History of York County, Pennsylvania : from the earliest period to the present time, divided into general, special, township and borough histories, with a biographical department appended, Part 85

Author: Gibson, John, Editor
Publication date: 1886
Publisher: F.A. Battey Publishing Co., Chicago
Number of Pages: 1104

USA > Pennsylvania > York County > History of York County, Pennsylvania : from the earliest period to the present time, divided into general, special, township and borough histories, with a biographical department appended > Part 85

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It is a difficult matter to state just when the York bar was established. Whether to give it the date of the first court or the date of admission of the first attorney who hung out his shingle in York, is a question. Mem- bers of the Lancaster, Philadelphia and other bars would come here at the different terms of court, stay through the term, and then leave. It is true that, when they came, they would move each other's admission, and be admitted as "attorneys of the courts of Com . mon Pleas and Quarter Sessions of York

County"; which seems to imply the existence of a bar. But the most reasonable and just plan is to give as the date of the foundation October 28, 1755, on which day Samuel John- ston was admitted. For five years he was the York bar. In 1760, the bar became plural, James Smith being admitted. In 1764, it again became of the singular number, Mr. Johnston becoming prothonotary, Mr. Smith being, according to Graydon, the only prac- ticing attorney. In 1769, Thomas Hartley was admitted, and then the accession of home lawyers became more frequent.

Although the before mentioned trustees had been appointed in 1749, by act of Assembly, to build a court house, yet nothing was done toward performing that trust until 1754. In that year, the commissioners made a number of contracts for the material and construction and the long-looked-for and much needed house of justice was commenced. But it was not completed until the beginning of the year 1756. Up to this time the courts had been held in private houses, * probably those of the justices themselves.

Nothing of any consequence in or concern- ing the courts of the county took place in the twenty years following, and they were held un- interruptedly up to the year 1776. It might be worth noticing that the year 1765 is memor- able from the fact that in it more attorneys (twelve) were admitted to the bar than in any year before or since, and the 23d of July, that year, as being the most prolific day, six being added in it. The year 1822, stands next with eleven admissions. However, this placid flow of justice was brought to a sudden stop in 1776. The War of the Revolution had begun the year before, but had no influence upon the holding of the courts. It is a mat- ter of general history that on the 15th of May, 1776, the Continental Congress came to a re- solution, after setting forth an invincible array of reasons, that it be recommended to the respective assemblies and conventions of the United Colonies to establish such govern . ment as should best conduce to the happiness and safety of their constituents in particular, and America in general. This resolution alone must have disturbed our patriotic jus- tices greatly; nevertheless, we find them hold- ing an Orphan's Court on the 6th of June, 1776. Courts of Quarter Sessions and Com- mon Pleas had been held at the last regular terms. It is also a matter of history, that on the 18th day of June, 1776, the Executive Council of the province warmly seconded the action and sentiment of the Continental Con- gress, and at once called a Constitutional

*Gloss.

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Convention. This seemed to be the finishing stroke, for the justices held no courts in July, in which was a regular Quarter Sessions term.

The Constitutional Convention met July 15, and formed a constitution for the Com- monwealth of Pennsylvania. In Section 26, Courts of Quarter Sessions, Common Pleas, and Orphans' Court, were appointed to be held quarterly in each city and county. The same convention, on the 3d of September, appointed Michael Swoope, of York County, one of the justices of the peace for the State at large, and Robert McPherson, Martin Eichelberger, Samuel Edie, David McCon- aughy, Richard McAllister, Henry Slagle, Matthew Dill, William Rankin, William Lees, William Bailey, William Scott, Will- iam Smith, William McCaskey, Josias Scott, Thomas Latta, William McClean and John Mickle, the younger, Esquires, justices of the peace for York County. Even then uo courts were held. The reasons are not hard to find. When this constitution was formed, two par- ties immediately sprang up in opposition and defensive, the right or wrong of which need not here be discussed. Besides, a test oath was required of all magistrates and offi- cers. In light of these facts, and also that of the great uncertainty then prevailing, it is not surprising that we find no men strong enough in their faith in the power of the convention to hold a court. All through the following winter and spring this state of suspense continued; notwithstanding, that on January 28, 1777, the Assembly passed an act to revive all the laws that were in force on May 14, 1776, which was the day before the Continental Congress recommended the States to form their own governments. Among other things, the act had declared that the courts should be held as formerly, and that all officers should exercise the same powers as on that date (May 14, 1776). On March 21, 1777, Archibald McClean, a zeal- ous and patriotic man, was appointed and commissioned prothonotary, and through his efforts the engine of the law was again set in motiou. The task he set himself was not an easy one, and many were the difficulties un- der which he labored. The offices of prothono. tary, clerk of the courts, register and record- er, were at first vested in one man, and the books of the different courts and offices had not been kept distinct and separate. The blending was such, that until he had further authority from the Executive Council, he could receive very few of the papers and records. Further, the party opposed to the constitution, declared that the last assembly had not been elected by a majority of the

