Biographical sketches of the bench and bar of South Carolina, vol. I, Part 4

Author: O'Neall, John Belton, 1793-1863
Publication date: 1859
Publisher: Charleston, S.C. : S.G. Courtenay & Co.
Number of Pages: 484


USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 4


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1843, at Winnsboro', where nearly twelve hundred judgments were given. It is true, in 1769, Charleston ceased to be the only forum of business. Some new District Courts were then created, and no doubt Mr. Rutledge's pre-eminent abilities and acquirements had full employment in them; yet, uo doubt, cases were few and far between, worthy of his unri- valled power. In 1764, he was Attorney General, pro tem.


He was a member of that first convention of the people of South Carolina, called the Congress of 1774. This was the beginning of organized resistance to the arbitrary acts of the mother country. Rutledge had borne his part in arousing the State, and well did he follow up the impressions already made in the Provincial Congress of 1774. He, with his brother Ed- ward, Henry Middleton, Christopher Gadsden, and Thomas Lynch, were appointed delegates to the general Congress, in Philadelphia. He defeated the attempt to limit their powers; and when one in favor of such limitation asked, " what shall be done with the delegates if they betray their constituents, and pledge the colony to a course inconsistent with the public interest?" He answered with a flashing eye, " Hang them, hang them!" Before such patriotic enthusiasm opposition shrank into insignificance.


He and his colleagues untrammelled met the general Con- gress, consisting of such men as George Washington, John Adams, Samuel Chase, Samuel Adams, Roger Sherman, Rich- ard Henry Lee, and Patrick Henry, and in that body, after Patrick Henry and himself were heard, Samuel Chase said to his colleague, " let us go home, there can be no use for such men as us." After his return Patrick Henry on being asked, who was the greatest man in that body said, if you speak of eloquence "John Rutledge, of South Carolina, is the greatest Orator." This was great praise, coming from the lips of Vir- ginia's greatest Orator, and himself, perhaps, the most eloquent man of his day.


Rutledge and his colleagues went for the boldest and strongest measures recommended by the Congress of 1774. They were fully sustained, on their return home, by the Pro- vincial Congress of South Carolina, and were re-appointed


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delegates. In the Congress of 1775, Rutledge fully concurred with John Adams in holding, " that the people were the source and original of all power," and that therefore the people of every colony ought to set up governments of their own; and in New Hampshire and South Carolina it was recommended that this should be done immediately. On the 26th of March, 1776, this advice was carried into effect in South Carolina, by adopting the Constitution of that year. Rutledge was the Chairman of the Committee who prepared it, and he was elected the President of the new Government without opposi- tion. In an extemporaneous address, in which this appropriate sentence is found, "as I have always thought every man's best services due to his country, no fear of slander, of difficulty, or danger, shall deter me from yielding mine," he accepted the office. Let us pause for a moment, and consider the sublime spectacle of this young patriot, in the 37th year of his life, surrounded by the representatives of his native State, in defiance of the immensely greater power of the mother country, placing his hand on the Holy Evangelists of God, and swearing, that as President, he would sustain the new Government and "cause law, and justice, in mercy, to be executed, and to the utmost of his power maintain and defend the laws of God, the Protestant religion, and the liberties of America." Thus did the heroic Rutledge, followed by his native State, place himself and her in the van of lawful opposition to Great Britain. They had counted the cost; they had put their hands to the plough ; and never did they look back, until liberty triumphed and freedom was constitutionally established.


Hitherto South Carolina had been free from invasion, but now it was determined by Sir Henry Clinton and Commo- dore Parker to bring the war home to her. On the 28th of June, '76, was fought the great battle of Fort Moultrie, in which the heroic band, headed by Moultrie, and consisting of such spirits as Motte, Marion, Horry and Jasper, repulsed the British fleet, and Col. Thomson, with his rangers, posted on the Eastern extremity of Sullivan's Island on a redoubt, held Sir Henry Clinton in check and prevented him from


