USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 1
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27
GENEALOGY COLLECTION
ALLEN COUNTY PUBLIC LIBRARY 3 1833 02294 3531
1
Digitized by the Internet Archive in 2016
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BIOGRAPHICAL SKETCHES
OF THE
BENCH AND BAR
OF
South Carolina:
BY
JOHN BELTON O'NEALL, L. L. D.,
PRESIDENT OF THE LAW COURT OF APPEALS AND THE COURT OF ERRORS.
To which is added,
THE ORIGINAL FEE BILL OF 1791. WITH THE SIGNATURES IN FAC-SIMILE.
THE ROLLS OF ATTORNEYS ADMITTED TO PRACTICE, FROM THE RECORDS AT CHARLESTON AND COLUMBIA, ETC., ETC.
IN TWO VOLUMES.
VOL. I.
CHARLESTON, S. C. S. G. COURTENAY & CO., PUBLISHERS. No. 9 BROAD STREET. 1859.
ENTERED, for the Author, according to Act of Congress, in the year 1859, by S. G. COURTENAY & CO.,
In the Clerk's Office of the District Court of South Carolina, in Charleston.
-
1198427
TO
JAMES LOUIS PETIGRU,
AS A FRIEND, AND THE OLDEST AND MOST EXPERIENCED PRACTICING LAWYER OF THE STATE, THIS WORK IS DEDICATED AS A SLIGHT TESTI- MONIAL OF RESPECT, FOR HIS VIRTUES, TALENTS, LEARNING AND BENEVOLENCE, BY
THE AUTHOR.
PREFACE.
T THESE sketches of the "Bench and Bar," now about to be published, have been the work of the author for the last twelve months, or more ; every moment of leisure time having been devoted to them.
The work was commenced at the suggestion of friends who thought my long acquaintance with the administration of justice, in South Carolina, would enable me to accomplish such a task better than a younger person. Whether this belief was true or not, it induced the author to make the attempt. His personal knowledge and recollections are given in the following pages.
He has sought information, from friends and acquaintances, of the Judges and Lawyers whose lives are noticed in these volumes, by many of whom it has been promptly, fully given. He is indebted to the Honorable Alfred Huger, Charles Fraser, Esquire, Daniel Ravenel, Esquire, William Henry Trescott, Esquire, James W. Gray, Esquire, R. C. Gilchrist, Esquire, Mrs. Horlbeck and the late General James Gadsden, for the sketches of Chancellor Hugh Rutledge, John Julius Pringle, Timothy Ford, Judge William Johnson, Judge Gilchrist, G. Warren Cross, John S. Cogdell, and John Seigling, Jr. These gentlemen were either unknown to the author, or at most, his acquaintance was not as perfect as that of those alluded to above ; hence he gladly availed himself of their aid.
To Daniel Holbeck, Esquire, and many others in Charleston, he is indebted for much information which enabled him to speak of the great and good men of the Bar of Charleston, who practiced in earlier days; indeed, without Mr. Horlbeck's generous and prompt assistance this labor of love would not have been completed ; he is, therefore, under obligations, which, regarded as a debt, never can be cancelled, but which, as a free-will offering to the great cause of preserving the names and the virtues of eminent men of past days he accepts, and cherishes the hope that they will be so regarded by his fellow-citizens. To the elegant pen of his friend,
vi
PREFACE.
Judge King, he is indebted for a most delightful and complete auto-biographical sketch, which has been assigned a place in the work.
To Thomas E. Power, of Cheraw, he is indebted for a sketch of Colonel J. R. Sims.
The materials furnished by friends and relatives he has freely used-sometimes adopting .their words. From the ladies-Miss Gratia Bay and Mrs. Brooks-he promptly received information in regard to the father of the first and the husband of the last.
In seeking for information, he received from an old friend, now in his eighty-third year, John D. Witherspoon, Esquire, the materials for his own sketch, and for those of James Erwin and William Falconer, Esquires; for which he returns many thanks, and expresses the hope that he will still longer be spared to honor and bless his native State.