people, and therefore, its acts were not bind- ing; that the officers had authority to per- form only such part of their duty as was uecessary to carry on the war; and that no courts of justice were to be opened. The- justices thought that if this were true, the evil consequences attending a neglect of duty would be less than those brought on by "an ill-timed and wrong-judged temerity." Some, morever, still quibbled over taking the test oath. In the latter part of June, 1777, McClean made strenuous efforts to bring the justices together, and with some few of them, appointed the 8th of July as a day for all of them to meet to conclude on some definite action in the juncture; but he failed. Though his efforts were still unceasingly continued, he for a long time met with no suc- cess. His frequent appeals to the Executive . Council were answered at last, by ordering, October 18, 1777, that John Morris, Jr., Esq., be appointed and authorized to attend the . next court of Quarter Sessions of the peace, for the county of York, and proseente in be- half of the commonwealth. McClean sue- ceeded in having an Orphan's Court held on the 3d of December, but not till the January term, 1778, was an indictment presented to . the grand jury in the name of the common- wealth. This is the more surprising, wheu we learn that the Continental Congress held its sessions here, from September 30, 1777, to June 27, 1778. Why its presence, the. presence of so many of the greatest men in the colonies, should not have had the effect of at least arousing the pride of the citizens in their county, will never be known.

By act of assembly, January 28, 1777, the- president and council were instructed to ap- point one of the justices in each county to. preside in the respective courts. These in- structions were not carried out with regard to York County, until November 18, 1780,. at which time Richard McAllister, Esq., was appointed and commissioned to preside here.

At a meeting of the council, November 20 1780, the Hon. James Smith. of York County,. was appointed one of the judges of the Court of Errors and Appeals. Thi+ court was in- stituted by act of assembly of February 28, 1780. It sat in Philadelphia once a year, on errors assigned upon any judgment of the Supreme Court, to reverse or affirm the- same. It was abolished by act of assembly of February 24, 1806.

The convention of 1789-90 formed a new constitution for the State. In carrying which into effect the legislature enacted that the State be divided into districts; that in each district a person of knowledge and integrity,

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skilled in the laws, be appointed and commis- sioned a president judge; that in each county a number of proper persons, not fewer than three nor more than four, be appointed and commissioned associate judges ; that the courts be holden at the same time and place as formerly; that the president judge and associates, or any two of them, and the regis- ter of wills, should have power to hold a Register's Court, and that Orphans' Courts be held. The second district or circuit consisted of the Counties of Chester, Lancaster, York, and Dauphin. The associate judges could hold any of the courts in the absence of the president judge, except that of Oyer and Terminer, which court had . cognizance of murder trials. This act was passed April 19, 1791. It placed the judiciary on an entirely new basis. The improvement was great; for, whereas before there was nothing but the skill and sense of right of the plain citizen to unravel intricate law questions, now all the knowledge and experience which a legal training and practice could give were added in the person of the lawyer. It is wonderful that the people of Pennsylvania clung so long to the old system of 1722. In the constitu- tion of 1776, no improvement was made upon it; and not till 1790 did the people really wake up to its faults. On the 13th of April, 1791, it died, murdered by public opinion. Annexed is its tombstone.

JUSTICES OF THE PEACE.

The following exhibits the names of all the justices of the peace, and of the courts of York County. with the dates of their respective commissions:

Justices before the Revolution .- A num- ber of the following gentlemen were commis- sioned twice or more frequently. The date of their first commission only is given.

