USA > Pennsylvania > Dauphin County > History of the counties of Dauphin and Lebanon : in the commonwealth of Pennsylvania ; biographical and genealogical > Part 71
USA > Pennsylvania > Lebanon County > History of the counties of Dauphin and Lebanon : in the commonwealth of Pennsylvania ; biographical and genealogical > Part 71
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" When Mr. Fisher and Mr. Elder were pitted against each other in the trial of a case, it seemed to be as much a personal conflict between them as professional zeal in behalf of their respective clients." Mr. Elder was frequently personally offensive: Mr. Fisher ww without malice, but, like a trained boxer, stood up to the fight as long as his oppo- nent carried on the personal contest. Mr. Elder was about six feet in height, and was large in proportion, though not fleshy. His conute- nance was without color, not pleasant, but his per-on was remarkably straight and was impressive. In his young days he was exceedingly agile. I have heard that when he was studying low a raftsman from up the river made a banter to jump with any one in the town. Mr. Elder was called on at the office of Gen. Hanna, and was persuaded to engage in the contest. The river man in a running jump leped nine- teen feet, but Mr. Eller lraped for inches farther. He left the lur ten or more years before his death. He lett a large real estate. He was a son of l'arson Elder, of the Paxton and Derry Churches.
" Mr. Fisher was not so tall as Mr. Eller, bonit heavier in person. He was the son of George Fi-her. the founder of Middletown. Both had superior constitutions and enjoyed excellent health till bear the period of their respective deaths. Mr. Fisher died in February, 1-3, agel eighty-zeven, and Mr. Eller died in April, 1.5%, aged above eighty six. They were born within six months of each other, and within six miles of each other, and in the same townslap in this county. Mr. Fisher was admitted to the bar in November, IT-7; Mr. Elder was admitted in August, 1791.
" Mr. Elder was a very successful lawyer. When our district court Was established in this county, Mr. Charles Smith being the judge, a
considerable number of canses were set down for trial. Me. Eller put down quite a number, and being one of the oldest practitioners. hi- cases were at the head of the list. He was concerned in nearly every case tried during the two weeks court. About twenty verdicts Were taken in that time, an.] Mr. Eller succeeded in obtaining verdicts, if not in all hut one of the cases he tried, in all but one, two, or three, Charies Smith was a superior lawyer, and as a judge very ready and decided
"Neither Mr. Elder or Mr. Fisher contributed to the improvement if Harrisburg by the section of any substantial building; the housey which they occupied had been built by others.
" Amos Ellmaker was admitted to the bar in this place at the Decein- ber teriu, Isus, Imt removed to Lancaster in Is21. He is mentioned in my article relative to the president judges of Dauphin County. Hewas possessed of fine conversational powers, and was accessible and pleasint in intercourse. .
" From Istu till 1525 or 1520 there were no other lawyers here, except perhaps Mr Ellmaker, who had anything uear the extent of practi - enjoyed ty Mr. Fisher and Mr. Elder. There was, however, a nienatur of the bar who was widely celebrated. This was Mr. Moses Median. He was a native of Adann County, in this State, and was admitted to the bar in 1-07.
" Mr. Maclean was possessed of decided literary tastes; but he was not deficient in his argument on legal points when he took the trouble to understand them. His addresses to juries were generally briefly ex- pressed and to the proper points. Ils was exceedingly indoleut, and did not strive to obtain business. He had a fine quetic vein, and some of his productions in that line are highly creditable. His verses on the Scriptural pussige twee Luke xxii. 24 , ' Father, forgive them, for they know not what they do,' are exceeding beautiful, and deserve to be extensively circulated. I quote as follows :
" . Come, mourning souls, rejoice, be glad, Drive every fear away ; Come listen to the dying God, Aud bear the Saviour pray.
"* Legions of nugels were his own, Obedient to His word ; With zeal the immortal warriors burned To vindicate their Lord.
"+ Michael, of heaven's own arnty prince, Thou did-t no succor bring. Nor grasped thy spear, hell's terror once, To save thy suffering King.
"* To earth no thunders dared to roll, No lightnings flamed abroad, For week-eved love their vengeance chained Fast to the throne of God.
3
"' Father. forgive them, Jesus cried, Let vengeance not porsue ; Father', forgive then, was bis prayer, They know not what they do.