To Judge Porter, of Sydney, Alabama, he is under obligations for much which graces with beauty, and felicity of description. many of the sketches.
He is sensible of the imperfections of the work, but it was impossible to give extended biographies; so, too, generally opinions and speeches could not be given at length. He fears it may be thought full justice has not been done to many distin- guished men ; the effort has been made to give life-like descriptions in as few words as possible ; so too, even when his political opin- ions differed from those of the eminent men he was writing of, he has scrupulously endeavored to avoid every appearance of de- tracting from their merits.
The object of the work has been to rescue the memory of the good and great from oblivion, and to place their actions before their young countrymen, as marks by the way-side for their jour- ney of life. If he has succeeded in his labor of love he will be content, and if he has failed, he can only say-it is the fault of the head-not the heart.
JOHN BELTON O'NEALL.
CONTENTS, VOLUME ONE.
CHIEF JUSTICES:
Drayton, William Henry
13
Rutledge, John.
17
Address to the Jacksonborough
Assembly, 1782, with the Replies of the
Senate and House of Representatives. . . 381
Trott, Nicholas.
3
Charge to the Grand Jury, 1718. . .
4
LAW JUDGES:
Burke, Ædanus.
35
Bay, Elihu Hall
53
Brevard, Joseph
80
Butler, A. Pickens.
.198
Colcock, C. J.
125
Cheves, Langdon.
133
Drayton, John
428
Evans, Josiah J.
185
Earle, Baylies J.
195
Grimké, John F.
39
Gantt, Richard.
.129
Gilchrist, R. B ..
206
Huger, D. Elliott.
180
Johnson, William.
72
Lee, Thomas.
83
Martin, W. D.
191
Nott, Abraham.
121
O'Neall, John Belton
13
Pringle Robert.
392
Judicial Proceedings in the Court
of Sessions and Common Pleas, in relation
to the " Stamp Act."
399
Bench Docket of Judge Pringle, Fall Term, 1768.
Pendleton, Henry.
31
Ramsay, Ephraim
66
Richardson, J. S.
140
Proceedings in the House of
Representatives of South Carolina.
142
Smith, William
106
Trezevant, J. F.
68
Waties, Thomas
43
Charge to Grand Jury, April, 1789.
44
Wilds, Samuel.
102
CHANCELLORS :
Caldwell, J. J.
.285
DeSaussure, H. W.
. 243
Dargan, G. W.
.288
Gailliard, Theodore.
253
Hutson, Richard.
211
Hunt, James Greene
232
Harper, William
.270
James, W. D
236
Incidents of the Trial and Judg-
ment in the Senate of South Carolina. 236
Johnson, David.
275
Mathewes, J.
213
Marshall, William
.233
Rutledge, Hugh
217
Thompson, Waddy
241
RECORDERS :
Axson, Jacob.
.329
Drayton, William.
.305
Eckhard, George B.
338
King, Mitchell
.347
Letter to David Johnson, in regard
to his studies.
367
Prioleau, Samuel
324
EARLY HISTORY
OF THE
JUDICIARY OF SOUTH CAROLINA.
It would be instructive to look back carefully to the origin and mutations of our judiciary system. But time will not more than suffice to glance at the beginning, and to note rapidly the changes. The Court of Law, or General Court, as it was called, was confined to Charleston, and the cases were there to be tried before the Chief Justice and the Assistant Judges. Edmund Bohun seems to have been the first Chief Justice, and to have died the year of his appointment. Nicholas Trott was the Chief Justice in 1712-to him we are indebted for the first collection of our statute laws. Who were the Assistant Judges until 1736, I have no means of knowing. There is in the Library of the Court of Appeals, in Charleston, a beautifully written charge to the Grand Jury, by Chief Jus- tice Trott. In 1731, a Court of Record, by the name and style of the Court of General Sessions of the Peace, Oyer and Ter- miner, Assize and General Gaol Delivery, was established and directed to be held in Charleston before the Chief Justice and two Assistant Judges. Its jurisdiction was declared to be in all causes or matters, capital or criminal, arising within the province. Previous to this, to wit: in 1725, county and pre- cinct courts had been appointed, but they were superseded by a Court of King's Bench and Common Pleas. In 1736, the authority of the latter was extended to the whole State. These Courts, sitting only in Charlestown, were the parents of many abuses and much oppression. Judge Brevard has well de- scribed it, when he said in his introduction of Brev. Dig.,
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JUDICIARY OF SOUTH CAROLINA.
