USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 3
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Of all those matters I then spake largely and fully; and shall not now trouble you with any farther repetition of them.
But I shall now proceed, in the third place, to shew you that there have been particular Courts and Judges appointed, to whose jurisdiction maritime causes do belong; and that in matters both civil and criminal.
And then I shall in particular shew you the constitution and jurisdiction of this Court of Admiralty Sessions.
And shall mention the crimes cognizable therein ; and shall particularly enlarge upon the crime of piracy, that will now be brought before you.
Time will not permit me to speak of the several sorts of Magistrates, to whose jurisdiction maritime affairs do belong, in the transmarine or foreign parts of the world : Therefore I shall confine myself, under this head, only to speak of the laws of England ; by which the general jurisdiction in ma- rine affairs, is by the king as supreme, as well by sea as land, committed to the Lord High Admiral; who, besides his power over the navy, and the government over the seamen, hath a jurisdiction civil and criminal in marine affairs, which are decided by his Maritime Judges in the Court of Admi- ralty, the chief of which is known by the style of Supremæ Curiæ Admiralitatis Angliæ Judex ; within whose cognizance, in right of the jurisdiction of the Admiralty by the sea laws, and the laws and customs of the Admiralty of England, are comprised all matters properly maritime, and pertaining to navigation.
As to the antiquity of the office of Lord Admiral, and the Court of the Admiralty, it is sufficient to remark, that the thing itself that signified that office, now known to us by the style of Lord High Admiral, and the jurisdiction thereof, hath been in the kingdom of England time out of mind.
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The learned antiquary Sir Henry Spelman, in his Glossa- rium, and out of him Dr. Godolphin gives us the catalogues of the Admirals from the reign of King Henry III. Not but that the office of Admiral is far more ancient ; for the same learned antiquary saith, that he hath not in that catalogue inserted Marthusius, that Princeps Nautarum, in King Edgar's time; nor those Tetrarchs of his navy ; nor of those other Commanders-in-Chief in sea affairs, constituted by his suc- cessors, Kings of England ; but of such only as in the ordi- nary way have been dignified with the said office.
The Lord Coke in the first part of his Institutes, in honor of the Admiralty of England, saith, " That the jurisdiction of the Lord Admiral is very ancient, and long before the reign of Edward III. as some have supposed, as may appear by the laws of Oleron, (so called, for that they were made by King Richard I, when he was there,) that there had been then an Admiral time out of mind, and by many other ancient re- cords in the reigns of Henry III, Edward I, and Edward II, is most manifest."
But the learned Selden in his notes upon Fortescue, tells us, that in an ancient manuscript De l'Office de l'Admiralty, translated into Latin by one Tho. Rowghton, calling it De Officio Admiralitatis, there are constitutions often mentioned touching the Admiralty of Henry I, Richard I, King John and Edward I, which shews the great antiquity of that Court.
And as to the jurisdiction of the Court of Admiralty, not to enter upon the disputes between the civilians and the com- mon lawyers concerning the same, I shall now only observe to you that it is allowed even by those statutes that were made purposely to restrain the jurisdiction of the Court of Admi- ralty, that that Court ought to have cognizance of all things done upon the main seas, or coasts of the sea. And of the death of a man, and of maihem done in great ships, being and hovering in the main stream of great rivers, only beneath the bridge of the same rivers nigh the sea.
And by the preamble to the Statute of the 28 H. VIII. it is declared, that traitors, pirates, thieves, robbers, murderers,
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and confederates upon the sea, were tried before the Admiral, or his Lieutenant or Commissary, after the course of the civil law.
But, as appears further by the said preamble, that it was found inconvenient to try those offenders before the Admiral ;
Therefore by the said statute this Court of Admiralty Ses- sions was appointed, whereby such offenders were to be tried according to the course of the common law, as if their offences were committed on land.
And now I shall proceed to speak of the crimes cognizable in this Court. And particularly I shall enlarge upon the crime of piracy that will come before you.
