USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 8
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Judge Trezevant " was essentially a religious man."
His views about his funeral were singular. He directed that he " should be buried in a plain pine coffin, as he thought it useless to spend upon the dead what could be of more use to the living. He wished no one to follow his corpse." He directed the notice of his death in the city papers should be in the following words : "Judge Trezevant died yesterday."
He died 15th February, 1808 : he had been just eight years
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and five days a Judge. He was in the thirty-eighth year of his life. Few men, as young as he was, both as a man and a Judge, have ever attained to so much character and reputa- tion.
He was, I think, universally feared for the sternness with which he administered justice, but no one ever intimated that he exceeded the bounds of right. His nephew says, " he was tall and thin, with a keen eye and very sharp features, the latter caused by indisposition."
I never saw Judge Trezevant but once, and that was in April, 1807, at Newberry, where he sentenced John Turner to stand in the pillory on the next Friday for two hours, for a shameful assault and battery, and to be hung on the Friday, three weeks next afterwards, for stealing a negro slave. He was then in wretched health, and, as I have already stated, closed his life the February following.
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WILLIAM JOHNSON.
William Johnson, one of the Judges of the Court of Com- mon Pleas of the State of South Carolina, and afterwards Associate Justice of the Supreme Court of the United States, was the eldest son of William Johnson, and was born in Charleston on the 27th of December, 1771. His father was a well known and universally respected citizen of Charleston, who descended from one of the old German families who first settled in the State of New York, but emigrated to South Carolina in his early manhood. He possessed great vigor of character, decided ability, and his life was characterized by an inflexible uprightness, which won and preserved the public confidence. He belonged to a small class of men, whose names and patriotism are familiar to the students of the Rev- olutionary history of Charleston-men who enjoying neither the advantages of hereditary social position, nor liberal edu- cation, nor great wealth, yet wielded a large influence among the people, and contributed not only to the success but to the character of the Revolution, by the manly and beautiful sim- plicity, the unselfish and uncalculating devotion, and the dignified self-respect with which they discharged the duties which devolved upon them as simple citizens in those trying times. Mr. Johnson was among the earliest patriots in the State; was one of those who, under the lead of Gen. Gadsden, prepared the commencement of an active agitation, and among those citizens whom the British authorities selected as the most dangerous and important of the rebels, and transported to St. Augustine. He enjoyed, until his death, long after the Revolution, the affection and respect of his fellow citizens, but declined all honors that were tendered to him, except his reg- ular election to the State Legislature, in which he sat until increasing years compelled him to retire. His son, William Johnson, the subject of this sketch, was sent to Princeton College, at that time under the presidency of the celebrated Dr. Witherspoon, and graduated about 1790, with the highest
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honors of that institution. Upon his return home, he com- menced the study of the law in the office of Gen. Charles Cotesworth Pinckney, and was admitted to the Bar, in Janu- ary, 1793. His professional life was one of signal and almost unparalleled success. He was elected to the Legislature of the State as a representative from Charleston in 1794, 1796 and 1798, having attached himself warmly to that republican party which, under the lead of Mr. Jefferson, was growing fast and strong throughout the Union, and which in South Carolina was headed by Gov. Charles Pinckney, and sus- tained by most of the youthful talent of the State. In 1798, upon his third election, William Johnson was chosen Speaker of the House of Representatives. During his legislative career, he had given much time and attention to the organi- zation of the State Judiciary ; and one of his objects, in which, however, he unfortunately failed, but the importance of which every day has rendered more manifest, was the creation of a special Judge for Charleston. In 1799, the bill organizing our judiciary system, a system which with some modifica- tions still exists, was passed by the Legislature, and in con- sequence of its provisions several Judges were appointed. Among these, William Johnson, then Speaker, and but twenty- eight years of age, was elected to the Court of Common Pleas, along with Lewis Trezevant and Ephraim Ramsay. He did not remain long upon the State Bench, for a vacancy having occurred upon the Supreme Bench of the United States, Mr. Jefferson, who was then President, and one of whose chief public anxieties was to relieve the Supreme Court of the fed- eral character which he thought so dangerous to republican government, tendered the appointment to Judge Johnson, governed, it may fairly be supposed, by the happy association of a high judicial reputation and a sound political creed. Thus on the 6th March, 1804, when only thirty-two years of age, Judge Johnson had risen to the highest official position open to the Bar of the Union, and which is generally and properly the last reward of a widely extended reputation and long laborious years. His judicial life scarcely affords field for biography, but it is enough for any man's fame to
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say, as can be said of him with truth, that for thirty years he sat upon the judgment seat of a great national tribunal as supreme and renowned as ever dispensed justice among men, that he was the fit associate of Magistrates as virtuous and venerable as time hath left record of, that his life was passed in the noiseless discharge of great duties, and that in the Courts over which he presided for so many years, his decis- ions are still quoted as the judgments of an able, upright and independent Judge.
