USA > North Carolina > Historical sketches of North Carolina : from 1584 to 1851, Vol. I > Part 66
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"1. In its relation to the Court .- In North Carolina the courts of justice are the principal schools of instruction to the people. The discussions which ' there take place, and the contestations which are there carried on, and lis- tened to with eagerness, by people who attend, sharpen their understandings, and improve their general stock of knowledge; while the lashings which vice receives, and the praise and commendation given to virtue, make moral im- pressions of the most salutary kind. There is taught the great lesson of obedience to the laws, and of reverence for their administration. The men who administer the law in courts of justice, act under a responsibility that is not often appreciated. Neither a judge nor a lawyer should ever enter a court of justice without a due sense of this responsibility ; and when there, - each should act his part with decorum and firmness. The duties of each are well defined ; the rights of each well ascertained. No man understood the one or the other better than Archibald Henderson. To inspire a reverence for the laws, an impression must be made and continually enforced by every- thing that passes, that they are administered with purity, without favor, pas- sion, or caprice; and as to the criminal law, that it is administered in mercy. " Whatever may be the character of the judge, this impression cannot be made and enforced without the aid of the bar. The lawyers are the pillars which support the respectability and authority of the judge. A conviction of this truth regulated Mr. Henderson's conduct to the court.
" He often said he had known but few men who were suited for the bench : he had known many good lawyers, and but few good judges. There were so many qualifications requisite for a good judge, that they were rarely found combined. At the head of these qualifications, legal learning is generally placed, and is chiefly looked to in making appointments to the bench. Mr. Henderson was of opinion that good common sense and discretion of mind were the first qualifications; an intimate acquaintance with mankind, and particularly with the middle and lower classes of people, their passions, feel- ings, prejudices, modes of thinking, and motives of action, was the second; a good moral character, with chastened feelings and subdued passions, the third; independence of mind and energy of will, the fourth; and legal learn- ing, the fifth. For this reason, he thought it unwise to appoint young men to the bench, let their legal acquirements be ever so great; or men advanced in years, who were either too proud or too indolent to mix with the great mass of the people, whose society is the school of that common sense and sound discretion, so necessary in a judge; and the want of which makes the administration of the laws fall most heavy upon the lower classes of the peo- ple, where it ought to be the lightest. This is most severely felt in the ad- ministration of the criminal law, where the obscurity of the individual excites no interest in his favor, and the ignorance of the judge of his character, his education, his passions, prejudices, and motives of action, subjects him to a punishment which he does not deserve. It is on this account that the obscure
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and humble in life have peculiar claims upon the sympathy of the bar; and my bosom has often swelled with emotion when I have witnessed the efforts of Mr. Henderson in their favor.
" The want of this common sense and discretion of mind is most commonly perceived. in the infliction of punishments; in imposing unreasonable fines, and in inflicting imprisonment where there is no depravity of heart. Upon this subject Mr. Henderson entertained the opinion, that imprisonment, in our government, was a punishment so infamous, that it should be inflicted- but seldom, except for offences growing out of the depravity of the heart; that it ought never to be inflicted for offences proceeding from the ordinary passions of our nature: that these were weaknesses, rather than crimes.