The crimes cognizable in this Court, and within the juris- diction of the same, by the express words of the statute, are all treasons, felonies, robberies, murders and confederacies, committed in or upon the sea, or in any other haven, river, creek or place, where the Admiral or Admirals have or pre- tend to have power, authority, or jurisdiction.
There being only one of those crimes, viz: robbery or piracy, that will come before you, I shall omit the rest, and only speak to that: wherein I shall shew you the nature of the offence and the heinousness thereof.
Now, as this is an offence that is destructive of all trade and commerce between nation and nation ; so it is the inter- est of all Sovereign Princes to punish and suppress the same.
And the King of England hath not only an Empire and Sovereignty over the British sea, but also an undoubted juris- diction and power, in concurrency with other Princes and States, for the punishment of all piracies and robberies at sea, in the most remote parts of the world.
Now as to the nature of the offence : Piracy is a robbery committed upon the sea, and a pirate is a sea thief.
Indeed, the word Pirata, as it is derived from Tagav, transire, à transeundo mare, was anciently taken in a good and honour- able sense, and signified a Maritime Knight, and an Admiral or Commander at sea, as appears by the several testimonies
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and records cited to that purpose by that learned antiquary Sir Henry Spelman in his Glossarium. And out of him the same sense of the word is remarked by Dr. Cowel, in his In- terpreter; and by Blount in his Law Dictionary. But after- wards the word was taken in an ill sense, and signified a sea-rover or robber; either from the Greek word Taïga, deceptio, dolus, deceipt; or from the word «sgav, transire, of their wan- dering up and down, and resting in no place, but coasting hither and thither to do mischief. And from this sense, οί κατά θάλασσαν κακούργοί, sea-malfactors were called πειραταϊ, pi- rates.
Therefore a Pirate is thus defined by my Lord Coke: This word pirate, saith he, in Latin Pirata, is derived from the Greek word ragårns, which again is fetched from ragav, a tran- seundo mare, of roving upon the sea ; and therefore in English a pirate is called a rover and robber upon the sea.
Thus the nature of the offence is sufficiently set forth in the definition of it.
As to the heinousness or wickedness of the offence, it needs no aggravation, it being evident to the reason of all men. Therefore a pirate is called Hostis Humani Generis, with whom neither faith nor oath is to be kept. And in our law they are termed brutes and beasts of prey ; and that it is lawful for any one that takes them, if they cannot with safety to themselves bring them under some government to be tried, to put them to death.
And by the civil law any one may take from them their ships er vessels ; so that excellent civilian, Dr. Zouch, in his book De Jure Nautico, saith, in detestation of piracy, besides other punishments, it is enacted, that it may be lawful for any one to take their ships.
And yet by the same civil laws, goods taken by piracy gain not any property against the owners. Thus in the Roman Digests or Pandects of Justinian, it is said, persons taken by pirates or thieves, are nevertheless to be esteemed as free.
And then it follows : He that is taken by thieves, is not therefore a servant of the thieves, neither is Postliminy neces- sary for him.
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And the learned Grotius, in his book De Jure Belli ac Pacis, saith, Those things which pirates and thieves have taken from us, have no need of postliminy, because the law of nations never granted to them a power to change the right of property ; therefore things taken by them, wheresoever they are fouud, may be claimed.
And agreeable to the civil law are the laws of England, which will not allow that a taking goods by piracy doth divest the owners of their property, though sold at land, unless sold in market overt.
Before the statute of the 25 E. III, piracy was holden to be petit treason, and the offence said to be done contra ligeantiæ suæ debitum, for which the offenders were to be drawn and hanged; but since that statute the offenders received judg- ment as felons.
And by the said statute of 28 H. VIII, the offenders are ousted of the clergy.
But still it remains a felony by the civil law; and therefore though the aforesaid statute of 28 H. VIII, gives a trial by the course of the common law, yet it alters not the nature of the offence; and the indictment must mention the same to be done super altum mare, upon the high sea, and must have both the words felonice and piraticè ; and therefore a pardon of all felonies doth not extend to this offence, but the same ought to be specially named.
Thus having explained to you the nature of the offence and the wickedness thereof, as being destructive of trade and com- merce, I suppose I need not use any arguments to you, to persuade you to a faithful discharge of your duty, in the bringing such offenders to punishment.
