Biographical sketches of the bench and bar of South Carolina, vol. I, Part 12

Author: O'Neall, John Belton, 1793-1863
Publication date: 1859
Publisher: Charleston, S.C. : S.G. Courtenay & Co.
Number of Pages: 484


USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 12


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Judge William Smith was also elected a member of the Alabama Legislature, from Blountsville, I think, and served several sessions after his removal to Alabama. His last polit- ical act was not, therefore, his address to the people of South Carolina, as stated by the editor of the Charleston Courier. Whilst in the Legislature of Alabama, he was a very active member of that body, and as true to his political principles as steel. Never was there a more consistent statesman or poli- tician than Judge Smith. He was a States Rights man of the strictest sect, opposing Nullification as a new-fangled heresy of that latitudinarian school, which had reviled and


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scorned his States Rights doctrine in former years when they were unpopular in South Carolina. He was one of the first to break ground against a tariff for protection, which was favored by Mr. Calhoun, after the close of the war with Eng- land, for the special benefit of the Northern manufactories, which had sprung up during that war. One of his first and last political acts was to expose the folly and unconstitution- ality of a national system of internal improvements, which, for many years, was a favorite hobby of the leading politi- cians of South Carolina.


I remember well, seeing an elaborate argument of Judge Smith, after his removal to Alabama, against the power of Congress to carry on a system of internal improvements, and against an appropriation for Alabama by Congress on this subject.


Judge Smith was, too, one of the earliest and most able opponents of the Northern abolition movement in the Senate of the United States. It is refreshing, in times like the pres- ent, when our statesmen and politicians are changing with every political breeze, to review the life and political course of such a statesman as Judge William Smith, who had the wisdom to start right, and the Roman firmness to adhere to his principles at the sacrifice of himself as a senator, and his ostracism as a citizen of the State.


Judge O'Neall is mistaken, however, in saying that he re- moved with his property to Alabama, in consequence of our political excitement. He had long before his removal trans- ferred his property to Alabama. I remember hearing it stated when he was last defeated for the United States Senate, that his taxes in South Carolina were only twelve dollars. He had purchased large bodies of lands in Alabama, and found it much more profitable working his negroes there than in South Carolina; but it was not his purpose to move there.


After his second defeat in the Senate of the United States, Judge Smith was returned to the State Senate from York District, as he had been to the House of Representatives after his first defeat for the Senate.


Judge Smith was not only kind, as is stated by Judge


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O'Neall, but he was particularly so to young men of promis- ing talents, and we have understood that he has educated, at his own expense, more than one distinguished gentleman of South Carolina.


Judge Smith was a most uncompromising man. The fol- lowing anecdote has been told us by a distinguished member of the Bench, and is in character with the Judge. He and one of his brothers had a difference in early life, and did not speak or recognize each other. Twelve years passed over their heads, and they had not seen each other. After his election to the Bench, Judge Smith went to hold Court in one of the middle districts, and there found this brother, Foreman of the Jury. They both served the week out, one as Judge and the other as Juror, without the slightest recognition of kindred or acquaintance!


Judge Smith's feelings towards Mr. Calhoun were bitter and implacable. I once heard him say to Governor Taylor "You know that Calhoun sold the State twice; once for the tariff, and again for internal improvements." It is said that during the administration of Mr. Monroe, Judge Smith was about being appointed to a foreign embassy, and the appoint- ment defeated by Mr. Calhoun, who was then a member of the Cabinet. But the Judge had other reasons for feeling unkind towards Mr. Calhoun. He was turned out of the Senate of the United States twice by Mr. Calhoun and his friends; once by General Hayne, because he was a States Rights man, and then by Governor Miller, because he was not a States Rights man! and yet his principles were all the time the same! His opponents had changed from one ex- treme to the other-from the extreme of national republican- ism and the "general welfare doctrine" to ultra States Rights and Nullification.


Judge Smith was a true Democrat of the Jefferson school, equally opposed to consolidation and disunion. He was de- termined to hold on to the Federal Constitution, and main- tain our rights under it in the Union. He had confidence in the American people; and although they might for a time be


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led astray, he knew that they would ultimately rally to the true principles of the Federal Government. Like Mr. Jeffer- son, he regarded disunion as no remedy for our evils, but an unmitigated curse, and not to be thought of by the patriot and statesman.


B. F. PERRY.


Greenville, Sept. 3d, 1858.