"great oppression and inconvenience was felt by the people living remote from the seat of justice; by parties, witnesses and jurors, who were obliged to attend the Court, and espe- cially by suitors and prosecutors, who were often worn out by ' the law's delay,' insulted by 'the insolence of office,' and ruined by costs and expenses, most unreasonably incurred and cruelly exacted."
The Regulation, an association of respectable planters, took the matter in hands, and enforced order by a system of Lynch law. The lash, applied to every disorderly inhabitant of the districts above Charleston, corrected in some degree the abuses, and finally obtained the Circuit Court system of 1769, whereby the Courts were directed to be held at Orangeburg, Ninety- Six, Cheraw, Georgetown, Beaufort and Charleston.
This system was in force at the beginning of the Revolution, and continued, with slight modifications, until the Circuit Court system of 1798-1799. Under it, the Revolutionary Judges of 1776, William Henry Drayton, Chief Justice, John Matthews, Thomas Bee and Henry Pendleton, took place. In 1788, Ædanus Burke became one of their number; and in 1799, Thomas Heyward. Inter arma legis silent, is an old axiom, which was fully verified in the contest from 1780 to 1783. In March, 1783, John Faucheraud Grimké was elected a Judge.
In 1785, to meet the necessities of the State, the County Court system was adopted. Judge Pendleton was the mover of the system, and the pensman of the County Court Act. It was, in the beginning and subsequent modification, too much dependent upon ignorant and rough men for its enforcement. That mistakes, prejudices and gross errors should have been the result of this administration of justice in the County Court was what ought to have been expected. A short period of fourteen years was all which was permitted to its existence. Judge Colcock told me that in '98 and '99, the members came from all quarters charged with the errors and mal-adminis- tration of their worships, the County Court Judges. Williamn Falconer, Esq., of the House of Representatives, and William Marshall, (late Chancellor Marshall,) of the Senate, were the
xi
JUDICIARY OF SOUTH CAROLINA.
leading spirits in the attack upon the County Courts. That the system perished under the withering sarcasm of the one, . and the eloquence of the other, is not the subject of wonder. Indeed, in most parts of the State, it was an intolerable nuisance. Yet Judge Nott often commended Joseph Brown, of Chester, · as one of the ablest Judges before whom he ever practiced, and Col. Mayson, the President of the County Court at New- berry, was, generally, clear-headed and impartial. The present Circuit Court system has been continued with many succes- sive alterations from '99 to the present day. By the Consti- tution of '90, the Judges were required to meet at the con- clusion of the Circuits in Columbia, and thence proceed to Charleston and hear motions for new trials, in arrest of judgment, and such points of law as might be submitted to them. This, as I understand from Judge Brevard's intro- duction, was part of the digest proposed by Pendleton, Burke and Grimké, under the Act of 1785. The Court thus estab- lished, was called the Constitutional Court, which remained unchanged (with the exception that the Constitution in 1816 was so altered as to allow the Legislature to fix the time and places of the meeting of the Constitutional Court) until 1824, when a separate Court of Appeals was established. This re- mained until 1835, when it fell, and the Circuit Court Law Judges, after trying the mass meeting of all the Judges, for a term or two, resumed the double duties of hearing and de- ciding first, and in the last resort.
