History of the County of Westmoreland, Pennsylvania, with Biographical Sketches of Many of its Pioneers and Prominent Men, Part 73

Author: George Dallas Albert, editor
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The bar in Pennsylvania was exceptionally good, and had always received full recognition. Practice was simple, and attorneys were admitted by the jus-

1 History of the English Colonies in America, p. 232.

" There was an old English Court of Vice-Admiralty, from which there was an appeal to England, but this court was so unpopular that the judge at one time complained that he could not perform the duties of his office. The judiciary of Delaware was similar in arrangement, but formed an independent organization .- Ibid. .

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tices after slight examination; but the law, as a pro- fession, had many excellent representatives in the colony, and drew to its ranks many men of learning and ability. Andrew Hamilton, who defended Zen- ger, was the first" American lawyer who gained more than a local reputation, whose ability was recognized in England, and the only one whose reputation and ability in colonial times was so recognized.

Touching the subject of crimes and offenses in the colony in the eighteenth century, Lodge, in the " His- tory of the English Colonies in America," writes :

" At last the new theory of criminal legislation was abandoned fu the year 1718. Work-housse sed jalle were established, the number of capl- tal offenses was increased from one to fourteen; every felony, except larceny, was made capital on a second offense, and matters went on in Pennsylvania in the ordinary fashion of the time. At the time of the Revolution, while, as compared with England, the amount of crime was trifling, it was, as compared with the other colonies, very conelderable, and although infrequent, there was mach variety. About the middle of the century there was a great deal of hanging for house-breaking, horse-stealing, and counterfeiting. Highway robbery wes not unknown, . and informeri were tarred and feathered in the back counties by a popa- lation loyal to the cause of untaxed liquors. . . . The habit of rioting spread to the other to" ?1 [i.e., from Philadelphia], sad the brutal Aes- macre by the Bootch-Irish "Paxton Boys" of the Indians at Conestoga was the most notorious result of this turbulent disposition. The rioters And the criminals were almost wholly Irish. Not one mative or Eng- Wishman was found in any ten of the inmates of jails, and the unfortu- nate prominence of Pennsylvania in this respect was attributable to the character of a large portion of her immigrants."

THE COUNTY JUSTICES.

The act under which the judiciary was regulated was of old date (May 22, 1722): Under it a Court of Quarter Sessions of the Peace and Jail Delivery was to be holden in every county of the Province four times in a year. The Governor or his lieutenant commissioned the justices who held the courts. Any three of the justices could hold private or special courts, and in or out of session they were empowered to take recognizances. The authority of these county justices was modeled after the authority of the justices of the sessions in England, as the justices of the Su- preme Court, under this law, had full authority to exercise the judicial powers of the justices of the courts at Westminster.

The jurisdiction of the judges of these county courts was extensive. Thus they were empowered to lay out cartways to the public roads, to appoint viewers of partition fences, to superintend the erection of bridges and the laying out of highways. No member of a court of justice was allowed to sit while his own cause was on trial. They were empowered to appoint persons to receive the claims for the reward offered for the killing of such birds and animals as upon which a bounty was laid by law. They could also grant writs of replevin, could issue writs of attach- ment, and award process for taking lands in execution, and to recover on mortgage. They had authority to recommend for tavern licenses. They had the ac- knowledging of deeds, the probating of wills, and jurisdiction to recover small debts. In their magis- terial capacity they were hedged in by laws protect-

ing them, as well as the constables, if they exceeded their commission. In such casee as' fall within the penal code they had likewise an extensive judicial power. Although they could not take cognizance of such offenses as were capital, yet they could sentence a felon to imprisonment, to the pillory and stocks, and amerce him in correspondingly large pecuniary fines and forfeitures.

