Biographical sketches of the bench and bar of South Carolina, vol. II, Part 44

Author: O'Neall, John Belton, 1793-1863
Publication date: 1859
Publisher: Charleston, S.C. : S.G. Courtenay & Co.
Number of Pages: 636


USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. II > Part 44


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of honorable introduction into active life. But he thought too lightly of its merits to forego his habitual repugnance to ap- pearing in print. It may be added as a circumstance worthy of the attention of young men, that while he fell short of no excellence in the exercises of his college course he improved every opportunity of cultivating himself in English composi- tion and debate. He wrote and spoke unremittingly in the literary societies. Not a week passed in which he failed to take part in one or the other of these exercises, and he fre- quently engaged in both. He considered writing the first and last condition of good speaking; and on whatever subject his mind was employed, his pen was never out of his hand. The nature of this task may be imagined, when it is stated that his fingers were so weak that he wrote at all with the greatest difficulty, and only by an ingenious contrivance.


The first year after his return from college he spent at home in general studies. "Newton's Principia," the Greek Tra- gedians, the Political Economists, and British Classics absorb- ing most of his hours. He held, with Mr. Burke, that the poetry of literature lay as much in its language as in its sen- timent, and he therefore memorized as he read every striking passage of his chosen authors. He knew, by heart, the whole of the first book of " Paradise Lost," and there were few of Shakspeare's " Delphic Lines" that did not come to his lips at his bidding. The prose books of Milton he read and re-read with fresh interest, agreeing with the late Mr. Legaré, that they were unequaled as examples of prose compositions by any productions of their class in our language. But the business of life was pressing (for he was without fortune), and in 1832 he entered the office of his relative, the late Thomas S. Grimké, and, after twelve months' preparation, was admitted to the Bar on the 20th February, 1834. An opening for im- mediate employment in the country occurring, he availed himself of it, and began the practice of his profession in Beaufort and Colleton. The first case in which his remark- able talents were displayed, in Colleton, was the case of The State v. Riggs, on an indictment for murder. The Solicitor was not in attendance, and the relations of the deceased em-


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ployed Mr. Rhett in behalf of the prosecution. The prisoner was defended by Mr. Petigru, but was convicted. Mr. Rhett rose at once to the head of his profession. In the year 1834, he was returned to the House of Representatives from St. Helena Parish. In that body, in the Second Session of his first term, he delivered a most remarkable and able speech on the Independence of the Judiciary, and forthwith took rank amongst the ablest debaters in the State. He represented St. Helena for four years, and subsequently St. Luke's.


In 1843, he became a resident of Charleston, and in Octo- ber of that year was stricken by yellow fever, and died, aged thirty-four years, in perfect and hopeful resignation to the will of God.


Mr. Rhett was a hard student. He took with him into his profession, the same method of study he had cultivated in his youth, and that was most exhausting. His synthesis was as perfect as his analysis. When he seized a principle, he pur- sued it from its first faint expression in the text-books to the very last judgment upon it in the Reports; throwing aside, step by step as he advanced, the perversions and errors that had gathered about it in its progress to established truth. He considered law the noblest system of reason ever wrought by the genius of man; and he loved it not less for the severity of its truths than for its large and practical philosophy. It was not with him an instrument of vulgar profit merely, or a play- thing of ambition. He did not treat it as a cunning device of happy expedients for correcting men's errors, and still less as a useful engine for ventilating the bad humors of society; but as the organ of truth herself, as the justest expression of the most valuable of all metaphysics-the metaphysics of com- mon life-and as the ripest and richest food of a refined and refining civilization. For this reason, his success as an advo- cate, remarkable as it was, fell short of his efforts in the Court of Equity and the Courts of Appeal. There it was that, un- trammeled by the traps and sophistries of the Jury-trial, his severe intellect delighted to wrestle with the masters of legal science, and to discourse fine reason with Coke and Hard- wicke, Mansfield and Eldon.


