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THE

BENCH AND BAR

OF

MISSISSIPPI.

BY
JAMES D. LYNCH.

NEW YORK :
E. J. Hale & Bos, Pcblishers, 17 Murray Street.
1881.

PKEFACE.
r I "^HiS work treats only of the dead, with the exception of
the last chapter, which is devoted to observations upon tlie
characters of eminent living lawyers who are more than three
score and ten years of age ; and in its preparation the author
has sought to present accurate sketches of the distinguished ju
rists and lawyers who have graced the jurisprudence of Missis
sippi, together with an exposition of the peculiar traits of char
acter by which they rose to eminence.
It is not assumed, however, that this work comprises the men
tion of every good man, or good lawyer of local repute, but
only of such as, owing to their varied pre-eminent qualities,
are justly entitled to the fee of eminence. There were many,
very many, of the former class whose characters are fully wor
thy of the most meritorious mention, and even a compendium
of whose deserts would fill the pages of many volumes ; but it
has been the design of the author to embrace only those whose
professional careers were characterized by transcendent genius,
and which gave marked dignity and elevation to Mississippi ju
risprudence. If he has omitted any of this class, the oversight
was due to a lack of information respecting their chatacteristics,
and their friends must take upon themselves, in part, the re
sponsibility, if such there be, of withholding intimations which
would have led to a thorough inquiry.
The lives of lawyers are generally monotonous, and void of
noticeable event. They leave, as a general thing, but little rec
ord of their merits, and a work devoted exclusively to profes
sional incidents must depend largely upon oral evidence and
traditional testimony ; and the only question, in those cases, is,
to whom did the concurrence of the bar and the voice of the
people accord the meed of eminence ? It is true that the latter
test subjects, arbitrarily, all claims to merit to the measure of
success, which cannot, in all cases, be accepted as a just crite
rion, for in this respect there is often a vice versa relation ; yet
it is the plumb-line by which the edifice must be mainly erected,

iv PEEFACE.
the adjustment rendered, and from which the definitive meas
urement must be obtained.
In the composition of this work the author has occupied a
neutral ground of observation. Save in two or three instances,
lie was neither the professional nor social contemporary of its sub
jects, and had no prejudices to subserve or predilections to gratify.
Lord Coke says that " a juror should stand indifferent as he
stands unsworn" ; and this has been the exact position of the
author. He has extended his researches throughoiut the State,
endeavored to obtain information from every known source,
weighed the evidence, compared the testimony, drawn his con
clusions from established facts, and striven to treat of merit in
respect to the degree in which he has found it. He has followed
the flash of the star of eminence, and subjected his pictures to
the brilliancy of its twinklings.
In the execution of his labors he has, in some instances, ex
perienced much difficulty in obtaining the necessary data, and
much perplexity in finding phrases to express the nice discrim
inations necessary in the analysis of character, and to define
its multifarious features, which' he has found to be as varied as
the outlines of form and the shades of color. But, such as it is,
the author bids its departure upon the wings of its fate ; and if,
like Noah's raven, it be lost upon the wide expanse, let his in
tentions be its only memorial ; but if it should return with the
olive-branch of favor, and the author should outlive the present
older generation of lawyers, he will supplement it with a second
volume, in furtherance of the record of that eminence of which
Mississippi furnishes so many illustrious examples, both among
her living and her dead.
To Mr. Justice H. II. Chalmers, of the Supreme Court, Gen
eral T. J. Wharton, and Attorney General T. C. Catchings,
who were appointed, respectively, by the Governor, the Chief '
Justice, and the author, as an advisory committee on the work,.
the author tenders his sincere thanks for their kind suggestions
and wholesome counsel, and for the patience with which they
withstood the annoyance incidental to that relation.
JAMES D. LYNCH.
West Point, Miss., December 1, 1880.

CONTENTS.

CHAPTER I.
introduction.
Genius — Its source — Its universal application — Its varied
manifestations — The certainty of its assertion — The Law
its peculiar sphere — Fame the meed of genius — The
common law a prolific school of fame  7
CHAPTER II.
The Mississippi Territory — Its Judicial Establishment —
The Bar — Eminent Lawyers — 1795-1817.
Harry Toulmin — Christopher Rankin — Thomas B. Reed —
Robert H. Adams — Lyman Harding— George Poindexter
— Joseph E. Davis  13
CHAPTER III.
Organization of the State Government — Its Judicial
Establishment — The Bench — Eminent Jurists — 1817-1833.
John P. Hampton — Edward Turner — Powhatan Ellis —
Joshua G. Clarke — John Taylor — John Black — Richard
Stockton — Joshua Child — George Winchester — Harry
Cage — Isaac R. Nicholson — Alexander Montgomery  79
CHAPTER IV.
The Bar— Eminent Lawyers— 1817-1832.
Robert J. Walker — William B. GrifiSth — William Vanner-
son — Spence M. Grayson — Alexander G. McNutt— Wal
ter Leake — Edward C. Wilkinson — Eugene Magee—
Buckner C. Harris — John T. McMurran — Samuel S.
Boyd — Samuel P. Marsh — John Henderson — Richard H.
Webber  109
CHAPTER V.
(Cliancery.)
The Bench — Chancellors and Vice-Chancellors — 1821-
1857.
John A. Quitman— Robert H. Buckner— Stephen Cocks —
Charles Scott — Joseph W. Chalmers— James M. Smiley. 149
CHAPTER VI.
The Constitution of 1832 — Remodeling of the Judiciary
— The Bench — Eminent Jurists — 1832-1850.
William L. Sharkey— Cotesworth P. Smith— Daniel W.
Wright — James P. Trotter — P. Rutilius R. Pray — Joseph
S. B. Thacher  '.  187

vi CONTENTS.
CHAPTER VII.
The Bar — Eminent Lawyers — 1832-1850.
Sergeant S. Prentiss — John I. Gnion — Joseph Holt — Volney
E. Howard — Anderson Hutchinson — Daniel Mayes —
W^illiam E. Anderson  ^  215
CHAPTER VIII.
The Bar— Eminent Lawyers— 1833-1861.
George S. Yerger — Roger Barton — Jacob S. Yerger — Albert
G. Brown — Patrick W. Tompkins — Henry S. Foote —
John H. Martin  361
CHAPTER IX.
• The Bar — Eminent Lawyers— 1832-1868.
William S. Barry — George R. Clavton — David C. Glenn —
Walker Brooke— James 0. Mitchell  291
CHAPTER X.
The Bench— Eminent Jurists— 1850-1880.
William Yerger — William L. Harris— Ephraim S. Fisher —
Ephraim G. Peyton — Collin S. Tarpley  335
CHAPTER XL
The Bar— Eminent Lawyers— 1833-1880.
Amos R. Johnston — James T. Harrison — John B. Sale —
William F. Dowd  371
CHAPTER XII.
The Bar — Eminent Lawyers — 1850-1880.
Fulton Anderson — George L. Potter — William A. Lake —
James Phelan — William R. Barksdale — Harvey W.
Walter  4^9
CHAPTER XIIL
The Convention of 1861 — The Constitution of 1868— A
View of the Present State of Mississippi Jurispru
dence — The Bar— Eminent Living Lawyers who are
more than Threescore Ai>iD Ten Years Old.
Samuel J. Gholson — Alexander M. Clayton — Alexander H.
Handy — James M. Howry— J. F. H. Claiborne  493
APPENDIX.
Judicial Data  533

CHAPTER I.

INTRODUCTION.
GENIUS  ITS SOURCE  ITS UNIVERSAL APPLICATION — ITS VARIED MANI
FESTATIONS  THE CERTAINTY OF ITS ASSERTION  THE LAW ITS
PECULIAR SPHERE  FAME THE MEED OF GENIUS  THE COMMON
LAW A PROLIFIC SCHOOL OF FAME.
The definition of that intuitive principle or subtle quality of
the mind, which we call genius, is yet an unanswered question ;
at least, it has never received an intelligent interpretation
among men. Its source hes concealed in the unexplored re
cesses of human nature ; nor is its presence known until,
awakened by the touch of opportunity, it bursts from its gyves,
and flashes upon the world with a light that illuminates the
extending scope of its own vision.
But, whatever may be the abstract nature of geuius, its qual
ities are readily recognized, and its manifestations easily judged.
Its course is upward and onward, and its flight is bounded by
no definable horizon, while its zenith is hidden somewhere iu
the realms of eternal and untarnished hght.
The application of genius is universal, and it has kindled its
beacons along the highway of every sphere of hfe, penetrated.
the occult depths and obscure labyrinths of every science, and
illumined a path for the advancement of every art. It is, in
deed, the assignable coefficient of all enterprise and the mul
tiplicative exponent of all progress.
N"or is genius to be measured by its means of appliance. It
perhaps required as much genius in Adam and Eve to patch
their fig-leaf aprons as in the manufacture of the finest, fabrics
of modern art, and as much in Noah to fit the timbers of the
ark as in the construction of the proudest vessel that ploughs
the waves of the western world. But from the summit of

8 BENCH AND BAR OF MISSISSIPPI.
Ararat it winged its way with new-fledged pinions until it
rested in triumph upon the pinnacle of Solomon's Temple ;
whence it gave sanctified utterance to the tongue of prophecy,
and guided the pen of inspiration along the.pages of Holy Writ.
Yet, while the hand of genius was hewing and fadiioning the
pines of Lebanon into the columns of the great temple, with up
lifted eye it gazed into the starry canopy of heaven, caught the
first glimpse of the star of Christianity, and, like a sentinel on
the watch-tower, heralded every gleam of knowledge that flashed
across its vision ; and thence, with increased glow, it illumi
nated the pages of Grecian and Roman literature, and evoked
those sparkling gems of thought whose corascations will dazzle
the eyes of the intellectual world to the end of remotest time.
But, in conformity with the vicissitudes of all human gran
deur, the eyes of genius were at length closed by the cold
finger of Fate ; and, hurled by the hand of barbarism from the
Tarpeian rock, it lay for ages hidden beneath the wreck and
ruins of the Roman Empire ; yet the spark glowed on until it
slowly arose from the smouldering ashes, burst through, the
pall of the dark ages, and rekindled its blaze in the revival of
learning. Yet, while the true course of genius is upward, it is not
always subordinated to the good of mankind, but is often per
verted and prostituted to unhallow^ed purposes by the wayward
passions that flourish in its train. While with pious sweat it
could carve the lofty architraves and rear the temple of Jeho
vah, it could with sacrilegious hand heave the huge rocks,
and pile them upon the Tower of Babel, with mad desire to
invade the very chambers of the Almighty. While it strung
the pastoral lyre and tuned the shepherd's reed, it gave
power to the destructive engines of Archimedes, and the
fatal twang to the archer's bow ; and though it glowed in
the natural laws of Kepler and the civil code of Justinian,
flashed through the glasses of Galileo, and illuminated the hal
lowed visions of Luther, it also glittered in the crown of Alex-
knder, burnished the helmet of Caesar, and flamed in the sword
of Bonaparte.
But, wdiatever may be the mode of its indication ; whether it

INTRODUCTION. 9
sparkles in the eye of the astronomer, smiles upon the lips of
the minstrel, frowns upon the brow of the misanthrope, decks
the finger of the artisan, or emblazons the sword of the con
queror, the characteristics of genius are the same. It is only
the purposes to which it is devoted, the motives by which it is
guided, and the brilliancy of its manifestations, that give to it any
variety of character ; and these are as varied as the channels of
human thought, the fires of human passions, and the spheres of
human action. It is the same principle that gives inspiration to
the poet, conception of beauty to the artist, brilliancy of
argument to the advocate, a lucid discernment to the judge,
religious fervor to the devotee, and ingenuity to the midnight
burglar and the common swindler. But in whatever direction
its prowess may be exerted, its qualities are soon manifested.
A man of genius is sure to assert his superiority in whatever
walk of life he may direct his course, and whether it be for the
good, or to the detriment of society, depends upon the passions
by which it is actuated. " Such men," says Lord Boling-
broke, speaking of superior spirits in elevated positions, " either
appear like ministers of divine vengeance, and their course
through the world is marked by desolation and oppression, by
poverty and servitude ; or they are the guardian angels of the
country they inhabit, busy to avert even the most distant evil,
and to maintain or to procure peace, plenty, and the. greatest
of all human blessings, liberty."
But, however certain may be the development of genius, its
conspicuity is often governed by circumstances, and frequently
trammelled by the presence of other and incompatible qualities.
Chief among these is timidity — a lack of courage sufficient to
command on all occasions the full and clear exercise of the fac
ulties, and to lay hold with proper alacrity and vigor upon
great and rare opportunities.
It was from this cause that Cicero failed in his defence of
Milo. He did not have the courage to display his usual and
natural eloquence in the f£|,ce of prejudice and under the frown
of power ; and Lord Erskine, through his reluctance to encoun
ter Mr. Pitt and Edmund Burke, lost the great opportunity
of his life in declining the defence of Warren Hastings ; while,

10 BENCH AND BAR OF MISSISSIPPI.
on the other hand, Lord Brougham wreathed his brow with im
mortal .glory by his bold defence of the unfortunate Queen Car
oline, in the face of courtly clamor and kingly opposition.
Genius is often marred also by passion and prejudice. If it
would retain its lustre, though clothed in the tinsel of elo-
, quence, its lips must be rouged with the carmine of kindness and
complacency. The angry invectives of Achilles gained him
no sympathy, while the soothing eloquence of Nestor swayed
the minds of the Grecian host. It is true that a judicious ap
peal ad hominem sometimes produces a wonderful effect, as in
the first oration against Catiline ; but the eloquence of genius
rarely distills from the pale lips of anger. The furious accusa
tions of Tertullus produced no formidable effect ; but we are
told that when Paul reasoned the court trembled ; and Lord
Coke greatly impaired his efficiency, and injured himself in the
eyes of posterity, by his virulence on the trial of Sir Walter
Raleigh when he condescended to thou him as a viper and
traitor. *
Of all the schools of science, there is no one so prolific of the
fruits of genius as that of the law. There is no sphere in life
that presents so many necessities and motives for its exercise,
and such a vast field for its development, as that of a lawyer.
His constant intercourse with all sorts and conditions of men,
and his frequent dealings with all the multiplied concerns of
life, render him familiar with human nature, with all the work
ings of the human heart : its virtues and its vices, its strength
and weakness, and the varied manifestations of its passions ; and
he necessarily becomes an expert in all the motives and a detec
tive of all the springs of human action.
The wide scope of his learning, the confidence reposed in his
honor and integrity, his tutored conservatism, and usual free
dom from the virulence of party and the malignancy of faction,
* When all argument failed him, Col£e, then Attorney-General, poured a
torrent of abusive epilhels upon the noble prisoner, and applied to him the
term thou : " Thou hast an English face and a Spanish heart, thou traitor ;
fori tfiou thee, thou viper." A reference is made to this signification of
t!iou in Twelfth Niglit, when Sir Toby Belch, in urging Sir Andrew Agueeheek
to send a sufficiently provocative challenge to Viola, suggests : " If thou
thou' St him some thrice, it shall not be amiss."

INTRODUCTION. 11
constitute for the upright lawyer a just claim to be a leader of
his fellow-men ; and when to this broad field of knowledge he
brings the rare gift of genius, it, at once, places him in the line
of distinction, and, with the aid of other and usually concomi
tant virtues, raises him, sooner or later, to a proud eminence of
superiority, and procures for him a just title to the fee of fame.
But, while the bar offers the most illimitable scope for its ex
ercise, it is the severest test, and most precise and exacting of
all the measures of genius. It permits no successful charlatan
ism, no ephemera of superficiality and pretention, but subjects
every candidate for superiority, every claimant to the quality
of excellence, to a just and infallible estimation.
A title to fame acquired under the eye of such close, com
petent, and penetrating scnitiny, amid such exacting circum
stances, and under such a nice adjustment of qualifications, is
surely of an exalted character, and worthy of the highest admi
ration of mankind. Such fame is not of that kind which Pope
would have us believe to be a temple of ice melting away with
each returning sun ; nor is it a mere second life upon the breath
of others, or posthumous inheritance founded upon custom or
arbitrary rules of descent ; nor does its tenure depend upon any
uncertain fine. It is the most certain and enduring of all
earthly possessions, the ultima ilvule of human attainment,
the crowning glory of pre-eminent virtue, the meed of an im
mortal name. No ;
Say not to me such greatness ever dies,
Or Lethe's waves can over virtue roll ;
For glory has its realms beyond the skies,
And there it copies of its earthly scroll,
There sets its music to celestial chime ;
And when its bright and proud historic page
No longer flutters to the breeze of time.
Beyond the reach of man's invidious rage.
Its shafts will rise where time knows neither youth nor age.
The vast and intricate system of common-law jurispnidence,
with its comprehensive doctrines, its nice shades, subtle dis
tinctions, and unlimited application, has been from time imme-

12 BENCH AND BAR OF MISSISSIPPI.
morial a fertile field of fame. It is there that we find those
brilliant precedents of eminence, those illustrious examples of
true greatness, which have afforded marks and models for the
aspiration of every country, and of every age since the days of
Runnemede. It is there that ambition may revel among the most gorgeous
pictutes of glory ; where genius can find an unlimited scope for
the exercise of its utmost powers ; where freedom may find
shelter from the pelting storms of oppression ; where the states
man can gather material for the fabric of the wisest govern
ment, and the patriot may clothe himself iu more than Vulca-
nian armor for the defence of the liberty and honor of his
country. It was in this field that Coke and Hardwicke, Mansfield, El-
don, and Burke, and a host of others no less renowned, erected
their monuments of eternal glory. Notwithstanding the diffi
culties of the way, the height and ruggedness of the ascent,
there is no sphere in life where so many hands are beckoning
from the lofty eminence, and where so many footprints lead to
the summit, as the law. Nor are these confined to the steps of
the Inner Temple, or to England's soil, but up the same path
way, and to a no less degree of eminence, ascended our Mar-
shalls, Storys, Taneys, Kents, and Sharkeys, and others, to
whom it will be no disparagement to add, to a less degree.
It is the purpose of this work to trace the tracks made by the
members of the Bench and Bar of Mississippi along this illu
minated highway ; to assign to each, as nearly as possible, the
just measure of his progress ; and to designate the qualities of
mind and traits of character by which it was advanced or re
tarded ; and, above all, to present a record of virtue and genius
that will, for all time, inspire the young men of Mississippi with
a lofty patriotism, a laudable ambition, and a determination to
achieve distinction and success.

CHAPTER IT.

