USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 24
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His decrees, for the period of time-two years-in which he was Chancellor, before he was placed on the Appeal Bench, are in Bailey's Equity. They are remarkable for the care, ability and just judgment with which they were prepared and decided. Out of the many deserving notice, I select Blake vs. Jones, (Bailey's Equity, 142;) McDowal vs. McDowal & Black, (ibid. 324;) as examples worthy of his fame.
In 1830, Chancellor Harper and the writer were placed on the Appeal Bench. My commission as a Law Judge was a few days older than his as Chancellor, and it so happened that I re- ceived a few more votes than he did. These gave me posi- sition as second in the Appeal Bench, although he was three years my senior in age. No Judges ever encountered a heavier portion of duty than then fell to our lot. We entered the Court of Appeals the first Monday of December, 1830,
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and with short intervals of rest were employed until the first Monday of July. Our session in the city of Charleston was for ten successive weeks.
It is only necessary that I should point attention to 2d Bailey, from page 1 to 540, and to Bailey's Equity, from page 148 to 510, for the evidences of the labour performed by Johnson, Harper and O'Neall during that time.
In 1832, (November,) he was a member of the convention which nullified the tariff. He met with the same body in March, 1833, to rescind the ordinance of Nullification. It nullified the Force Bill. This measure was adopted on the motion of Judge Harper. In the committee-room, when the motion was made, General McDuffie gave a practical illustra- tion of the inutility of such an ordinance, by simply saying: "I should like to see you nullify the army provisions of that bill." This ordinance also contained the definition of alle- giance, which protracted the rage of party till December, 1835.
In the discharge of a public duty at Washingtou, in con- nection with Professor Dew, Judge Harper was absent the most of March and April, while the Court of Appeals sat in Charleston. In 1835, (December,) the Court of Appeals was abolished, and Judges Johnson and Harper were elected Chancellors. In the discharge of the duties devolving upon him, and in the different systems or alterations which were adopted, he faithfully performed his duties. Under the Act of December, 1842, giving him leave of absence till the first of May, 1843, Chancellor Harper visited Europe. His tour was the source of great pleasure to him, and the narration of his travels was exceedingly interesting.
On the 16th of October, 1847, he closed his useful life. He had long been seriously afflicted, and his death, though long expected, carried mourning all over the State; for he was per- sonally loved by all who knew him. His talents were of the first order. He was heard with delight in deliberate assem- blies; but to be properly appreciated had to be heard in the consultation room. His memory was stored with cases and he had a wonderful facility in applying them. The vexed question arising out of Bell's will was heard before
18
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the ten Judges. Harper delivered the opinion of the majority in the case Henry & Talbird vs. Archer, (appendix to Bailey's Equity, 535,) a reference to it will be a sufficient illustration of his powers.
His memory was, beyond all doubt, the most extraordinary which I have ever witnessed. Poetry, law and literature, were alike at his fingers' ends. This might be accounted for, per- haps, on account of the value of the recollections. But an instance occurred in Charleston beyond anything of which I believed the human mind to be capable. Sitting at the break- fast table with Judge Johnson and himself, I read from the morning's paper a paragraph containing a jumble of absurdi- ties without connection. After breakfast, as we were walking Broad street, in the rear of our President, Judge Johnson, he said to me, I can repeat that which you read at breakfast; and he did, not omitting a word.
Judge Harper, in Court, was as remarkable for patient hear- ing as ever Chief Justice Marshall was. He said to me once : " Though I am satisfied in favor of the party about to speak, yet I had rather hear him; he may, in endeavoring to support his side of the case, show me where he is wrong."
He was one of the kindest of men, and had the least vanity of which human nature is susceptible. He loved his family and friends with unchangeable affection.
As a member of the Episcopal Church, he died in the full fruition of that hope which can exclaim: "O death! where is thy sting? O grave! where is thy victory ?"
He thus finished his course ; and I would say, in conclu- sion, if the testimony of his surviving colleague, in a Court which did more labor than ever was demanded from any other, be of any value, he merited everything which love or friendship could award.
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DAVID JOHNSON.