The Court of Equity began with the Governor and Council. Three Judges were afterwards clothed with the jurisdiction ; and finally, in 1808, two additional Judges were appointed, and a Court of Appeals in Equity was established. This perished in 1824, and the whole appellate jurisdiction in Law and Equity was vested in the separate Court of Appeals. Two Chancellors were charged with the Equity jurisdiction on Circuit. This in the great changes of '35-'36 underwent an- other revolution, and the Equity jurisdiction in the first and last resort was vested in four Judges, called Chancellors.
To prevent difficulties once regarded as insurmountable in the double appellate system, a Court of Errors in 1836 was established, which provides for the assemblage of all the
xii
JUDICIARY OF SOUTH CAROLINA.
Judges in Law and Equity, on constitutional questions, on questions where the Judges of either Courts are divided in opinion, or where two Judges of either Courts require the cases to be further heard.
The list of Chief Justices and Judges published by Bre- vard, (vol. 1,) and copied by Dr. Cooper, in the Statutes at Large, is very imperfect.
Edmund Bohun is the first Chief Justice on record-ap- pointed in 1696-died the same year. There is a gap from that time to Nicholas Trott, "about the years 1712-1718." I have in my possession, in two volumes, a work published in 1741, at London, with the title, "The British Empire in America, containing the history of the discovery, settlement, progress, and state of the British Colonies on the Continent and Islands of America." It is anonymous, dedicated to Jonathan Bleman, Esq., Attorney-General of Barbadoes.
In the chapter on Carolina, which corresponds with other published accounts as to later history, I find that Nicholas Trott was Chief Justice as early as 1702. The writer men- tions a serious riot having occurred against the authorities of the Governor and Assembly, and quotes a " late Act," using the author's own words:
"For Sir Nathaniel Johnson was made Governor in the room of the said Moor. The said Governor Moor was pre- sently made Attorney-General; and Mr. Trott, another of the Chief abettors of the riot, the Chief Justice of the Common Pleas, who in this province is sole Judge."
It is, however, certain that Nicholas Trott was not Chief Justice during the whole period to 1712, as I have in my collection of autographs a writ of attachment dated “ at Charleston, this 12th day of October, 1708," and " witness our Chief Justice, Robert Gibbes, Esq.," signed with his name " Robert Gibbes, C. J.," and sealed with his seal. Upon com- paring the signature and seal with those to the Acts of Robert Gibbes, when Governor, they are identical.
This document, relating to my ancestor, was kindly pre- sented to me by the distinguished autograph collector, J. K. Tefft, Esq., of Savannah, and my correspondence with him has enabled me to add three other names to the list of the
xiii
JOHN BELTON O'NEALL.
Chief Justices of South Carolina, from his valuable collec- tion. Robert Daniell was Judge in 1714, and his name signed "Robert Daniell, J.," to a writ which I have before me. The writ is sealed with the seal of the C. J .- the double cornucopia, with the letters C. J. There is nothing on re- cord in the Council Journals, in the Secretary of State's office, to show that Assistant Judges were appointed before 1725, when Alexander Parris, John Fenwick, and John Cawood were elected; it is, therefore, probable he also was Chief Jus- tice. Thomas Hepworth was Recorder of the City of Charles- ton in 1723, as appears by an old record of the minutes of that Corporation, and was Chief Justice of the Province, as is evident by a writ which I have with his signature, "T. Hepworth, C. J.," dated 11th of May, 1726.
Mr. Tefft has also a writ closing thus: " Witness, Charles Hill, Esq., our Chief Justice, at Charles City, the 12th Aug., Anno Dom., 1723," signed Charles Hill, and sealed with the seal of the Chief Justice.
In looking over the Council Journals from 1717, which are the earliest records in the office, I find Thomas Hepworth's name mentioned as Chief Justiae; but it is not in the pub- lished list.