THE MISSISSIPPI TERRITORY— ITS JUDICIAL ESTABLISH
MENT—THE BAR— EMINENT LAWYERS— 1 "795-1 817.
HARRY TOULMIN  CHRISTOPHER RANKIN  THOMAS B. REED  ROBERT
H. ADAMS  LYMAN HARDING  GEORGE POINDEXTER  JOSEPH E.
DAVIS.
The country comprised in the State of Mississippi formed a
part of what was known as the Mississippi Territory, and prior
to the year 1802, when it was ceded to the United States, be
longed to the State of Georgia. It was also claimed by the King
of Spain, as forming a part of British West Florida, and was
occupied by Spanish troops from 1783 until 1795, when, by a
treaty between Spain and the United States, the pre-existing
rights of Georgia were recognized and confirmed, and the
Spanish troops withdrawn.
But, from the year 1783, and during the entire period of the
Spanish occupation, Georgia, supported by the Government of
the United States, continued to assert her claim of ownership in
the soil, and by legislative enactments maintained her right of
sovereignty and eminent domain, and extended her laws and
jurisdiction over the country. Neither Georgia nor the United
States ever acquiesced in the Spanish occupancy ; nor did the
King of Spain exercise any civil jurisdiction over the country.
His dominion was confined to the lines of his military camps and
garrisons ; hence, upon its evacuation by the Spanish troops, it
was held that the wrongful occupancy left no trace of the civil
law of Spain upon the jurisprudence of the country ; and on
the organization of the Territorial government in the same year
of the Spanish treaty, the common law was declared in the Ter
ritorial constitution to be the law of the land. This provision was
also held to be a nullification of the Georgia statutes, which

14 BENCH AND BAR OF MISSISSIPPI.
otherwise would have become, by analogy, a part of the common
law of the Territory, as the English statutes in force at the
Declaration of Independence formed a part of the common law
of the States, and which were held to have been also excluded
by this act from operation in the Territory.
Thus it will be seen that a pure common-law course of juris
prudence was early established in the Territory ; and this con
tinues to be the law of Mississippi in all cases where it is appli
cable to our circumstances, adapted to the spirit of our institu
tions, and has not been expressly repealed, enlarged, or modified
by statute or varied by usage ; and our courts have constantly
rested a scrutinizing and jealous eye upon any statute passed in
its derogation. They have invariably given to such statutes a
strict construction, careful not to enlarge their import or opera
tion beyond the expressed intention of the Legislature. Hence
the legislative invasions of the common law in Mississippi have
been confined, for the most part, to such instances as are ren
dered necessary by the character of our government and the
condition of our society ; and it is to be regretted that the
common-law rules of pleading have been so simplified by statute
and the practice of the courts as to leave a broad gap in the
bar for the entrance of incompetence and ignorance. In this
respect it is to be confessed that a noble science has been de
graded through a mistaken notion of expediency.
Thus the lawyers of Mississippi were early introduced into
that illimitable and boundless field of jurisprudence, whose nice
distinctions, subtle intricacies, and comprehensive scope, had
awakened and given food and impulse to that brilliant array of
greatness which emblazons with glory the history of the Eng
lish courts.
In establishing the Territorial courts, the course of the com
mon law was, in every instance, cited as the oue to be 'pursued.
Indeed, the constitution and powers of these courts, their charac
ters, jurisdiction, and mode of procedure were all made similar,
as far as practicable, to the common-law courts as already estab
lished in the States ; and as the various changes and modifica
tions to which they have from time to time been subjected,
evince the necessities of the progress as well as the pecu-

THE MISSISSIPPI TERRITORY. 15
liarities of our society, I will present their character and
constitution in the order of their establishment. An act
passed on the 28th day of February, 1799, by the Territorial
Council, which consisted of the Governor and the three Terri
torial judges, provided for the establishment of a court to be
styled tlie General Quarter Sessions of tlie Peace., which was to
be held four times annually in every county, and that a com
petent number of justices should be nominated and commissioned
by the Governor in every county, under the seal of the Terri
tory, which justices, or any three of them, one being a justice
of the quorum, should hold the Oeneral Sessions of the Peace
when and as often as occasion required.
The power of these courts extended to the cognizance of all
crimes and misdemeanors, of whatever nature or kind, com
mitted within their respective counties, the punishment of
which did not extend to life, limb, or imprisonment for more
than a year, or forfeiture of goods and chattels, or lands and
tenements, to the government of the Territory.
From the judgment of these courts a writ of error lay to the
Supreme Territorial Court ; and the same act provided that the
Territorial judges should hold a supreme court once in every
. year in each county, at the place appointed for the courts of
General Quarter Sessions.
To these courts belonged, as a matter of course, the highest
judicial functions, and all the powers and scope of the Territorial
jurisprudence. Besides their appellate jurisdiction, they had
all the original functions of common-law courts of assize, of
oyer and terminer, and of general jail dehvery.
By this same act was established also a court of common
pleas, which was to be held four times annually in each county,
and for which a competent number of justices was to be com
missioned by the Governor, which said jutsices or any three of
them, according to the tenor and direction of their commis-
sionsj should hold pleas of assize, scire facias replevins, and hear
and determine all manner of pleas, actions, suits, and causes,
civil, personal, real, and mixed, and according to the course
of the common law.
In addition to these, an act was passed at the same session of

16 BENCH AND BAR OF MISSISSIPPI
the Legislative Council appointing a judge of probate in each
county, who should have cognizance of all matters belonging
and pertaining to a court of probate, except the rendering of
definitive sentences and final decrees. These courts were to be
held four times annually in each county, and, whenever it was
necessary that final decrees should be rendered, the judge was
required to call to his aid two of the justices of the court of
common pleas, and, when thus constituted, the court had full
probate jurisdiction.
In the same year an act was passed, entitled " A law for the
easy and speedy recovery of small debts," which provided that,
upon complaint being made to any justice of the common pleas
or of the peace against any debtor whose debt was under
eight dollars, he should issue his writ, causing the parties to
be brought before him forthwith, and, after hearing the evi
dence, should forthwith give judgment in the matter, which
should be final and conclusive to all the parties to the action,
without appeal ; and if the judgment was not immediately
satisfied, and no effects were found sufficient to produce the
amount, the constable was required to take the debtor to jail,
where he was to be safely kept until the sum recovered and all
costs should be paid.
By this same act, debts amounting to eight dollars and up
ward, and not exceeding twenty dollars, were made cognizable
before any justice of the common pleas or justice of the peace
in the county in which the defendant might reside ; who, upon
complaint, should issue his capias, or summons, if the defend
ant was a freeholder, requiring the parties to appear before
him ; and upon judgment being rendered and remaining un
satisfied, the constable or sheriff was required to convey the
debtor to jail, where he was to be safely kept until the amount
of the judgment and all costs were paid.
In 1803, the Territorial Assembly erected the town of Natchez
into a city, and there established the first mayor's court in the
Territory. This court had jurisdiction of all crimes and tres-.
passes committed within the city, in which the punishment did
not exceed a fine of fifty dollars, imprisonment for one month,
sitting in the stocks, or standing in the pillory ; and of all civil

THE MISSISSIPPI TERRITORY. 17
actions originating in the city for any amount not exceeding one
hundred dollars ; and all civil proceedings were made summary,
unless a jurj'- was demanded, which either party might do if the
matter in controversy exceeded twenty dollars.
From this court an appeal, when the amount involved ex
ceeded fifty dollars, lay to the Superior Court of Adams County.
An appeal lay also from the judgments of the mayor to the city
council, held by the mayor and aldermen, who were all com
missioned justices of the peace.
These courts performed the judicature of the Territorial gov
ernment, with but few changes in their functions, until the year
1807, when its equity cognizance was, for the first time, de
clared and established.
However simple and arbitrary may appear this system, it was
perhaps the best and most suitable one that could be devised for
the government of a Territory in which the population was
sparse and promiscuous, where business transactions were con
ducted on a small scale, and where it was necessary to enforce
the law of meum and tuum in a simple and summary manner.
A digest of its judicature is a truthful indication of the state
of a community ; and the great danger in the establishment of
the jurisprudence of a new country lies in the introduction of
the complex systems of older commonwealths.
While the courts of the Mississippi Territory were being
strained into conformity with the requirements and vast ma-
cliinery of the English common law, they were often perplexed
with the multitude of complications arising from the various
tenures of realty existing, or supposed to exist, in the Terri
tory. Great Britain had claimed the country as being an ap
pendage of the colony of Georgia, and in confirmation of its
claim had made grants of lands to its subjects. This claim, as
we have seen, was renewed by the State of Georgia, which also
issued patents to its citizens. Then followed the Spanish occu
pation, and large grants of the Territorial lands were made by
the Spanish Government ; and notwithstanding the acknowledg
ment by Spain of the pre-existing rights of Georgia, we find the
Territorial courts, and even the early courts of the State,
greatly confused in respect to the laws of alienation and descent
2

18 BENCH AND BAR OF MISSISSIPPI.
of landed property. While the civil law was, from the first,
protested and ignored, yet it seemed difficult to reconcile the
questions arising from ihe Spanish grants, held under the civil
code, with the rules of the common law. These questions
were, however, finally settled by the extinction of the supposed
civil tenures, and an exclusive application of the common-law
rules. But let us return to the organization of the Territorial courts.
The act of February 10th, 1807, ordained that the Supreme
Court of the Territory and the Superior Court of the District of
Washington should also be and act as courts in chancery, and
should have and exercise all the power, authority, and jurisdic
tion incident to courts of chancery, and clothed the Territorial
judges with power to issue all remedial writs.
This act also established a county court, to \be composed of
three justices of the quorum, and gave to them the powers of
probate and cognizance of all matters pertaining to orphans,
the registry of deeds, and the control of the county police.
This court superseded the powers of probate which had been
established, and its jurisdiction extended to all cases in which
the amount involved did not exceed one thousand dollars, ex
cept in real actions ; and from its proceedings an appeal lay to
the superior or circuit court of the county, which was presided
over by one of the Territorial judges. These courts were estab
lished by this same act, and were invested with general origi
nal civil and criminal jurisdiction, and with an appellate juris
diction from the county courts. The judges were prohibited
from charging juries in respect to matters of fact, but they
might sum up and state the testimony, and declare the law ;
and the Governor of the Territory was authorized and required,
by and with the advice and consent of two of the Legislative
Council, as often as necessary, to issue a commission to the
judges of the superior courts of the Territory, empowering them,
or any two of them, or the judge of the Superior Court of
Washington District alone, in the district, to hold a court of ses
sions of the peace, and oyer and terminer, for the trial of
criminals of whatever nature or degree, and to give judgment
and award execution.

THE- MISSISSIPPI TERRITORY. 19
But the judges might hold a special term when necessary, at
their own discretion, being empowered to do so by an act fixing
the mode of summoning juries, and for other purposes. And
this same act established a court of record, to be called and
styled the "Supreme Court of the Mississippi Territory."
This court was to be held by the Territorial judges at a fixed and
designated place, but they were also required to hold a court
of record, to be called and styled the "Circuit Court of the
County of" (naming the county), twice in every year in each of
the counties of Wilkinson, Adams, Jefferson, and Claiborne; but
these county courts were to have cognizance only of those cases
in which the amount claimed amounted to two hundred dol
lars ; all cases involving a less amount being referred to the
county court before the justices of the quorum.
But in 1809, the Legislature abolished the circuit and supreme
courts, and conferred their jurisdiction upon a superior court
of law and equity, to be held in each county.
This system remained unchanged until the year 1814, when
it was enacted that the Territorial judges should hold, semi
annually, at the court-house in Adams County, a Supreme Court
of Errors and Appeals. From this court writs of error issued
to the several superior courts of law and equity ; also writs of
certiorari, habeas corpus, and all remedial writs pertainable to
a supreme court of errors and appeals ; but no cause could be
removed into this court until final judgment in the court below,
except when the judge below doubted as to the law or rule of
decision ; in that case he might respite the final judgment and
refer the question to the Supreme Court. He was required, in
this case, to send up a written statement, if not already of
record, of the matter or points in doubt, together with the other
proceedings in the cause, and thereupon the Supreme Com-t
took cognizance, granted judgment, and awarded execution,
unless it was necessary to ascertain some fact that went to the
merits ; in that case the cause was remanded to the court below
for the action of the jury.
By this act the several superior courts of law and equity
were given exclusive jurisdiction and cognizance of all actions
and suits in which the value of the matter in controversy ex-

20 BENCH AND BAR OF MISSISSIPPI.
ceeded fifty dollars ; and the jurisdiction of the justice courts
was extended to that amount.
This was the character and constitution of the Territorial courts
in 1817, when the State Government was inaugurated. In con
nection with the character and functions of its courts, the author
would like to be able to trace the history of the most eminent
judges of the Territorial Government ; and his inability in this
respect is a source of as much regret to him as it can be of dis
appointment to the reader. He has been able to obtain but lit
tle authentic information in regard to the early officers of the
Territory, either from record or tradition. Those appointed by
Mr. Adams and Mr. Jefferson were either Northern men or
Virginians, and many of them were mere favorites of the ad
ministration under which they were appointed.
But the bar of the State has, frond the first establishment of
its courts, been adorned with pre-eminent ability. The rich
ness and reputation of its lands, and the conflicting tenures by
which they were held, arising from British, Spanish, and
Georgia grants ; the efforts of the early courts to reconcile the
conflicting rules of the civil and common law in regard to aliena
tion and descent ; the establishment of banks of unlimited
issues, and the consequent speculation and reactionary crises,
produced a vast amount of litigation, that required and early at
tracted to the Mississippi Territory an unusual array of legal
talent. It is to be regretted that so little can be ascertained, at this
day, in respect to the nativity and private character of many
of the eminent lawyers of that period ; their early struggles,
their vigor of resolution ; their laborious ascent and final tri
umph would surely present a narrative sparkling with instruc
tive incidents and striking events ; but the corroding finger of
time has dimmed the records of their greatness, and stilled the
hearts upon whose tablets their virtues were inscribed, leaving
only, here and there, a glimmer of those lights whose brilliancy
has been rekindled with a purer flame in a higher and eternal
sphere. Notwithstanding that the public career of nearly all of
the following gentlemen extended far down in the annals of the

HARRY TOULMIN. 21
State, yet they were closely connected with the establishment
of the Territorial jurisprudence, and for that reason the sketches
of their lives have been assigned to this chapter.

HARRY TOULMIN.
It is not known of what State Judge Toulmin was a native.
He was appointed by Mr. Jefferson to be one of the judges of
the Mississippi Territory ; and we find him exercising that
office in the year 1805, when he was chosen by the General As
sembly to digest the laws of the Territory. This task he per
formed with fidelity and ability. His Digest is forcible, lucid,
and comprehensive, and shows a thorough acquaintance with the
rules of the common law, and a profound and accurate concep
tion of the laws best adapted to the society of the Territory,
and most conducive to its progress. In 1800, we find the act
ing Governor of the Territory congratulating the Assembly on
the completion of thip able compilation of the laws, and com
mending the author as deserving the thanks of his country, and
suggesting that his reward should be proportionate to his merits.
In 1807, the General Assembly, after some few alterations
and amendments, adopted the Digest as the law of the Terri
tory. The Assembly at the same time required Judge Toulmin
to add to his Digest all the laws passed at that session, and
declared that when so enlarged it should bear the title of ' ' The
Statutes of the Mississippi Territory, revised and digested by the
authority of the General Assembly," and that, after the ensuing
October, all the laws of the governor and judges, all acts of the
General Assembly of the Mississippi Territory, and all statutes
of England and Great Britain, not contained in the said volume
of statutes, should cease to be of force or validity in the Terri
tory. Judge Toulmin was also requested by the Assembly to pre-.
pare a set of forms and brief general principles for the informa
tion of justices of the peace, and to furnish the public printer
with such ordinances and acts of Congress as related to the
Mississippi Territory, to land titles within the same, to crimes

22 BENCH AND BAR OF MISSISSIPPI.
and misdemeanors, and the intercourse with the Indian nations,
with the articles of cession between the United States and
Georgia ; and that the whole be added to the volume of
statutes. The Digest of Judge Toulmin, thus enlarged, begins with
the first proclamation of Winthrop Sargent, first Governor of
the Mississippi Territory, creating the two first counties, Adams
and Pickering, the latter being afterward changed to Jefferson ;
and embraces all the laws in force on the 1st day of March,
1808, and is of value, not only on account of the genius and
ability displayed in its adaptation, but also on account of the
knowledge it affords of the origin and progress of our jurispru
dence, the sure indication of the state and progress of society.
The last record we find of Judge Toulmin is a correspond
ence, held in 1813, between him and Governor David Holmes,
in regard to organizing and equipping the Territorial tr9ops in
anticipation of the approaching Creek war, after which he
passed from the stage of public affairs, and carried with him into
his retirement the meed of a life adorned with a conscious
and acknowledged benefaction.

CHRISTOPHER RANKIN.
The subject of this sketch was born in Pennsylvania, and was
educated at Cannonsburg. He then emigrated to Georgia,
where he taught a village school and prepared himself for the
bar. In 1809, he removed to Mississippi, and was for a long
time an able and efficient member of the Territorial Legisla
ture. He represented the connty of Amite, out of which the
county of Rankin was formed, and named in his honor. He
was also a member of the convention that formed and adopted
the first constitution of Mississippi. He was an able and suc
cessful lawyer, a man of stern integrity and unswerving patriot
ism. He possessed in a high degree those quahties of mind
and heart so necessary in the composition of eminence — a sound
judgment, an unwearied energy, and an uprightness of charac
ter which commended him to the confidence and esteem of his

THOMAS B. REED. 23
fellow-citizens. He did much toward the establishment of that
sound basis upon which the splendid fabric of our jurisprudence
hiis been reared.
Mr. Rankin was engaged in some of the first cases argued
before the Supreme Court of the State, and to the management
of which he brought that skill and learning which had signalized
his career before the courts of the Territory. He continued his
practice with increasing reputation until the year 1821, when
he was elected to a seat in the national House of Representa
tives, to succeed the gifted Poindexter. This office he filled
with great credit and fidelity, though he was not gifted with
any eminent powers of oratory. He was more of a matter-of-
fact advocate and legal logician than polished elocutionist. He
remained in Congress until 1827, when he retired from political
life, and died in Washington, carrying with him to his grave the
unsullied laurels of a useful and successful career, both in the
council and the forum, and, it might be added, in all the rela
tions of life.

