USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 23
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" It was not only in the style, reasoning and solid strength of his speeches, that he evidenced an inexhaustible treasure of natural and acquired endowments as an orator. There was a melody and harmonious compass of voice, a distinctness of elocution, an ardent animation of manner, which enchained the fixed attention of his hearers, to the end of a discourse always limited in its range by a happy condenseness. His whole delivery delighted them, enlivened the arena of public and forensic business, and carried the conviction that he argued in the fairness of reasoning, aloof from the ensnaring or entangling subtleties of a recondite and abstruse logic. His oratory was a happy specimen of what Cicero admired as uniting the valuable attributes of a public speaker-
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' Eloquens is, qui in foro, causisque civilibus, ita dicet, ut probet, ut delectet, ut flectat. Probare necessitatis est ; delectare, suavitatis : flectere victoræ. Nam id unum ex omnibus ad obtinendas causas potest plurimum.'-(Orat. ad Brut. S. 21.)
" It was not in his extemporaneous speeches alone that he was distinguished. As a writer, his compositions were an admirable model of imitation. One I well remember, (as do many who are here present) delivered by him where I have now the honor of appearing before you. He was the first orator appointed at the formation of the '76 Association. On the anniversary of the national Constitution, he pronounced a finished encomium on its august framers, and a most lumin- ous commentary on the blessings it would secure to our happy land, and the sanctuary which would be opened to the persecuted and oppressed of all nations and climes, under this wonderful, and I hope indestructible, edifice of Republi- can government.
" He possessed, too, in a transcendent degree that rare talent which, like the poet's, is a gift of nature-genuine wit. It was playful and sportive, elastic and recreative, in the hours and toils of business, diffusing cheerfulness and social charm, but never outstepping dignity. It exhibited a mirthful irony, without violating courtesy. It conveyed the sting, too, when deserved, and the aptness of the moment never escaped his sagacity. His sarcasm could be poignant and bitter. When the occasion called for it, ridicule was a formidable weapon in his hands. In his satire, there mingled sometimes the sprightly and instructive vivacity of Horace, at others the serious and terrible severity of Juvenal. Perhaps no faculty of the mind requires more wariness and prudence in its just and wholesome exercise, and none so frequently confounded with its spurious substitutes. Risibility can easily be excited by the humour of burlesque and drollery, but this is the proper diversion of a farcical afterpiece. The pretence of rudeness or flippant conceit, mistakes as a sign of its triumph what is its best punishment, unretaliating silence.
" After a service of several years in the Legislature, (during which he declined a re-election to the chair, from the principle
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he professed that such honors should be partaken of in rota- tion by others) he retired to more tranquil scenes. But in the contest of 1808, which resulted in the elevation of Mr. Mad- ison to the Presidency, and the continuance of the Republi- can system of administration, he was induced to add the weight of his abilities, political popularity and influence, to the cause of his party. He was returned a member of the House from the Parish of Christ Church. His able discharge of the duties of Speaker was still fresh in the remembrance of all. The station was again conferred on him under cir- cumstances highly flattering and complimental.
" It was during this session that the Court of Appeals in Equity was established, a tribunal which greatly meliorated the condition of our judicature. It was a reformation intro- duced and supported by the most enlightened of the pro- fession. The acknowledged talents, erudition and experience of the officer who presided over the House, identified him at once with the institution they had created. He was invested with the ermine by an unanimity seldom paralleled. In this office, so vitally important to the great interests of property and the domestic and business relations of society at large, his unclouded intelligence, quick-sighted acumen, and solid strength of judgment, applied with readiness and singular aptitude the doctrines of Chancery to the cases which called for his adjudication. Of these doctrines his knowledge was extensive, profound and eminently practical. His decrees were pronounced with a promptness and decision equally removed from precipitancy or unnecessary delay. They were the exact type of his ideas, clear and easily intelligible to all. They were encumbered by no superfluous reference to author- ities, no pedantry of the science, (of which for the occasion he conceived himself the expositor and the minister,) no useless elaboration in arriving at a conclusion. His analyzing mind had thoroughly investigated the original sources of our jurisprudence by which he was to be governed. A most felicitous memory could array instantly the printed guides he was to follow, while his nice discrimination developed the spirit and reason of the equitable and legal codes he was
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dispensing. No Chancellor submitted with more deference to points already decided, though they met not his concur- rence. No one was more zealous in preserving inviolate the great land-marks of the system, though the bold independence and activity of his penetrating mind would discern, and would fearlessly assert, when requisite, the inapplicability of some antique principles to our unparalleled institutions. What was said of Lord Thurlow by an admirer, may be repeated of him, ' I never found that he meant to break through the rule. No man criticised more upon rules laid down by other Judges, but no man was more rigid in observing them, when he could once deduce them.'-3d Vesey, 527.
