USA > Pennsylvania > Luzerne County > Wilkes-Barre > A history of Wilkes-Barre, Luzerne County, Pennsylvania : from its first beginnings to the present time, including chapters of newly-discovered early Wyoming Valley history, together with many biographical sketches and much genealogical material. Volume V > Part 2
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"Then stay there!" said the irate innkeeper, as he banged down his window. He went back to bed, but was given no peace until he had reluctantly admit- ted the travelers. Had he not done so, the judges would have had to spend the night to all intents in the wilderness, for the cleared areas were few and far between in that region at that time. Judge Jessup, at Wilkes-Barre, in 1859, said : "I well remember when the court set out from Wilkes-Barre, followed by the bar on horseback, through Cobb's Gap, Wayne, Pike and Susquehanna counties, bringing up at Bradford County." During these circuit ridings Bench and Bar came closer together than at any other time. In the county seats and in the courthouse, the judges were always mindful of the dignity of the court, "but when they and the lawyers were traveling together they were as jovial a set of fellows as could be found." "Court week" in most of the county seats had a significance that it does not carry now. Then, the coming of the judicial cavalcade into one of the frontier towns was a memorable occasion. The gath- ering of these great and learned men in the small log-housed communities seemed to suggest to the settlers of the neighborhood that some extraordinary way of acknowledging the honor should be found. Usually, the form of acknowledgment would take the shape of gala days. "Court week" drew into the county towns not only litigants but all people who wished to be now and then part of a merry throng; and while they looked with awe and reverence upon court and bar, it must be confessed that another bar-that of the tavern -took much of the time of the average merrymaker during those memorable court days.
Although the writer purposes to deal more directly, in this review, with the court that is more directly identified with the county, e. g., with the Court of Common Pleas, it seems proper that some passing reference should be made to the eminent Supreme Court justices of Luzerne County's pioneer days. Thomas Mckean (1734-1817), one of the great statesmen-patriots of pre- Revolutionary days, was born in Pennsylvania, but educated in Delaware. Before he was of major age, he was admitted to the New Castle (Delaware) Bar, and when in his twenty-second year was admitted to the bar of Chester County, Pennsylvania. Soon afterwards he went to England to study, gaining admission to the Middle Temple, London, in 1758. During the next decade, he was prominent in Delaware legal and legislative circles, Member of Assem- bly, delegate to the Stamp Act Congress, codifier of laws, and Judge of Com- mon Pleas of New Castle County, Delaware. Notwithstanding that, for a part of the time, he was a resident of Philadelphia, he was annually returned to the Delaware General Assembly from 1762 until the Revolution ended its sessions. From 1774 until 1783, McKean was a member of the Continental Congress, the only member who sat in every Continental Congress during the war period. During this critical period he was Congressional delegate from Delaware, and it was mainly by his own effort-in sending post-haste for his absent fellow- delegate, Rodney-that Delaware cast its vote in favor of the Declaration of Independence and thus brought about a unanimous approving vote on this vital issue in Congress. At one and the same time, Mckean was holding high office for two states : being a Member of Congress and President of Delaware, and at the same time Chief Justice of Pennsylvania. He was President of Congress in 1781, when Washington's memorable dispatches announcing the surrender of Lord Cornwallis came before the House. From 1777 to 1799, McKean was Chief Justice of Pennsylvania, from which high judicial office he went to the highest executive office in the State. Justice McKean was thrice Governor of Pennsylvania. Certainly, the log-cabined settlers of the remote county of Luzerne had good reason to flock to the county seat, Wilkes-Barre, upon occasions when it was likely that such a distinguished citizen would be visiting it. Although an unflinching Republican, a patriot who had not flinched or swerved in the least from his line of duty even when his life was endan-
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gered, Chief Justice McKean was of aristocratic inclination: and he sur- rounded his court with almost all the pomp and ceremony that had prevailed in the King's courts of provincial days. It is even said that Justice Mckean, when on the bench, "wore an immense cocked hat and was dressed in a scarlet gown." Ile was "a stern and arbitrary man," and held "all his attendants to the most rigid observance of respectful duty." In this way, he set a rigid standard of judicial deportment which most judges, who aspired to the higher courts, favored. Although of strong prejudices, Justice Mckean was undoubt- edly honest and unquestionably able. The public preferment that came to him was a tribute more to his ability than to his popularity. His remarkable strength of character became more noticeable after he had taken his seat as Governor. He appointed Associate Justice Edward Shippen to succeed