USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 16
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Here, too, I would take occasion, if I can do so without an immodest assumption, to point you to my latest decisions, (reported in Strobhart and in Richardson,) upon which I have been more than complimented by gentlemen on this floor, in the discussion to-day-especially by the gentlemen from Charleston, (Mr. Hunt and Mr. Memminger,) and the gentle- man from Marion, (Mr. Harllee.) These constitute the latest body of evidence, to which I can refer, as a general answer to the resolution itself; to the vague and irresponsible whis- pering of "rumor ;" to the general observations of the mem- ber from Richland, and, if need be, its particular application
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to myself. I believe, Sir, I can fearlessly ask a comparison between these, my latest decisions, and any former, imputed to the prime of my manhood.
Under the same apology for this necessary reference to myself-a necessity to which I am driven for want of a per- sonal accuser, or a witness against me-and the apparent assumption in the resolution offered by the member from Barnwell, (though coming from him alone,) of general unde- fined infirmities, I would here notice my judicial labors upon my last circuit, when I was taken sick at Laurens, and con- fined for two days. With the exception of this Court, I did all the business, at each and every other Court, that could be presented to a circuit Judge. I think I fulfilled the very aim of the latter part of my judicial career, rather to do the busi- ness well, than rapidly. In proof of this, I have been assured by a very competent Judge, who watched me closely and keenly throughout the circuit, that I committed (it must have been providential, for it is certainly uncommon) but one error in law ; and he added, that upon that one point, his friend differed from him, and thought me right; but believed I had erred in another point, upon which they again entirely differed. Upon the case being brought before the Appeal Court, my opinions upon all the points remained uncorrected ; but leav- ing the disputed questions not absolutely decided. Finally, there has not been one question decided by me, on the last circuit, which has been disaffirmed by the appeal Bench. This, assuredly, I must regard as providential, as it scarcely could have occurred at any period of my career, even when my highest mental power was supposed to have been exer- cised. To conclude upon this head, may I not assume, that my proper intellectual vigor has not been impaired by eight years of public service in the Attorney-General's office, and twenty-nine years in the office of Circuit and Appeal Judge ? May I not venture to hope that I stand vindicated, even in the estimation of the gentleman from Richland, from the suspi- cion of mental deterioration, consequent upon age and long service ?
Mr. Speaker, my past history and course of life, have given
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assurance to those who knew me, that I would defend myself and the independence of the Judiciary, if the office were assailed through me. I trust there is enough in that history and line of conduct, to give as strong an assurance to my friends and to the State, that I do not love office for its own sake, or for its emolument-that if I believed, or had reason- able grounds furnished by my own reflections, or by those who knowing me well, should speak to me frankly, that I was not competent to the high and severe duties of my office, I should act with promptness, as a conscientious man, in resign- ing into your hands, the commission I received from you. Such, at least, Sir, has been my way of thinking, as is known to several persons.
Upon this particular subject of voluntary resignations, per- mit me to remind you, that they are by no means unexampled in this State. Many years ago, Judge Brevard resigned his seat on account of an apparently fixed bodily infirmity. But six years ago, the venerable Judges DeSaussure and Gantt resigned their commissions on similar grounds; but they re- signed at the age of seventy-five. I would ask, ought not the same discretion to be left with me, to the same period of life ? Why am I thus prematurely forced to resist attack upon my constitutional rights, when possibly, if not probably, if left to an equal discretion to the same period of life, my own convic- tions might actuate me to a course conformable to the wishes of those who have industriously rumored a supposititious in- firmity, which they had hoped would pass for proof, and end in my resignation or expulsion from office. I cannot permit myself to be thus forced; and the blow, which, under present circumstances, would, by my resignation, be given to the inde- pendence of the Judiciary, is, in my judgment, conclusive upon my conduct.
