution, a Loyalist, was, at this time (1759-68) At- torney General, and prosecuted many of the more important criminal cases, from 1759 to 1769, in our courts. He was, in 1777, with some others, received by the Sheriff of this county, and held at Staun- ton, Va., till the conclusion of the war.
The first admission to the Bar of Cum- berland county, of which there is any rec- ord, was that of William McClay, in Octo- ber term, 1760. He was of a prominent family near Shippensburg. He does not seem to have practiced. In 1781 he was elected to the Assembly. He was a mem-
in 1788, was elected as our first repre- sentative to the United States Senate. He was a personal friend of Washington, but was always in unison with the administra- tion. He seems to have been a thoroughly honest Scotch Presbyterian, a sort of bu- colic critic upon the administration, as his recently published diary proves. He went with Washington to the theatre, sat with him in the same box, but his reflections upon the play as not sufficiently tending to inculcate a moral purpose would have fitted a Puritan of Cromwell's time. He married Mary, a daughter of John Harris, the founder of Harrisburg. He died April 16, 1804.
The earliest practitioners at our bar, from 1760 to 1770, were James Smith, of York, James Campbell, Samuel Johnston, Jasper Yeates, Robert Magaw, George Stevenson, James Wilson, James Hamilton (afterwards Judge), David Sample and David Grier, while, in the first year of our independence, (1776) we find the additional names of John Steel, Edward Burd, Robt. Galbraith and Col. Thomas Hartley.
Who were these men? George Ross was the son of an Episcopal clergyman; born at New Castle, Del., (but then part of Penn- sylvania) in 1730. He began the practice of law in Lancaster and in our courts in 1751 and his name is found as a practitioner in our courts as late as 1772. He was a mem- ber of the Colonial Assembly (1768 to 1776) and of the Continental Congress (1774 to 1777). He was a signer of the Declaration of Independence. He died at Lancaster in July, 1778. He was a handsome man, with high forehead, oval face, regular features, and long hair worn in the fashion of the day.
Col. James Smith, of York, was an Irish- man and a wit, a jovial soul of the lawyer on the circuit. From Graydon's Memor-
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ies we learn that, after he had been ad- mitted as a member of the bar, he settled in the vicinity of Shippensburg, but after- wards removed to York, where he contin- ned to reside until his death, July 1I, 1806, aged about ninety-three years. He was a member of Congress from 1775 to 1778. He was a signer of the Declaration of Inde- pendence, and was a colonel in the Revolu- tion. He retired from the practice of law in about 1800.
The name of James Wilson, LL. D., ap- pears upon the records of our court as early as 1763. Born in Scotland, in 1742, he received a finished education at the Universities of Edinburgh and Glasgow, and under such instructors as Dr. Blair in Rhe- toric and Dr. Watts in logic. He came to Philadelphia in 1766, read law with John Dickinson, the colonial governor and founder of Dickinson College, and when admitted, took up his residence in Carlisle. In an important land case (between the Proprietaries and Samuel Wallace) he had gained the admiration of the most eminent lawyers of the Province, and had at once taken rank second to none at the Pennsyl- vania Bar. But his life was to have a wider sphere. At the meeting in Carlisle, in July 1774, which protested against the action of Great Britain against the colonies, he with Irvine and Magaw, was appointed a dele- gate to meet those of other counties of the State as the initiary step to a general con- vention of delegates from the different col- onies. He was subsequently a signer of the Declaration of Independence, and when that motion was finally acted upon in Con- gress, the vote of Pennsylvania was carried in its favor by the deciding vote of James Wilson, of Cumberland county. "He had," says Bancroft, "at an early day seen inde- pendence as the probable, though not the intended result of the contest," and al- though he was not, at first, avowedly in
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