USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 6
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36
You are required " to present truly all such matters as shall
46
JUDGES.
be given you in charge, or shall come to your knowledge." By the former are meant all such bills of indictment as may be given out to you by the Attorney General ; by the latter, such public offences as are not yet in a train of prosecution, but which, if known to you, you are bound to present, and to give all the information in your power respecting them, in order that the parties may be prosecuted. To the last may be referred, all public nuisances, abuses of public trusts, and the neglect of duty in those who are entrusted with the adminis- tration of justice. In judging, however, of these, you ought first to be satisfied that the offence is criminal in so conside- rable a degree as to merit the animadversion of the laws ; for if it be so trifling under all its aggravations as to affect but slightly the public interest, it will be regarded by the law as a thing not worthy of complaint, agreeably to the maxim " that the law takes no concern in trifles." If, on the other hand, the offence is so foul or injurious as to deserve punishment, you will then take notice of it in your presentments, and men- tion the names of those who can support the charge by evi- dence.
But in the investigation of such offences, as shall come before you in the shape of indictments, all this caution will be made unnecessary, by the judgment and legal knowledge of the At- torney-General, who will take care to give out to you only such bills as charge specific crimes which are clearly defined by the laws. As these, gentlemen, will be the principal subjects of your enquiry, I will make some observations on them which I hope may be found useful.
When a bill is preferred to you, you are to examine the evidence in support of it. The law confines this to what may be offered only in behalf of the prosecution, because the finding an indictment concludes nothing against the party, but is only in the nature of an enquiry or accusation, which is after- wards to be tried and determined before another jury. With- out this previous accusation, no man can be brought into the shame and expense of a public trial. And how much tender- ness and caution does the law manifest in this respect ! The life and reputation of a citizen shall not be exposed to the
47
JUDGES.
private attack of every malignant person ; he shall not be lia- ble to be suddenly dragged to the bar to defend an ignomini- ous charge, surprised and unprepared ; but the grounds of any accusation against him shall first undergo the dispassionate and impartial enquiry of a grand jury, and his very country must attack him, before he can be obliged to answer to the charge. You are not only, therefore, appointed to bring the guilty to trial, but you may also be considered as a house of refuge to the innocent, by sheltering them from the pursuits of calumny and revenge. Never can we too much regard an institution which so admirably protects the quiet and happi- ness of every individual, while it secures the peace and wel- fare of society !
You will no doubt, therefore, cautiously examine the evi- dence which may be offered to you, and while actuated by a laudable zeal to avenge public wrongs, you will guard against the malevolent designs of those who may be wicked enough to seek the gratification of personal resentment under the sanction of law, and make the sacred hand of justice the instrument of their private revenge. On this account, you ought to be thoroughly persuaded of the truth of an indict- ment, as far as the evidence goes, before you assent to it ; and ought not to send a person to his trial upon probable grounds only and the mere presumption of criminality. In doubtful cases, nothing should be presumed but innocence; and this should always be done until the contrary is proved. It is a rule founded both in reason and humanity, and there is no injury done to society by rejecting a bill for want of proof, for the not finding it does not amount to an acquittal, but another bill may at any time afterwards be preferred, when better evidence may be had to substantiate the charge-whereas the finding a bill upon probable evidence may sometimes be subjecting an innocent man to unmerited disgrace, and be made to answer the most oppressive purposes. In consider- ing, therefore, such bills as may come before you, let this rule (as often as it may apply) govern your determinations. When, indeed, you recollect that you are sworn " to present nothing but the truth," you will indeed require something more than
48
JUDGES.
probability to support every charge, and will take care that your own consciences are satisfied as well as the demands of public justice.