THOMAS B. REED.
Mr. Reed was a native of Kentucky, and had acquired some
reputation as a lawyer before emigrating to the Mississippi
Territory. He was remarkable for his laborious application and
unswerving devotion to his profession, to which he adapted and
devoted all the energies of his nature. To this feature of his
character, and to the native vigor of his mind, was due that
thorough mastery of the mysteries of the common law for which
he became celebrated. His early education had been neglected,
and his store of general learning was limited, hence he at
tempted no display of eloquence other than that which his
thorough knowledge of the law evoked and his genius inspired.
Though stiff and punctilious in his manners and bearing, he
was a favorite among the members of the bar, especially the
younger members, to whom he was ever ready to extend a lift
ing hand, and to whom he revealed beneath his seeming hauteur
a kind and generous heart.

24 BENCH AND BAR OF MISSISSIPPI.
The reputatiou of Mr. Reed rose rapidly on his appearance
at the bar of the Territory. The intricate questions arising from
the variety of land tenures, and the difficult application of the
common-law rules to the developing and multiplying concerns
of the country, afforded an ample field for his genius and the
exercise of his familiarity with the precedents and decisions of
the common-law conrts.
Mr. Reed made his appearance before the Supreme Court of
the State in the first criminal case brought before that tribunal,
the State vs. the Blennerhassetts, which he argued for the de
fence, at the June term, 1818. His reputation at the bar con
tinued in the ascendency, and, in 1821, he was elected Attomey-
General of the State, which office he filled for four years with
great ability. In 1827, he was elected to the Senate of the
United States. His legal knowledge and familiarity with the
fundamental principles of our Government soon attracted atten
tion in that body of able lawyers ; and his speech upon what
was known as the "Judiciary Question" gained for him the
admiration of the Senate, and was highly commended by the
press of the period. He died in 1829.

ROBERT H. ADAMS.
Mr. Adams was a native of Virginia, and born of poor and
obscure parents. It is said that in his early youth he was ap
prenticed to the cooper's trade, and pursued that occupation into
manhood. He consequently obtained but little education in his
youth ; but he possessed a native endowment of genius and
perseverance, which inspired his bosom- with an ambition to
achieve a place and a name among men. Like many young
men of this character, Mr. Adams, notwithstanding the appar
ently insuperable difficulties attending his path, directed his at
tention to the study of the law. His conscious vigor and natural
sedulity of mind dispelled the gloom that hung over his pros
pects, and his resolution prompted him to undertake that which
his ambition coveted. After acquiring a sufficient knowledge of
the rudiments of law to gain him admission to the bar, he bade

ROBERT H. ADAMS. 25
farewell to his native valley, and made his residence in East
Tennessee, where he entered upon the practice of his profession ;
here he soon commanded notice and patronage, and rose rapidly
in his profession ; yet his aspirations were not satisfied, and the
prospects of the rich harvest of litigation which the Western
Territories then presented seemed to offer the field he desired ;
hither he removed, and established his office in the city of
Natchez, where he at once entered upon a career brilliant
and arduous.
Natchez at this time was noted for the legal ability that
adorned its bar ; but Mr. Adams was equal to the severe test
which a claim to superiority demanded, and was soon recognized
as one of the most skilful and logical as well as most learned
advocates at that bar of eminence. While he was deficient in
general learning, his vigorous mind grasped and embraced the
subtleties of the law with an alacrity and comprehension that
impressed his opponents with surprise, the court and bar with
admiration, and his hearers with a conviction of his superiority.
Mr. Adams possessed in a high degree that versatility of ex
citation which can awaken at pleasure the feelings of sympathy
and abhorrence. He could recount the tales of sorrow and mis
fortune with a pathos that would moisten the eyes of all hearers,
thrill at one moment the tenderest cords of the heart, and at
the next, twang the arrows of indignation and scorn ; while he
could pour forth the melting strains of commiseration, he could,
when necessary, hurl the awakening thunders of wrath and ven
geance until the culprit would writhe in the agonies of con
scious guilt.
His mind was always clear and ready, and so plain were his
statements of facts, so lucid his presentations of the law, that
no ingenuity of argument, no skill of abstraction, could pervert
their meaning or obscure his position.
Mr. Adams possessed a warm and sympathetic heart, and was
a general favorite among the people. He was elected, in 1830,
to the United States Senate in the place of itr. Reed, who died
the year preceding. Here the prospects of Mr. Adams were
brilliant in the highest degree, and his learning, eloquence, and
winning address, would, no doubt, have gained for him a national

26 BENCH AND BAR OF MISSISSIPPI.
fame had not the untimely hand of death checked his marvellous
career. He died in a short time after his election to the Senate,
beloved by all who knew him, leaving a multitude of friends,
and not an enemy.

LYMAN HARDING.
Lyman Harding, the first Attorney-General of the State of
Mississippi, was a native of Massachusetts. Having received a
good education, he emigrated at an early age to the State of
Maryland and engaged in teaching a country' school ; but, like
most young men of talent and resolution, he desired a sphere
more flattering to his ambition and more congenial to his high
resolves, and, turning his attention to the study of law, he pre
pared himself for the bar while pursuing the vocation of a teach
er. In this occupation he was engaged during several years,
at the expiration of which, having obtained license to practice
his chosen profession, he determined to seek his fortune in the
South-west, and, making his way on foot to the city of Pitts
burg, he descended the Ohio on a flat-boat to Louisville, and
there opened a law office. But the circumstances of his first
efforts were unpropitious, and, his means being exhausted, he
again boarded a flat-boat and worked his passage as a laborer to
Natchez, \vhere he arrived soon after the establishment of the
Territorial Government. Here he found a brisk and stirring
arena, occasioned by the mixed tide of immigration which was at
that time flowing from all parts of the country to the rich soil
of the new Territory, and, amid the consequent speculation in
lands and mercantile thrift, the legal attainments of Mr. Hard
ing were soon called into requisition, and he immediately entered
upon a thriving practice.
He possessed much of that shrewdness and acute insight in
the chances of profit characteristic of his nativity, and soon ac
cumulated a considerable fortune. Bold, talented, and ener
getic, his qualifications were well adapted to his professional
requirements, and it was not long before he enjoyed the most
lucrative practice in the Territory. He had no political am.

GEORGE POINDEXTER. 27
bition, and devoted all his energies to his profession ; but his
learning and vigorous habits could not escape the public demand
for his services, and, on the organization of the State Govern
ment, he was elected Attorney-General.
In this capacity, besides his duties before the Supreme Court,
he was required to attend the sessions of the Legislature, to
give his opinions as to the constitutionahty of its acts, and,
when required, to draw bills for the members. His salary was
fixed at one thousand dollars, and seven dollars per day in ad
dition were allowed him for every day of his attendance upon the
Legislature. He was also required to attend the courts in the
first and second judicial districts.
But the abihty of Mr. Harding was equal to the multiplicity
of his duties, and he maintained the character of being an effi
cient officer, and held a high rank at the bar to the time of his
death, which occurred in 1820.

GEORGE POINDEXTER.
When Demosthenes was asked, on one occasion, what was the
chief ingredient of eloquence, he replied, " Action" ; but he did
not mean by this the mere gestures of the body, or theatric
motions of the limbs ; he meant that action which involves the
practice of the principles we advocate, which not only indicates
the sentiment that inspires •elo4uence, but impresses it into a rule
of conduct — an incentive to achievement, a passion for doing.
For eloquence and action have their origin in the same source,
and, as a general thing, that which inspires eloquence is also an
incentive to action. The man who can discourse eloquently and
effectively upon the subject -of charity must be a liberal man.
He who can rise to the height of the subject, and picture the
sunny features of liberty must be a free man ; and he who can
pluck its colors and stamp them in the language of thrilUng in
centive must be a patriotic man.
" The highest order of eloquence," says Mr. Blair, "is al
ways the offspring of passion. A man may persuade others
to act, by mere reason and argument ; but that degree of elo-

28 BENCH AND BAR OF MISSISSIPPI.
quence which gains the admiration of mankind, and properly
constitutes an orator, is never found without warmth or passion.
Passion, when in such degree as to arouse and enkindle the mind
without throwing it out of the possession of itself,* is universally
found to exalt all the human powers. It renders the mind in
finitely more enlightened, more penetrating, more vigorous and
masterly, than in its calmer moments. A man actuated by a
strong passion becomes much greater than he is at other times ;
he is conscious of more strength and force, he utters greater
sentiments, conceives higher designs, and executes them with a
boldness and felicity of which, on other occasions, he would
think himself utterly incapable."
If such be the effects of occasional exhibitions of passion, we
must attribute the constant capacity for eloquence to some con
stant and sempiternal influence, some ruling and ever-present
motive. This motive may be, as it often is, a selfish ambition,
or a desire of applause, or it may arise from the softer emotions
of the heart, or from a spirit of pure patriotism, in which are
blended all the noblest sentiments of humanity. To this last we
have no hesitancy in ascribing those constant and wonderful
powers of eloquence which characterized the subject of this
sketch. George Poindexter, one of the proudest and brightest names
in the annals of Mississippi, was a native of Virginia, and
sprang from a large and influential family in that State. I have
been able to ascertain but little ill regard to his early life ; but
he must have had the advantages of a finished education. He
made his appearance in Mississippi soon after the organization of
the Territorial Government, where his rare genius and ability
were soon recognized ; and we find him a member of the Terri
torial Assembly as early as 1805, in which he assumed and held
a leading and influential position until the year 1807, when he
was elected to represent the Territory in the Congress of the
United States.
The following is his reply to the committee informing him of
his election :
" Gentlemen : I receive, with emotions of gratitude and re
spect, the notification of my election as the delegate from this

GEORGE POINDEXTER. 29
Territory to the Congress of the United States. After a resi
dence among you of several years, during which time I ha ve been
principally engaged in the public service, nothing could contrib
ute more to my gratification than the sanction of the enlight
ened representatives of that community whose welfare has, in
part, been committed to my care and management.
" The task assigned me is indeed an arduous one : various re
flections lead to a conviction that it may become still more im
portant and difficult, and I almost despair of meeting the just
expectations of the people whose interest I am deputed to rep
resent ; but whatever of talents, whatever of information or
industry I may possess, shall not fail to be called forth in pro
moting the advancement of our common prosperity and inde
pendence. " Accept, gentlemen, for yourselves and both Houses of the
General Assembly, ray warmest acknowledgments for the high
confidence you have conferred on me, and the assurances of my
best wishes for your individual happiness. "Geo. Poindextee. "
The course of Mr. Poindexter as the representative of the
Territory in the Congress of the United States was marked at
once with the utmost fidelity to the interest of his constituents,
and with an ability that attracted the admiration of that body
and the attention of the country ; and to him was due, for the
most part, that legislation, both at home and in Congress, which
was so favorable to the progress of the Territory and the devel
opment of its resources ; to the establishment of a healthy ju
risprudence, and the advancement of every interest.
On the expiration of his career in Congress as the delegate
from the Mississippi Territory, Mr. Poindexter resumed his
practice of law, but in 1813 he was commissioned by the Presi
dent of the United States as one of the judges of the Superior
Court of the Territory ; and, in 1817, we find him an active
and leading member of the convention for the organization of
the State Government. He was chairman of the committee ap
pointed to draft a form of government and constitution for the
new State, and to him we are, in a great measure, indebted for

30 BENCH AND BAR OF MISSISSIPPI.
that admirable charter under which our State was launched
upon its brilliant career of sovereignty.
On the organization of the State Government in 1817, Mr.
Poindexter was again chosen as the representative of his people
in the national Congress, to which, returning with a riper expe
rience in the art of government, he entered upon a career as
remarkable as it was brilliant and admirable.
In 1819, he delivered in the House of Representatives his
celebrated speech on the Seminole War. This speech was
evoked by the introduction of a resolution censuring General
Jackson for causing the execution of the noted incendiaries and
instigators of the war, Arbuthnot and Ambrister ; for his seizure
of the Spanish posts of St. Marks and Pensacola and Fortress
Barancas, which acts were alleged to have been done in violation
of the law of nations and the express commands of the Presi
dent of the United States.
Mr. Poindexter, after a comprehensive review of the nature,
origin, and progress of the war, and a most masterly and elo
quent vindication of the conduct of General Jackson, closed this
speech with a peroration which fell like a thunderbolt upon the
enemies of the noble old chief, and like an electric spark upon
the patriotic spirit of the country. The conduct of General
Jackson was vindicated and approved, and the machinations of
his opponents brought to confusion and shame. This speech
was highly commended by the press of the period. It stamped
Mr. Poindexter as one of the most accomplished and eloquent
orators in the national House of Representatives, and gave him
a just title to that splendid fee of fame which he afterward en
joyed. This speech is introduced in full in connection with this
sketch. In November, 1819, and before the expiration of his term in
the national House of Representatives, Mr. Poindexter was
elected Governor of Mississippi, and entered upon the duties of
that office on the 5th of January, 1820. In his message of that
date to the Legislature he said : " There can be nothing more
dear to the heart of the patriot than the prosperity, the honor,
and glory of his country ; and no reward for sacrifice incurred
in the discharge of duties necessary to the attainment of these

GEORGE POINDEXTER. 31
great objects is more precious than the smiles of an approving
conscience and the unbought plaudits of an enlightened people.
To merit the former is the full measure of my ambition, and to
receive the latter is a solace which consummates all my wishes. "
At the expiration of his term as Governor of the State, Mr
Poindexter again retired to private life and devoted himself tc
the practice of his profession ; but while he was yet Governor,
the Legislature passed an act authorizing and requesting him to
revise and amend the statutes of the State. This duty he per
formed in a most able and satisfactory manner, and in 1822, his
code was completed, and estabhshed as the law of the State ;
and the Legislature, by a joint resolution of June 29th of that
year, tendered to him the gratitude of the State for the fidelity
and ability with which he had accomplished the task, and pre
sented him with an elegant copy of the Encyclopsedia.
In November, 1830, he was again called from his professional
vocation, and elected by the Legislature of Mississippi to a seat
in the United States Senate. In this position he manifested
those increased abilities which experience engenders, and to the
exercise of which this enlarged sphere gave plentiful scope.
Mr. Poindexter had an exalted idea of American liberty, of
the rights of the States, and of the people. He was extremely
jealous of the least exercise of unwarranted power by Congress,
or by either branch of the General Government. He was a
strict constructionist of the Constitution and spirit of our Gov
ernment, and though he had so ably and vehemently defended
General Jackson in the House of Representatives ten years be
fore, yet, when on the occasion of a resolution of censure, in
1834, President Jackson sent to the Senate his memorable pro
test, and which, as Mr. Poindexter conceived, was not couched
in the language of courtesy and respect, he immediately as
sailed it as a breach of privilege.
He said : " I will not dignify this paper by considering it in
the light of an Executive message : it is no such thing. I re
gard it simply as a paper with the signa,ture of Andrew Jack
son ; and should the Senate refuse to receive it, it will not be
the first paper with the same signature which has been refused
a hearing in this body, on the ground of the abusive and vitu-

32 BENCH AND BAR OF MISSISSIPPI.
perative language which it contained. This effort to denounce
and overawe the deliberations of the Senate may properly be re
garded as capping the climax of that systematic plan of opera
tions which has for several years been in progress, designed to
bring this body into disrepute among the people, and thereby
remove the only existing barrier to the arbitrary encroachments
and usurpations of Executive power."
Mr. Poindexter retired from the Senate in 1836, now full of
years, and crowned with the laurels of a brilliant, useful, and
exemplary life.
We have traced this remarkable man through his long
and eminent career of public benefaction ; let us now notice
some of those traits of character that achieved for him so much
success. Mr. Poindexter was a profound lawyer, notwithstanding his
varied and almost constant public services : his early preparation,
his genius, and assiduity, had enabled him to acquire a mastery
of the science of jurisprudence. He was an impressive and
eloquent speaker, but his eloquence was more .like a torrent that
sweeps everything before it, than that Ciceronian gentleness that
glides upon the waves of conciliation. Mr. Poindexter was
fond of the argumentum ad hom.inem • he did not depend so
much upon the fickle wand of suasion as upon the rod of rea
son : he gained the citadel of conviction by storm, direct, and
full in front, rather than by the crouching manoeuvres and cir
cuitous paths of allurement. He possessed a keen sense of
honor, and was open and generous in all his dealings ; punctil
ious in the discharge of his public duties, and resolute in the
prosecution of every undertaking. He was all that Horace
meant by his '^Justus et tenax propositi vir.''''
But, above all, was his lofty spirit of patriotism. He was
proud of his country, and loved his adopted State with an ardor
that aroused his genius and kindled the fires of his soul. While
he lacked, perhaps, that gloss and meteoric flash which charac
terized the eloquence of Curran and Prentiss, he possessed in a
high degree that steady glow of genius and that power of apt
ness and elegance which gave lustre to the discoui-ses of Pitt
and Webster.

