The twentieth century bench and bar of Pennsylvania, volume I, Part 76

Author:
Publication date: 1903
Publisher: Chicago, H. C. Cooper, jr., bro. & co.
Number of Pages: 1102

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THE BENCH AND BAR OF PENNSYLVANIA

General Assembly, one of the representa- tives of York county in the provincial con- vention of 1775, and one of the progenitors of the numerous Smyser family in York and neighboring counties; David McConaughy, who was the first treasurer of York county and served in that office eight years, was sheriff three years, five terms in the General Assembly, and served creditably in the army ; Michael Hahn, who was an extensive land owner, was honored with the offices of county commissioner, county treasurer, three terins in the General Assembly, delegate to the constitutional convention of 1776, and a munber of other positions of public trust and confidence; Michael Tanner (Danner), who had been a squatter under Maryland claim of jurisdiction and was removed by order of the Governor, but afterwards per- fected his title under Pennsylvania authority and took an active part in public affairs, and withal was one of the leading members and founders of the German Baptists (Dunk- ards) in the county; Jacob Dritt, who had become a brigadier general in the American army; and others, were makers of history in their day, and the story of their lives would make attractive reading for all who are interested in the birth, establishment and development of our country. Whilst these sketches do not throw much light on the judicial transactions of those early times, they serve to show the character of those somewhat humble and largely ignored dis- pensers of justice during the time the prov- ince was under British dominion, and until an American system of government had been formulated and instituted. Judicial wig and woolsack and silver spangled liveries may have been absent from these early tribunals, but honor, uncompromising honesty, prae- tical intelligence and common sense judg- ment pervaded the sanetum none the less, and no modern judge, however aristocratic, need blush at the simple annals of these, his unpretentious predecessors. With the ad-

vent of the second constitution in 1790 came to preside over the county courts, judges "skilled in the law."

William Augustus Atlee .- The first ap- pointment as president judge under the new system was William Augustus Atlee, who held his first court in October, 1791. Judge Atlee was born in Philadelphia, July 1, 1735, and was admitted to the bar at York in 1759, residing, however, at Lancaster, where he had taken up his residence the year before. There was at that time but one resident at- torney at York, if generally accepted tra- dition is correct. Practice was largely in the hands of itinerant attorneys who traveled from one county seat to another to attend the sessions of the courts, and then returned to their homes, and naturally had their resi- dence in the older and larger towns where greater comforts and conveniences were at their command. Atlee was of this class. He continued to reside and practice at Lancas- ter until 1777, when he was appointed one of the judges of the Supreme Court of Penn- sylvania under the first constitution of the state, then just going into effect. He pre- sided over the courts of York county less than two years when he contracted yellow fever while attending court at Philadelphia. and died in 1793.

John Joseph Henry was appointed to fill the vacancy occasioned by the death of Judge Atlee, receiving his commission in Decem- ber, 1793, and continued in office until Jan- uary, 1811, when he resigned. Upon the for- mation of Adams county in 1800 he became president judge of it also, and about the same time Cumberland county was likewise added to this judicial district. During his term, practice was teeming with important, and in many instances unfamiliar questions pertaining to land titles and other subjects incident to the change from a monarchic to a republican form of government, under cireumstances of which no precedent then existed, These questions, eontested as they

YORK COUNTY

were on either side by advocates, who, an early writer says, "at the time had but few equals in the state," afforded ample opportu- nity to the presiding judge for the exercise in the highest degree, of legal acumen, dis- crimination and discernment.

Judge Henry was a large man, and when but a youth in his teens had served as a sol- dier in the Continental army, and was with General Benedict Arnold in his expedition against Quebec. At the storming of Quebec he was captured by the enemy and held a prisoner for a long peroid, whereby his health was seriously impaired. After his recovery he served as clerk in the prothonotary's office, at Lancaster, reading law in the mean- time, and was admitted to the bar in 1785. In April, 1811, only three weeks before his death, the Legislature granted him the sum of $1,600 as "compensation for his services and suffering during the Revolutionary war."