You are further sworn, gentlemen, " to present nothing for malice, lucre, or ill will, nor to leave anything unpresented for love, favor, affection or reward." What an important engage- ment is this ! and I may add, how difficult to perform always with strictness! But I trust that the solemnity of the oath you have taken, and your regard for the honor and interest of your district, will determine you to execute it with firmness and impartiality. A very little reflection must convince you that you cannot more effectually serve your country than by distributing justice to all men indifferently, and by making the laws operate on all alike, without favor and without ill- will. The impartial administration of justice is indeed the corner-stone of political happiness, and on this depends the only true and substantial enjoyment of all those advantages which belong to us as freemen. It is this which so eminently characterizes a free government, and distinguishes it from every other; for where else are the rights of the poor equally respected with those of the rich ?- and where else can the meanest man in the community say to the most powerful, you cannot injure me with impunity ? It is not, therefore, without reason that the trial by jury has always been regard- ed as the best which human wisdom ever contrived for se- curing the political equality of men in society. Nor need we wonder that the people of England, throughout the various revolutions and convulsions of their government, in times when almost every liberty they had was devoured by prerog- ative, should hold fast to this as their greatest barrier against arbitrary power, and at this day rank it as the most transcend- ent privilege they possess.
As it is uncertain, gentlemen, what bills will be preferred to you for examination, I shall not take up your time unne- cessarily in going into a general definition of crimes of which it is not known what may come before you. It is not proba- ble, indeed, that you will be at any loss in this respect, for the Attorney General (as I before remarked) will take care to
49
JUDGES.
frame the indictments agreeably to the evidence which ap- pears in support of them ; and as you are only to hear such partial evidence, you will seldom have it in your power to make those discriminations which are made by the construc- tion of law on hearing both sides of a question. It will only, therefore, be necessary for you to determine whether there is a sufficient proof of guilt to justify you in sending the person accused to another Jury, who are appointed to hear his de- fence, and before whom he must satisfactorily prove the cir- cumstances which he may allege by way of justification or excuse. Upon this trial he will have the full benefit of any favorable circumstances that may appear, and will also be entitled to every advantage which can be derived from the nicety or caution of the law.
When you have heard the evidence on any bills, if you should be of opinion that it is sufficient to support the charge, you will endorse on it " a true bill." If, on the contrary, the facts alleged are not proved, or you should have reason to be dissatisfied with the credibility of the witnesses, you will then endorse on it " no bill." After having thus decided on any bill, (in which it is proper to mention, at least twelve of you must agree,) you will deliver it into court.
These, gentlemen of the Grand Jury, are the principal duties you are now met to discharge. Before, however, I conclude, I cannot forbear taking notice to you of some others which are closely connected with these, and which your country has also a right to demand of you.
The bringing to punishment those who have violated the laws, is without doubt doing a most important service to so- ciety ; but to render the occasions of punishing less frequent, by reducing as much as possible the number of crimes, is a more benevolent office, and is productive of a still greater public benefit. To prevent crimes altogether is not to be ex- pected, for the imperfection of human nature will not permit it; but their number and degrees may be considerably less- ened by a strict attention to the morals of the people, and a certain and regular execution of the laws. As Grand Jurors, and particularly as Magistrates, (which many of you are,) it is
4
50
JUDGES.
incumbent on you to watch over the conduct of all around you, and to exert your utmost endeavors in expelling from the country those vices which lead to the commission of crimes. Of these, there is none so prevalent, and perhaps none more pernicious to society, than that of idleness. This is indeed a fruitful source of crime, and the nurse of horse thieves, robbers, and almost every disorder which tends to mnake men bad citizens, and to lead them into criminal courses of life. It should therefore be your concern to banish idle- ness, and to take care that every man about you has a visible and honest means of subsistence. This is in the power of every one; for in no country upon earth can he find a greater facility than in this, of employing himself in an advantageous manner ; there can be no excuse, therefore, for idleness. But, gentlemen, as the cause of this and most other vices too often originates in a total want of an early education, it is particu- larly incumbent on you to promote as much as possible the establishment of schools, and the maintenance of places of public worship. The improvement of the mind brings with it a knowledge of our various duties, and naturally excites an emulation of being useful and respected. The importance also of religion in forming the manners of a people, and in making them good citizens, is every where felt and acknowl- edged. It is indeed the best of all guards for keeping men within their duty, and without it all others have no force. Christianity (says the great and good Lord Hale) is a part of the common law; as such, then, you are further bound to advance and support it.
