Biographical sketches of the bench and bar of South Carolina, vol. I, Part 5

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 5


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The County Court for Winton, (now Barnwell) was held between North and South Edisto Rivers. Their worships often indulged too much in strong potations. On one occasion a fat dog, called Larry, was baked and served up, and eaten by them as fine venison.


When the Court was ended, by the Circuit Court Act of '99 their worships determined that it would be best to destroy


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all their proceedings. They accordingly burnt the Court House and its contents. This was proved before me, in the Spring of 1829, at Barnwell, by Col. Tarleton Brown, a fine specimen of the men of the Revolution.


In 1785, an Act was passed for the appointment of three Commissioners to form a complete and accurate digest of the State Laws, with such additions, alterations and amend- ments "as they should see fit." Justices Pendleton, Burke and Grimké, were appointed.


In May, 1788, the Convention of the People of South Caro- lina, to whom was submitted the Constitution of the United States of American for ratification, assembled in the hall of the Custom House, Charleston. Judge Pendleton was a member of that Convention. Dr. Johnson says : " I remem- ber him, a tall, likely gentleman."


He died in that year, shortly before the meeting of the Le- gislature, which I see was in session in November. What part Pendleton bore in the preparation of the digest assigned to him, Burke and Grimké, is not known. The survivors, on the requisition of the Legislature in 1783, submitted a digest, which was explained by Judge Burke in a letter addressed to the President of the Senate. The digest was not adopted, but many of its recommendations, viz : the Circuit Court Act, the Act of Distributions, were passed as separate Acts. The pro- vision of the Constitution of South Carolina, 3d section, 10th article, whereby the Court of Appeals, called afterwards the Constitutional Court, was established, owes its origin to the digest prepared by these eminent men.


On the 7th March, 1789, Pendleton County was established ; its name was, I have no doubt, in honor of Judge Pendleton, who had died a short time before. This fact shews the high stand which he had in public estimation .*


Judge Burke, in the close of his letter to the Senate on the digest, said : " I cannot pass without making a remark con- cerning our late associate Mr. Justice Pendleton, who is now


* I have lately been informed that Judge Pendleton lived in Greenville Dis- trict, and that the house he occupied is still existing, and is situated on or near Golden Grove Creek.


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no more. The zeal of that able magistrate in favor of County Courts flowed, I believe, from the most pure and honorable motives. If the measure hath fallen short of his expectations, it goes only to prove that the finest talents, a mind highly cultivated and combined with honest intentions, are not al- ways sufficient to exempt a human creature from being mis- taken."


1198427 ÆDANUS BURKE.


Ædanus Burke was an Irishman, educated at St. Omer's for a priest; he, in the vicissitudes of an Irishman's life, came to the West Indies, thence to America, at the commence- ment of the Revolution, in which he volunteered to fight for liberty. He was a major in the Revolutionary army, as I have always understood. He was elected a Judge of South Carolina in 1778, and served as such until the State was over- run by the British. The duties of his office being then sus- pended, he took a commission in the army, and when the courts were re-established, he laid aside the military for the civil office. In 1785, an Act was passed for the appointment of three commissioners to form a complete digest of the State laws, with such additions, alterations and amendments as they should see fit. Pendleton, Burke and Grimké were ap- pointed. Pendleton died before the Report was made. In '89, the survivors reported. Judge Burke's letter to the Senate, explaining the digest, is appended .*


Of him as a Judge and a man, there are more anecdotes than perhaps any other. That he had a military turn is plain from his participation in the duello, as it is now fancifully called. In '99, he accompanied Col. Burr to the field, as his second, in an affair with John B. Church, Esq., and on that occasion he was the cause of more laughter than blood. Col. Burr's pistol balls were purposely cast too small, so as to be rammed home surrounded with chamois leather (as patches


* Mr. Justice Burke, in a letter addressed to the President of the Senate, in consequence of a resolution of that body calling for the digest, goes at large into an explanation of the nature of the work, its plan and execution.


'This letter was ordered to be published ; and amongst other pertinent ; nd forcible observations which it contains, are the following : " thus the laws of this country, on which depend the lives and property of the people, now lie concealed from their eyes, mingled in a confused chaos, under a stupendous pile of old and new law rubbish, past all possibility of being known, only to the law professors. I will venture to aver, that there are but very few of our lawyers, that have all our laws, or can point out which of them are in force, or otherwise. The ablest of them could not, in all cases, have separated the grain from the immense heap of chaff, without much time and labor in searching for it."