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In his address, Mr. Rhett was self-possessed, grave, and earnest; but when he was warmed by debate, his invective was overwhelming. His fine voice, and tall, handsome per- son, added not a little to the graces of his elocution; while his choice and pregnant English reminded one, by turns, of the terseness of Tacitus and the solid periods of Milton. He was as severe in the selection of his phrases, as in the order of his logic; and whether he spoke on the spur of the occasion, or after much preparation, no link ever dropped from the chain of his argument, and his periods were filled up and rounded with all the completeness that rhetoric art could impart.


Except an address on temperance, which he delivered in Charleston, a short time before his death, Mr. Rhett published nothing over his signature. But he wrote much, anony- mously, for the fugitive publications of the day; not for the sake of reputation, (for he thought little of his accomplish- ments as a writer,) but with a view to correct speaking. His facility in composition was, however, great; and, if he had lived longer, it is likely the favorable judgment of the public would have overcome his diffidence in this particular, and his reputation as a writer have become as great as it was for speaking.


We have referred to Mr. Rhett's system of mental training, as furnishing, by its success, some useful lessons to the young. Perhaps, it is not out of place, to add a word or so as to his interest in the young. Youth was recommendation enough for anybody to his sympathies; and any, the least, demonstration of personal merit in such, engaged his active friendship. He loved to lift up the head of the poor boy, and give heart to the desponding; and although his means were never large, yet the tidings of his early death brought tears to the eyes of more than one strong man who had found in him (when friends were few) the kindest of benefactors and the truest of counsellors.


The foregoing is from the pen of an early friend of Mr. Rhett, who was, indeed, all that he represents him to have been, and more. He was, indeed, a fine specimen of a lawyer. His style of speaking was fully equal to any which I ever


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heard. He had, too, a very good knowledge of legal princi- ples, and knew well how to successfully apply his knowledge. Both at the Bar and in the State House, I observed his course with delight. He was a teetotaller, and was one of the few young lawyers of his day who never clouded his mind with wine or strong drink. If it had pleased God that he should live to old age, he would have been one of the first men of South Carolina. He married Sarah C. Taylor, the youngest daugh- ter of Governor Taylor, who survived him with at least two, and perhaps more children.


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JAMES M. WALKER.


For the hours of recreation, we find no repast more capti- vating and exquisite than that which memory offers in a re- view of the worthy who have passed away. Few men, in early life, gave higher promise of usefulness and distinction, than the subject of this notice, and few have so well fulfilled them, if we judge by the traces they have left behind.


Nil turpius est quam gravis œtate senex, qui nullum aliud habet argumentum, quo se probet diu vixisse, præter œtatem, was a favorite quotation of the late James M. Walker, and it indeed was the object of his ambition to signalize the period of life allotted to him, by such mental exertion, as to claim the respect and remembrance of the community. He was moved by that noble impulse, which aims to leave its mark on its day and generation. Possessed of a mind highly cul- tivated, and a cheerful temper, he was a delightful compan- ion. One of his marked peculiarities, was his fondness for classical quotation. The writer remembers well, when a stu- dent, how Mr. W. was welcomed by all, at a very pleasant and usual place of rendezvous, on a winter's evening, and has in his possession a classic work, on the fly-leaf of which Mr. Walker wrote the following lines :


" Quam cuperes votis hunc revocare diem."-Ovid.


" Ut ager quamvis fertilis, sine cultura fructuosus esse non potest ; sic sine doctrinû animus."-Senaca.


There comes a voice that awakes the soul. It is the voice of years that are gone; they roll before me with all their deeds. It is delightful to recall the past, and live o'er again such pleasant moments.


James Murdoch Walker was born in the City of Charles- ton, on the 10th day of January, 1813. He was the son of Robert Walker, of Fifeshire, Scotland, and Mary Murdoch, of Charleston, South Carolina. His early education was received at the best schools in his native city, and at the usual age he


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entered as a student of the South Carolina College, then under the rule of its able and distinguished President, Dr. Thomas Cooper. He occupied a fair position as a scholar, and gradu- ated with distinction in the Class of 1830, leaving a reputation for talent and industry.