him as Chief Justice, and there seems to have been little opposition to the elevation of the worthy Shippen, to whom Pennsylvania owes its first Law Reports; but when an interfering group of Philadelphia politicians, in 1806, sought to sway McKean-who was still Governor-from his choice of the successor of Ship- pen, the plain-speaking delegation quickly realized that politics could not swerve Governor Mckean, when judicial appointments were the matters in hand. "Indeed!" exclaimed the Governor, when informed that his appoint- ment of William Tilghman, as Chief Justice, would "never meet the approval of the great democracy of Philadelphia," "inform your constituents that I bow with submission to the will of the great democracy of Philadelphia, but, by God. William Tilghman shall be Chief Justice of Pennsylvania." Upon another occasion, a legislative group waited upon Governor Mckean, to remonstrate with him for disapproving a certain Act of the Assembly. When the spokes- man of the delegation presumed to point out to the Governor the merits of the vetoed law, the Chief Executive interrupted. "Pray, sir, look at my watch," he said, calmly, handing the timepiece to the Assemblyman who was address- ing him. "She has been out of order for some time," he continued ; "Will you be pleased to put her to rights?" "Sir," replied the astonished chairman, "I am no watchmaker, but I am a carpenter." The watch was handed to the other two members of the committee ; but neither could put it to rights, for it appears one was a currier and the other a bricklayer. "Well," said Governor McKean, "this is truly strange. Any watchmaker's apprentice can repair that watch. It is a simple piece of mechanism, and yet you can't do it! The law, gentlemen, is a science of great difficulty and endless complications ; it requires a lifetime to understand it. I have bestowed a quarter of a century upon it ; yet you, who can't mend this little watch, become lawyers all at once, and presume to instruct me in my duty." The humiliated committee departed, less confident of their knowledge of law. Another illustration of Justice Mckean's decisiveness of action is in the following incident : A steady responsible citi- zen applied to him for a commission. as justice of the peace, but frankly con- fessed that he could produce no certificate or backers. "Never mind," said the Governor. "I require none; and if any one should ask you how you got the appointment, tell him Thomas Mckean recommended you, and the Governor appointed you."
Such was the personality of the man who was Chief Justice of the Supreme Court of Pennsylvania in 1788, when that court first began to hold sessions in Wilkes-Barre.
From 1791 to 1806, Luzerne was one of the counties of the Third Judicial District. This consisted of the counties of Berks. Northampton, Northumber- land and Luzerne-at least at the outset. Lycoming was added in 1795 and Wayne in 1798. For the whole of this period Jacob Rush, who was President Judge of the Court of Common Pleas of the Third District and made his home in Reading, rode the circuit regularly. Throughout the period, also, he was the rod that scourged careless and indifferent associate judges. Judge Rush
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coincided with Chief Justice McKean, in the determination of the latter to preserve the highest standard of judicial deportment. Rush had been a member of the higher bench. and was somewhat disgruntled when transferred to a circuit of the Court of Common Pleas, even though in the capacity of president judge. This thought of having been demoted may have warped his opinion of his lay associates on the bench of Common Pleas; certainly President Judge Rush more than once expressed himself contemptuously as to the judicial abil- ity of some of the lay judges of his circuit.
Judge Rush, a native Philadelphian, was born on November 24, 1747. He graduated at the College of New Jersey in 1765, and on February 7, 1769, was admitted to the Bar of Philadelphia County. In May of the same year, he was admitted to the Bar of Berks County also. That he was determined to become a master of his profession may be inferred from his entry as a student of the Middle Temple in London early in 1771. In 1782, he was elected to the Penn- sylvania Assembly, as a member from Philadelphia County. Reelected next year, he resigned soon after he had been appointed to the Supreme Court bench, in the place of John Evans, deceased. Seven years as a Supreme Court Justice and service on the bench of the High Court of Errors and Appeals did not tend to make Judge Rush view enthusiastically his assignment to the Common Pleas in 1791, under the new Constitution. David Paul Brown. in his "Forum," writes of Judge Rush, as follows : he never appeared to be satisfied with his position in the Common Pleas : yet, his uprightness of conduct and unquestionable abilities always secured to him the respect and confidence, if not the attachment, of his associates, the members of the bar, and the entire community." Judge Rush was a jurist of great ability, firm and decisive of character, very eloquent, and unquestionably a man who was "learned in the law." "Perhaps there are few specimens of judicial eloquence more impressive than those which he delivered during his occupation of the bench," writes Brown. "Some of his early literary essays were ascribed to Dr. Franklin, and for terseness and clearness were worthy of him."