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in a rifleman's understanding); to facilitate this, grease was placed in the case, and Burke was accordingly so informed. But in his hurry he forgot the grease, and undertook to ram home the ball and leather. This he could not accomplish, and when his attention was called to it by his principal, with his characteristic Irish rashness, he replied: I forgot to grease the leather; but you see he is ready, don't keep him waiting Just take a crack as it is, and I'll grease the next."


He was the judge at Ninety-Six when Matthew Love was tried for sedition, acquitted, but taken from the bar by the relatives of those who had been butchered by the Bloody Scout, of which he was a member, and hanged. When Love was thus taken, Burke commanded the sheriff to suppress the riot. "It is more than my life or yours is worth," was the reply. On hearing it, he sprang from his seat, called to his servant, " Kit, Kit, get the horses, Kit." He was soon in the saddle, and stayed not his flight until he was under the roof of his countryman, Samuel Kelly, at Springfield, twenty- four miles from the scene of violence. He dropped his razors in his rapid ride. Caleb Gilbert found and brought them to him at Springfield. Burke, in his delight, and in his best sounding Irish, said he was "a proper honest fellow."


The habit of Bench and Bar was to ride the circuit on horseback. Burke often indulged in fits of abstraction; on such occasions his order to his servant was to ride as near to him as possible. The boy usually fell back at some distance, but generally in sight, and allowed the Judge to meditate as best pleased himself. Jogging along in this way on one occa- sion, his servant pressed up too near to the horse which he rode, and which happened to be an ill-natured brute, and the consequence was the horse kicked the negro on the leg, who observing that it had not interrupted his master's study, sprung off his horse, and picked up a stone and threw it at the horse, which it unluckily missed, and took effect between the Judge's shoulders; the instant the negro saw what he had done, he fell in the road with his hands clapsed around his leg, and crying out in apparent agony ; as soon as the Judge could straighten himself, he turned around, and said to the


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prostrate negro, "Stephen, child, what ails you?" "Lord, master," was the reply, "your horse just now kicked me on the leg, and almost broke it." "Well, child," said the Judge, "he just now kicked me between the shoulders, and almost broke my back, too."


On another occasion, he rode up to the Sampit Ferry, and called to the ferryman, whom he could see across the water; but the man was on a frolic, and paid no attention to the oft repeated calls. In his own good time he crossed over, and Burke, as might be expected, was in no gentle mood ; he re- buked the ferryman in strong terms, who retorted by swear- ing if he did not mind his own business he would whip him! The boat no sooner touched the land, than stepping out, Burke, who was an accomplished pugilist, laid off his coat, and said to the ferryman, "come out, my good fellow, and I'll give you a beating." The latter, thinking it fine fun, sprang out. Burke instantly knocked him down, and continued to apply the same remedy every time he rose, until at last he lay still, and cried enough. Burke then said to him, "My good fellow, when any one comes to your ferry again, be up and away. May be Judge Burke may come this way again."


In one of his rides, he became very dry-that is, he wanted a dram; and on inquiry he was directed to a still house, which he described as "a long house on a brae." He asked for something to drink. It was brought to him, as he said, in a long tin cup, and on being asked, he said, he drank it all up-and "'fore God," he said, "I wanted to steal everything I saw the whole evening." Hence, he sagely concluded that any one who would drink whisky would steal.


The Judges' custom formerly was to enter and leave the Court with their bands and gowns on. Madamne Van Rhyn, a highly respectable lady from Holland, kept a dry goods store near the Court House in Broad street. Thither the Judges walked, pulled off their gowns, and hung them up. Judge Burke during the Court had left the evening before his gown at Madame Van Rhyn's; being rather behind time, and in a hurry, he did not wait to put on his gown, but snatched down that which he supposed to be it, and hurried to his seat, and attempted to put it on; the whole Bar were in


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a titter at the Judge's perplexity ; he at last discovered his mistake, and spoke out: "'fore God, I am in Madame Van Rhyn's petticoat." So much for anecdotes, which might be added ad libitum.


