USA > Pennsylvania > Cambria County > History of Cambria County, Pennsylvania, Volume I > Part 17
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On April 15, 1844, Chief Justice Gibson and all the associate judges excepting Mr. Justice Huston, who was ill, sent a com- munication to Governor Porter, who submitted it to the As- sembly, wherein they said the proposed procedure was invalid; that the legislature could not form a court of oyer and terminer by excluding the president judge and including a justice of the supreme court. It was in accordance with these views that the amended act was, passed, which eliminated the objectionable features and did not create a new court of over and terminer, but directed the supreme justice to sit with the two associate judges of Cambria and hear the motion. Mr. Justice Rodgers came to Ebensburg heard the argument and decided it adversely to the defendants. The friends of the condemned had one more move, which took place a few days before the day of execution. They were assisted in their escape, and the Flanagans were never heard of after that occasion. In the March term, 1845, Sheriff James S. Murray was indicted for permitting a voluntary escape of the convicted men, but was acquitted for the lack of evidence.
Michael Smith, of Johnstown, who was convicted of the murder of John Minehan, also escaped from the county jail in the night a few days before the date set for his execution. No trustworthy tidings were ever known of his whereabouts. Smith was known as "Peg Leg," as he had lost a limb, and notwithstanding this marked defect he was able to elude all the searches and effort for his rearrest.
In all the original deeds given by Joseph Johns for lots
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in the city of Johnstown, which were four rods in width and sixteen rods in length, he reserved a ground rent of one dollar per year, payable in specie. Most if not all of these reserva- tions were settled by contract; however, to protect the holder an Act was passed April 27, 1855, P. L. 369, providing that where no claim was made for such ground rent or annuity for a period of twenty-one years by the owner, a release or ex- tinguishment thereof should be presumed, and such charge should thereafter be irrecoverable.
The action of David Gillis against the Pennsylvania Rail- road Company for the platform accident in 1866, was tried in Cambria, and Judge Taylor granted a nonsuit, when an appeal was taken to the supreme court. The appeal should have been heard in Pittsburg in the usual order, but for some reason a special Act was passed April 6, 1868, P. L., directing that it be heard at Harrisburg at the next sitting of the court. Abram Kopelin, R. L. Johnston and Daniel MeLaughlin represented the plaintiff, and C. L. Pershing and John Scott the defendant. On July 2. 1868. Chief Justice Sharswood rendered an opinion of the court affirming Judge Taylor, 59 Pa., 141.
A special act was passed April 10, 1867, P. L. 1130, where- in any person who had been injured in the platform accident, which occurred at Johnstown September 14, 1866, and who believed a fair trial could not be had in Cambria, the cause should be removed to Center county for trial; however, this act was repealed at the next session.
As late as 1825 it was the custom in the courts of Cambria for the jury to sign their names on the back of the indictment to their verdicts of either conviction or acquittal.
The usual plea for defendant in a criminal action was non cul et de hoc. etc., entered on the indictment, when the attorney general would plead similiter. In 1808, the form of the action which is now practiced as the "Commonwealth vs. John Doe, was "Respublica vs. John Doe."
Under the Act of February 24, 1806, 4 Smith, 270, the courts were to meet four times a year; the common pleas to continue for one week, and the court of quarter sessions for "four days only."
Under the Act of March 19, 1810, 5 Smith, 125, no attorney was allowed, nor was the court permitted to cite or use a British decision which had been rendered prior to July 4, 1776.
In "The Mountaineer" for May 4, 1840, William A. Smith,
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prothonotary. published a notice that James Thompson, presi- dent judge of the district court composed of Erie, Crawford and Venango counties, would hold a special court in Ebens- burg, on June 29, 1840, to try the Spier vs. O'Neil and the Adams vs. Easton et al., cases, which was required by an Act of Assembly to be published for sixty days. In the notice he adds the rules of the court for Cambria county require that in "all cases at issue a jury shall be sworn."
NAVIGABLE STREAMS OF PUBLIC HIGHWAYS.
The following named streams in Cambria county and lead- ing into it have been declared public highways for floating rafts, boats, crafts and other purposes, to wit :
Beaver creek, Section 6. Act of 25 March, 1850, P. L. 281.
Beaver Dam creek, Section 6, Act of 25 March, 1850, P. L. 281.