In the Council Journals there does not appear to have been any appointment of Assistant Judges until 1725, when three were elected by the Governor and Council-Col. Alex. Parris, Col. J. Fenwick, and John Cawood, Esq. Subsequently, in 1727, Thomas Cooper and Daniel Green, were elected Assist- ant Judges. In 1725, William Blakeway was Judge of Ad- miralty, and, in 1727, Benj. Whitaker. The four last names are not in the list given by Dr. Cooper, copied from Brevard.
-R. W. Gibbes, M. D.
JOHN BELTON O'NEALL.
As a part of the introduction, it may not be amiss that some- thing should be known of the author. He is the son of Hugh O'Neall and Anne Kelly, his wife, both of whom were mem- bers of the Society of Friends, on Bush river, Newberry District,
xiv
JOHN BELTON O'NEALL.
South Carolina, and consequently he was, by his birth-right, a member. The society there has, for nearly half a century, been, from the diminution of its members, incapable of trans- acting business ; and he is, therefore, still one of them, although he knows perfectly well, from his habits, pursuits and mode of life, that he has forfeited his right to be called " a Friend ;" yet, he confesses to a great partiality for Friends, when indeed and in truth they are such.
His ancestry on both sides were Irish, his paternal great- grandfather belonging to the ancient house of O'Neall of Shane's Castle, Antrim, Ireland. His maternal grandfather, Samuel Kelly, was of King's County, and his grandmother, Hannah Belton, was of Queen's County, Ireland ; so that he may rank as a full-blooded Irish-American.
He was born on Wednesday, 10th of April, 1793, about half a mile below Bobo's Mills, on Bush River. At his earliest re- collection his father removed to the Mills, and there his boy- hood was spent.
He began to go to school when he was five years old. A young man, the son of a friend of his father's, boarded at his house and went to " Master Howe," (as the teacher, James Howe, was familiarly called,) about one mile and a half dis- tant. He took the child-like pupil with him, day by day, carrying him across the branches on his back. The first shock of death which he ever experienced, was in the decease of this young gentleman, Capt. Abraham Parkins, in October 1802. He, (young O'Neall,) learned rapidly, but his subse- quent life satisfies him that he went to school at least two years too soon. His nerves were unstrung by an attack of what was then called nervous fever, when he was about three years old, and which had the effect to render his hand so un- steady, as to make him incapable of writing a good hand, although taught by the best teachers of penmanship with whom he was acquainted.
The other children of his father were girls. They were all remarkable for talents. His eldest sister, Abigail, went to school with him, and learned more rapidly than he did. She is still alive, and is the widow of John Caldwell, Esq. His
XV
JOHN BELTON O'NEALL.
two next sisters, Rebecca and Hannah, have long been ten- ants of the "silent house." His youngest sister, Sarah Ford O'Neall, is still alive, and is a member of the Society of Friends.
In 1804, a library society was organized at Newberry, of which his father was a member. The books were selected and bought in the City of Boston, by Elijah Hammond, the father of Senator Hammond. This afforded to young O'Neall the opportunity of reading, a taste for which he had acquired by Mr. Howe having permitted him to read, under his direc- tion, his books, of which he had a pretty good selection. He recollects to this day, with what avidity he read the first book placed in his hands-the " Pilgrim's Progress."
He continued to go to English schools, with slight inter- ruptions, until 1808. Occasionally he was employed as a clerk in his father's store, where he learned to abhor the liquor traffic. At the schools to which he went for the first thirteen years of his school life, he learned to spell and read well, and to write an indifferent hand, and came to understand arithmetic perfectly.
He acquired great facility in memorizing promptly, whatever was put in his hands. He committed to memory, in an hour, the 9th Chap. of 2d Kings. In May, 1808, he be- came a pupil of the Newberry Academy, then under the care of the Rev. John Foster. He pushed his young pupil forward much too rapidly. By January he had him reading Virgil without at all understanding it, as he should have done. In January, 1809, Charles Strong, of the class of 1808, South Car- olina College, became the preceptor in that year and the next. Young O'Neall became a thorough Latin scholar, and was suffi- ciently instructed in Greek and all the branches of English, to prepare him for the Junior Class of the South Carolina College. During this time he acquired the habit of extempo- raneous speaking, by practicing to speak every night, after he had got his lesson for the next day, before his uncle and grand- mother, with whom he boarded at Springfield.