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ABRAHAM NOTT.


Abraham Nott was born in Saybook, Connecticut, in 1767. "He was educated for the ministry, and graduated at Yale College; but feeling within himself no decided religious con- victions, he felt it would be sacrilege to desecrate the pulpit with his services, and being in somewhat delicate health, he determined to seek his fortune at the South. After standing his final examination, without even waiting for his diploma, (which was, however, afterwards forwarded to him by Dr. Stiles, the President of Yale,) he left his home (with only sixty dollars in his pocket) and arrived in Georgia about 1788, where he found employment as a tutor in the family of Gov. Troupe's father, the Governor being one of his pupils. He remained in Georgia one year, and then removed to Camden, So. Ca., where he studied law with Daniel Brown, and was admitted to the Bar, in Charleston, 27th May, 1791. He settled first at Union Court House, where he practised three years. In August, 1794, he married Angelica Mitchell, after which he removed to his plantation on Pacolett River, where he con- tinued his practice."


In 1800, he was elected to Congress. He was a Federalist, and for a time aided in casting the vote of South Carolina in favor of Aaron Burr, in the memorable ballotings between him and Jefferson ; his good sense and purity of purpose at length triumphed over the trammels of party, he withdrew, and on the thirty-sixth ballot, the Representatives from South Carolina being equally divided, the State voted blank, and Mr. Jefferson was elected.


In the Fall of 1804, he removed to Columbia; and there practised law with eminent success until 1810, when he was elected a Judge.


In 1805 he was elected a Trustee of the South Carolina College. He remained constantly a member of that cherished Institution, by election or ex-officio, till his death.


On the 5th of December, 1810, in the place of South Caro-


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lina's gifted son, Samuel Wilds, deceased, Abraham Nott was elected a Law Judge. Never did the judicial mantle fall more worthily from the shoulders of a greatly distinguished man upon the shoulders of another than did that of Judge Wilds upon Judge Nott. He was the first Judge elected from the town of Columbia.


From December, 1810, to June, 1830, Judge Nott, in all the duties of a Judge, was found fully equal to their discharge. His clear, prompt, ready mind, and his uniform courteous manner in Court, made it a pleasure to practise before him. Like most great men, he was, however, subjected to occasional unpopularity. In 1816 was passed the Constitutional amend- ment, which enabled the Legislature to fix the time and place of the meeting of the Constitutional Court. At the same time was passed the Act requiring the Judges to clear the dockets of the Constitutional Court in Charleston and Columbia. This Act being passed pari passu, with the amendment of the Constitution, which authorized it, was held to be unconstitu- tional by a majority of the Court. Of this majority Judge Nott was one, and in illustrating the defect of the enactment, and to show that that which was begun, before the authority to enact it was completed, could not legally exist, he said " that which was conceived in sin must be brought forth in iniquity." This unfortunate expression, although originating in the Bible, raised a storm of indignation against him, which it was difficult to allay; for in December, 1817, when the Judges' salaries were increased, and he, with the other Judges, resigned to obtain this benefit, he was elected by a very lean majority.


In 1824, the country had recovered from its frenzy, and when the Court of Appeals was organized, he was placed at its head by an overwhelming vote. His popularity, in that trying position, remained unchanged to his death.


He certainly abridged his useful life by his untiring indus- try, in the discharge of his duties as President of the Court.


His opinions in the Court of Appeals, both at Law and in Equity, will compare favorably with those of any Judge in the State. The case of Carr vs. Porter, 1 McC. C. R. 60,


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which over-ruled Judge Waties' elaborate judgment in Carr vs. Green, may be read as an example of Judge Nott's judicial powers.


He fell a victim to consumption, which fastened upon him in Charleston, in January, 1830. He died at the residence of Dr. David H. Means, in Fairfield District, on his way to his plantation, in Union District, on the 19th of June, 1830, leav- ing his widow, two daughters and six sons surviving him. His widow, who was a most extraordinary woman, endowed with great intelligence, industry, benevolence, and firmness, survived him many, very many years. The latter part of her life she mainly spent at the Limestone Springs, a spot which she knew in her youth, and which she often declared to the writer to be the healthiest spot in the State.


