LOCAL HISTORY: STOREY, Henry Wilson. HISTORY OF CAMBRIA COUNTY PA. Vol. 1
The Lewis Publishing Co., 1907.
Contributed for use in the USGenWeb Archives by Martha Humenik.
There is an HTML version of this book, with page images,
on the county web site: http://www.camgenpa.com/books/Storey/v1/
Copyright 2006. All rights reserved.
http://www.usgwarchives.net/copyright.htm
_______________________________________________
CHAPTER VIII.
THE JUDICIAL DISTRICT--JURISDICTION OF THE COURTS, AND LEGISLA-
TION--SPECIAL ACTS, THE JUDGES AND LAWYERS--INCIDENTS.
The first legislative act of the colony of Pennsylvania in establishing
courts was that of 22 May, 1722 (1 Smith, 131). At that time the territory now
in Cambria was a part of Chester county, and the courts convened "on the third
day of the week called Tuesday" in February, May, August and November, and the
court of quarter sessions of the peace was to continue for two days.
In 1722 the supreme court was established, to consist of three judges, of
whom David Lloyd was the chief justice. By the Act of 8th of April, 1826 (9
Smith, 179), it was increased to five members, and by the constitution of 1873
it was again increased to seven justices. The Western District was established
at Pittsburg in 1806, to continue for one week.
Our county court was held in Lancaster from 1729 to 1749, in Carlisle,
Cumberland county, the county capital, until Bedford was created in 1771, and
then followed Somerset in 1795.
The Act of 13 April, 1791 (3 Smith, 29), created the Fourth Circuit Court
District, consisting of Bedford, Cumberland, Franklin, Huntingdon and Mifflin
counties. Our county court was then in Bedford.
The Tenth Judicial District was created by the Act of 24 February, 1806 (4
Smith, 270), and was composed of Armstrong, Cambria, Indiana, Somerset and
Westmoreland counties, with Judge Young of Greensburg, as president judge, at a
salary of $1,600 per annum. There were also two associate judges for each
county.
The Act of 14 April, 1834, P. L., 344, authorized any two of these judges
"to hear and determine all causes, matters and things cognizable therein." Our
records show that the associate judges frequently held court in the absence of
the president judge, when they tried civil and criminal causes; charging the
jury and entering judgment.
Under the last mentioned act the return days for our court of common pleas
were "on the Mondays following the fourth
144 HISTORY OF CAMBRIA COUNTY.
Monday in March, June, September and December" and continued for one week. The
special Act of February 27, 1873, P. L. 169, provides for other return days than
those mentioned.
The Twenty-fourth Judicial District was created by the Act of 5 April,
1849, P. L. 368, composed of Blair, Cambria and Huntingdon counties. Our court
convened on the first Mondays of January, April, July and October; however, the
Act of 1 May. 1852, P. L. 508, changed the regular terms to the first Mondays of
March, June, September and December and to continue for two weeks. This act has
never been changed.
The constitution of 1873 provided that when any county had a population of
40,000 or over it should be entitled to its own court and judge, and the office
of associate judge should be abolished. The census of 1880 gave Cambria over
that number, whereupon the Assembly authorized and created the Forty-seventh
Judicial District, by the Act of 7 August, 1883, published in the laws of 1885,
P. L. 323.
FIRST JUDGES OF BEDFORD COUNTY.
At the time Bedford county was formed we were a part of it, as has been
noted. On March 11, 1771, Lieutenant Governor John Penn appointed the following
named persons as justices of the court of general quarter sessions of the peace
and of the county court of common pleas for the county, and a commission was
accordingly bestowed upon each of them.
There were fifteen in the entire county, namely: John Frazer, Barnard
Dougherty, Arthur St. Clair, William Creaford; James Milligan, Thomas Gist,
Dorsey Pentacost, Alexander McKee, William Proctor, Junior, John Hanna, William
Lochry, John Wilson, Robert Cluggage, William McConnell and George Woods. A
dedimus potestatem was directed to John Frazer, Barnard Dougherty and Arthur St.
Clair, which means in substance they should administer the oaths of, office and
allegiance to the Proprietors of Pennsylvania.
At that period all the territory west of the mountains was in Bedford
county, and these judges must have been located at various places therein for
the convenience of the people. Judge Hanna was the first judge of Westmoreland,
and held court at Hannastown; William Lochry was a resident of that portion of
the county also.
The first court in Bedford county was held 16 April, 1771, and the judges
present and sitting were: William Proctor, Rob-
145 HISTORY OF CAMBRIA COUNTY.
ert Cluggage, Robert (John) Hanna, George (John) Wilson, William Lochry and
William McConnell.
This was the judicial system until after the Declaration of Independence
and until the adoption of the constitution of 1790. Under that instrument
Governor Mifflin appointed James Martin, Barnard Dougherty and George Woods, who
served alternately as the president judge. This system was, however, changed by
the Act of 13 April, 1791, when in the following August the governor appointed
Thomas Smith of Bedford, president judge of the fourth district, which included
Bedford, Cumberland, Franklin, Huntingdon and Mifflin counties, and four
associates for Bedford county, namely: George Woods, first associate; James
Martin, second; Hugh Barclay, third, and Peter Hopkins fourth. Judge Smith
served until 31 January, 1794, when he was appointed an associate judge of the
supreme court, and James Riddle of Chambersburg succeeded him in Bedford county,
who continued to preside until November, 1804, when he was succeeded by Thomas
Cooper.
On March 1, 1806, Jonathan H. Walker succeeded Cooper. Judge Walker was the
father of Robert J. Walker, Secretary of the Treasury of the United States under
President Polk, and was the author of the Walker tariff bill of 1846, which only
passed with the deciding vote of Vice President Dallas of Pennsylvania.
The county of Somerset was taken from Bedford county by the Act of 17
April, 1795, and the first term of court was held in Somerset on Christmas day
of that year. The president judge was Alexander Addison, of the fifth judicial
district, with James Wells, Abraham Cable and Ebenezer Griffith as his
associates. Judge Addison was the author of "Addison's Report for the County
Courts of the Fifth District and the High Court of Errors and Appeals." The
fifth district or circuit consisted of Westmoreland, Fayette, Washington and
Allegheny counties. Judge Riddle and Judge Cooper succeeded Addison, who were
respectively, the judges of the fourth district, until 12 May, 1806, when Judge
Young became the president judge of our district. Judge Addison served twelve
years as president judge. He was eminent in his profession, an accomplished
scholar and his integrity was beyond reproach, but on January 1, 1803, through
political rancor he was impeached. After his death on November 24, 1807, when it
was too late to remove the
VOL I-10
146 HISTORY OF CAMBRIA COUNTY.
stigma that had been cast upon his character, it was the prevailing opinion that
a great wrong had been done him.
Judge Young was the first judge for Cambria. He was born in Glasgow,
Scotland, July 12, 1762, died in Greensburg, October 6, 1840, and is interred in
the St. Clair cemetery in that town. His father was a merchant of Glasgow, and
at the time of his death his son John was a clerk for the father of Sir Walter
Scott.
Judge Young arrived in Philadelphia about 1779, and entered the office of a
Mr. Duponceau, and subsequently that of Judge Wilson as a student of the law,
until he was admitted to the Philadelphia bar January 8, 1786. He came to
Greensburg in 1789, and very successfully began the practice of his profession.
In 1786 he married Maria Barclay, of Philadelphia; they were the parents of
three sons and five daughters. His second marriage was with Statira Barclay, a
cousin of his deceased wife, by whom he had a son and a daughter.
In 1792 and 1793 he served a short period in the military service for
western Pennsylvania. Governor McKean appointed him judge of the Tenth Judicial
District, which included Cambria county, March 1, 1806, and he served therein
for thirty-one years, until he resigned at the age of sixty-nine. He was engaged
in the famous contention between the secular and the regular clergy of the Roman
Catholic Church, for the land upon which the monastery is located at Beatty's
Station. His opposing counsellor was H. H. Brackenridge, Esq., the father of
Judge Brackenridge, of our supreme court. He had been educated for the ministry,
and in this contention he could read with accuracy and to the satisfaction of
the court the bulls of the Popes and the decrees of Councils, which were written
in Latin.
Between him and John B. Alexander, Esq., a member of his bar, a difficulty
arose which resulted in the latter presenting articles of impeachment. This came
to naught, as his character for integrity and excellence was firmly established.
His courteous treatment of Mr. Alexander after he had failed to degrade him,
disclosed this. Judge Young was a follower of Emanuel Swedenborg.
Judge Young was about six feet in height, of delicate mould, and of a
dignified bearing, stooping slightly in his walk. He usually dressed in plain
black, with the conventional swallow-tailed coat and ruffled shirt, and worse
his hair in a queue. His forehead was high and smooth; his face well formed, and
his
147 HISTORY OF CAMBRIA COUNTY.
nose long and straight. He owned slaves at one time, but gave them their freedom
and sufficient money to start them on their own account. When he retired, the
bar entertained him at a banquet, when he closed his remarks thus:
"I conclude with the best wishes for all my fellow-creatures, independent
of external distinction. We are all the children of one common Father, who
causes the sun of His love and the rays of His wisdom to shine upon all."
Judge White, of Indiana, was the second common pleas judge for Cambria
county, which was a part of the Tenth Judicial District composed of Armstrong,
Cambria, Indiana, Somerset and Westmoreland counties. Westmoreland then had a
two weeks' term of court, the others having only one. Governor Joseph Ritner
made the appointment for life, and gave him a commission dated December 13,
1836. He studied law with William Rawle, an eminent lawyer of Philadelphia, and
began practice in Indiana in 1821, when he was about twenty-one years old. He
presided over our courts with dignity and ability for ten years. At the time of
his appointment president judges were commissioned for life or during good
behavior, but the constitution of 1838 changed it to a period of ten years.
The appointment of his successor caused more contention, discussion and
turmoil in reference to our judges than any act or thing which had theretofore
occurred. Francis Rawn Shunk was the Democratic Governor and was disposed to
reappoint Judge White, especially so as the friends of the latter had presented
a petition containing the names of about twenty thousand of his constituents,
irrespective of party politics, requesting it. But the political managers took a
hand and said it would never do to appoint a Whig. Judge Jeremiah S. Black
strongly recommended Shunk to make the appointment, and when he took his
departure he believed he would do so, but on the same day a Democratic
congressman on his way to Washington called on the governor and objected to it
which prevented the appointment being made.
Judge White's term expired February 27, 1847, and on that day Governor
Shunk sent in the name of Jeremiah M. Burrell, of Greensburg, to the senate for
confirmation. William F. Johnston, a Whig senator from the Cambria district,
then residing at Kittanning, was the speaker of the senate, and whose party
controlled the senate by one vote. Judge Burrell's appointment was promptly
rejected. On March 15, 1847, the
148 HISTORY OF CAMBRIA COUNTY.
governor nominated Samuel A. Gilmore for the succession and renewed his
recommendation for the senate to confirm it, but it was also promptly refused,
by a note of fourteen to twelve. The governor made the third trial, and named
Wilson McCandless of Pittsburg as Judge White's successor, and again requested
the senate to approve it, which was also declined by a tie vote of thirteen to
thirteen. The senate adjourned, and there was no president judge for the Tenth
Judicial District.
