USA > Georgia > The bench and bar of Georgia: memoirs and sketches. With an appendix, containing a court roll from 1790-1857, etc., volume I > Part 12
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I recognise the impracticability, from whatever cause, of reconciling the conflicting opinions which exist on the subject of slavery, and the danger of agitating that question in the National Legislature. I am content that the American party shall in good faith hold themselves bound to abide by and maintain the existing laws on the subject, and with their declaration that Congress has no power to interfere with slavery in the States where it exists, or to refuse the admission of any State because its Constitution does or does not recognise slavery as a part of its social system. I hold that the Territories of the United States are the property, not of Congress, but of the whole people of the United States, until such Territories become States. I do not believe that Congress has the power to abolish slavery in the District of Columbia, apart from the contract with Maryland, or considerations of public faith ; but, as Congress has no Constitutional power to violate a solemn contract or to commit a breach of national faith, I think they are equally precluded by these con- siderations.
These are my opinions on the questions presented to me. I desire to add a brief remark on another subject.
The several parties in this State have all planted themselves on the fourth resolution of the Georgia Convention of 1850, and the interpretation given to it by some persons is that, upon the happening of either of the contingencies specified in it, Georgia is to prepare for an immediate "dis- ruption of the Union." I do not so understand it. I think it could not have been so understood by its framers. I am sure that this is not the fair import of its terms, and still more confident that such is not the feeling of the people of Georgia.
In the specified contingencies, Georgia pledges herself to resist, " even, as a last resort," to the disruption of the Union. The term last is a relative term. It necessarily implies some preceding action,-some honest, well- meant patriotic efforts to secure your rights, without the necessity of having recourse to this last fearful resort, the disruption of the Union. I implore my countrymen to give to this subject their earnest, anxious consideration,-not to be diverted from it by the declamation of political aspirants, the agitations of the canvass, or the excitement of the hustings, but calmly, quietly, in the retirement of their own homes, to consider what it is to which this controversy is tending, and, humbly supplicating that Almighty Being, under whose protecting providence our fathers laid the foundation of this great Republic, to imbue us with the same con- ciliatory spirit by which they were animated, to seek under his benefi- cent guidance the solution of the problem which shall reconcile Southern rights with the perpetuity of the Union.
Respectfully, your fellow-citizen, JNO. MACPHERSON BERRIEN.
In December, 1855, the American party held a Convention at Milledgeville, of which Judge BERRIEN was unanimously chosen President. His remarks on taking the chair were brief, admitting that a sense of duty and a desire to aid in the good work for which
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the Convention had assembled alone induced him, in infirm health, to take part in its deliberations, or to accept the chair which had been so kindly tendered him. This was his last public appearance. On his return to Savannah his illness continued to increase, to the great alarm of his family. The best medical skill which the city afforded (equal to any in the South) was invoked to relieve the sufferer. His disease (inflammation of the kidneys) yielded to no treatment; and, on the morning of January 1, 1856, Judge Berrien breathed his last, at the age of seventy-five years. His dying hours were those of peace with God and with all mankind.
The intelligence of the death of Judge BERRIEN spread gloom in every quarter. The citizens of Savannah mourned as if each had lost a friend. Testimonials of respect were adopted by the City Councils, the City Bar, the Bar of the Supreme Court, and by the Georgia Historical Society,-of which he was President. The press, also, without regard to party distinctions, did justice to his exalted character and faithful public services.
The domestic relations of Judge Berrien have not been hitherto mentioned in this memoir. On the 1st of December, 1803, he intermarried with Miss Eliza Anciaux, daughter of Major Nicholas Anciaux, an officer in the American army of the Revolution, who after the termination of the war had settled in Georgia. Ninc children were the fruit of this marriage, of whom five survived him. In 1828, Mrs. Berrien died. He lived a widower five years, until July, 1833, when he married Miss Eliza C. Hunter, daughter of Col. James Hunter, of Savannah. Six children were the issue of this second marriage, all of whom lived to mourn the loss of the best of fathers. The second Mrs. Berrien died in February, 1852.