Judge Rush was a "gentleman of the old school. plain in his attire, unob- trusive in his deportment ; but, while observant of his duties towards others, never forgetful of the respect to which he himself was justly entitled." On one occasion, he openly upbraided his associates "for not appearing promptly upon the bench at the hour fixed for opening court." His despotic leaning influenced his associates to seek his impeachment; but the investigating committee of the Legislature reported that the charges were unfounded. Judge Rush was an ardent Federalist, and he lost no opportunity of "promul- gating his political views in charges to grand juries." However, despite his eccentric actions and an arrogance he could not at all times curb, when coun- tered by men of weaker intellect, less legal knowledge and far less judicial acumen. Judge Rush was generally esteemed. When the courts and judicial districts were reorganized in 1806, he was commissioned as President Judge of Common Pleas Court of the city and county of Philadelphia. He died on January 5. 1820, in his seventy-third year. Almost to his death, he had regu- larly, vigorously and ably performed his judicial duties. The Bar of Luzerne County might well hold in high esteem this, their pioneer. president judge.
Probably, President Judge Rush had found that his associate judges in Luzerne County were not silent "dummies" like some others that were seated on Common Pleas benches. Some could go a solemn silent way for years without ruffling the professional ire of the president judge. It is recorded that one associate judge (Hugh Lloyd, who resigned from the Common Pleas bench of Delaware County in 1825, after thirty-three years of service) "on being asked if the duties devolving on an associate judge were not onerous," replied : "Yes, very. I sat five years on the same bench in the old courthouse at Chester without opening my mouth. One day, however, towards night.
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after listening to the details of a long and tedious trial, the president leaned over towards me, and, putting his arm across my shoulder, asked me a ques- tion. 'Judge,' he said, 'don't you think this bench is infernally hard?' To this important question, I replied : 'I thought it were,' and that's the only opinion I ever gave during my long judicial career."*
Luzerne County lost the colorful visits of President Judge Rush in 1806, when, by a reorganization of judicial district (Act February 24, 1806, 4 Sm. L., 270), the Eighth District was established. It took from the Third Judicial District the counties of Northampton, Luzerne and Lycoming. The president judge of the new district was Thomas Cooper, who was transferred from the Fourth District. He was of English birth. Educated at Oxford University, he seems to have become proficient in most of the major sciences-chemistry, natural sciences, law and medicine. However, he chose the law as the profes- sion he would follow, and for some years "rode the circuit" in England. He was unfortunate in public affairs, for he espoused causes which were not favored by the Government. Eventually, in 1795, he followed his friend, Dr. Joseph Priestly, to America. He settled in Northumberland, Pennsylvania, and prac- ticed law in the circuit courts of Judge Rush. As an attorney, he may have appeared in the Wilkes-Barre court. For a virulent attack upon John Adams, President of the United States, in 1800, in a Sunbury newspaper which he edited, Cooper was prosecuted and jailed for six months. Nevertheless, he became a Judge of Common Pleas, and in 1806 President Judge of the Eighth District. Judge Cooper quickly showed that he intended to rule the court with an iron hand. So stern did he become with all who entered his court-judges, lawyers, suitors, spectators-that ere long an attempt to impeach him was made. On December 20, 1805, a petition was filed, charging him with acting as prosecuting attorney after he had become judge, and with receiving fees therefor. He was acquitted, but another attempt was made in 1811, charging him with official misconduct. Among the charges was that of fining and imprisoning Constable Hollister, in 1807, at Wilkes-Barre, "for whispering in court." The fine was $2 and the imprisonment one hour. The sentence was not very severe, but the affront was excruciating. Another charge was that of "passing sentence of one year's imprisonment, at Wilkes-Barre, on one Gough, a young horse thief, who had confessed his guilt, and, on the next day, on hearing of his being an old offender, calling him up before the court and passing a second sentence on him, increasing his imprisonment from one to three years." Other charges included : "Browbeating counsel and witnesses"; "Refusing to hear parties speak in their own defense"; "Fining and imprison- ing Constable Cooper for neglecting to execute a warrant." Judge Cooper had logical answers to all charges; nevertheless, the Senate Committee was of the opinion "that the official conduct of President Cooper" was "arbitrary, unjust, and precipitate, contrary to sound policy and dangerous to the pure adminis- tration of justice." Consequently, he was removed from office, and on July II, 1811, Seth Chapman was commissioned president judge in his place. The impeached jurist returned to the practice of law, but soon afterward accepted appointment as professor of chemistry at Dickinson College. He continued in academic office for more than twenty years, going from Dickinson to the University of Pennsylvania and finally to the College of South Carolina, of which he was president for many years. Judge Cooper was a man of profound learning, the extent of his learning being strikingly evident in his literary works. He was better fitted for the professor's chair than the judicial bench. Undoubtedly Judge Cooper served some leading American institutions of higher education very ably for almost a generation. His judicial impeachment was hardly a black mark on his career, for no charge of dishonesty was made
*Ashmead's "History of Delaware County, Pa.," p. 241.
