USA > Pennsylvania > Luzerne County > Wilkes-Barre > A history of Lodge no. 61, F. and A. M., Wilkesbarr?, Pa. with a collection of masonic addresses > Part 23
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Williamsport, he one morning entered the bar-room of his hotel and, observing a violin lying there, he picked it up and drew from it, as usual, some exquisite strains of har- mony. A gentleman who was present reminded him that it was the Sabbath day. He immediately laid down the instrument and apologized for his forgetfulness. A short time after this the story got wind and a political adversary, who conducted a newspaper, published a highly colored account of the occurrence, very much to the annoyance of the Chief Justice.
He certainly was possessed of a great variety of talents. One who knew him quite well said to the writer of this a short time since: "Oh! he could do anything; " and in support of this assertion related that while Judge Gibson resided in Wilkesbarré he made with his own hands a very elaborate and serviceable pair of pistols, which he presented to his intimate friend and Brother Mason, Gen. Isaac Bow- man, who was Worshipful Master of LODGE 61 when Judge Gibson became a member thereof.
He was very fond of theatrical performances, and num- bered among his friends several prominent actors of the day, for whom he had great admiration. During a session of the Supreme Court at Harrisburg, in 1843, the idea occurred to Judges Gibson and Rogers to place a marble slab over the remains of Joseph Jefferson, the actor, which from 1832 had lain in the grounds of the Episcopal church in that town with nothing to mark their resting-place. The act was done kindly and quietly, without ostentation, without newspaper notice, and in such a manner as not to connect it with the names of its authors. The epitaph inscribed on the slab was written by Judge Gibson and is as follows :
" Beneath this marble are deposited the bones of JOSEPH JEFFERSON, an actor whose unrivalled powers took in the whole range of comic character from pathos to soul-stirring mirth. His colouring of
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the part was that of nature-warm, pure, and fresh ; but of nature en- riched with the finest conceptions of genius. He was a member of the Chestnut Street Theatre, Philadelphia,* in its most high and palmy days, and the compeer of COOPER, WOOD, WARREN, FRANCIS, and the long list of worthies, who, like himself, are remembered with admi- ration and praise. He was a native of England. With an unblem- ished reputation as a man he closed a career of professional success in calamity and affliction at this place in the year 1832. ' I knew him, Horatio ; a fellow of infinite jest, of most excellent fancy.'
In regard to his mental habits, Judge Gibson was a deep student, but not a close student ; he worked most effectively, but he worked reluctantly. The concurrent testimony of all who knew him has been that he never wrote except when under the pressure of absolute necessity; but when he once brought the powers of his mind to a focus and took up the pen, then, like Sir Walter Scott, he wrote con- tinuously and without erasure. When he once began to write an opinion he very rarely laid it aside until it was completed. This gave to his opinions a consistency and unity of conception otherwise difficult to have been obtained.
Coke was his favorite author, and like Coke he had little fondness for the Civil Law. His opinions show not only a profound knowledge of, but a great love for, our boasted Common Law as it exists and is administered in England and in this country. In the case of Lyle and others against Richards, 9 Sergeant & Rawle, 351, he said : "It is one of the noblest properties of the Common Law that, instead of moulding the habits, the manners, and the transactions of mankind to inflexible rules, it adapts itself to the business and circumstances of the times, and keeps pace with the
* JOSEPH JEFFERSON, grandfather of the celebrated comedian of the same name who graces the stage to-day, was for many years a reign- ing favorite of the Philadelphia Theatre-for a longer period than any other actor ever attached to the city, and left it with a reputation all might envy.
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improvements of the age. There are principles of remote antiquity which are foundation stones and cannot be re- moved without destroying the beautiful and commodious modern edifice erected on them."