I have now, Mr. Speaker, but one other general topic of personal explanation. It relates to my practical and imme- diate career, as a Circuit Judge. I was elected a Judge on the 18th December, 1818. I took the commission in the place of that of the Attorney-General; which office, together with my professional business, yielded twice the annual salary of a
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Judge. The law Bench was, at that time, the strongest I have ever known. It was presided over by Judge Colcock, a man of truly sterling qualities of head and heart. Judge Nott came next, of an uncommonly acute understanding, and a most able Judge. The now venerable Judge Gantt was, then, in the strength of his usefulness. Our present Governor (Johnson) stood fourth; his judicial virtues of the head and of the heart are above my commendation. The fifth, was Langdon Cheves; always the personification of a sound mind, in a sound body, of a pure heart, and of talents, limited only, to the achievement of the occasion which called them into action.
With such Judges, I commenced my career; and endeavored to do an equal portion of judicial duties, and equally well. The Circuit Courts out of Charleston were limited to six days each. The business must be done within that time. Accor- dingly, I opened my Courts early and sat late. This course continued to the year 1824, when the late Court of three Judges was constituted the appellate tribunal. At this time, our late Senator, Judge Huger, filled well and faithfully the place of Langdon Cheves, who had taken a different office; and the most able and experienced Circuit Judges, namely, Colcock, Nott, and Johnson, were transferred to the appellate tribunal. In their place, three Chancellors were introduced, sorely against their will, namely, Waties, Gaillard and James. The habits which they had acquired on the Chancery Bench, were very unfavorable to the discharge of the ordinary circuit busi- ness of the Law Bench. I redoubled my zeal to fill up the deficiences of my friends, and it was said I was successful to some extent in so doing. This course continued to the year 1836, when the Legislature passed the Act, allowing every Circuit Judge to call extra Courts, at his discretion. This was done, evidently, to afford more time for judicial deliberation, than could have been practised when the Court was limited to six days. At least, such was my construction of the Act of '36. It seemed to inculcate upon the Circuit Judge the duty of greater deliberation.
Rapidity in the discharge of business had been practised to
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a fault: as, I verily believe it to be, at this time, the error of the Bench. From that epoch in the Judiciary system, be it acknowledged, I began to feel myself in duty bound to con- duct the circuit business with much more judicial deliberation. It was, perhaps, the inception of the charge of tardiness now made. For, it so happens, that contrary to my opinion of the necessity and value of extra Courts, they have become dis- tasteful to the Bar and to the people, and are seldom holden ; because the Bar, by concerted objection, have generally de- feated the call of such Courts by the Judge. I always offer, and generally urge their call, for the purpose of introducing more deliberation on the circuit; but, very often, without avail.
Again-and upon full conviction and observation, I have held it to be the duty of a Circuit Judge to deliberate upon an extensive class of very small cases : I mean appeals from Magistrates and summary process cases, which afford equal points of law with greater cases; but the small amount of which, practically, forbids any appeal to a still higher tribunal, and, of course, the circuit decision usually forms the final law of the case. I could notice such cases on the last circuit, in which I encouraged a second argument, rather than risk a possible error in decisions, which would probably be final.
This view of my duty is, perhaps, another source of my supposed tardiness in the discharge of circuit business.
These sources of apparent tardiness, together with my deli- berate conviction, that the unjudicial, but popular rapidity of discharging the circuit business, ought to be corrected, and, also, together with the fact, that I do not sit in Court daily as many hours as I practised when in the zenith of my physical strength, have possibly and naturally led to the charges now made, of a want of despatch in ordinary business; but, all of which, I attribute to a proper and faithful Judicial deliberation, to which I can attach no discredit.
It is not inappropriate here, to state what is the cause of this habitual rapidity (which all deplore) in discharging the Judicial business of the State of South-Carolina. It has clearly arisen from the fact, that the whole law business of the State,
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from twenty dollars upwards, besides all appeals from Magis- trates, down to two dollars, is required at the hands of six Law Judges, without any auxiliary Court or assistant Judge of any kind; one or both of which are allowed as a help to the Superior Judges, in every other State in the Union. Be- fore 1799, County Courts were allowed throughout the middle and upper country of South Carolina, and four Law Judges did all the other law business of the State. In '99, the County Courts were abolished, and as a fair equivalent, two Judges more added to the four; and, moreover, every Judge on the circuit, in case of his sickness, was allowed to commission a lawyer to the business of the Courts. This constituted, virtu- ally, auxiliary Judges. At this epoch in the Judicial system, thé State was divided into four circuits, leaving Judges, of course, at rest. Gradually, the circuits were increased to a fifth, and then to a sixth, as they now stand. The business increased greatly under this system of a Court to every district, and has long since become four-fold of the business which existed in 1900. To illustrate this augmentation, the Appeal Court then sat one week. Now, it sits four weeks, or more, at each Term. In the meantime, in 1817, the auxiliary Judge (that is, the lawyer allowed,) was taken away; and the Term of each circuit Court, out of Charleston, was confined to six days. In this situation, of necessity, the Judges were obliged to break down the greatly increased docket as well as they could. Hence arose the unjudicial rapidity of discharging the business of the Courts.