Chancellor Johnson (as I learn from an autobiography which I append) was born in Louisa County, Virginia, 3d October, 1782. In this particular of his nativity, I was mis- taken in the notice taken of him in my reply to the Bar in Charleston, January, 1855-8 Rich. 12. In 1799, he com- menced the study of law, with the late Judge Nott, then an eminent lawyer, living and practising in Union District. In December, 1803, he was called to the Bar, and entered into partnership with his friend and legal instructor, and settled at Union Court House. In 1810, he was elected to the House of Representatives of this State, and in December, 1817, the Solicitor of the Middle Circuit. On resigning this office, in December, 1815, he was elected an Associate Judge. In December, 1817, to obtain the increase of salary which the Act of that session provided for, he, with most of the other Judges resigned, and was re-elected by a very large vote. In 1825, he was placed upon the Appeal Bench, although he preferred much that his senior and more experienced friend, Chancellor DeSaussure, should have been elected. At the resignation of Judge Colcock, in December, 1830, he became the President of the Court of Appeals, and so continued until the breaking up of that Court in December, 1835 ; he was then elected a Judge of the Court of Equity. Upon the resignation of Chancellor DeSaussure, he became President of the Court of Appeals in Equity and Court of Errors .* In December,
* IN THE HOUSE OF REPRESENTATIVES, DEC. 5TH, 1845. The General Assembly of South Carolina receive the resignation of the Hon. Chancellor David Johnson with deep and unaffected feeling. His long public service-his great ability and learning, added to his high moral dignity and worth, have contributed to advance the prosperity and character of the State; and it is with the highest gratification that the General Assembly express the estimate in which he is held. Be it, therefore,
Resolved, That upon the retirement of the Honorable Chancellor David Johnson from the Judiciary of South Carolina, he carries with him the unfeigned regard, respect and admiration of the whole State, as well for his distinguished public services as for his great ability and learning, and elevated dignity and moral worth.
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1846, he was unanimously elected Governor and Commander- in-Chief. After the expiration of that office, in December,
Resolved, That the General Assembly, impressed with these views and feelings, tender to the Honorable Chancellor their best hope that the enjoyment of the leisure of his age may be commensurate with the success which has uniformly crowned the labors of his life.
Resolved, That the House do agree to the resolution.
Ordered that it be sent to the Senate.
IN THE SENATE, DEC. 11, 1846.
Resolved, That the Senate do concur in the resolutions.
Ordered that the resolutions be returned to the House.
IN THE HOUSE OF REPRESENTATIVES, DEC, 19th, 1848.
The Special Joint Committee, to whoin were referred the accounts of the Executive, beg leave to report that they have made progress in the performance of their duty regarding the civil and military contingent fund proper.
As far as the accounts have been presented, vouchers for the same have been duly presented, examined, and found correct.
The venerable Governor having suffered for months past under great bodily affliction, has recently been confined by serious illness. The Committee have not, therefore, had the benefit of a personal conference with him.
Under these circumstances, they deem it due to truth and justice, to allow the Governor further time to arrange and exhibit his accounts. Your Committee, therefore, recommend the adoption of the following resolutions :
Resolved, That time until the next session of the Legislature be extended to the late Governor, to examine and receive his accounts.
Resolved, That the House do agree to the Report.
Ordered that it be sent to the Senate for concurrence.
By order. T. W. GLOVER, C. H. R.
IN THE SENATE, DEC. 19TH, 1848.
Resolved, That the Senate do concur in the Report.
Ordered that it be returned to the House of Representatives. By order. WM. E. MARTIN, C. S.
Between the time of his going to the Bar and his election to the Legislature (the precise time I do not recollect). he was appointed by the Legislature, and without his knowledge, Commissioner in Equity and Ordinary for Marion District, both offices involving the exercise of important judicial powers ; but finding that they interfered with his professional pursuits, he resigned them both at the end of two years.
On the expiration of his office as Governor, resolutions, highly complimentary of the manner in which he had discharged its duties, were introduced and unanimously adopted in the House of Representatives. The distinguished member of the Bar (then, and for many years before, a member of the House,) in advocating them, remarked, amongst other things, that they were well merited ; " for," said he, "we have tried him in all sorts of harness : In the offices of Solicitor, Judge of the Law Courts, Chancellor, Judge of the Appeal Court, President of the Court of Errors, and in the Executive Chair, and he works well every where."