" The history of North Carolina furnishes no instance of direct corruption on the bench ; yet there is a weakness in human nature, from which the best of men is sometimes not free, and which, when it finds its way to the bench, is attended, perhaps, with worse consequences than direct corruption. It is that weakness in a judge, which induces him to lean upon a particular law- yer, a weakness of which the judge himself is often unconscious, but which is soon perceived and felt by the bar and the people. There is no weakness in a judge so much to be deplored as this; inasmuch as it not only leads to error, but gives to the particular lawyer an improper advantage over his breth- ren, and subverts the reverence of the people for the court. It is a weakness infinitely worse than favoritism to particular men who are parties in suits ; for favoritism may be disguised, but leaning upon a lawyer is obvious to all who attend court. Mr. Henderson's great character at the bar, his acknow- ledged legal learning, his known candor, all conspired to make him the object of this weakness; and I have seen him more than once shake off a judge who wished to lean on him. He scorned to help his client's cause by favoring a weakness which, in the judgment of common people, pollutes the streams of justice as much as downright corruption. , He entertained the most profound contempt for that class of men, who, being appointed to the bench, are fond of displaying the powers of their official stations, " cutting capers" as the vul- gar call it. Those men generally claim a consequence to which they are not entitled, and seek to operate on the fears of the bar and the people, instead of trying to gain their respect and reverence; commit men to jail for imagi- nary contempt, and treat with insolence bystanders, parties, and witnesses. Mr. Henderson detested judicial insolence as much as he abhorred judicial tyranny, and delighted to dwell upon an anecdote of the late Judge Wilds, of South Carolina, who, upon calling a cause for trial and learning that a material witness of one of the parties was intoxicated and unable to give testimony, with a benevolence and good nature that adorned him, adjourned the trial until the witness could become sober. Some men that I have seen on the bench, would have committed the witness to jail. These men do not know the difference between inspiring terror and inspiring respect. It is beneath the dignity of the court, and unworthy of the spirit of our institu- tions, to address a freeman's fears. Nobler motives should govern him, and nobler passions should be addressed, to bring him back to his duty, if he go astray. There is no disposition in the people of North Carolina to treat their officers of justice with disrespect. They are obedient to the laws, and delight to cherish a respect for men in authority. This disposition on their part should never meet with anything that savored of judicial insolence. There is a dignity of deportment which becomes the majesty of the laws, and that dignity every judge should strive to acquire, and uniformly exhibit it when discharging his official duties. That dignity so necessary on the bench, and so influential and impressive at the bar, Mr. Henderson possessed in a pre- eminent degree. He displayed it in the lowest as much as in the highest courts of the State; and the humblest magistrate, as well as the highest judge, felt himself honored and sustained by his decorum and respectful be- havior. But if his conduct to the court was exemplary, his conduct to his brethren of the bar was still more so. To them all he was kind and indul- gent; to the young men of the profession, who did not stand aloof from him,
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he was literally a father, encouraging them to persevere, advising them as to their course of studies, instructing them and aiding them in the management of their causes. Some stood in awe of him and seldom approached him ; his age, his venerable appearance, his majesty of character, seemed to intimidate them and keep them at a distance. He was conscious of his high standing, and never committed himself, nor put his reputation at risk. He always came to the trial of his causes well prepared ; and if the state of his health or his want of preparation seemed likely to jeopardize his reputation in the management of his client's cause, he would decline the trial until a more favorable time. The courts in which he practiced, and his brother lawyers, understood the delicacy of his feelings upon this point so well, that they ex- tended to him the indulgence he required ; and a knowledge of this part of ·his character gave confidence to his clients, and attracted crowds of people to hear his speeches. When he rose at the bar, no one expected to hear com- mon-place matter ; no one looked for a cold, vapid, or phlegmatic harangue. His great excellence as a speaker consisted in an earnestness and dignity of manner, and strong powers of reasoning. He seized one or two strong points, and these he illustrated and enforced. He avoided refinement in argument, both to the court and to the jury. His exordium was generally short, and always appropriate. He despised the apologetic exordium so fashionable with some speakers; an exordium that suits one case as well as another, and never fails, when persevered in, to make the speaker appear ridiculous. He quickly marched up to the great point in controversy, making no manœuvre as if he were afraid to approach it, or was desirous of attacking it by surprise. The confidence he exhibited of success, he gradually imparted to his hearers ; he grew more warm and earnest as he advanced in his argument, and seizing the critical moment for enforcing conviction, he brought forth his main argu- ment, pressed it home, and quickly sat down. In great causes, his eloquence and manner were irresistible. He despised long speeches, and abhorred petty altercation and wrangling at the bar. The great object of his profes- sional life, as has been before stated, was to inspire a reverence for the ad- ministration of the laws. Nothing detracts more from this reverence, than a want of dignity in the gentlemen of the bar. Altercation and wrangling are the reverse of dignity; and although they gratify the appetites of vulgar clients, they are a reproach upon the lawyers who indulge in them, and upon the court that tolerates them. Instead of being a tribunal for the exalted and sacred purpose of administering justice, the court becomes an arena into which the lawyers descend to wield the weapons of little and contemptible passions. They ought, upon all occasions, to bear in mind, that they are officers of justice, and that upon them, more than any other class of society, is imposed the high duty of impressing upon the community a reverence for the laws, and for the courts in which those laws are administered.