He was a great believer in precedents, always insisting that precedents were the highest evidence of the law, and were to be followed implicitly where they did not produce actual injustice or some intolerable mischief. He used to compare a case without a precedent to a bastard that had no cousin. On the other hand, he frequently declared that he was not in favor of reviving obsolete forms, which, from the disuse of them by our fore-fathers, might well be con- sidered as having been rejected at the settlement of the Com- monwealth. As late as 1848, in a case reported in 8 Barr, 487, he said on the subject of precedents : "No man is more thoroughly convinced than I am of the wisdom of abiding by what has been decided. Want of stability in the law is a public calamity which ought to be averted by almost any concession of opinion. Yet, in building up a new system in part on the model of an old one, it is better to incur the reproach of inconsistency than to perpetuate a false principle. Where we have not been following a beaten path, but have been exploring untrodden ground, and where we find that we have lost our way, as we sometimes must, it is certainly the part of wisdom to retrace our steps, rather than to persist in going wrong. * Notwithstanding our mixed system and peculiar laws, it will be found that we have adhered to our decisions with admirable constancy, when it is considered that of Professor Greenleaf's ' Collec- tion of Cases Over-ruled, Denied or Doubted '-comprising almost three thousand in the English and American Courts- no more than seventy were decided in this Court ; and that of these some forty were doubted by any of our own Judges, the rest having been doubted by Judges in our sister States. During thirty-two years in which I have sat in the Court,
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I can recall not more than eight, certainly not a dozen, while the English Judges during the period seem to have been playing at loggats with those contained in the old books of reports." In one of the last essays Judge Gibson wrote he said : " The writer of this article is not a champion of the Civil Law, nor does he profess to have more than a superficial knowledge of it. He was bred in the school of Littleton and Coke, and he would be sorry to use any but Common Law phrases in it."
In the conflicts of a jury trial he was not a good listener. He would often be employed in writing poetry, or drawing some fancy sketch, when the Bar supposed he was closely engaged in noting the course of the evidence, or preparing his opinion. About the year 1850 he boasted to a friend that he had at last reached the height of his judicial am- bition, which was to keep his eyes steadily fixed upon a dull speaker while his thoughts were elsewhere. "This," he said, " is certainly a great judicial triumph."
He was at times a little rough, but still even then the benignity and pleasantness of his countenance satisfied every one that the harshness of his manner sprang from no bitterness of the heart. The Court was about to rise one day, the usual hour of adjournment having come, when a zealous young limb of the law insisted upon reading a peti- tion for a Quo Warranto. The Chief Justice expressed his unwillingness to hear it. " I have a constitutional right to speak," said the advocate. "That is true," said Gibson, " but the Constitution does not compel us to listen ; but if you insist upon it, go on, and as Sir Toby Belch says, 'Be curst and brief.' "
He had little patience with those attorneys who, in present- ing a matter to the Court, unnecessarily elaborated it. Con- cerning this failing he once remarked: "This practice of putting the same point in a variety of ways leads to a waste of time and a silly repetition of the same arguments, and
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imposes an unnecessary burden upon the Judges of this Court in seeking for two grains of wheat in two bushels of chaff."
The following, communicated to the writer of this by an old and prominent member of the Luzerne county Bar, is apropos : "The sessions of the Supreme Court, at which the cases from Luzerne county were heard, was held in those days (1840 to 1850) in Sunbury, in the month of July. The weather was warm, and as there were fewer cases brought up then than now, the arguments were frequently very lengthy. Judge Gibson often sat leaning back with eyes partially closed, as if inattentive to the argument. I had noticed his lips move, and occasionally heard him utter a few words indistinctly and in a low tone, as if thinking aloud.
"We all had the utmost respect for him, and the highest admiration for his great intellect and profound knowledge of the law. Wishing to hear what he said in those occa- sional quiet utterances, I got a seat close to and directly in front of him, by the side of the clerk, and was richly re- warded. Whilst the large body was seemingly in repose it was evident that the great mind was active; and those quiet utterances, inaudible to the Bar, were the expression, either of the law of the whole case or of the point under dis- cussion, condensed in a half dozen apt words. Frequently they referred to the mistaken ground on which the counsel was seeking to rest his case, and hinting the true one. To whatever they related they lit up the case or question with the clearness and brilliancy of a flash of lightning. They were so clear and conclusive as to be partly irrepressible, and yet if uttered aloud might have been deemed a pre- judging of the case; and for this reason perhaps they were spoken aside and inaudibly.
"Some of the other Judges used to make suggestions and state the law to the counsel who was arguing the case, and occasionally this was disputed by one or more of the
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other Judges, and sharp discussions, or, as Judge Wood- ward once designated them, 'stall fights,' occurred between the members of the Court, whilst the Bar were amused and interested listeners. "Judge Gibson's sotto voce utterances at least escaped any such consequences."