While it is impossible to review with any fullness Judge Johnson's decisions, because such a review would involve a history of the Supreme Bench and the discussion of many large and controverted constitutional questions, there were yet some cases which occurred, during his judicial career, to which special reference should be made, inasmuch as they illustrate one of the striking excellencies of his character. One of those virtues, not only honorable to the Judge, but of the very first importance to the proper administration of justice, especially in the case of tribunals, constituted as are the Courts of the United States, was his inflexible, almost haughty independence of political authority on the one hand, and popular opinion on the other.
Judge Johnson's appointment could not be called a political one in any improper or offensive sense; but unquestionably his political course indicating a concurrence with the views of the party who afterwards came into power, had its influence in his selection. Now, if there was any one portion of his policy to which Mr. Jefferson was attached, it was his Embargo Act. He could scarcely tolerate any difference of opinion on its merits, and watched with the greatest jealousy, not only any attempt, but any disposition to evade it. When that Act was passed, stringent as it was, Mr. Gallatin, then Secretary of the Treasury, sent, under instructions from the President, a letter to all the Collectors, in which the most watchful conduct was prescribed. Soon after Judge Johnson's appointment, a vessel sailing from Charleston to Baltimore, landed her cargo, partly in rice, and under the letter of the Secretary rather than in obedience to the provisions of the Act, the Collector of the
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Port refused a clearance. As there was nothing in the Act which forbade a bona fide shipment of rice to Baltimore, and as the Collector was satisfied that the parties concerned were not sending the rice to Baltimore for illegal transhipment thence, he consented that the question should by a motion for a mandamus on behalf of the parties interested, be submitted to the decision of the United States Court for the District of South Carolina. Judge Johnson upon hearing the case ordered a mandamus to issue commanding the Collector to grant the clearance. This decision gave so much offence to the Presi- dent that he submitted it to the Attorney-General, who pro- nounced against the decision, and his opinion was then pub- lished. Considering this as an improper mode of appealing to public opinion against the decision of a Court of Justice, Judge Johnson very unwillingly, but very ably, reviewed this opinion, stated that he considered the publication of the opin- ion to be the act of the Executive, and, while he objected to the course pursued, vindicated the correctness of his law.