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crossing over from Long Island and attacking the fort on the Western side. The enemy made the attempt by marching down to the edge of the inlet, where it was fordable, except at high water ; they were flanked by a schooner and a flotilla of armed boats. Col. Thomson had only two cannon which were manned by his rangers, who had never fired a great gun before. The flotilla advanced bravely to the attack ; but old Danger, as Col. Thomson was usually called, opened so well directed a fire that the men could not be kept at their posts. General Lee advised the evacuation of the fort ; but Rutledge said to Moultrie, "you will not do so without an order from me," adding, " I would sooner cut off my right hand than write one." In the midst of the battle he sent off to the fort five hundred pounds of powder, and said to Moultrie : "Honor and victory, my good sir to you and our worthy countrymen with you. Do not make too free with your cannon." " Cool and do mischief." Moultrie, his officers and men were cool, and did mischief. Their cannon at slow and deliberate inter- vals poured the iron messengers of death and destruction into Sir Peter Parker's doomed fleet. No battle, except that of Bunker Hill, was fought under such auspices. It was in full view of the city of Charleston. On every house top were gathered, the anxious wives, mothers, daughters and sisters of the garrison, who, under a summer's sun, and the broad sides of eight men of war, were slowly directing the missiles of liberty and deliverance against their invaders. Well may we conceive the throbbing anxiety with which they listened to the slow and deliberate cannonade from the fort, and with what despair it was noticed that the flag was down, and then with what rapture the appearance of the gallant Jasper, flag in hand, as he mounted the ramparts and planted it there, was hailed. It was a moment of trial and triumph never equalled.


The sun sunk slowly beyond the Western horizon, while every now and then Moultrie spoke in thunder, and his iron balls crashed through the Commodore's ship. At length, after eight hours of suffering, humbled and defeated, the enemy's fleet retired beyond the range of the guns at the fort, and on


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the 31st of June, bore Sir Henry Clinton, Lord Cornwallis and the invading army from the shores of Carolina. Rutledge has hardly ever received the honor which was due to him for this affair. His was the head to plan the defence and his the heart to encourage the actors in maintaining it. His speech to them on the fourth of July, when he returned thanks for their heroic conduct, was unrivalled eloquence, and none who heard it could afterwards fail in their devotion to their coun- try. On this very day, and while he was speaking, Congress declared the United States free, sovereign and independent. This was as it should be! The 28th of June was the proper precursor of the Declaration of Independence. South Caro- lina, with her cannon and rifles, and behind her palmetto logs, had tested the question and in blood had sealed that inde- pendence which Congress nobly declared on the 4th of July, '76. Let the two days, 28th of June and 4th of July, '76, ever be commemorated as twin sisters, and always let the names of John Rutledge and Thos. Jefferson be remembered together.


For three succeeding years South Carolina was exempted from invasion; indeed, with the exception of the war of a few months with the Indians, she experienced none of the miseries of the revolutionary struggle. She reaped the benefits of peace, while war was all around her. In the meantime the legisla- ture thought proper to change the Constitution, and accor- dingly enacted the Constitution of '78, which met with the disapprobation of President Rutledge; but to give the oppor- tunity to carry out the legislative will, he resigned his office and Rawlins Lowndes was elected in his place, and approved the Constitution of '78, which therefore went into effect, and the Chief Magistrate of the State was then and afterwards styled the Governor and Commander-in-Chief. In '79 the State was threatened with invasion, and John Rutledge was, by an almost unanimous voice, called to the head of the gov- ernment. Although he was opposed to the Constitution, he remembered what he had said on the 26th of March, '76, that "every man's best services" were " due to his country," and accordingly he accepted the office of Governor, and set


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about the means of defence. The invasion by Prevost came from the British forces in Georgia. Prevost at their head, compelled General Moultrie to slowly retreat on Charleston. On the 12th of May, 1779, the British troops appeared before Charleston. Two days before the gallant Moultrie, with his little army, had taken refuge within the lines; the Governor reached the city at the same time, and simultaneously with the arrival of the British, came to her defence the gallant Pulaski and his legionary corps. The American forces were so inferior to that of the invading army, that proposals for a capitulation were made. This was probably done to gain time. For it was known that Lincoln, at the head of the main army, was in pursuit of Prevost. It is sad to think that a peace and the prosperity of three years had made the inhab- itants tremblingly alive to the fears of an assault; the dis- graceful proposition of " neutrality during the war," was sub- mitted to the invader, and fortunately rejected, and thereupon the garrison and citizens determined to defend themselves to the last extremity ; all night they stood to their arms, and as morning broke, the joyful cry resounded along the lines " the enemy is gone." The intelligence of the approach of Lincoln turned the haughty invaders into the retreating and pursued enemy.