Walter Franklin .- Upon the resignation of Judge Henry, in January, 1811, Walter Franklin was appointed, and for a quarter of a century presided over the courts of York and the other counties composing this judi- cial district. He was born in New York, but read law in Philadelphia, and was there ad- mitted to the bar in 1794, being then twen- ty-one years of age. Immediately preceding his appointment as judge he had been for two years attorney general of the state. His experience on the bench, like that of his predecessor, was fraught with numerous cases bristling with legal points worthy the consideration of the finest legal and judicial talent. In a memoir, by his son, Judge Franklin is characterized as "distinguished for his eminent integrity and his superior at- tainments as a jurist, for the clearness of his conceptions and the strength and vigor of his mind. His dignity of manner and uni- form correctness of demeanor sprang from his religious principle, and he was emphati-

cally, in the highest sense, a Christian gen- tleman."

Daniel Durkee, the third law judge of York county, was of English deseent and was born in the state of Vermont in 1791. Ile was the son of a farmer and spent his youth and early manhood on and about the home- stead with his mother, his father having died when he was but a boy, receiving only such education as the somewhat meagre facilities of that early day afforded. He read law with Judge Collamer, of Royalton, Vermont (aft- erwards United States Senator and Postmas- ter General). He was admitted to the bar in 1818 and two years later came to York. Pennsylvania thenceforth became the state of his adoption. He was elected a member of the Legislature in 1823. Under an act of the Assembly, passed April 10th, 1826, a District Court for York and Lancaster counties was organized, having concurrent jurisdiction with the courts of Common Pleas. The court consisted of a president and an assistant judge, both learned in the law. By the act of April 8th, 1833, York county became a separate district, and Mr. Durkee was appointed judge thereof. In 1835, the District Court having been abol- ished, he was appointed president judge of the Nineteenth judicial district, then com- posed of the counties of York and Adams. Hle resigned shortly before the expiration of his term, and was succeeded by William N. Irvine, who was appointed in February, 1846. Judge Irvine served only three years when he in turn resigned and Judge Durkee was again appointed. He held the office for two years when he was, in January, 1851, suc- ceeded by Robert J. Fisher, who, pursuant to a constitutional amendment making the office elective, had the fall preceding been elected to the position. He resumed the practice of his profession, but survived only a few years. He died November 23, 1854. "As a practicing lawyer, Judge Durkee al-

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THE BENCH AND BAR OF PENNSYLVANIA

ways occupied a high position at the Bar of York and Adams counties. His specialty was the condueting of trials before juries. He managed his eause with great tact and judg- ment, and while at the bar always had a large portion of its forensie practiee. Few causes of magnitude or importance were tried in which he was not one of the leading counsel. His influence with a jury, whether he addressed them from the bar or charged them from the bench, seemed almost magical. Although Judge Durkee was not indebted to the culture of the sehools he evidently had practieed self-discipline long and carefully. But it was from nature he received his best gifts, gifts the absenec of which no amount of educational facilities ean supply. The eharac- teristics of his mind were elearness and orig- inality. Both these mental qualities, so rarely met, even singly, he possessed in a very con- siderable degree. They manifested them- selves on the bench, at the bar, in social con- versation, and even in casual remarks in the working out of his intellectual processes, in the language he selected and in the figures and illustrations he employed. For this rea- son he was always listened to with atten- tion and interest. It was well known that there was no danger of being wearied by anything feeble or coinmonplace or obseure in what he said. Most frequently the products of his mind exhibited the freshness of vigor- ous and independent thinking, were ex- pressed in strong, idiomatic English, which. adapting itself to the tournure of the thought, fitted close to it, and conveyed to others his ideas with all the clearness in which they existed in his own mind, were elucidated by illustrations which were apt, striking, felicitous, and when the subject or occasion would admit, were enlivened by the seintillations of genuine wit. In his legal investigations and diseussions he always sought for the reason of the law, and cn- deavored to be guided by principles rather than by discordant and irreconcilable de-

cisions. With his great powers of mind he united great kindness of heart and eminently sympathetie and affectionate disposition, eausing him to be beloved in his neighbor- hood and idolized by his family. Judge Durkee had none of the arts and stooped to none of the trieks and methods of the politi- eians. His popularity grew out of his genial and kindly disposition and his well known - integrity."