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against him. Judge Cooper erred in setting the order and decorum of his court at too high a level. Democracy would not be tied hand and foot. Young America would not be hushed even when in sight of the judicial ermine.
Impeachment proceedings were not unusual in those days. Judge Cooper's successor, Seth Chapman, had to defend himself against three attempts to impeach and remove him. Finally, in 1833, his enemies succeeded-at least to the extent of getting the Senate Committee to recommend his removal, "owing to age and bodily infirmities." Judge Chapman then resigned.
Long before that time, however, he had ceased connection with the judi- cial district in which Luzerne County was. Indeed, in less than a year after the appointment of Judge Chapman to the place of Cooper, at the head of the Eighth District, Luzerne County had passed to another district. On March 24, 1812, act was passed creating the Eleventh Judicial District, the new circuit to consist of the counties of Luzerne, Tioga, Wayne, Susquehanna and Brad- ford. Judge Chapman seems to have presided over both the Eighth and the Eleventh districts for some time, but on July 16, 1813, John Bannister Gibson was commissioned as president judge of the Eleventh .* This great jurist-one of the greatest that Pennsylvania has had-was destined to be connected with the Court of Common Pleas of the Luzerne County district for only three years, but during that time he lived in Wilkes-Barre and endeared himself to many Wilkes-Barre people. After leaving Wilkes-Barre, in 1816, he went to a greater career as a jurist-to a Supreme Court judgeship which carried him upward to the eminence of Chief Justice of Pennsylvania, and held him on the bench of the highest court of the Commonwealth for almost four decades. At his demise, in May. 1853, a Wilkes-Barre journal, the "Record of the Times," reviewed his few years of connection with Wilkes-Barre thus :
His residence was on Northampton, between Franklin and Main streets, recently occupied by Dr. Wright. Naturally affable and easy of access, he united in manners the familiar courtesy of the gentleman with the appropriate dignity of his judicial station. Hence, he became a general favorite, while his patience to hear, his talent (without seeming to hurry) to accelerate business, his fairness and promptitude to decide, soon commanded universal confidence.
In the hours of relaxation from the exercise of official duties, and his law and literary reading, he seemed to take especial pleasure in company with his scientific friend, the late Jacob Cist, visiting several portions of the valley, noting its geological structure, particularly the extent and position of the anthracite coal deposit, then, from the praiseworthy experiment of Judge Fell and its fortunate result, just beginning to emerge into importance; and also, with more than common curiosity and delight, to visit the ancient Indian fortifications. In one of their excursions to examine the large fort on the plantation of Mr. James Hancock, they found a medal of King George the First, which, owing to their care, is yet happily preserved.
As a Mason, he entered into the spirit of the society, found pleasure in attending its com- munications, for he met there numbers of intelligent citizens, whose localities and various pur- suits could hardly have brought them elsewhere together ; and we think for a year or two His Honor presided as master of the lodge. .
When called to the supreme bench, his departure was regarded with emotions of mingled pleasure and regret. All were glad at the occurrence of an event so propitious to him person- ally, and promising increased utility to that elevated tribunal; yet all were sorry to part with him, as a judge or a citizen. His wife was a Miss Galbraith, and during his residence, the visits of her sisters and other female friends added to the social charms in the village, less populous and far more secluded from the busy world than now.