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1848, he lived in retirement, and closed his excellent life on the 7th January, 1855, at his residence, Limestone Springs, Spartanburg District. I have thus sketched rapidly, and without pause, the principal incidents in his life; and it looks like one continued testimony of love and affection borne to him by the people of the State for thirty-eight years, and it is beyond all doubt true, that he possessed the respect, confidence and love of the people, in an eminent degree. Yet, like many of his friends, a cloud of unpopularity was now and then wafted over the sunny skies of his days. Chancellor Johnson married early in life Barbara Herndon, of Newberry district, and much of his success in life he attributed to her energy of character.
Judge Johnson's description of his own powers is better than any which I could give. He had, he says, but " little fancy or poetry in his composition, nor did he cultivate the graces. As an advocate he had no pretensions to eloquence, and rarely attempted any thing like declamation. His success at the Bar and his reputation as a Judge were based on a well-founded knowledge of the principles of law, and a sound discretionary judgment in their application, with the honest purpose of attaining the truth."
True, most true: I believe no Judge, not even Sir Matthew Hale, ever followed " honesty and truth," more implicitly than did David Johnson.
In the herculean labors of the Appeal Bench, from 1824 to 1835, he did his part fully. At the six week's term of the Court of Appeals in Charleston, January, 1833, where he and I alone held the Court, he delivered forty-one opinions. That may serve as a specimen of the labor which he encountered and performed.
He says, of his style of writing, that it was generally "plain and perspicuous, having no affectation of ornament, and unobscured by metaphysical or subtle distinctions." . This is also true, as every one will say, who will read his opinions, scattered through the Law and Equity Reports, from 1st Constitutional Reports by Mill to 2d Strobhart's Equity. I will say more, they will find that they are also characterized
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by clearness of perception, irresistible argument, and an unsurpassed style of judicial eloquence.
I select from memory-Lawrence vs. Beaubine, 2 Bail. 623; The State vs. Hunt, 2 Hill, 226; Means vs. Brickle, 2 Hill, 657 ; The State vs. the Bank of South Carolina, 1 Speer Appendix, 537; and if the reader has not a more perverted judgment than I believe any lawyer of the present day has, I should be willing to trust to his opinion as to the merit of my deceased friend and brother, as a Judge.
His autobiography, written when he was 70, tells us "that he was six feet three inches in height, and that in the meridian of life he had a well formed, vigorous, muscular frame. In his earlier life, he frequently entered into the chase, and indulged in athletic exercises with much zest. In his old age, he became more corpulent." "The frosts of seventy winters," he says, " has silvered over locks that were black, and dimmed the once dark brown eye, but the heart is still young, notwith- standing many bodily afflictions."
This is what most of you, my readers, will recognize as a description of the good, great, unpretending, child-like man, who was your Judge and Governor-your friend and my friend, and the friend of all who deserved friendship. To his memory and over his remains stands, in the grave-yard at Union, a monument bearing his likeness and memorial of his useful life. It will stand for ages-but at last it will decay and perish, and still, like Coke and Hale, the name of David Johnson will live in the records of our jurisprudence ; and if fame can so be, I would say, " esto perpetua."
AUTOBIOGRAPHY OF DAVID JOHNSON.
David Johnson, Ex-Governor of South Carolina, was born in Louisa county, Virginia, on the 3d of October, 1782 His father, the late Rev. Christopher Johnson, and his mother Elizabeth, the daughter of Capt. James Dabney, were natives of the same county. In 1789, with their family, they emi- grated to South Carolina and settled on Broad river, in Ches- ter district. The son having gone through the old field school-drill, was in 1796 placed at a grammar school in York
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district, the Rev. Dr. Joseph Alexander, of the Presbyterian church, being at its head. This school was founded by Dr. Alexander a few years after the Revolutionary war.
