USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 19
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den, Esq., the District Attorney for South Carolina, Judge Frost succeeded to that office, and upon his resignation, Mr. Gilchrist became his successor. The delicate question arising between the State and the Federal Government, made it difficult to find an officer willing to assume the duties and responsibilities of the position. The commission was tendered to Mr. Gilchrist, by President Jackson, and was accepted from a high sense of duty and of devoted patriotism.
A letter from the department, accompanying the commis- sion, is couched in terms which show their high appreciation of the man so selected. "Your appointment to this office, at the present period, shows the great confidence the President has in your energy, zeal and ability. The principal agency you will have in enforcing the laws of the Union will call for the exercise of these qualities, as well as of the prudence necessary to avoid any act that is not strictly legal."
His commission bears date the 25th July, 1831. Soon after his appointment his abilities were put to the severest test, by the trial in the Federal Court of what was popularly known as "the Bond Case," in which the constitutionality of the tariff was investigated.
In this controversy, aided by his friend, that distinguished jurist, Mr. Petigru, he had to encounter the attack and zealous opposition and singular ingenuity and ability of Mr. McDuffie, who rushed into the forum attended by the sympathy and enthusiasm of the dominant State party. In this encounter Mr. Gilchrist sustained himself with the calm, unostentatious bearing of the patriot who first satisfied himself that he was right and was then careless of the consequences. For the eight succeeding years he continued the discharge of these duties with a punctuality and diligence never surpassed. He held the office until 1839, when upon the decease of the ven- erable Thomas Lee, Judge of the District Court for South Carolina, Mr. Gilchrist was appointed to that high office by President Van Buren.
Having attained this noble eminence, by his virtues and talents, without the aid of any party or sinister influence, Judge Gilchrist applied himself to the task of discipling his
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mind and extending his studies to correspond to the sphere of his important duties. For seventeen years he was the faithful officer at his post, shunning none of its smallest requirements and meeting like a man and an impartial arbiter the most im- portant questions, and was at last borne down to the grave by the weight and protracted labor of his judicial duties.
He died on the 1st May, 1856, leaving his widow and two children, a son and a daughter, bereft of that sweet affection which cannot revisit them here; but the memory of which will be a consolation to them in all the vicissitudes of life.
The friend who has walked with him, hand in hand, for more than forty years, cannot trust himself with a minute record of his various excellencies, but may be permitted to say, that one has been removed from us who was eminent for his patriotism, his inflexible integrity, his abiding sense of honor and duty, and a benevolence which warmed all hearts within its influence.
CHANCELLORS.
RICHARD HUTSON.
Chancellor Hutson, one of the three Judges of the first Court of Chancery, established in South Carolina, was born June, 1747, in Prince Williams, then recently erected into a Parish, but still at that time, and for many years after, called "Indian Land," from having been reserved by AA. 1707, to the Yemassee Indians. He was the eldest son of the Rev. Wm. Hutson, an Independent minister, by birth an Englishman, who had been settled in 1743, over a congregation of that persuasion at Stoney Creek. His mother's maiden name was Mary Woodward. She was a widow, having been previously married to Mr. Chardon, by whom she had one daughter. In 1756, the parents of Chancellor Hutson removed to Charles- ton, his father having been called to the pastorate of the "Cir- cular Church" in that city, where he served faithfully until his death in 1760 or '61.
The Chancellor received his preparatory education in the city, and his collegiate at Princeton. He came to the Bar in South Carolina-and upon the breaking out of the revolu- tionary war, took an active part on the whig side, and suf- fered for it, both in purse and person. In August, 1780, he, with other leading citizens, was sent to St. Augustine, and imprisoned. While there, it is said, he relieved the tedium of his sojourn by adding the Spanish to the six or seven other languages of which he was master.
Previous to being sent to St. Augustine, he had been a member of the Continental Congress, and as such in 1778, signed the articles of confederation. At the close of the war, his estate, which by inheritance was considerable, was much impaired; and it is a family tradition, that being obliged to sell his property at this juncture, he completed the ruin of his pecuniary prospects, by taking payment in continental cur- rency, from motives of a rather Quixotic patriotism-hoping, by his example, to give confidence to the failing credit of the Government.