Besides the county justices there were other legally appointed justices of the peace with powers not so extensive. They had, and exercised ordinarily, such powers as are exercised by our justices of the peace. These were sometimes armed with a special commis- sion, called a dedimus potestatem. With all these privi- leges, therefore, these justices were an influential class, a class, in fact, in many respects apart from the rest. We cannot, indeed, appreciate or rightly comprehend their position in the social scale by comparing them with our present justices of the peace. The standard was relatively much higher. From the judicial sys- tem of the colonies, they stood for lawyer and for judge. The county justice was not only the highest judicial officer in the county, and as such sat at the sessions to decide causes, but to him was referred all such controversies as arose among his neighbors. This in his civil capacity; while in the military ar- rangement he was usually an officer. His education, such as it was, his tastes, his distinction, and the cus- tom of the carly colonists all forced him to be a military man. The magistrates were looked upon as of a separate class, although not distinguished from the others by landed wealth or by any superiority in dress or equipage. They lived among the people and as the people. Their houses were ordinarily log houses, with perhaps few supplementary articles of furniture. But there was among these undoubtedly a higher standard of sociability and a finer polish than among the common classes ; and this standard is either traceable to usage and contact with the society of the older settlements of the East, or it was a vestige of old-world manners. As a class they were high-toned, punctilious in honor, of integrity; and in such a sense they held their heads high over those who were beneath them. The magistrates of the early colony were to the common people what the justices of the peace in England were to the common people two hundred years ago.

Those penal laws, of which we first spoke, modeled after those of England, were, beyond our imagining, severe. The most trifling offense was punished by imprisonment under wretched diet and in unhealthful pens. Many of the crimes or misdemeanors for which a convict would; now be sent to the penitentiary, the county jail, or the work-house were then capital. Under this head were arson (that is, the burning of dwellings or public buildings), robbery, manslaughter by stabbing, counterfeiting, witchcraft. Although this is a true statement, we perceive, as Judge Wil- liam Bradford says, that the severity of our criminal

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laws is a foreign plant, and not the native growth of Pennsylvania.1 It was endured, but was never a favorite. Under them the county justice could, if he chose to, punish a person found judicially guilty as severely as our military laws now punish unruly sol- diers when in actual service, and in such a manner as is now utterly unknown to our civil laws. Such a recital may give us an idea of the plenary power vested in these magistrates. But although their pro- ceedings may, when we read the reports preserved to us, excite in us astonishment, yet we may observe that they seldom exercised their full authority. We may likewise reasonably conclude that they were, as compared with the same class vested with the same power in other parts of the colonies, humane men.

Touching the manner of conducting suits at law and the results of the system under the county justices, we have the observation of a distinguished person, and this in a place where one would scarcely go to hunt it if he were on that errand. St. Clair, when Governor of the Northwestern Territory, made some lengthy observations on extending the jurisdiction of a single magistrate in the trial of small causes in the Legislature of the Territory on the motion of Judge Symmes. The Governor was opposed to the motion, and probably had his preconceived notions of opposi- tion from his notice of the practical workings of the county courts under the colonial and ante-revolu- tionary period. That he was describing the system as he had seen it in vogue at Hannastown there can be no reasonable doubt.' He says, " A worse mis- chief is still behind,-this kind of jurisdiction fosters a contentious, revengeful spirit among the people. ] have seen some of the meetings before magistrates in the United States on their law days, as they call them, when the business was transacted with little or no solemnity, and where a looseness was allowed for abuse and recrimination that had a bad effect, not only on the manners of the parties litigating, but on those of all the auditors, and the very considerable numbers attending them, especially on the afternoons of Saturdays, the time generally chosen by those who had no manner of business, and they seldom failed of returning worse citizens, worse neighbors, and worse men, and in settling one dispute the seed of a great many were sown, besides much extortion is practiced, to be convinced of which it is only necessary to look into the statute-book of any of the States, where nu- merous laws are to be found for preventing and cor- recting it."

In the array of the names of those nominated as conservators of the peace we have a list of men who, as a general thing, were upright in character, of the strictest integrity, fearless in facing danger and op- posing tyranny, of simple but dignified manner, of good general information, and of special knowledge

in the cardinal principles of English liberty. There were of course among them some who did not rela- tively stand so high as others. These were, however, kept in a secondary position, and of them we have no knowledge for either good or evil.

DISTINCTION OF PRESIDENT JUDGE.