The fame of Judge Berrien has been handsomely acknowledged by the Legislature,-a majority of whose members in each branch was opposed to him politically. The fact is no less honorable to the living than it is to the memory of the dead.
In the Fortieth Annual Report of the American Bible Society, in the city of New York, presented May 8, 1856, the following reference is made to Judge Berrien :-
Hon. John Macpherson Berrien was elected a Vice-President of this Society in 1844, and always manifested strong attachment to the Bible and great interest in its circulation. At different times, and while occu- pying very high posts in the government of his country, he was often heard eloquently advocating the claims of the Bible, in behalf of which he was ever ready to raise his voice. By the death of Judge Berrien
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the Society has been deprived of the services and support of a warm and devoted friend.
It only remains to notice the personal qualities of the departed statesman as they appeared in his character. To what has al- ready been said of him as a jurist profound in constitutional lore may be added that, in 1826, he opposed the recommendation of President Adams to send a minister to the Congress of Nations at Panama,-Mr. Berrien contending that the power to appoint judges, ambassadors, &c. did not give the President power to create the office, as would be the case in the proposed mission. Such was the various knowledge he brought to bear on the subject from the law of nations and from the peculiar structure of our government, that his argument has been incorporated in a work* intended to expound the Federal Constitution. While referring to the greatest men in the Senate of the United States, whose opinions had most weight, the author was, several years ago, informed by a very gifted ex-Senatort from Alabama that, on questions involving constitutional principles, Judge Berrien was decidedly the ablest debater in the Senate.
One incident in the life of Judge Berrien deserves observation, though it pertained neither to law nor politics. In October, 1844, a Convention of the Protestant Episcopal Church of the United States was held at Philadelphia, to which the Rev. FRANCIS L. HAWKS had been returned for consecration as Bishop-elect of the diocese of Mississippi. He had formerly been rector of St. Thomas's Church, Broadway, New York, and, in building up a large female seminary at Flushing, under the auspices of the Church, had entered into contracts which left him largely in arrear,-the school not succeeding to his calculations. The mas- ter-builder to whom he was indebted preferred charges against him before the Convention, alleging bad faith, &c. Dr. Hawks gave a plain history of the case, and threw himself upon the judgment of the Convention. Mr. Berrien was a lay delegate to that body from the Church in Georgia, and took up the charges, article by article, and showed that nothing had been done by the bishop-elect that could impeach his integrity in a court of law, and that in the forum of conscience there was no stain of fraud or unfair- ness resting upon him. It was truly a scene which admitted pathos in the orator. The bishops, the clergy, the lay members, and the
* Sce Elliott's Debates, vol. iv. p. 501.
+ Hon. A. P. Bagby, U.S. Minister to Russia under the administration of Presi- dent Polk.
IL
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throng of spectators who listened to the soul-touching eloquence of the Georgia delegate, were dissolved in tears. He had a fit audience to respond to his noble impulses and Christian appeals. The gentleman whose conduct he was vindicating had been a dis- tinguished member* of the North Carolina bar, and a pupil of the great Judge Gaston. He was a man of extraordinary abilities, eloquence, and learning, which were as manifest in the pulpit for the good of souls as they had been in the temporal courts for the interest of his clients. Under the circumstances, however, the Convention postponed his consecration as bishop, and referred the matter back to the diocese of Mississippi. Dr. Hawks soon after- ward received a very advantageous offer in New Orleans, which he accepted, officiating for several years as rector of St. Paul's Church, Canal Street, and as President of the University of Loui- siana. He has since returned to the city of New York, with a prestige which cannot be shaken, and is now at the head of the American clergy for sustained eloquence and accurate learning. Such is the character of the divine to whose support Mr. Berrien came at a period of sorest trial. Dr. Hawks has had the degree of Doctor of Laws conferred upon him, and Mr. Berrien was also honored with the same degree at Princeton, in 1830.