In the year 1810, his father was deprived of his reason, and this kept him home from school for several months, to
xvi
JOHN BELTON O'NEALL.
endeavor to close up, satisfactorily, his deranged mercantile affairs. But all was in vain. Bankruptcy came down upon him, and his creditors nearly crushed every hope by suing him in his unfortunate insane condition, and forcing his property to a sale at an immense sacrifice. Thus his family were turned out of doors, and had it not been for the kindness of his father's bachelor brother, must have been left without even a shelter for their heads.
In February, 1811, young O'Neall was allowed to enter the Junior Class of the South Carolina College. In December, 1812, he graduated with the second honor of that institution. His diploma bears date 7th December, 1812, and is signed by Jonathan Maxcy, S. T. D., Præses. ; Thos. Park, Ling. Prof. ; B. R. Montgomery, D. D., Mor. Phil. and Log. Prof .; Georgius Blackburn, A. M., Matt. and Astron. Prof .; and by Henry Middleton, Governor and President of the Board, and twenty- two Trustees, only one of whom, John J. Chappell, is alive.
The expenses of his collegiate education were paid in part by himself, and the balance out of his father's dilapidated estate by one of his committee-men, and which was not allowed in his accounts. His father, (in 1813,) recovered his reason, and in gathering up the wrecks of his fortune, succeeded in being able to reimburse Mr. Caldwell, such sums as he had expended on his son's education.
In 1813, for about six months, O'Neall taught in the New- berry Academy. At the end of that time he devoted himself to the study of the law, in the office of John Caldwell, Esq. At that time Anderson Crenshaw, Esq., afterwards Judge Cren- shaw, of Alabama, lived in the village; he gave O'Neall free access to his library, and imparted to him much valu- able instruction.
A debating society then existed at Newberry, to which the young men, and many of the middle aged, belonged. A meet- ing was held every Saturday, and subjects debated with much energy. O'Neall then improved his habit of extempora- neous speaking very much.
In August, 1813, O'Neall performed, at the muster of a demi- brigade, in Frost's old field, his first military duty, as a mem-
xvii
JOHN BELTON O'NEALL.
ber of the artillery company under the command of Capt. McCreless ; the militia, under the orders of the Governor, were classified. The company to which he belonged were placed in the first class. That class was called into the State's ser- vice in March, 1814, and marched for Camp Alston, four miles below Pocotaligo, in Beaufort District, where there was about as much necessity for troops, as there would be, in time of war, at Chalk Hill, near Columbia.
The first class were mustered into service under the com- mand of Col. Starling Tucker, at Newberry, on the 1st, 2d and 3d days of March, by Maj. Thomas Wright, Brigade Major of the then 2d, now 10th Brigade of Militia, and on the 4th, commenced their march for Camp Alston. O'Neall was ap- pointed Judge Advocate for the command, but was allowed to remain as part of the artillery company. The line of march was by the way of Lee's Ferry, Bord's, in Lexington, Pine Log, on Edisto, the White Pond, in Barnwell, Barnwell Court House, Burford's Bridge, across the Saltcatcher, thence across many swamps to Pocotaligo, and Camp Alston. The cam- paign was inglorious, and closed about the 1st of April. Of all that was interesting, a narrative is given in the life of Soli- citor Stark.
A few weeks after his return home, (in May, 1814,) he was admitted to the practice of law and equity. The circumstan- ces attending his examination and admission, are narrated in the sketches of Judges Grimké, Nott and Brevard, and of John D. Witherspoon, Esq. He immediately entered into partner- ship with John Caldwell, Esq., (who was the Cashier of the Branch Bank of the State at Columbia, and had removed to Columbia.) He opened his office at Newberry, and from the commencement, was honored with a large and lucrative practice.
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