Mr. W. had determined at the time he entered college, that the law should be his profession. Knowing how jealous was his future mistress, he assiduously applied himself to obtain a solid education, and ever after, in his leisure, he devoted him- self to the treasures of Clio, and turned with delight to Caliope. He was well read in literature, a good belle-lettre scholar ; and, to a mind strong, energetic, and naturally of an inquiring turn, he added that embellishment which can only be ob- tained by a careful study of the ancient classics. Thus pre- pared, he entered the law office of the Hon. Mitchell King, and was admitted to the Bar in Columbia, in 1834. He ap- peared as counsel in the well-remembered case of the State vs. the Bank of South Carolina (1st Speers, 433), and his en- tire argument, which we would select as a specimen of his legal learning and ability, is given in the report of that case, by Attorney-General Bailey, and published in pamphlet form, under the order of the Legislature.


He wrote and spoke well, and was a constant contributor to the Southern Quarterly Review ; his articles are filled with classic references, his style was terse and pointed; as a speaker, he was clear and fluent. Mr. W. served several terms in the State Legislature, representing the Parishes of St. Philip's and St. Michael's, and was among the useful and prominent Members of the House.


In 1850, appeared a pamphlet by Mr. W., entitled “ An Inquiry into the use and authority of Roman Jurisprudence in the law concerning Real Estate ;" letters from many dis- tinguished gentlemen, flowing with high commendation, was his reward; the essay is dedicated to the Hon. James Louis Petigru, whose letter to the author constitutes its preface.


In 1852, his " Theory of the Common Law" appeared, which he inscribes to the Hon. Mitchell King, " as a tribute of the respect and regard of an ' Apprentice to the Law' to


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his former master." This work gave Mr. Walker a very decided position at the Bar, and was highly praised from all quarters.


In 1853, he published a trac tentitled " On Government," inscribed to the Hon. W. D. Porter : it was severely criticised in the Southern Quarterly, but in the reply, Mr. W. sus- tained himself with signal and approved ability.


During the early part of the succeeding year, it was very evident to his friends that his health was fast failing, and on the 18th September, 1854, at the age of 41 years, 8 months and 8 days, he breathed his last.


His remains were interred at the First Presbyterian Church, at Charleston, and his funeral discourse was preached by the Rev. John Forrest, the Pastor of the Church. There is no false praise in this short tribute; if it hath any recommen- dation, it is its truth, for


" Flattery hideth her varnished face when friendship sitteth at the board."


LETTER FROM HON. W. D. PORTER.


" My recollections of James M. Walker, go back to the time when we were both apprentices to the law. He had fixed his standard of legal attainment very high, and was a most industrious reader. His attention was particularly directed to the study of the Common Law, and it gave him great de- light to explore its sources, and trace its course and history. He bestowed considerable attention also upon the Roman Law, but chiefly for the purpose of comparing and contrasting it with the English Jurisprudence. There was, perhaps, no young man of his day in our State, who pursued his profes- sion more as a liberal science, and less as a gainful craft. He believed that no one could know the law without apprehend- ing its reason ; because law, whether universal or municipal, has its foundation in truth, and is, in fact, a regular system or science, and not a mere promiscuous collection of rules and precedents. To penetrate to this fundamental truth or rea- son was his aim and endeavor; and it is not surprising that with such a spirit of investigation, aided by extraordinary


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powers of analysis and logic, he should have become, in his early maturity, not only a well-read lawyer, but an accom- plished jurist.


Mr. Walker gave to the profession as the fruits of his study, several tractates on the law. The first of these was an " Inquiry into the use and authority of Roman Jurisprudence, in the law concerning real estate." His object was to show that prior to the time of Edward I., when the common law became a separate and independent system, the principles of the civil law had been largely infused into the municipal law of England, and were to be found at the bottom of the English doctrines of real estate. He thought that the national and professional pride of the early English law writers, would not suffer them to admit what his investigations led him to regard as a historical fact. His theory was new, and he sought to establish it by tracing to their sources some of


the more important rules of the feudal law, and showing the use and authority therein, of Roman Jurisprudence. He de- fended his theory with great ingenuity, and illustrated it with much curious learning. This essay excited the attention of the legal fraternity, and received the liberal commendations of the distinguished gentleman to whom it was dedicated-the Hon. James L. Petigru, now and for many years the leader of our Bar, and the acknowledged master of the profession in our State.