Notwithstanding his Irish rollicking character, Judge Burke was a pure, just Judge. He aided in laying broad and deep the foundations of our jurisprudence. He had a great con- tempt for the County Courts, and whenever their worships presumed to sustain a demurrer, he reversed the judgment without argument. On one occasion, a County Court lawyer, speaking to him in court about the strength of the law, he replied: "True, the law ought to be like a wall, through which the lions and bears could not break; but now it is so rotten, that the foxes, the raccoons, and squirrels break through."


Judge Burke, before '90, was often a member of Congress. To prevent him from thus mingling politics and law, the law of 1789 was passed, which prohibited a Judge, or any other officer, on pain of the forfeiture of office, from leaving the State without leave from the Governor. He took a very active part in the convention of South Carolina against the ratifica- tion of the Federal Constitution; yet he was elected without opposition the first senator in Congress. Judge Burke was the author of the celebrated attack on the Society of the Cin- cinnati, and which forced them to abandon many aristocratic provisions originally in their constitutions. His essay was signed Cassius, with the motto: "Sound the trumpet in Zion."


When a vacancy on the Equity Bench was presented to him, and he was advised to resign and become a candidate for it, "'Fore God," he said, "I will wade in the muddy water till I come to the clean." He accordingly retained his place as a Common Law Judge, until he was elected in 1799 a Judge of the Court of Equity. This office he retained until his death, which took place 3d March, 1802.


His portrait hangs in Hibernian Hall-to which Society he made a handsome donation by his will-and on St. Patrick's day, with Walter Goodman, he is always remembered as one of the patrons.


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JOHN FAUCHERAUD GRIMKÉ.


Judge Grimké, the son of John Paul Grimké, and Mary Faucheraud his wife, was born 16th December, 1752. He was educated, as is stated to me by his grand-son, at West- minster. I presume, by this is meant, he had there his legal education. It seems, he was one of a number of young Americans, in London, who petitioned George III. against those measures which infringed upon the rights of the colonies, and which ultimately led to the Revolution. He returned home about the breaking out of hostilities ; he entered the army as a lieutenant-colonel of artillery. He was cer- tainly in the battle of Stono and the seige of Charleston ; what part he bore in either does not appear. It is probable he was taken prisoner at the seige of Charleston. He was married, probably, after the war, to Miss Mary Smith, the daughter of Thomas Smith.


He was elected a Judge of the Courts of Law 20th March, 1783 : at this time, and to the Constitution of 1790, there was no inhibition on a Judge being a member of the Legislature. Judge Grimké and the other Judges frequently were members.


He was the Speaker of the House of Representatives from March, 1785, to March, 1786. The wisdom of the Ist Section of the 3d Article of the Constitution of this State, which prohibits a Judge from holding any other office of profit or trust under this State, the United States, or any other power, I have latterly been led to doubt. The knowledge and expe- rience of the Judges would, in many particulars, be of immense service to the cause of legislation. I can see no just objection. The example of England is certainly decisively in favor of it. For there some of the wisest statutes were framed by Judges, and among them have been found some of the ablest advocates of freedom.


In 1799, when Judge Burke was elected a Chancellor, Judge Grimké became the Senior Associate, and thus virtually the Chief Justice. He died at Long Branch, New Jersey, 9th August, 1819.


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Judge Grimké, for some reason, became exceedingly unpop- ular many years before his death. This probably arose from the habit of stern rule, which he acquired in the Revolutionary army, and possibly from his residence at Belmont, in Union District, and his refusal to mingle in the society around him. So too it is possible that his assertion of title to the tract of land lying on both sides of Tyger river, in Union District, and to which he ultimately established his title in Grimké vs. Brandon, 1 N. and McC. 356. This had occasioned much and angry previous litigation with persons connected with or descended from Col. Brandon, of revolutionary memory. He was involved in much, and very often, petty litigation. For some reason he and Samuel Farrow, Esq., became inveterate enemies. All these causes, and perhaps instances of hasty action, arising more from the faults of others than himself, as in the case of the Constables, at Newberry, reported by Sheriff Long, for being temporarily absent from their posts, and therefore committed (Fall term, 1807) by the Judge-led to the attempt to impeach him, the result of which is stated below :


But I owe it to his memory to say, that I always found him kind and courteous ; he probably sympathized with my youth, poverty, and inexperience. When, in 1814, I had just returned from a tour of duty as a soldier, at Camp Alston, and after being examined by three Judges at Columbia, who signed there the fiat, was sent to Charleston and Camden, to obtain the fiats of Justices Grimké, Colcock and Brevard, he most kindly directed his son, the late Thomas Smith Grimké, in his office, to examine me, signed the fiat, on my petition, and then drew from me a narrative of my campaign, under Colonel Tucker, which seemed to afford him much amusement. He ever after knew me, and treated me with almost parental kindness.