For a short period the city was spared. On the 11th of February, 1780, Sir Henry Clinton, with a powerful and well appointed army landed within twenty-one miles of Charles- ton. Lincoln and the Governor were at their posts for the defence of the city ; the men and means were, however, very inadequate. The Legislature, then in session, resolved that Charleston should be defended to the last extremity, and the powers of absolute dictatorship were conferred on the Gov- ernor and Council till ten days after their next session.


The resolution to defend Charleston to the last extremity was unfortunate. For if it had been yielded, as Philadelphia had been, to the enemy, Lincoln and his army would have been saved, and the wasting and desolation of the whole State would have been prevented. But, as it was, the city was be- leagured, and on the 12th May, 1780, was surrendered to the


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British. Before this sad event, the Governor and a part of his Council, to wit, Charles Pinckney, Daniel Huger, and John L. Gervais, were advised by Lincoln to leave the city, so that the civil authority of the State might be preserved. His advice fortunately was followed, and Gov. Rutledge and the gentle- men named, on the 12th of April left the city. They made every effort to relieve the city, and afterwards to arrest the progress of the invaders, but in vain. They were compelled to seek a refuge in North Carolina; and for near two years, Gov. Rutledge accompanied the armies, approaching to rescue South Carolina, or retreating from the British armies. In this time of gloom, when South Carolina was overrun, he never despaired. Sumter, Marion, Pickens, Williams, all received his encouragements. To each of these gallant men he at various times gave the commissions of Brigadier Generals. He solicited aid from North Carolina, Virginia, and Congress. To these efforts are to be ascribed the armies of De Kalb and Gates. After Gates' unfortunate defeat, at Gum Swamp, he aided materially in re-organizing that army. He gave to Greene, when he assumed the command, all the aid which his knowledge afforded. Both admired each other, and their co-operation was therefore uniform. His first proclamation, it seems, was issued from the high hills of Santee, 5th August, 1781. About this time he issued the unfortunate order direct- ing the wives and children of the loyalists to be sent to the lines at Charleston. I call it unfortunate, because it was the means of killing many innocent women and children; and it was still more unfortunate, as the excuse for the murders and marauding of the bloody scout, in the fall of 1781. But I have no doubt he thought it was wise and just, and as a mea- sure of retaliation it would be generally so regarded. On the 28th of September, 1781, he issued a wiser and better procla- mation : it was issued under the advice of that great and good partisan, Gen. Marion. It offered pardon, free pardon, to all the loyalists who had borne, or were bearing, arms in the British service, who would, within thirty days, surrender themselves, and engage to serve six months in the militia of the State. In a few weeks hundreds of the misguided tories


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came out from the British lines, accepted the conditions, and showed their sincerity by their bravery, whenever, under Marion, they met their friends.


The time the Governor thought was at hand when he ought to surrender his great powers. He issued writs for an elec- tion of members of the General Assembly, to convene at Jacksonborough on the 8th of January, 1782. The elections were held, and the Assembly convened at the time and place mentioned. It would be gratifying, if we could look over the Legislature, and bid arise before us the mighty men who composed it. But the wish is vain. We may be permitted, however, to say, they were men who had borne the heat and burden of the day, whose bodies were scarred by the bloody war through which they had passed, whose hearts had been wrung by the butchery of parents, sons, brothers, relatives and friends, and whose plantations were in ruins. From such men vengeance was to be expected. To this feeling the Gov- ernor's message adverted, and recommended, though in very cautious and merciful terms, the confiscation of the estates of the loyalists who had adhered to the enemy in spite of his proclamation. The Legislature unwisely yielded to this rec- ommendation, and thus forced many valuable but mistaken men to leave the state. Tradition reports that an elderly man, the father of a gallant soldier of the revolution, said, on the discussion of the Confiscation Act, that there was a voice in his ears crying, " slay, slay, utterly slay the Amalekites." He was answered by a member, that he too heard " a voice in his ears, but it was like unto the voice of a long eared animal."


Gen. Marion was utterly opposed to this measure; and on that, or some other occasion, he declared, if his sword was stained with the blood of u captive, or his hand soiled with the plunder, he was ready to account and return fourfold.


The Legislature, in their addresses to the Governor, assured him of the perfect confidence of the people in him, and of their just appreciation of his past services. It is due to him to say, that his dictatorship in general was exercised with rectitude, and gave no just cause of complaint.