His next essay was entitled the " Theory of the Common Law." This work was on a larger scale than the preceeding one, and attracted still greater attention. His purpose was to show that the common law, in all its parts, rests upon the fun- damental principle of the attribution of political power to the proprietors of the soil ; that notwithstanding the modifications it has undergone, in the progress of time, property is still, in England, the source of power; and, that even in the midst of great revolutions and changes of dynasties and subversions of governments, this common law has manifested a continuity of doctrines and a stability of character, that make it not merely an incident or episode in the life of the nation, but the very ex- pression and embodiment of that life itself. His discussions


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of some of its leading topics are characterized by searching in- vestigation, sound learning and bold and philosophical thought; and seem all intended to illustrate and establish his leading prin- ciple, viz: the unity and durability of that great and noble sys- tem of jurisprudence. Upon the publication of his book, Mr. Walker received a large number of complimentary letters. It was also brought to the attention of the Legislature, and the Judiciary Committees of both Houses bestowed upon it high commendation, and recommended a subscription to a number of copies for the use of the Legislative Library. Lawyers and Jurists, the most distinguished in the country, pronounced it a work of great originality and singular merit. I had, at the time, in my possession, copies of a number of these testimo- nials, but am at present able to lay my hands only upon the two following :


Professor Greenleaf, himself one of the most eminent law- writers in the country, addressed to him a letter, from which we make this extract :


" CAMBRIDGE, Mass., Aug. 24th, 1852.


" It has interested me extremely by the originality of the views it presents, the striking character of the observations scattered through its pages, and especially the profound thought everywhere apparent. It is eminently a suggestive treatise, and will be read by real students of the law with great avidity. I have mentioned it to Professor Mittermaier, of Heidelburg, as the only philosophical treatise which our profession has of late produced."


Chancellor Job Johnson, the Presiding Judge of our Chan- cery Court, wrote as follows :


"NEWBERRY, S.C., Oct. 19th, 1852.


" My dear Sir,-Little, Brown & Co. sent me, a short time since, a small work of yours, on the Theory of the Common Law, which my business engagements did not permit me to examine at the time. I have lately had leisure, of which I avail myself, and have just finished the perusal of it; and I cannot defer for a moment the expression, to yourself, of the admiration and pleasure with which it has inspired me.


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" You have, my dear Sir, at once conferred a lasting obliga- tion on your profession by this little work, and elevated your- self to high rank among juridical writers and thinkers. You have succeeded in establishing, that private rights take their roots in, and are moulded and controlled by public law; and your illustrations of this truth are marked by extensive re- search, remarkable learning, and great discrimination. There is displayed throughout this noble disquisition, a philosophy which has seldom been exhibited among law writers, a phi- losophy which alone marks the masters of the profession, and distinguishes them from the mass of mere plodders, who rest in cases and precedents, because they can go no deeper; who stick to the shell and the letter, because they are incapable of reaching the spirit and the reason.


" No such key work has appeared for a long time. It is just such works as this that rescue the law from the oppro- brium of being merely arbitrary; that elevate it into a science, and vindicate its claims to the system of justice. With un- feigned respect, I am, dear Sir,


" Your obedient servant,


"J. JOHNSON."


His next essay was on politics, and was entitled a "Tract on Government." His propositions were, that government is only an instrument auxiliary to the reason of society, that its proper object is restraint, and that as soon as it ceases to be merely an instrument of restraint, it becomes an instru- ment, not of conservatism, but of progress. That the posses- sion by government of progressive powers is identically the same as if reason, which ought to restrain our passions, should incite them to increased activity. That the progressive powers cannot accomplish the ends for which they are con- ceded to society, and that the happiness and liberty of our people will be made more secure when the State and Federal Constitutions are purged of the progressive powers. Whatever may be thought of his theory, no one who reads his pamphlet will deny that he displayed great boldness of thought and power of logic in developing it.


Mr. Walker was the youngest of the splendid array of


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counsel in the famous case of the scire facias against the Banks for forfeiture of charter on account of their suspen- sion of specie payments. He was solicitor of one of the Banks, and his printed argument in the cause is not only a specimen of his forensic power, but a monument to his ability and learning as a lawyer.