GEORGE POINDEXTER. 33
Mr. Poindexter was engaged at the bar in most of the noted
eases of his time in the Territory, and always fully met the
apprehensions of his opponents and the expectations of his
friends, with increased distinction.
It fell to his lot, in the early part of his career, to prosecute
the famous Aaron Burr, who, while making his firet descent to
New Orleans, was arrested at Natchez and subjected to a judi
cial examination in the neighboring town of Washington, then
the seat of the Territorial Government. Mr. Poindexter con
ducted this prosecution with energy and ability ; but Mr. Burr
had many powerful friends in the vicinity — men of wealth and
influence — who came to his rescue, and in consequence, notwith
standing the strenuous efforts of Mr. Poindexter, he was acquit
ted. But, no doubt, the distinguished prisoner was no less sur
prised than chagrined to find his plans penetrated by the eye of
scrutiny, and disclosed by the tongue of eloquence, on the part
of a yomig Territorial lawyer on the banks of the Missis
sippi- Mr. Poindexter -was a 'stanch advocate of popular educa
tion : he fully comprehended and appreciated the fact that a
people to be free must have a knowledge of their rights and the
duties they owe to society. In his message to the Legislature
in 1820, he said :
" Before the august and overwhelming tribunal of a nation of
freemen, whose minds have been reared and nurtured into full
.maturity under the benign influence of institutions recognizing
the unrestrained toleration of religious and political opinions,
and embracing the wide range of human rights, limited only
by the condition of society, tyranny and bigotry stand appalled,
and sink beneath the weight of reason.
" Our forms of government rest on the virtue and intelli
gence of the people, without which they will tumble into one
general heap of irretrievable ruins.
" The avenues to education and knowledge ought to be made
accessible to every youth, without distinction of rank. From
the humble cottage surrounded by penury and want the bright
est luminaries of intellect and virtue often burst forth, and the
hero or the statesman is seen, rising from obscurity, to add
3

34 .BENCH AND BAR OF MISSISSIPPI.
honor and renown to his country, and adorn the pages of its
history." Mr. Poindexter did much toward the establishment of a sound
and expeditious system of jurisprudence in Mississippi, and it
waS the vivid picture he presented, in his message of 1821, of
the evils attending a combination of the common-law and chan
cery courts, that induced the Legislature at that session to
establish a separate chancery jurisdiction in the State.
"The establishment," said he, " of a rule of conduct and
system of judicature that will- bind society together, and which,
with adequate penalties for every infraction of the public tran
quillity, will furnish a certain and speedy redress of private
wrongs, that will protect the weak from oppression and the
virtuous from the snares and encroachments of the vicious, call
for the best energies of the human mind, and should engage
the attention of philanthropists and statesmen in every quarter
of the civilized world."
Such were the utterances of one whose character I have thus
feebly attempted to depict — a character of which the pen of a
Thucydides, a Channing, or an Irving might tremble and
grow dry in the effort of portrayal — a man whose biography is
written in the laws and jurisprudence of his country, and whose
epitaph is inscribed upon the proud monument of Mississippi.
SPEECH ON THE SEMINOLE WAR, 1819.
The House being in Committee of the Whole on the resolu
tions censuring General Jackson for his conduct of the war,
Mr. Poindexter addressed the Chair as follows :
" I rise, Mr. Chairman, under the influence of peculiar sen
sibility, to offer my sentiments on the subject before the com
mittee. We are called upon to disrobe a veteran soldier of the
well-earned laurels which encircle his brow, to tarnish his fame
by severe reproaches, and hand down his name to posterity ' as
the violator of the sacred instrument which constitutes the char
ter of our liberties, and of the benevolent dictates of humanity by
which this nation has ever been characterized and distinguished.
Were the sacrifice of this highly meritorious citizen the only evil

GEORGE POINDEXTER. 35
with which the proposed resolutions are fraught, I should de
rive some consolation from the reflection that there is a redeem
ing spirit in the intelligence and patriotism of the great body of
the people, capable of shielding him against the deleterious con
sequences meditated by the proposition on your table. But there
is another and a more serious aspect in which the adoption of
these resolutions must be viewed : the direct and infallible ten
dency which they involve, of enfeebling the arm of this Govern
ment in our pending negotiation with Spain ; of putting our
selves in the wrong and the Spanish monarch in the right, on
the interesting and delicate points which have so long agitated
and endangered the peace of the two countries. I wish not to
be understood as attributing to honorable gentlemen who advo
cate the measure such motives ; they are, doubtless, actuated
alone by a sense of duty. I speak of the effects which our pro
ceedings are calculated to produce, without intending to cast the
slightest imputation on those who entertain different opinions.
" Sir, do we not know with what satisfaction the minister of
Spain looks on the efforts which are made on this floor to incul
pate the Executive of the United States, for having committed
against his immaculate mastev an act of hostility, in the entrance
into Florida, and the temporary occupation of St. Marks and
Pensacola ? With what avidity and pleasure he perused the
able and eloquent arguments, delivered in the popular branch of
the Government, in support of the mighty allegations which he
has already exhibited of the hostile and unwarrantable conduct
of the commander of our army during the late campaign against
the Seminole Indians ? And, sir, whatever may be the purity
of intention, which I shall not presume to question, on the part
of gentlemen who censure the course pursued by the command
ing general, this debate will afford a valuable fund on which
Spain will not fail to draw, on all future occasions, to show that
the pacific relations which she has endeavored to maintain have
been violated without any adequate cause by the United States.
Shall we put it in her power to make this declaration to the
civilized world, and establish the fact by a reference to the
journal of the House of Representatives ? I hope and believe
we shall not.

36 BENCH AND BAR OF MISSISSIPPI.
" Sir, the nature of our free institutions imperiously requires
that, on all questions touching controversies with foreign pow
ers, every department of this Government should act in con
cert, and present to the opposite party one undivided, impene
trable front. The observance of this accords with every dictate
of patriotism, and is the basis on which alone we can preserve
a proper respect for our rights among the great family of na
tions. Internal divisions are often fatal to the liberties of the
people ; they never fail to inflict a deep wound upon the na
tional character, the lustre and purity of which it is our pri
mary duty to preserve unsullied to the latest posterity.
" Can it be necessary to call to the recollection of the com
mittee the peculiar and delicate posture of our relations with
Spain? A protracted and difficult negotiation, on the subject
of boundary and spoliations, is still progressing between the Sec
retary of State and its accredited minister at this place ; the
result is yet extremely doubtful ; it may, and I trust will,
eventuate in a treaty satisfactory to the parties on all the points
in contest ; but if Spain should continue to reject the moderate
and reasonable demands of this Government, the indisputable
rights of this nation must and will be asserted and vindicated by
a solemn appeal to ai-ms. I ask if, in such a crisis, it is either
wise or prudent to pronounce, in the face of the world, that we
have been the aggressors, and that war in its most offensive
and exceptionable sense has been already commenced by Gen
eral Jackson, under the sanction of the President of the United
States ? I hazard nothing in affirming that such a departure
from the established usages of nations is without a parallel in
the political history of any country, ancient or modern. Under
whatever circumstances danger may threaten us from abroad, it
is from this House that the energies of the people are to be
aroused and put in motion ; it is our province to sound the
alarm, and give the impulse which stimulates every portion of
the Union to a simultaneous and manly exertion of its physical
strength, to avenge the insulted honor and violated interests of
our country. We are the legitimate organ of public sentiment,
and it is incumbent on us to animate and cherish a spirit of re
sistance to foreign encroachments among our constituents, by

GEORGE POINDEXTER. 37
urging the justice of our cause, and the necessity of their vig
orous co-operation in support of the constituted authorities, who
are responsible to them for the faithful execution of the high
and important duties with which they are entrusted. These are
the means by which we shall perpetuate our republican form of
government, and transmit its blessings to future generations.
" But we are required on the present occasion to forget the
wrongs of which we have so long and so justly complained ; to
abandon for a while the lofty attitude of patriotism, and to
tell the American people, in anticipation of a rupture with
Spain, that it is a war of aggression on |;he part of their chief
executive magistrate, commenced in Florida without proper au
thority ; that the Spanish Government can consider it in no
other light than premeditated, offensive war, made on them
with a view of extending the territorial limits of the United
States. The expression of these opinions, by this body, must
cast a shade over the American name which no lapse of time
can obliterate ; and while we nerve the arm of the enemy, we
shall approach the contest with an open denunciation against
the President, who is charged with its prosecution to a speedy
and favorable termination. He is denied the cheering conso
lation of union in the government over which he has been
called to preside, at a period of national peril, when every man
ought to be invited to rally around the standard of his country.
' ' Sir, how is this most novel and extraordinary aberration
from the legislative functions of the House attempted to be ex
plained and justified ? By gloomy pictures of a violated consti
tution, pathetic appeals to humanity in favor of a barbarous
and unrelenting foe, and lamentations over the blighted honor
and magnanimity of the nation. I, too, am a conservator of the
Constitution ; I venerate that stupendous fabric of human wis
dom ; I love my country, and will endeavor to rescue it from
the odious imputations which have been so freely cast on it in
the progress of this discussion. I admonish gentlemen, who
manifest such ardent zeal to fortify the powers of this House
against military usurpations, that they do not suffer that zeal to
precipitate them into an error equally repugnant to a sound con
struction of the Constitution.

38 BENCH AND BAR OF MISSISSIPPI.
" The report of the Committee on Military Affairs, taken in
connection with the amendment proposed by the honorable mem
ber from Georgia (Mr. Cobb), may be classed under two general
divisions : 1st, Resolutions of censure on the conduct of Gen
eral Jackson in Florida for a violation of the orders of the
President, and of the Constitution, and for the unlawful execu
tion of the incendiaries, Arbuthnot and Ambrister. 2d, In
structions to the committee to prepare and report two several
bills, the object of which is to divest this nation of some of the
most essential attributes of sovereignty. I shall pass over the
latter branch of this subject without observation, beheving, as I
do, notwithstanding the high respect which I entertain for the
mover, that it is not seriously the intention of honorable gentle
men by an act of legislation to abrogate the rights of this nation,
founded on the universal law of nature and of nations. Self-
denial, though sometimes an amiable quality in an individual
member of society, when applied to the whole community ren
ders it obnoxious to insult and oppression, and is a voluntary
degradation below the rank of other sovereignties, to which no
American ought to submit. Neutral rights and the usages of
war are already well established and understood by all civilized
powers ; and it is not to be presumed that the interpolations
which are proposed would be reciprocal and become the basis
of new principles of public law. We may prostrate our own
dignity and paralyze the energies of our country, but shall find
no nation so pusillanimous as to follow our disinterested ex
ample. Considering, therefore, these propositions as merely
nominal, intended only to enlarge the group and give diversity
to the picture, I shall leave them without further animadver
sion, and proceed to investigate the resolutions levelled at the
fame, the honor, and the reputation of General Andrew Jack
son ; and, through him, at the President, under whose orders
he acted, and by whom he has been sustained and vindicated.
" I hold it to be the indispensable duty of every tribunal,
whether legislative or judicial, to examine with caution and cir
cumspection into its jurisdiction and powers, on every question
brought before it for adjudication ; and this rule ought more
particularly to be observed in cases involving personal rights and

GEORGE POINDEXTER. 39
interest, where the party to be affected by the decision is not
permitted to answer in his own defence. I ask, then, sir. Has
the House of Representatives, as a distinct and separate branch
of Congress, the constitutional power to institute an inquiry into
the conduct of a military officer, and to sentence him to be cash
iered, suspended, or censured ? I demand a satisfactory and
explicit response to this interrogatory, founded on a reference
to the Constitution itself, and not on the undefined notions of
expediency in which gentlemen may indulge ; and if it be not
given, as I am very sure it cannot, we shall become the vio
lators of that fair fabric of liberty, and erect a precedent more
dangerous in its tendency than the multiplied infractions which
have been so vehemently alleged against General Jackson, ad
mitting them all the force and latitude which the most enthu
siastic censor could desire.
" Sir, it is high time to bring back this debate to first princi
ples, and to test our jurisdiction over this case by a recurrence
to the structure of the government of which we are a compo
nent part. Let us pluck the beam from our own eyes before we
seek to expel the mote which gentlemen seem to have dis
covered in the vision of General Jackson. The sages and pa
triots who established the foundation of the republic have,
with a wisdom and forecast bordering on inspiration, carefully
marked and distributed the powers delegated in the Constitution
to the Federal Government among the several departments, leg
islative, executive, and judiciary. No principle is better settled
or more generally conceded than that the powers properly
belonging to one of these departments ought not to be di
rectly administered by either of the others. The violation of
this maxim leads, by inevitable results, to the downfall of,
our republican institutions and the consolidation of all powers
in that branch which shall possess the strongest influence over
the public mind. Upon the independent exercise of the powers
confided to each department, uncontrolled, directly or indirectly,
by the encroachments of either, depends the security of life,
liberty, and property, and the stability of that Constitution
which is the pride of our country and the admiration of man
kind.

40 BENCH AND BAR OF MISSISSIPPI.
' ' The honorable gentleman from Georgia has adverted to the
opinions of the immortal author of the letters of Publius, the
late Chief Magistrate of the United States ; and the honorable
Speaker has also invited our attention to that great constitutional
lawyer. They triumphantly ask. What would he say on the
present question, were he a member of this House ? I will not
follow the example of these gentlemen by substituting declama
tion for historical truth, or vague surmises and assumed prem
ises for record evidence ; but while I accord to the distin
guished statesman and patriot, whose exertions so eminently con
tributed to the establishment, and whose exposition of its fun
damental principles cannot be too highly appreciated. All the
merit of his useful life was devoted to the public service,
guided by wisdom, virtue, and integrity ; and I appeal with
pleasure and confidence to his able pen, in support of the posi
tion which I have advanced, and which I deem an important
point in the case under consideration. In the view taken by
Mr. Madison of the ' meaning of the maxim which requires a
separation of the departments of power,' he repels the argu
ment of the opponents to the adoption of the Constitution,
founded on the apprehension of executive supremacy over the
legislative and judiciary, which, it was contended, would ulti
mately render that branch the sole depository of power, and
subject the people of this country to the despotic will of a
single individual. Comparing the powers delegated to the ex
ecutive with those granted to the legislature, and the probable
danger of an assumption by either of the functions appertain
ing to the other, he says : ' In a government where numerous
and extensive prerogatives are placed in the hands of a he
reditary monarch, the executive department is very justly re
garded as the source of danger, and watched with all the jeal
ousy which a zeal for liberty ought to inspire. In a democracy,
where a multitude of people exercise in person the legislative
functions, and are continually exposed, by their incapacity for
regular deliberation and concerted measures, to the ambitious
intrigues of their executive magistrates, tyranny may well be
apprehended, on some favorable emergency, to start up in the
same quarter. But in a representative repubhc, where the

GEORGE POINDEXTER. 41
executive magistracy is carefully limited, both in the extent and
duration of its power, and where the legislative power is exer
cised by an assembly, which is inspired, by a supposed infiuence
over the people, with intrepid confidence in its owu strength,
which is sufficiently numerous to feel all the passions which ac
tuate a multitude, yet not so numerous as to be pursuing the
objects of its passions by means which reason prescribes ; it is
against the enterprising ambition of this department that the
people ought to indulge all their jealousy, and exhaust all their
precautions. " ' The legislative department derives a supsriority in our
government from other circumstances. Its constitutional powers
being at once more extensive, and less susceptible of precise
hmits, it can, with the greatest facility, mask, under com
plicated and indirect measures, the encroachments which it
makes on the co-ordinate departments.'
" The correctness of the reasoning and predictions of this
great and good man, who is called by the honorable Speaker the
Father of the Constitution, has been often demonstrated in the
practical operations of this bod}', and never more forcibly than
on the present occasion. Scarcely a session of Congress passes
without some effort to enlarge the scope of our powers, by con
struction or analogy ; and unless these systematic advances in
this House to crush the co-ordinate departments, by an un
limited exercise of authority over all subjects involving the gen
eral weKare, be resisted with firmness and perseverance, they
will, at no distant period, eventuate in the destruction of those
salutary checks and balances so essential to the duration of our
hapijily-formed government, and to the security of civil and
political liberty. I deprecate every measure calculated to es
tablish a precedent which, in its effects, may lead to such dan
gerous consequences. An enlightened statesman has said that
the concentrating of all the powers of government in the legis
lative body is of the very essence of despotism ; and it is no al
leviation that these powers will be exercised by a plurality of
hands and not by a single one.
' ' An elective despotism was not the government we fought
for ; but one which should not only be founded on free princi-

t5

42 BENCH AND BAR OF MISSISSIPPI.
pies, but in which the powers of sovereignty should be so divid
ed and balanced among the several bodies of magistracy as that
no one could transcend its legal limits without being effectually
checked and rfestrained by the others.
' ' Sir, whenever these principles shall cease to be respected by
the councils of this country, I shall consider the grand experi
ment which we have made in the administration of a govern
ment of limited powers, founded on a written instrument, in
which they are specified and defined, as altogether abortive
and as forming strong proof of the regal maxim, that man is
incapable of self-government. If honorable gentlemen mean
anything by the reverence which they profess to feel for the
Constitution, I conjure them to look to its provisions, and for
bear to adopt a measure in direct violation both of its letter and
spirit. By Article II., Section 2, it is provided that 'The
President shall be commander-in-chief of the army and navy of
the United States, and of the militia of the several States when
called into actual service ' ; and by the 9th article of the 1st sec
tion Congress is vested with power to ' make rules for the gov
ernment and regulation of the land and naval forces. ' Congress
has long since fulfilled this duty : rules and articles of war have
been sanctioned, and have continued to govern the army, from
its organization up to the present time ; in these the great prin
ciples of subordination and responsibility are graduated and es
tablished, from the commander-in-chief down to the most petty
officer and common soldier. The President is placed by his
country at the head of its physical force, ' to execute the laws of
the Union, suppress insurrection, and repel invasion.' He is
the ultimate tribunal to decide all questions touching the opera
tions of the army, and the conduct of the officers who compose it.
If there be any power, clearly and exclusively belonging to the
Executive, it is that which pertains to the command of the
army and navy of the United States. Our whole system of
laws recognizes it, and until this extraordinary attempt to erect
the House of Representatives into a court-martial, with a view
to cast an indeUble stain on the character of General Jackson,
without a fair and impartial trial, in which he might confront
his accusers and be heard in his defence, no instance can be

GEORGE POINDEXTER. 43
shown, since the" foundation of the Government, where the
President has been interrupted in the full exercise of his legiti
mate authority over the military officers under his command.
The abuse of this power, or the improper direction and applica
tion of the public force, by the Chief Magistrate, or by any sub
ordinate officer with his privity and assent, in a manner or for
the accomplishment of objects dangerous to the liberties of the
people or subversive of the laws and Constitution of the Union,
will find a ready and suitable corrective in this House, by an
application of its power to originate impeachments against the
President, Vice-President, and all civil officers, for treason,
bribery, or other high crimes and misdemeanors. In this sense
only can we be regarded as the grand inquest of the nation, and
not to the unlimited extent for which gentlemen have con
tended. The power to impeach the President is expressly dele
gated ; all other officers are hable to the same scrutiny ; and the
total omission, in the article of the military department, is, to
my mind, conclusive evidence that they were never intended to
be subject to the control of Congress, except in the usual course
of legislation, under the power to raise and support armies.
And this opinion is strengthened by the clause of the Constitu
tion directing Congress to provide for the government and regu
lation of the land and naval forces. The principle of official
responsibility is to be found in every page of the Constitution :
not a vague, uncertain responsibility, but that which is unequiv
ocal, certain, and definite. We are answerable, at stated pe
riods, to the people, by whom we have respectively been
chosen. The President is accoimtable to the nation at large, at
the expiration of his term of service ; and in the mean time
we hold a salutary check over his ambition, if he evince such a
disposition, by means of impeachment ; in like manner the
whole civil department may be punished for a wanton prostitu
tion of their official functions. The military and naval officers
who command our army and navy are responsible directly to the
Executive, who is their chief, and, through him, indirectly to
the representatives of the people. Every link in the chain is
essential to the beauty and symmetry of the whole ; and, if
preserved unbroken, affords the most ample security against

44 BENCH AND BAR OF MISSISSIPPI.
any usurpation of power, without a prompt and efficient
remedy to detect and restrain it.
It is now proposed to make this House the focus of every
power granted to the Federal Government ; to mount the ram
parts which separate the departments, and compel every man
who , holds a commission to bow submissively to the gigantic
strength of this numerous assembly. Those whom we cannot
impeach we will censure, and record their names as fit objects
for the scorn and detestation of posterity. Already we hold the
purse and the sword of the nation. All legislation must receive
our concurrence, in connection with the President and Senate,
before it has the force and effect of law. The treaty-making
powder may be controlled by us, where an appropriation is re
quired to fulfil the contract ; the judiciary is at our feet, both in
respect to the extent of its jurisdiction and the liability of its
members to the summary process of impeachment ; the Presi
dent and heads of department, foreign ministers, and the whole
catalogue of civil officers, stand in awe of our frowns, and may
be crushed by the weight of our authority. I ask, then, sir, if
the officers of the army and navy are rendered subservient to
us, as a censorial, inquisitorial body, whether it will not amount
to the 'very definition of despotism.' Yes, sir, we shall, if
these resolutions pass, bear testimony of the soundness of the
political axiom, that it is -' against this department that the
people ought to indulge all their jealousy, and exhaust all their
precautions.' But the Constitution, in this respect, has received
a construction almost contemporaneously with its adoption. As
early as the year 1792 a resolution was submitted, by a distin
guished member from Virginia in the House of Representa
tives, requesting the President to institute an inquiry into the
causes of the defeat of the army under the command of Major-
General St. C]air. The agitation produced by that momentous
disaster seemed to demand an investigation of the conduct of
the commanding general. A great public calamity is always
calculated to awaken feelings which, for a moment, usurp the
empire of reason, and lead to excesses which sober reflection
would condemn. It was not, therefore, wonderful that a man
of the soundest intellect and most enlightened understanding.