"+ Come, mourulng souls, again rejoice, Cause every doubt to dee, Thy Savionr for his murderers prayed, And he will pray for thee.
"' Should persecution's eager shaft Pursue ns while we live, Jesus, benevolent, divine, Oh, teach us to forgive.'
** Little of his poetry is now remembered, though some may be found in one or more newspapers of the day. I recollect a couple of verses, in a different strain from the preceding, which were written by him as a New Year's Address for a carrier of one of our newspapers. He a !- dressed in these verses persoons of various ocenpatious, and those to the innkeepery aud storekeepers were substantially to this effect :
"+ Ye innkeepers, who farmish us brandy and wine. Nice roast beef and turkey on which we may dine, When you spread out your table give th- traveler his fill,- Let kin think of his belly and not of his bill.
" Ye storekeeper, who sell us good coffee and tea, Don't charge us two dollars for stinking Boles ; When you handle the yardstick, keep your thumb to the spot ; If it slip, slip it forward, or else ship it not.'
275
GENERAL HISTORY.
" He wasn Federalist in politie «, but during the governorship of Simon snyder he conceived the idea of leing appointed judge. He zave at . me relation a toast, " simon snyder: he distinguishes merit, and rewards it.' Some one asked him when he became a Democrat. " by," he said, "he helped to carry the lautern." But this was after the -lection.
" He was inclined to humor. He once entered a dark room with a gentleman who immediately opened a window. Mr. Hellean then oh- served that a philosophical idea bul just occured to him. . Well, wint w is it?" " Why, when you opened the window, did the light come in or the darkness go out?' The reply was expressive but not compli- mentary.
1
" He had a bald head. He said of it that the wall over gold-mines was always barren. II. was occasionally called on for toasts at public cele- brations, and he was sometimes quite happy in expression. One I recol- leet was, 'Our Country, n Heienies in its infancy, what will it be in ats matibond?' On one occasion a man from Philadelphia was dilating here on the advantages in Prololelphia over those in Harrisburg. ' Why,' says be, 'here you have trouble to get muilk ; in Philadelphia it is brought to our doors." " Oh.' says Mr. MoClean, ' that is the reason you have so many calves in Philadelphia." It is to be regretted that his life had not been more carefully conducted, and that he had not de- voted more of his time to study and literary purenits. fle might bave left an elevated reputation. He was rather above the common height, inclined to fatness, of large head, not unpleasant countenance, of genial, sucial manners, an I was exceedingly careless in his dress. He went to reside at Huntingdon, in this state, where he died. He married a daughter of John Hamilton, formerly of Harrisburg, and at one time extensively engaged here in mercuutile operations.
" Francis R chunk, afterwards Governor of the state, was admitted to this bar in September. 1.16. He did not enjoy much practice in the profession here, his other avocations -- as clerk of the House of Repre- sentatives and to the board of canal commissioners, etc .- occupying most of his time. He was a superior penman and an excellent reader. He was a social, kind-hearted man, a very cheerful, pleasant com- panion, fond of and aboundio: in anecdote, and not given to evil speak- ing of others. He was very popular in this place. He removed to Pittsburgh, where he was somewhat engaged in professional avoca- tions, and was residing there when elected as Governor. He was re- elected, but resigned in July, Ists, having discharged with characteristic protity the duties of the executive office.
" Mr. Shunk was very tall, being two or three inches over six feet in height. He was at the head-heinz the tallest-of the military com- jany in which he marched as a joivate soldier to Baltimore in I-14. His frame was large, but not fleshy. His appearance was rather no- gainly, but his address was so frank and genial that the defects of his form were little considered by those in his company. He was nearly in extremis when he resigned, and he died a few hours afterwards.
" Mr. Abiathar Hopkins was for several years a member of the Har- risburg bar. He was from one of the New England States, and for sev- eral years taught a female seminary in Harrisburg. He then studied law and was admitted to the bar, and practiced with credit for several years. After an absence from home for a number of years he went on a visit to his family in New England, and about the time he reached home he took sick and died. He possessed an excellent character, gentlemanly manners, and was much respected here.