The public welfare was being seriously affected for the lack of a presiding
judge. Governor Shunk assumed the responsibility and appointed his first choice-
-J. M. Burrell--to fill the vacancy pro hac vice, with his commission bearing
date of March 27, 1847. On Monday, May 24, 1847, Judge Burrell assumed the
duties of his office, and presided over the courts in Greensburg, and in regular
order in the other courts of the district.
The complications heretofore had been political but now confusion was
supreme, and had shifted to the people, who inquired if the appointment was
valid, or whether they had any courts. Edgar Cowan, the eminent lawyer of
Greensburg, doubted its constitutionality, and brought an action of quo warranto
to test the validity of the appointment, which was decided by the supreme court
on a technical objection raised by Judge Burrell, sustaining him, which is
reported in 7 Pa., 34. The technical objection produced more complications and
confusion than had theretofore existed. The Democratic politicians were alarmed,
and the Whigs were complacent, but they believed the duty rested on them to
relieve the situation. While the General Assembly was in session in the winter
of 1847-48, Senator Johnston was still the speaker of the senate. During the
session he casually met a young man named John C. Knot, of Wellsboro, Tioga
county, who was on his way to the west to locate and begin the practice of law.
His brilliancy captured the speaker, who advised him that if he could get
Governor Shunk to appoint him president judge of the Tenth Judicial District
that he would undertake to have the appointment confirmed by the senate, which
he had no doubt could be procured. Within a few, days the appointment of John
Calvin Knox came to the senate from Governor Shunk, when it was promptly
confirmed. His commission was dated April 11, 1848, when Judge Burrell resigned,
and he served until Judge Taylor succeeded him on the first Monday of December,
1851.
149 HISTORY OF CAMBRIA COUNTY.
Judge McCandless, who served many years on the bench, always referred to or
spoke of Judge White as "My illustrious predecessor." Chief Justice Black
frequently said that "Judge White was the ablest and most satisfactory common
pleas judge I ever tried a case before." The refusal of Governor Shunk to
reappoint Judge White and its results did more than any other thing to take the
appointment of president judges from the chief executive and make it an elective
office, which was done by the Act of April 15, 1851, P. L., 648.
Judge Jeremiah Murry Burrell was born near Murrysville, in Westmoreland
county, his mother being a daughter of General Murry, one of the founders of
Murrysville. He completed his education at Jefferson College, then located at
Canonsburg. He was a student of the law in the office of Judge Richard Coulter,
who was subsequently an associate justice of the supreme court, and was admitted
to practice law July 14, 1835.
He had an inclination for politics, and purchasing the "Greensburg Argus"
about 1839, he made it a political organ which gained a national reputation of
sufficient force to meet the approval of the opponents of Horace Greeley's anti-
slavery ideas, and other public interests. In 1844 he was an efficient speaker
and writer for Colonel Polk, the Democratic candidate for the presidency. In a
contest for the leadership of the General Assembly with Thomas Burnside, Jr., a
son of Judge Burnside, and a son-in-law of Simon Cameron, he succeeded. He was
then recognized as an able partisan and a most eminent orator. Notwithstanding
his eminent abilities and integrity, the manner of his appointment rankled in
his bosom as well as that of the party which appointed him, and after serving
less than a year he resigned the position of president judge of our district.
Judge John Calvin Knox served acceptably as president judge of the courts
of Cambria county from April 11, 1848, until April 4, 1849, when he was
succeeded by Judge Taylor. Judge Knox was a stranger in the Tenth District,
which is the prinicipal reason for his appointment and confirmation. In addition
to the manner in which Senator Johnston suggested his name, there is another
side incident connected with his judicial service which is of some value and has
never been published, which now may be properly done, as age mellows many things
into virtues.
Armstrong county was a part of the Tenth District, and
150 HISTORY OF CAMBRIA COUNTY.
the late John S. Rhey, of Ebensburg, was then a young lawyer residing in
Kittanning, who had been appointed deputy attorney general to prosecute criminal
actions in the district. While residing in that county he was elected to the
General assembly, where by that eminent body he was chosen speaker of the house
in 1852. When Judge Knox made his first visit to Kittanning he met Mr. Rhey, and
with due modesty and candor said he feared to assume the duties which the office
of president judge imposed as his practice of the law was limited. He had never
tried a case and felt that he was not equipped for the distinguished position.
Mr. Rhey appreciated the condition of public affairs in the district, and with
his short acquaintance looked with favor on helping the young judge, and thus
counselled him "Never mind; go on the bench and made no excuses; do the best you
can and we will help you. Do not talk about it." He did as he was advised, and
performed his duties very well for the brief period he was in the district.
The judicial districts were reapportioned in 1851, and on the same day that
Judge Taylor was elected for the Cambria, Blair and Huntingdon courts, Judge
Knox was elected in the Venango, Jefferson, Clarion and Forrest district, then
the XVIIIth District, defeating Judge Buffington, who had been commissioned by
Governor Johnston. Judge Knox served with distinction, and in 1853 Governor
Bigler appointed him associate judge of the supreme court to succeed the eminent
Chief Justice John Bannister Gibson. He was elected to succeed himself, and
served there until January 19, 1858, when he assumed the office of attorney
general in the cabinet of Governor William Fisher Packer. At the close of his
official term as attorney general he located in Philadelphia, where he practiced
his profession until he became afflicted with softening of the brain, and died
in the Norristown Hospital.
Judge George Taylor was born at Oxford, Chester county, Pennsylvania,
November 20, 1812, and died in Hollidaysburg while holding court November 14,
1871. He was the fourth child of Matthew and Rebecca Anderson-Taylor. He did not
attend school after his thirteenth year. He removed to Huntingdon, and became a
clerk in the prothonotary's office, while David R. Porter was the the official.
In 1834 he entered the office of Andrew P. Wilson as a student of the law, and
was admitted to the bar on April 12, 1836. He prosecuted the Flanagans for the
Betsy Holder homicide. He formed a partnership with John
151 HISTORY OF CAMBRIA COUNTY.
G. Miles in the practice of the law. In 1843 he was elected treasurer of
Huntingdon county. While treasurer he retired from the firm of Miles & Taylor
and began to prepare for the Presbyterian ministry. He mastered the Greek
language and could read the Testament in its original tongue. In 1835 he was
editor of a Democratic weekly newspaper.
The Act of April 5, 1849, created the XXIVth Judicial District, composed of
Blair, Cambria and Huntingdon counties, and he was unanimously recommended for
president judge, and in the same month Governor Johnston, the Whig governor,
gave him his first commission. He succeeded Judge Knot in Cambria county, and
occupied the bench for the first time on July 2, 1849. He was nominated and
elected as a Whig in 1851 for a full term of ten years, and was re-elected in
1861. In his twenty-two years' service he never failed to hold the regular terms
of court. Judge Taylor was an excellent common pleas judge.
Justice John Dean was born at Williamsburg, Blair county, February 15,
1835, and died in Hollidaysburg, May 29, 1905. He was the son of Matthew Dean.
His grandfather was John Dean, and his great-grandfather was Matthew Dean, one
of the early settlers in central Pennsylvania.
Judge Dean was educated in the common schools at the Williamsburg Academy
and Washington College. He taught school in Williamsburg and Hollidaysburg, when
he entered the law office of James M. Bell and D. H. Hofius as a student of the
law. He was admitted to practice in 1855. In 1857 he was elected superintendent
of the county schools, and in 1859 formed a partnership with Samuel Steel Blair,
which continued until '64. In '67 he was appointed district attorney for Blair
county to succeed John H. Keatley, and was elected for the next term. In 1871 he
was elected president judge of the XXIVth Judicial District consisting of Blair,
Cambria and Huntingdon counties. His Democratic opponent was Thaddeus Banks, and
George Taylor as an Independent candidate. In 1881 he was unanimously elected
for the succeeding term. The apportionment of 1883 made Blair county a separate
district, where he completed the second term of service. In 1891, he was again
re-elected over H. T. Ames, of Williamsport, an Independent candidate. In 1892
he was nominated by the Republican convention and was elected to the supreme
court of his native state, and entered upon his duties on the first Mon-
152 HISTORY OF CAMBRIA COUNTY.
[PHOTO]
George Taylor.
[PHOTO]
Thomas White.
[PHOTO]
John Dean.
153 HISTORY OF CAMBRIA COUNTY.
day of January, 1893. He was next to the chief justice in the date of his
commission at the time of his death. Judge Dean did not accept a railroad pass
during his judicial career. He was regarded as one of the strong judges of the
state.
Judge Robert Lipton Johnston, elected as the Democratic nominee to succeed
Judge Dean, was the first judge for Cam-
[PHOTO]
R. L. Johnston.
bria county when it was made a separate judicial district in 1883, and
designated the XLVIIth District. He was born in Franklin township, Huntingdon
county, Pennsylvania, on January 7, 1815; died at Ebensburg, October 28, 1890.
Judge Johnston was educated in private schools. In 1839 be removed from
Indiana to Ebensburg, and became a student of the law in the office of Michael
Dan Magehan. He was ad-
154 HISTORY OF CAMBRIA COUNTY
mitted to practice on March 31, 1841. In 1845 he was elected county treasurer on
the Whig ticket, and in 1849, he was its candidate for the state senate against
Augustus Drum. In 1851 he was elected on the same ticket for prothonotary, clerk
of the oyer and terminer, quarter sessions and orphans' courts, and register and
recorder, all of which were filled by the same official. In 1854 he was elected
the first superintendent of public schools, and served until October, 1855, when
he resigned. Thereafter he successfully practiced his profession until he was
elected president judge.
In 1854 he left the Whig party on the issues raised by the Know Nothings,
and held aloof for two years before he decided to cast his lot with the
Democratic party. He was a Douglas-Democrat in the contest of 1860, and a War
Democrat during the strife. In 1864 and in 1866 he was a candidate for congress.
He headed the McClellan electoral ticket for president in 1864, when Morton
McMichael led it for Lincoln. He was an able lawyer and an upright judge, and
died suddenly while president judge.
Augustine Vinton Barker was appointed president judge by Governor Beaver to
succeed Judge Johnston, on November 13, 1890. He was born at Lovell, in Oxford
county, Maine, June 20, 1849; he was a son of Abraham Andrews and Elizabeth
Littell Barker, who removed to Cambria county in 1854.
Judge Barker graduated at Dartmouth College in 1872, with the degree of B.
A., and in 1875 he was honored with that of M. A. from the same institution.
When he completed his education he entered the office of Judge E. W. Evans, of
Chicago, as a student of the law, and later entered the office of Shoemaker &
Sechler, in Ebensburg, from which he was admitted to practice at the Cambria
bar, on August 4, 1874. He was selected solicitor for the county commissioners
in 1881. On November 9, 1891, he was elected president judge for a term of ten
years as the Republican nominee, to date from the first Monday of January, 1892.
He was an industrious and able lawyer and judge. He was always a student. His
decisions were rarely criticised or reversed by the appellate courts. Since his
retirement he has successfully practiced his profession at Ebensburg.