As an act of justice to Dr. Hawks, as well as to the author him- self, it is deemed proper to quote from the Monitor of October 30, 1844, (a paper then edited by the author,) so much of an article as refers to Dr. Hawks and the action of the Convention on the charges against him :-
Oct. 14. Resolved, That, in the opinion of this House, the integrity of the Rev. Dr. Hawks has been sufficiently proved by his reply to the charges brought against him in the memorials presented to this House.
The first [above] resolution acquits the Rev. Francis L. Hawks, D.D., Bishop-elect of Mississippi, of the charge preferred against him by some creditor in New York, of a want of good faith in his pecuniary transac- tions in building expensive edifices at Flushing for a high seminary of learning. Dr. Hawks became involved in hopeless bankruptcy through his exertions to establish the school, which proved a failure. It is said that never since the days of Sheridan was such an overwhelming effect produced on an audience as that of Dr. Hawks's speech before the Con- vention. His vindication was touching and triumphant. We rejoice at it. Ile is a native of Newbern, North Carolina.
Of the religious character of Judge Berrien nothing more need be said than that he was for many years, and at the time of his death, a communicant of the Protestant Episcopal Church, and
* Author of Hawks's Reports.
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was the intimate friend of the Rt. Rev. Bishop Elliott, who was his spiritual adviser whenever pastoral functions were necessary in Savannah. His faith was calm, but fixed: there was nothing spasmodic in his religious enjoyments, nor did he ever fail to manifest by his example his reverence for the sanctuary. He trained up his children piously, and instructed them in the rudi- ments of the service, its forms and principles, as taught by the Church. When death approached, he met the summons like a philosopher and a Christian, full of courage and hope, leaning on the merits of that gracious Redeemer whose mission to earth and atonement for sin he had long testified before men.
There is one view remaining, and candor must prevail over par- tiality. As to the social habits, the exterior of kindness, and the uniform decorum of his life, no objection can be alleged. These were such as a gentleman of his sensibility and pride of character would never cease to cultivate. To this extent, Judge Berrien was faultless. But in the field of ambition, where preferment was to be won, he demanded the service of his friends, and would admit no competition from that quarter. He was frank, even peremptory, in the assertion of his claims, and the least faltering was succeeded by coldness. From the time he first obtained office as Solicitor-General, in 1809, to his acceptance of the Attorney- Generalship of the United States, twenty years afterward, his carcer had been one of triumph. Judge of the Superior Courts for a number of terms, State Senator, then Senator of the United States, and then a member of the Cabinet,-in all of which places he sustained himself with éclat,-he was fully persuaded of his influence, and of the overshadowing foundation on which it rested, -his own merits. Yet he was not vain in the usual sense of the term. There was nothing in his manner that refused recognition to an equal. A rigid use of his opportunities for advancement was rarely omitted, and never, perhaps, on a single occasion, were they relaxed in behalf of a friend. There is sometimes a gene- rous sympathy for his fellow which draws a man back, that another may go forward on his own worth to the post of honor. Such a principle, however, is too abstract to be introduced among the verities of life, and no one ought to be bound by it. Whoever adheres to such a fallacy will seldom figure in public employments. The moral to be conveyed by this allusion may be entangled here- about,-hard to find; but the author is unable to assist the reader in the search. It is in substance that Judge Berrien insisted upon
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his rights when he might have acted otherwise. This is the most that can be said against him.
In his deportment generally he was affable, yet somewhat re- served. He seems to have moulded his address after the Chester- field model,-elegant at all times, and never descending to a free and careless mood,-at least in mixed society, in which, only, it was the privilege of the author to see him.