GEORGE POINDEXTER. I.''.
should have felt it his duty to call the attention of the Presi
dent to a subject so deeply interesting to the country, and to
request an inquiry into the causes of that signal and unfortu
nate defeat. The proposition was fully discussed, and finally
rejected by a large majority, on the ground that it was an un
warrantable iuterference with the constitutional functions of the
Chief Magistrate. The substance of the debate may be found in
the newspapers of that day ; and among those who objected to
the measure are the names of Madison, Ames, Baldwin, and
many others who participated in the formation of the Constitu
tion, and who were, consequently, better qualified to give to it
a sound interpretation. A committee was subsequently ap
pointed to inquire into the expenditure of the public money in
that campaign, and other subjects of a general nature connected
with the legislative duties of Congress. Again, in the year
1810, a committee was raised to inquire into the conduct of
General James Wilkinson, in relation to a variety of charges
which had been pubhcly made against him ; they were author
ized to send for persons and papers. The general was notified of
their sittings, allowed to attend in person before them, to cross-
examine the witnesses, to confront his accusers, to exhibit evi
dence in his defence, and make such explanations as he might
think necessary to a vindication of his conduct. The committee,
after a very laborious investigation, simply reported the facts
to the House, who resolved that the same be transmitted to the
President of the United States. No opinion was expressed or
intimated as to the guilt or innocence of the general ; no re
quest was made to the President to institute a court-martial, but
he was left to the exercise of his own discretion, unbiassed by
the slightest indication of the impression which the develop
ment had made on the House of Representatives. The result
we . all know was that a general court-martial was immediately
convened, and General Wilkinson was honorably acquitted.
Both principle and precedent, therefore, combine in recom
mending a rejection of these resolutions, which claim for tliis
House a power, not merely to request another department to
perform a particular duty, but assume the right to adjudicate
the case, and sentence an officer to irretrievable infamy, with-

46 BENCH AND BAR OF MISSISSIPPL
out a hearing, and without appeal, save only to his God and
the purity of his own conscience. Permit me, sir, to present to
the view of the committee some of the unavoidable consequences
which will flow from this premature and unauthorized proceed
ing. We announce to the President, and to the nation, that
General Jackson, in the prosecution of the Seminole War, has
violated his. orders and broken the Constitution of his country,
and that, in the trial and execution of Arbuthnot and Ambris
ter, he has been guilty of the horrid crime of official murder.
We, on the part of the whole people, become the informers, and
thereby impose on the Pres'ident, as commander-in-chief of the
army, indispensable obligation to adopt one of two alternatives
- — either to dismiss from the service that officer, under our de
nunciations, or to assemble a regular court-martial to investigate
these charges according to the forms prescribed in the laws en
acted for the government of the army of the United States.
The latter course, being the one best adapted to the attainment
of justice, would in all probability be pursued. He details a
court-martial, composed of high-minded military men ; charges
and specifications are exhibited ; and the general for the first
time is allowed to answer to them— guilty or not guilty. He is
put on his trial, and at the very threshold he is informed that
he has already been found guilty by the highest tribunal in the
Union— the representatives of the American people. He never
theless proceeds in his defence, and is ultimately convicted and
cashiered. Would not history record such a conviction as the
result of our prejudication of the case ? ^ Would not the whole
world attribute the downfall af this man to the monstrous per
secution and flagrant injustice of the ungrateful country which
he has so nobly defended ? Yes, sir, to the latest posterity we
should be regarded as having passed an ex parte decree of con
demnation, which the court-martial were bound to register, to
secure themselves from similar animadversion. But let us sup
pose that, unawed by the imposing dictum which we shall have
pronounced, the court-martial acquit the general of the several
charges and specifications on which he has been arrested. We
should then have the mihtary of this country arrayed against
this body : we, acting under the solemn obligation of our oaths,

GEORGE POINDEXTER. 47
declare that General Jackson has been guilty of high crimes and
misdemeanors ; we are unable to tear from him his epaulettes ;
and when tried by his peers, our opinions are scouted, and he
is maintained in the high rank from which we would have de
graded him. In such a controversy the only arbiter is force.
Sir, take either horn of the dilemma, and we have abundant
reason to shun the consequences which must follow the adoption
of the proposed resolutions.
Our total inability to enforce the will of the majority demon
strates most clearly the absence of the right to express that will ;
for, whatever any branch of the government can constitutionally
decide, the means necessary to carry its decision into execution
can never be ^ithheld or questioned. Sir, I have been not a little
amused at the evasive contortions of honorable gentlemen, who,
to avoid the perplexing difficulties by which they are enveloped,
gravely affirm that neither the report of the Military Committee
nor the resolutions respecting the seizure of the posts of St.
Marks and Pensacola and fortress of Barancas contain a censure
of General Jackson ; that they are harmless, inoffensive expres
sions of opinion upon the passing events relating to the state of
the Union. I put it to those gentlemen — for the argument has
been resorted toby all who have spoken — whether, if I were to
address either of them in conversation, and say, iu the language
of the propositions before the committee, ' Sir, you have vio
lated the Constitution of the United States, and of course you
are perjured. You have sentenced to death and executed two
of your fellow-men without a fair trial, and contrary to all law,
human and divine, consequently your hands are stained with
their blood.' Would they calmly reply that my expressions con
veyed no censure on them, and were not repugnant to their
feelings or character, nor inconsistent with contemporaneous as
surances of my high respect and consideration ? Common-sense
revolts at conclusions so ridiculous, drawn from such premises.
Add to this the express charge of a violation of orders, which
the President, it seems, is not competent to determine for him
self, and I may venture to defy any gentleman to cover a mili
tary officer with more odious epithets, or mean, vindictive cen
sure. No man, however elevated his station, can withstand tlie

48 BENCH AND BAR OF MISSISSIPPI.
overwhelming force of such an assault on his reputation, coming
from this august body, after mature and solemn deliberation.
The exalted mind of General Jackson would prefer even death
to this fatal blow, aimed at that which is more dear to him than
life— his well-earned fame and irreproachable honor. Sir, the
immortal Washington was charged with a violation of the Con
stitution, in drawing money from the treasury to pay the militia
who served in the campaign against the insurgents in 1794, with
out an appropriation made by law ; but at that day the secret of
our power to censure had not been discovered, and the transaction
passed without animadversion. It has remained for im to put
in motion this new engine of inquisitorial crimination, and to
wield it against a man whose arm was never expended but in
defending the liberty and safety of his country against the com
plicated enemies by whom it has been assailed, and whose pure
and unblemished patriotism, combined wnth his invincible
valor, fortitude, and perseverance, have shed over his brow a
resplendent ray of glory which neither clouds nor tempests can
obscure, so long as virtue shall predominate over the envious and
malignant passions of the human heart. Yes, sir ! we are im
portuned to execrate the bloody deeds of the Seminole War, to
chant requiems over the tombs of Arbuthnot and Ambrister,
and to mourn over the wreck of our fallen Constitution ; and, in
an instant, as if by enchantment, the horrid picture vanishes from
our affrighted imaginations, and eludes even the grasp of keen-
eyed malice, and we hear the moral integrity and innocence of
all these transactions announced from the same lips which utter
their condemnation. The motives and intentions of General
Jackson are eulogized and applauded by his most inveterate
accusers. All the errors ascribed to him, and for which honor
able gentlemen are prepared to immolate his character, and ren
der his name, hitherto so dear to his countrymen, odious and de
testable, are attributed to the impetuous ardor of his zeal to
promote the general good, and give peace and security to our
defenceless frontier.
He fills a space in the public eye, and commands a portion of
the affection and confidence of his fellow-citizens too copious
and extensive to be tolerated by the sharp-sighted politician,

GEORGE POINDEXTER. 49
whose splendid eloquence fades and evaporates before the sun
shine of renown lighted up by the unparalleled achievements of
the conqueror of the veterans of Wellington. These modern
casuists endeavor to magnify an unintentional violation of the
Constitution into a crime of the blackest enormity, which can
neither be extenuated nor forgiven. Are they willing to make
this system of political ethics applicable to themselves, and to
have their names specified on the journal as culprits at the
bar of an offended people, stamped with infamy and disgrace,
if at any time they have, and with the best intentions, given
a vote which, on a review of the subject, was found to con
flict with some provision of the Constitution ? What member
of this House can say, witli certainty, that he has, on all occa
sions, construed the Constitution correctly ? And who among
us would be satisfied to stake all his hopes and prospects on the
issue of an investigation, Mhich, disregarding all respect for the
purity of the motive, should seek only to discover an inadvertent
error, resulting from a defect of judgment in the attainment of
objects identified with the best interests of the nation ? Sir,
if I mistake not, the honorable Speaker, and several other gen
tlemen who have manifested great solicitude and displayed a
torrent of eloquence to urge the expediency of passing the pro
posed censure on the conduct of General Jackson, and who un
hesitatingly admit the innocence of his intentions, would be
placed in an unj^leasant situation by the operation of the rule
which they are anxious to prescribe in this case. A few short
years past, these honorable gentlemen were the champions who
resisted the renewal of the charter of the old Bank of the
United States. At that day they held the original act of incor
poration to be a usurpation of power, not delegated to Congress
by the Constitution, and to their exertions we were indebted for
the downfall of that institution. The same distinguished mem
bers, at a subsequent period, acting under the high obligations
of duty, and the solemnity of their oaths to support the Consti
tution of the United States, aided and assisted in establishing the
mamimoth hanJc, which threatens to sweep wnth the besom of
destruction every other moneyed institution in the nation into
the gulf of ruin and bankruptcy. It will not be pretended
4

50 BENCH AND BAR OF MISSISSIPPI.
that both these opposite opinions were correct ; and yet I should
be very sorry either to impugn the motives which actuated those
gentlemen in the instance referred to, or to pass a censure on
their conduct for an unintentional violation of the Constitution
calculated to withdraw from them the confidence of their con
stituents. There was a time,, Mr. Chairman, when the Republi
can phalanx in every quarter of the Union regarded the specifi
cation of powers in the Constitution as the limitation of the grant,
within which every department ought to be strictly confined.
But at this day we are told that this literal construction of the
instrument is too narrow for the expanded views of an Ameri
can statesman — mere 'water-gruel,' insipid to the palate, and
requiring the addition of a little fuel to give it energy and ac
tion to conduct this nation to the high destinies which await it.
No power can be called for by an existing exigency, or a fa
vorite system of policy, which, according to the doctrines now
advanced, may not be found necessary and proper to carry into
effect some one of the specified powers in the Constitution. The
flexible character of man and the frailty of human nature
afford an ample apology for these oscillations, and wretched in
deed would be our situation if crime consisted in error, unac
companied by the pre-existing will to perpetrate it. No man
who respects his feehngs or his character would accept a public
trust on such conditions. As well might we censure the Su
preme Court for having given a decision which we deemed con
trary to the Constitution, and where no corruption could be
alleged against the judges who pronounced it, which is au
essential ingredient to constitute an offence for which a judicial
officer is liable to impeachment. In such a case our censure
might be retorted by an attachment for contempt, and the hon
orable Speaker, representing the majesty of this House, would be
compelled to answer the charge by purgation, or otherwise, as
the wisdom of the House should direct. I mention this to show
the absurdity and inefficiency of eyery attempt to transcend the
powers secured to us by the Constitution. Sir, I am sick to
loathing of this incongruous, novel, and impotent effort to
wound the sensibility of a hero, who has sacrificed whatever of
health or fortune ho possessed, and staked his life in common

GEORGE POINDEXTER. 51
with the soldier by whose side he fought, that our exposed and
unprotected frontier might once more repose in peace and tran
quillity, undisturbed by the midnight yell of the merciless
savage. " The hero of New Orleans wanted not a petty Indian war to
satiate his ambition, or add fresh laurels to the wreath already
bequeathed to him by his- country. It was a w^ar of hardships,
fatigues, and privations, in which for himself he had nothing to
hope but the consolation of having accomplished the object for
which he took the field, and of receiving the approbation of the
President, to whom alone he was responsible for all the incidents
of the campaign in which he participated. Of this reward, so
well merited and so freely bestowed, we now seek to rob him,
by fulminating resolutions and vindictive eloquence, against
what honorable gentlemen are pleased to call a patriotic, un in
tentional violation of the Constitution."
The committee then rose, reported progress, and asked leave
to sit again ; and the House adjourned. On the following day
Mr. Poindexter resumed his argument. "Mr. Chairman, I
wish it to be distinctly understood that the view which I had
the honor to take of this subject on yesterday was not intended
to shield the conduct of General Jackson from the strictest
scrutiny. Even before this unconstitutional court, unheard and
undefended, he fears not the penetrating touch of the most
rigid investigation. He asks no palhatives, no exemption from
responsibility. He needs only that protection which justice,
sternly administered, affords to every virtuous man in the com
munity. The argument was directed to the judgment of the
House, in reference to its own legitimate powers as a separate
branch of the National Legislature. These consist of the right
to judge of the elections and returns of our pwn members, to
determine the rules of our own proceedings, to punish mem
bers for disorderly behavior, and, with the concurrence of two-
thirds, to expel a member ; and they are all the ultimate powers
of the House of Representatives. Allow me, sir, in closing my
remarks on this point, to call the attention of the committee to
an opinion which fell from the venerable George Clinton a

52 BENCH ANp BAR OF MISSISSIPPI.
short time before he took a final leave of this world and was
deposited among the tombs of the fallen heroes and patriots
who, with him, had achieved the independence of their country.
Placed in the chair of the Senate of the United States, he was
required, by an equal division of that body, to give a casting
vote on the question touching the power of Congress to incor
porate a national bank. It will be recollected that he negatived
that proposition, and in support of his vote advanced the rea
soning by which he was influenced, which he concluded with
the following judicious and pertinent admonition : ' In the
course of a long life, I have found that government is not to be
strengthened by an assumption of doubtful powers, but by a
wise and energetic execution of those which are incontestable ;
the former never fails to produce suspicion and distrust, whilst
the latter inspires respect and confidence. ' The Sentiment is wor
thy of the head and the heart which dictated it, and if properly
improved will constitute a rich legacy from that inflexible pa
triot to those who may follow in the path of legislation. I ear
nestly recommend it to the favorable consideration of this
body." Mr. Poin(Jexter continued. " I now, sir," said he, " proceed
to the topics already discussed with such distinguished ability.
Perhaps I shall be guilty of a useless trespass on the patience of
the committee in attempting to give them a further examina
tion. The causes and origin of the Seminole War, its prosecu
tion and final termination, have resounded in our ears until every
feeling is paralyzed, and all the avenues to conviction are closed
Iry the frost of cold indifference or the fatal spell of uncon
querable prejudice.. Under such discouraging circumstances I
enter with diffidence on the task of exploiing the ground over
which so many have trodden before me. Urged on, however
by a sense of duty_j and of the important results which may flow
from the decision to be pronounced on these interesting sub
jects, I claim the indulgence of the committee while I submit
my opinions in relation to the principles and facts involved in
them. The causes of this war stand first in the order of the
discussion : upon a clear understanding of these materially de
pends the justification of the conduct observed in the prosecu-

GEORGE POINDEXTER. 53
tion of the war. Many of the rights which appertain to a
belligerent in a defensive, cannot be claimed in an offen
sive war, and this is more particularly the case in respect
to that which is now the subject of consideration. The hon
orable Speaker, aware of the necessity of affixing the guilt of
the contest on the United States to sustain his conclusions, has
labored to excite our commiseration for the poor, degraded,
half -starved, persecuted Seminoles, while he charges the people
of Georgia with robberies and murders on their innocent, un
offending neighbors ; who, in their own defence, were com
pelled to take up arms and retaliate the injustice which had
been practised against them. To these outrages, and the ac
quisition of Indian lands by the treaty of Fort Jackson, com
bined with the dictatorial terms of that treaty, I understood the
honorable gentleman to attribute the war which has produced
so much excitement in this House. Sir, I apprehend no gentle
man on this floor is better acquainted with the origin of this war
than the honorable member from Georgia who opened this de
bate, and if he is willing to admit the charge of robbery and
murder made on his constituents, be it so. For one, I can
only say, that no satisfactory evidence has been adduced of the
fact, and 1 am therefore bound to controvert it. ' '
[The Speaker explained : He meant only to express his fears
that such was the fact, without intending to use the strong lan
guage which Mr. P. had ascribed to him.]
Mr. P. proceeded : " Sir, I have the speech of the honorable
gentleman before me ; it contains not only the substance of this
charge on the people of Georgia, but it refers, in extenso, to a
paper signed by the chiefs of ten towns, addressed to the com
manding officer at Fort Hawkins, specifying their grievances
and the wrongs committed on them by the Georgians, for which
they demanded an atonement. This paper the honorable gen
tleman has charactei-ized as an artless tale, told in language
pathetic and feeling, which carried internal evidence of, at least,
the belief of the authors of it that they were writing the truth.
It complains that the ' white people carried off all the red
people's cattle, and still continued to do so ; that the whites
^st begun y that, three years since, the whites killed three In-