"There was one trait in Mr. Henderson's manner of conducting a cause in court, which I greatly admired; it was his manner of examining witnesses. He was as polite and decorous to them as to the court. He asked no un- necessary questions, and every witness that came into court, felt a confidence that from him he should receive no insolent or impertinent treatment. He disliked excessively the never ending interrogatories that are frequently put to witnesses; and he disliked still more the noisy and boisterous manner in which these interrogatories are sometimes put. He said this manner was not only undignified, and had a tendency to lessen the respect of the people for their courts, but that it often prevented the course of justice by intimidating witnessess, and thereby either suppressing material facts, or giving them an improper coloring.
" As he advanced in life, he seemed more and more anxious that the laws should be interpreted and administered by the rules of common sense. He, in a great degree, lost his reverence for artificial rules. He said the laws were made for the people, and they should be interpreted and administered by rules which they understood, whenever it was practicable. That com- mon sense belonged to the people in a higher degree than to learned men,
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and that to interpret laws by rules which were at variance with the rules of common sense, necessarily lessened the respect of the people for the laws ; induced them to believe, that courts and lawyers contrived unintelligible mysteries in the science, merely for the purpose of supporting the profes- sion of lawyers. He said the rules of pedantry did not suit this country nor this age; that common sense had acquired dominion in politics and re- ligion, and was fast acquiring an absolute dominion in the law. That judges and lawyers should have the independence and magnanimity to strip off the veil of mystery from every branch of the law, and root out all the remains of a ridiculous pedantry, simplify the science, and make it intelligi- ble, as far as possible, to the understanding of the common people.
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"In his professional character, Mr. Henderson resembled the late Mr. Jen- kins Whitesides, of Tennessee, more than any man I have seen. Each stood at the head of the bar of his respective State; they were about the same age, and size-both large men-they died about the same time; and those who know how to appreciate the usefulness of such men in professional life, will long remember their example, and regret their death.
" The respect and affection which a long and intimate acquaintance with Mr. Henderson produced and cherished, has induced me to write this account of his professional character. I hope the brethren of the bar in the western part of this State will erect a monument to his memory that shall perpetuate his name long after this humble tribute of his friend shall be forgotten. I did not sit down to write a memoir of his life, nor to exhibit his private vir- tues. Some more able hand will do justice to his private character."
He represented this District in Congress in 1799 to 1803, and represented the town of Salisbury in the Assembly in 1807, 1808, and 1819. He died 21st October, 1822. He left, by his marriage with Sarah, daughter of William Alexander, and sister of William Alexander and Governor Nathaniel Alex- ander, two children, Archibald Henderson, of Salisbury, who now resides near Salisbury, and a member of the Council of State, and Mrs. Boyden, wife of Hon. Nathaniel Boyden.
The following is a copy of his Monument in the Lutheran Churchyard at Salisbury.
In Memory of ARCHIBALD HENDERSON, to whom his associates at the Bar have erected this Monument to mark their veneration for the character of a Lawyer who illustrated their profession by the extent of his learning, and the unblench'd integrity of his life: of a Man who sustained and embellished all the relations of Social Life with rectitude and benevolence: of a Citizen who, elevated by the native dignity of his mind above the atmosphere of selfishness and party, pursued calmly, yet zealously, the true interest of his country. His loss was felt with a sincere, general and . unmixed Sorrow. Decissit XXI Die Octobris, Anno Domini CIO, DOCC, XXII, At. suæ LIV.
JOHN GILES was born in Rowan County; educated at the University; was graduated in 1808; studied law, and was its honored member for more than thirty years; for a long time Clerk of Rowan County Court, and in 1829 was
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elected to Congress, but declined on account of ill health. He died a few years since, loved and esteemed by all who knew him.
Hon. DAVID FRANKLIN CALDWELL resides now in Salisbury, and is a native of Iredell County, for a sketch of whom see Iredell County, page 217.