Judge Berrien was not a man of the people. He had none of the heartiness of Mr. Clay. He was too highly refined by his studies, and by the discipline of his genius to the ideal of perfec- tion,-as men ought to be, not as they are,-to feel a very carnest concern in the rough-and-tumble relations and contests of men, from which he stood as much aloof as possible, to seek happiness in a purer region,-his own thoughts. Not that he was destitute of sympathy or benevolence: his whole life negatived such an idea. But it was only when distress was made dramatic by in- tensity, or by the train of sufferings associated with it,-loss of reputation, the griefs of old age, the tears of childhood, the agony of bereavement, or the perils of life,-that the fountains of his heart became unsealed, and the sacred tide rushed in subduing torrents, giving to his voice on such occasions more than human potency in the court-room, or in whatever forum he appeared. Judge Berrien was the most finished orator of his day, so far as the rules of art contributed to form an orator. His organs of speech were perfect. Every word and every syllable had its proper stress and intonation. There was no slurring or haste in his delivery. Smooth, grave, and musical, his voice satisfied the ear. Occasionally, it was like the church-organ in the depth and richness of its tones; then, with softest beauty, it would glide into the soul and take captive its emotions. Yet in all this opu- Ience of effect there was evidently a preparation of the severest kind. It is said that the great tragedian Cooper gave lessons to Mr. Berrien in early life. If so, there was no impropriety. The orators of Great Britain in the days of Garrick and Kemble were glad to have private interviews with these autocrats of the stage for improvement in elocution. And Napoleon the Great was in- structed by Talma, the French tragedian, in the graces of attitude becoming the imperial dignity.
But the task is done,-however imperfectly : this memoir must be closed. Georgia has furnished many distinguished sons, who have a proud national fame; but in letters, in eloquence, in states- manship, in the high perfections of individual life, the name of
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Berrien will ever shine among the brightest on her escutcheon. He was, indeed, a man whose cqual, in many respects, the world has not produced since the days of Cicero. America has had her HENRY, one of nature's thunderbolts, her CLAY, of grand and surpassing gifts, to electrify the public by their soul-stirring elo- quence; but neither of them had the polish of the Roman school, with its rich stores of learning and classic beauties gathered from every epoch and every clime. It was reserved for JOHN MAC- PHERSON BERRIEN to stand alone as an example in the nineteenth century.
SUPREME COURT OF GEORGIA, SAVANNAH, January 14, 1856.
At the opening of the court, Hon. WILLIAM LAW addressed the court as follows :-
May it please your Honors :-
The melancholy duty has been assigned to me by my brethren of the bar of announcing to this court the death of the Hon. John Macpherson Berrien, late the most distinguished member of that bar and its brightest ornament, and of presenting to the court the proceedings and resolutions of the bar of this city upon the occurrence of that lamented event, expres- sive of their appreciation of the character and high respect for the memory of their departed friend and brother, and also their sense of the great loss the profession has sustained by his death.
Honored for more than forty years with the friendship of the deceased. commencing with my call to the bar over which he then presided with an honor to himself so distinguished and a benefit to the public so universally acknowledged, that even at that carly period of his life he commanded, as a judge, the fulness of public confidence, and laid the foundation of that enviable fame which survives his descent to the grave.
A friendship, sirs, thus carly commenced, ripened into intimacy in the progress of life, was in no way and at no time more sensibly felt or gratefully . appreciated than in the uniform and almost paternal kindness which he extended to my carly professional efforts and struggles. Few knew him better than I did ; none honored and esteemed him more. I cannot re- frain on this occasion from an expression of my sincere gratification at the testimonial furnished by my brethren of the bar of their admiration for the character and distinguished merits of the deceased and of the high respect they entertain for his memory, nor from saying how much I appre- ciate their kindness in making me the honored instrument of bringing their proceedings to the notice of this court.
But it is not limited to private friendship to sympathize with these pro- ceedings. The death of such a man is a public calamity. His talents and usefulness had not been confined to his own State. The fame of his wisdom and rare eloquence, issuing from the Senatorial hall of the nation, had spread over the country, and placed him, in the estimation of his countrymen, among the great statesmen and legislators of the age. ITis death adds another name to that melancholy list of gigantic intellects and devoted patriots upon whom the icy hand of death has been laid in the past few years, and calls afresh for the homage of a nation's respect and sorrow.
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It is true that Judge Berrien was spared by a beneficent Providence to an advanced period of life far beyond that allotted to most men ; but he still retained, in a remarkable degree, the energy of physical strength and the vigor of undiminished intellect, combined with a spirited enjoyment of social intercourse. Nor yet had the fervor of his patriotism abated ; for he still felt a lively interest in his country's welfare upon all important political questions, and was to the last ready to lend the counsel of his experienced wisdom to what he conceived to be his country's good. Full of the learning of the law, he was still the eloquent advocate and the pro- found lawyer, and both the bench and the bar listened with pleasure and advantage to his instructive argument.