John Day, September, 1749; Thomas Cox, September, 1749; John Wright, Jr., Septem- ber, 1749; George Schwaabe, September, 1749; Matthew Dill, September, 1749; Hans Hamil- ton, September, 1749; Patrick Watson, Sep tember, 1749; George Stevenson, September, 1749; John Witherow, April, 1751; Walter Buchanan, April, 1751; John Blackburne, April, 1751; John Pope, April, 1751; William Griffith, April, 1751: Herman Updegraff, April, 1751; John Adlum, October, 1755; Thomas Armor, . October, 1755; Richard Brown, October, 1755; Hugh Whiteford, Oc- tober, 1755; Michael Tanner, October, 1755; Martin Eichelberger, January, 1760; David Kirkpatrick, April, 1761; Abraham Nesbit, April, 1761; Archibald McGrew, April, 1761; David Jameson, October, 1764; Michael

Schwaabe, October, 1764: Samuel Johnson, October, 1764; Samuel Edie, October, 1764; Matthew Dill (son of Matthew Dill, who was commissioned in 1749), October, 1764; James Welsh, October, 1764; Robert McPherson, October, 1764; John Smith, October, 1764; Henry Schlegel, October, 1764; Thomas Minshall, October, 1764; Cunningham Sam- ple, October, 1764; William Dunlop, Octo- ber, 1764; Joseph Hutton, October, 1764; William Smith, December, 1764; Richard McAllister, March, 1771; William Rankin, March, 1771; Joseph Updegraff, March, 1771, David McConaughy, April, 1774; William Scott, April,1774; Benjamin Donaldson, April, 1774; William Bailey, April, 1774; Will- iam Leas, April, 1774; William McCaskey, September, 1774; Josiah Scott, September, 1774; William McLean, September, 1774; Thomas Latta, September, 1774.

Justices since the Revolution, and prior to the formation of the present constitution of Pennsylvania. - These commissions were granted by the convention which framed the first Constitution of Pennsylvania, and by the President and Conucil under that con- stitution.

Robert McPherson, September. 1776; Mar- tin Eichelberger, September, 1775; Samuel Edie, September, 1776; David McConaughy, September, 1776; Richard McAllister, Sep- tember, 1776; Henry Schlegel, September, 1777: Matthew Dill, September, 1776; Will- iam Rankin, September, 1776; William Leas, September, 1776; William Bailey, Septem- ber, 1776; William Scott, September, 1776; William Smith, September, 1776; William McCaskey, September, 1776; Josiah Scott, September, 1776; Thomas Latta, September, 1776; William McLean, September, 1776; John Mickel, September, 1776; David Jame- son, June, 1777; Samuel Ewing, June, 1777; David Watson, June, 1777; John Chamber- lain, June, 1777; Andrew Thompson, June, 1777; John Hinkel, June, 1777; John Her- baugh, June, 1777; Robert Stevenson, June, 1777; Archibald McLean, June, 1777; James Nailor, June, 1777; Thomas Douglas, June, 1777; David Messerley, June, 1776; Benjamin Pedan, June, 1777; Joseph Reed, June, 1777; Thomas Fischer, June, 1777; Peter Wolf, September, 1777; Frederick Eichelberger, September, 1777; Jacob Eich- elber, March, 1778; William Mitchell, June, 1779; John Rankin, May, 1780; David Beatty, May, 1780; Robert Chambers, Janu- ary, 1781; Michael Schwaabe, November, 1782; George Stake, November, 1782; Cun- ningham Sample, August, 1783; Michael Hahn, September, 1784; Thomas Lilly, Sep-

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tember, 1784; William Cochran, October, 1784; Jacob Rudisill, October, 1784; Mi- chael Schmeiser, October, 1784; William Gilliland, November, 1784; Daniel May, April, 1785; Conrad Sherman, June, 1785; Robert Hammersly, July, 1785; Jacob Bar- nitz, March, 1786; Henry Miller, August, 1786; David Beatty, June, 1787; Bernhart Zeigler, June, 1787; Robert Mellhanny, May, 1788; Elihu Underwood, June, 1788; Jacob Dritt, September, 1789.

The first Quarter Sessions under the new constitution was held on the 24th of Octo- ber, 1791, before Hon. William Augustus Atlee. The first indictment was against Sam- uel Pope for assault and battery, He was found guilty and fined 7 shillings and costs. The associate judges were Hon. Henry Schle- gel, Hon. Samuel Edie, Hon. William Scott and Hon. Jacob Rudisell; the last of whom was commissioned on the 17th of August, 1791. The next day before the same judges was held the first Common Pleas. Judge Atlee continued to preside over this district until the 9th of April, 1793, when he died. In December, that year, after a vacancy in the office of nearly three months, Hon. John Joseph Henry was appointed as Judge Atlee's successor. On the 22d of January, 1800, Adams County was erected out of part of York County, and, as associate judges Schle- gel, Edie and Scott lived within its limits, ' others were appointed. The appointees were Hon. John Stewart, commissioned Jannary 30, and Hon. Hugh Glasgow, commissioned July 1. On the 6th of December, this same year, Judge Rudisell died in office, but no successor was appointed. From that time on, the number of associates was two. Judge Stewart being elected a member of congress, Hon. Jacob Hostetter was commissioned Feb- ruary 28, 1801. In 1806, Chester County was separated from the Second District, leaving Lancaster, York and Dauphin. This caused no change in the district bench. In January, 1811, Judge Henry resigned his commission, and on the 18th of the same month Hon. Walter Franklin was commis- sioned president judge of the Second Dis- trict. Judge Glasgow in turn was elected member of congress, and to succeed him, Hon. George Barnitz was commissioned March 29, 1813. In 1815 Dauphin was taken from the Second District to become part of the twelfth. The same year a town clock was put in the tower of the court house. In 1818 "Judge Hostetter met the same fate as his predecessors, that is, was sent to congress." Hon. John L. Hinkel was commissioned on the 10th of December, 1818, to succeed him.