" Mr. Samuel Douglas came here from Pittsburgh. He was a member of the Legislature, ani it being supposed that there wis an opening bere for a lawyer of the Democratic side of politics, he removed here. Ile was appointed attorney-general by Governor Wolf in his first term. lle was possessed of readly and animated elocution, and was decided and positive in his expression of option and argument. He was considered to be a good crimmal lawyer, but was not considered by the profession as distinguished io other departments of the law. He was an Irishman by birth, as was indicated by his speech. He was about six feet in height, thin in person, of plain appearance, and rather awkward in manner. He was a mao of fair reputation, and was a member in communion of the Presbyterian Church in this place. He thed in this place above twenty years ago.
" Another member of the bar who practiced with considerable success, and with whom I was on specials friendly relations, was William Me- (Tore. Though not possessed of the groves of oratory, he had a legal mind of a high order. His judgment on questions of law was excellent. I had great faith in his professional opinion. His memory, too, was re- Darkable. He kept no docker, but seemed to have but little ditfienity to trace up the history of his cases. He was fond of reading, and was possessed of considerable information outside of the law. He was suc-
cessful in business, and left a considerable estate. He was a native of this county, was a graduate at d'unnousburg, and died in August, 1852. He was at one time one of the representatives of this county in the House of Representatives.
"Judge David Krause was a member of this bar for fifteen or more years. He wasn native of Lebanon County, and read law in the office of Judge Walker, who was United States judge, res ding in Pittsburgh Robert J. Walker, afterwards senator and Secretary of the Treasury, was a student in the same office at the same time. Mr. Krause settled for a while at Lebanon, but about the year le25 came to Harrisburg to act as private secretary to Governor Schulze. He afterwards purchased an interest in thir batelligencer newspaper, printed at Harrisburg, and was contected therein with tien. Cameron. He subsequently sold his inter- est in the paper, and was admitted to the bar of this place, commencing practice here about Is25 or 1-29. He was a representative from this county in the House of Representatives for one term. In 1845 he was appointed by Governor Porter judge in the Norristown district and re- naved to Norristown, where he remained till his death. He was a fluent speaker, and possessed of considerable ability both as a writer and speaker. He was of medium height, slight in form, dark hair, of a bright, intelligent countenance, of agreeable manners, and of kind dis- position. He died about a year ago, aged about seventy-three.
" Archibald Findlay real law in the office of Mr. Ellmaker, And was admitted to the bar in this counts in December, 1SZO. He subsequently erttled at Chambersburg, and died not many years afterwards. He bad a fine intellect, and was possessed of refined literary taste. Had be liver he might have become distinguished. He was a son of Governor Find- las and a brother of Judge Findlay, of Philadelphia. He had a remark- ably fine person, a highly intellectual countenance, and had Inwhy red hair. He and I started for college together. We read law in the same office, and were admitted to the bar at the same time.
" Sainnel Shoch read law at the same time in the office of Mr. Ell- maker, and was admitted in Jlarch, 1820. He is a native of Harrisburg. He was a member of one of the military companies, viz., that of Capt. Crane, which marched from this place to Baltimore in 1914, and which acquired credit without much glory in the expedition, as there was Du enemy there to combat whilst they were in the service. In one of the other companies, viz., that of Cant. Walker, were Charles and R. Frrdi- nand Durang, the latter of whom adapted for ' The Star Spangled Ban- ner,' which had just been written, the tune to which it is now sung. The two brothers, after it was sung in camp, aung it on the stage of the Holliday Street Theatre, in Baltimore. See an account of it in Harper's Magazine of July, 1871. C. and F. Durang had been members of a the- atrical company which had on several occasions visited Harrisburg. and to which belonged the celebrated comedian Blissett and the eller Jetter- son, who was quite distinguished us a comic actor. Jefferson subse- quently died in Harrisburg, and over his remanis a stone was put by the direction of Chief Justice Gibson and Judge Rogers.