54 BENCH AND BAR OF MISSISSIPPI.
dians, and, since that, three others ; that the whites stole their
horses, and all they had, and killed three more Indians ; to
which they have since added«six more.' Satisfaction is said to
have been taken for all except three of the Indians alleged to
have been murdered by the whites. From this summary of the
paper referred to in support of the argument of the honorable
Speaker, and the weight which he has attached to it, I think it
must be manifest that I have not misconceived or misstated his
premises. And I repeat, that it is not for me to interfere be
tween the honorable gentleman from Georgia, whose constitu
ents have been thus implicated, and his honorable friend, who
imputes to them such disgraceful conduct. But, sir, I cannot
forbear to notice this ' artless tale of truth,' which is the sole
evidence of the outrages complained of, and on which so high
an eulogium has been pronounced. Whence came this mani
festo ? Sir, it emanated from the pen of that infamous, for
eigner, Arbuthnot ; it is one of the multitude of crimes which
he expiated on the gallows, and is second only in impudence
and falsehood to the famous proclamation of his predecessor.
Colonel Nichols. Its style is artful and insinuating, its import
pregnant with all the horrid deeds excited and consummated by
the mischief -meditating hand of that monster whose fate is so
deeply deplored within these walls. And is the testimony of
this man, the avowed enemy of the United States, the instiga
tor of Indian hostilities by means of intrigue and seduction,
whose occupation was misrepresentation and deception, to draw
the unlettered savage into the vortex of impending ruin ;
whose mind was the dark abode of vice, in all its hideous de
formity, worthy of the panegyric which it has received, and of
the confidence reposed in it by the honorable Speaker ? Shall
we dishonor the American name upon his authority, masked by
the nominal signatures of Ten Towns, the dupes of his insidious
policy, who knew no more of this ' pathetic and feeling nar
rative, this simple tale of truth,' than he thought proper to
communicate to them? No, sir, I trust we shall not. We
must look to other and more respectable sources for the concat
enation of events which resulted in the Seminole War : to these
I shall presently call the attention of the committee. But the

GEORGE POINDEXTER. 55
treaty of Fort Jackson falls under the severe denunciation of the
honorable Speaker, and the war is said to have had its origin in
the imperious, haughty, and dictatorial spirit of that instrument.
Let us advert, for a moment, to the history of this transaction,
and bottom our reasoning on facts, and we shall be less liable to
the errors inseparable from a superficial view of any subject.
The Creek Indians, toward whom the United States had, for
more than twenty years, observed the most pacific policy, stim
ulating them to industry and agricultural pursuits, and inculcat
ing on their minds the benefits of civilization, seized on the first
favorable opportunity which offered, when we were contending
for our existence as a sovereign and independent nation, against
the undivided strength of Great Britain, to take up arms against
us and make a common cause with the enemy ; actuated to this
measure, no doubt, by British and Spanish counsellors, and sup
plied, as we know, with the means of carrying on the war at
Pensacola. While they were in our power, weak and unpro
tected, we cherished and fed them, we introduced among them
implements of husbandry, taught them to cultivate the soil, and
the use of the wheel and the loom. We rejected their terri
tory, and prohibited all intrusions upon it. When they found
us hard pressed by the most powerful nation in Europe, we
asked not their assistance, but advised them to stay at home and
remain in peace ; we told them not to fight on either side. But
the demon of foreign seduction came among them ; false hopes
were infused into their minds ; promises of British aid were
made to them ; the prophetic delusion of invincibility nerved
the warrior's ann, and the tomahawk and scalping-knife were
raised against their benefactors ; wielded with all the fury of
savage barbarity, rendered still more ferocious by the influ
ence of superstition and fanaticism. Such was their ingratitude,
and such the return for our magnanimity ! The bloody contest
ensued. The massacre at Duck River, at Fort Mims, and the
butchery of our frontier inhabitants, without regard to age, sex,
or condition, will long be remembered by the afflicted friends
and relatives who survive the unfortunate victims, whose inno
cent blood stained the gi^ilty hand of the inexorable savage.
The melancholy story of their wrongs will be handed dowm to

56 BENCH AND BAR OF MISSISSIPPI.
the latest generations. I hope they vyill not be forgotten by
their country. At this momentous crisis Jackson sprang from
the retirement in which his vigorous mind had been permitted
to slumber, and contemplated, not without emotions of painful
regret, the disasters which marked the progress of our armies.
He took the field, at the head of the hardy and intrepid sons of
Tennessee — ^his faithful companions in arms. They penetrated
the swamps and the forests, enduring, with manly fortitude,
every hardship and privation which the most vivid imagination
can conceive, or human language portray. The god of battles
was on their side ; victory attended their steps ; they conquered.
The vanquished enemy dispersed ; a part of them fled into
Florida, to throw themselves under British protdbtion, and the
residue surrendered to the mercy of the conquering general.
And the articles of capitulation, signed on the 9th of August,
1814, has been called a treaty ; a chef d''a.uvre in diplomacy,
cruel and insulting in its terms, to a miserable fallen foe ; derog
atory to the national character, and the main cause of the re
cent war with the Seminoles. I have yet to learn that the sub
jugation of one tribe of Indians, and the terms of their submis
sion, is justifiable cause of war, on the part of another and a
distinct tribe. But, independent of this objection to the ground
assumed by the honorable Speaker, I contend there is nothing
in these articles of capitulation either unreasonable or incompat
ible with the sound morality which, it seems, so eminently dis
tinguished the commissioners at Ghent. Let it be remembered
that a conquering general in the field asks nothing of the en
emy as a matter of courtesy. His business is to demand jus
tice, and enforce a compliance at the point of the bayonet.
And what are the conditions on which General Jackson agreed
to receive the submission of an enemy who had made on the
United States an unprovoked war, in aid of a contemplated blow
to be struck by Great Britain, on the great emporium of our
Western commerce ? He demands ' an eqidvalent for all ex
penses incurred in prosecuting the war to its final termination ;
that the Creek nation abandon all intercourse with the British
and Spanish posts — ^those infernal fiends who had excited them
to war ; that they acknowledge the right of the United States

GEORGE POINDEXTER. 57
to establish military posts and trading houses, and open roads,
within their teiTitory, and to the free navigation of their waters ;
that they surrender the property taken from citizens of the United
States and friendly Indians, in return for which the property of
those who submitted was to be restored ; and that the insti
gators of the war, whether foreigners or prophets, if found within
their territory, should be captured and surrendered. The United
States voluntarily undertake to maintain those deluded, infatu
ated people, until they shall be enabled to support themselves by
their own labor.' Sir, I will thank any gentleman to designate
which of these stipulations he would have omitted. Are they
not all essential to a permanent peace and a just indemnification
for the injuries we had sustained from these red allies of Great
Britain ? Yes, sir ; nor could General Jackson have done less,
in the faithful performance of his dutj' ; and less could not
have been expected by a conquered tribe of Indians under simi
lar circumstances.
" Sir, I will readily concede to honorable gentlemen that, if
war was made on Spain, either by the orders of the President
or by General Jackson, without the authority of Congress, it
amounts to a violation of the Constitution, and the most severe
punishment, and not mere censure, ought to await the guilty
• hand which aims a blow at the tree of hberty, on the soil where
alone it is permitted to grow and fiourish. But I deny that an
act of war either has been or was designed to have been com
mitted by General Jackson, in any part of his proceeding in
Florida. By war I wish to be understood to mean that state
of things which puts one nation in collision with another, which
arrays the people of one sovereignty against the people of
another sovereignty, and not such acts as may not eventuate in
a rupture between powers in amity with each other. The maxim
must be reached, or the constitutional power of Congress to de
clare war remains inviolate. Suffer me to illustrate this postu-
latum, by showing its analogy to another and a more familiar
subject. Suppose a bill suspending the habeas corpus is pro
posed to this House, at a time of profound peace, both at home
and abroad ; every gentleman will admit that the passage of
such a bill would violate an express provision of the Constitu-

58 BENCH AND BAR OF MISSISSIPPL
tion. I ask, if it should pass the first and second readings, and
be ordered to be engrossed and read a third time ; if, on the
question. Shall the bill pass ? it is rejected, whether any of the
incipient proceedings amounted to a breach of the Constitution ?
I presume that it will not be contended that they did. The
violation of the instrument begins with the operation of the
measure which it prohibits. So neither is an incipient step
taken by a subordinate authority under the government, which
bears the semblance of hostility to a foreign nation, war, until
it passes the ordeal of the ultimate power of both countries,
and is deemed by them not susceptible, of amicable and honor
able explanation and amends. Let us test the conduct of Gen
eral Jackson by these plain and simple rules, and it will be
found that he has neither violated the Constitution nor com-
promitted the peace of the nation.
" I have already attempted to prove to the committee that the
conduct of Spain in relation to our savage enemy justified the
entrance of our army in her territory, and the occupation of the
posts of St. Marks and Pensacola and the Fortress Barancas ;
and I will admit, -for argument's sake, that these latter acts
were not strictly justifiable, and that Spain had a right to com
plain of them ; and yet I say, they did not amount to the defi
nition of war, and consequently that General Jackson is not*
chargeable with having usurped the powers of Congress. To
sustain this position 1 rely on the practice of the most enlight
ened European governments, in cases similar in their character,
and on the effect of the measures upon the subsisting relations be
tween Spain and the United States. The European precedents
to which I shall refer may be found in the celebrated letter of
Mr. Madison to Mr. Rose, on the subject of the attack on the
American frigate Chesapeake by the British ship Leopard. I
beg leave to read them in the order given, them in that corre
spondence. ' '
Here Mr. Poindexter read at length from Mr. Madison's
letter an account of the expulsion of the English salt manufac
turers from Turk's Island, in 1764, by a detachment of French
troops from St. Domingo ; and the demand for reparation on
the part of the English, and its concession by the French. Also

GEORGE POINDEXTER. 59
an account of the attack upon the English settlements at
Nootka Sound, and the capture of English vessels there by the
Spaniards, in 1789, and which resulted in reparations being de
manded and promptly afforded. And lastly, the expulsion of
the British settlers from the Falkland Islands, in 1770, by Span
ish troops under the orders of the Governor of Buenos Ayres,
for which satisfaction was also demanded and reluctantly given.
Mr Poindexter then proceeded :
" In these instances force was resorted to : actual violence
used, blood spilled, vessels captured, whole settlements broken
up and destroyed ; and yet the proud and haughty monarchs of
England, France, and, 1 may add, of Spain, at that day did not
consider either of them as actual war, but occurrences open to
fair and candid explanation and honorable amends ; which, being
demanded, resulted in the preservation of peace between the
parties concerned.
" These were direct acts of hostility, committed by the mili
tary of one power against the subjects of the other without a
previous declaration of war, and therefore more offensive to the
dignity and honor of the sovereign than the temporary occupa
tion of a town or fortress, in the prosecution of a war with an
other nation, to whom the same privilege had been granted.
According to the practice of nations, therefore, the proceedings
at St. Marks and Pensacola cannot be regarded as deciding the
question of peace and war between Spain and the United States,
waiving all the circumstances which so fully justify tlie com
manding general. Neither government understood them as
amounting to a change of the amicable relations which existed
prior to these occurrences, and which it was their mutual desire
to preserve. Spain demanded the restitution of the posts in the
possession of the American troops ; they were ordered to be '
restored — Pensacola unconditionally, and St, Marks on the ap
pearance of an adequate force to protect it from the savages.
The Spanish minister, in the name of his master, also demanded
the punishment of General Jackson ; he was told that the Presi
dent would ' neither inflict punishment nor pass a censure ' on
the general for conduct which found its justification in the
perfidy and duplicity of Governor Masot and the officers of his

60 BENCH AND BAR OF MISSISSIPPI.
Catholic Majesty in Florida. We, on our part, demanded the
punishment of these Spanish officers ; they have neither been
punished nor their conduct formally investigated.
" Thus the affair has terminated, to the satisfaction of both
parties, so far as it is essential to the preservation of peace be
tween the two countries. It did not originate in a disposition
to produce a rupture with Spain, either on the part of the Presi-
dent or of General Jackson. Pizarro blustered for a while,
published his protest, interdicted aU further communications
with this Government until proper explanations were made, and
submitted the matter to the Congress of Aix la Chapelle, hop
ing to excite the sympathy of the aUied sovereigns, and to ob
tain their interposition in behalf of Spain. He, however, in a
few days so far subdued his resentment as to resume his usual
correspondence and intercourse with Mr. Irving, our minister
at Madrid. The Congress of Aix la Chapelle expressed no
opinion on the subject ; and Don Onis, the minister of Ferdi
nand at this place, has never for a moment ceased to fulfil his
functions, without the smallest interruption ; and so little was
the respect which he paid to the letter of Pizarro, suspending
further communications with the American Government, that
he did not think it worthy of being officially made to the Sec
retary of State. He places the vindication of his master on
ground totally different from that assumed in this House by
those who defend his cause, in attempting to censure the con
duct of General Jackson. He says, in a letter to Mr. Adams, of
the 8th of July, 1818, ' It cannot be supposed that the Indians,
against whom the American commander directed his operations,
received protection in Florida. They never received either
favor or protection from the Spanish authorities, either within
or without the territory under thei/r jurisdiction. ' Speaking
of the Governor of Pensacola, he alleges that he took every
necessary precaution to prevent the Indians being supplied with
arms and ammunition within his Majesty's territory. These
facts being of public notoriety, and impossible to refute, there
can be no excuse, pretext, or subterfuge offered for a series of
such unheard-of outrages.
"And, sir, this is the true and only basis on which to rest

GEORGE POINDEXTER. 61
the slightest charge against the proceedings of General Jackson.
It is a question of fact ; and ff Don Onis speaks the truth, in
saying that the Indians received neitJier favor nor protection
from Luengo or Masot, and that everything was done in their
power to prevent their being supplied with arms or ammunition,
and that it is impossible to refute these facts — then I say with
him, that the American commander was censurable, and ought
to be brought before a general court-martial. But. unfortu
nately for the Don, the evidence is all on the other side ; and
these facts, which he says ' it is impossible to refute,' are contra
dicted even by the officers themselves, whom he thus boldly
defends. I contend, therefore, on the authority of the Spanish
minister himself, that, the proof being against him, the con
clusion falls, and General Jackson stands acquitted by Spain of
all blame or censure for his occupation of St. Marks and Pensa
cola. The Chevalier Onis will not stoop so low as to put the
issue of the controversy on the wire-drawn theories and ingenious
sophistry with which he has been so genercnisly supplied by
honorable gentlemen who have participated in this debate. He
takes the high and imposing attitude of facts, from which he
deduces the innocence of the colonial authorities in Florida, and
the consequent gm'lt of the American commander ; and surely
he ought to be allowed to shape the defence of his own Immac-
idate master. On that ground I am content to submit the case
to the decision of an impartial world. Sir, if the United States
have been precipitated into hostilities with Spain by General
Jackson, and the constitutional powers of Congress, in that
respect, have been usurped, by whom has the war been recog
nized, and where are its effects to be seen or felt '( Spain has
given no evidence of a behef on her part that she is at war with
us, or that she contemplates becoming so. We have disavowed
all hostile intentions toward her. She has a minister resident
at Washington, who is treated with every respect due to his
rank, and who is now employed in the interesting duty of form
ing a treaty on the subjects which have so long remained un
settled between his sovereign and this country. We also have
a minister of equal rank and dignity at Madrid, who receives
there the most pohte attention. No armies are in the field, no

62 BENCH AND BAR OF MISSISSIPPI.
fleets on the ocean, no appropriations required to carry on the
war ; but it is nevertheless the foundation upon which the whole
arguments of the advocates of these resolutions is built, and all
the dreams of our violated Constitution, with which we have
been amused for the last three weeks, are predicated on this
visionary war, which honorable gentlemen imagine to exist, for
the sake of the argument, but which neither of the feigned
belligerents acknowledge, and which is carried on without men,
money, or ships, while both nations are under the singular delu
sion that they are in a state of profound peace ! I have heard,
sir, of wars in the moon, and I presume this must be one of that
description. " Mr. Chairman, I think it must be manifest to every candid
mind, disposed to look at these events with an impartial eye,
that no act of war has been committed against Spain ; that
none w^as ever intended ; that our relations of amity with that
nation have undergone no change ; and that General Jackson
has been most unjustly charged with a -oiolation of the Constitu
tion of his country. The total neglect of Spain for the last ten
years to maintain her authority in Florida, and the facilities
which it affords to our enemies, has compelled the Government
of the United States to consider that territory open to our arms
whenever the public saiety required that they should be sent
there ; and the Spanish Government has no just right to com
plain of treatment which her own negligence and imbecility
has imposed on us as a duty in self-defence.
" Permit me, sir, to call the attention of the committee to a
measure which was adopted during the administration of Presi
dent Madison, relating to that part of Florida which lies west
of the Perdido, and which we claimed under the cession of
Louisiana. Spain was in possession of the country, and con
tested our claim ; a special mission had been sent to Madrid to
negotiate a treaty of limits with that government, and the effort
to effect that object was unsuccessful. Pending this question of
title between the two governments, in the year 1810, President
Madison issued a proclamation annexing the disputed territory
to the present State of Louisiana, then the Territory of Orleans.
That proclamation is in the following words :

GEORGE POINDEXTER. 63
" ' Now be it know^n that I, James Madison, President of the
United States of America, in pursuance of these weighty and
urgent considerations, have deemed it right and requisite that
possession should be taken of the said territory, in tlie name
and behalf of the said United States. WiUiam C. C. Claiborne,
Governor of the Orleans Territory, of which the said territory is
to be taken as part, will accordingly proceed to execute the
same, and to exercise over the said territories the authorities
and functions legally appertaining to this office ; and the good
people inhabiting the same are invited and enjoined to pay due
respect to him in that character : to be obedient to the laws, to
maintain order, to cherish harmony, and in every manner to
conduct themselves as peaceable citizens, under full assurance
that they wdll be protected in the enjoyment of their liberty,
property, and religion. '
" To carry the power vested in him into effect. Governor
Claiborne was authorized to call in to his aid the regular troops
of the United States on the Mississippi ; and if these should be
deemed insufficient, to call out the militia of the Orleans and
Mississippi Territories, and to t-ake forcible possession of the ter
ritory, if resistance should be made. The order was executed.
The laws of the United States were extended to the country,
by virtue of this proclamation, and at the time, and for more
than one year afterward, a Spanish garrison remained at Mobile.
This step was taken but a few weeks before the meeting of
Congress, and communicated to both Houses at the opening of
the session. An interesting and animated debate arose in the
Senate on that part of the President's message. Parties were
then marshalled ; the opposition to the administration was sys
tematic and uniform, and its friends were equally so. The pro
ceeding was denounced as an unauthorized act of war on
Spain ; as a usurpation, by the Executive, of the power vested
alone in Congress to declare war. The Constitution was said to
be violated ; the country menaced with all the horrors of war,
both by England and Spain. The arguments used on that oc
casion by the old Federal party bear a strong resemblance to
those which we have heard on the present occasion from the
friends of these resolutions. I listened, sir, with great pleas-