Blacklick creek, Act of 7 March, 1829, 10 Smith, 286. Also, 14 April, 1828, 10 Smith, 219.
Burned Dam run, Act of 15 April, 1863, P. L. 485.
Clearfield creek, Act of 26 March, 1814, 6 Smith, 187.
Conemangh river, Section 5, Act of March 29, 1787, 2 Smith, 411.
Killbuck creek. Section 6 Act of 25 March, 1850, P. L. 281. Kiskiminitas river, Section 1, Act of 9 March, 1771, 1 Smith, 324.
Kiskiminitas river, Section 5, Act of March 29, 1787, 2 Smith, 411.
North Beaver Run dam, Section 6, Act of 25 March, 1850, P. L. 281.
Slate Lick run. Section 6, Act of 25 March, 1850, P. L. 281. Stony Creek river, Act of 6 March, 1820. 7 Smith, 255.
West branch of the Susquehanna river, Section 1, Act of 9 March, 1771, 1 Smith, 324. Also, section 24, Act of 3 May, 1832. P. L. 431. Also, an Act relating to square timber taken adrift, Act of 11 February, 1873, P. L. 33.
HOW AN INCIDENT IN THE OLD COURT HOUSE AT EBENSBURG DIRECTLY RESULTED IN THE ELECTION OF TAYLOR AS PRESIDENT OVER CASS.
When the Cambria Guards elected officers in the old court house at Ebensburg, prior to their departure for Mexico, in 1846, T. C. McDowell and C. H. Hever, both members of the bar, were candidates for second lieutenant. Hever was elected, and MeDowell in a speech pledged himself to go with the com- pany as a private. He did go as far as Pittsburg with the company, but he was still piqued at his defeat, and returned home before the company was mustered into the service.
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Shortly afterwards he was nominated as the Democratic candi- date for state senator, the district consisting of Cambria, Clear- field, Indiana and Armstrong counties. William F. Johnston, of the latter county, was the Whig candidate. Soldiers in the field had the right to vote, and papers were forwarded to the proper officers in Mexico for that purpose. The Whigs indus- triously used MeDowell's failure to be mustered in, and the soldier vote was practically solid against him, which overcame the large Democratic majority in the district, elected Johnston, and made the senate Whig by one vote. The members of the Cambria Guards refused to vote at all.
Johnston was elected speaker of the senate, and on the resignation of Governor Shunk on July 9th, 1848, became gov- ernor. He was not sworn in until July 26th, 1848, there being in interregnum in the meantime. The controlling power in politics in the state was the Portage railroad and the Canal system and the elevation of Johnston to the gubernatorial chair, of course, changed the politics and personnel of the management of these public improvements and made possible the election of Johnston as governor, and of the Whig electoral ticket in the fall of 1848. The change in the electoral ticket of Pennsylvania, brought about by the chain of events narrated above, beginning at Ebensburg, was sufficient to elect Zachary Taylor president of the United States instead of Lewis Cass. Taylor had 163 electoral votes and Cass 127. Pennsylvania had 26 electors and had they voted for Cass instead of Taylor, the former would have had a majority of 16.
In view of the fact that Judge Jeremiah Sullivan Black was the most eminent and distinguished member of the Cambria county bar, and that he was a native of Somerset county, born two years after Cambria was organized, we give his judgment on the right of expatriation, which is the foundation of our laws of naturalization of citizens.
President Buchanan requested the opinion which Judge Black gave as his attorney general, and for purity of diction, soundness of legal principles and strength of character it has no superior.
The principle of the right of any person to absolve himself from his allegiance was a mooted question for all time, until an Act of Congress, passed July 27, 1868, declared the denial of it to be inconsistent with the fundamental principles of our government. It was the Ernst opinion which convinced con-
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gress of the correctness of the principle. The document dis- closes the natural gifts of the author as being definite, concise and the positiveness of his judgment, without a surplus word. We quote :
Attorney General's Office, July 4, 1859. Sir :
Christian Ernst is a native of Hanover, and emigrated to this country in 1851, when he was about nineteen years of age. Last February he was naturalized, and in March, after procur- ing a regular passport, he went back to Hanover on a temporary visit. He had been in the village where he was born about three weeks, when he was arrested, carried to the nearest mili- tary station, forced into the Hanoverian army, and there he is at the present time unable to return home to his family and business, but compelled against his will to perform military service.