But another, and perhaps the most efficacious means of preventing crimes, is to attend vigilantly to the execution of the laws. Let me, then, earnestly recommend to you, and especially to those among you who are magistrates, to be par- ticularly careful that the laws are never in the least relaxed. When the best regulations remain without vigor, they become frequently a grievance ; for the hope of impunity, which the uncertain execution of them naturally inspires, only increases the number of offenders, and tends to the multiplication both of crimes aud punishments. It is the sentiment of an excel-
51
JUDGES.
lent writer, that crimes are more effectually prevented by the certainty than by the severity of punishment; and the truth of this must be evident to every man of any observation or reflection. Many on their first outset in vice have been re- claimed by an early check and slight correction ; but when flattered and emboldened by frequent impunity, many more have been induced to commit still greater crimes, until at length they have fallen a sacrifice to the laws, because they were suffered to despise them. A strict execution of the laws is therefore performing the office of humanity.
I hope, gentlemen, I shall not be thought digressing from the subject of your duties, when I recommend these things to your attention. Let it not be said that they are solely the concern of those who are appointed to carry the laws into execution, and to superintend the morals of the people. The slightest consideration of the nature of our Government will shew that they are duties owing from every individual in the State, and that without the assistance of the people themselves the laws will never be sufficient alone to carry into effect the ends they propose. Formed by the people's own hands, derived wholly from their authority, not yet made venerable by age, and without any independent means of enforcing obedience and respect, how can such a Government have strength, efficiency, or stability, unless every good citizen will give his support, and will make the execution of the laws his own particular concern ? The freedom of our Constitution may indeed flourish in speculation, and we may boast of having the peculiar power of governing ourselves, but we shall realize only a small part of those advantages which we looked for from the revolution, unless the spirit of the laws possesses all those who are charged with the execution of them, and unless public virtue (which is a love of the laws) has at least a pre- dominant influence in the community. Happy indeed would that country be, where every man in it felt the obligations he owed to it, and would voluntarily discharge them! But such a perfect society has never yet existed, nor ever will. Disor- derly passions and mistaken self-interests will too often prevail over the weaker influence of duty, and nothing but the force
52
JUDGES.
of penal laws can effectually protect society from the wicked- ness and profligacy of bad men. How indispensably neces- sary is it, therefore, for all good citizens to assist the laws, and give efficacy to them by their example, their influence, and their authority !
I trust, gentlemen, that your own sense of these duties renders any admonition on the subject superfluous ; but allow me to recommend to you, when you return to your respective neighborhoods, to endeavor to impress the same sense of them on all around you, and to inculcate this important truth, that the maintenance of our Government in its just vigor and authority can alone secure our liberties, and make that inde- pendence, which has cost so many lives and so much property to obtain, a real benefit to ourselves and posterity.
SOUTH CAROLINA:
To the Honorable the Judges of the Court of Common Pleas of the State aforesaid :
The Petition of Thomas Waties sheweth, That your peti- tioner, having constantly studied the Law for four years and upwards, and during the greatest part of that time been employed in the practical part, presumes that he is qualified to act as an Attorney.
He therefore prays your Honors that he may be admitted an Attorney of this honorable Court.
And he will ever pray, &c.
THOS. WATIES.
Charleston, 14th August, 1785.
I certify the truth of the above petition.
JOHN J. PRINGLE.
Messrs. Judges Burke and Hayward agree to the prayer of the petition.
Mr. Judge Grimké also gives his assent thereto.
AUGUST TERM, 1785.
The prayer of the within petition granted, and the within named Thos. Waties sworn in open Court this 16th August, 1785.
WM. MASON, C. C. P.
53
JUDGES.
ELIHU HALL BAY.