" That the President," says he, "should have consulted that officer (the Attorney-General,) upon a legal subject, is perfectly consistent with the relation subsisting between their respective stations ; and as long as the result of that consultation was confined to the cabinet there had occurred nothing inconsistent with the relation between the executive and judicial depart- ments. But when that opinion is published to the world, under the sanction of the President, an act so unprecedented in the history of executive conduct could be intended for no other purpose than to secure the public opinion on the side of the executive and in opposition to the judiciary. Under this impression I feel myself compelled, as the presiding Judge of the Court, whose decision is the subject of the Attorney-Gen- eral's animadversions, to attempt a vindication of, or at least an apology for, that decision." And in the course of that reply he used the following manly and independent language:
" The Courts do not pretend to impose any restraint upon any officer of Government, but what results from a just con- struction of the laws of the United States. Of these laws, the Courts are the constitutional expositors, and every department
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of Government must submit to their exposition ; for laws have no legal meaning but what is given them by the Courts, to whose exposition they are submitted. It is against the law, therefore, and not the Courts, that the Executive should urge the charge of usurpation and restraint ; a restraint which may at times be productive of inconveniences, but which is cer- tainly very consistent with the nature of our government; one which it is very possible the President may have deserved the plaudits of his country for having transcended, in order- ing detentions not within the embargo acts, but which, not- withstanding it is the duty of our Courts to encounter the odium of opposing. Let us take this argument together with that which relates to the liability of officers to impeachment, and some others which are used by the Attorney General, into one view, and to what conclusions do they lead us ? The President is liable to impeachment : he is therefore not to be restrained by the Courts. The Collector (and every other officer with equal propriety who holds his office at the will of the President) are his agents, mere ministers of his will. Therefore they are not to be restrained by the process of the Courts. The power given to them is power given to him; in subordination to his will they must exercise it. He is charged with the general execution of the laws, and the security of the citizen lies in his liability to impeachment or in an action for damages against the Collector. This would, indeed, be an improvement on Presidential patronage. It would be organ- izing a band which, in the hands of an unprincipled and intrepid President, (and we may have the misfortune to see such a one elevated to that post) could be directed with an effect but once paralleled in history. If these arguments have any force at all as directed against the correctness of the Circuit Courts issuing the writ of mandamus, they would have equal weight to prove the impropriety of permitting them to issue the writ of habeas corpus, which is but an analogous protection to another class of individual rights, and might be urged to shew that the whole executive department, in all its ramifications, civil, military and naval, should be left absolutely at large in their conduct to individuals. What
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benefit results to the ruined citizen from the impeachment of the President, could we suppose it in the power of the indi- vidual to effect it? Or what security from an action against a public officer whose circumstances may be desperate ? But such is not the genius of our Constitution. The law assigns every one his duty and his rights ; and for enforcing the one and maintaining the other, Courts of Justice are instituted." Judge Johnson's conduct in this case is the more remarkable, as it was not difficult to find very plausible reasons for a con- trary decision, and some years afterwards, in 1813, the Su- preme Court unanimously, but on a technical ground, which does not affect his general reasoning, reviewed the doctrine of this case, and decided that the Circuit Court has not the power to issue a mandamus. McIntyre vs. Wood, 7 Cranch, 504.
Another occasion upon which he showed his independence of an authority widely different, was his decision in Elking- ton's case. In this case he was called upon to pronounce on the constitutionality of the local law of South Carolina, im- prisoning free colored seamen entering any of her ports, and although he was well aware that public opinion was not only hostile to, but very sensitive in regard to any interference with what was then as now considered a necessary prerogative of State power, he followed the dictates of his judgment, and de- cided against the constitutionality of the law.
Beside his judicial labors, Judge Johnson gave cheerfully his time and influence to any and every plan in furtherance of the science, art and literature of the State, and was himself an author of no small labor. For at the request of the family of Gen. Greene, he wrote an elaborate life of that distinguished man, a work which imposed upon him long and laborious research, the careful examination of a large mass of docu- ments and manuscript correspondence, and the personal in- spection of all the battle fields on which his hero had earned his reputation. This work is a permanent and valuable addi- tion to the historical literature of the country.
In private life, Judge Johnson was all that the courtesies of
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society and the charities of life require. Full of information, eager to learn and anxious to impart, in constant correspon- dence and personal connection with all the eminent men of the country, the friend of Jefferson, and Marshall, and Madi- son, his conversation was both instructing and interesting, while a manner in his more genial moments admirably tem- pering dignity with grace, and in harmony with a person of great manly beauty, gave a softened and attractive charm to the powers of his mind. His leisure was devoted to books, to friends who honored him for his public service and loved him for his private virtues, and he found unceasing pleasure in an enthusiastic devotion to agricultural pursuits, a taste which he had in common with Mr. Jefferson, and their mutual and genuine sympathies were exchanged in a long continued and pleasant correspondence.