" Judge Gaillard, though anxiously desirous of sustaining the boundaries between the tribunals of law and equity, wished to assimilate as far as is practicable in wise discretion, and to amalgamate in the administration of justice, the nature of each with the other. His view might be somewhat similar to what Lord Eldon declared of two objects of his admira- tion-' Chief Justice De Grey said, he never liked equity so well as when it was like law. The day before I heard Lord Mansfield say, he never liked law so well as when it was like equity ;- remarkable sayings, (he added) of those two great men, which made a strong impression on my memory.'-6 Ves. 259. There was a very general acquiescence in or con- firmation of his decrees. When he differed with the Bench of his judicial colleagues, it was then he took more than ordi- nary pains. His lights and learning became then peculiarly public property. They were put forth to be examined by all, not for display or effect, but from an imperative sense of indis- pensable duty, which would withhold nothing from the suitors, the Bar and the community. His ambition was to satisfy himself that his judgment was supported by principle and precedent ;- and when precedent failed, the exuberance of his intellect was never bewildered in reaching the point where justice should prevail. A Judge who should commence with, ' Having had doubts upon this will for twenty years,' would, (however extraordinary his attainments) in our country, be soon transferred to the chair of a professorship, as better
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adapted to his lucubrations than the business for which Laws and Courts are designed.
"The satisfaction afforded by the amenity of his manners, the resolute and wise exercise of his official power, the dispo- sition to accommodate where there was no sacrifice of what he deemed not under his control, by the safety and correctness of his decrees, and a judicious despatch of business without haste or impatience, was fully manifested by a re-election of our lamented friend as complimentary as his first, when the Chancellors resigned to receive a compensation more equiva- lent to their labors-a testimonial certainly not of doubtful character.
"In 1824, a new arrangement of the Circuit and Appeal Courts was organized. Whether this innovation is an im- provement on the preceding models, (one of them coeval with our Constitution, another existing for sixteen years,) must be left to a test of the same duration, if a triumvirate is not long before superseded by other experiments. At this period of the partition and division of judicial labors, the duties of the Law Bench were allotted to Judge Gaillard,-the number of Chan- cellors being reduced to two, and they and the Law Judges rendered subordinate to the appellate. The versatility of his genius, the variety of his information, and the speediness with which he could recover the recollection of former, and grasp the extension and accumulation of any knowledge, soon rendered his novel situation light and familiar to him. It furnished too, a wider and more apposite scope for his popular, delightful and commanding eloquence, than the fabric of the Chancery scarcely ever presents. His charges to the Jury comprised so succinct a compendium of the circumstances and proofs, that the various capacities of our citizens em- braced, without fatigue, the compass of the case. His abstract so divested it of the extraneous and irrelevant, that their good sense could review the concentrated weight of the testimony with the ease their memory could retain the incidents of an impressive narrative. In conducting their attention to the law which was absolutely to control them, he was distinct, confident and energetic, avoiding authoritative dictation, but
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maintaining the prerogative of office bestowed by the popular sovereignty for the public good. He knew and participated in the feelings of the people of this country too well not to be certain that they would firmly and conscientiously enforce the dominion of their laws-the only omnipotence under heaven which they acknowledge.