Hon. WM. C. LOVE resided in this county : he was a native of Virginia; reared at the University, at which in 1799 his father was Steward. He was a lawyer by profession, and in 1815 represented this District in Congress.
HON. CHARLES FISHER .*
" What constitutes a State ? Not high rais'd battlements or labor'd mound, Thick wall or moated gate, Not cities proud, with spires and turrets crown'd, Nor bays and broad arm'd ports, Where, laughing at the storm, rich navies ride, Nor starred nor spangled courts, Where low-brow'd baseness wafts perfume to pride ! No, Men, high-minded men- * * *
Men, who their duties know, But know their rights, and knowing dare maintain."
SIR WILLIAM JONES.
The deep sensation which pervades our State, caused by the recent death of CHARLES FISHER, is evidence of the high appreciation with which his cha- racter, services, and talents were regarded.
Associated as have been his services, with the history of the State for the last thirty years, it is alike due to such services, as well as a tribute to his talents and virtues, that some memorial should be preserved which should truthfully present them to the country.
Such is a grateful oblation to departed worth.' Not only is this a duty dis- charged to the dead, but a moral benefit may result to the living. It acts as an incentive to others, while they admire his services and brilliant career, to emulate his patriotic example.
" O, who shall lightly say that Fame Is nothing but an empty name,
While in that name there is a charm The nerves to brace, the heart to warm, When, thinking on the mighty dead, The youth shall rouse from slothful bed,
And vow with uplift hand and heart, Like him to act a noble part."
A record of such services acts directly on others. Sallust informs us that Maximus and Scipio, whenever they beheld the marble statues of their illus- trious countrymen, were violently excited: "It could not," he said, " be the cold marble that possessed this mighty power. It was the recollection of noble actions which kindled this generous flame in their breasts, only to be quenched when they also, by their actions and virtues, had acquired equal reputation."
The character of her sons chiefly constitutes the character of a State. They elevate or degrade her.
North Carolina, in the death of Charles Fisher, has lost one of her most enterprising citizens ; Rowan County, one of its brightest ornaments ; society, one of its most useful members.
An untiring energy of character, a clear and comprehensive intellect, a - penetrating and persuasive (if not commanding) eloquence, knowledge, deep and varied, both of men and books, elevated him to high and responsible stations in our republic; and his merits were always equal to his position.
* This sketch was prepared soon after the death of Mr. Fisher, and as it was collated from documents and authentic sources, and written by the author, it is here inserted. 34
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As a statesman, he was patriotic, liberal and undaunted ; as a citizen, he was public spirited, generous, and active; and as a friend, he was devoted, unflinching, and sincere.
To say that he had no faults, would be to say that he was more than man. Actively engaged, as he often was, by circumstances in the angry conflicts of party, it is not to be disguised that while a warm and sanguine temperament produces "troops of friends," it also, sometimes, creates enemies. But Mr. Fisher cherished no malice. If he never forgot his friends, he forgave his enemies. Even those who felt the energy of his character, and the power of his intellect in discussion, when the contest was over, acknowledged the gene- rosity of his temper, fairness and candor of his argument, and the nobleness of his disposition. When the news of his death reached Salisbury, a public meeting was held on the melancholy occasion ; many who were always politi- cally opposed to him, united in it, and one of the most active in that meeting was a gentleman who was his opponent for Congress, in a heated and violent contest, in 1839 .*
It is a redeeming and noble feature in human character, not to war against the powerless, or the dead. In the heat of contest,
" That stern joy which warriors feel, In finding foemen worthy of their steel,"
animates us ; but the contest once over, the merits and virtues of a generous adversary are appreciated and acknowledged.
This was the case with Charles Fisher. Such men are alike the ornament and defence of a State. Their character and memory are its peculiar property, to be cherished as the Roman matron did her brave sons, as her brightest jewels.
If there be some among us, who knew well the original, and with whom the excitement of party and personal conflicts are still fresh ; this feeble portrait, although truthfully sketched, may seem too highly colored; it should be recol- lected, that the most faithful artist often feels at liberty to hide some minor defects of countenance, by the light or shade of some bold, prominent, and commendable traits of feature.