His term of office was at an end, and by the constitution he


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could not be re-elected. In his stead, Gov. Matthews, after Gen. Gadsden had declined the office, was elected Governor.


Gov. Rutledge was not permitted to retire to private life; he was elected a member of Congress, and took his seat in that body on the 2d May, 1782. Here again he was actively and fully employed; and here again he showed that he was the orator, statesman and patriot.


On the 14th of December, 1782, Charleston was evacuated by the British troops, and the American army took possession. Gen. Green escorted Gov. Matthews, and the other civil offi- cers, to the town hall. From windows, balconies, even house tops, the troops were greeted with cheers, waving of handker- chiefs, and cries of " God bless you, gentlemen ; you are wel- come home !" In this stirring scene, Rutledge was not, as I had once supposed, present. He was still at Philadelphia, laboring at the public oar, to guide in safety the shattered bark of the Confederation to safe moorings. He remained until about the middle of June, 1783, when Mr. Jacob Read having appeared as a member from South Carolina, he return- ed home.


On the 21st of March, 1784, he was elected with Richard Hutson and John Matthews, Chancellor of the State, and en- tered upon the duties of his office.


During his term as Chancellor he was elected a delegate to the convention at Philadelphia, which resulted most happily for the country, in bestowing upon it the Federal Constitution. In framing that wonderful instrument, (I had almost said inspired instrument,) Chancellor Rutledge largely participated. Of the convention, assembled by the State of South Carolina for the ratification of the Federal Constitution, Chancellor Rutledge was a member, and was the ablest advocate of the ratification. It was opposed by many good and true men, but thanks to the wisdom of a large majority it was ratified, and John Rutledge's prediction has been fulfilled. He said, "so far from thinking that the sun of this country was obscured by the new Constitution, he did not doubt but that, whenever it was adopted, the sun of this State, united with twelve other suns, would exhibit a meridian radiance astonishing to the world."


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On the organization of the Federal Government South Carolina, as she ought to have done, gave her electoral vote to him as Vice-President. On the 24th September, 1789, Presi- dent Washington nominated to the Senate John Rutledge, as an Associate Justice of the Supreme Court of the United States. The Senate unanimously confirmed the nomination. His commission is dated 26th September, and placed him as the senior associate, and next in rank to the Chief Justice. He accepted this appointment, as appears by Gen. Washing- ton's letter of 23d Nov., 1789, to Edward Rutledge. 10 vol. writings of Washington 51. He resigned in 1791. Idem 164.


In February, 1791, at the new organization of the Courts of Law and Equity, under the State Constitution of 1790, John Rutledge was elected Chief Justice of the State, and was the last who ever filled that highest judicial office. With his associates, Burke, Grimké, Waties and Bay, he laid the foun- dation of that noble common law temple which year after year has been built upon, until now it commands the admiration of all our sister States. Many of the principles then to be settled were new, or of new application. Thus in the case of Eden vs. Legare, 1 Bay 174, the Chief Justice ruled that to call a man a mulatto was actionable per se, on account of the degradation to which the words, if true, sub- jected him. The Chief Justice was sustained by his brethren. So in Timrod vs. Shoolbred, 1 Bay 324, commonly called Step- ney's case, it was ruled that a sound price warrants a sound commodity. 'This principle has been the subject of praise, or censure, as a man's taste led him to be honest, or cunning. My belief is, that no principle in the whole body of our law has done more to elevate the character of our people above the temptations of fraud than this very doctrine of sound price warranting a sound commodity. The Chief Justice's opinion in the State vs. Walch, alias Washington, for forgery, 1 Bay 120, is perhaps as good a specimen of his legal acumen and reasoning as we could have.


The Chief Justice enjoyed much the wit and convivialities of the country Courts; this was especially the case at Ninety- Six, where Carnes' wit ruled and rioted in wild luxuriance. On one occasion. the opening of Ninety-Six Court, he entered


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the Court room an hour later than the usual time. As he took his seat the Grand Jury presented him for being too late. He quietly said, "Mr. Clerk hand me the presentment," and running it into his pantaloons' pocket he turned to the Grand Jury and said, "Gentlemen, I would have you to know that it is never 10 o'clock till I am in Court."