In his fourteenth year he enlisted with his father and brother in Captain
Daniel O. Evans' Company K, Fourth Pennsylvania Militia, under the command of
Colonel Robert Litzinger, in the department commanded by General Nelson A.
155 HISTORY OF CAMBRIA COUNTY.
Miles during General Lee's Gettysburg invasion. He served from June 15 to August
8, 1863.
Judge Francis Joseph O'Connor was elected in 1901 to succeed Judge Barker.
He is a son of James and Elizabeth Croyle O'Connor; born August 11, 1800, on the
homestead farm, near Forwardstown, in the county of Somerset, Pennsylvania. He
was educated in the public and private schools. He graduated from the law
department of the University of Michigan, at Ann Arbor, in the class of 1884,
with the degree of LL. B. He was admitted to practice law in Somerset county on
May 8, 1884, and on November 9, 1886, he removed to Johnstown, when he became a
member of the Cambria bar.
Prior to his graduation he taught school for a number of terms in his
native county. In November, 1889, he was elected district attorney for Cambria
county, as the nominee of the Democratic party, and served one term. In 1894 he
was chosen city solicitor for the city of Johnstown, and served for three years.
In 1896, he was the choice of his party in the county for the nomination for
congress, but withdrew his name from the conference in favor of Major R. C.
McNamara. He was the unanimous nominee of his party for president judge of the
XLVIIth Judicial District at the November election in 1901, and was elected. He
is now serving as the ninth president judge of Cambria county.
THE DISTRICT COURT.
Since 1850 several efforts have been made to have Johnstown created the
county capital, or to make a new county to be called Conemaugh. Thus far all
attempts have failed. To give the people of the southern part of the county
relief in the transaction of legal affairs, the General Assembly passed the Act
of April 13, 1869, creating the district court with the courthouse in Johnstown.
The district included the boroughs of Johnstown, Conemaugh, Millville, Cambria,
Prospect, Franklin and East Conemaugh, and the townships of Yodor, Richland,
Taylor and Conemaugh.
In criminal affairs its jurisdiction was limited to cases triable in the
court of quarter session, and it could not try the higher felonies which are
heard in the court of oyer and terminer. In civil matters it was limited to
claims not to exceed two hundred dollars; however, its jurisdiction was enlarged
by the Act of April 4, 1873, so that all criminal prosecutions, ex-
156 HISTORY OF CAMBRIA COUNTY.
cepting treason and homicide, and in civil affairs the same power as any court
of common pleas were given it.
Judge Taylor and Associate Judges George W. Easly and James Murray
constituted the court, but by the Act enlarging the jurisdiction that part was
repealed and the judges were to be elected by the electors of the district.
The July term was approaching when the Union Hall on the northwest corner
of Washington and Franklin streets was leased for the new county offices and
court house at $800 per annum. Pending the remodeling Colonel Linton's office
was Sheriff Blair's headquarters, and Daniel McLaughlin's office was used as the
office of the prothonotary. The lease for the Union Hall had not been executed
when the opposition sought to have it set aside in order to lease what was known
as Fronheiser's Hall, on the southeast corner of Railroad and Clinton streets.
Of course this caused much trouble, and on May 6, a protest was filed against
the latter by James Potts, W. Horace Rose, John F. Barnes, Cyrus Elder, A.
Kopelin, Daniel McLaughlin and C. L. Pershing, as not being a fit place for the
court, and the Union Hall was finally chosen.
The court was organized Monday, July 5, 1869, by Judge Taylor, and his
associates named. Joseph McDonald was deputy prothonotary, and Patrick Markey,
court crier. There was much enthusiasm in the opening ceremonies; Judge Potts
made the principal address and Judge Taylor responded. The members of the bar
who were admitted to practice therein were James Potts, Abraham Kopelin, Cyrus
L. Pershing, Daniel McLaughin, Cyrus Elder, John P. Linton, John F. Barnes, R.
L. Johnston, John Fenlon, George U. Reade, John S. Rhey, William Kittell, W. H.
Sechler, F. A. Shoemaker, W. Horace Rose, John H. Fisher, Jacob Zimmerman, S. B.
McCormick, Harry White, Isaac Higus, George F. Baer, now president of the
Reading railroad, F. P. Tierney, George W. Oatman, John E. Scanlan, Joseph
McDonald, T. W. Dick, James C. Easly, and H. C. Campbell of Punxsutawney. The
sheriff was John A. Blair, and his deputy, James Null. Captain J. K. Hite was
the prothonotary and F. P. Tierney the district attorney.
The first court continued for three days. But trouble was brewing. In the
April term, 1870, the grand jury declared the lock-up on the public square which
was used as a county prison, a public nuisance and indicted the following named
gentlemen for maintaining it: Burgess, Joseph S. Strayer, and Council-
157 HISTORY OF CAMBRIA COUNTY.
men Daniel J. Morrell, J. M. Campbell, James Morley, H. A. Boggs, Richard Jelly,
David Hopkins, John P. Linton, Charles Zimmerman, Sr., James King, Airwine Metz,
T. R. Kimmell, Jonathan Horner, Alexander Kennedy, James H. Hoover, Joseph
Layton, Daniel N. Jones, George W. McGarry and Henry Barnes. Of course they were
not called to trial.
A bill was presented in the General Assembly for 1870 authorizing the
removal of the county offices from Ebensburg to Johnstown, but it was defeated.
The project then became a political issue, but non-partisan; it was a test of
strength between the people of the south of the county against the north who
desired to retain the county capital at Ebensburg. On June 4 a very large
meeting to start the campaign was held on what was termed "Court House Square,"
now the city park. The officers were: President, William Flattery, Esq.; vice-
presidents, Hugh Bradley, C. B. Ellis, Thomas Davis, Captain Patrick Graham, R.
B. Gageby, Jacob Fronheiser, Jacob Fend, John Thomas, James Robb, George McLain,
David Dibert, Henry Shaffer, John Devlin, Charles O. Luther, Henry Freidhofs,
William Cushon, Morris Lewis, John Smith, A. M. Gregg, Patrick Minahan, Thomas
McKeirnan and Henry Gore, also Daniel Good and Thomas McCabe, of East Conemaugh,
James B. Pyatt and Peter Rubritz of Franklin, James Cooper and John Lamison of
Coopersdale, Daniel Burthold and A. A. Parsons of Taylor township, John Cushon
and John P. Shaffer of Conemaugh township, David Hamilton and James Burns of
Yoder township, George Orris and Christian Weaver of Richland township, George
Eichensehr and Alexander Murphy of Adams township and Thomas Davis and Henry
Adams of Jackson township. The secretaries were H. D. Woodruff and George T.
Swank. An executive committee was appointed to conduct the campaign consisting
of Lewis Plitt, William Flattery, B. F. Speedy, H. A. Boggs, Charles B. Ellis,
and Charles Unverzaght. The Tribune and the Democrat made it the leading issue.
A convention was held in Johnstown on June 25, with delegates from every ward
and township in the new district. The permanent organization was Daniel
McLaughlin, president; George McLain, and Thomas McCabe, vice-presidents; and F.
M. George and John F. Barnes, secretaries. The resolutions presented by the
committee on such were adopted, the vital grievance being: "Whereas, the time
has arrived when the varied interests of the people of the County of Cambria
demand as an act of exact
158 HISTORY OF CAMBRIA COUNTY.
justice the removal of the County Seat from Ebensburg to Johnstown, the great
business and commercial centre of the County," and requesting the candidate for
Assembly who would be nominated, to pledge himself to use every effort to pass a
law to that effect. General James Potts was nominated, but on the 10th of August
he withdrew and Captain Henry D. Woodruff, of the Democrat, became the nominee
for Assembly on the Removal ticket.
On August 8 the Democratic convention met in Ebensburg and nominated an
"Anti-Removal" ticket. The candidates before the convention were William Horace
Rose, James Griffin and Nathaniel Horne of Johnstown, Robert H. Brown of Cresson
and John Porter of Lilly. On the sixth ballot Mr. Rose was nominated. William B.
Bonacker of Johnstown was nominated for sheriff. The campaign was opened and
conducted solely on the question of removal of the court house, and politics
were disregarded. Meetings were held throughout the district. The Anti-Removal
party agitated the building of a new prison in Ebensburg which was considered a
good move to block the Removal people. This event brought the campaign poet to
the fore with the following, which was sung to the tune of "Captain Jinks of the
Horse-Marines:"
"Old Bob and Phil may talk and cant,
And Tom and Frank may rave and rant;
But that big jail--Oh no, you shan't;
we'll raze it with our army.
"You know that Bill will not report;
He only pledged himself to sport;
But we are going to bring that Court,
with our Removal Army."
Lewis Plitt and others procured an injunction against William Callan, the
contractor for the new jail, and the commissioners and treasurer, to prevent
them expending any money on the new penitentiary, as it was termed by the Antis.
The defendants not having filed an answer Judge Potts moved for judgment pro
confesso, which brought the matter to an issue. An attachment was issued for the
defendants for contempt of court, but they all appeared and disclaimed any
thought of contempt, which ended that proceeding and the new jail was completed.
The election took place on October 11, when Mr. Rose received 2,929 votes and
Captain Woodruff, 2,707. The vote in Johnstown was thus: First ward, for
removal, 233 against 31; Second, 106 to 15 for it; Third ward, 114 to 21 for it,
Fourth
159 HISTORY OF CAMBRIA COUNTY.
ward, 150 to 18 for it; Fifth ward, 166 to 32 for it; Sixth ward, 107 to 12 for
it.
The vote in Ebensburg was thus: East ward, Rose 118; Woodruff, none; West
ward, Rose 153; Woodruff, none. Captain Bonacker was elected sheriff, and Daniel
J. Morrell was defeated for congress by 11 votes.
Shortly after the election, F. Carroll Brewster, the attorney general for
the state, moved for quo warranto proceeding against George Taylor to show cause
why he exercised the duties of president judge of the district court, and on
February 9, 1871, judgment was entered against Judge Taylor and he was ousted.
This was a serious blow and was considered to have actually abolished the
district court.
For almost a year tranquility prevailed, when suddenly Governor Geary
appointed James Potts, president judge, David Hamilton and William Flattery
associate judges, and George T. Swank prothonotary and clerk of the quarter
sessions court, for the district court to be holden in Johnstown. The old
contest was renewed with vigor. On September 20, 1871, a convention was held in
Johnstown over which Captain Woodruff presided. Thomas McCabe of East Conemaugh
and John W. James of Johnstown were vice-presidents, and W. A. Krise of
Coopersdale, and John Roberts of Franklin were the secretaries. The appointees
were nominated. Notwithstanding there were but ten days until the election, an
opposition ticket was placed in the field, consisting of Cyrus Long Pershing for
president judge; George W. Easly and Jacob Singer for associate judges, and
Robert H. Canan for prothonotary. It was a brilliant dash, and was made more
interesting because Judge Taylor, Judge Dean and Thaddeus Banks were contesting
for the prize of president judge of the XXIVth judicial district. The result was
as follows: Judge Potts received 1,447 votes; Retaliation, 924; Hamilton, 1,481;
Flattery, 1,262; Singer, 1,009; Early, 938; Swank, 1,470, and Canan, 910. Judge
Dean succeeded in the XXIVth district. On the same day Samuel Henry of Ebensburg
was elected to the assembly over W. Horace Rose by a vote of 2,912 to 2,505. The
result of this election was the passage of the Act enlarging the jurisdiction of
the district court, reference to which has been made previously.