Let us all cherish the recollection of talents, services and virtues, of departed 1 worth, and such faults as are inseparable from our nature, be buried in the grave with the relics of fallen humanity!
CHARLES FISHER was born in Rowan County on the 20th October, 1789. His father removed from Shenandoah County, Virginia, to Rowan County, before the Revolution, and was a sturdy republican in 1776, and served in the war as a militia officer.
His education was conducted under the care of the Rev. Dr. John Robinson,. at Poplar Tent, in Cabarrus County ; and finished by the Rev. Dr. McPheeters, of Raleigh. It never extended beyond this.
He studied the law, and obtained a license to practice, but such was the demand made on his time by other pursuits, he never practised it to any ex- tent. Doubtless, had his exclusive attention been devoted to the profession, from his natural quickness of perception, his ready tact, his strong and com- prehensive reason, and laborious research, he would have obtained the highest eminence.
Fortune had marked out for him another career, to which his elementary knowledge of the law was an important aid ; and in this, he shone conspicuous.
His first appearance in public life was in 1818, as a Senator in the State Legislature from Rowan. In 1819, on the death of the Hon. George Mumford, he was elected as a member of the House of Representatives, in Congress, by a majority of three hundred and five votes, over Dr. W. Jones. In 1820, he was again re-elected to Congress, for a full term, by a large majority over Hon. John Long. After serving throughout this Congress, he retired from the toils and fatigues of its services, to attend to the welfare and happiness of his young and rising family. But the people did not allow him to remain entirely abstracted from their service. In 1821, he was elected a member of
* Dr. Pleasant Henderson.
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the House of Commons, from Rowan County. From this time to 1836, he served in the House of Commons, almost continuously, as a member, either from the County of Rowan or the Borough of Salisbury, a long and unusual 4 period of public service. In 1831-32, he was chosen Speaker of the House of Commons. Those who served with him (among whom was the writer of this) recollect with great satisfaction, the dignity and ease with which he pre- sided over the deliberations of the House, composed of such men as Gaston, Nash, Henry, Eccles, Hill, Bragg, and others.
The readiness with which he perceived, and the promptness with which he decided all parliamentary questions, his urbanity, and impartiality, elicited universal approbation.
In 1835, he, with the late Hon. John Giles, was a delegate, from Rowan, in the Convention, called to amend the Constitution of the State. This was an important occasion. This was the first Convention that had set in the State after her Independence had been achieved.
Important questions had arisen-conflicting interests were to be reconciled, and great principles discussed. The people felt this, and sent their ablest men, such as Nathaniel Macon, Wm. Gaston, John Branch, J. J. Daniel, D. L. Swain, Richard Dobbs Spaight, Jesse Speight, Samuel P. Carson, Weldon N. Edwards, and others to this Convention.
Here, Mr. Fisher's industry, talents, and acquirements, shone conspicu- ously. The debates of this body show that he took a most active part in its proceedings.
His views on the Freedom of Suffrage, Religious Toleration, and Popular Rights, were liberal and statesmanlike.
He was one of the Committee by whom the present Constitution, as it now exists, was drafted, and was one of the most useful members of the Conven- tion.
In 1839 he was again brought forward as a candidate for Congress. This campaign will be long remembered.
His principles and his party were in a large minority. The opposition was active, and its candidate (Dr. Pleasant Henderson) was talented and popular. Mr. Fisher was elected by a majority of 183 votes. His majority of 300 votes at Salisbury, among his neighbors and daily associates, proved their high appreciation of his worth as a man, and as a faithful friend.
After serving through this Congress, he retired to give his undivided atten- tion to his private concerns, which from his constant and unremitting labors in public life, demanded all his energy and talents. Here he displayed the same qualities in private, as he had in public life ; it was soon manifest in his success. But it was not his destiny to be allowed by the people to remain in retirement. In 1845, while absent from the State, he was nomi- nated by a District Convention of the Democratic party, as a candidate for Congress, in the district then represented by Hon. D. M. Barringer. He refused, at first, to allow his name to be used ; but finally he consented, much against his wishes, interests, and private matters.
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