But your Honors, who have so often heard him, and who knew him so well, I am sure, will appreciate the testimonials of his exalted worth and distinguished character furnished by the proceedings of the bar, which I have the honor now to present :-
At a meeting of the bar, in the court-room in the city of Savannah, on the 2d day of January inst., the Hon. William B. Fleming was appointed chairman, and Julian Hartridge, Esq., Solicitor-General of the Eastern Circuit, secretary.
The Hon. William Law, the Hon. Charles S. Henry, the Hon. Edward J. Harden, the IIon. John E. Ward, and E. H. Bacon, Esq., were appointed a committee to pre- pare resolutions expressive of the feelings of the meeting on the melancholy occa- sion of the recent death of the lon. John Macpherson Berrien, a member of the bar.
Whereupon William Law, in behalf of the committee, presented the following preamble and resolutions, which were unanimously adopted by the meeting :-
The members of the bar, desirous of giving public expression to their feelings and of the sense they entertain of the loss which the bar has sustained by the death of its oldest and most distinguished member, who for more than half a century has illustrated the virtues of the profession, adorned it by the exhibition of rare and eminent talents, and left an example of spotless purity and integrity of life, and also to manifest the affectionate esteem in which they hold the memory of their venerated departed brother, as a citizen eminent for his patriotism and publie ser- vices, as a statesman distinguished for talents and integrity, and as a man endeared to their affections as well by his private as public virtues, by the social qualities of the heart as well as by the vigor of his intellect, do adopt the following reso- lutions :-
1. Resolved, That the members of the bar here assembled have heard with deep regret of the death of the Hon. John M. Berrien, and that we sincerely condole with the members of his family on the occasion of the loss which they, in common with the community, have sustained.
2. Resolved, As a testimony of respect for the memory of the deceased, the bar will, in a body, attend his funeral.
3. Resolved, As a further testimony of such respect, that his Honor, the Judge of the Superior Court of this county, be requested to have the staves of the court draped in mourning, and that the bar wear the usual badge of mourning for thirty days.
4. Resolved, That the proceedings of this meeting be laid before the Supreme Court of Georgia at its next meeting in this place, with a request that that body enter these proceedings on their minutes and adjourn for one day, as a token of respect for the memory of the deceased, and that the same proceedings be laid before the Superior Court of this county at its next session, with a similar request of entry on its minutes and of adjourminent for one week.
5. Resolved, That a committee of five be appointed by the chairman of the meet- ing to carry the foregoing resolutions into effect, and also to select some suitable person to pronounce, at some proper time and place, a eulogy on the life and cha- racter of the deceased before the bar of Georgia.
6. Resolved, That these proceedings be published in the several papers of this city, and that a copy of the same be furnished by the secretary to the family of the deceased.
The chair appointed as a committee, under the fifth resolution, Hon. William Law,
-----
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Hon. C. S. Henry, Hon. John E. Ward, Hon. Edward J. Harden, and E. H. Bacon, Esq
In accordance with these resolutions, I now move your Honors that this court adjourn for one day.
Judge LUMPKIN, in behalf of the court, responded as follows :-
This court receives the proceedings of the bar in regard to the late Hon. John Macpherson Berrien with profound emotion. We cordially unite with the bar and the people of the whole State in the expression of deep regret for his death, in admiration of his talents, his patriotism and private virtues.
This is not the occasion, nor is it fit for me, to consider and discuss at length the character and merits of the deceased. The performance of that duty, with which the bar of this place has appropriately charged itself, must be deferred to another opportunity, and has been or will be committed to abler hands. And this is right. This community, who knew his manner of life from his youth up, saw him face to face for fifty years and more in the able and faithful performance of his various duties ; and it is for them to appreciate fully all his worth, and to dwell with melancholy affection upon his transcendent excellencies.
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