When the unfortunate Nullification struggle rose to its height in the State, Judge Johnson, whose nature was earnest and whose opinions were always very decided, found himself in opposition to the sympathies of the majority of his fellow- citizens; and while his interest in the contest was of the warmest, his judicial position, especially on such a question, not only forbade interference, but imperatively commanded the most complete abstinence. He very properly, therefore, while not employed in his official duties, absented himself from the State, and during the summer of 1833 he resided in the Western part of Pennsylvania. Here, unfortunately, he contracted a bilious remittant fever, from which he never entirely recovered. A caries of the jaw-bone ensued, and he sought in New York the ablest medical advice. An operation of great suffering was successfully performed, but although borne with the most heroic fortitude, he sunk rapidly after its completion, and died in Brooklyn on the 16th August, 1834, surrounded and soothed by those whom he dearly loved, and sustained by that Christian faith which taught him that in the Supreme and Final Court before which he was summoned he would find an all-powerful advocate.
Judge Johnson was married early in life to Miss Sarah
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Bennett, the eldest daughter of Thomas Bennett, of Charleston, and sister of Thomas Bennett, Governor of South Carolina. Of a numerous family but two daughters survived him, of whom the elder married Hon. Romulus M. Saunders, for many years a member of Congress from North Carolina and Minister to Spain during Mr. Polk's administration; the younger married Mr. James G. Rowe, a planter in Alabama.
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JOSEPH BREVARD.
Judge Brevard was born 19th July, 1766, in Mecklenburgh County, North Carolina. His father, John Brevard, was a grandson of a French Protestant refugee. The mother of Joseph was Jane McWhorter, of a Scotch-Irish family. He was the youngest of seven sons.
What was his early education we have no means of know- ing ; he wrote a beautiful hand, and quoted Latin with such facility that, it is presumed, he had as good an education as the Revolutionary times permitted.
He was a lieutenant in the North Carolina line in the Revolution; he was commissioned in 1782, at the age of 16, and served to the end of the war.
Immediately after the close of the Revolutionary war, he settled in Camden, and was elected Sheriff of Camden Dis- trict by the Senate and House of Representatives, on the 1st January, 1789, to serve for two years under the Constitution of 1778. On the 14th October, 1791, he was appointed Com- missioner in Equity for the Northern District of South Caro- lina. He was admitted to the Bar 11th February, 1792, and on the 17th March, 1793, he was married to Rebecca Ker- shaw, who was the daughter of Col. Eli Kershaw, an officer of the Revolution, who, with his brother, Col. Joseph Kershaw, was sent to Nassau, New Providence, and to Bermuda, as prisoners of war, by the British. Col. Eli Kershaw died on shipboard off Bermuda.
Judge Brevard must have had a fine practice from his ad- mission to the Bar. It appears that he was, soon after his admission, associated with Mr. Falconer, who was then the most eminent lawyer in the Northern part of the State. His Reports begin in '93 and are generally confined to the North- ern part of the State, until he was elected a Judge on the 17th of December, 1801.
His wife died in 1802, (in less than a year after he was elected a Judge) leaving him a very young and helpless fam-
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ily. Yet with this sad deprivation and the heavy incum- brance, he showed himself able and capable for the great duties of his station. No Judge had a better reputation or was looked to with more confidence. I first saw Judge Bre- vard to know, and be known by him, in May, 1814, when Mr. McDuffie and myself visited Camden to obtain his signa- ture to the fiats of our admission to the Bar. His health was then so much undermined that he had not been able to attend the Spring Session of the Court of Appeals at Columbia. He most cheerfully heard our application, asked our course of reading, (we had already the signatures of five of the Judges, Grimké, Bay, Smith, Nott and Colcock,) and said, as you have satisfied my brethren, I will sign the facts for your ad- mission. I never saw Judge Brevard as a Judge, but once afterwards, that was the Spring of 1818; he presided then at Laurens. At that term John Drury Mitchusson was tried for murder. Yancy, 3 Brevard 142, had been shortly before executed for murder. He was a mere boy; this had pro- duced a revulsion of public opinion and favored a more moderate result for Mitchusson. He secured the services of nine lawyers.