And indeed, the inhabitants of this province have of late, to their great cost and damages, felt the evil of piracy, and the mischiefs and insults done by pirates ; when lately an infa- mous pirate had so much assurance as to lie at our bar, in sight of our town, and to seize and rifle several of our ships bound inward and outward.
And then had the confidence to send in his insolent de- mands for what he wanted, with threats of murdering our
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people he had on board him, if they were not complied with. Which was putting the province under contribution.
And the success he had in going off from our coast with im- punity, encouraged another of those beasts of prey to come upon our coast and take our vessels.
And this very company, which will now be charged before you with the crime of piracy, their ringleader, with many, if not all of the company, were belonging to that crew, which first insulted us. And presuming upon their former success and impunity, had the confidence to lie upon our coast to fit their vessel, and to go on shore at their will and pleasure ; designing, as we had just reason to suppose, that when all things were fitted for their mischievous designs, to come again to cruize before our bar, and take our vessels.
And therefore upon receiving these accounts, it was high time for the government to fit out a force against the pirates ; and to endeavor to suppress them, in order to support our trade and commerce, which otherwise must have been inevi- tably ruined.
And being under such a necessity of having forces raised for that purpose, we cannot sufficiently commend and honor the zeal and bravery of those persons who so willingly and readily undertook that expedition against the pirates ; and so gallantly acted their parts when they engaged them.
But it will not be fit for me to say any more upon that sub- ject, by reason of the near relation I stand in to the Comman- der-in-Chief in that Expedition; and who is known to you all to have so well acted his part therein, that as it is not proper, so he needs not my commendations.
But then I must not omit mentioning to you that in this attack made upon those enemies of mankind, many of our people lost their lives in the discharge of their duty to their king and country, and who fell by the hands of those inhu- man and murdering criminals which will now be brought before you. And the blood of those murdered persons will cry for vengeance and justice against these offenders.
And therefore I hope the consideration of doing justice to those persons who were killed in the service of their country,
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will make you to use your diligence in bringing the criminals to punishment, without which the blood of those persons will in a great measure be required at our hands.
I need not expatiate to you upon the heinousness of the sin of murder; a crime which carries its own natural horror and guilt along with it; so that it is altogether needless for me to aggravate it; and the manifest injustice and evil of which is evident to all persons, even by the light of nature : So that there is no nation so barbarous, but by their universal practice do consent to the equity and justice of that ancient law of God, that, whoso sheddeth man's blood, by man shall his blood be shed, Gen. ix. 6.
Indeed, I freely grant, that the greatness of the crimes the persons are charged with, should make you the more careful in your enquiry, and to avoid any error or mistake on both extremes ; that as you would not condemn the innocent, so likewise that you do not acquit the guilty, always remember- ing what the wise man saith, that he that justifieth the wicked, as well as he that condemneth the just, even both are an abomination to the Lord. Prov. xvii. 15. See chap. xxiv. verse 24.
I have only this to add, that you being a Grand Jury, your business is not to try the prisoners, but to consider whether or no, by the evidence, there is that probable proof of the persons being guilty of the fact charged upon them, as that they ought to be put upon their trial for the same.
An indictment found by you being virtually but a legal ac- cusation, there being another jury to pass upon them.
But on the other side, though your finding the bill of in- dictment is not conclusive to the prisoners, but that they will have a trial, and be heard in their own defence before another jury, which properly are said to try the prisoners, and pass between the king and them upon their lives or deaths; nev- ertheless, you ought to be cautious and diligent in your en- quiry, and not rashly and carelessly find a bill of indictment against persons, and put them upon the hazard of a trial for a capital crime.
But as to those indictments that will now be brought before
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you, I am very well assured the proofs will be so clear and full, that you'll have no reason to doubt the truth of the facts charged therein ; and then I shall not question your faithful discharge of that great duty and trust the law hath reposed in you, in bringing such criminals to justice.
Thus having sufficiently explained to you what is likely to come before you, I shall now dismiss you to your business.
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WILLIAM HENRY DRAYTON.