"Mr. shoch was for years the collecting attorney of the Harrisburg Bank. I was concerned with him in the proceeding in the Frey estate at Middletown, as to which application was made in or abont Mas, 1529, to the Supreme Court at Lancaster, under the net of 1918, relative to charitable trusts. George Frey was a native of Germany He had long *been engaged at Middletown in merchandising and milling. lle bad no children, and he desired to ilevote bis large estate, consisting of above eight hundred acres of land, with a valuable water-power on the Swa- tara Creek, to charitable purposes. Ile determined to found an institu tion not merely for the education, Int for the maintenance andi educa- tion of orphan children, who as a part of their education were to be instructed in the tenets of the Lutheran Church. He did not seek to perpetuate his own name in the title of the institution, but gave it one commemorative of an interesting scene in the lite on earth of the sa- viour after his crucifixion by calling it ' The Emaus Orphan House.' His will was dated in 1-06, and was written by Jobn Joseph Henry, president judge of the courts of Pauplun County. It was an elaborate one, and contained minute and sppril directions. It is reported in the case ex-parte Cassel and Spayıl, In 3d Witts' Reports. The estate after his death was mismanaged, and the orphan house became decayed and no school was kept. The Lutheran clergy man at Harrisburg, the vener- alle Mr. Luchinan, considering that the children to be maintained and educated in the institution were to be instructed in the doctrines of the Lutheran Church, felt interested in the subject, and applied to Mr. Shoch, whose family belonged to his church, to endeavor to have some action taken on the subject.
"A. the will contained a provision for settlement of accounts of the trost in the Courts of Quarter Sessions of Dauphin County, application was made to that court, of which Judge Franks was then president
276
HISTOLY OF DAUPHIN COUNTY.
Months elapsing after the application without any decision, Mir, shoch applied to nte as an assistant, and it was concluded to make application to the Supreme Court at their session at Lancaster, under the act of 1815, before referred to. In the course of the proceeding a question might be raised as to obtaining a status in court, inasutuch as no school existed, and consequently no children were in it who were interested in its maintenance. But the will provid .I for the education of or. phuns. As an orphan was - motimes defined to be a child who had lost one parent, we conclude I to make application in the name of Charles F. Muencb, of Harrisburg, as the guardian of certain minor " In conclusion as to the will of Groige Frey : children whose deceased father (the mother, however, surviving the father) had been a member of the Lutheran Church We di we by petition directed against the mother principal, who had resigned, and also against the principal then in charge of the estate, and also against certain of the trustees provided boor in the will. This was in May, 1-2. " At the time appointed there appened against hs Mr. Buchen, a distinguished member of 8. . Lancaster har and afterward- President of the United States, and My. Hawkins, a vetet a lawyer of the . une bar. " Mr. Buchanan contended that application having been made to the court of Dauphin County, an election of that forum had been made. Also that the Supreme Court had uo jurisdiction of the matter; that the act of 1:13 had provided only for cases where no other redress ex- iste.l, and that in this case the will provided for action in the court of Dauphin County He ridienled certain provisions of the will, alleged | ing of any of the Protestant Churches' should be eligible. that no orphan had applied for admission, and that this was the case with regard to the wards of the petitioner.
" After the close of Mr. Buchanan's argument, Mr. Hopkins mare some remarks, one of which was that ' if the court will read the will, they will see that it is the will of a foolish mian' To which Julge Huston said, . We are not going to real the will now, nor is it necessary that we should.' The court sustained the application and directed an account before auditors of their appointment
" It is proper to remark that on the will being offered for probate in ur about the year Iso16, the court brectel an issue of derisarit vel non, in which the jury found in favor of the will. The character of the will, as well as the sanity of the testator, were of course examinable on the trial of that issue.
" Also it was scarcely competent for the principal, lo lling ottee uuder the will and enjoying advantages nuder it, to olgeet to its validity. And, further, that if there were provisions in the will of an absurd, unreas- onable, or impracticable character, they should scarcely have been per- mitted to nullify the reasonable, practicable, and meritorious provisions in it.
"In the course of the proceedings before the auditors Mr. Sho .u labo- riously exannued the books of accounts and made abstracts. Being dissatisfied with the auditors' report, we nled exceptions to it, aud after argunieut before the supreme Court a decree was made which termii- nated in large charges against the two principals who had charge of the estate.
"Application was then made by us for a change of management, and on the hearing of this proceeding Mr. Steven- appeared and claimed an appointment of the principal on nomination by the Lutheran Synode. In objection to this an animated and impressive address was made by Mr. Shoch. Our nominre was appointed, a substantial building has
heen erected, an act of incorporation has been obtained, and a school . of the Constitution of the United states, but wo one granted to the truls- established, which is now in operation, and in which the English as well as the German language is taught.
"On the argument in the supreme Court on the exceptions filed, Mr. Fisher and Mr. Eller were for parties in the case, and Mr. Herman Al- ricks, then a young man and now a highly respectable member of the Harrisburg bar, appeared for the first principal under the will and con- tended that he should not be hell accountable, alleging that he was uwier the supervision of aud sulgect to removal by the Irlistees. The Supreme Court, however, decried differently.