" As a magistrate, no one was actuated by a more strict and accurate sense of his duties to the public. During the sixteen years he served as a Chancellor, an excellent constitution, with uninterrupted health, enabled him to be constant at his post, and vigilant and unwearied in the discharge of its func- tions. He knew well the rational allowances for the difficulties in which the counsel and clients, with all their diligence and zeal, must at times be embarrassed in their progress. But he avoided in his indulgence the extreme of either lenity or rigor. When business could be done with efficiency, (the mere show of it he detested,) his co-operation and unrelaxing attention would accelerate its march. In a judicial administration approaching a quarter of a century, (but one year less than Sir Matthew Hale's,) his good fortune would have been singular indeed, had he escaped the insinuations and murmur- ings of unjust discontent, of jealousy or of envy, to which that celebrated English Judge was exposed, and which all, whose pre-eminence eclipses inferior but aspiring intellects, must in the general course of events expect to follow their superiority. The sturdy independence of Lord Coke, and the inflexible integrity of Clarendon, could not avert the stroke aimed by the vindictiveness and malignity of enemies. The resentment of subordinate minds, or narrow hearts, can never be extinguished or appeased. It can only be silenced, if not satiated, by the removal or the downfall of the colossus which daily casts a shadow on the diminutiveness of their statues. On such occasions, pusillanimity is propelled by both con- sciousness of wrong and the dread of its object. Such examples verify the remark of the Roman historian who held the key to the human heart, that ill-will towards an indi- vidual is but the necessary consequence of having injured him. A really great man should, however, treat the calumnies
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and scandals of the assailants of his public character and the defamers of the purity of his motives, with the disdainful contempt uttered by Mr. Burke for those who attempted to discredit him with his constituents at Bristol-' The highest flight of such clamorous birds is winged in an inferior region of the atmosphere. We hear them, and we look upon them, just as you do, gentlemen, when you, enjoying your serene air on your lofty rocks, look down upon the gulls that skim the mud off your river, when it is exhausted of its tide.'
"In reference to the more active pursuits of life, and the frequent recurrence of occasions which call forth the strong and sometimes the violent emotions of the mind, as to passing scenes, perhaps Judge Gaillard's predominant passion was a deep, intense and ardent interest in the political fortunes and concerns of his country. From those of high rank in the profession, and on the Bench, in this hemisphere, we almost naturally look for this propension of the mind. All our insti- tutions being reared on the foundation of freedom and equal rights, those who from youth have imbibed in daily study the spirit of our laws and constitutions, appear as it were the vanguard in descrying their transgressions, and detecting aberrations from their injunctions. They habitually become guardians of the rights of their fellow-citizens, sentinels over the movements of those in power, antagonists of encroach- ment, champions of a constitutional and wise administration, and suppressors of factious and indiscriminate opposition. To be the head of a party at any time is, in general, a testi- monial of some talent, or some signal service. But to be a leader in the times which brought him on the political stage, is an incontrovertible proof of intellectual supremacy. The immortal author of the Decline and Fall of the Roman Empire, who as a member of Parliament studied men as in his unbounded scholarship he studied languages and books, records from his personal observation, Mr. Fox's 'argument- ative vehemence, who, in the conduct of a party, approved himself equal to the conduct of an empire.'
" In the political sentiments and acts of our deceased friend, there were always discernable decision and consistency. He
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was a great advocate of the reform of our representation in the Legislature, and of the extension of the elective franchise, which has given our citizens equal privileges and equal parti- cipation in the enactment of the laws which are to govern them. He was a politician, not for the gratification of his own ambition. He never swerved from uniformity to gain office, or for his own aggrandizement. He declined the solici- tation of influential admirers during the late war, (while he resided at Columbia,) to represent them in Congress; as also two appointments (of District Judge) from the General Govern- ment. He was satisfied with the judicial honor which his native State had bestowed on him, though nature seemed to have destined him for a statesman.