Well do I recollect the scene in 1811, which occurred in the State House, when articles of impeachment were pre- sented against him. The late Thomas Hunt, Esq., was the Chairman of the Committee, and led the attack in a strong but courteous speech against the venerable Judge. It seems to me that I can see him now, sitting in the lobby of the House of Representatives, closely buttoned up in his blue


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surtout, wearing his oil-skin covered hat, over his thin grey locks, and leaning upon his staff. Near him stood the tall, majestic and eagle-eyed Daniel E. Huger, who, after all who had aught to say had spoken, took up the defence of the sol- dier and Judge. After speaking in his usual bold, impetuous and eloquent style, he paused and said, "Mr. Speaker, I have not spoken more than half an hour for the honorable and venerable gentleman before you without tiring, when he for us, without tiring, fought seven years." The vote was taken and the articles were not voted by a constitutional majority.


Judge Grimké was a stern, unbending Judge in a Court House. Before him there was no parleying about being ready. It was not then, as now, when a lawyer has to be politely sent for, and when after coming into Court, he has to indulge in a long talk with his client and witnesses before he can say "I am ready." Those who were then taught know well, that a watch was often laid down, on the circuit, and in the Constitutional Court, and the Bar were told "you must go on in five minutes or you must go off." This would now be regarded as great tyranny; yet it educated lawyers to know their business, and to be " eager, prompt and ready."


In the spring of 1815, I first attended Edgefield Court. The dockets were enormous. My late friend, solicitor Starke, presented forty bills of indictment for every grade of offence from assault and battery to murder. Thirty-nine were found true. Many convictions followed. One of the Edgefield rowdies of that time looking on at the scene, swore it was no place for him. "For," said he, "Starke holds and Grimké skins." Upon the issue docket, there were more than two hundred cases. In the second week of the term, the late General Glascock proposed to give a dinner to the Judge and bar. A civil action for assault and battery was to be tried ; there were seven speeches to be made-one for the plaintiff and six for the defendant, (for at that time the rule did not exist which limits two speeches to a side.) It was well known that if all spoke as long as they could that the dinner could not be ate. It was therefore proposed and agreed that each of the lawyers for the defendant should speak fifteen minutes


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by the Judge's watch. It was accordingly laid down, and as each progressed to the limit, the Judge said, your time is out, and he ceased. At last, Mr. Bacon, who was closing for the defendant, and who was blessed with as fine an elocution as I ever heard, had scarcely finished his exordium, when the Judge said, " Mr. Bacon, your time is out," Mr. Bacon, instead of yielding as good taste would have directed, said, " I claim the right which every citizen has to be heard by his counsel." "Very well," said the Judge, "we will leave it to the jury." A stout man rose and said, "May it please your Honor, we have been tired of their clash for this hour." This ended the contest.


I regard Judge Grimké as a good Judge. Most of the decisions of his period were not written with the care which they now are, and hence it is difficult to make selections. His un wearied industry will be seen by referring to his notes pre- sented to the Library of the Court of Appeals in Charleston, by his matchless son, the late Thomas Smith Grimké, and by his compilation of the Statute Law, called Public Laws, Grimké's Justice of the Peace, and his Law of Executors. These works were invaluable when published, and to-day are worthy of more attention than they receive.


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THOMAS WATIES.


Judge Waties was born 14th February, 1760, in George- town District. He was descended from those good and pure men, the Huguenots, who fled from France in consequence of the revocation of the edict of Nantz. After receiving a good grammar education at ho ne, he was sent to the University of Philadelphia; there he added much to his stock of know- ledge, and became a great favorite. The war was about bursting upon the country, and the military spirit seized upon the young Carolinian, and in his 16th year he was elected captain of a company of his fellow students, and his company had the singular honor to be reviewed by General Washing- ton. He was invited to accompany Commodore Gillon to Europe, and accepted the invitation, but sailed in a different vessel, and was captured and carried to England ; thence he passed to France, and made the acquaintance of Dr. Franklin, who aided him with means and imparted to him much of that sage and wise character which afterwards so much dis- tinguished him. He returned home between '79 and '80, and after the fall of Charleston, in May, 1780, he joined General Marion, and served with the rank of captain, under that accom- plished partizan officer. This entitles Mr. Waties to live in the recollection of every Carolinian. For each and all of those brave men whose battle cry burst upon the sleeping camps of the English and their friends, the tories, rendered to the State services which never ought to be forgotten. They saved the State, and high upon her glorious escutcheon ought to be inscribed their names. Captain Waties' health was not equal to this arduous service, and in consequence of it he was obliged to retire shortly before the close of the war.