On the 1st of July, 1795, he was appointed Chief Justice of the United States by President Washington. He resigned his office, as Chief Justice of South Carolina, and accepted that of Chief Justice of the United States. He presided at the August term of the Supreme Court. The Senate on the 15th December, 1795, from party motives refused to confirm the nomination, by the President, of John Rutledge as Chief Justice. But before this unjust, and indeed most unworthy act, occurred, the Patriot and Statesman of the Revolution, the Orator and accomplished Judge of South Carolina was inca- pable of understanding the malicious blow leveled at him. About the 1st of December, on his way to hold the Circuit Court of North Carolina, he was taken sick, and in a few days that noble intellect, which had so long led and enlightened his fellow men, was obscured, and never afterwards was relumed.


The balance of his life is the sad blank of want of reason. He died in the summer of 1800. He was married in 1763, to Miss Elizabeth Grimké, by whom he had five sons and two daughters. None now survive, but their descendants are numerous, and his honored name, in the person of his grand- son, is in his native city.


In the hall of the Supreme Court, his bust is, by the efforts of the late Senator, A. P. Butler, to occupy its proper place, with Jay, Elsworth, and Marshall.


The character of John Rutledge must be judged by the sketch given of him. He was a fascinating companion, one of the most striking orators, who ever spoke in South Caro- lina, or in the Union; an honest man, a fearless patriot, a wise statesman, and a pure, just, well-informed Judge. Few men have lived who were greater than John Rutledge, and few will ever live who can excel him.


JUDGES.


HENRY PENDLETON.


Judge Pendleton was a Virginian ; when he came to South Carolina, whether before or after the commencement of the revolution, seems to be uncertain. He was elected a Judge of the Courts of Law of South Carolina, 17th April, 1776. Chief Justice Drayton, Justices Matthews, Bee and Pendleton, were elected from the 12th to the 17th of April, and therefore must have acted together as the Judiciary of South Carolina, and did duty together until 1780, when war in reality visited South Carolina, and for a time overturned the authority of the State. Judge Pendleton was, it seems, (from the information which I have fortunately derived from Dr. Joseph Johnson, one of the few noble survivors of '76,) captured by some party of the British adherents. He was afterwards exchanged and became one of General Green's aids; he bore the orders of his gallant chief in the battle of Eutaw, and afterwards aided him in turning back the tide of war, and with him witnessed its final ebb from the wasted soil of South Carolina.


After the evacuation of Charleston in December, 1782, Judge Pendleton sheathed the sword and assumed the toga.


He was the author of the County Court Act, which was passed 17th March, 1785, P. L. 366. This Act is long, and descends to very minute details which, as my venerable friend says, were found to be "tiresome to all who were obliged to hear and discuss it." Yet that Act shews both the ability and pains-taking carefulness of its eminent author. The County Courts had an existence of only fifteen years, and were generally denounced for their worthlessness ; but I have no doubt such Courts were, perhaps, better adapted to the state of society then existing than any other system. They prepared the people for the stronger arm, greater powers and sterner behests of the Circuit Court system of '99.


If we could gather up the anecdotes attendant on the


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County Courts, it would make up a book of, it is true, many acts of mal-administration, but at the same time of many a hearty laugh. I will endeavor to state, briefly, two or three. At Laurens the jail was a small log house, and being unten- anted at the opening of the term of the County Court, their worships leased it to a German named Shute, who kept store at Springfield, Newberry, but who attended with a part of his stock for sale at Laurens. Soon after the Court opened, a fight occurred in this yard, and the aggressor, Clem Davis, an old revolutionary partisan, was dragged into Court ; he was (without thought of the consequences on the part of their worships) ordered to jail.


The Sheriff promptly executed the order, thrust the pris- oner, Clem, into the jail, and turned out the Dutch merchant, Shute. Clem, who was never out of place, instantly turned salesman, and began to sell the Dutchman's goods out of the window. Poor Shute rushed into Court and cried out, "May it please your vorships, dat man will sell all mine goots." The Sheriff was ordered to correct the error by bringing him into Court and restoring the goods. He was accordingly lugged into Court and said to their worships, “ what do you want with me now ? You had better take care, I'll have my finger into one of your eyes, if you don't mind." He was discharged as incorrigible. The Sheriff, in gathering up the Dutchman's goods, found a plow mould and a blanket in the possession of an Irishman, Mcclurkin, to whom Clem had sold : he took them from him. Mcclurkin went upon Clem for the purchase money ; instead of paying Mcclurkin, he crammed him into a dirt oven in which there had been recent . baking, and which he denominated " Piles gaol."




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