Hon. Robert J. Fisher came to the bench in 1851, the first under the elective systen. He belonged to one of the oldest families in Pennsylvania and one that presents an un- broken line of intelligence and respeetabil- ity. The immigrant ancestor eame over with the original Penn eolony in 1682. From this point the Fishers pushed out into the wilds of the then back country and were among the very early settlers in what is now Dau- phin county, and one of the most conspicn- ous families in the early history of that eoun- ty. Judge Fisher's father, George Fisher, Esq., was one of the leading lawyers not only of the Dauphin County Bar, but was well and favorably known in the eourts of the neigh- boring counties of Laneaster, York and Cum- berland. It was in his office that his distin- guished son, after a course at the Yale law sehool, continued his studies and familiar- ized himself with the application of legal principles and rules of practice, so that when he came to York and was admitted in 1828, at twenty-two years of age, he was equipped for the arena he was then entering as few young men are at the time of their admission. From the very outstart of his practice until his clevation to the beneh, he was noted for the earnestness with which he espoused his elient's eause, and the energy and vigor with which he labored in his behalf. All his con- temporaries at the bar whom the writer has ever heard talk about Judge Fisher's eareer as a lawyer, testified with singular unanim- ity to this eharaeteristie. No matter how confident he may have felt in his law or his

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YORK COUNTY

facts, every element of additional strength available was invoked with the same assidu- ity as though victory depended upon it; and on the other hand, however inauspicious and discouraging the aspect of his cause, he bat- tled with the same apparent determination as though he confidently expected to win. The same feeling seemed to pervade him on the bench and manifested itself in his atti- tude towards counsel. He had little patience with a half-hearted advocate. Upon one oc -. casion in referring to a trial in the Oyer and Terminer, upon a very serious charge, when asked in semi-critical tenor why he had made a certain ruling, he replied, "Well, I was so constantly afraid that his counsel would blunder and cause him to be convicted of a higher degree of crime than he was guilty of that I felt like seizing the first opportunity to extricate the prisoner, and relieve the court's misgivings."

On the other hand, toward a young be- ginner, not fully accustomed to the harness, who seemed to hesitate with uncertainty, was abashed or overawed by the assumption of an older attorney, he would exhibit almost paternal tenderness. He was essentially the young practitioner's friend. One he deemed deserving, he would endeavor to lead out, assist and encourage, in a manner wholly at variance with the studied dignity and hau- teur too frequently assumed by occupants of the bench. Nor was this attitude confined to his conduct toward the members of the bar. His kindly spirit reached out in sym- pathy toward all deserving persons and sub- jects. In his busiest seasons he would al- ways find time to attend meetings called for purposes of charity. the relief of distress or the ameliorating of existing hardships. Nei- ther would he allow personal associations or partisan prejudice to swerve him from the path of duty as he discerned it. As one of many notable illustrations, may be given an occurrence in April, 1861. The National Government had just passed into the hands

of a new political party, avowing principles in direct opposition to those of the one to which he had always loyally adhered. A large section of the country, dominated by his political brethren, had risen in deter- mined opposition to the government, for rea- sons by many of his neighbors and friends deemed justifiable. Reference need only be made to the files of some of the newspapers at that time published in York, to see what intensity of antagonism to the government existed in the community. Under these cir- cumstances a judge of the courts might well have been excused for, at least, remaining passive, in his official capacity. But Judge Fisher, just one week after President Lin- coln's proclamation calling for troops, in charging the grand jury, referred to the dis- tracted state of the country and urged upon them the necessity of providing for the com- fort and support of those who had so prompt- ly obeyed their country's call (referring to the newly enlisted volunteers), and recom- mended that the grand jury request the county commissioners to make a liberal ap- propriation for that purpose out of the coun- ty funds, and said that he had no doubt the appropriation would be legalized by the leg- islature. He also permitted several members of the bar to address the grand jury on the same subject. The following day the grand jury recommended that the county commis- sioners make an appropriation of $10,000.00. which was promptly done. The scene in court on that occasion is described as having been "a very impressive one." Courage and determination in the discharge of his official duty were likewise prominent characteris- ties of his. At one time during the civil war a citizen was illegally arrested by the mili- tary then quartered at York, and a writ of habeas corpus was obtained in his behalf. At the hearing the prisoner was escorted into court by a squad of soldiers with rifles and fixed bayonets. The judge promptly reseut- ed this exhibition of military authority in a

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THE BENCH AND BAR OF PENNSYLVANIA

civil tribunal and ordered the guns and bay- onets out of court before he proceeded with the hearing. During the oeeupation of York by General Early's division of the Confeder- ate army, in the latter part of June, 1863, finding that the Confederate general and some of his soldiers had gained an entrance into the prothonotary's office, he went in boldly and protested vigorously against the wanton destruction of the valuable records, representing to the general not only the ab- senec of all necessity for the same, but that the loss entailed eould never be remedied. He sueeeeded in inducing the general to de- sist, and withdraw his soldiers, and the rec- ords were saved from destruction. In his rulings and decisions from the bench he evinced keen discrimination and a wide range of legal learning. Throughout his judicial career of thirty years he maintained a highi reputation as an upright judge, the friend of order, the foe of viee, and commanding the respcet of his brethren of the beneh, the bar and the suitor. He was a member of the Masonie Fraternity and prominent in his lo- cal lodge. He belonged to a number of other fraternal organizations, and wherever he entered he made his influence felt and his counsel appreciated. He was a member of the Protestant Episcopal church, and the first ehaneellor of the diocese of Central Pennsylvania, where his counsel, care and foresight were most highly regarded. He occupied the beneh continuously for thirty years, from 1851 to 1881, and died April 25,. 1888.

Pere L. Wickes .- During the latter part of the second and the earlier part of the third term of Judge Fisher's incumbeney, business calling for the attention of the court accumulated so rapidly that it became im- possible for one judge to satisfactorily dis- pose of it all, and in order to afford relief in this behalf, a special act of assembly was enacted in 1875, providing for an additional law judge for York county. Under its pro-

visions an election was held in the fall of the samme ycar and Hon. Pere L. Wickes was elected to the position. Supplemental legis- lation was secured whereby York eounty has continued to have two judges to the present time, the older in commission being, under the provisions of the constitution, president judge. By virtue of these provisions Judge Wickes, upon the retirement of Judge Fisher and the accession of Judge Gibson, in 1881 · became president judge. Judge Wickes was possessed of a keen diserimination and a remarkable quickness of perception, en- abling him: to promptly grasp the salient points in a 'case before him and check any attempt to extend the investigation into col- lateral territory. His administrative ability in this behalf was matter of frequent remark among the lawyers, as were also his expedi- tious dispatch of business, his integrity of character, and the dignified decorum he maintained in his eourt. After the close of his judicial term in York county, he removed to Baltimore, Md., where he afterwards be- came judge of the Supreme Court of that city. Judge Wickes was born in Kent coun- ty, Maryland, edueated at Princeton col- lege, read law with the brilliant lawyer and seholar, Hon. S. Teaekle Wallace, of Baiti- more, and was admitted to the bar at York in 1859.

Hon. James W. Latimer was of Scotch- Irish and French Huguenot deseent. He was born in Philadelphia, June 24, 1836, and with his parents came to York when but two years of age. Here he grew up and spent the balance of his life. The only educational facilities that were at his command were those offered by the common schools of his day, supplemented by a course at the York County academy. He became a brilliant example of what may be accomplished by energy and tenacity of purpose. After leav- ing sehool he entered upon the study of law under the direction of Edward Chapin, Esq., and at the age of twenty-three was admitted

J. W. LATTIMER.

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YORK COUNTY

to the bar. Whilst he was affable and enter- taining to his friends and associates his gen- eral manner was one of apparently cold reserve, sometimes almost repellent in its severity, which was not calculated to attract a copious influx of clients from the humbler walks of life. Moreover, the language almost universally spoken at that time in large and populous sections of the county was Pennsyl- vania German, with which he was wholly unacquainted, which circumstance further militated against the rapid acquisition of a numerous clientage. Buffeting with these adverse circumstances at times became dis- couraging. So that, as he told the writer shortly before his accession to the bench, some times he would sit down and meditate deeply on the advisability of abandoning the law and embarking in some other enterprise. But his devotion to his profession and his determination to control instead of yielding to circumstances would overcome his mis- givings, and with renewed resolutions and energy he continued the battle until his force of character and merit asserted themselves and gradually brought him a sustaining clientage, largely from corporations and matters of importance that called for the best legal talent available. At the time of his election to the judgeship he enjoyed a lucrative practice, and was a recognized leader at the bar. In 1885 a rupture oc- curred in the Democratic nominating con- vention, and the dissatisfaction spread through the county to such an extent that at the ensuing election Mr. Latimer, although always a staunch Republican, received the support of enough Democratic votes to elect him. He was an excellent and exemplary judge. The following quotation is from The York Legal Record, and is fully endorsed by the writer: "As a judge he was learned, just, and impartial. He held the scales of justice with an even hand and no element of fear, of favor or of effection ever disturbed in the slightest degree the balance of their

nice adjustment. Complicated cases were disposed of in opinions that clarified the sub- jeet matter in dispute, and meidly and con- vincingly stated the judgment of the court. Prompt to act, fearless to execute, and in- corruptible in the discharge of the duties of his high trust, he adorned the bench to which he was called, and added lustre to its already high repute. The fundamental principle of Judge Latimer's life was honesty. He was not only honest in the ordinary sense of the word, as applied to matters financially, but honest in that broader sense of sincerity, faithfulness and truth. Ile despised sham, cant and hypocrisy in matters temporal or spiritual, and was outspoken and unsparing in their denunciation wherever found. IIc was true to himself, his family, his friends and his convictions."

At the time of his death, Judge Stewart, himself a lawyer of high standing, used the following language from the bench: "It is not a cruel comparison with those of us who survive him to say that he was pre-eminent among us, and that we so considered and ap- preciated him. He stood in the very front rank of his profession, and he outranked in sound legal learning and intellectual force many who, by reason of vocation or special circumstances, appear to shine more con- spicuously. Had his lot been east in one of the great cities of the country, where there were great causes and great opportunities. his professional standing. and ability would have attracted to him the eyes of the whole country."

Hon. John W. Bittenger, present president judge, is of German parentage, and was born at York Springs, Adams county, in 1834. Ile received his education in the common schools, the academy at Strasburg, Pa., and at Rockville, Md. Subsequently, while read- ing law with Hon. Moses McLean, of Gettys- burg, he was for a while a student at Penn- sylvania college. Before completing his law course, he left Gettysburg and went to Rock-

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THE BENCH AND BAR OF PENNSYLVANIA

ville, Md., where he continued his studies un- der Judge Viers Bouic, and was admitted to the bar there in 1856, but before embarking in practice he entered Harvard Law school at Cambridge, Mass., from which he graduated the following year. He located at Lexing- ton, Ky., and began the practice of his pro- fession. In 1860 lic came to York and was admitted to the bar here. He advanced rap- idly, and three years after his arrival was elected district attorney, which position he held for six consecutive years. After the close of his official term, for a period of over twenty years he enjoyed an extensive and remunerative practice and was recognized as one of the leaders of the bar. In his prac- tice he exhibited a high degree of ability, careful preparation, a familiarity of the law governing the case, and a discriminating dis- cernment in the application of its principles. In 1890, upon the death of Judge Gibson, he was elected to the bench, becoming addi- tional law judge, and in 1896, upon the re- tirement of Judge Latimer, he became presi- dent judge.

In the writer's view the time to write the biography of a man is at the end of his life, and the proper time to sketch a judge's carcer is when that career is closed. No apology, however, is asked for saying here that in his twelve years on the bench, Judge Bittinger has been a capable judge, highly respected for his ability, his vigilant super- vision and scrutiny of the conduct of affairs by court and county officials. His deter- mined stand in behalf of an economical ad- ministration of public affairs, his vigorous denunciation of all attempts at extortion, or other inisconduct in public officials, com- ing to his knowledge, and his insisting upon a uniform observance of the requirements of the law without regard to position or cir- cumstance. He was re-elected to a second term in 1900, without opposition.

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The twentieth century bench and bar of Pennsylvania, volume I, Part 76

Author: Publication date: 1903 Publisher: Chicago, H. C. Cooper, jr., bro. & co. Number of Pages: 1102

Author:
Publication date: 1903
Publisher: Chicago, H. C. Cooper, jr., bro. & co.
Number of Pages: 1102