This is a case which makes it necessary for the government of the United States to interfere promptly and decisively. * What you will do must of course depend upon the law of our own country as controlled and modified by the law of nations.
The natural right of every free person, to throw off his natural allegiance, is incontestible. I know that the common law of England denies it; and that some of our courts, misled by British authority, have expressed (though not very decisively) the same opinion. But all this is very far from settling the question. The municipal code of England is not one of the sources from which we derive our knowledge of international law. We take it from natural reason and justice, from writers of known wisdom, and from the practice of civil- ized nations. All these are opposed to the doctrine of per- petual allegiance. It is too injurious to the general interests of mankind to be tolerated Justice denies that men should either be confined to their native soil or driven away from it against their will.
In practice, no nation on earth walks or ever did walk by the rule of the common law.
There is no government in Europe or America which prac- tically denies the right. Here in the United States, the thought of giving it up cannot be entertained for a moment. * If we repudiate it now, or spare one atom of the power which may be necessary to redeem it, we shall be guilty of perfidy so gross that no American can witness it without a feeling of intolerable shame.
In regard to the protection of our citizens in their rights at home and abroad, we have no law which divides them into * classes, or makes any difference whatever between them.
There have been and are now persons of very high reputa- tion who hold that a naturalized citizen ought to be protected
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by the government of his adopted country everywhere except in the country of his birth. This cannot be true. It has no foundation to rest upon (and its advocates do not pretend that it has any), except the dogma which denies altogether the right of expatriation without the consent of his native sovereign-and that is untenable, as I think I have already shown.
No government would allow one of its subjects to divide his allegiance between it and another sovereign; for they all know that no man can serve two masters. But a law which op- erates on the interests and rights of other states or people must be made and executed according the law of nations. *
If Hanover would make a legislative decree forbidding her people to emigrate or expatriate themselves upon pain of death, that would not take away the right of expatriation, and any at- tempt to execute such a law upon one who has already become an American citizen, would and ought to be met by very prompt reclamation.
Assuming that it was violated (municipal law of Hanover) by Mr. Ernst when he came away, the question will then arise whether the unlawfulness of his emigration makes his act of naturalization void as against the King of Hanover. I answer, no, certainly not. *
In my opinion, the Hanoverian goverment cannot justify the arrest of Mr. Ernst by showing that he emigrated contrary to the laws of that country, unless it can also be proved that the original right of expatriation depends on the consent of the nat- ural sovereign. This last proposition I am sure no man can establish.
I am, very respectfully, yours, etc.,
The President.
J. S. BLACK.
A MODEL TRIBUTE OF RESPECT TO THE MEMORY OF THE LATE CHIEF JUSTICE MARSHALL.
At a meeting of the Judges, members of the Bar and Officers of the Courts of Cambria County, held at the Court House in Ebensburg on the 30th day of July, 1835, for the purpose of pay- ing a Tribute of Respect to the memory of the late Chief Justice Marshall. On motion, The Honorable George Roberts was ap- pointed President of the meeting. The Honorable John Murray and William Rainey Esquires, Vice Presidents, and Adam Baus- man Esq., Secretary.
On motion of Mr. Canan, Resolved, That a committee of five persons be appointed to draft resolutions expressive of the views of this meeting. Wherefore the President appointed Moses Canan, Michael Dan Magehan, John Myers, Perez J. Av- ery and Jonathan H. Smith said committee. The committee having retired for a short time, the Chairman reported the fol- lowing Preamble and Resolutions, which were unanimously adopted :
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When great and good men die; When those who have per- formed important services to their country depart from amongst us, the loss is general, and the Nation feels it, In such cases cus- tom has sanctioned the public expression of sorrow, and a prop- er respect for the worthy dead requires it. It is the duty of all to venerate their memory, and to cherish the recollections of their good deeds as examples for imitation.
In the late decease of the venerable John Marshall, Chief Justice of the United States, the whole community has sustained a loss which will be long and deeply felt, By the Courts and by the Members of the Bar, his death will be peculiarly regretted. He was the great Patriarch of the law, the guide, the director and the example of the Bench and the Bar. His virtues and his talents have cast a bright Hale around his character; his decis- ions have shed a splendor upon our judicial proceedings, and given our Supreme Court a high and exalted character through- out the civilized nations of the world.