With Judge Nott the writer had the good fortune to have an intimate acquaintance, beginning in 1814 and ending with his life. When in the Spring of 1814, Mr. McDuffie, the writer, and others, were applying for admission to the Bar, at Columbia, a singular rule had been adopted that all the Judges must sign the fiat. Only three Judges out of six-Bay, Smith, and Nott-were present. Judge Smith insisted the applicants should go to Charleston. Money was a scarce commodity with the writer ; he rose and said "if he could not satisfy those then present that he was worthy to be admitted, he did not wish to go further." Judge Nott, smiling, said, "You shall be examined." After being examined, the three signed the fiats. Mr. McDuffie, and the writer went to Charleston and Camden, were examined by Judges Grimké, Colcock and Brevard, who signed the fiats, and they received their licenses. It is believed that they alone of their class took the trouble to obtain the signatures of the absent Judges. Whether any of the others ever practised, the writer is not apprised.


Judge Nott was full of life and anecdote, and was one of the most pleasant companions with whom the writer ever associ- ated. The habit of the Bench then was to ask the counsel questions, as the argument progressed in the Court of Appeals. Judge Nott's quick and ready mind caused him to ask many such questions, and frequently thus pointed to the conclusions


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of his own mind. The practice fortunately has grown very much out of use. The writer well knows, that such a course is calculated to disconcert the most practised lawyers, and frequently deranges an argument.


On some of these occasions, Judge Nott broke the tedium of an argument by some playful witty question.


The writer saw him a few days before his death. He was a mere skeleton, but his mind remained in all its splendor. Like the sitting sun, it was more luminous as it approached the horizon.


The character of Judge Nott may be drawn in a few words. In all the relations of private life, he lived to be loved, and died to be lamented by each and all. As a public man, he was fearless and wise.


In person, he was small, his face was highly intellectual. The print of C. J. Jay, in the Federalist, is very much like him, when he was presiding in the Court of Appeals.


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CHARLES JONES COLCOCK.


Judge Charles Jones Colcock was born in Charleston on the 11th August, 1771, and died in the same place on the 26th January, 1839, aged sixty-seven years five months and fifteen days. He was the son of John and Mellescent Colcock. His father was a lawyer by profession, and served in the revolu- tionary war. He was the counsel of Col. Isaac Hayne, and his opinion on the unlawfulness of the proceedings and sentence in the case of that illustrious martyr, may be found in "Gibbes' Documentary History of the American Revolution, in 1781 and 1782,"' page 114. He died at Jacksonboro', leav- ing a widow, two daughters, and the subject of this memoir, at that time a youth about twelve years of age.


At the early age of fourteen, Judge Colcock was sent by his mother to Princeton College, at that time under the presidency of the celebrated Dr. Witherspoon. He remained at that insti- tution until his graduation about the year 1788 or '9. (Sixty years afterwards his son, W. F. Colcock, whilst a member of Congress, met one of his classmates, Mr. John Talliaferro, of Virginia, in Washington.) On his return from college, Judge Colcock commenced the study of law under Chancellor De Saussure. He was admitted to the Bar in Charleston 23d January, 1792. After his admission to the Bar, he removed to Cambridge (old " Ninety Six") and practised law there with great reputation and success. He there commanded a fine troop of cavalry. In December, 1798, he was elected Solicitor of the Southern Circuit, which office he held until 1806. His duties, on a part of the Circuit, were often per- formed by Robert Stark, Esq.


Having married about the year 1794, Judge Colcock re- moved from Cambridge to Beaufort District, and there pur- sued his profession with great distinction, and was the lead- ing member of the Bar at Coosawhatchie and Beaufort.


He resigned the office of Solicitor in 1806, and was returned


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to the House of Representatives, on the Republican ticket, in October, 1806, as a member from St. Helena : and was again returned in 1808. He was one of the members of the House of Representatives who voted, in 1809, against the General Suffrage Bill, which in 1810 became a part of our Constitution. This vote, unpopular when given, was, as time and subsequent experience showed, a wise one. For nothing is better calculated to ruin the government than the flood of voters who are poured at every biennial election upon the polls, without anything to bind them to the country or to interest them in the legislation thereof.