The Taylor quo warranto had done its work so well that on March 28, 1872,
at the suggestion of Captain J. K. Hite, who was prothonotary in Ebensburg,
another writ was issued against
160 HISTORY OF CAMBRIA COUNTY.
George T. Swank to show cause why he exercised the rights and duties of the
office to which he had been elected. The court sustained the claimant, and the
supreme court affirmed it, whereupon M. Swank was likewise ousted. It was not a
difficult matter for an attorney or suitor to know what was going on in the jury
room after the jury retired. On this occasion an important case was being tried,
and the jury having gone to their room had agreed upon a verdict against the
client of Colonel Kopelin which of course came to his knowledge. He had also
received private information that Mr. Swank had been ousted by the supreme
court, therefore, Colonel Kopelin immediately moved to have the jury discharged,
inasmuch as there had been no legal clerk of the court during the trial. The
jury, filed in to record their verdict. Judge Potts received it on the ground
that the court had "no official notice of the removal of Mr. Swank." The opinion
of Mr. Justice Agnew was considered so broad that it virtually ended the
district court, which remained suspended from July, 1872, until after the
amended Act of April, 1873. Samuel Henry was friendly to the removal cause, and
through his influence the bill became a law.
On Aril 9, 1873, Governor Hartranft reappointed George T. Swank clerk of
the district court, who reassumed the duties attached to the position. On May
13, the county commissioners leased for a court house Parke's Opera House, and
the second floor of the Benton building, which adjoined it on the west. The
opposition endeavored to have the Union Hall, Fronheiser's Hall, or the
Episcopal church selected for the court house, but for the time being were
unsuccessful. George W. Cope and Henry H. Kuhn were admitted to practice law in
March, and Oliver J. Young and John H. Brown in September, 1873.
On May 12, 1873, another writ of quo warranto was issued commanding Judge
Potts to show cause why he assumed and exercised the power of president judge of
the district court. On the return day Henry D. Foster of Greensburg and John
Scott of Huntingdon appeared for Judge Potts and moved for a continuance. It was
granted on the condition that he would not exercise any duty of the court,
excepting to convene and adjourn the court until the final decision was made.
This condition existed until October, when Judge Potts was removed.
Notwithstanding the Union Hall had not been leased for the use of the court.
Judge Potts moved thither on July 7, 1873, and opened court and was about to
adjourn under the condition imposed,
161 HISTORY OF CAMBRIA COUNTY
when Colonel Linton moved for the trial or the discharge of a client who had
been indicted for a serious offense. Judge Potts directed the crier to adjourn
the court until the first Monday of October. While this was going on in the
Union Hall, another court had been convened in Parke's Opera House, which was
attended by Sheriff Bonacker, Treasurer John Cox, Associate Judge David
Hamilton, and George T. Swank, clerk of the court. The attorneys present were
Colonel Kopelin, R. L. Johnston, W. H. Sechler, W. Horace Rose, Daniel
McLaughlin, Jacob Zimmerman, and H. H. Kuhn. Subsequently Colonel Linton
appeared. Judge Hamilton directed Crier Markey to open the court, which he did
in his inimitable way. The commission issued by Governor Hartranft appointing
Mr. Swank clerk, etc., was read and recorded. Colonel Kopelin and Colonel Linton
then made the same motion in this court as Linton had made before Judge Potts
sitting in the Union Hall. The motion was filed, and Judge Hamilton adjourned it
until the first Monday of October. Mr. Swank did not personally act as clerk of
the court, he continuing as editor and publisher of the Tribune. Captain Kuhn
was his deputy until the latter part of 1872, when John H. Brown succeeded and
served until his term expired.
On September 19, 1873, a petition requesting the electors to choose two
delegates--one Republican and one Democrat--to meet in convention to nominate a
candidate for clerk of the court, was addressed to "The Voters residing within
the limits of the District Court." It was numerously signed, beginning with Gale
Heslop and Casper Burgraff and ending with George F. Randolph and D. J. Morrell.
The convention met in Parke's Opera House on September 27. The delegates were:
Adams township: Lewis W. Shank and Hiram Shaffer; Cambria borough: Michael
Sweeny and Henry Gore; Conemaugh township: John Cushon and D. I. Horner; Second
ward of Conemaugh borough: Martin Rist and William Cushon; Coopersdale borough:
W. A. Krise and John D. Adams; Franklin borough: John Furlong and J. F. Devlin;
Millville borough: Michael Maloy; Taylor township: J. B. Bowser and J. B. Clark;
Johnstown, First ward: John Hitchens and Hugh Bradley; Second ward, J. F. Barnes
and Jacob Mildren; Third ward, Casper Burgraff and William Doubt; Fourth ward:
Oscar Graffe; Fifth ward: A. Wigand and S. T. Robb; Sixth ward: Hugh Maloy and
S. B. McCormick; Prospect borough: Thomas Dunford and
Vol. 1-11
162 HISTORY OF CAMBRIA COUNTY.
John Smith. There were no delegates from the First ward of Conemaugh, East
Conemaugh or Woodvale boroughs, nor from the townships of Upper and Lower Yoder
and Richland. The officers of the convention were John Cushon, president Michael
Sweeny and Henry Gore, vice-presidents, of whom the latter declined to accept
the honor, and Jacob Mildren was chosen. J. B. Adams and W. A. Krise were the
secretaries. Lucian D. Woodruff was nominated by acclamation for clerk of the
court. Notwithstanding the unanimity in the proceeding it was only on the
surface, and deep down there was hot blood among the politicians, and every
voter was in that class. The election was to take place October 14, and on the
3d Samuel Masters announced that he would be an independent candidate for that
office. It was a lively dash. Mr. Masters was elected by a vote of 1,443 to
1,294. At the same election Herman Baumer was elected sheriff over John T.
Harris by a vote of 2,828 to 2,550, and Samuel Henry, a Republican was re-
elected to the Assembly for the third successive time. The latter and the
sheriff were of course county nominees.
The first Monday of October, 1873, was the time for the beginning of the
regular term. On that day some of the court officials met in the Union Hall, and
the others in Parke's Opera House. Judge Potts went to Pittsburg that morning,
and at 10 o'clock Associate Judge Flattery took his seat in the Union Hall court
and directed J. D. Hamilton, the court crier, to open the court. The order was
obeyed. Those present were: Robert Barclay, a juror; Colonel Kopelin, an
attorney; J. D. Barkley, a spectator, and two reporters. Judge Flattery
announced the absence of Judge Potts, and that nothing could be done, and
adjourned court until the first Monday of January. The Parke's Opera House court
did not even have an associate judge, and it seems there were only two persons
present--George T. Swank, the clerk, and Patrick Markey, the crier, who opened
and adjourned the court. At the July term Judge Hamilton had attended both
courts but at this time he was absent.
The supreme court ousted Judge Potts, but on October 31 he was reappointed
by Governor Hartranft, who at the same time reappointed Judge David Hamilton,
and selected Robert B. Gageby as the other associate judge in place of Judge
Flattery, who had gone over to the opposition but is recorded as having
resigned.
In the meanwhile the new constitution had been adopted,
163 HISTORY OF CAMBRIA COUNTY.
which, when it would take effect, would abolish the district court of Johnstown.
In view of this it was concluded better to have one court than two: therefore,
on the first Monday of January term, 1874, Judge Potts and Associate Judges
Hamilton and Gageby opened the term in Parke's Opera House, where the clerk had
held his office during the turmoil, and where it continued until it went out of
existence. On May 20, 1874, Colonel Kopelin died.
On October 21, 1874, a petition numerously signed by the leading citizens,
among whom were D. J. Morrell, James McMillen, C. T. Frazer, W. B. Bonacker, E.
A. Vickroy, John M. King, A. Montgomery, John P, Linton, Cyrus Elder, John H.
and Pearson Fisher, requested Judge Potts and Associate Judges Hamilton and
Gageby to be candidates for re-election, and on the same day their acceptance
was announced.
On the 29th a card was posted announcing that John F. Barnes would be a
candidate for president judge, and Mahlon W. Keim and John Benshoff for
associate judges of this court. This was the condition of affairs four days
before the election, and neither candidates on the respective tickets had been
nominated by a political party or a convention. It was a lively campaign, but a
sort of a go-as-you-please-contest, and the political stilettoes were keen and
pointed. The result was: Potts, 1,015, and Barnes, 1,247; Gageby, 1,219, and
Keim, 1,167, to 1,140 for Benshoff and 1,025 for Hamilton. Judge Barnes presided
until the October term had been completed, when the district court was
abolished.
The records were removed to Ebensburg and filed in the office of the
prothonotary, and thus ended a court of record of a brief existence but of more
turbulence than was ever known.
"Among the departed great men of Pennsylvania whose services to the
commonwealth deserve to be gratefully remembered the faithful historian will
place Judge Cyrus L. Pershing, who died on June 29, 1903, at his home in
Pottsville, Schuylkill county. Pennsylvanians should be proud of the fact that
this modest but distinguished citizen lived all his days within the borders of
the Keystone State. Presbyterians should be proud of the career of this
conspicuous and worthy adherent of their faith and doctrine.
"The Pershing family is one of the oldest in Western Pennsylvania. It is of
Huguenot origin, Judge Pershing's great-grandfather, Frederick Pershing, having
emigrated to this coun-
164 HISTORY OF CAMBRIA COUNTY.
try from Alsace, then a part of France, landing at Baltimore on October 2, 1749.
In 1773 the emigrant purchased a tract of 269 acres of land upon the head waters
of Nine Mile Run in what is now Unity township, Westmoreland county,
Pennsylvania, and in 1774 he moved his family from Frederick county, Maryland,
to the new home. With his sons he engaged in farming and he also built
'Pershing's mill.' One of his grandsons, Christopher, son of Christian, was the
father of the future judge. Judge Pershing's mother, Elizabeth Long, was also
descended from a pioneer family in Westmoreland county, her grandfather, Jacob
Long, a Pennsylvania German, having moved from Lancaster county to Westmoreland
county about the beginning of the last century. Jacob Long's grandfather, Oswald
Long, and his father, Diebold Long, emigrated from Wurtemburg in 1730.
"Cyrus Long Pershing was born at Youngstown, Westmoreland county, on
February 3, 1825. He was therefore in his seventy-ninth year at the time of his
death. In 1830 his father moved his family to Johnstown, dying in 1836. Cyrus
was the oldest of three brothers. A good mother was equal to her
responsibilities. That her boys should receive the best education that was
possible was her firm determination. They were early sent to ‘subscription
schools.' When thirteen years old Cyrus became a clerk in a store in Johnstown.