The members of the legal profession as a class are not without their obligations to Judge Gibson. He omitted no opportunity to maintain their privileges and express the high estimation in which he held them, and to frown upon those prejudices which liberal studies and pursuits some- times excite in rude and illiberal minds. In the case of Austin et al., 5 Rawle, 191, he said: "As a class they (at- torneys) are supposed to be, and in fact have always been, the vindicators of individual rights and the fearless assertors of the principles of civil liberty; existing where alone they can exist, in a government not of parties or men, but of laws."
In another case reported in 2 Barr, 189, he said: "It is a popular but gross mistake to suppose that a lawyer owes no fidelity to any one except his client; and that the latter is the keeper of his professional conscience. The high and honorable office of a counsel would be degraded to that of a mercenary, were he compelled to do the bidding of his client against the dictates of his conscience."
Judge Gibson was not great by accident or chance. He was a great man among great men-a great Judge among great Judges-primus inter pares. Chancellor Kent ranked him among the first jurists of the age, and Story has fur- nished him a character which posterity will never forget. In their respective commentaries the opinions of Judge Gibson are quoted oftener than those of any other man in the country.
His opinions are recognized everywhere as among the strongest, the clearest, the most learned, and the most im- portant to be found in any American Reports. They have
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made his name respected throughout the Union, and his death was lamented as that of one of the most brilliant lights of the American Bar. The great principles of law in Judge Gibson's reported opinions will live as long as any- thing of the science of the law survives. Higher praise no Judge need ask.
His reputation was not confined to America, for the highest English Courts acknowledged his authority, and on the continent of Europe his name as a judge was heard with respect and attention. An American lawyer who was a friend of Judge Gibson relates that, when visiting London many years ago, he went into Westminster Hall and heard the trial of a cause. One of the counsel cited an American decision without giving the name of the case, and the Chief Justice said at once: "That is by Chief Justice Gibson, of Pennsylvania. His opinions are considered of great weight in this Court."
Few men in magistracy, anywhere, have given more ex- tensive evidences of a life of labor. For the long period during which he sat upon the Supreme Bench of the State he contributed more than any other man of his time to elucidate and establish the jurisprudence of the Com- monwealth.
His written opinions, delivered during his thirty-seven years occupancy of the Supreme Bench, are scattered through seventy-one volumes of Pennsylvania State Reports from 1 Sergeant & Rawle to 9 Harris. The writer of this sketch has carefully read everyone of these printed opinions.
Judge Gibson's style, equally removed from dry insipidity and meretricious ornamentation, is a model of judicial com- position. He analyzed and mastered the most abstruse and difficult questions, and presented them with singular perspi- cuity. He was eminent in the force and originality of illus- tration, and the aptness and fertility of expression. His intellect acted like a chemical test, as it were, almost infalli-
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bly separating the true from the false in law. His language was replete with rich similes and idioms of the most amusing kind. It was he who defined a negotiable bill or note as a "courier without luggage." He defined public policy as an "unruly horse that carries you, when you bestride it, you know not whither." In speaking of the laws of the State of Louisiana, in the year 1846, he said: "Louisiana, whose jurisprudence is founded on the Roman Law, which professes to deal with principles of morality too subtle for administration by an earthly tribunal, and to enforce duties which are not re- garded by the Common Law."
In speaking of the record in a certain case before the Court he said : "The record in this case, as in most others, has exceptions, like the pockets of a billiard table, to catch lucky chances from random strokes of the players ; but they have caught nothing in this instance."
In another case he said: "There may possibly be a speck of error in the twelve exceptions to evidence in this case, but my eye is not sufficiently microscopic to discern it."
In speaking of the rights and privileges of travelers on railways, he said: "A passenger is not entered as a bale of goods, nor is he bound to behave like one."
In speaking of the qualifications and duties of Judges he said, in the case of Austin, 5 Rawle, 205 : "Moral courage to an extraordinary extent is certainly a necessary qualifi- cation for the Bench; but physical courage is no more a qualification than animal strength or prowess in fighting."