At the time spoken of, it was one of the only two grammar schools in all of the upper portion of the State, and the only Alma Mater of many of the distinguished young men of the day. The course was mainly confined to the Latin and Greek languages, geography and moral philosophy.
Having passed through this course, Mr. Johnson received instructions in mathematics and practical surveying from a private tutor; and here, on account of the distance and ex- pense of the superior seats of learning, his early education closed.
In 1799, he commenced the study of Law in the office of the late Judge Abraham Nott, then a practising attorney dis- tinguished for his professional learning and great moral ex- cellence. In December, 1803, young Johnson having just attained the twenty-first year of his age, was called to the Bar ; and invited by his friend and preceptor, entered into part- nership with him in the practice of the Law, and immediately after (December, 1803,) settled at Union Court House. This partnership continued about four years, and was dissolved by consent, on Judge Nott's removal to Columbia.
The business which was by this means left in the hands of Mr. Johnson was considerable, and laid the foundation of his future success in life.
In 1810, after only a few week's canvass, conducted in good temper between personal friends, (and by a very flattering vote,) he was elected to the House of Representatives of the State Legislature. At the end of the term for which he was chosen, (December, 1811,) he was elected by the Legislature Solicitor of the Law Circuit in which he resided. On resign- ing this office in December, 1815, he was elected Judge of the Courts of Common Pleas and Sessions. The State Constitu- tion provides that the salary of a Judge shall not be increased or diminished during his continuance in office ; and at the time of Mr. Johnson's appointment, it was limited to £600, (about $2,571,) but in December, 1817, the Legislature in-
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creased it to $3,500. This could only apply to those subse- quently elected, and Johnson and most of the other Judges resigned their places and became candidates for a new elec- tion. The Bar feeling that the field was fairly open for competition, several of the most distinguished of them became candidates; but all the old Judges, Johnson amongst them, were re-elected by handsome majorities.
In 1824, the Legislature provided by law for the organiza- tion of a separate Court of Appeals, (to consist of three Judges having final appellate jurisdiction in all cases,) from both the Law and Equity Circuits. The judiciary then consisted of four Chancellors and six Law Judges, and it was obvious that the Legislature looked to these ranks for supplying Judges to the new Court. The impression seemed to be that this Court would be best filled by taking two Judges from the Law Court and one Chancellor.
Mr. Johnson, the youngest man on either Bench, entered into this view. He would willingly (as he assured his friends,) have declined all pretensions that he might have had in favor of the late venerable Chancellor DeSaussure, whose industry, learning and great moral worth, had placed him at the head of the Chancery Bench, but his friends advised that no one, and no member of the Bench especially, ought to oppose any obstruction to such selection as the Legislature might think proper to make-and he acquiesced.
There were then, as there have been frequently in South Carolina and other States, strong prejudices against the Chan- cery system.
These, it is believed, arise out of something inherent in the system itself, but a portion of them inevitably attach to those who administer it. The consequence in this case was, that Judge Nott, before spoken of, the late Judges Colcock and Johnson, all of the Law Bench, were elected. Judge Nott died in 1830, and John Belton O'Neall, now at the head of the Law Court of Appeals, was elected in his place. Judge Colcock resigned in 1832, and the late Chancellor Harper succeeded him.
In 1832, a Convention of the State passed an ordinance
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which nullified certain Acts of Congress, providing for the collection of import duties ; and the Legislature, at their session in the December following, passed an Act to carry the ordi- nance into effect.
By this all officers, civil and military, were required to take a new oath of office in certain circumstances, and in case of refusal or neglect, their offices were declared vacant. Two cases, arising out of the refusal of military officers to take the oath, came before the Court of Appeals, which then consisted of Johnson, the presiding Judge, O'Neall and Harper. The Act was adjudged unconstitutional and void. Johnson and O'Neall concurring, Harper dissenting.
Upon the announcement of this judgment, public denun- ciations of the majority of the Court broke forth like a tornado from the press, from the public assembly and from private coteries, until the Judges were placed under a kind of popular ban. This, it is believed, was the leading cause which led to the abolition of the separate Court of Appeals in 1835.