Here he learned from the farmers to speak Pennsylvania Dutch fluently. In 1841
he was employed as a clerk at the weighlock of the Pennsylvania canal at
Johnstown. Subsequently he filled other clerical positions in connection with
the canal. In all these positions as opportunity would permit he was an
industrious student of the educational textbooks of the day. In 1839 he began
the study of Latin with the Rev. Shadrach Howell Terry, the first pastor of the
Presbyterian church at Johnstown, and afterwards he began with Mr. Terry the
study of Greek. Mr. Terry died in 1841 and was succeeded by the Rev. Samuel
Swan. In 1842 Cyrus L. Pershing recited Greek to Mr. Swan that he might be
prepared to enter the freshman class of Jefferson college, at Canonsburg, which
he entered in November of that year. From this time until June 14, 1848, when he
was graduated, he continued his college studies in the winter and his clerical
duties in the summer, with the exception of a few months in 1846, when he taught
one of the public schools in Johnstown.
"During the winter following his graduation Mr. Pershing taught a classical
school at Johnstown, which was well attended
165 HISTORY OF CAMBRIA COUNTY.
and was very successful. In 1849, having resolved to study law, he accepted an
invitation from Jeremiah S. Black, of Somerset, afterwards the distinguished
jurist, to enter his office as a student. In November, 1850, he was admitted to
the Somerset bar, and immediately afterwards, on November 26, 1850, he was
admitted to the bar of Cambria county. He opened an office in Johnstown and at
once entered upon a large and profitable practice in the court of Cambria
county. This practice he continued to enjoy as long as he remained a citizen of
Johnstown. He also established outside of Cambria county an excellent reputation
as a pains-taking lawyer who knew the law, and this reputation paved the way for
new clients and for honors which soon came to him. Judge Black was so impressed
by the native ability of his student and the readiness with which he mastered
legal principles and the details of legal practice that he offered him a
partnership immediately after his admission to the bar, but this arrangement was
not consummated because of Judge Black's elevation to the supreme bench of
Pennsylvania in 1851.
"Soon after his admission to the bar Mr. Pershing was married to Miss Mary
Letitia Royer, youngest daughter of the Hon. John Royer, a pioneer iron
manufacturer in the Juniata valley and a Whig member of the legislature from
Huntingdon county and afterwards from Cambria county. The marriage took place at
Johnstown on September 23, 1851. The Royer family is an old Pennsylvania family,
of Huguenot extraction. Five sons and two daughters were born to Mr. and Mrs.
Pershing, all of whom, with their mother, are still living.
"All lawyers in country towns in the old days were expected to be
politicians, even if they did not have political ambition of their own. Most of
them,. however, were ambitious of political preferment. Cyrus L. Pershing was a
politician from boyhood. He knew the history of his country and of political
parties as few other boys knew it. He early developed literary talent as a
writer for the local newspapers, and what he wrote for publication often related
to the political issues of the day. He became a member of a local debating
society and soon developed considerable ability as a public speaker. Even before
he was admitted to the bar he was in demand as a speaker at neighborhood
meetings of the Democratic party, to which party he faithfully adhered from the
beginning to the end of his active career. When yet a boy he began to keep a
diary of miscellaneous occurrences and also a scrap-book of election returns and
political
166 HISTORY OF CAMBRIA COUNTY.
events. This habit of methodically preserving facts which he deemed worthy of
preservation strengthened a naturally retentive memory and nourished his
literary and historical tastes. Running through his public speeches and
addresses while he lived in Johnstown there was always a historical vein. In
1848, before his admission to the bar, he was the orator of the day at a banquet
given at Johnstown to the Cambria county soldiers who had returned from the
Mexican war. Few men who have ever lived in Pennsylvania have known the history
of the State, and especially its political history, as Cyrus L. Pershing knew
it. He was familiar with the careers of its notable men--politicians, lawyers,
clergymen, college professors, and others, and he had a personal acquaintance
with most of them.
"After his admission to the bar Mr. Pershing's advancement in the councils
and leadership of his party was so rapid that in 1856 and again in 1808 he was
the Democratic candidate for congress in the district of which Cambria county
formed a part. He was defeated in both years, as the district was largely
Republican in sentiment, but in each year he greatly reduced the normal anti-
Democratic majority. In the fall of 1861 he was elected a member of the state
legislature from Cambria county, and he was re-elected in 1862, 1863, 1864 and
1865, serving in this office for an unusually long continuous period. His
service in the legislature ended with the session of 1866. The author of a
published sketch of Mr. Pershing in 1869 says: `During the whole of Mr.
Pershing's service at Harrisburg he was a member of the committee of ways and
means, the judiciary, and other important general and special committees. At the
session of 1863, the only one in which the Democrats had a majority, Mr.
Pershing was chairman of the committee on federal relations, and at the
succeeding session was the Democratic nominee for speaker of the house. He was
an acknowledged leader and enjoyed to a rare degree the confidence and personal
esteem of his fellow-members without distinction of party.'
"It will be observed that Mr. Pershing's services in the Pennsylvania
legislature covered almost the entire period of the Civil war. He was himself a
War Democrat and believed in a vigorous prosecution of the war. In addition to
what is said of Mr. Pershing's legislative career in the extract above quoted it
can be stated as a part of the history of that great struggle that Governor
Curtin was in the habit of privately consulting
167 HISTORY OF CAMBRIA COUNTY.
with Mr. Pershing as the Democratic leader in emergencies which were constantly
arising. The governor could rely on his loyalty, his wisdom, and his influence
over his fellow-members.
"Honors now come to Cyrus L. Pershing in rapid succession. In 1866 he was a
delegate from his congressional district to the National Union Convention which
met at Philadelphia in August of that year. In 1868 he was a presidential
elector on the Democratic ticket. In 1869 he was the Democratic candidate for
judge of the supreme court of Pennsylvania, but was defeated by a small
majority. In 1872, owing to divisions in the Democratic party of Schuylkill
county, he was asked to become a compromise candidate for president judge of the
courts of that county. He was then in his forty-eighth year. He had never been
in Schuylkill county, and was, of course, a stranger to most of its people, even
to many members of the bar who had urged him to accept the nomination. However,
he consented to become a candidate and was elected by a large majority for the
constitutional term of ten years. In December, 1872, he held his first court at
Pottsville and in the spring of 1873 he moved his family to Pottsville. In 1882
he was elected for another term of ten years, and in 1892 for still another
term. But failing health prevented him from serving the whole of the third term.
He resigned in August, 1899, having presided with great acceptance over the
courts of Schuylkill county for twenty-seven consecutive years. From 1899 until
his death in 1903 he rested from his labors, but his interest in public affairs
and in the welfare of his immediate neighborhood never ceased, and his wonderful
memory never failed until he was stricken with his last illness.
"In 1875, while presiding over the courts of Schuylkill county, Judge
Pershing was nominated for governor of Pennsylvania by the Democratic state
convention of that year, his opponent being General John F. Hartranft, who had
been elected to the governorship in 1872 and was now a candidate for a second
term. Owing to his position on the bench Judge Pershing could not "take the
stump." So great, however, was his personal popularity that he was defeated by a
small majority of less than 12,000 for General Hartranft. Outside of
Philadelphia Judge Pershing led his distinguished opponent by a large majority.
"During Judge Pershing's first term as president judge of
168 HISTORY OF CAMBRIA COUNTY.
Schuylkill county, or from 1876 to 1878 inclusive, the infamous criminal
organization known as the Mollie Maguires was completely broken up and many of
its members were hung, largely as the result of a series of trials over which
Judge Pershing presided. This organization had terrorized the anthracite region
for several years, and its agents had committed many murders to establish its
lawless authority over the coal-mining industry. At the risk of his life Judge
Pershing did not hesitate to sentence to death the convicted participants in
these murders who were tried before him. From the beginning to the end of these
trials he displayed a degree of both physical and moral courage that had never
been excelled on the bench. The trials attracted national attention. The law-
abiding citizens of Schuylkill county, without respect to party, have never
ceased to express their great obligations to Judge Pershing for the courageous
part he took in ridding the county of the Mollie Maguire terror. He had been
thoroughly tested and found to be pure gold.
"Judge Pershing became a member of the First Presbyterian church of
Johnstown when still a young man. He became a teacher in its Sunday school and
was afterwards and for many years its superintendent. He was a ruling elder in
the church when scarcely thirty years old, and he continued in the eldership
during his residence in Johnstown. After his removal to Pottsville he was chosen
to the same office in the Second Presbyterian church of that place, and for many
years he taught the Bible class in its Sunday school. He was a member of the
Union Presbyterian Convention which met in Philadelphia in November, 1867, and a
member of the General Assembly of the Presbyterian church which met at Chicago
in 1877, at Saratoga in 1884, at Philadelphia in 1888, and at Washington City in
1893.
"Judge Pershing was always a loyal friend of his alma mater, Jefferson
College, and of the united colleges, Washington and Jefferson. From March, 1865,
until June, 1877, when he resigned, he was a trustee of Washington and Jefferson
College. At the laying of the cornerstone of the front part of the main college
building, on October 21, 1873, Judge Pershing delivered an address. In 1900 the
trustees of the college conferred upon him the honorary degree of Doctor of
Laws, an honor that he richly deserved."
169 HISTORY OF CAMBRIA COUNTY.
Judge James Potts was born in Butler, Pennsylvania, August 31, 1809, died
in Oil City, August 6, 1891, and was buried in Grand View cemetery at Johnstown.
________________
James Potts was the son of John Potts, a native of the north of Ireland.
His mother's maiden name was Jane Karns, also of Irish, or, more properly, of
Scotch-Irish, extraction. Both families were not only among the first settlers
of Western Pennsylvania, but they were also long prominent in the social,
business and political affairs of that part of our State. John Potts, the father
of James Potts, was a merchant and was one of the pioneer settlers of the town
of Butler. He was an active and influential politician, representing Butler
county in the legislature at a very early day, and also held the offices of
county treasurer and count commissioner. Two of his sons, George and James, were
also politicians from their boyhood, yet while the father was a Jeffersonian his
sons were Democrats all their days. The Karns family was divided in its
political allegiance. Two members of a later generation, William and Samuel D.
Karns, who were brothers, were prominent in the councils of the Democratic and
Whig parties respectively forty and fifty years ago.
At the age of seventeen James Potts entered Jefferson College and almost
completed a four years course, for some unavoidable reason, however, he did not
graduate.
"On the 2d day of October, 1838, James Potts and his cousin, Margaret Jane
Karns, were married at Pittsburg, by the Rev. James Prestly. Mrs. Potts'
father's name was James Elliott Karns. During the following winter the canal
commissioners under the administration of Governor David R. Porter appointed
James Potts, who had first been Captain Potts and was now Major Potts, collector
of tolls at Johnstown, on the main line of the public improvements of the State,
succeeding Frederick Sharretts, a Whig. Soon after his appointment Major Potts
visited Johnstown for the first time, and in March, 1839, when less than thirty
years old, he entered upon his new duties and set up housekeeping in the
official residence of the collector, attached to the collector's office on Canal
street, now Washington street. Major Potts continued as collector of tolls for
five years, or until 1844, when he was succeeded by A. W. Wasson, of Erie, who
was in turn succeeded a few years later by Hon. Obed
170 HISTORY OF CAMBRIA COUNTY.
Edson, of Warren. During a large part of Major Potts' term as collector he had
as his clerks George Nelson Smith, Campbell Sheridan, and Cyrus L. Pershing, all
well known to the old citizens of Johnstown.