A district court was established for York County by an act of the legislature passed April 10, 1826, reorganizing the district court of the Lancaster District, to which York County was annexed. The district courts had concurrent jurisdiction with the courts of Common Pleas, and causes were transferred from the Common Pleas to them. The court consisted of a president and an associate judge, both learned in the law. Hon. Ebenezer G. Bradford was appointed president judge, and Hon. Alexander Thompson, associate. Shortly afterward, Judge Thompson was appointed President Judge of the Common Pleas of the Sixteenth Judicial District, composed of the counties of Franklin, Bedford and Somerset. Hon. Alexander L. Hays was appointed his succes- sor. April 8, 1833, York and Lancaster were formed into separate districts, but the Lancaster court was given jurisdiction of both till December 16 of that year, to enable those to make the proper arrangements, who wished for a change of venue after the sep- aration. On that day, Hon. Daniel Durkee was appointed judge of the York District. The act of separation authorized the appoint- ment of only a single judge for each dis- trict. Judge Durkee held the office until it expired, through the cessation of this kind of court in 1840. The district courts were probably established for some particular pur- pose, as they lasted only fourteen years. The act of 1833 named the date of cessation May 1, 1840. They were intermediate be- tween the Supreme Court and the county courts, and the cause of their organiza- tion may have been only to relieve the Su- preme Court. Their establishment in 1826 was merely a reorganization, for the district courts had been in use in the province before the Revolution.

On the 14th of May, 1835, York and Adams Counties were separated from the Second Dis- trict and became the Nineteenth Judicial Dis- trict, which title York still bears. Hon. Daniel Durkee, judge of the district court, was also commissioned president judge of the Common Pleas of this district. By the act of 1790, a certain number of associate judges were appointed in each county, not district, so that this change of district made no change necessary in that office. The associ- ates at this term were Judges Barnitz and Hinkel. In 1838 a constitutional convention met and made numerous amendments to the constitution, none materially effecting the judicial system. The only change reaching the bench here, was the limitation of the term of office of the president judge to ten'

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years, and that of the associate judge to five years. Previous to this they were appointed for life. Judge Durkee had been on the bench for three years, Judge Barnitz, twenty- five years and Judge Hinkel twenty years.

About this time the question of a new court house began to be discussed and finally became an issue in county politics. The com- missioners were certainly very poor politicians (for the measure seems to have been unpopu- lar), or else wise beyond their generation; for in 1840, the present court house was in course of construction, and on Monday, August 26, 1841, it was opened for the sitting of the court. It was erected at a cost of more than $100,000, but the true economy then exer- cised is evident. The building is now in use, and surely none can now wish for a bet- ter. It is handsome; it is substantial; and as for size, it can readily be enlarged when necessary. The steeple was added in 1847. By the erection of the new court house, was rendered apparently useless the old court house in Centre Square made famous, nay sacred, by the session of the Continental con- gress within its walls. It is remembered now with the greatest reverence. Vandalism, even in this over practical age, is accounted a most egregious social crime, yet it was com- mitted by the citizens of York in 1841. In September, that year, this sacred building, this Revolutionary veteran, that would occupy a warm part of our hearts now, was torn down. It was a strong building and had been a number of times " internally regener- ated." It might now stand, with its elder sister in Philadelphia, the State House, a common memorial. As was beautifully re- marked at the time, " not one brick should be touched, nor should the structure be re- moved one inch from its site, for the time would come when pilgrimages would be made to those buildings so intimately associated with the toils and triumphs of the Revolution, -that they would become the Meccas of Free- dom, where her sons would congregate to re- kindle in their bosoms the sacred flame of gratitude to the deliverers of their country, and of devotion to those principles which they had defended. "*