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In 1783 and '84, he was Intendant of Charleston, (the first elected under the Charter,) and in the latter year was elected Chancellor. On the promotion of Chancellor John Rutledge, in 1791, he became senior Judge of the Court of Chancery.
In the published cases tried by that Court, the individual Chancellor writing the decree is seldom named. In only three cases reported in 1 Dev., can it be known, with certainty, that the decree was by Chancellor Hutson. We have, there- fore, little from which to derive any idea of his ability or attainments. From the fact that he never married, and had none but collateral relations to take an interest in his reputa- tion, no papers of any importance remain, or at least are known; and we can only judge by the positions he occupied, that his ability and character insured for him the rank of a leading man, in an age and under circumstances, and among associates, where it required more than an ordinary share of both to attain it.
The last political act of his life, was to vote for the adoption of the Federal Constitution in the Convention of 1788, where he sat as a delegate from St. Andrews. He died in office, in 1793, still in the prime of his manhood.
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JOHN MATHEWS.
On the 21st of March, 1784, with John Rutledge, and Richard Hutson, John Mathews was elected a Chancellor. In '76, he had been elected a Law Judge: and in '77 he was the Speaker of the General Assembly, and afterwards a member of the Continental Congress. While he was such, a project was contemplated, if not agitated, of purchasing peace with Great Britain by the sacrifice of the Carolinas and Georgia. This intrigue was strenuously and effectually opposed by Mr. Mathews and his colleagues, Bee and Ev- erleigh.
In January, 1782, he was elected Governor in the place of John Rutledge, and with Generals Wayne and Greene, fol- lowed the retreat of the British to their shipping, by entering Charleston, as the Restored.
His election of Chancellor was a just tribute "to exalted worth and disinterested services."
We can only conclude this very brief notice, by referring the reader to his decree in the case of Jacob Deveaux and wife Elizabeth, vs. Barnwell, Executor of John Barnwell, first volume Equity Reports, pp. 497, as a specimen of his legal learning.
" The question in this case arises on the will of J. Barn well. The words necessary to be adverted to are, ' Whatever my wife shall leave when she dies, not willed, sold, or given, and delivered before good witnesses, whether house, lots, horses, stock, plate, furniture, &c., I order to be sold and the money divided amongst all my children.' It seems that Mrs. Barn- well, the wife of the testator, did make a disposition of part of the estate, by deed, to Mrs. E. C. Deveaux (one of the tes- tator's children) and her children. It is contended by the complainants, that they are entitled to take what was so given by the mother, and also to an equal share with the rest of the children, of the estate left by the testator to his wife, and not disposed of by her. The first question, then, is whether the
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complainants are entitled to take both what is given to Mrs. Deveaux under the instrument of her mother, and an equal share with the other children under the will of her father. It appears that it was the intention of the testator to divide that part of his estate, which his wife might not dispose of, equally among all his children ; but it does not appear that he intended to give any child a double portion, which would be the effect of this claim. It appears that the provision made by the mother for Mrs. E. Deveaux and her children, out of the testator's estate, was made from providential mo- tives, to secure to them what E. Deveaux would be entitled to at her death, on account of the embarrassed state of Mr. Deveaux, the husband. But it is contended for the complain- ant, that the provision made for Mrs. Deveaux by her mother, ought not to be considered as a satisfaction of what she claims under her father's will ; because what is given her is only for life, with remainder to her children ; and being a less estate, ought not be deemed in satisfaction. This is extraor- dinary. Old Mr. Barnwell gave an absolute estate to his wife, with power to dispose of the same, as she pleased, even to the exclusion of complainant; and what she did not dis- pose of, was to go equally among the children. Mrs. Deveaux cannot, therefore, claim under both the deed of the mother, and the will of the father. She may take her choice ; but to take both would be highly unwarrantable. The second ques- tion under this will arises thus : Two of the testator's children died after the making his will, and in his lifetime, both of them leaving children. Old Mrs. Barnwell, (wife of testator,) made no disposition as to them. The question then is, can these grand-children come in under the will of the grand- father, for their parent's share of the estate so undisposed of by the grandmother ? (See the words of the will above.) The rule, that the intention of the testator, if not inconsistent with some rules of law must prevail, is not to be rigidly adhered to in all cases : formerly words of survivorship were construed into joint tenancy. In the case of Elliott and al. vs. the exe- cutors of B. Smith, determined in our own Courts, the words of survivorship were as strong as could be. The words were