"When Major Potts surrendered the collector's office to his successor he
opened an office on Clinton street for the practice of law so far as this could
be done without his having previously been admitted to the bar. He had not
completed his legal studies when he came to Johnstown, but when the whirligig of
politics threw him on his own resources he resolved not only to make Johnstown
his permanent home but to rely upon the practice of law for a livelihood. To
comply with the court regulations before applying for admission to the bar he
nominally became a student with Hon. Moses Canan, then the only lawyer in
Johnstown, and on the 7th of October, 1846, he was formally admitted as a member
of the Cambria county bar. He at once entered upon an active and lucrative
practice, in which he continued until advancing years and declining health
caused him to virtually retire from further pleas with judges and juries and
further buffeting with younger men. On June 11, 1850, when on a visit to his old
home in Butler, he was admitted a member of the Butler county bar. For about
three years, beginning with 1850, he was the senior member of the law firm of
Potts & Kopelin. Abram Kopelin had studied law with Major Potts, and was a
bright and promising student. He afterwards became one of the most distinguished
members of the Cambria county bar. Major Potts never had any other law partner.
"As early as 1850 an active agitation had commenced in the southern part of
Cambria county in favor of the establishment of a new count, with Johnstown as
the county-seat, and in 1854, after the election of George S. King to the
legislature, this movement, in which Mr. King earnestly sympathized, took shape
in the preparation of a bill which provided for the organization of the new
county. The measure failed before the legislature, but the agitation was again
fiercely renewed in 1860, when Major Potts, who had from the first been one of
its principal promoters, became the candidate for the legislature of what was,
known as the New County party. He was defeated after a most animated canvass,
which has probably never been surpassed in intensity in Cambria county. Then the
war came, but a few years after it closed the new-county movement was again
renewed with great energy, this time, however, taking the form of
171 HISTORY OF CAMBRIA COUNTY.
a proposition to remove the county-seat from Ebensburg to Johnstown. In 1870
Captain H. D. Woodruff, of Johnstown, ran as a candidate for the legislature on
this issue, but was defeated by a small majority. It had previously been
proposed to establish at Johnstown a district court which should include within
its jurisdiction Johnstown and some neighboring towns and townships. This scheme
was so far successful that in 1869 it was approved in an act of the legislature
and the court was duly established, the judges of the Cambria county courts
officiating as judges of the district court. Subsequent legislation provided for
the election of all district court officers by the citizens of the district, but
before an election could be held the offices were filled by appointment of the
governor, Major Potts being appointed president judge by Governor Geary in 1871.
He was subsequently elected to this position. Several sessions of the new court
were held with Judge Potts on the bench. But the court, which had at first been
eagerly desired, soon fell into disfavor, because by the terms creating it it
partook too much of the character of a police court. There was much legislation
concerning it and much litigation. In 1873 Judge Potts was defeated as a
candidate for re-election to the judgeship by John F. Barnes.
"Soon after coming to Johnstown Major Potts took an interest in its
military affairs. There had existed for a number of years a volunteer infantry
company called the Conemaugh Guards, of which Joseph Chamberlain, John K.
Shryock, and John Linton were successively captains. About 1841 a rival company
was organized, called the Washington Artillerists, of which Peter Levergood, J
r., was elected captain. He was succeeded by George W. Easly, and about 1842
Collector Potts was elected captain, a position which he held for many years.
The name of the company had in the meantime been changed to the Washington
Grays. The Grays were often on dress parade, and with the Conemaugh Guards they
participated in many encampments. Those were stirring times for a country town.
Major Potts was a good drill officer. At the beginning of the Rebellion he took
delight in drilling Johnstown volunteers for the Union army and in showing in
many other ways his interest in military affairs. He played the drum on the 3d
day of June, 1825, upon the occasion of Lafayette's reception by the people of
the town of Butler, and the fifer whom he accompanied with his drum was a
Revolutionary soldier named Peter Mc-
172 HISTORY OF CAMBRIA COUNTY.
Kinney, who had played the fife at the battle of Bunker Hill, in 1775, just
fifty years before. In our old friend we have had a link to connect the present
generation with Revolutionary days.
"When he came to Johnstown in 1839 his official position and his natural
tastes combined to make him active in local politics, while his wide
acquaintance with the leading members of his party made him also to some extent
a factor in State politics. He had opinions of his own about men and measures
and expressed them freely. He was long a regular attendant at the county
conventions of his party. He was a Tariff Democrat and the friend of Simon
Cameron. He was a ready political writer and liked to take part in newspaper
controversies. For a few months along about 1846 he was one of the recognized
editors of an independent Democratic paper published in Johnstown called the
Courier; but a year or two before this, during the interregnum between his
retirement from the collector's office and his entrance upon the active practice
of law, he edited for one winter the Democratic organ at Harrisburg, the Argus.
The Courier opposed Governor Shunk's renomination in 1847. The paper probably
died in that year. In both the cases in which Major Potts assumed editorial
duties he was influenced by his strong partisanship and his thoroughly unselfish
devotion to his political friends.
"When the flood came on that last day of May, 1889, Judge Potts and his
family were overwhelmed by the mighty rush of waters; their home on the corner
of Walnut and Locust streets was destroyed in an instant; his oldest daughter,
Jane, was lost, although her body was afterwards found; and the judge and his
remaining children were swept down toward the now historic stone bridge, where
they were rescued. In a day or two the judge and his family found a refuge with
friends in Westmoreland county and afterwards with friends in Blair county;
thence going before the summer was over to Oil City, where a new home was
secured, and where, away from the few old friends who survived the flood, away
from the stricken town he had loved so well, worn by disease and broken in
spirit, an old man in every sense, he died.
Judge John F. Barnes is a native of Johnstown. He was elected district
attorney of the count, and was president judge of the District Court. When the
court was abandoned he became a merchant, and is now residing at Waterford,
Pennsylvania.
173 HISTORY OF CAMBRIA COUNTY.
SALARIES AND COMPENSATION OF JUDGES.
During the early Colonial period it appears the judges of the supreme court
and other judges were paid by a system of fees, especially so when the judges of
the supreme court sat in the court of quarter sessions their fees were double
those in other courts.
When the courts were reorganized under the constitution of 1790, the Act of
April 13, 1791, 3 Smith, 35, provided that when the judges of the supreme court
and the president judges of the court of common pleas shall sit as judges of
high court of errors and appeals, they shall be entitled to six dollars for each
day they shall attend.
Also, that the chief justice of the supreme court should receive one
thousand pounds per annum, and thirty shillings per day while on the circuit for
traveling expenses; the associate judges to get six hundred pounds and thirty
shillings for traveling expenses. The president judges received five hundred
pounds, which was subsequently increased in the sum of two hundred and sixty-six
and 66-100 dollars.
The Act of April 4, 1796, 3 Smith, 271, fixed the salaries of the associate
judges of the supreme court, and the president judges of the court of common
pleas at four hundred dollars per annum, which shall, as it provides, continue
for "two years and no loner."
In 1843 the president judges were receiving an annual salary of sixteen
hundred dollars, and the associate judges one hundred and twenty dollars. The
Act of April 17, 1843, P. L. 324, directed that judges of the supreme court
thereafter appointed should receive an annual salary of eighteen hundred
dollars, and the associate judges sixteen hundred dollars, each, with an
additional sum of three dollars per day while they were traveling on the circuit
for traveling expenses; Governor Porter refused to approve the bill but it
became the law without his approval.
It appears by the Act of July 19, 1839, P. L. 630, the salaries of all the
judges had been increased in the sum of four hundred dollars, which would make
them $2,200 and $2,000, respectively.
In the several acts relating to salaries or penalties, where pounds,
shillings and pence are used, the English pound sterling of $4.86 is not meant,
but the value in Pennsylvania currency. The values in all the Colonies were much
depreciated,
174 HISTORY OF CAMBRIA COUNTY.
and little uniformity prevailed; for instance, in the New England colonies and
Virginia a pound was $3.33 1/3; in New York and North Carolina, $2.50; in
Georgia, $4; in New Jersey, Pennsylvania, Delaware and Maryland it was $2.66
2/3. In Pennsylvania a shilling was thirteen and one-third cents; a sixpence or
a fip was six and two-third cents. As late as 1850 Judge Coulter, in Chapman v.
Calder, 14 Pa., 358, held that forty shillings, or two pounds, was equal to five
dollars and thirty-three cents in Pennsylvania, currency, and payment could not
be demanded in specie of the sterling value.
The common pleas judges who received five hundred pounds only got about
$1,331.66 for their annual services, and other officials were recompensed at the
like rate. The Colonial standards were in use for a long time after the
Revolutionary war; in Pennsylvania at least, until 1791.
In 1779 the values of fines, penalties and fees due, officers were
regulated by the price of wheat. This was found to be inconvenient, and was
repealed June 21, 1781, 2 Smith, 5, and the unit of measurement was based upon
gold and silver.
The Act of May 2, 1871, P. L. 247, authorized the payment of twelve dollars
per day to the judge for holding court in other districts than his own.
The Act of June 4, 1883, P. L. 74, fixed the salaries of all the common
pleas judges, excepting in Philadelphia, Allegheny and Dauphin counties, at four
thousand dollars per annum, providing, however, that when a district has over
90,000 population it shall be five thousand dollars. The Act of April 14, 1903,
P. L. 175, increased this amount to six thousand dollars, and where there is but
one judge he is entitled to another thousand dollars. In districts having less
than 90,000 it is fixed at five thousand dollars.
Members of Cambria County Bar, January 1, 1907.
Name Residence Date of Admission
W. H. Rose Johnstown 6 March, 1860.
F. A. Shoemaker Ebensburg 5 June, 1860.
J. C. Easly Carrolltown 13 February, 1866.
T. W. Dick Ebensburg 1 November, 1868.
Jacob Zimmerman Johnstown 7 June, 1869.
Ellis G. Kerr Johnstown 3 December, 1872.
John H. Brown Johnstown 2 September, 1873.
A. V. Barker Ebensburg 4 August, 1874.
James M. Walters Johnstown 5 January, 1881.
H. W. Storey Johnstown 14 March, 1881.
175 HISTORY OF CAMBRIA COUNTY.
Name Residence Date of Admission
M. D. Kittell Ebensburg 6 June, 1881.
Robert S. Murphy Johnstown 7 June, 1883.
H. H. Myers Ebensburg 8 January, 1884.
John M. Rose Johnstown 16 June, 1884.
F. J. O'Connor Johnstown 9 November, 1885.
D. E. Dufton Johnstown 16 March, 1886.
Horace R. Rose Johnstown 5 April, 1886.
J. B. O'Connor Johnstown 5 April, 1887.
F. P. Martin Johnstown 26 September, 1887.
M. B. Stephens Johnstown 19 March, 1888.
E. T. McNeelis Johnstown 5 September, 1889.
R. E. Cresswell Johnstown 6 January, 1890.
S. Lemon Reed Ebensburg 7 July, 1890.
William Williams Johnstown 12 January, 1891.