But Mr. Walker was not a mere reader of law. He was fond of the Latin classics, and frequently indulged in apt classical quotations. He cultivated his mind by various read- ing. The effect of liberal study was manifest in his style, which was polished as well as pointed. He was a jurist, even more than a lawyer, and loved the science rather than the practice of the law. He said, in one of his essays, that "the common law had no Sulpicius, because philosophy has been generally regarded as incompatible with its successful pursuit."


Now that he is dead, it is no flattery to say that, with a longer lease of life, and under more favorable auspices, he might himself have become its Servius Sulpicius.


With respect,


W. D. PORTER.


To HON. J. BELTON O'NEALL.


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BENJAMIN ELLIOTT, JR.


Among the young men who, some twenty years ago, were admitted to the Bar in South Carolina, and who gave early promise of professional distinction, no one was more remarked by his cotemporaries than the late Benjamin Elliott, Jr. Descended from a family who had always won favor from society by the urbanity of their temper and the intelligence of their mind, he inherited their amiable qualities in an eminent degree. His father was among the most popular and respected men of his generation, and the son equally possessed all those properties of head and heart which attract affection and insure esteem.


Benjamin Elliott, Jr., was the second son (and the fourth child) of Mr. Benjamin Elliott, of Charleston, South Carolina. He was born in the old family mansion in Legaré street, on the 31st day of March, A. D., 1818. His earliest education, as a boy, was received at the school of Mr. Southworth, a gentle- man of classical acquirement and reputation, and there he obtained a rudimental knowledge of those ancient authors, for whose writings he ever afterwards preserved a fondness and familiarity, and expressed a genuine and devout admira- tion. From the Academy he passed, in customary course, to the college. The Charleston College was at that time under the care of Rev. Dr. Jasper Adams, a man of very extensive and profound erudition in all the learning of a gentleman and a divine. He did not remain here, however, very long. His ambitious mind aspired to a wider field and a larger circle of educational advantage. The Columbia College, the much- loved and fostered institution of the State, offered to him much greater inducement, in the larger number and distinc- tion of its professorships, and the extended compass of its range of studies. In the seventeenth year of his age he en- tered the Junior Class, and graduated in the year 1837. His class was a large one, consisting of forty-two members, who


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had graduated-and it may be mentioned to his honor that he received the first appointment from among so many com- petitors-several of whom have since acquired a very honor- able fame and position in the State. From college, he imme- diately entered upon the study of the law, and was received and invited into the office of Mr. Henry A. DeSaussure. It would be needless to mention to any South Carolinian the high reputation of Mr. DeSaussure's office, and the great ad- vantages which would be enjoyed there by an intelligent and ambitious student. Mr. Elliott knew well the advantages which he had the good fortune to possess there, and, appreci- ating, he availed himself of them. He soon passed the usual examination, and was admitted to the Bar on 12th February, 1839, and now entered upon the pursuit of that profession for which he had been so well prepared. The same years he de- livered an oration before the Washington Light Infantry, which received high commendation from no less a judge than the Rev. Samuel Gilman. Circumstances invited him to establish himself in Georgetown, and he therefore removed his resi- dence from Charleston, with the purpose of practicing in Georgetown and Horry Districts. He was very soon offered a partnership in his business by Gen. W. W. Harllee, and associating himself with him, he gave evidence of superior cultivation, of a high order of intellect, and of an impassioned yet winning style of eloquence. But, although adorned by nature with all those virtues and affections which secure the happiness of being loved by friends, and bountifully endowed with those intellectual powers which command esteem and honor among our fellow-men ; yet Providence did not permit that he should reap any of the harvest whose seeds he had so carefully planted. His constitution seemed to have been always delicate, and the active and laborious energy of his mind tended still further to impair its resources. In the hope that a temporary change of climate might check the ravages of a pulmonary disease, he had traveled northward, and while in Philadelphia, the slow and solemn advance of death arrested him there, and there he died, away, indeed, from the peculiar comforts and tenderness of home ; yet friends sur-




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