Yancy and Gantt were the leaders of that body guard. The Judge was known to be in very infirm health. Mr. Saxon, the Solicitor, had the third day fever and ague. Four of the prisoner's lawyers, Clendenin, O'Neall, Gantt and Yancy, were selected to argue his case, and were instructed to so speak as to bring on Saxon's tertian, and to make the Judge so sick that he could not minutely charge. This was done, at least so far as Saxon was concerned. His ague showed itself so soon as Yancy closed. His argument was very brief. Gantt said it would not do to let the case go then under the Judge's charge; he is not yet sick enough, was his notion. He got up and claimed, as Saxon had not in his opening stated his law, that he might have the privilege of replying to it. The Judge yielded, and Gantt took up and read and commented upon many of the cases in Bevil on Homicide. He took his seat. The Judge charged about fifteen minutes, and retired instantly to his lodgings. In a short time the
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Jury came in, and found the prisoner guilty of manslaughter. The Judge told him, when he sentenced him, that he was guilty of murder.
Judge Brevard rode the Middle Circuit the succeeding fall, and resigned on account of his health, December, 1815.
In two years his health had improved so much as to induce him to offer himself as a candidate for Congress. He was elected in 1817, and being re-elected, he declined in March, 1821, to be any longer a candidate. He died at Camden, 11th October, 1821, leaving four children, Alfred Brevard, Edward Brevard, Eugene Brevard and Sarah Aurora, who afterwards intermarried with Benj. T. Elmore, Esq. She is now the only surviving child of the Judge. Alfred Brevard was my class mate in the South Carolina College; he was a beautiful, interesting boy ; he graduated in 1812, very young, and without distinction. He afterwards studied medicine, became an M. D. and married Harriet Chesnut, daughter of Duncan McRae. Dr. Brevard died in 1836, leaving four daughters, who now reside in Camden. His brothers, Edward and Eugene, died childless.
Judge Brevard's opinions and notes upon cases scattered all through the three volumes of his Reports, show that he was a man of untiring industry, learning and taste. They, with his admirable Digest of the Statute Law to 1814, now and forever constitute a better memorial of him than any thing which can now be offered.
He did much to give character to the Judiciary. While he was on the Bench, each of the Judges gave separate opinions. In almost every case, therefore, from 1802 to 1815, when he was in the Constitution Courts, is to be found in first, second or third Brevard, his opinion, and which shows the industry and learning with which he investigated the case and the judicial eloquence with which he pronounced his opinions.
In every situation and office of life he did his duty, and did it well. What more can or ought to be said, unless it be to say that he feared God, and kept his commandments, which is declared in the inspired volume to be " the whole duty of man."
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THOMAS LEE.
The perusal of the funeral discourse, by the Rev. Dr. Gil- man, on the life and character of Judge Lee, has filled my heart with so much delight that I am fain to say in reference to it, this is the true and just picture of a great and good man. Read it, and you will need nothing further to inform you. But I cannot thus avoid the task which is before me. I must write, too, even if I should fail.
Thomas Lee, the son of a watchmaker in the city of Charles- ton, an ardent friend of his country, and a colonel of one of the regiments of South Carolina, was born 1st December, 1769. His infancy was in the storm of the Revolution, and, as Dr. Gilman beautifully says, " he may be said to have been born along with his country, and felt his way with her, up to fame and fortune, through various developments of intellect- ual and moral character." His father was one of the Charles- ton prisoners sent to St. Augustine ; his family was sent by himself, for better safety, to Philadelphia. After this return of the family, 1780, he was about thirteen years of age, and was sent to the best classical school in the city of Charleston ; there he acquired at least Latin enough to enable him to un- derstand legal maxims. At fifteen or sixteen he was a student at law, under the most celebrated lawyer in the city, John Julius Pringle, Esq., and while so studying, a debating socie- ty gave him the opportunity of cultivating those unrivalled powers of eloquence which he subsequently perfected and displayed. In 1789, when the news of the destruction of the Bastile reached Charleston, Lee, then in his twentieth year, bore a part in the public celebration, and delighted old and young with that first rich treat of declamatory powers to which they often afterwards had the privilege of listening. While studying law he acquired such a perfect knowledge of the French language as enabled him to address his French fellow-citizens in their own language. As soon as he was of age, he was admitted to the Bar, probably in 1790, or early in
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