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' but in case any of my children should die before the time appointed for the payment of their portions, then the share of such child or children, so dying, shall be equally divided among my surviving children.' It was decided that the limi- tation over was not confined to the surviving children at the time of the contingency, but at the death of testator ; and that such children as survived him, and the representatives of the deceased, were equally entitled on the contingency happening. In the case of Drayton vs. Drayton, the Court went further : The limitation over was on the death of John to his surviving brothers. W. H., one of the brothers, did survive the testator, but died before John; yet his representatives were let in to a distributive share of the estate of John; so that the survivor- ship was confined to the mere survivorship of the testator. In the case of Sealy vs. Executors of Ball, it was decided that as no time was appointed by the will for the legacy vesting, that marriage was a proper period for securing what might otherwise be considered as a joint tenancy. Thus where the intention of the testator is to make an equal distribution of his estate among his children, and where such intention is founded in reason and justice, and not contrary to some rule of law or the principles of equity, Courts of Equity will carry them into effect. In the case before the Court, the intent is manifestly to divide the estate not disposed of by the wife, among all the testator's children. At the time of making his will all of them were alive; but two of them died before the testator, leaving issue. The testator never republished his will. (though he lived some time after,) nor made a new one. It is a strong presumption that he meant that his grand-children should stand in the place of their parents. To exclude them, would be to defeat his expressed intent to provide equally for his children. And though a will is not consummate till the death of the testator, it is in many respects inchoate from the execution. This construction may not quadrate with strict rules ; yet it is not repugnant to any rule, and it is well war- ranted. Suppose a testator should leave by his will all his estate, to be equally divided among his children, and one of them dies a few days before him, leaving a large family de-
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pending on the bounty of the grand-father, and he dies with- out altering his will, ought the grand-children to be left desti- tute, and the large estate to go wholly from them-perhaps to one child of testator, and he without a family? In such a case, the Court would be disposed to say, with Lord Chancellor Macclesfield, 'if there is no precedent, it is time to make one.'
" It is decreed, that complainants have their option, to take under the will of the father, or under the deed of the mother; and that the children of the two daughters, who died in the testator's lifetime, take their parents' shares respectively, of the estate left by the grand-father, and that the costs be paid out of the estate."
His resignation took place in November, 1797.
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HUGH RUTLEDGE.
Hugh Rutledge, a younger brother of John Rutledge, in the Spring of '76, under the Constitution of that year, was appointed a Judge of the Court of Admiralty of South Caro- lina. After the fall of Charleston, he, with his brother Edward, Governor Gadsden, and many others, were sent as prisoners to St. Augustine.
In '77, Hugh Rutledge was Speaker of the Legislative Council, and so continued until 17th of October, 1778. In 1782, he became Speaker of the House of Representatives, and so continued to 1785.
In 1790, the Constitution of the State was adopted. The first section of the third article declared, that "the judicial power shall be vested in such superior and inferior Courts of Law, and Equity, as the Legislature shall, from time to time, direct and establish." Under this, it may well be doubted, whether the term "Chancellor" was any longer a proper designation, and whether, in strictness, such an officer should not be called, as he was before '24, "a Judge of the Court of Equity."
On the 19th of February, 1791, and after the Act to establish a Court of Equity had been passed, and his brother John had been elevated to the office of Chief Justice, Hugh Rutledge was appointed a Judge of the Court of Equity. He experienced the neglect of his Court by the Legislature in not filling the places of Mathews and Hunt, (who had been elected in the place of Hutson, and who died in a few months,) for two years-during which time he was a single Judge of a Court, then consisting, according to law, of three members. I see it was gravely doubted, whether the Court had not ceased to exist; but a matchless argument of H. W. DeSaussure, afterwards the Chancellor, showed conclusively that it had not, and perhaps also served to remind the Legis- lature of their duty.