W. P. Reese Johnstown 22 January, 1891.
H. S. Endsley Johnstown 23 March, 1893.
J. F. McKenrick Ebensburg 5 September, 1892.
Harvey Roland Ebensburg 14 November, 1892.
William Davis Ebensburg 10 April, 1893.
Mathiot Reade Ebensburg 10 April, 1893.
Charles C. Greer Johnstown 4 September, 1893.
Peter J. Little Ebensburg 4 September, 1893.
Daniel L. Parsons Johnstown 5 March, 1894.
Reuel Somerville Patton 5 March, 1891.
Thomas J. Itell Johnstown 20 August, 1894.
John W. Kephart Ebensburg 21 January, 1895.
J. W. Leech Ebensburg 7 February, 1896.
F. C. Sharbaugh Ebensburg 7 February, 1896.
Charles C. Linton Johnstown 7 June, 1897.
Harry Doerr Johnstown 7 June, 1897.
John H. Stephens Johnstown 7 June, 1897.
Forest Rose Johnstown 3 July, 1899.
Percy Allen Rose Johnstown 3 July, 1899.
F. D. Barker Ebensburg 3 July, 1899.
Bruce H. Campbell Johnstown 3 July, 1899.
W. David Lloyd Johnstown 4 December, 1899.
J. Wallace Paul Johnstown 4 December, 1899.
John C. Davies Johnstown 5 March, 1900.
George C. Keim Johnstown 5 March, 1900.
H. B. Mainhart Johnstown 5 March, 1900.
Herman E. Baumer Johnstown 7 March, 1900.
F. J. Hartman Ebensburg 14 January, 1901.
Philip N. Shettig Ebensburg 14 January, 1901.
D. P. Weimer Johnstown 8 July, 1901.
Emory H. Davis Ebensburg 6 January, 1902.
John E. Evans Ebensburg 6 January, 1902.
Charles M. Moses Johnstown 2 February, 1904.
Walter Jones Ebensburg 25 October, 1904.
176 HISTORY OF CAMBRIA COUNTY.
Name Residence Date of Admission
Alvin Sherbine Johnstown 25 October, 1904.
Karl F. Stremel Johnstown 2 January , 1905.
Charles Hasson Ebensburg 13 December, 1905.
R. Edgar Leahey Johnstown 13 December, 1905.
Frank P. Barnhart Johnstown 13 December, 1905.
George E. W. Wolfe Johnstown 13 December, 1905.
Tillman K. Saylor Johnstown 3 September, 1906
Wm. F. Dill Ebensburg 3 September, 1906
Charles S. Evans Ebensburg 10 December, 1906.
William A. McGuire Ebensburg 10 December, 1906.
Morgan W. Evans Ebensburg 10 December, 1906.
Albert W. Stenger Johnstown 10 December, 1906.
THE EVIL, ODDITY AND BENEFIT OF SPECIAL LEGISLATION.
Prior to the constitution of 1873 the theory prevailed that the legislature
was supreme, could legislate upon all subjects and cure all kinds of ills or
errors, judicial or otherwise. It granted divorces; changed the names of
individuals; cured defects in title to real estate, and directed judges to act
in accordance with the idea of the person who had sufficient influence to have
the bill passed. It was the one great evil cured by the new constitution. The
effect is shown in the number of pages in the pamphlet laws before and after
that date; that of 1866 contained 1,366 pages, and that of 1873, 1,213 pages,
and the first one after it was 1874, with 550 pages, and the largest since that
date is that of 1901, with 1,013 pages.
It absolutely prevented a uniformity of the laws. For instance, the Act of
1 March, 1871, P. L. 151; authorized the borough of Franklin to levy a borough
tax of fifteen mills for borough purposes, while on the next page (152) another
special law authorized the borough of East Conemaugh to levy ten mills for the
same purpose. The Little Conemaugh river divides the two boroughs.
An effort to control the court was that of 1 April, 1837, P. L. 128, where
the president judge of Fayette county had refused to open a judgment which the
defendant complained was unjust, and in place of taking an appeal the defendant
had sufficient influence with the General Assembly to enact a law directing the
judge to open it and to try the fact in dispute by a jury; and provided further,
that if the judge should refuse to do this, a judge of Allegheny county was
authorized to hold a special court in Uniontown to give the relief desired.
The Act of May 12, 1871, P. L. 804, authorized the appoint-
177 HISTORY OF CAMBRIA COUNTY.
ment of a justice of the peace in Cambria to be commissioned a notary public;
provided they should not have jurisdiction in cases arising on paper by them
protested.
The lumbering business in Cambria was an important factor in the sixties
and early seventies, and much complaint was made by owners of mountain land
against persons who were felling the trees and hauling the logs to the streams
to be floated to market; therefore, on May 15, 1871, P. L. 868, a special act
was passed authorizing the trespass and even to making roads over the lands of
others, which was equivalent to eminent domain. It also provided a method for
assessing the damages.
The special Act of April 3, 1869, P. L. 695, extended the jurisdiction of
justices of the peace in what was then the boroughs of Johnstown, Conemaugh,
Cambria, Millville, Prospect, East Conemaugh and Franklin, and the township of
Yoder, now Lower and Upper Taylor, now East and West Taylor; Jackson, Richland,
and Conemaugh, now including Stony creek, granting that they should try certain
of the lessor misdemeanors by a jury of six, and sentence the defendant to a
term in jail. They were also authorized to entertain jurisdiction in cases of
surety of the peace, and for non-compliance with the judgment of the justice he
could commit the prisoner to the county jail for not less than ten days nor more
than six months.
THE BETSY HOLDER HOMICIDE.
Patrick and Bernard Flanagan were tried before Judge White for the murder
of Betsy Holder, which occurred July 31, 1842, to October term, 1842, and both
were convicted. John S. Rhey, Michael Hasson and J. F. Cox were of counsel for
the defendants and George Taylor, Thomas C. McDowell and John G. Miles for the
commonwealth.
While there was no doubt in the minds of the court, the jury and the
witnesses for the commonwealth, that they were guilty, yet there was a strong
sentiment in the county in their favor. Judge White refused a new trial, and an
appeal was taken to the supreme court, reported in 7 W. & S., 415, wherein Judge
White was affirmed. Pending the appeal the friends of the condemned men
presented a bill in the legislature, which became a law 5 April, 1843, P. L.
168, directing that if the defendants presented a motion to set aside the
sentence of the court and grant a new trial, and if the judge should be
satisfied it should be granted, then he is authorized to make the rule
Vol. I-12
178 HISTORY OF CAMBRIA COUNTY.
absolute. It further provided that if the judge sitting did not desire to hear
the motion or try the case, then it should be heard before the judge of the
fourth judicial district. The judges refused to act under this alleged
authority.
In the next Assembly another bill was passed, dated 4 April, 1844, P. L.
187, directing a justice of the supreme court to hold a special court of oyer
and terminer in Cambria county on the fourth Thursday of April, 1844, to hear
the motion to set aside the sentence of the court and grant a new trial, and if
a new trial was granted that it should be held in Huntingdon county, and
furthermore, that the state should pay all the expenses of the trial since April
5, 1843, provided: it should not exceed $500. On April 25, 1844, P. L. 397,
another bill was passed amending the former extending the time for hearing to
any day prior to July 4, 1844.
On April 15, 1844, Chief Justice Gibson and all the associate judges
excepting Mr. Justice Huston, who was ill, sent a communication to Governor
Porter, who submitted it to the Assembly, wherein they said the proposed
procedure was invalid; that the legislature could not form a court of oyer and
terminer by excluding the president judge and including a justice of the supreme
court. It was in accordance with these views that the amended act was passed,
which eliminated the objectionable features and did not create a new court of
oyer and terminer, but directed the supreme justice to sit with the two
associate judges of Cambria and hear the motion. Mr. Justice Rodgers came to
Ebensburg heard the argument and decided it adversely to the defendants. The
friends of the condemned had one more move, which took place a few days before
the day of execution. They were assisted in their escape, and the Flanagans were
never heard of after that occasion. In the March term, 1845, Sheriff James S.
Murray was indicted for permitting a voluntary escape of the convicted men, but
was acquitted for the lack of evidence.
Michael Smith, of Johnstown, who was convicted of the murder of John
Minehan, also escaped from the county jail in the night a few days before the
date set for his execution. No trustworthy tidings were ever known of his
whereabouts. Smith was known as "Peg Leg," as he had lost a limb, and
notwithstanding this marked defect he was able to elude all the searches and
effort for his rearrest.
In all the original deeds given by Joseph Johns for lots
179 HISTORY OF CAMBRIA COUNTY.
in the city of Johnstown, which were four rods in width and sixteen rods in
length, he reserved a ground rent of one dollar per year, payable in specie.
Most if not all of these reservations were settled by contract; however, to
protect the holder an Act was passed April 27, 1855, P. L. 369, providing that
where no claim was made for such ground rent or annuity for a period of twenty-
one years by the owner, a release or extinguishment thereof should be presumed,
and such charge should thereafter be irrecoverable.
The action of David Gillis against the Pennsylvania Railroad Company for
the platform accident in 1866, was tried in Cambria, and Judge Tailor granted a
nonsuit, when an appeal was taken to the supreme court. The appeal should have
been heard in Pittsburg in the usual order, but for some reason a special Act
was passed April 6, 1868, P. L., directing that it be heard at Harrisburg at the
next sitting of the court. Abram Kopelin, R. L. Johnston and Daniel McLaughlin
represented the plaintiff, and C. L. Pershing and John Scott the defendant. On
July 2, 1868, Chief Justice Sharswood rendered an opinion of the court affirming
Judge Taylor, 59 Pa., 141.
A special act was passed April 10, 1867, P. L. 1130, wherein any person who
had been injured in the platform accident, which occurred at Johnstown September
14, 1866, and who believed a fair trial could not be had in Cambria, the cause
should be removed to Center county for trial; however, this act was repealed at
the next session.
As late as 1825 it was the custom in the courts of Cambria for the jury to
sign their names on the back of the indictment to their verdicts of either
conviction or acquittal.
The usual plea for defendant in a criminal action was non cul et de hoc,
etc., entered on the indictment, when the attorney general would plead
similiter. In 1808, the form of the action which is now practiced as the
"Commonwealth vs. John Doe, was "Respublica vs. John Doe."
Under the Act of February 24, 1806, 4 Smith, 270, the courts were to meet
four times a year; the common pleas to continue for one week, and the court of
quarter sessions for "four days only."
Under the Act of March 19, 1810, 5 Smith, 125, no attorney was allowed, nor
was the court permitted to cite or use a British decision which had been
rendered prior to July 4, 1776.
In "The Mountaineer" for May 4, 1840, William A. Smith,
180 HISTORY OF CAMBRIA COUNTY.
prothonotary, published a notice that James Thompson, president judge of the
district court composed of Erie, Crawford and Venango counties, would hold a
special court in Ebensburg, on June 29, 1840, to try the Spier vs. 0'Neil and
the Adams vs. Easton et al., cases, which was required by an Act of Assembly to
be published for sixty days. In the notice he adds the rules of the court for
Cambria county require that in "all cases at issue a jury shall be sworn."