On the abolition of that Court, it became necessary to re- organize both the Law and Equity Courts, and provide for a new Court of Appeals. At this time a better feeling pre- vailed, one at least more consonant with the liberal, high- minded spirit of South Carolina. Johnson and Harper were, by a vote of the Legislature, transferred to the Equity Bench, and O'Neall to the Law Bench; and the Chancellors and Law Judges assembled, were to constitute a Court of Appeals from both the Law and Equity Courts. The Court of Appeals subsequently underwent other modifications ; but it is suffi- cient for the occasion to remark that Johnson, as the senior Judge, presided in the department to which he belonged, whether in Law or Equity, as long as he remained on the Bench.
In December, 1847, he resigned his office as Judge, and was elected Governor without opposition.
The manner in which he discharged the duties of that office has been very generally approved. He was active and zealous in fitting out the volunteers for the Mexican war, and assumed the responsibility of defraying the expenses out of
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the public treasury, which was subsequently approved by the Legislature. On the subject of the pardoning power he entertained some peculiar notions, which were carried out with good effect. Although a lawyer, he would not allow himself to judge of the guilt or innocence of one convicted of crime, nor did he listen to representations in the form of petitions, but regarded the verdict of the Jury and the judg- ment of the Court as conclusive of the fact and the law ; nor did he ever allow himself to question the propriety of the sentence of the Court, where, as is very common in misde- meanors, it is discretionary. He departed from these rules in one instance only, and that under peculiar circumstances. The recommendation of the Jury, or the advice of the pre- siding Judge, were promptly responded to, and a pardon fol- lowed of course. There was yet no want of sympathy with the frailties of humanity. A distinguished lawyer whose client had been convicted of murder, and who came to the Governor's office armed with a formidable array of petitions, was met by a friend on his return, who enquired if he had succeeded in obtaining a pardon. His answer was “No- but I have seen a Governor who can say no to an application for a pardon with a tear in his eye."
The great controversy between Republicanism and Feder- alism had passed off before Governor Johnson came into pub- lic life ; and from that time until the doctrine of Nullification was broached, there were indeed no political parties in the State. The doctrines of the Republican school, in which he cordially concurred, were almost universally received as or- thodox. Those of Nullification, it is well known, gave rise in South Carolina to one of the most bitter and intolerant party strifes that ever agitated any State. He was then the pre- siding Judge of the Court of Appeals ; and although prudence might have suggested the propriety of his standing aloof from it, the belief that a great revolution was impending, and that his duties as a citizen were not wholly merged in those of a Judge, he entered the ranks of the Union party and battled against the new doctrine. The results are known, Nullifica- tion triumphed, and he shared fully in the odium which
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attached to his party. In the violence of party strife he was necessarily separated from many of his most loved and valued personal friends ; but on a reconciliation between the parties in which he was an active agent, the most bitter and uncom- promising were the first to do him justice.
In his farewell message to the Legislature in December, 1848, he avowed his intention to go into retirement to spend the remainder of the days allotted him in seeking the conso- lations of religion, and, as far as he was able, to promote the welfare and improve the condition of his kind in the circle into which his lot might be cast. But he had not then fore- seen that the State which had fostered him with a mutual care, and which he so much loved and honored, was so soon to be involved in another party strife. Secession, in 1850, had raised its head, and was stalking over the land with giant strides. Conceding the right of Secession, but knowing, as every one else did, that South Carolina would not be sustained by any sister State, and believing that an Act of Secession on her part alone would be ruinous to her interest, and probably alienate the other Southern States from her, he opposed him- self openly and fearlessly to it in several speeches made to popular assemblies. It is scarcely necessary to add that an overwhelming majority of the State have come to this con- clusion.
Governor Johnson had but little fancy or poetry in his composition, nor had he cultivated the graces. As an advo- cate, therefore, he had no pretensions to eloquence, and rarely attempted any thing like declamation. His success at the Bar, and his reputation as a Judge, were based on a well founded knowledge of the general principles of law, and a sound discretionary judgment in their application with the honest purpose of attaining the truth. His style of writing is generally plain and perspicuous, having no affectation of ornament, and unobserved by metaphysical or subtle dis- tinctions.
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