The convention of 1838, in determining the plan of the inauguration of the system, ordained that the terms of those president judges who had held the office less than ten years should expire upon the 27th of Febru- ary next after the end of ten years from the date of their commission. It also ordained that the associate judges, should be divided into four classes, according to seniority of

commission; the terms of those in the first class to expire on the 27th of February, 1840; the second, the same day, 1841, and so on. Judge Barnitz was in the first class. To suc- ceed him Hou. Samuel C. Bonham was ap- pointed March 26, 1840. Judge Hinkel was in the second class and his successor was Hon. George Dare, appointed April 5, 1841. Judge Durkee's term would have expired February 27, 1846, but he resigned shortly before that date and resumed the practice of the law. Gov. Shunk, on February 10, ap- pointed Hon. William N. Irvine to fill the position. Judge Irvine resigned his com- mission in the spring of 1849, and Judge Durkee was re-appointed April 6th. On the 28th of March, 1746, Hon. George Hammond was appointed to succeed Judge Dare, and Hon. Jacob Kirk was appointed in 1850 to succeed Judge Bonham. The beuch then, the last wholly appointed bench in the county, consisted of Hon. Daniel Durkee, president judge; Hon. George Hammond, associate judge, and Hou. Jacob Kirk, associate judge.

In 1851 the constitution was again amend- ed. The judgeship was made elective, a vast improvement upon the former system. The qualifications, titles and number of judges remained the same, but the fight for the of- fice was removed from Harrisburg to York. The first election after the establishment of the new plan, was held on the second Tues- day of October, 1851. Hon. Robert J. Fisher was elected president judge, Hon. Isaac Kol- Jer and Hon. Mills Hays, associates. Judge Koller died in 1854, and, as it had been or- dained that when a judge died in office the governor should appoint a successor, who was to hold the position until the next gen- eral election, Hon. Johu Rieman was ap- pointed November 6, 1854. He was elected in 1855, and again in 1860. In 1856 Hon. Adam Ebaugh was elected to succeed Judge Hays. Judge Rieman was elected in 1860, receiving then his third commission. In 1861 Judge Fisher was re-elected president judge, and Judge Ebaugh was re elected associate. In 1862 Judge Rieman died, and Hon. David Fahs was appointed, November 5, 1862, to fill the vacancy. He held the office for a year, when Hon. Peter McIntyre was elected. In 1866 Hon. David Newcomer was elected to succeed Judge Ebangh. In 1868 Judge Mc- Intyre was re-elected, but served only a year of his second term. He died in 1869. Hon. Jacob Wiest was appointed to fill the vacancy on the 30th of October. His term lasted one year. He was followed by Hon Peter Ahl, elected in 1870. Judge Fisher was again re-elected in 1871. At the same time Hon.

* York Republican, 1841.

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John Moore was elected to succeed Judge Newcomer. Judge Ahl died in 1873, and Hon. J. C. E. Moore was appointed to fill this vacancy on the 24th of May. He held the position for six months. Hon. Valentine Trout followed him, elected that October. The bench, then, the last bench in York County in which there were any associates, consisted of Hon. Robert J. Fisher, presi- dent judge; Hon John Moore, associate judge, and Hon. Valentine Trout, associate judge.

By the constitution of 1873 the office of associate judge not learned in the law, was abolished in counties forming separate dis- tricts. Counties containing 40,000 inhabi- itants were to constitute separate judicial districts. So York County, having a popu- lation of 76,000, became of itself the Nine- teenth. Adams County, formerly a part of this, the Nineteenth, became the Forty-sec- ond. The register's court was abolished. The bench still retained its two-fold charac- ter for a time, as the constitution provided that all associate judges in office at its adop- tion should serve out their full terms. Judge Moore's term expired in 1875; Judge Trout's in 1878. The latter, upon leaving the bench, was given a supper as the last representative of the office of associate judge in York County.

By act of April 12, 1875, York County was given an additional law judge. At the gen- eral elections that year, Hon. Pere L. Wickes was elected to the position. At the gen- eral election of 1881 Hon. John Gibson was elected to succeed Judge Fisher, who had served three terms. *

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History of York County, Pennsylvania : from the earliest period to the present time, divided into general, special, township and borough histories, with a biographical department appended, Part 85

Author: Gibson, John, Editor Publication date: 1886 Publisher: F.A. Battey Publishing Co., Chicago Number of Pages: 1104

Author: Gibson, John, Editor
Publication date: 1886
Publisher: F.A. Battey Publishing Co., Chicago
Number of Pages: 1104