" I have spoken chiefly of his public course. But in private life he possessed an alliance of qualities which endeared him to his friends, and of virtues which will render his memory sacred where the awful calamity of his loss is most severely and heavily felt. He was benevolent and kind to the poor, compassionate and charitably indulgent to the infirmities of our nature. Added to all, he was a religious man. In his Christian faith he was sincere and impregnable. I do know that he was a devoted and profound student of divinity. An immense portion of his very generally extensive reading, was of the highest standard theological works. He studied the inspired volumes for himself, but sought with an unabating avidity for the opinions and expositions of learned divines, on the doctrines and mysteries of revealed religion. Though his preference of the faith and institutions of Protestant Episcopalians was decided and unmoved, he was too pious a man and too enlightened a citizen, not to hold in reverence all other persuasions and sects. Neither bigotry nor polemical controversy mingled with his own belief or his attachment to the forms of worship which he preferred. He claimed only for his own conscience and his own church, the inalienable liberties which our glorious and happy constitution has guaranteed to all who worship God in spirit and in truth He thought with the ancient Christians of Constantinople. 'Our bodies are Cæsar's, but our souls belong only to God.'
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"That his devotion in the advancement of religion was fervent, and his piety ardent and practical, 'ever witness for him' two conspicuous monuments. The establishment of the fund for promoting the independence of the Episcopate, and enabling the incumbent to supervise with undivided attention the general interests of the Diocese, was an object of his intense solicitude. The erection of a holy mansion for Episcopal service at the Capital of our State, was projected and achieved by his unremitting exertions. Philanthropy and industry, indeed, marked his steps towards every work in whose completion his foresight augured benefit and pros- perity to the public.
" Within the last three years of his life, it pleased Heaven to visit him with grievous affliction, which for a time deprived the State of his services. His sufferings were great, but he bore them with the serenity and fortitude of philosophy' and with the patient and humble submission of the pious, who look to 'things which must be hereafter.' As soon as his physical frame could gratify the aspirations of his mind, his irrepressible sense of duty rose paramount to every terres- trial consideration. He undertook the remote journeyings requisite in the performance of judicial functions. The last act of his high office, was the trial of a citizen for his life. He thought the accused innocent and injured. His eloquent charge conduced to his acquittal. His robust mind rose above bodily debility, and the blaze of his genius flamed radiant and resplendent like the light of the setting sun. But the infirmity of his system could not long sustain the weight or support the active operations of so powerful an intellect. This was too observable to the friends and gentlemen of the Bar who were around him. With a kindness and tenderness, the unerring indication of magnanimity, they endeavored to arrest even his further thought of business. Their urgent advice could not prevail over his own view of his duty. He proceeded on his journey to the adjoining district, -but nature was exhausted, and his mortal career was drawing to a close.
" Convinced that his end was approaching, he looked to it as
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a termination of his woes. With the undaunted Roman he thought-
' Of all the wonders that I yet have heard, It seems to me most strange that men should fear ; Seeing that death, a necessary end, Will come -- when it will come.'
It had no terrors for him. He had done his earthly duties to the best of his powers. He met it as a welcoming messenger. It was his relief that he had finished his course. It had been his hope, that like his venerable brother, (that amiable and exemplary statesman, so long the popular Presi- dent of the national Senate,) he should terminate his life while in the actual service of his country. That hope was realized, and
'He gave his honors to the world again --
His blessed part to heaven, and slept in peace.'"
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WILLIAM HARPER.
Chancellor Harper, my colleague and friend, was born 17th January, 1790. His father was a minister of the Methodist church, and came to America with Coke, Atterbury and Brazier. With the latter, he came to Charleston in 1791, and preached in Trinity church. He was afterwards in charge of the Methodist church in this city, and lived in the old par- sonage. I have heard the Judge say, that a person riding up to it, with a chesnut limb as a switch, on dismounting, stuck it into the ground. It grew and became a large chesnut tree, which once stood, and perhaps still stands, in the yard. Mr. Harper married, as his second wife, Mrs. McCall, and removed to Enoree, Newberry district, where he died. He had two sons by his first wife, William and Wesley. The latter grad- uated in the second class of the College, and died soon after. William graduated in the third class, (1808.) His graduation was, I presume, deferred from the necessity he was under of teaching to provide for his collegiate course. When he grad- uated, instead of an oration, he recited a poem, which received high commendation from that competent judge, Mr. James L. Petigru, in his oration delivered on the semi-centennial anniversary of the South Carolina College, Dec. 4th, 1855.