By the records of the Quarter Sessions and Common Pleas Courts, from the correspondence in the Colonial Records, and from the Minutes of the Council, it would appear that it was the custom to distinguish one of the justices on the bench as the president or presiding justice, and the others as his associates. This nominal distinction appears to have misled many. The status of the president judge was not indeed clearly presented till the lapse of a hundred years, and was first discussed when Westmoreland celebrated her centenary, in 1773. It is thence con- cluded that when any particular one is mentioned as president judge it was as a matter of mere formality, that it was following the organization of the Su- preme Court, that the justice who sat thus distin- guished had no actual precedence over the others, and that the nominal precedence was mostly con- ferred upon William Crawford when he was present, although in some instances Lochry, Foreman, Gist, Hanna, and Moore are named as presiding justices.'

WILLIAM CRAWFORD, FIRST PRESIDING JUDGE.

William Crawford appears to have been a man who, even in his younger years and at that day, stood high among the people of the frontier and with those in authority, both in our own Province and in Virginia. He was one of the early settlers on the old Braddock road, having taken up lands in 1767. He chose the spot where Braddock had crossed the Youghiogheny in 1755. The place of his residence was called Stewart's Crossing. His house stood nearly opposite Connellsville." He was identified with the

" It would appear that the justices elected or selected one of their number from time to time to preside. It is generally conceded that the presiding officer did not thus sit by virtue of any legislative provision prior to the act of 28th January, 1777. The only instance I have met with evidencing by record their oficial compliance with this act of 1777, which enacted that " The President and Council shall appoint one of the Justices in esch County to preside in the respective courts, and In his absence the justices who sball attend the court aball choose one of them- selves President for the time being," is an order of record at the October sessions, 1781, Quarter Sessions docket, to wit:

" Rule that no Cause whatever be Removed from this Court into the Supreme Court after this Term until the Respective write necessary for the Removal thereof be produced at Bar.

"By the Court, "CHARLES FOREMAN, Pres't Elect." That court, however, was held " before Edward Cook, Esquire, and bis associates, Justices of the same Court," and it would seem that in the absence of any appointment made by the president or Council the judges " elected" one of themselves to provide.

At the January Sessions, 1776, Edward Cook was, for the first time, styled " Precedent Judge. . . . " The Court of Quarter Sessions held 6th January, 1778, was held "before Edward Cook, Eagr., Precedent, and his Associates, justices of the same court."

+ This was in Augusta County, Va., as claimed by that Commonwealth ; afterwards in the district of West Augusta, and finally in Yohogania County until 1779, when Virginia relinquished her claim to what is now

1 See Smith's or Bioren's " Lawa," title Criminal Procedure.

* See St. Clair Papers, vol. ii. p. 361.

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government of Virginia, both before this time and till his death. He was recognized as the chief county justice until the beginning of 1775, when, preferring to side with Virginia in the civil troubles, he was die- placed by order of the Governor, which order recog- nizes him as the presiding justice. It is therefore presumable that the appointment of him at first was from the consideration of these facts, for he was only about forty-two years old at the time. But it is cer- tain that he was a natural-born gentleman of the old school, and a patriot without dissimulation. He was personally acquainted with Washington, and on inti- mate terms with him from long before Washington . was a public personage until they were separated by death. Washington mentions him in several places in his journals and correspondence. He served under Braddock with Washington, who procured him an en- signey. He was remarkable for his hospitality, none passing his door without a hearty welcome in. He was said to be of a singular good nature and great humanity, tender-hearted and charitable, was pos- sessed, of sound judgment, and was a brave and tried soldier. He was among those inhabitants of Western Pennsylvania calling themselves citizens of West Au- gusta County, who in 1775 met at Pittsburgh to give expression to their views on the troubles then appear- ing. Crawford, as a prominent citizen, was placed upon the committee to which was intrusted the de- fense and protection of the people there. When ac- tual hostilities began he raised a regiment of Western Virginians and Westmorelanders, and received a col- onel's commission in the Continental army. In the course of the war, such men as he being more needed where better known, he returned to his home. Dur- ing the latter end of the Revolution his energies were interested in protecting the western border, in devis- ing methods for its protection, and in watching against the British and Indians in the West. Under his in- struction the fort called Crawford's Fort was built on the Allegheny, at the mouth of Puckety Creek. So high did he stand that in 1782 he was chosen to com- mand the expedition against the Indian towns on the Sandusky, for after much suffering the inhabitants jointly volunteered to carry the war into the hive it- self. This expedition, called Crawford's expedition, stands out prominently on the page of border history, and the success of the Indians, the capture of Craw- ford, his terrible death at the stake witnessed by Dr. Knight, the fiendish joy of the savages avenging the death of their former comrades by the most horrid torture ever depicted or related, the cool, calculating, unrelenting picture of that man Girty (who escaped immortality from being unknown to Dante), these