For the purpose of expressing our great respect for the venerated dead, and to do honour to the memory of departed worth, this meeting unanimously agrees to the following reso- lutions :
Resolved, That in common with our Fellow Citizens we de- plore the death of Chief Justice Marshall, a worthy man, an em- inent jurist and an upright and talented Judge.
Resolved, That the death of this great man, full of years and of honours, has created a blank in society which will not soon be filled.
Resolved, That in the life of Judge Marshall we behold much to admire, In youth he was a defender of his Country's ยท rights, and fought for her independence and Glory; in middle age he was an eloquent and able advocate; in his riper years an upright Judge and most learned expounder of our laws and Con- stitution : at all times, and in every situation a man of great purity of mind and sterling integrity. One who sustained through a long life a character pure and spotless and preserved the Ermine of Justice unstained and endefiled.
Resolved, That we approve of the plan suggested by the members of the Philadelphia Bar, of erecting a Monument to the memory of Judge Marshall by the voluntary contributions of the Members. of the Bar throughout the United States; And that a Committee of three persons be appointed by this meeting to correspond with similar Committees in other parts of the United States : Whereupon Moses Canan, Michael Dan Magehan and John Myers Esquires were appointed said Committee.
Resolved, That as a testimonial of respect for the deceased we will wear crape on the left arm for the space of thirty days.
Resolved, That the proceedings of this meeting be signed by the Officers thereof. and published in the Ebensburg "Sky" and the Johnstown "Democrat, " and that the same, with the ap-
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probation of the Court be entered on the Docket of the Court of Common Pleas of Cambria County.
GEORGE ROBERTS, President JOHN MURRAY, WILLIAM RAINEY, Vice-Presidents.
A. BAUSMAN, Secty.
CHAPTER IX.
ANTI-SLAVERY SENTIMENT-THE UNDERGROUND RAILROAD- ABRA- HAM" AND "PATRICK" SHOT BY A SLAVE HUNTER-ARREST OF HENRY WILLIS AND OTHERS FOR AIDING THE SLAVES.
The particular cause for producing Abolitionists was the provision of the federal constitution and the laws thereunder, declaring that a slave escaping from one state to another should be reclaimed and delivered to the owner, and that the United States marshal could call upon and force any citizen to assist him in his duty.
When the clause as it was finally adopted in the constitution was agreed upon, it was the concensus of opinion that slavery would become extinct by 1808, inasmuch as it was not profitable; but Whitney's invention of the cotton-gin changed this situation and property in human beings became valuable, hence the Civil war. It was this clause which prevented Mr. Lincoln from being an Abolitionist; however, he was intensely anti-slavery, and sought to prevent its spread and confine it to the southern states. It was the same cause which made William Lloyd Gar- rison the leading Abolitionist. He believed and averred that it was unrighteous for one race of people for their personal profit to make slaves of another class. This sentiment arose prior to the Missouri Compromise, and only ended at Appomattox in 1865.
During this period there was much contention over slaves escaping north of the Ohio river and Mason and Dixon's line. Much litigation occurred in the northern states, and many phys- ical combats took place in reclaiming these runaway slaves. This conflict produced a class of citizens who would not assist in preventing but who would not go as far as Garrison. They ab- solutely declined to interfere in their capture, and quietly aided in their escape. This was done through the mythical "under- ground railroad" system in the border states.
One of the favored routes from Maryland and Virginia was through Bedford, Pennsylvania, thence over the mountains by way of Geistown to Johnstown; thence to Cherry Tree, or Ebensburg, where other agents helped the fugitive to reach
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Canada, or located him in some secluded place. Another favorite route was from Bedford to Hollidaysburg, thence to Ebensburg over the mountain. It is not difficult to understand why aid was given them, as it would be done today under the same cir- cumstances. Few persons of the present generation fully ap- preciate the evils of slavery as it existed in our country; there- fore we will recall a few cases which show its extent and tragic results.