Chancellor Harper studied medicine for a time in Charleston, and afterwards read law in the office of Col. John Joel Chap- pell. He was admitted to the Bar in 1813, and was the partner of his legal instructor. After Colonel Chappell was elected to Congress, Mr. Harper had the entire field to himself. He was, however, little known beyond his immediate circle of friends, until his great arguments on the Circuit Court and in the Court of Appeals in Equity, in the case of Butler vs. Haskell, (4 Equity Reports, 651,) gave him favor and success. He tells us in his memoir of Judge DeSaussure: "In the humblest obscurity, I was distinguished by his countenance, encouraged by his kindness, instructed by his advice." Thus aided, and more than all sustained by his own great abilities, he moved steadily on to greater and still greater usefulness.
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In 1813, (December,) he, with John Caldwell, was elected a member of the Board of Trustees of the South Carolina College. John Murphy, afterwards Governor Murphy, was the first graduate who ever sat at that Board. They next received that great honor and distinction. In 1816, Mr. Harper was elected a member of the Legislature from Rich- land. At that period, the separate Court of Appeals was brought forward for the first time for the consideration of the House of Representatives. D. E. Huger, Benj. C. Yancey, Wm. D. Martin, and Harper, were all in favor of it. Chan- cellor Harper made, in support of it, the strongest argument of all. I was opposed to it, and so continued till 1824, when I yielded my opposition under a conviction, which has re- mained ever since unchanged, that it was the best and surest means of administering justice in the last resort.
Mr. Harper had married the daughter of David Coulter, Esq., an excellent wife, who blessed his life, and watched over with unceasing care the decline, which many years after- wards carried him from her, his family, and country to a better world. He removed with Mr. Coulter to Missouri in 1818. He there soon rose to eminent distinction; he was elected Chancellor, and fulfilled the onerous duties of that office until the poverty of his compensation forced him to resign. After the death of his father-in-law, he returned to South Carolina, in 1823; and in December of that year was elected State Reporter. He first filled that office, which was created by merely an appropriation for the same. Previous to it, Messrs. Nott and McCord, and Mr. McCord alone, had published four volumes of Reports, under a contract with Mr. Faust, the State printer. Mr. Harper published a single vol- ume of Law Reports, beginning in November '23, and end- ing with November, 1824. He also published a small volume of Equity Reports, embracing the same period, which he often declared contained only a single case which ought to be re- garded as authority. During the period he filled the office of Reporter, (1824,) he argued with his friend, J.L. Petigru, then Attorney General, the great case of Stoney vs. McNeil. His argument in reply to Colonel Hunt, who was on the other
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side, was regarded a most masterly one by the Bench and Bar. It will be found at pages 166, 7, 8, 9, 170, 1, of his volume of Reports. After this, in 1826, he was appointed by Governor Manning, in the recess of the Legislature, Senator in Congress, pro tem., in the place of John Gaillard, whose lamented death vacated the place which he had long filled, so much to his own honor and the glory of the State. Mr. Harper accepted the appointment, and very satisfactorily dis- charged the duties. He had no purpose of becoming a can- didate for the office when he accepted the appointment. He accordingly did not offer at the succeeding session, when Judge Smith was replaced in the Senate, from which the election of General Robert Y. Hayne, in 1822, had excluded him. In the fall of 1827, I presume, Mr. Harper removed to Charleston, where he practiced successfully. He was re- turned by the Parishes of St. Philips and St. Michaels to the House of Representatives in 1828. On the organization of the House, he was elected Speaker, and continued in the dis- charge of the duties of that great office, until at the same session, upon the resignation of Chancellor Thompson, he was elected as Chancellor in his place. He immediately accepted the office, and entered on its duties, and removed with his family to Columbia.
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