Southwestern Pennsylvania. As claimed by Pennsylvania it was, in 1767, in Cumberland County, subsequently in Bedford, afterwarda in West- moreland, and finally in Fayette County, when, on the 26th of Septem- ber, 1783, the latter was formed.

Much information abont Crawford will be found in "Crawford's Ex- pedition against Sandusky," by Butterfield.

help to form the last scene in the life of Crawford, the first of the colonial judges, above the rest honored by his fellow-citizens as the first presiding judge of Westmoreland County.

In regard to the distinction of president judge,- "Precedent Judge," as it was written,-it is to be ob- served that at the change of the government into other hands at the time of the Revolution a law was enacted which regulated anew the judicial system. This law 1 authorized the president and Council to appoint one of the justices in each county to preside in the respective courts, in whose absence the justices present could choose one of themselves for the time being. But it would seem that no appointment was made for West- moreland till October, 1785, when, as appears by a minute of the Council of that day, John Moore was appointed president of the Courts of Common Pleas, Quarter Sessions, and Orphans' Court for the county of Westmoreland." Moore, at the time he received the appointment, was on the bench as one of the jus- tices, under a previous commission, embracing Chris- topher Truby, John Moore, and William Jack. Moore first sat as president judge at Greensburg. Five years later, by the constitution of 1790 as the organic law of the State, these president judges were to be profes- sional lawyers, or learned in the law. Judge Addi- son, who has left a number of reports, frequently ro- ferred to as good authority, was the first legal-learned judge, being the first under the Constitution. He sat on the bench of this judicial district from 1791 to 1803, when he was succeeded by Judge Roberts.

JUDGE JOHN MOORE.

John Moore, of Westmoreland County, the son of William Moore and Jennett Wilson, was born in Lancaster County, Pa., in 1788. His father died when John was a small boy, and his mother, in com- pany with her brothers, Charles and John Wilson, removed to the district of Westmoreland County as early as 1757. At the commencement of the Revolu- tion John Moore was engaged in cleaning out and cultivating a large farm of four hundred acres on Crabtree Run, a branch of the Loyalhanna, two miles south of New Alexandria. A comfortable stone dwelling, still in pretty good condition, marks the place of his residence, and indicates a man in advance of the rude civilization of that day. He was a mem- ber of the Convention of July 15, 1776, and appointed by that body on the Committee of Safety. In 1777 he was appointed a justice of the peace, and subse- quently surveyor of the public lande in Westmore-

1 Act 28 January, 1777.

" George Baird, Esq., was at the time also on the bench under a com- mision dated 20th November, 1784. Moore's commission is recorded in book " A," p. 544, recurder's office. Moore presided the last time at the July term, 1791. At the October term, 1791, Alexander Addison opened his commission. He sat as president judge, with William Todd and Wil- liam Jack as second and third judges. While Addison was president judge, the courts were sometimes carried on in bis absence by the other judges, his associates on the bench.

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land County. In 1779 he was commissioned one of the justices of the several courts of Westmoreland, and in 1785 was presiding judge. Under the consti- tution of 1790, Judge Moore was retired from the bench, being succeeded by the celebrated Judge Ad- dison. In 1792 he was chosen to the State Senate from the district of Allegheny and Westmoreland. He died in 1812, aged seventy-three years, and is buried at Congruity Church. Judge Moore married a daughter of Isaac Parr, of New Jersey, a woman of intelligence, vivacity, and fine personal appearance. She survived her husband many years. In personal appearance Judge Moore was.a man full six feet in height, straight and erect, had large brown eyes, brown hair, and nose rather aquiline. He had two sons and four daughters. One of his sons was county surveyor of Westmoreland, the other, a civil engineer, died in Kentucky. His daughters were respectively married to Maj. John Kirkpatrick, a merchant of Greensburg ; John M. Snowden, of Allegheny County, mayor of Pittsburgh, and associate judge of the county ; Rev. Francis Laird, D.D., father of Hon. Harrison P. Laird and John M. Laird, Esq., of Greensburg; and the fourth, James McJunkin, a farmer of Westmoreland County.1

INCREASE IN LEGAL BUSINESS.