I have already stated, that in 1836, a remedy was held out, through the means of special Courts. But this means has proved abortive, by their great unpopularity and the distaste of the Bar, to such Courts. This most unjudicial practice has, therefore, continued to be the order of the circuits, until it has become dangerous, as you well know, to struggle against it. I run no risk in stating that in no other State in the Union but South Carolina, and, I believe, no other in Christendom, requires of six Judges, without any assistance whatever, to do all its law business. By way of example, the nine Supreme Judges of the United States, who are very confined in their
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jurisdiction, have more than half their real labor done by Dis- trict Judges, making the whole Federal corps of Judges about forty in number. To give one more instance, the State of Virginia has probably twice the law business of South Caro- lina ; but call it three times : how is this business discharged ? Virginia has a County Court in every county, (say one hun- dred and twenty counties,) holden four times a year; which takes off about one-third of the whole law business; and the remaining business is transacted by twenty-two Circuit Judges, besides a separate Court of Appeals, consisting of five Judges, or twenty-seven superior Judges in all; and the Judicial busi- ness of that State is by no means free of arrearage. North Carolina and Georgia have substantially the same system of County Courts and Superior Judges. South Carolina, there- fore, stands alone in requiring all her law business, circuit and appellate, to be done exclusively by six Judges.
Rapidity has thus necessarily entered into the law business of this State. Can it then be expected that your Judges will not fall from their former high standing ? Every one perceives this, but only some still struggle to follow the proper course of Judicial deliberation. You may, for a while, force and lower your Judges into judicial clerks, to make entries of verdicts, decrees and orders; but the time must come, when you will afford them some rational assistance, and enable them to rise up to judicial deliberation, and to the proper standard of the former Judicial system of so distinguished a State.
Let me, in conclusion of this subject, distinctly admit, that the principle adopted in 1799, of bringing all law cases before a Superior Judge (which evidently arose from our experience of County Courts,) is meritorious and praiseworthy.
In my endeavor, Mr. Speaker, to find out the point of every possible charge against me, I have supposed that it may be intended to charge me with too great a loss of time from sick- ness at different periods. If I am right in this imagination, I have to answer, that few Judges have, on my average of twenty-nine years, lost less time by bodily indisposition. Yet, in the year 1835, after holding the Charleston Court, I lost, to
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a great extent, the holding of the subsequent part of the same circuit at Horry and Georgetown. This was my greatest loss of time at any one period. This arose from a very acute attack of inflammatory rheumatism; but of which I have had no return to prevent the discharge of my duties, before the late short attack at Laurens Court House. But be it fairly admit- ted, that the suspension of my duties have been more frequent of late years, than prior to the trying and cold winter of 1835. Magnify these as you will, they have not been reprehensibly great, and could not have amounted, I verily believe, to one- fourth of the loss of time, lately, so generously and properly overlooked, in a venerable, and, by me, venerated Chancellor, (Harper) whose loss the State has been so recently called upon to deplore; nor so great as that of a highly talented and accomplished Judge, (Earle,) now no more; which arose from an overwhelming misfortune, which at once crushed his bodily and his judicial usefulness. I almost shudder, Mr. Speaker, in alluding to those two distinguished men, in con- nection with what is charged upon me as a great fault, But that, in common with other disagreeable alternatives, is forced upon me.