In another case: "It is our business not to dislocate the joints and articulations of the government, or to correct errors of legislation, whether immediately by the people, or by their representatives; but to pronounce the law as we find it." "A Court powerless to do mischief is powerless to do good. * It has been the policy of the Legislature from the foundation of the Province to dole out equitable power to the Courts with a parsimonious hand, but to grant
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it to arbitrators to be executed without rule and without stint."
During his college days Judge Gibson had been in the habit of frequenting the office of one of the oldest practitioners of medicine of that period and place, Doctor McCoskrey. Here, as might be supposed, he acquired a taste for the study of physic which he never lost. Poring as he did for days at a time over the volumes contained in an extensive and systematic scientific library, the knowledge he derived in that time was not infrequently put into practical applica- tion during his official sojourn in various parts of the State. In geology, chemistry, and medicine his knowledge was probably more extensive and complete than that of any member of the legal profession of his day. Almost the very last opinion he delivered furnishes a brief but suffi- cient instance of his attainments. We refer to the case of Smith against Cramer, I American Law Journal, 353, pro- nounced but a month before his decease. The question was one as to the admission of evidence to show the insanity of ancestors, for the purpose of corroborating other testi- mony tending to show the insanity of the testator.
In another and earlier case, reported in 4 Barr, 266, he learnedly discoursed on the subject of insanity, saying, among other things: "Insanity is mental or moral; the lat- ter being sometimes called 'homicidal,' and properly so. * * * A man may be mad on all subjects, and then, though he may have glimmerings of reason, he is not a re- sponsible agent. This is general insanity; but if it be not so great in its extent or degree as to blind him to the nature and consequences of his moral duty, it is no defense to the accusation of crime. * Partial insanity is confined to a particular subject, the man being sane on every other. * * A man whose mind squints, unless impelled to crime by this very mental obliquity, is as much amenable to punishment as one whose eye squints. On this point
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there has been a mistake as melancholy as it is popular. It has been announced by learned doctors, that if a man has the least taint of insanity entering into his mental structure, it discharges him of all responsibility to the laws."
In the case of Bash against Sommers, 8 Harris, 159, Judge Gibson delivered his last reported opinion, which, singularly enough, was the affirmance of a judgment pro- nounced by the Judge who was to be his successor on the Supreme Bench. In the March number of the American Law Journal for 1853 he published his last essay-a review of Mr. Troubat's work on "Limited Partnership."
Judge Gibson breathed his last at his rooms in the United States Hotel on Chestnut street, near Third, Philadelphia, on the morning of the 3d of May, 1853, just as the State House clock, which for more than thirty-five years had summoned him to his judicial labors, struck the hour of two. The disease which caused his death was an affection of the stomach which completely baffled the best medical treatment
A short time before his death, after speaking with grate- ful affection of the kindness and attention of his brethren of the Bench, and his friends generally, he turned to his at- tendants and said : "I feel that I am approaching the great audit, and I know that as a sinner I stand in need of an ad- vocate. Send for a clergyman." His intellect remained unclouded to the last. Surrounded by his family and friends,
-like a shadow thrown
Softly and sweetly from a passing cloud,
Death fell upon him."
Upon the announcement of his death the several Courts in session in Philadelphia immediately adopted suitable measures to testify their high appreciation of his distin- guished talents, and then adjourned. A meeting of the Philadelphia Bar was held, over which Justice Grier of the U. S. Circuit Court presided; Hon. Geo. M. Dallas being one of the Vice Presidents, and Hon. Josiah Randall a
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member of the committee on resolutions. It was resolved that the members of the Bar "will close their houses on the day of the funeral of Judge Gibson in Carlisle, and will wear the usual badge of mourning for sixty days."
On May 4th the remains of Judge Gibson were conveyed from Philadelphia to his late residence in Carlisle, and on the next day the funeral occurred. Although the weather was very inclement, and the rain poured down in torrents, nevertheless a very large number of people attended to pay the last honors to the distinguished dead. The faculty and students of Dickinson College, the members of the Bar of Cumberland county, and the officers of the U. S. Army stationed at the Carlisle barracks, joined in the funeral pro- cession, and it was headed by a large body of Free Masons, representing various Lodges. The interment took place in the old grave-yard in the centre of the town.