64 BENCH AND BAR OF MISSISSIPPI.
ure, to a very able and eloquent speech delivered by the hon
orable Speaker, then a member of the Senate, in defence of this
executive measure. He received my thanks, and I have no
doubt the thanks of the nation, for the unanswerable and lucid
views which he took of that subject. 1 hope the honorable
gentleman will pardon me for the liberty which I take in read
ing a few sentences from that speech, to the committee. Their
application to the recent occurrences in Florida will be readily
perceived, conveyed in language much superior to any which
falls within the compass of my humble capacity. ' I have, ' said
he, ' no hesitation in saying that if a parent country either can
not or will not maintain her authority over a colony adjacent
to us ; and if misrule and disorder prevail there dangerous to
the Union, or menacing the peace of our frontier, or unfavor
able to the execution of our laws, we have a right, on the eter
nal principles of self-preservation, to lay hold of it. This prin
ciple alone, independent of any title, woxM justify the occupa
tion of Florida. ' Sir, if the eternal principle of self-preserva
tion alone would justify the occupation of that part of Florida,
without any title to guard against a contingent danger, will it
not apply with more than equal weight to a case of actual ex
isting danger, when the frontier is deluged in the blood of help
less age and infancy ? If misrule and disorder prevailed in that
portion of the province, at the time we took possession of it,
the same remark was applicable to Pensacola and its dependen
cies when that place was surrendered to the American forces.
We were then at war with no Indian tribe who gained admis
sion into the territory ; we apprehended no immediate invasion
from any quarter ; and I ask the honorable gentleman, if that
measure was justifiable on the reasonable probability of ap
proaching hostilities, can he condemn General Jackson for a
similar precaution, surrounded as he was by a combination of
Indians and negroes, prepared to renew their deeds of cruelty
and blood whenever the army under his command should retire
within the limits of the United States ?
" Let me not be told that we had a fair title to the country
under the purchase of Louisiana ; for, so far as it related to the
national feelings of Spain and to the compromitment of our own

GEORGE POINDEXTER. 65
peace, it was sufficient that Spain was in the actual possessioii
of the soil, and claimed a paramount right to the sovereignty
over it. We forcibly wrested it out of her possession, and ex
tended our laws, both general and local, to its inhabitants, by
proclamation, and I am at a loss to distinguish that act from
the military occupation of another district in Florida, on the
same great principle of self-preservation. I accord my appro
bation to both measures, alike iu their character and in their
effects, and leave the honorable Speaker to show, if he can, in
what consist the shades of difference which will authorize us to
justify the one and censure the other. On various other occa-.
sions we have marched troops into Florida, and fought battles
there, without exciting the smallest sen^tion in this House, on
the score of a usurpation of its powers by the Executive. In
1812, Colonel Smith, at the head of a rifle regiment, was posted
before St. Augustine ; a detachment from his command was
attacked and defeated by the Indians and negroes from the
Spanish fort ; he declared his intention of storming the place,
but his troops were enfeebled by disease, and he retreated to
the State of Georgia. A regiment of volunteers, commanded by
Colonel Williams of Tennessee, hkewise carried their military
operations into that country. The Georgia militia have fre
quently been ordered there, in pursuit of hostile Indians. In
1814, General Jackson fought a battle in Pensacola, and dis
lodged the British force in the Barancas, who blew up the for
tress on retiring into their vessels. Since that period the negro
fort, so often mentioned, on the Appalachicola was attacked
and destroyed by a combined land and naval force. All these
events have passed in review before us, and never until now
were they considered either war on Spain or a violation of the
Constitution. But, sir, everything heretofore held sacred, both
in principle and practice, must bend to this unprecedented
scheme of passing censure on General Jackson, who has been
modestly compared to Alvear, Cortez, Pizarro, and Hyder Ali,
by an honorable gentleman from New York (Mr. Storrs), and at
the same time the gentleman assured us of the verj high respect
in which he held the character and services of that distinguished
hero ! Sir, there are some men too high in the estimation of
5

66 BENCH AND BAR OF MISSISSIPPI.
their fellow-citizens to. be permitted quietly to enjoy the dis
tinction conferred on them by a grateful country. Had Gen
eral Jackson been less useful to the nation he might have
escaped the mortification of the denunciations uttered against
him on this floor."
Mr. Poindexter continued. "Sir," said he, "I have been
mortified and disgusted at the sickly agonies and sympathetic
effusions which have been so often repeated by honorable
members on the subject of the trial and execution of the insti
gators of the Seminole War, Arbuthnot and Ambrister. In
flated appeals to our humanity and magnanimity have rung
through this hall, to excite our commiseration for these guilty
men : they have failed to reach either my judgment or the feel
ings of my heart ; my sympathies, thank God, are reserved for
the bleeding and suffering citizens of my own country ; and
objects of that description in abundance are exhibited to our
view, in the narrative of events connected with the short but
bloody career of these foreign incendiaries in Florida. The
punishment inflicted on them was more than merited by the
enormity of their crimes ; the example, 1 trust, will be a salutary
warning to British agents on the whole extent of our Indian
frontier ; and if future outrages of the same kind should be
practised, we owe it to the safety and honor of our country to
retaliate on the offenders with the utmost rigor and se^'erity,
until the subjects of foreign nations shall be taught to dread our
vengeance if they do not respect our rights. Sir, it is not my
intention to enter into a detailed argument on the various tech
nical objections which have been resorted to by gentlemen
skilled in the nicety of special pleading, to show that a count or
an innuendo is wanting in the declaration, or that judgment has
not been pronounced according to the forms in such case made
and provided. Such trash may serve to supply the vacuum of
empty declamation ; but I can never consent to convert this
great political theatre into a court of errors and appeals, sitting
to scan the record and regulate the proceedings of inferior tri
bunals. My views are directed to measures in reference to their
operation on the general welfare of my country, and whenever
that effect is produced I would not retrace the step, unless the

GEORGE POINDEXTER. 67
honor of the nation imperiously demanded the sacrifice. The
proceedings of the special court convened by General Jackson
on this occasion have been fully and ably defended by honor
able gentlemen, whose profound knowledge of military science
and the practical usages of war gives to their opinions and ar
guments the weight of authority, and supersedes the necessity
of further investigation. If, indeed, errors in point of form
were committed by the court, or if they misunderstood the
powers vested in them by the order of the commanding general,
it does not become the dignity of this House to ascribe these ir
regularities to General Jackson ; it is to the general order we
must look for a definition of the duties which the court were
required to perform ; they were instructed to ' record the doc
uments and testimony in the several cases, and their opinion as
to the guilt or innocence of the prisoners, and what punish
ment, if any, should be inflicted.' Call it, therefore, a court-
martial, or by whatever other name you please, these were the
powers conveyed to it, and no assumed title could enlarge the
grant or substantially change its character. The opinion of the
court was given in the form of a sentence, and carried into ex
ecution, but the same result would have followed if there had
been no departure from the literal import of the order. To
cavil at such petty inaccuracies, where substantial justice has
been done, is, I repeat it, unbecoming the dignity of the House
of Representatives. That these perfldious miscreants met the
fate which their conduct merited cannot be seriously doubted
by any one. On the principle of reprisals, it was lawful to
execute them ; and, as criminals of the highest grade, whose
guilty hands involved a whole country in scenes 'of massacre and
robbery, they fell just victims to the offended laws of nature
and of nations. ' Those who, without authority from their
sovereign, exercise violence against an enemy and fall into that
enemy's hands, have no right to expect the treatment due to
prisoners of war : the enemy is justifiable in putting them to
death as banditti.' Again, ' the violences committed by the sub
jects of one nation against those of another, without authority,
are looked upon as robberies, and the perpetrators are excluded
from the rights of lawful enemies ; ' and also, ' whosoever offends

68 BENCH AND BAR OF MISSISSIPPI.
the state, injures its rights, disturbs its tranquillity, or does it a
prejudice in any manner whatever, declares himself its enemy,
and exposes himself to be justly punished for it.' Vattel, 162.
Sir, can any gentleman compare these principles of national
law with the evidence in the trials of Arbuthnot and Ambris
ter, and seriously contend that they have suffered unjustly and
contrary to law ? that they have been doomed to perish under
the rod of military despotism ? I frankly confess, it would re
quire a stubborn determination to persevere in error, which I do
not possess, to draw conclusions so inconsistent with such pre
mises. Some gentlemen have attempted to make a distinction
between the guilt of these men. Ambrister (say they) was taken
in arms ; he commanded the negroes and Indians, led them into
battle, was identified with them, and therefore deserved. death.
Arbuthnot, we are told, was a mere merchant, a dealer in the
articles which the Indians were accustomed to purchase.
" I have, in the preceding part of my remarks, had occasion
to advert to the objects for which this man entered Florida, and
the part which he took in exciting the Indians to war. If
Nichols was an innocent dealer in ' the articles which the In
dians were accustomed to purchase,' so was Arbuthnot : their
views were the same ; they held the same language to the savages,
and each gave a pledge of British aid, in case war should be
waged for the recovery of the lands ceded by the treaty of Fort
Jackson. He frequently assured the chiefs that he had au
thority to correspond with his Majesty's minister at Washington
— with Governor Cameron, of New Providence, and the Gov
ernor-General of Havana, on the subject of the necessary sup
plies for carrying on the war ; and that he was in possession of
a letter from Earl Bathurst, which informed him that Mr.
Bagot was instructed on that subject. On the back of a letter
addressed by hitn to that minister he states the aggregate force
embodied among the Indians, and the positions at which they
were posted, and requests a supply of arms and ammunition,
specified in the following memorandum :
''" ' A quantity of gunpowder, lead, muskets, andfiints, suffi
cient to arm 1000 or 2000 men. Muskets, 1000 ; more smaller
pieces, if possible ; 10,000 flints, a proportion for rifle, put up

GEORGE POINDEXTER. 69
separate ; 50 casks gunpowder, a proportion for rifle ; 2000
knives, 6 to 9 inch blade, good quality ; 1000 tomahawks ; 100
lbs. vermihon ; 2000 lbs. lead, independent of ball for musket. '
" This paper speaks for itself ; it cannot be misunderstood,
and shows most clearly the participation of Arbuthnot in pro
viding the means necessary to the prosecution of the Seminole
War. He was the prime minister of the hostile Indians ; had a
full power of attorney to make talks, and act for them in all
cases whatsoever ; and if Ambrister, who was but a subordinate
agent, was justly sentenced to suffer death, what excuse can be
offered for the man who put the whole machinery of war, mas
sacre, and robbery in motion ? Can it be said that he had not
disturbed the tranquillity of the United States, or done us a
prejudice in any manner whatever ? I presume it cannot ; and
of course, according to the maxims of public law to which I
have referred, ' he had declared himself our enemy, and ex
posed himself to be justly punished. ' It is unnecessary for me
to enlarge the discussion on the right of the commanding gen
eral to retaliate on the enemy for the acts of cruelty and bar
barity which were practised in the progress of this war. Hon
orable gentlemen who controvert the right have shown no in
stance in which it was denied, either in Europe or America ;
and, in support of it, we have the examples of Washington
and many other general officers who fought in the War of the
Revolution. Yes, sir. General Jackson had the right to inflict
punishment on these outlaws. I rejoice that he exercised that
right ; and if we do not paralyze and destroy the good effects
of the act, it will contribute in no small degree to the future
peace and security of our frontier. But the honorable Speaker
has said that we have no right to practise retaliation on the
Indians ; that we have forborne to do so from the earliest set
tlement of the country, and that it has become the common law
of the land, which we are bound not to violate. Sir, from what
source does the gentleman derive the principle that a right in
herent in the nature of man^which he inhales with his flrst
breath ; which ' grows with his growth and strengthens with
his strength ' ; which has the fiat of God for its sanction, and is
incorporated in the code of all the nations of the earth — becomes

70 BENCH AND BAR OF MISSISSIPPI.
extinct with regard to those, who may forbear to exercise it, from
motives of policy or humanity, for any number of years ? That
a common law is thereby entailed on the American people, to
the latest generations, by which they are required to bend be
neath the tomahawk and scalping-knife of the savage, and sub
mit to every cruelty and enormity, without the privilege of re
taliating on the enemy the wrongs and injuries we have suffered
by his wanton transgression of the rules of civilized warfare ?
We have, it is true, tolerated much of the inhuman conduct of
the aborigines toward our frontier inhabitants. We have en
deavored to teach them, by examples of humanity and mag
nanimity, the blessings and advantages of civilization ; but in
stances are not wanting of the most severe retaliation on these
monsters, for their deeds of barbarity. If, however, there was
not a solitary case on record, of the exercise of the right, it
remains inviolate and inviolable. No community has the power
to relinquish it, and bind posterity in the chains of slavish non-
resistance. The gentleman's common law will not do for the
freemen of the United States ; it is unique and absurd. Sir, if
the committee will pardon the digression, this novel idea of
common law reminds me of an occurrence which is said to have
happened in the early period of the settlement of the present
polite and flourishing State of Kentucky. A man in personal
combat deprived his antagonist of the sight of an eye, by a
practice familiar at that day, called gouging. The offender was
prosecuted and indicted for the outrage ; he employed counsel
to defend him, to whom he confessed the fact. ' Well, sir,' said
the lawyer, ' what shall I say in your defence ? ' ' Why, sir, ' said
he, ' tell tlwm it is the custom of tlie country P And I presume, if
the honorable Speaker had presided on the trial, he would have
said, ' Gentlemen of the jury, it is the common law of Ken
tucky, and you will find a verdict for the defendant.' But, sir,
to be serious, let me bring the case home to the honorable
Speaker himself. Suppose a band of these barbarians, stimu
lated and excited by some British incendiary, should, at the
hour of midnight, when all nature is wrapt in darkness and re
pose, sound the infernal yell, and enter the dwelling of that
honorable gentleman, and in his presence pierce to the heart the

GEORGE POINDEXTER. 71
wife of his bosom, and the beloved and tender infant in her
arms — objects so dear to a husband and a father — would he
calmly fold his arms and say, ' Well, 'tis hard ; but it is the
common law of the country, and I must submit ' ? No, sir ; his
manly spirit would burn with indignant rage, and never slum
ber till the hand of retributive justice had avenged his wrongs.
" ' Mercy to him who shows it, is the rule,
And righteous limitation of the act,
By which Heaven moves in pardoning guilty man ;
And he that shows Bone, being ripe in years.
And conscious of the outrage he commits,
Shall seek it, and not find it, in his tum. "
" I have no compassion for such monsters as Arbuthnot and
Ambrister ; their own country is ashamed to complain of their
fate ; the British minister here has disavowed their conduct and
abandoned their cause ; and we, sir, are the residuary legatees
of all the grief and sorrow felt on the face of the globe for
these two fallen murderers and robbei-s ! For I call him a
murderer who incites to murder.
" Mr. Chairman, I am not the eulogist of any man ; I sha.1l
not attempt the panegyric of General Jackson ; but if a grate
ful country might be allowed to speak of his merits,
^' Louisiana vfoxAA say: 'Yon have defended our capital
against the veteran troops of the enemy, by whom it would
have been sacked, and our dwellings enveloped iu flames over
the heads of our beloved families. '
" Georgia : ' You have given peace to our defenceless fron
tier, and chastised our ferocious savage foe, and the perfidious
incendiaries and felons by whom they were excited and coun
selled to the pei-petration of their cruel deeds. You have
opened an additional territory to our rich and growing popula
tion, which they may now enjoy in peace and tranquillity. '
" Alabama and Mississippi : ' You have protected us in the
time of our infancy, and in the moment of great national peril,
against the inexorable Red Sticks and their allies ; you have
compelled them to rehnquish the possession of our lands, and
erelong we shall strengthen into f idl manhood, under the smiles
of a beneficent Providence. '

72 BENCH AND BAR OF MISSISSIPPI.
' ' The whole Western Country : ' You have preserved the
great emporium of our vast commerce from the grasp of a pow
erful enemy ; you have maintained for our use the free navi
gation of the Mississippi at the hazard of your life, health, and
fortune. '
' ' The Nation at large : ' You have given glory and renown
to the arms of your country, throughout the civihzed world,
and have taught the tyrapts of the earth the salutary lesson
that, in the defence of their soil and independence, freemen are
invincible. '
" History will transmit these truths to generations yet unborn ;
and should the propositions on your table be adopted, we, the
representatives of the people, subjoin : ' Yes, most noble and
valorous captain, you have achieved all this for your country ;
we bow down under the weight of the obligations which we
owe you, and as some small testimonial of your claim to the
confidence and consideration of your fellow-citizens, we, in their
name, present you the following resolutions :
" ' Resolved, That you, Major-General Andrew Jackson,
have violated the Constitution which you have sworn to support,
and disobeyed the orders of your superior, the commander-in-
chief of the army and of the navy of the United States.
' ' ''Resolved, That you, Major-General Andrew Jackson, have
violated the laws of your country, and the sacred principles of
humanity, and thereby prostrated the national character, in the
trial and execution of Alexander Arbuthnot and Robert C.
Ambrister, for the trifling and unimportant crime of exciting
the savages to murder the defenceless citizens of the United
States. " ' Accept, we pray you, sir, of these resolves ; go down to
your grave in sorrow, and congratulate yourself that you have
not served this great Republic in vain. '
" Greece had her Miltiades, Rome her Belisarius, Carthage her
Hannibal, and ' may we, Mr. Chairman, profit by the exam
ple ! ' Sir, if honorable gentlemen are so extremely solicitous
to record their opinions of this distinguished gentleman, let us
erect a tablet in the centre of our Capitol Square ; let his bust
designate the purpose ; thither let each man repair, and engrave

JOSEPH E.DAVIS.