I have, heretofore, treated the resolution, introduced by the member from Barnwell, without reference to its intrinsic demerits, or, to my own constitutional, vested rights. Can such an instance, in all past history, be found? I think not. A single member rises and presents the resolution offered against me. It is received by this Legislative body without the least legislative action or inquiry. A single member thus denounces a civil officer, and his denunciation is deemed enough, without further inquiry, to bring that officer before this body, to answer for charges utterly undefined, utterly unknown, and utterly unsupported. Should this example be wrought into an authoritative precedent, what a terrific wea- pon, (to alarm, upon any interested occasion, a Judge or other civil officer,) would be put into the hand of every member of the Legislation. Is it not plain, that such a proceeding is at war with all rational inquiry, with the just allowance of rights to the accused, and a decent regard to his feelings and position ?
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What is the just analysis and import of the Resolution, but this "Resolved," by A. B., (member from Barnwell,) "three- fourths, &c., concurring, that the Hon. J. S. Richardson, &c., be removed from his office, and the same is hereby declared vacant." It is too plain for question, that the Resolution is by the member from Barnwell alone; and all the consequences to, and harassing of, the officer, are to follow at his bidding, without any legislative recognition of his Resolution, to call such officer to account. Can there be a more unjust, irra- tional and unexampled proceeding against an officer, upon the mere ipse dixit of one man ? Must not the evil be wide- spread, if any member can, at pleasure, do this? Is not the independence of every Judge fatally struck at by such an ex- ample of individual persecution? I utter such sentiments more in sorrow than in anger; more to prevent an evil and degradation to the State; more in defence of her character than my own.
But, further, the same Resolution requires me to answer matter, which, at the time of my election to a seat on the Bench, was unknown to the Constitution. The amendment of 1828, upon which the Resolution is bottomed, was adopted ten years after my contract with the State; and when it was adopted, was well understood as having no application to the incumbents in office. It cannot apply to me, by reason of the prohibition of the Federal Constitution to the State to pass any " ex post facto law, or law impairing the obligation of con- tracts." (Art. 1st, sec. 10.) And be it remembered, also, that every civil officer, and every member of this House, is sworn to support this Constitution, as well as the Constitution of the State. Take an example or two: the Clerk's office is limited by the Act of 1812 to four years; but that was not applied to the clerks then in office; all such still held their offices during good behavior. Again, in the late proposed amendment of the Constitution to limit the judicial office to sixty-five years of age, the limitation was restricted to future Judges only. It cannot be otherwise, if you respect the Federal Constitution. Take the case of the late Judge Bay, who held his office thirty-five years, without sitting in either Circuit or Appellate
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Court; no one ever pretended he could be brought under the amendment of 1828. It is in vain to answer, that he was exempt from such duties by an Act. No Act can change the Constitution ; and the very predicate of his legislative exemp- tion was, that his commission was "during good behavior," which could not be affected by legislative or constitutional amendments.
Now, sir, I am in commission with the same vested and unchangeable rights, liable only to impeachment before the Senate. Wherefore, then, am I alone selected for unconstitu- tional persecution under the inapplicable amendment of 1828? The inconsistency is monstrous. But very like the other in- consistency, that as two Judges resigned at seventy-five years of age, I must, therefore, as a matter conceded, be disabled, " bodily and mentally," at seventy years of age.
Thus, then, whether you appeal to history or the Constitu- tion, the thing does not tell well. It is too unlike South Caro- lina, and for that reason it does not suit you or me.
"The spirit of a man may bear his infirmities," (his bodily infirmities and misfortunes,) "but a wounded spirit who can bear it?" I cannot permit any self-abasement; I will not readily brook insult or injustice; these wound the spirit. But the intended infliction, hatched in some dark corner of the otherwise respected Barnwell, shall be shaken from me by the power of truth, and no harm be received.
Mr. Speaker, the legal and constitutional objections, I am disposed to take only on the grounds of the invasion of the judicial independence, and for the character of the State of South Carolina, which is above and superior to the encour- agement of such example and proceedings. But I merely glance at such objections, which more properly come within the province and duty of my counsel, and which, in their discretion, they will further urge, if deemed advisable.