Subsequently there was erected over the grave of the honored dead a tall marble shaft, bearing upon one face, "JOHN BANNISTER GIBSON, LL. D., for many years Chief Justice of Pennsylvania. Born Nov. 8, 1780, died May 3, 1853." Upon an other face of the monument is the follow- ing inscription, from the pen of Judge Jeremiah S. Black :
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"In the various knowledge which forms the perfect SCHOLAR, he had no superior. Independent, upright and able, he had all the high qualities of a great JUDGE. In the difficult science of Jurisprudence, He mastered every Department, Discussed almost every question, and Touched no subject which he did not adorn. He won in early manhood, And retained to the close of a long life,
The affection of his Brethren on the Bench, The respect of the Bar, And the confidence of the people."
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The May Term of the Supreme Court, for the Middle District of Pennsylvania, commenced May 9th, 1853, at Harrisburg, and there were present on the Bench the Hon. Chief Justice, Jeremiah S. Black,* and Associates, Ellis Lewis, Walter H. Lowrie, and George W. Woodward. Thaddeus Stevens, Esq., of Lancaster, called attention to the death of Judge Gibson, and after briefly speaking of his high character, moved that the Court adjourn without transacting any further business. Judge Black replying,
* JEREMIAH SULLIVAN BLACK was born in the Glades, Somerset county, Penn'a, June Ioth, 1810. His father was of Scotch-Irish ancestry, and his mother of Scotch-Irish and Pennsylvania German. Young Black was educated in the Academies at Brownsville and Stoeytown, Penn'a, and by the time he was seventeen years of age he had finished his "schooling."
He studied law with Chauncey Forward, who was a member of Congress, and was admitted to the Bar in 1831. Rapidly rising to eminence in the practice of the law, he was appointed in 1842, by Gov. David R. Porter, President Judge of the Franklin, Bedford and Somerset District. It was while occupying this position that his eulogy on Jackson attracted wide notice and comment, it being considered the most notable tribute paid to the memory of the deceased General and President.
In 1851 Judge Black was chosen to a position on the Supreme Bench of Pennsylvania, and in 1854 he was re-elected by a large majority. After two years of service in the term of fifteen years for which he was re-elected, Judge Black was called by President Buchanan to his Cab- inet, as Attorney General. He continued in that position until De- cember, 1860, when he became Secretary of State, and so remained until the end of President Buchanan's term.
After his retirement from the Cabinet, he was appointed Reporter of the United States Supreme Court. He had issued but two volumes of reports when his practice as a lawyer increased so rapidly that he was compelled to resign his place; and from that time until his death, which occurred at his home in York, Penn'a, August 19th, 1883, prob- ably no lawyer of the land had a larger practice before the highest judicatory within its borders.
His decisions as a Judge are ornaments to the reports and are familiar to lawyers, being distinguished by all the virility of his later style. He
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delivered a most eloquent eulogy on the life and character of his deceased associate, and the Court then adjourned for the day.
Judge Black's eulogy is famous as one of the most elo- quent of forensic efforts. It is classic, and has long been upheld as a model of composition. It is reported in full in Vol. XIX. of the Pennsylvania State Reports, and we quote from it as follows:'
"It is unnecessary to say that every surviving member of the Court is deeply grieved by the death of Mr. Justice GIBSON. In the course of nature it was not to be expected that he could live much longer, for he had attained the ripe age of seventy-three. But the blow, though not a sudden, was, nevertheless, a severe one.
"The intimate relations, personal and official, which we all bore to him, would have been sufficient to account for some emotion, even if he had been an ordinary man. But he was the Nestor of the Bench, whose wisdom inspired the public mind with confidence in our decis- ions. By this bereavement the Court has lost what no time can repair ; for we shall never look upon his like again.
"We regarded him more as a father than a brother. None of us ever saw the Supreme Court before he was in it; and to some of us his character as a great Judge was familiar even in childhood. The earliest knowledge of the law we had was derived in part from his luminous expositions of it. He was a Judge of the Common Pleas before the youngest of us was born, and was a member of this Court long before the oldest was admitted to the Bar. He sat here with twenty-six different associates, of whom eighteen preceded him to the
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