On the 9th December, 1811, he was elected an Associate Judge in the place of Judge Waties, who was transferred to the Equity bench. In 1816 was passed the constitutional amendments to authorize the Legislature to fix the time and place of the meeting of the Constitutional Court. At the same time was passed an Act requiring the Judges to clear the Ap- peal dockets in Charleston and Columbia. That Act was ruled by a majority of the Constitutional Court to be uncon- stitutional. Judges Colcock, Gantt and Cheves, were in the minority. In December, 1817, the salaries of the Judges were increased, and Judge Colcock, who had resigned to meet the contingency, was re-elected by an almost unanimous vote. After the death of Judge Grimké, in consequence of receiving in 1817 a larger vote than Judge Nott, who was his senior, he presided in the Constitutional Court. In December, 1824, on the re-organization of the judiciary system, an Appeal Court of Law and Equity was established, consisting of three Judges. From the whole number of Judges and Chancellors, Judges Nott, Colcock and Johnson, were elected members of this Appeal Court. Judge Colcock continued a member of this Court until 1830, when his health becoming impaired by his long and arduous duties on the bench, he resigned and was elected President of the Bank of the State, which office he held until his death.


Judge Colcock married Mary Woodward Hutson, daughter of Col. Thomas Hutson, by which marriage he had one


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daughter and five sons, four of whom survived him. After his election to the Bench, he removed from the town of Beau- fort, in St. Helena Parish, to the upper part of Prince Wil- liams' Parish, where he continued to reside until his election to the Presidency of the Bank, when he removed to Charles- ton. Judge Colcock was for thirty years a consistent and ex- emplary member of the Episcopal Church. Among the last acts of his life was his active and leading participation in the building of St. Peter's Church in Charleston, under the shadow of which sacred edifice his remains repose.


I knew Judge Colcock well, and certainly entertained for him the most friendly feelings. I was delighted to witness, as I did, his rapid improvement, as a Judge, and the strong- hold which he acquired in a few years on the affections of the Bar. His opinions in the Constitutional Court and Court of Appeals extend from 3d Brevard to the close of Ist Bailey, and from 1st McCord's to Bailey's Equity Rep. It is impossible, in a sketch like this, to point out all the cases which would com- mend themselves to a reader's attention, to form a just estimate of Judge Colcock. In Faysoux vs. Prather, 1 N. and McC., 296, he measured swords with Judge Cheves, and I think his dis- senting opinion will bear comparison with that of the Court pronounced by Cheves. His opinion in Lemasters vs. Collins and Lee, 1st Bail, 348, is an able exposition of a difficult sub- ject. In Henry vs. Felder, 2 McC. R. Ch. R., 323, he gave a lucid exposition of the doctrine in Limitations over.


The Judge once said to me: " In deciding a case I always look for the justice of it, and having ascertained that, I am very sure that I can find the law to sustain it." He closed his useful life, as has been already said, 26th January, 1839, rejoicing in his escape from pain, under which he had suffered with a martyr's fortitude for years, and looking forward with a Christian hope to everlasting life and eternal glory.


He was a stern, uncompromising man, when what he con- sidered duty was at stake. That, like the best of men, he was fallible and sometimes mistaken, cannot be denied; but I am persuaded that his mistakes were never intentional. He wore


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unstained by passion or prejudice the ermine of South Caro- lina, and is entitled to that highest praise, "he was a just Judge."


Of Judge Colcock it may be truly said-


"Justum et tenacem propositi virum Non civium ardor prava jubentium ! Non vultus instantis tyranni Mente quatit solida, neque Auster.',


[Horace's Odes, Book 3d, Ode 3d.


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RICHARD GANTT.


In December, 1815, to fill the place of Judge Brevard, who had resigned, and an additional Judgeship, created by the Act of that session, Richard Gantt and David Johnson were elected. Knowing these two gentlemen intimately, I may be permitted to speak a little more particularly of them both. Judge Gantt was a native of Prince George County, Maryland ; he was born 2d August, 1767, and died 18th October, 1850, having thus filled the large measure of eighty-three years. He came to Georgia in 1792 or 1793. He was married to Sarah Allen, in Augusta, Georgia, about 1794. Mrs. Gantt died 17th November, 1848. Judge Gantt removed from Augusta to Edgefield in 1794. He was admitted to the Bar in Charleston in 1794. His oldest child, Thomas J., was born in Edgefield in 1795. He practiced law with great success, although he was in competition with such men as Peter Carnes, Ephraim Ramsay, and Charles Jones Colcock. He was a tetotaller many years in advance of the oldest follower of it now in the State; but strange to say, he would never take the pledge, or labor in the vineyard, where he was so well fitted by practice and talent to earn his " penny-a-day." As a lawyer, Judge Gantt, was one of the most successful advocates who ever addressed a Jury. He ought to have made a princely fortune; and would, had it not been for his con- tinued habit of change. He lived in many parts of the State, until finally, after he was a Judge, he secluded himself in the woods of Greenville.