Chancellor Rutledge died in January, 1811. His talents are said to have not been so " brilliant, nor of so distinguished a
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cast as those of his brothers, John and Edward-but for solidity of judgment, and strong manly sense, he was not inferior to either of them." "As a firm, intrepid patriot, he was pre-eminently distinguished by the cheerful performance of every duty to his country."
The following account of Chancellor Rutledge, from the pen of an honored citizen of Charleston, does him full justice :
There are many reasons why the author of this sketch should feel embarrassed by its preparation; but there are many more why every virtuous man in society should desire to have justice done to those who have preceded us and surpassed us in good works.
No movement has ever been made in the formation of our national character, where the name of Rutledge is not found. The first Congress, which met at New York in 1765, has been, not improperly, called the "Ovum Reipublica." Nine colonies only represented, and South Carolina among them, with Thomas Lynch, Christopher Gadsden and John Rut- ledge fully authorized to pledge their constituents for " weal or for woe." In this year Patrick Henry earned immortality for himself by that celebrated speech in Virginia, which put the ball of Revolution in motion.
Again we find what was called the Association, assembled at Philadelphia in 1774; and in the proceedings we see the " Seal" of our State, supporting and sustaining " the cause," with two members of the Rutledge family acting for us. And in 1776, when that great "proclamation " was made to the world, who can ever read the most important document, now extant, without admiring the chaste and graceful, and manly signa- ture of "Edward Rutledge," to the " Declaration of Inde- pendence ?" And perhaps it may be admissible to mention here that the biographer of Mr. Jefferson, (of course hostile to the Federal party,) speaking of them as the "old train bands of the Treasury Department," and as " men who had been enriched by frauds," with other epithets, upon which I do not propose to comment, makes this honorable offering to South Carolina. Mr. Randall says: "If General Charles Cotesworth Pinckney ever, in public or in private life, acted
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otherwise than as a manly, pure and high toned politician, patriot and gentleman, we have failed to discover a solitary instance of the fact," and then adds in a note, " we think this remark applies fairly to nearly all the leading ' South Carolina Federalists,' * was accused of being one of the greediest of the ' Treasury Squad,' but the Pinckneys, the Rutledges, the &c., &c., &c., were men above per- sonal suspicion." Neither of those families ever required this certificate, and they certainly do not now; but the words are quoted, as used by a political opponent, and as applying to the period of bitterest party strife. Our purpose, however, is to speak of the Chancellor.
Hugh Rutledge was one of those three brothers who gave themselves to their country, when the success of American arms and the achievement of American liberty depended upon such " gifts." He was born in Christ Church Parish, District of Charleston, about the middle of the last century. His widowed mother intended him for the legal profession, and after receiving his preparatory education, he was sent to England, as was usual, to " study in the Temple." He re- turned in due time and took his position at the Bar, and upon the authority of the late Thomas S. Grimke, it is said that he " rated as among the very best common-law lawyers of his day." The Revolution soon commenced, and under the head " Hugh Rutledge," we find by a cotemporaneous historian these words : " As a firm and intrepid patriot, he was emi- nently distinguished by the cheerful performance of every duty to his country." And again, that when the lower part of the State was as a conquered province, Mr. Rutledge hav- ing been created Judge of Admiralty, he " refused the offer of protection, and bore all the hardships of exile at St. Augus- tine, sharing the sufferings of such men as Arthur Middleton, Edward Rutledge, Christopher Gadsden, Daniel DeSaussure, and others. And that after his exchange he was called to fill the Speaker's chair in the House of Representatives, and did so greatly to the satisfaction of its members, &c., &c., &c."
Mr. Rutledge married the daughter of Thomas Smith, ancestor of the Rhett family, and by this marriage had a
ยท
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son, "Hugh," who died in early manhood, and a daughter, " Sarah," now the wife of Alfred Huger. After the death of the mother of these children, he married "Mary," the daughter of Major Benjamin Huger, who was killed during the war of the revolution; he left by this marriage five chil- dren, Maria, afterwards wife of Dr. Thomas Waties, of Sumter; Benjamin, who served during the entire war of 1812 to 1815; Francis, now Bishop of Florida; Ann and John, who died single. Among his male descendants are John Waties and B. Huger Rutledge, both members of the Bar. Waties at Columbia and Rutledge at Charleston.