"Mr. Shoch subsequently was for some time the clerk of the House of Representatives of this state; was afterwards secretary of the Con- stitutional Convention of 18is, and is now the respectable, intelligent, and successful cashier of the National Bank of Culuuibi ..
the same uses as those for which it has been devised or conveyed. It is not reasonable that one or more persons, whose life cannot in the cour. of nature long endure, shall impress upon property of which he or the . happened to be possessed a character, either as torale or partition, who I shall bind the putdie in all time and onder all circumstances and cond .. tions. The earth is for the living and not for the dead, and though w444 of decedents and agreements of imhviduals are entitled to und shoni receive reasonable respect. yet to such considerations the public in- terests are paramonuit. see Noiri- tr. Clymer, 2 Barr, 277.
" The application to the supreme Court ou the part of members of the Lutheran Church not being successful, an act of Assembly was obtained in 1816 In the appointment of the trustees on the nomination of the tt o Lutheran Synode lyng east and west of the Sanguehannn. The case all-in, under the act was taken to the Supreme Court, who in the case of Brennt es. Hummel, reported in 6th Barr, decided that the act was unconstitu- tiotal, and that the trustees in office could not be removed without a hearing at law. Non , it was sought by the act of 1946 to obtura change of trustees in the interests of the Lutheran Church and not on account of misconduct on their part, and therefore a trial at law world not bave effected the object, but the act of lost may have been objection- alle as limiting the choice of trustees to those of' a particular church. whereas the will of the founder provided that 'members in good stand-
"The judge why delivered the opinion of the court in the case of Brown es. Hummel declared that the charter or act of incorporation of the institution was a contract between the government and individuals, and the case of the Dartmouth College rs. Woodward, reported in 4th Wheaton, was referred to in support of the position. Now it may I somewhat difficult to see how the act of incorporation of a public charity is a contruet, and not merely an act of ordinary legislation liable to alter- ntion by the Legislature which enacted it or by a subsequent one, (>- pecially where no money is paid to the Commonwealth or required by the act to be expeudled, which might not, under the terms of the will, be expended without the act. But such it has been declared to be in the case of Drown rs. Hummel, before referred to.
" It may not be improper to add that if the obligations of a contratit rost nion the Commonwealth as to every act of incorporation of a chari- table, literais, or bauking institution, boise or other railroad, or act of incorporation for any other purpose, and if any evil provision cannot be repaired except something be done beyond the terms of the act of ine r- poration, and even then not directly by the enacting power, acting los its own force or by such instrumentality as it may choose (but always according to the requirements of justice), but necessarily through a pri- ceeding in court, then the law-making power ought to be especially cart- ful as to the privileges granted or contained in them. The legislative mill may otherwise turn out provisions which may be nupalatable to the public taste or injurymis to the health of the body pohtic.
" The Constitution of the United States was not framed till Is7. It contains the brief provision that no State shall pass any law . impairing the obligation of contracts." It does not explain whether the contracts meant are simply contracts between individuals, or also contracts be- tweeu individuals and the government. The Dartmouth College car did not refer to a charter grantel in this country and since the alopti u tees of Dartmouth College in 1565 by the British crown, aud it was to this literary tustitution, thus formed, that the Supreme Court of the United States applied the inhibition to the States to pa-s auy law impairing the obligation of contruets, and thi, antique case was referred to in support of the decision in Brown es. Hummel.
" Is it not time that the Dartmouth College case and other kindred decisions, no matter by what authority supported,-and they are sul . ported by the authority of great names .- be repudiated, but not linuti = the negation to chattels of literary or charitable institutions, but giving it a wider scope, and the power of the Legislature to control them ir i acknowledged ?
" It has been argued and alleged that where Congress, or, ty parity of reasoning, a state Legislature acts within its coustitutional power in fes Peahug or changing the terms of an act of incorporation, the justice which should certainly artand such proces king should legally be mer- ured to a prosterling at law. But it Congress of the Legislature of a state postes the power of requal or alteration, why should not the proper meanthe & jammer to administered month manner er by Hle instrumentanty as the legislative power shall direct . And is it ne worthy of consideration whether the prohibition to the States as fall
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