NAVIGABLE STREAMS OF PUBLIC HIGHWAYS.
The following named Streams in Cambria county and leading into it have been
declared public highways for floating rafts, boats, crafts and other purposes,
to wit:
Beaver creek, Section 6, Act of 25 March, 1850, P. L. 281.
Beaver Dam creek, Section 6, Act of 25 March, 1850, P. L. 281.
Blacklick creek, Act of 7 March, 1829, 10 Smith, 286. Also, 14 April, 1828,
10 Smith, 219.
Burned Dam run, Act of 15 April, 1863, P. L. 485.
Clearfield creek, Act of 26 March, 1814, 6 Smith, 187.
Conemaugh river, Section 5, Act of March 29, 1787, Smith, 411.
Killbuck creek, Section 6 Act of 25 March, 1850, P. L. 281.
Kiskiminitas river, Section 1, Act of 9 March, 1771, 1 Smith, 324.
Kiskiminitas river, Section 5, Act of March 9, 1787, 2 Smith, 411.
North Beaver Run dam, Section 6, Act of 25 March, 1850, P. L. 281.
Slate Lick run. Section 6, Act of 25 March, 1850, P. L. 281.
Stony Creek river, Act of 6 March, 1820, 7 Smith, 255.
West branch of the Susquehanna river, Section 1, Act of 9 March, 1771, 1
Smith, 324. Also, section 24, Act of 3 May, 1832, P. L. 431. Also, an Act
relating to square timber taken adrift, Act of 11 February, 1873, P. L. 33.
HOW AN INCIDENT IN THE OLD COURT HOUSE AT EBENSBURG DIRECTLY
RESULTED IN THE ELECTION OF TAYLOR AS PRESIDENT OVER CASS.
When the Cambria Guards elected officers in the old court house at
Ebensburg, prior to their departure for Mexico, in 1846, T. C. McDowell and C.
H. Heyer, both members of the bar, were candidates for second lieutenant. Heyer
was elected, and McDowell in a speech pledged himself to go with the company as
a private. He did go as far as Pittsburg with the company, but he was still
piqued at his defeat, and returned home before the company was mustered into the
service.
181 HISTORY OF CAMBRIA COUNTY.
Shortly afterwards he was nominated as the Democratic candidate for state
senator, the district consisting of Cambria, Clearfield, Indiana and Armstrong
counties. William F. Johnston, of the latter county, was the Whig candidate.
Soldiers in the field had the right to vote, and papers were forwarded to the
proper officers in Mexico for that purpose. The Whigs industriously used
McDowell's failure to be mustered in, and the soldier vote was practically solid
against him, which overcame the large Democratic majority in the district,
elected Johnston, and made the senate Whig by one vote. The members of the
Cambria Guards refused to vote at all.
Johnston was elected speaker of the senate, and on the resignation of
Governor Shunk on July 9th, 1848, became governor. He was not sworn in until
July 26th, 1848, there being in interregnum in the meantime. The controlling
power in politics in the state was the Portage railroad and the Canal system and
the elevation of Johnston to the gubernatorial chair, of course, changed the
politics and personnel of the management of these public improvements and made
possible the election of Johnston as governor, and of the Whig electoral ticket
in the fall of 1848. The change in the electoral ticket of Pennsylvania, brought
about by the chain of events narrated above, beginning at Ebensburg, was
sufficient to elect Zachary Taylor president of the United States instead of
Lewis Cass. Taylor had 163 electoral votes and Cass 127. Pennsylvania had 26
electors and had they voted for Cass instead of Taylor, the former would have
had a majority of 16.
In view of the fact that Judge Jeremiah Sullivan Black was the most eminent
and distinguished member of the Cambria county bar, and that he was a native of
Somerset county, born two years after Cambria was organized, we give his
judgment on the right of expatriation, which is the foundation of our laws of
naturalization of citizens.
President Buchanan requested the opinion which Judge Black gave as his
attorney general, and for purity of diction, soundness of legal principles and
strength of character it has no superior.
The principle of the right of any person to absolve himself from his
allegiance was a mooted question for all time, until an Act of Congress, passed
July 27, 1868, declared the denial of it to be inconsistent with the fundamental
principles of our government. It was the Ernst opinion which convinced con-
182 HISTORY OF CAMBRIA COUNTY.
gress of the correctness of the principle. The document discloses the natural
gifts of the author as being definite, concise and the positiveness of his
judgment, without a surplus word. We quote:
Attorney General's Office, July 4, 1859.
Sir:
Christian Ernst is a native of Hanover, and emigrated to this country in
1851, when he was about nineteen years of age. Last February he was naturalized,
and in March, after procuring a regular passport, he went back to Hanover on a
temporary visit. He had been in the village where he was born about three
weeks, when he was arrested, carried to the nearest military station, forced
into the Hanoverian army, and there he is at the present time unable to return
home to his family and business, but compelled against his will to perform
military service.
This is a case which makes it necessary for the government of the United
States to interfere promptly and decisivel. * * What you will do must of course
depend upon the law of our own country as controlled and modified by the law of
nations.
The natural right of every free person, * * to throw off his natural
allegiance, * * is incontestible. I know that the common law of England denies
it; and that some of our courts, misled by British authority, have expressed
(though not very decisively) the same opinion. But all this is very far from
settling the question. The municipal code of England is not one of the sources
from which we derive our knowledge of international law. We take it from natural
reason and justice, from writers of known wisdom, and from the practice of
civilized nations. All these are opposed to the doctrine of perpetual
allegiance. It is too injurious to the general interests of mankind to be
tolerated. Justice denies that men should either be confined to their native
soil or driven away from it against their will.
In practice, no nation on earth walks or ever did walk by the rule of the
common law. * *
There is no government in Europe or America which practically denies the
right. Here in the United States, the thought of giving it up cannot be
entertained for a moment. * * If we repudiate it now, or spare one atom of the
power which may be necessary to redeem it, we shall be guilty of perfidy so
gross that no American can witness it without a feeling of intolerable shame.
* *
In regard to the protection of our citizens in their rights at home and abroad,
we have no law which divides them into classes, or makes any difference whatever
between them. * *
There have been and are now persons of very high reputation who hold that a
naturalized citizen ought to be protected
183 HISTORY OF CAMBRIA COUNTY.
by the government of his adopted country everywhere except in the country of his
birth. * * This cannot be true. It has no foundation to rest upon (and its
advocates do not pretend that it has any), except the dogma which denies
altogether the right of expatriation without the consent of his native
sovereign--and that is untenable, as I think I have already shown. * *
No government would allow one of its subjects to divide his allegiance
between it and another sovereign; for they all know that no man can serve two
masters. * * But a law which operates on the interests and rights of other
states or people must be made and executed according the law of nations. * *
If Hanover would make a legislative decree forbidding her people to
emigrate or expatriate themselves upon pain of death, that would not take away
the right of expatriation, and any attempt to execute such a law upon one who
has already become an American citizen, would and ought to be met by very prompt
reclamation. * *
* * Assuming that it was violated (municipal law of Hanover) by Mr. Ernst
when he came away, the question will then arise whether the unlawfulness of his
emigration makes his act of naturalization void as against the King of Hanover.
I answer, no, certainly not. * *
In my opinion, the Hanoverian government cannot justify the arrest of Mr.
Ernst by showing that he emigrated contrary to the laws of that country, unless
it can also be proved that the original right of expatriation depends on the
consent of the natural sovereign. This last proposition I am sure no man can
establish.
I am, very respectfully, yours, etc.,
The President. J. S. BLACK.
A MODEL TRIBUTE OF RESPECT TO THE MEMORY OF THE LATE CHIEF
JUSTICE MARSHALL.
At a meeting of the Judges, members of the Bar and Officers of the Courts
of Cambria County, held at the Court House in Ebensburg on the 30th day of July,
1835, for the purpose of paying a Tribute of Respect to the memory of the late
Chief Justice Marshall. On motion, The Honorable George Roberts was appointed
President of the meeting. The Honorable John Murray and William Rainey Esquires,
Vice Presidents, and Adam Bausman Esq., Secretary.
On motion of Mr. Canan, Resolved, That a committee of five persons be
appointed to draft resolutions expressive of the views of this meeting.
Wherefore the President appointed Moses Canan, Michael Dan Magehan, John Myers,
Perez J. Avery and Jonathan H. Smith said committee. The committee having
retired for a short time, the Chairman reported the following Preamble and
Resolutions, which were unanimously adopted:
184 HISTORY OF CAMBRIA COUNTY.
When great and good men die; When those who have performed important
services to their country depart from amongst us, the loss is general, and the
Nation feels it, In such cases custom has sanctioned the public expression of
sorrow, and a proper respect for the worthy dead requires it. It is the duty of
all to venerate their memory, and to cherish the recollections of their good
deeds as examples for imitation.
In the late decease of the venerable John Marshall, Chief Justice of the
United States, the whole community has sustained a loss which will be long and
deeply felt, By the Courts and by the Members of the Bar, his death will be
peculiarly regretted. He was the great Patriarch of the law, the guide, the
director and the example of the Bench and the Bar. His virtues and his talents
have cast a bright Hale around his character; his decisions have shed a splendor
upon our judicial proceedings, and given our Supreme Court a high and exalted
character throughout the civilized nations of the world.
For the purpose of expressing our great respect for the venerated dead, and
to do honour to the memory of departed worth, this meeting unanimously agrees to
the following resolutions:
Resolved, That in common with our Fellow Citizens we deplore the death of
Chief Justice Marshall, a worthy man, an eminent jurist and an upright and
talented Judge.
Resolved, That the death of this great man, full of years and of honours,
has created a blank in society which will not soon be filled.
Resolved, That in the life of Judge Marshall we behold much to admire, In
youth he was a defender of his Country's rights, and fought for her independence
and Glory; in middle age he was an eloquent and able advocate; in his riper
years an upright Judge and most learned expounder of our laws and Constitution;
at all times, and in every situation a man of great purity of mind and sterling
integrity. One who sustained through a long life a character pure and spotless
and preserved the Ermine of Justice unstained and endefiled.
Resolved, That we approve of the plan suggested by the members of the
Philadelphia Bar, of erecting a Monument to the memory of Judge Marshall by the
voluntary contributions of the Members of the Bar throughout the United States;
And that a Committee of three persons be appointed by this meeting to correspond
with similar Committees in other parts of the United States: Whereupon Moses
Canan, Michael Dan Magehan and John Myers Esquires were appointed said
Committee.
Resolved, That as a testimonial of respect for the deceased we will wear
crape on the left arm for the space of thirty days.
Resolved, That the proceedings of this meeting be signed by the Officers
thereof, and published in the Ebensburg "Sky" and the Johnstown "Democrat," and
that the same, with the ap-
185 HISTORY OF CAMBRIA COUNTY.
probation of the Court be entered on the Docket of the Court of Common Pleas of
Cambria County.
GEORGE ROBERTS,
President
JOHN MURRAY,
WILLIAM RAINEY,
Vice-Presidents.
A. BAUSMAN, Secty.