William Henry Drayton is a name not to be forgotten while liberty is appreciated. I turn to it with the delight with which the awakened sleeper witnesses the Aurora of a bright day.
He was born in South Carolina, at Drayton Hall, on Ashley River, in September, 1742; in 1753, at the early age of eleven years, he was sent, under the care of the late Chief Justice Charles Pinckney, in company with his sons, Charles Cotes- worth and Thomas Pinckney, to England. Under the direc- tion of Mr. Pinckney, he pursued his education at Westmin- ster school, in London, until the fall of 1761, when he was re- moved to the University of Oxford; he matriculated in Baliol College on the 10th of October in the same year, where he remained for near three years. The call of his father brought him home. His return did not induce him to abandon his studies; he pursued a course of reading which made him acquainted with ancient and modern histories, the laws of nations, and the rights of his own country. His father's large estate saved him from the necessity of pursuing any business as a means of living, but the activity of his mind was such that he could not be satisfied without employment. He, therefore, became a lawyer and a politician.
In 1764, he married Miss Golightly, a young lady of inde- pendent estate. By her, he had two children, a daughter and a son, John, afterwards Governor Drayton.
The dispute between the colonies and the mother country was in its embryo state; yet much was done and said, on both sides, calculated to arouse the attention of a young and ardent man. He and Wragg, in 1769, were opposed to the associations in the colonies, and wrote against them; this brought out that indomitable friend of liberty, Christopher Gadsden, and John Mckenzie, on the other side. He went to England, and republished there the pieces which he and Wragg had written. He was introduced at court, and for a
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time basked in the smiles of royalty. On the 27th of Feb- ruary, 1771, he received from the king, George III., an appointment of privy counsellor for the province of South Carolina. On his return home, he took his seat as a member of the council on the 3d of April, 1772. In the discharge of the duties of his office, he was often in opposition to the crown officers and judges, who were also privy counsellors; and by his daily opposition, he caused laws to be passed in favor of the colony, which would otherwise have been nega- tive. Hence he was viewed with jealousy, but his standing and abilities were such, that his uncle, Lieut. Gov. Bull, was fully justified in appointing Mr. Drayton, on the 25th of Jau- uary, 1774, an assistant judge in the place of Judge Murray, deceased.
His independent and zealous discharge of duty created ill- will on the part of the Chief Justice, Thomas Knox Gordon, and such of the assistant judges as had been sent over from Great Britain. He wrote an article, signed "Trueman," ad- dressed to the deputies of North America assembled in the High Court of Congress at Philadelphia. "In this, he stated the grievances of America, and drew up a bill of American rights." It brought upon him an attack from the Chief Justice, and one of the assistant judges in the council, and in conse- quence of it, he was suspended by the lieutenant governor on the 9th December, 1774. He thus lost his place at the council board, and as an assistant judge. But he lost none of his influence in the State. Indeed, he became more and more popular. In the progress of events, and as the Revolution progressed, the Council of Safety was originated in South Carolina; in the year 1775, he was elected one of its mem- bers, and continued as such as long as the council existed. He was the chairman of the committee of five members. He was elected a member of the Provincial Congress of South Carolina, which met in January, '75; in the course of that year he became its president. In July, '75, the Council of Safety appointed Chief Justice Drayton its president, and William Tenent, commissioners to go into the interior parts of the colony, and explain to the people the nature of the
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dispute between Great Britain and the American colonies. This duty was performed in August and September.
In March, '76, after the formation of a temporary constitu- tion, Mr. Drayton was elected Chief Justice and one of the privy council. The government being organized, the courts consisting of the Chief Justice, John Mathews, Thomas Bee, and Henry Pendleton, associate judges, were opened, and Chief Justice Drayton on the 23d of April, '76, delivered a charge in which he declared that the King had abdicated the Govern- ment, which the people had rightfully reestablished, and that he had no authority over the people of South Carolina, and that they owed no obedience to him .* On the 15th of October, 1776, Chief Justice Drayton, attended by the associate judges, charged the grand jury of Charleston as to the rise of the American empire and the duty the grand jury ought to pursue for aiding its establishment. In October, '77, he delivered, in the presence of the associate judges, another charge to the grand jury, as to the situation of the public affairs of the United States, and particularly as to the situation of South Carolina. His conclusion was in the following words: "In every station that I have had the honor to fill, I have counselled the most decisive measures; nor have I been sparing of my personal assistance in their execution. The public service requires an unwearied application, unabating vigor, and readiness to make the greatest sacrifices. I trust that we shall act as men; and that posterity will have no just cause to reproach our conduct."