But the change in the system of litigation has been as marked as any change within the county in the hundred years of its existence. Perhaps the differ- ence between the early practice and the practice at this day is as great-to make use of a strained meta- phor-as the difference between the log house of Robert Hanna and the court-house at Greensburg. It has been observed that in petty States and narrow territories fewer laws suffice than in larger and more populous districts, because there are fewer objects on which the law can operate. It is also noticeable that the amount of litigation is increased, not so much by the difficulty of deciding questions of law as by de- termining matters of fact. These changes have been imperceptibly brought about and in a way uncon- sciously, as the change from boyhood to manhood is unconscious. The amount of legal business of the county of Westmoreland as it is now, since almost a score of other counties have been taken from its original limits, has increased, within the hundred years, probably tenfold. The number of cases en- tered in the Common Pleas docket in the first three years after the organization of the county in 1773 aggregated 1330. One-half of this number was em- braced in the first four terms, and which made up the first year's business. It must be remembered that there was an accumulation of business awaiting to be disposed of. The number of cases on the continuance docket in the same court, beginning with February term, 1873, and including the first twelve terms, aggre-

gate 7851. The average number for each term of the first twelve terms, beginning in 1778, is 111. But probably the most correct average for possibly the first twenty years would be the average per term from July term, 1774, to April term, 1776, which was about 65. The average per term for the first twelve terms after 1873-that is to say, from the February term, 1878, to February term, 1876, inclusive-is 650, while the average number per term of the eight terms which correspond with the eight just mentioned is about 790, or above twelve times as many. .

DIFFERENCE IN PRACTICE.

And great as the difference seems merely in the number of cases, the difference in the practice is equally as great. The forms of the early practice and pleadings, as has been observed by Chief Justice Agnew, were simple. The body of the civil law was not laden with technicalities. Trespass on land or cattle, on the person or on the effects of the settler, violations of petty contract, contests for land in the most common way and in the simplest form were usually the subject of forensic dispute, and the actions themselves were in trespass, trover, and assumpsit, covenant, replevin, and in ejectment. Now that the land is filled with business of new kinds, new agents for its execution, and new forms of contract, new laws have been passed and novel forms of procedure intro -. duced, new wrongs have been occasioned and new reme- dies have come with them, so that now we have feigned issues, bills of discovery, bills for injunction, writs of mandamus and quo warranto, of error coram nobis et vobis. We have what you call the corporation lawyer, the divorce lawyer, the Quarter Sessions lawyer, the proctor, the counselor, the solicitor, the master in chancery. This is all changed since Michael Huff- nagle pleaded at the bar before the Hon. Charles Fore- man, "Precedent of our Court,of Common Pleas."

By the rules regulating the admission of attorneys, adopted at the January sessions of 1783, the applicant was required, if above twenty-one years of age, to have read for three years; was to have been a resi- dent of some one of the United States at least one year previous, and was to take the oath of allegiance imposed by act of Assembly before he could practice. By this time the bar of Western Pennsylvania had some very good local practitioners, and the requisites for admission were somewhat more imperative. Under the old colonial arrangement the qualifications neces- sary for a practicing attorney at the county courts were not extensive, neither was there much responsi- bility attached to him in a professional capacity out- side the practice in the higher courts.

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History of the County of Westmoreland, Pennsylvania, with Biographical Sketches of Many of its Pioneers and Prominent Men, Part 73

Author: George Dallas Albert, editor Publication date: Publisher: Number of Pages:

Author: George Dallas Albert, editor
Publication date:
Publisher:
Number of Pages: