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History of York County Pennsylvania From the Earliest Time to the Present online

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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-
I interruptedly up to the year 1776. It might be
worth noticing that the year 1765 is memor-
I able from the fact that in it more attorneys
(twelve) were admitted to the bar than in any
i 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 particitlar,
and America in general. This resolutioa
alone must have disturbed our patriotic jus-
tices greatly; nevertheless, we find them hold-
; ing an Orphan's Court on the 6th of Jime,
I 1776. Courts of Quarter Sessions and Com-
' mon Pleas had been held at the last regular
I terms. It is also a matter of history, that on
the ISth day of June, 1776, the Executive
Council of the province warmly seconded the
I action and sentiment of the Continental Cou-
I gress, and at once called a Constitutional



BENCH AND BAR.



43t-'



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 no 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
motion. 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
necessary 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, bv 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 prosecute in be -
half of the commonwealth. McClean sue -

j 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, when
we learn that the Continental Congress held

j its sessions here, from September 30, 1777,

j 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,theHon, James Smith. of Yo-k C>j;iaty,,,

j was appointed one of the judges of the Court

J of Errors and Appeals. Thl^ court was in-

j stitnted by act of assembly of February 28,.

I 1780. It sat in Philadelphia once a year,
on errors assigned upon any judgment of
the Supreme Court, to reverse or aiSrm the

j same. It was abolished by act of assembly
of February 24, 1806. _

i The convention of 1/89-90 formed a nevr
constitution for the State. In carrying which

i into effect the legislature enacted that th&

I State be divided into districts; that in each.

] district a person of knowledge and integrity,.



HISTORY OF YORK COUNTY.



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 coald
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 Api'il 19,
1791. It placed the judiciary on an entirely
new basis. The improvement was great; for,
whereas before there was nothing bat 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
'.vake up to its faults. On the 13th of April,
1791. it died, murdered by public opinion.
Annexed is its tombstone.

JUSTICES OF THE PE.\CE.

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 lirst commission only is given.

John Day, September, 17-19; 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 Adium, 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,17Gl;
David Jameson, October, 1764; Michael



Schwaabe, October, 1764: Samuel Johnson,
October, 1764; Samuel Edie, October, 1764;
?rlatthew Dill (son of Matthew Dill, who was
commissioned in 1749), October, 1764; Ji
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 Council 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, 17 /6; 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, S_eptember, 1776;
John Mickel, September, 17/6; 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, 177S; ^Villiam Mitchell, June,
1779; John Rankin, May, 1780; David
Beatty, May. 1780; Robert Chambers, Janu-
ary, 1781 ; Michael Schwaabe, November,
17S2; George Stake, November, 1782; Cun-
ningham Sample, August, 1783; Michael
Hahn, Septem'.ier, 1784; Thomas Lilly, Sep-



BENCH AND BAR.



ITS-t; William Cochran, October,
1784; Jacob Rudisill, October, 1784; Mi-
chael Schmeiser, October, 1784; William
Gilliland, November, 1784; Dauiel May,
April, 1785; Com-ad Shermau, June, 1785;
Robert Hammersly, Julj', 1785; Jacob Bar-
nitz, March, 1780; Henry Miller, August,
1786; David Beatty, June, 1787; Bernhart
Zeigler, June, 1787; Robert McIlhanny,May,
1788; Elihu Underwood, June, 1788; Jacob
Dritt, September, 1789.

The first Quarter Sessions under the new
constitution was held on the "ilth 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 jireside 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 January
30, and Hon. Hugh Glasgow, commissioned
July 1. On the 0th 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 1800, 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, 1820, 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 aj^pointed
pi-esident judge, and Hon. Alexander
Thompson, associate. Shortly afterward,
j Judge Thompson was appointed President
i Judge of the Common Pleas of the Sixteenth
{ Judicial District, composed of the counties
of Franklin, Bedford and Somerset, Hon.
I Alexander L. Hays was appointed his succes-
1 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. Dauiel Durkee
was appointed judge of the York District.
The act of separation authorized the ajjpoint-
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
I act of 1833 named the date of cessation
May 1, 1840. They were intermediate be-
I tween the Supreme Cotirt 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 tlie 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.
i 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
I Hinkel. In 1838 a constitutional convention
! met and made numerous amendments to the
constitution, none materially effecting the
judicial system. The only change reaching
I the bench here, was the limitation of the
I term of office of the president judge to ten



HISTORY OF YORK COUNTY.



years, and that of the associate judge to five
years. Previous to this they were appointed
for life. .Judge Dui-kee had been on the
bench for three years, Judge Barnitz, twenty -
five years and Judge Hinliel 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 ver^v poor politicians
(for the measure seems to have been unpopti-
lar), or else wise beyond their generation; for
in 1840, the present court house was in course
of construction, and on Monday, August 2(i,
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 i-eadily be enlarged when
necessary. The steeple was added in 1847.
By the erection of the new court house, was
rendered apjsarently 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 niight 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 Avho 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

* York Repumcan, 1841.



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 Barnilz was in the first class. To suc-
ceed him Hon. Samuel C. Bonham was ap-
pointed March 26, 1840. Judge Hiukel 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 bench then,
the last wholly appointed bench in the county,
consisted of Hon. Daniel Durkee, president
judge; Hon. George Hammond, associate
judge, and Hon. Jacob Kirk, associate judge.
In IS.jl 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-
ler and Hon. Mills Hays, associates. Judge
KoUer 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. John 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 reelected 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 Mclntyre was elected. In
1866 Hon. David Newcomer was elected to
succeed Judge Ebaugh. In 1868 Judge Mc-
lntyre 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.



BENCH AND BAK.



435



John Moore was elected to succeed Judge
Newcomer. Judge Ahl died in 1873, and
Hon. J. C. E. Moore was appointed to fill this
vacanc}^ 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 Jloore, 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. Pare L. Wickes
was elected to the 2^"sition. At the gen-
eral election of 1881 Hon. John Gibson was
elected to succeed Judge Fisher, who had
served three terms. *

The York Bar Association was organized
January 31, 1881. Its objects, as expressed
by its constitution, are as follows: (].) The
general supervision of the conduct of mem-
bers of the bar, and of all persons connected
officially with the administration of the law
or in charge of the public records, and in
case of any breaches of duty on their part,
the institution of such proceedings as may
be lawful or proper in respect thereto. (2. )
The improvement of the law and its admin-
istration; the protection of the bar and of
judicial tribunals, their officers and mem-
bers, from invasion of their rights, and the
maintenance of their proper influence. Stated
meetings are to be held on the second Mon
day of June and December. The first offi-
cers weie Thomas E. Cochran, president;



Online LibraryJohn GibsonHistory of York County Pennsylvania From the Earliest Time to the Present → online text (page 89 of 218)