Judge Bay was born at Havre de Grace, Maryland, about 1754. He was intended and studied for the ministry, but an impediment in his speech induced him to abandon that purpose and devote himself to the law. He was an "or- thodox Christian ;" he often said he had not a doubt from "Genesis to Revelations." "He was as profoundly versed in the Bible (which he read daily when not devoted to business) as in the law." "The law was his element which he studied in British times." From Maryland he removed when young to Pensacola, West Florida, where he was honored by the confidence of Sir William Duncan, who had the supervision of Florida. The tradition is, he was the King's attorney in that province during the Revolutionary war. He was pre- sented by Chester, then the Governor of Floridas, with two silver waiters for services rendered to him. After or in the Revolution, he came to Charleston, South Carolina. On the 10th of April, 1733, he took and subscribed the " oath of alle- giance, abjuration and fidelity to the State of South Carolina," as required by the Act 13th February, 1777, establishing an oath of abjuration and allegiance, Ist stat. 135. On the 28th February, 1784, Judge Ædanus Burke gave him a certificate of citizenship. It seems that Judge Bay's father and grand- father were Presbyterian ministers.
He was married to his wife, "who was a young widow, in Dr. Ramsay's house, Broad street, Charleston ;" eight children were the issue of that marriage. From the youngest, Miss Gracia Bay, of Charleston, I have derived many particulars of the excellent man and judge, her venerable father.
He was elected an Associate Judge on the 17th February, 1791 .* In December, 1817, in consequence of his great age,
* I append herewith his commission, which I have thought worth preserving as a relic of the past. It was recorded, as appears by the records of the courts of Charleston, Georgetown, Cheraw, Camden, Pinckney, and Washington. The custom then, and even since, so far as my own knowledge extends, was the first time a judge presided to read his commission and record it in the minutes. So also I annex his certificate of citizenship.
54
JUDGES.
his infirmities, and numerous public services, he was ex- empted from circuit and appeal duty, and assigned to chamber business. In the discharge of this less burdensome duty, he spent the evening of his life, which was closed on the 10th of November, 1838. For forty-seven years this venerable man was a judge of South Carolina. Few of the profession now remain who knew him. He was our first reporter; he first aided in bringing justice to abide by rule arising from prece- dents. Before his reports, all was chaos in our legal world. His two volumes are still of great value. He had prepared a third, which I have no doubt would have been also of great service, if it had been published, as it should have been.
Judge Bay was a good common law lawyer, as will be seen by his reports and decisions. Beyond all doubt he was often mistaken, both on the circuit and in the Constitutional Court; but his purposes were just. His respect for female character often led him into error, where a woman was a party. Such a mistake in favor of the weak and lovely never soiled deeply the ermine of justice. He stuttered badly, and hence was the subject of many a hearty laugh at the bar. So, too, his kindness was often played upon for the same purpose. Before he left the circuit he became very deaf, and this infirmity added to the others, made it often difficult to get along .* Many anecdotes might be stated. I may be per- haps pardoned in narrating three or four. In the case of Cald- well vs. Julien, reported in 2d Cons. Rep. by Mill, pp. 376, the venerable judge was carried away captive by the beauty and intelligence of the two sisters, Elizabeth and Matilda Ennis, daughters and witnesses of the plaintiff. The defence was an alibi, which he characterized as "the desperate effort of every desperate desperado in the whole community."
In another case tried at Newberry, on a wager that a horse, at the end of a wagon tongue, would within a given time in a four-horse wagon, haul fifty bushels of corn along a public highway, one mile, the owner aiding him by his own skill
* This began about 1816, and continued until '24, when after exhausting every remedy prescribed by physicians, he was fortunately cured by the persevering application of goose grease poured into his ears by one of his daughters.
55
JUDGES.
and exertions all he could, the wager was won, and the de- lighted judge characterized it as a prodigious feat of a pro- digious fine animal.