When peace came to bless the wasted State, Mr. Waties studied law, was admitted to the bar 16th August, 1785, and soon rose to great eminence in his profession .* He was elected


* His petition and the entries upon it are herewith presented to the public with the memorandum of the assent of Judges Burke, Heyward and Grimké, and the order of Court as noted by the clerk, Wm. Mason.


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on 2d February, 1789, an Associate Judge, having thus, at the early age of twenty-nine, attained to the highest legal distinction. He resigned and was elected a Judge of the Court of Equity in December, 1811. In this office he re- mained until December, 1824, when he was assigned to the Circuit as a Law Judge. The duties, to escape which he had resigned in 1811, he patiently and admirably encountered and performed till his death, 22d June, 1828. Thus for thirty- nine years he performed the great duties of a Judge. He was a most patient Judge, yet on one occasion, at Sumpter, he lost his patience. It was the last day of the Court. He had in- vited friends to dine with him at his residence, ten miles dis- tant. The last case was a summary processs about a hog. If tried he could not enjoy his dinner. He had the plaintiff called, ascertained the value of the hog, paid him for the animal and adjourned the Court.


Judge Waties was one of those men who, in a quiet and unobtrusive way, won upon the hearts of all men. He was a most distinguished Judge ; heloved the right and sought to do right, independent of technical rules.


His opinion in the State vs. Lehre, 2d Treadway, 809. Zylstra vs. the Corporation of Charleston, 1 Bay, 382; Ewing vs. Smith, 3d Equity Reports, 417; and Carr. vs. Porter, 2 McC. 60, note, are models of judicial eloquence. I knew Judge Waties, and bear witness to his uniform mildness and correctness as a Judge. He lived long in the service of the State, and he deserved more, much more, than the State ever bestowed. His first Court was April, 1789. On that occa- sion he delivered to the Grand Juries of Beaufort, Orange- burg and Ninety-Six, the beautiful and impressive charge which follows :


Gentlemen of the Grand Jury :


" Although the duties of a Grand Jury may have been fre- quently explained from this seat, and may be well understood by many of you, yet as they are among the most important that you owe as citizens, they can never be too often repeated or too fully impressed on your minds. If the very existence


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of society depends on the preservation, both of public and private rights, from injury and violence, how highly necessary is it for you who are appointed to vindicate them, to be well instructed in the nature of those duties which the oath you have just taken so solemnly enjoins. I shall not enter as largely into the consideration of them as the extensiveness of the subject would admit of, but will only take notice of such parts as require your more particular attention.


You have sworn, gentlemen, " diligently to enquire, and true presentment make of all such things as shall be given you in charge, or shall come to your knowledge." It is not, I hope, necessary for me to remark that the peace and safety of your district require of you a strict and scrupulous dis- charge of this part of your oath. The discovery and convic- tion of offenders is indeed so manifestly beneficial to the public, that you can have no need of any arguments to be convinced of it. It is a social duty which even every indi- vidual owes to the community, to promote the prosecution and punishment of those who offend against the laws. It is also the interest of every good citizen,-because his private welfare and repose are most sensibly affected by whatever is destructive of the public safety and happiness,-and because the chastisement of the guilty is the best security the innocent have. If, then, it is both the duty and interest of every indi- vidual to watch over the laws, how much greater is the obli- gation on you, gentlemen, to whom the office of public accu- sation is more particularly assigned, to enquire diligently into offences ef every degree, and to bring the offenders to trial. Not that you are bound to hunt out every little trifling offence which human frailty may commit,-for public justice does not demand this,-but when the tranquility of society has been wantonly violated, or private rights been flagrantly in- vaded, it is essentially necessary to the preservation of these great objects that such offences should be strictly enquired into, and that those who have been guilty of them should be conducted with certainty to the punishments which the laws have ordained.




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