It is probable that the most tragic case is the one known as the Garner case, which occurred in 1856. Simon Garner, his wife and son Robert, were the slaves of Mr. Marshall, of Ken- tucky. Margaret Garner was the wife of Robert Garner, and she and her four children belonged to a Mr. Graves of that state, thus the husband and family were separated. They es- caped across the Ohio and took refuge in Cincinnati. The slave hunter followed and secured warrants for their arrest. When the deputy marshal endeavored to serve it, he found the house barricaded wherein they had taken refuge. A desperate fight followed, but the fugitives were overpowered and taken. Margaret, however, had determined that neither she nor her children should ever again be in slavery if she could prevent it. During the conflict she realized that they were going to be cap- tured, and, retiring to where her children were, she killed one of them, cut the throats of two others, and severely bruised the baby in her endeavor to save them from slavery.
Many ardent Abolitionists resided in Cincinnati, but, as in other places, there were some who would not go as far in assist- ing the slaves as others. In the Garner case this class thought it would save the fugitives if they should be arrested in Cincin- nati and tried for homicide; therefore, Margaret was indicted for murder, and her husband Robert and her father-in-law Si- mon were charged with being accessories to the awful deed, Their friends weakened and allowed the slaves to be taken by the owners. With the intent of seeking death on the voyage down the Ohio, Margaret jumped overboard with her babe clasped in her arms. Sad to relate, she was rescued, and when informed that the child had been drowned, she expressed grati- fication that her baby would never be a slave.
In contradistinction to the former case is the Christiana af- fair which occurred in Lancaster, Pennsylvania, in 1851. Ed- ward Gorsuch of Maryland, and his son, with a deputy marshal and a number of friends, attempted to capture a fugitive slave
1
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who had taken refuge in a house in the village of Christiana. Two shots fired at the house aroused the neighbors and some colored men, who appeared with arms. Among those assembled were two Quakers, Castner Hanway and Elijah Lewis, who tried to persuade both parties to disperse, but to this plea the deputy marshal ordered them to join and assist him as provided by the law ; they declined and urged him to leave. Gorsuch and his son then fired on the colored men, who returned the attack and killed both, all the others seeking safety in flight. Hanway and Lewis were indicted for treason, and tried before Judge Grier, in Lan- caster, and Thaddeus Stevens was of counsel for the defend- ants. The accusation and proof were considered preposterous by Judge Grier, who charged the jury to acquit them. Thus end- ed the Christiana affair. Judge Grier subsequently became an honored justice of the supreme court of the United States.
It was under these conditions that the "underground rail- road" prospered. The leading citizens of our county who gave their assistance in this way were: John Cushon, Henry Willis, William Barnett, John Myers, Wallace Fortune, Isaac Weath- erington, Frederick Kaylor and Mr. and Mrs. James Heslop, of Johnstown; William Slick, Sr., who resided on a farm near Geistown; A. A. Barker, of Ebensburg; Dr. George Gamble of Cherry Tree; and George Atchison, who lived near Burnside, on the Susquehanna river.
A citizen of Indiana county who took a prominent part in the emancipation of the slaves, was Albert Hazlett, a lieutenant of the little band which attacked the arsenal at Harper's Ferry, Virginia, under the leadership of John Brown, the martyr, on the night of October 16, 1859. In the diary kept by John Brown, beginning March 10, 1859, he has this entry: "March 16th. Wrote A. Hazlett, Indiana P. O., Indiana.county, Pa."
In a letter from Brown to John Henry Kagi, his adjutant, mailed at Chambersburg about July 12, 1859, he says: "Write Carpenter and Hazlett that we are all well, right, and ready as soon as we can get our boarding house fixed, when we will write them to come on and by what route. I will pay Hazlett the money he advanced to Anderson for expenses trav- eling."
Colonel Lee captured Hazlett and Anderson, who were the last men in the arsenal, all the others having been killed or cap- tured.
Many escapes were made through our county, but the most
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prominent was that of the shooting of "Abraham" and "Pat- rick" near Geistown, on the 10th of February, 1837. These slaves were young men with no other names than are here given, and were the personal property of Colonel and Dr. John Sheard, of Morgan county, Virginia. The colored boys had reached a point not far from Geistown when the hunters, coming in sight of the runaways, shot Abraham in the knee and Patrick in the right shoulder. Of course they were captured, and taken to the farm house of William Slick, Sr., who was an agent of the Un- derground Railroad, where medical aid and such kindness were. extended as could only come from a family which was in sym- pathy with the slave. William Slick, Jr., born August 28, 1823, a son of the former, and now an esteemed resident of Johnstown, recalls the affair and his youthful efforts to give assistance to the wounded slaves.
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