He was elected in May, 1804, Clerk of the House of Repre- sentatives, in the place of Thomas Lee, who was elected a Judge. He was continued to December, 1818, when he was elected a Judge. To hear him call the roll or read the minutes, was in itself a great gratification. His fine, clear, musical voice, charmed every hearer.


As a Judge, he ought to have been, and he would have been, primus inter pares, if he had not neglected the cultivation of


9


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the great gifts with which God had blessed him. When roused and brought to a dissent, I believe I never heard one, while at the Bar, without saying, he is right. His opinion in Ramsay vs. Marsh, 2d McC. 252, beyond all doubt discussed learnedly and settled satisfactorily a very difficult and abstract question of law.


His sentences upon criminals were remarkable for their eloquence and pathos. Indeed, I regarded him as unsurpassed in this portion of duty. He resigned in December, 1841, and the Legislature presented him with a year's salary, and the late Mr. Albert Rhett moved in the House of Representatives very complimentary resolutions, which were unanimously agreed to in both Houses.


His greatest defect, as a Judge, was his merciful disposition to stand between the accused and conviction. Occasionally, however, he took the side of condemnation. Whenever there was a homicide, with any circumstances of cruelty, his whole nature revolted at it, and carried him strongly against the prisoner. In Liles' and Nixon's cases I encountered this strange anomaly in the Judge's character. But generally, he was on the side of the prisoner, and after I became a Judge, and could speak to him, as a friend and brother, I have had occasion to tell him " That he made himself the advocate of rascality," without perhaps seeing that which was apparent to everybody else. He abhored being worried with a little knotty case. In Summers vs. Tidmore, 1 McC. 270, which was an action by way of summary process on a judgment against an administrator, the proof was tedious, the argument legal and technical, the sum not more than $16. The Judge utterly disgusted with the case said to one of the lawyers, "I wish I may die, if I don't think it would be a good notion for the Judge to carry a little change around with him and pay off all such cases," rather than be plagued with them, and as an illustration told the story of Judge Waties paying for the hog, at Sumter, rather than try the case.


He was an eccentric, honest, good man. He was a most witty and entertaining companion. A gentleman* who met


*Judge Cheves.


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him when both were young, said he found him so fascinating that he sought and prized his company more than that of any man with whom he was ever acquainted. Many of his sup- posed oddities were indeed the mere extravagancies of his tendency to humor.


His arrangement of a criminal defence after he was a Judge, may be properly ascribed, first to his pity for the prisoner, and next to his love of fun. In the State vs. Daniel Goodman, the prisoner was charged with stealing a horse; when put to the Bar he exhibited all the wildness of an insane man. The Judge beckoned to McDuffie, who was one of the Attornies for the prisoner, and said to him, "I wish I may die, if he is not crazy!" Said he, "I'll tell you what we will do; let Bacon lead off in one of his grand flourishes; do you lay down the law, and leave the Solicitor to me." All this was done, and of course the prisoner was acquitted. His descrip- tion of the Appeal Judges, Nott, Colcock, and Johnson, making the pilgrimage of law was excellent. He represented Colcock as walking on very confidently, when suddenly he came bluff up against a mountain. "Halloo, Johnson !" he exclaims, " I believe we are at the end of the world;" there- upon Johnson pulls off his coat, and axe in hand begins to cut it down; in the meantime, Judge Nott has been seeking a path whereby he can ascend; having found it he is repre- sented as rapidly ascending, putting out his tracks as he mounts up, and when he attains the summit he calls, " Come up here, Johnson, I am at the top." The Judge had a great fondness for mills; he is represented on one occasion as desiring to have a mill dam built, knowing little about the cost, he sent for a Baptist preacher, who worked in that way, and, to avoid being cheated, he proposed that they should join in prayer, that the Lord would so instruct them as to make them deal fairly with one another. Accordingly they knelt down and prayer was made; rising, the Judge said, "Now, brother M., what is the lowest sum for which you will put in the dam?" " Well, brother Gantt, the lowest sum is $500," was the slow, well-measured reply. " Five hundred dollars !!!




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