Mr. Speaker, I am about to conclude. Could I think it necessary to protect the honor and character of the State and the justice of this House, and to bring my judges to a proper consideration, I would invoke the powers which are supposed to lead men to a proper sense of their duty. But I deem it
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superfluous, as I have an abiding faith in the general sense of justice and dignity of this body, who ought, by their conduct, to exemplify the character of the State. I will, therefore, barely recall to your memories the approved principles of a free government, as handed down to us from more than 2,500 years.
When the wise men of Greece had assembled to deliberate upon the proper principles of a free government, after six had spoken, the Athenian Solon rose and said: "That alone is a free government, where the oppression of an individual, or an injury to the lowliest citizen, is felt as a shock to the Consti- tution of the State; and they alone," the sage continued, "are worthy of freedom, who are as ready to rescue the oppressed, and to recompense the injured, as the immediate sufferer himself." 1
Now, sir, claiming my discharge, and asking for some re- quital for being most needlessly dragged hither, will your justice and zeal, in defending all constitutional rights, be with- held only when I claim justice and a shield against the many consequent evils of this seeming legislative prosecution, to me, to my character, usefulness and official weight, which are among my dearest rights.
Mr. Speaker, I thank you not a little for your feeling regard for my position, manifested in your deportment; and I thank the House for its patient bearing, which is always a consola- tion.
I have now only to ask, that the favor offered to me, of further time, be extended to my counsel, if they desire it.
During the entire delivery of the foregoing speech, the Speaker remained standing, to mark his respect for the vener- able dignitary who was addressing the House.
On Judge Richardson's concluding his defence, Mr. Torre, of Charleston, prefaced by a speech of very delicate and appro- priate sentiment, offered the following Resolution :
Resolved, That this House, having heard the Hon. Judge Richardson in answer to the Resolution proposing to declare his office vacant, and being of opinion that the grounds set forth therein are not sustained, ordered that all further pro- ceedings thereon be discharged.
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Mr. Bellinger, on behalf of his assistant counsel and him- self, made a few eloquent remarks as to the gratification felt that no further defence was necessary, and was perfectly wil- ling to repose the question where it was.
After a short conversational debate, in which Messrs. Davie, Henry, Memminger, Blakeney, Harllee and Hunt participated, Mr. Torre's resolution prevailed by a a vote of 74 to 32. The Clerk was instructed forthwith to communicate the result to Judge Richardson, who had previously retired.
The House then adjourned.
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DANIEL ELLIOTT HUGER.
Judge Huger was the only son of Daniel Huger, who was a member of the first Congress; his mother was Sabina Elliott. He was born on 28th June, 1779. He received his education as a pupil of Bishop Smith, and having run his curriculum at Princeton College, graduated during the Presi- dency of Dr. Samuel Stanhope Smith. Chancellor DeSaussure prepared him for the Bar, and he was admitted at Columbia, in 1811. Forming a co-partnership in Charleston with Mr. Benjamin Yancey, and associating James L. Petigru with him at the Beaufort Bar, he steadily pursued his profession until December, 1819, when he was elected Judge in the place of Judge Cheves, who was selected as President of the United States Bank.
Judge Huger is peculiarly entitled to receive from me a full account of his eminent usefulness ; for from 1816 to his death, we were friends in all the various vicissitudes of active lives. But the carelessness of friends in preserving precious memo- rials of one another, renders it difficult after the lapse of a few years to gather up the materials whereby we can sketch even a poor likeness. I first recollect Judge Huger in 1811, when I was a student of the College, and he a member of the House of Representatives. He was then unquestionably the first man of that body, although there were around him Joseph Alston, Benjamin C. Yancey, Joseph Gist, Thomas Hunt, and others, perhaps equally as well entitled to notice, but unob- served by a mere collegian. When Mr. Huger spoke, all was silent, and his counsels generally prevailed. At the extra session, in August, 1812, a measure of alleviation for the benefit of debtors was introduced by Mr. Joseph Black, of Abbeville, and pressed with his usual zeal. Mr. Huger rose to speak at the close of the debate in the evening of a sum- mer's day. The House was in that moving, talking condi- tion, which augurs little attention. In a few moments all were wrapt in silent attention, and gathered around the
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