According to Chancellor DeSaussure's Equity Reports, " upon the erection and establishment of the Court of Chan- cery, after the revolution, John Rutledge, Richard Hutton and John Mathews were elected Judges of that Court, and served until 1791, at which time John Rutledge was elected Chief Justice of the Court of Common Pleas and Sessions, and to fill the vacancy thus made, Hugh Rutledge was then elected a Judge of the Court of Equity." He continued on this Bench to the day of his death. How he performed the functions of this high office, it is our purpose now to speak. so far as is consistent with the objects of the present sketch. No department of the law affords finer opportunities for the gratification of elevated judicial aspirations, than that branch of the general science which is known to legal writers as the Law of Equity. Conversant with the most difficult and complicated matters which belong to the municipal law, it requires a large and comprehensive mind to embrace the subject in its various relations, as well as great patience of investigation, and nice powers of discrimination in him who undertakes to wield the remedial processes of its delicate and refined machinery, and to adjust the claims of opposite and conflicting equities to the purposes of practical life. More- over, there are other requisites, especially necessary to the Equity Judge, which arise out of the peculiar jurisdiction of the Courts which administer this branch of the law. A sound judgment is, taking all things into consideration, the best qualification of every judicial officer. In a Chancellor, it is
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absolutely indispensable. The Court over which he presides, is charged with that portion of the sovereign authority which exerts itself in behalf of those who are unable, under the law, to protect themselves. The Chancellor thus becomes, as it were, the general supervisor and custodian of the interests both of person and property of those classes of individuals- orphans, idiots, lunatics, &c., &c .- whose unprotected and forlorn condition attracts the sympathies of every benevolent mind. Mere learning, however great, (although very much to be desired,) is not all sufficient to carry him successfully through the varied and responsible duties of his position. The Chancellor ought to be more than a mere book-man. A well balanced judgment, strong practical wisdom, and a thorough knowledge of business and of life, are essential characteristics of any one who desires to become an ornament to the Equity Bench. In short, a good Chancellor, is one of the rarest, as well as one of the most valuable and efficient officers in the service of the State. In estimating the char- acter of any one who has been engaged in judicial labors, and who has passed for some time from the stage of life, there are two ways, chiefly, by which posterity are enabled to arrive at just conclusions. The one is from the examination of his efforts wherever they appear upon the records of the Courts to which he was attached, in the shape of judgments or decrees. The other is from the testimony of those who were his cotemporaries, and who, together with him, in their day and generation, fought through the battle of life in the same calling.
In pursuing our enquiries relative to the merits of Chan- cellor Rutledge, as derived from the first of these general sources of information, it may be well to observe that it is not our intention to enter upon a detailed or critical examination of his judicial career. Such an inquiry would be uninterest- ing and tedious to the general reader; and the professional man has always at hand the means for the fullest light upon the subject by a consultation of his decrees, which will be found in the first, second and third volumes of DeS. Eq. Reports. We will here cite but two of his judgments by way of illus- tration, not because they are the best samples of his style
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which might be selected-for, indeed, they are not-but because each of the cases referred to, occupy the position of leading authorities in the law of South Carolina, and establish principles of great practical utility peculiarly adapted to the circumstances of this country, at variance with those which belong to the Equity Law of England, from which our system of Equity is mainly derived. The doctrines of these cases have been considered law ever since their promulgation up to this day. The first of these cases will be found in the second volume of Chancellor DeSaussure's Equity Reports, p. 376, entitled Charles Lining vs. R. H. Peyton and others. It declares this important principle: That where a person pur- chases land from a trustee, who holds the land in trust for certain purposes, with a power of sale; there being a proviso, however, that the trustee shall hold the purchase money of the said land subject to the same uses. The purchaser is not bound to see that the trustee fulfils his duties, and is not responsible, if he does not.
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