This was intended to strike at the inertness which had fol- lowed the glorious repulse of the British at Fort Moultrie in June, '76. These various charges of the noble Chief Justice had a great and powerful effect in South Carolina and in the United States; they were also read to great purpose in Great Britain.
On the 20th December, 1777, John Rutledge, the President of South Carolina, as he was then termed, by virtue of an Act passed in 1776, as he was about being absent from
* Quere. Is not that the true notion ? Are not obedience and allegiance to the Constitution convertible terms ?
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Charleston for a time, and the Vice-President was also absent invested the Chief Justice with the powers of President, dur- ing his absence, and that of the Vice-President.
Early in '78, Chief Justice Drayton was elected a delegate to the Continental Congress, and in March he repaired to Yorktown, Pennsylvania, where that body was in session.
He took an active part against the propositions of concilia- tion presented by Lord and General Howe, and Congress, by their President, Henry Laurens, in the absence of any know- ledge of a treaty of alliance between France and America, gave a decided negative to them.
Congress returned to Philadelphia and there resumed their sessions. Either before or after their return, he was sent to visit Gen. Washington at Valley Forge, and on the 12th of July, with Mr. Hancock and Mr. Duer, as a committee of Congress, waited on the French Minister on board the French frigate which was anchored off Chester, in the Delaware river, were received with national honors, and returned in company with the French Minister to the headquarters of Gen. Arnold, in Philadelphia, where apartments had been provided for him.
He (Chief Justice Drayton) continued in constant discharge of his arduous duties as a delegate to Congress, while his hours at home were devoted to writing. His sedentary life caused an illness, which in September, '79, ended his useful and glorious life. His son says, " his manners were gentlemanly and elegant-his virtues many-his faults few."
No man ever lived who was more devoted to his country ; no one ever presented greater talents and information to her service, or made for her greater sacrifices. He was, indeed, among the first of those great men who were in the Revolu- tionary Congress.
JOHN RUTLEDGE.
John Rutledge " clarum et venerabile nomen." How can one, who never saw nor heard the Carolina Orator, do justice to his memory ! Still it must be attempted ; for poor would be the account of the Bench, and Bar of South Carolina, if her last and greatest Chief Justice did not occupy a prominent chapter.
John Rutledge was the son of an Irish gentleman, of the same name, a Physician, who married Miss Hexe, and died in about ten years after the birth, in 1739, of their first son, John, leaving his young widow with the care of seven infant children. Never did a mother more faithfully train up her children to excellence. Three of her sons, John, Hugh, and Edward, are enrolled in the imperishable records of fame.
John, as was then usual, completed his education in Eng- land, entered as a student of the Temple in London, and in due time became a barrister at law. In his 22d year, (1761,) he returned to Charleston, and began the practice of the law, in which he distanced all competitors. His debut, like that of Patrick Henry, in Virginia, was irresistible; it carried away Judge and Jury, and gave him a reputation for eloquence, which was not in his lifetime surpassed.
He was a member of the first Congress, which assembled in New York, in 1765. He was then only twenty-six years of age, yet, even then, he was the leader of that august body- and thenceforward he was among the boldest, and ablest of his country's friends. There are no means of speaking of Mr. Rutledge's course at the Bar; the business of the whole State, then done at Charleston, hardly equalled the business of one of our District Courts at this day. I see it is stated in a memoir of Chief Justice Rutledge, that the largest number of judgments ever entered up in Charleston, in any one year be- fore the Revolution, was three hundred and ninety. How meagre, that will appear, when compared with the result of a single regular and an extra term in Nov., 1842, and January,
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