Judge Gibson, when in Wilkes-Barre, did not show more than a promise of greatness as a jurist. He had only been in legal practice for ten years, and his preparation had not been so thorough and extensive as that of some of his predecessors. He had attended Dickinson College in 1795 or 1796, and is believed to have graduated in 1800. Later, he became a law student in the office of Thomas Duncan, of Carlisle, who later became a justice of the Supreme Court. But his opportunities for study were not extensive. As Judge Porter, in
*Gibson was at least acting as President Judge of the Eleventh District in January, 1813, for on the fourth Monday of that month, he presided over the first court opened in Susquehanna County, then recently created. The court record refers to the presiding judge as "the Honorable John B. Gibson, President of the Court of Common Pleas."-See "Cen- tennial History of Susquehanna County, Pa.," by Rhamanthus M. Stocker, p. 72.
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his "Essay on Gibson," points out : "In that day, the learning of the profession was confined mainly to special pleading and real estate. The former attracted the attention of students by its utility in practice. .. .. The doctrines of real estate were investigated with care, because in the state of the country, the settlement of titles to land necessarily formed the bulk of every lawyer's business. Of commercial law, we had next to none. . In this branch, therefore, we must suppose that neither preceptor nor pupil had made any considerable attainments at the outset of his career. I think it might be shown by citations from his opinions that Judge Duncan's taste inclined more strongly to special pleading than to real estate, and that his accuracy in that department was greater than in the law of property." His pupil, young Gib- son, however, eventually acquired eminence in all three branches, but in his years at the bar Gibson came more prominently into political affairs than into legal. He sat as a Democratic member from Cumberland County in the State Assembly for two sessions (1810-1I and 1811-12) ; and in the latter session was chairman of the Committee on the Judiciary. Before this committee came the petitions for the impeachment and removal of President Judge Cooper. Chair- man Gibson was the most emphatic of the four members of the Assembly who dissented from the address to the Governor recommending the removal of Judge Cooper ; indeed, Gibson was so profoundly stirred by the action of the House that he filed a written protest; but it did not stay the action. Judge Cooper was removed, and, as has been shown, Gibson-though he had gone contrary to the will of the House, in defending the accused jurist-found him- self a president judge in the reorganization of judicial districts.
It is said that as a Common Pleas judge, Gibson "exhibited much energy in the transaction of business," but was "too impulsive in his judgments." Never- theless, some of his decisions showed distinct judicial merit, and attracted the notice of leaders of the bar throughout the Commonwealth. On June 27, 1816, he became an Associate Justice of the Supreme Court. "When he first came on the Bench," wrote his successor as Chief Justice -- Jeremiah S. Black-"he was scarcely prepared for his mission. Those who came with him and after him were as thoroughly furnished as they could be for the work they had to do. But when his powers unfolded themselves, all saw so plainly that no man who sat with him afterwards could pretend to be his equal, without becoming ridiculous. Competition gave up the contest, and rivalry itself conceded to him an undisputed preëminence."
In written opinions, it is said that Justice Gibson had no peer ; indeed, "the wording of his opinions is given verbatim in reports, being as the finished Parian marble, and not capable of being condensed or taken to pieces." Judge Porter, in his "Essay on Gibson," makes reference to the latter's manner of reaching conclusions and writing opinions. Quoting therefrom :
It is believed that he took little part in the consultations of the bench, communicating his views usually in short detached sentences, sometimes not at all, but when he did, hitting the exact point, and diffusing additional light on the principles in question. When appointed to deliver the opinion, he generally made an examination of the authorities, and sometimes, it must be admitted, much too brief an examination. His habit then was to think chiefly without the aid of his pen, and out of the reach of books. He did this in his chamber, on the street, at the table ; sometimes, it is feared, on the bench during the progress of other causes, and not infre- quently in the public room of the hotel. Persons who approached him on these occasions were struck with and sometimes offended at his abstracted and careless air. To those who knew what he was doing he frequently complained of his difficulty in determining on what principles to pitch the cause without mentioning it particularly. He did all the labor of thought before he commenced to write, and he never wrote until he was ready. Before he began, it is believed, the very sentences were formed in his mind, and when he assumed his pen, he rarely laid it aside until the opinion had been completed. The bold, beautiful and legible character of his hand- writing and its freedom from erasure induced those obliged to read his opinions in manuscript to suppose that he transcribed them, but this was very rarely if ever done; he had too little time and too much horror of the pen to attempt it. Such a method of writing undoubtedly pos- sessed great advantages. It gave his fine logical powers full play. It contributed to that con-
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