At Laurens, he was called on to sentence a man for an assault and battery. The prisoner pleaded guilty, and sub- mitted affidavits showing that the prosecutor was the aggres- sor. The Judge was following the reading, exclaiming: "Well, well, that is not so bad." At last, the solicitor, Mr. Saxon, who had the third-day fever and ague, which added mnuch to the vinegar of his disposition, rose to his feet, look- ing perfectly savage, and said: "Why, may it please your Honor, he bit off the whole of the man's lip," making with his finger a semi-circle on his lower lip. "Did he?" ex- claimed the judge, throwing up his hands, "send him round to me," and when he got him fairly before him, he literally scathed the poor wretch, with his vehemence. He told him he was a fit associate for Tecumseh: "none but a Creek Indian would be guilty of such a barbarity." The frightened prisoner began to cry, and the Judge, much as he hated biting, could not bear tears, said to him in a subdued tone, "I will lay you in jail one month." Another bearing the same name (Brown) was called up for sentence. He had bit off a man's ear. The judge, looking at him with perfect scorn, said to him: "I will lay you in jail alongside of your brother one month, and you may bite one another, as much as you please."
In a case at Laurens, of trespass to try title, (I think Meli- cent Colcock vs. John Robertson,) the plaintiff's paper title was indisputable, and that of the defendant under possession, with color of title equally indisputable, if it were to be now decided; but a majority of the judges then held that an ad- verse possession of part of the land for five years, under color of title, did not give title to the whole; some holding that it only gave title to the actual pedis possessio; others, that it carried that and as much more of the wood-land as was necessary for fire and fence bote. This last absurdity was then what the judge announced to be the law. I was for the defence, and lawyers such as Benjamin C. Yancey, Esq., and
56
JUDGES.
others, in whom I had great confidence, pointed me to the Act of 1712, P. L., 101, and urged me, young as I was, to claim the privilege of arguing the matter. This was done and allowed; and the Judge, after complimenting the elo- quence of the young lawyer, said that the construction of the Act was as fixed as the laws of the Medes and Persians; and that, therefore, all that the defendant could hold was as much land as he had enclosed, and an equal quantity of wood-land for fire and fence bote. Yet, in less than a year, came the great case of Read vs. Eifer, (1 N. & Mc. note 374,) which affirmed the very doctrine for which I had contended, and reversed the Median and Persian rule of the venerable Judge. Quando bonus judex dormitat, at law, as well as old Homer in poetic lines .*
I give the following from the pen of a friend in Charleston :
" On one occasion, while I was under age and yet a lad, I recollect being in the Court House when a case was being tried against an individual for cruelly beating his wife. A member of the Bar, a native of Pennsylvania, I think, who had been a priest, then a Reformed Lutheran minister, and afterwards a lawyer, was conducting the case for the defence. In the course of his argument, he contended that it was a common law right of the husband to correct the wife. The venerable Judge from the high seat he then occupied opposite the middle door, with some emphasis, and in his slight stut- tering voice, said, 'there is no such law.' The advocate went on, having some fluency, and ingeniously came back to the same point at which he was stopped by the venerable Judge; and pursuing the same idea in the midst of an ardent course of argument, the advocate said: 'Suppose, may it please your Honor, when you went home, you should find your wife in an unruly mood, and she should make an attack
* An anecdote communicated by a friend in Charleston. I had often heard from other quarters. Judge Bay abhorred drunkenness and rabid democracy. His son, Andrew, was a violent democrat. Having attended a great republican mass meeting about 1812. he mingled too much of the intoxicating element with his other viands. He was carried home drunk, and laid in the piazza. The judge finding him thus, walked up, and looking upon the sleeping democrat, said, "drunk, drunk, and a democrat."
57
JUDGES.
on you.' 'Sir,' said the Judge with impassioned feeling, which rendered his voice more stammering than usual, 'if y-you make that th-that sup-po-sition a-again, I-I w-will co-commit you for a-a con-tempt.' The noble bearing of the old Judge caused the eloquent advocate to desist from the further defence, and the defendant was of course convicted under the charge of the Judge, who told the jury that the common law was the perfection of reason, and not- withstanding the loose remarks of writers, there was no such principle in that law."
I perceive indorsed on the commission of the venerable Judge, the oath prescribed by the Act of the Legislature, Ist stat. 275, concerning the oath required by the fourth section of the Ordinance of Nullification, Ist stat. 320. It will be seen by reference to the Act that the Judge was never required to take that oath. Why that good citizen and excellent mag- istrate, Gov. Robert Y. Hayne administered such an oath is to me inexplicable.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.