JOSEPH E. DAVIS. 73
the feelings of his heart. And, sir, whatever may be the opin
ions of others, for one, I should not hesitate to say, in the lan
guage of the Sage of Mpnticello, ' Honor and gratitude to him
who has filled the measure of his country'' s honor.' "

JOSEPH EMORY DAVIS.
The subject of this sketch was bom near Augusta, Georgia,
on the 10th of December, 1784. He was the oldest one of a
family of ten children, of which his brother Jefferson Davis was
the youngest. His father, Samuel Davis, was a soldier of the
American Revolution, and served in the mounted troops of
Georgia, his native State, from his seventeenth year to the close
of the War for Independence.
When Joseph was about twelve years of age his father emi
grated to Kentucky, and settled in that portion of Christian
County which was afterward erected intp the county of Todd.
Having received such education as the common schools of the
country afforded, he was placed at an early age in a mercantile
house, where he acquired those characteristic habits of busi
ness and knowledge of accounts which, no doubt, contributed
largely to his future success. But he had but little taste for
the life of a tradesman, and after having served a few years as
a merchant's clerk he began the study of law in the office of
Judge Wallace, of Russell ville, Kentucky. Here he found a
field commensurate with his ambition, and suitable to the devel
opment of his genius.
In 1811 he removed with his father's family to Wilkinson
County, Mississippi, and continued to read law, under Joseph
Johnson, Esq. In 1812 he was admitted to the bar, and com
menced practice at Pinckneyville in that county. He remained
there, however, but a short time before he removed to Green
ville, in Jefferson County, where he remained until 1820, and
rose to a high rank in his profession.
In 1817 the people of that county chose him as a delegate to
the convention for the organization of the State Government ;
and his services in framing the fundamental law of the State

74 BENCH AND BAR OF MISSISSIPPI
were marked by a depth of legal learning, of sound judgment,'
and practicality, which placed him in the ranks of its most
eminent and useful men.
In 1820 he removed to Natchez, at that time the most im
portant commercial town in Mississippi, and formed a copartner
ship for the practice of his profession with Thomas B. Reed,
who was then the acknowledged leader of the bar of the State.
It was the usage of the lawyers of that period to travel the cir
cuit with the judge, it being one of the customs of England
which still lingeredin this country ; and as those of the high
est rank were thus brought in constant contact, it required the
highest intellectual qualities to achieve success ; consequently
the bar of Mississippi at that time was not inferior, perhaps,
to aiiy that ever existed in the State ; and it was under these
exacting circumstances, and in the midst of this array of talent,
that Mr. Davis attained his eminence.
As a lawyer Mr. Davis was thoroughly versed in the learning
of his profession. He possessed an intellectual vigor, an in-
quisitiveness of mind, and a practicality of disposition which
led him to look beyond the mere existence of the statute to an
inquiry into the origin and reason of the law. The poetry and
sentimentality of his nature had been pruned and subdued by
the mathematical teaching and stoical example of his father,
and he viewed things in the light of reason and stern reality.
His opinions were the result of deep refiection, and his views
were always judicious and prospective. His perception was
acute, and he was quick to detect points of weakness, and slender
probabilities. As Lord Cockburn said of Lord Jeffrey, " He
was a first-rate legal pilot. He saw at the outset of the voyage
all the rocks and shoals on which the ship was likely to strike,
and all the gales that might favor or obstruct it ; all the anchors
that would hold, and all the harbors of refuge into which he
might run. He scented what would turn out nonsense or false
hood a great way off, and thus was one of the safest of all gen -
eral advisers. It was not exactly acuteness or talent ; it was a
faculty which these qualities often obstruct ; it was the power of
taking large and calm surveys, with a view to detect strong or
weak points."

JOSEPH E. DAVIS. 75
To these superb qualities of judgment and perception, in
which lay the secret of his facility in the formation of correct
opinions, and in a wise regulation of conduct, Mr. Davis added
a correct association of ideas and a memory for details which
enabled him to array facts and circumstances in the most exact
and imposing order, and a logical power that presented them in
the most forcible manner to the minds of his hearers. And to
his powers of analysis and synthesis were superadded superior
oratorical accomplishments. He had a deep, clear, and musical
voice, a brilliant imagination, a refined taste, forcible expres
sion, a graceful manner, and engaging personal appearauce.
Hence he was a pleasing and entertaining speaker and a power
ful advocate.
In 1827 he decided to retire from the bar and begin the life
of a planter, and steadily closed his engagements. His profes
sional success had been great and his practice remunerative, and
he now sought that repose which can only be found in the
bosom of rural domesticity. But he carried with him into his
new occupation the same energy and capacity which character
ized his career as a lawyer, and the result was that, in 1861, he
possessed one of the most valuable plantations on the Mississip
pi River. His numerous slaves, flocks and herds, beautiful
grounds, extensive orchards, commodious dwelling, and large-
hearted hospitality, caused his home to become a bright land
mark in the memory of the happy days of a prosperous
country. Among the prominent features of his character were his great
benevolence and humanity. Many youths of both sexes were in
debted to him for a liberal education, and some who were his
friends in the days of his comparative poverty foimd in their
necessities a refuge under his roof ; and so considerate was his
kindness, so sincere his generosity, and so hospitable his man
ners, that no one to whose wants he administered ever felt the
sting of dependency, or suffered humiliation in the reception of
his beneflts.
He was exceedingly kind and just in the management of his
slaves. It was a fixed rule upon his plantation that punishment
should only be inflicted for crime of which the accused had been

76 BENCH AND BAR OF MISSISSIPPI.
convicted by a jury, selected from the other negroes on the
plantation ; and over these trials he alone presided as judge ;
and he gave it as his experience that the tendency of his planta
tion juries, like those of other courts, was to find a verdict not
from the evidence adduced, but from their opinion of the char
acter of the accused, a disposition which it became necessary for
him to check by the most careful charges and an un-judgelike
defence of the criminal. His tender care for them ceased not
with his life, but was continued by an unusual testamentary pro
vision for those who were incapable of supporting themselves.
With a cheerful temper, attractive manners, and a heart so
full of kindness, he possessed every element for popularity, and
might have achieved high political distinction had he chosen
the field of politics for the exercise of his great talents ; but he
seems to have had no desire for the lionors, emoluments, or ex
citements, of public life. He held no office but that of a dele
gate to the Convention of 1817, and sought but one other — that
of delegate to the Convention of 1832. At this convention the
important question of an elective judiciary was to be decided,
and he entered the canvass in opposition to that measure, which
he feared would drag the ermine through the mire of party
strife, and prove fatal to the purity and efficiency of the bench.
But, controlled by an intelligent suffrage, the election of judi
cial officers in Mississippi produced no such effect, but, on the
contrary, proved, so far at least as the Supreme Court was con
cerned, an improvement upon the former system ; and it is a
notable fact that the judges of the High Court were generally
chosen from the political party then in the minority in the dis
tricts from which they were elected.
In politics Mr. Davis was a disciple of Jefferson. With that
creed he began his career, and from that faith he never swerved.
Far-seeing and conservative in his character, he doubted the
expediency of secession when it occurred, but never ques
tioned the right of a State to judge, in the last resort, of its
wrongs, and the mode and measure of their redress.
During the war he was driven from his home and property
on the banks of the Mississippi, and, without complaint or an ex
pression of regret, procured a more humble residence in Hinds

JOSEPH E. DAVIS.. 77
County ; but there, too, he was soon invaded, and there this
feeble octogenarian, with none to sustain him but an invalid
wife, two helpless girls, and his faithful slaves, was made to
feel the effects of that vengeful rapine which knew no age nor
sex. When the purpose to burn down his house was an
nounced, he told the commanding officer that his wife was un
able to walk, and that she was in that house ; to which the brutal
reply was, that the house would be fired in so many minutes.
Amidst this heart-rending scene his faithful slaves came to his
rescue, and tenderly and affectionately lifted the bed upon
which Mrs. Davis lay, and bore it far enough away from the
house to be free from the danger of falling fire, where she
remained until the enemy retired, after having plundered the
premises. After many vicissitudes and hardships Mr. Davis returned, at
the close of the war, to Vicksburg. The enemy still had pos
session of his plantation, from which his only revenue was de
rived, and by falsehood, artifice, and bullying, endeavored to
exclude him, and deter him from asserting his claim to it. He
preferred charges of falsehood and theft against the senior offi
cer of the Freedmen's Bureau at Vicksburg, who had proposed
to surrender his property for a pecuniary consideration, wliich,
though small compared to its income, was to him an obstacle
mountain-high in the principle it involved. In keeping with
the courage, integrity, and self-denial, which had always char
acterized him, Mr. Davis rejected the proposition with indigna
tion and scorn, and, old and feeble as he was, defied them when
they attempted to intimidate him by threats. He finally ob
tained possession of his property, but continued to reside in
Vicksburg, iu the midst of a large circle of relatives and personal
friends. Here, like the Grecian sage, he had seen two genera
tions pass away whose polity was enlightened by his genius and
whose welfare was promoted by his counsel, and now the third
caught the inspiration of his example. The last remnant of a
past and prosperous age, he lingered far behind the contempo
raries of his meridian manhood, and disappeared amid the dark
ness that had gathered over his country. He died in Vicksburg
on the 18th of September, 1870, in the eighty-sixth year of his

78 BENCH AND BAR OF MISSISSIPPI.
age. His remains were borne down the river for burial, and
when they reached the landing of the Hurricane, his former
home, they were met by a large concourse of his former slaves,
who, with loud lamentations, and bearing torches that sent a
dismal glare through the darkness, seized the bier and bore it
to the grave, where he was laid, away by the side of his wife.
He had watched with long and jealous care the growth and hap
py working of that system of jurisprudence which his services
were so conspicuous in planting in Mississippi ; and his death
deprived its people of the last of those who, when the State
was a Territory, strove to develop its resources, to elevate its
institutions of learning, and to give dignity and purity to its
Bench and its Bar.

CHAPTER III.

ORGANIZATION OF THE STATE GOVERNMENT— ITS JU
DICIAL ESTABLISHMENT — THE BENCH — EMINENT
JURISTS— 181 7-1 832.
JOHN P. HAMPTON  EDWARD TURNER  POWHATAN ELLIS  JOSHUA O.
CLARK  JOHN TAYLOR  JOHN BLACK  RICHARD STOCKTON — JOSHUA
CHILD  GEORGE WINCHESTER  HARRY CAGE  ISAAC R. NICHOL
SON  ALEXANDER MONTGOMERY.
In pursuance of an Act of Congress passed on the 1st day
of March, 1817, a convention of delegates from the several
counties of the western portion of the Mississippi Territory was
convened, in the town of Washington, on the 7th day of July
in the sam^ year, for the purpose of organizing a State Govern
ment. Of this convention David Holmes was chosen president,
and a committee of one member from each county was appoint
ed to prepare a constitution and form of government for the
new State. On the 24th of July, the committee reported the
result of its labors, and on the 15th day of August, after various
amendments to the report, the convention adopted the first
Constitutiou of Mississippi.
This Constitution contained the following provisions, now
unknown to our laws : 1st, It required a property qualification
for holding office. 2d, It restricted the right of suffrage to
those who paid a State or county tax. 3d, It declared that
ministers of the gospel, being dedicated to God and the care of
souls, ought not to be diverted from the great duties of their
functions, and that, therefore, no minister of the gospel, or
priest of any denomination whatever, should be eligible to the
office of governor, lieutenant-governor, or to a seat in either
branch of the General Assembly. 4th, It permitted the estab-

80 BENCH AND BAR OF MISSISSIPPI.
lishment of State banks, and assigned no limit to the pledging
of public credit or to the contracting of public obligations, ex
cept in regard to the appropriations for the army, which were
limited to one year. The judicial power of the State was vested
in one supreme court of appellate jurisdiction, which was to be
held by the district judges, and a superior court, to be held by
one of these judges in each county ; but the judge of the
superior court might not sit on the trial in the supreme court
when his judgment in the court below was under revision ; but
it was made his duty to report in writing to the supreme court
the reasons upon which his decision was based.
In 1821 the Legislature established a separate chancery ju
risprudence in the State. This act divided the State into two
chancery districts, and provided for the appointment of a chan
cellor, to serve during good behavior. It also prescribed the
rules of practice in this court, and defined its functions.
In 1825 a special term of this court was provided for the city
of Natchez, and Monroe County was erected into a separate
chancery district. In 1827 this act was repealed ; the system
of chancery was revised, and four chancery districts were
formed. The Judiciary Act of 1818 created a county court, consisting
of a chief and two associate justices, with the jurisdiction and
cognizance of justices of the quorum ; and the Act of 1821 gave
to. one judge the powers of probate and the registry of deeds.
In 1822 a county court was created, composed of a judge of
probate and two associates, with limited original cognizance,
but with appellate jurisdiction over the acts and decrees of the
probate judge acting alone as the ordinary.
By the Act of 1822 justices of the peace were made conserva
tors within their several counties, and were empowered to take
all manner of recognizances for good behavior, or for appear
ance at the circuit court. They were authorized to issue war
rants for the apprehension of criminals, to take recognizances
to answer, or to commit the offender, and might issue search-
warrants. They were required to take in writing the voluntary
confessions of the accused and the testimony of witnesses, and
certify the same to the circuit court. They might issue war-

JOHN P. HAMPTON. 81
rants of arrest in cases of removal or escape, and subpoenas for
witnesses, in State cases, to any other county, but they were to
be indorsed by a justice of the county to which they were
issued. They might also fine and imprison for contempt.
Appeals from the justices' courts were required to be tried de
novo and summarily in the circuit court, and a trial by jury was
granted in all cases which involved more than twenty dollars.
This system of judicature remained unaltered until the judi
ciary was remodelled under the Constitution of 1832. Let us
now notice the eminent judicial functionaries of that period.

JOHN P. HAMPTON.
Judge Hampton, it is believed, was a native of South Caro
lina, and belonged to the family from which sprang the present
eminent United States Senator from that State. He emigrated
to the Mississippi Territory some time prior to the organization
of the State Government, and was the first Chief Justice of the
State of Mississippi, having taken his seat at the opening of the
court, iu the spring of 1818.
That he was a profound lawyer and able judge there can be
no question. This is evident both from the fact of his elevation
and the tenor of his decisions which are always marked with
clearness, comprehension, and a lofty and unswerving regard
for equity and justice. One of the ablest decisions rendered by
our early courts was delivered by Chief Justice Hampton in the
case of Stark's heirs vs. Mather (Walker's R. 180). This was a
case of conflicting tenures arising under different grants, one
of which was made by Spain and the other by the Government
of the United States.
The court held that if the prior Spanish grant was a nullity in
se for want of power on the part of the Spanish Government to
effectuate it, yet, being embraced in the confirmatory provi
sions of the Georgia Cession, it was valid, and that consequently
the subsequent patentee claiming under the United States was
merely a trustee of the former grant.
This decision was ably assailed by the distinguished Mr.
6

82 BENCH AND BAR OF MISSISSIPPI.
Walker, in a note appended to his Reports, and the High Court, of
Errors and Appeals has since decided, in the case of Montgomery
et al. vs. Ives et al. (13 S. & M.), that the confirmatory articles
of the Georgia Cession did not relate to the dates of patents so
as to give preference to the older ; that each patent took effect
from the date of the cession, and they were therefore of equal
dignity as regarded age, and that the confirmation of a void pat
ent does not, by relation to its date, affect the rights of third
persons. But if the quieting clauses in the Articles of Cession had the
effect of legalizing or ennobling the Spanish grant, and the
quieting effect extended to actual possession under a bona fide
title, the plaintiff being in such possession at the time of the
treaty, it is difficult to perceive what other effect the application
of equity to the case would have than that embraced in the
opinion of the court, notwithstanding the technical remissness
of the plaintiff, upon which Mr. Walker, iu part, bases his
attack. Judge Hampton was prompt to animadvert upon every in
stance of moral turpitude that fell under his revision. In
the case of Dismukes vs. Terry (Walker, 119), in which
the gist of the defence was fraud, he said : " It is a subject
of regret to the moralist that those of us who are called to
the frequent investigation of controversies originating in the
commerce of man with his fellow-men, and to peruse the his
tory of judicial proceedings as reported for centuries, have often
to encounter instances of discrepancy in testimony so great
that, after the most charitable allowance for misconception, im
perfection of memory, and involuntary prepossession, the mind
perceives sufficient reason still to believe that there has been,
on one side or the other, if not on both, a voluntary aberration
from conscious truth. But should the present case present any
grounds for animadversion in this respect, so far as the defend
ant may be implicated, as to all, except what duty demands, I
desire to stand reproved by a recollection of his fate, and ' to
tread lightly on the ashes of the dead. ' ' '
So great was his reprobation of everything that savored of
unfairness that, in the decision of the case of Frazer vs. Davis ¦

JOHN P. HAMPTON. 83
(Walker, 72), which, from the style, was evidently rendered by
him, the court declared that if a person, in possession of a mere
rumor that an article had risen in value, purchased it, without
communicating the report to the vendor, the sale was fraud
ulent and void, as well in law as in equity. ' ' It makes no differ
ence," said the court, " with what formality an obligation is en
tered into, if obtained by fraud, by a suggestion of falsehood,
or suppression of the truth, it is void, and the party is not
bound to perform." The enforcement of this principle to the
extent inculcated in this case would certainly make a great rev
olution in the present prevalent system of traffic ; and it is a
standard which practical morality has perhaps never yet attained
in any community, and, it is feared, never will, until the pas
sions and frailties of men are subjected to more powerful moral
influences than any human rule of conduct has yet been able to
devise or enforce.
" It would certainly be well," says Mr. Walker, in comment
ing upon this case, ' ' for the best interest of society, if the pure
principles of morality inculcated in this case could be estab
lished as the law of the land, and practically enforced in the
ordinary transactions of life ; but such a rule has been considered
by many eminent tribunals as replete with difliculties." If a
person should be required to furnish others with the benefits of
his superior judgment, and the fruits of his alacrity, tact, and
industry, on penalty of invalidating his contracts, it would oper
ate in our present state of society as a great clog to industry
and enterprise ; but the effort to establish such an order of
things, however futile in practice, was none the less creditable
to the character of this eminent and justice-loving judge ; and
his decision will, it is to be hoped, remain a beacon which, if it
cannot be fully reached, will yet throw a vivifying light upon
the moral features of our laws, and attract all future decisions
of our courts, as far as practicable, in that direction.
Judge Hampton continued as Chief Justice upon the su
preme bench until the year 1829, when he was succeeded by the
Hon. Edward Turner.

84 BENCH AND BAR OF MISSISSIPPI.

EDWARD TURNER.
Judge Turner was a native of Virginia, and was born in the
county of Fairfax on the 25th of November, 1778. When but
eight years old he moved with his father's family to Kentucky,
where, after attending for several years the common schools of
the country, he was sent to the Transylvania University, which
he attended at intervals, as his time and means would permit.
At this institution he obtained a knowledge of the higher
branches of an Enghsh course, but did not study the ancient lan
guages, of which he was, throughout his life, totally ignorant.
Tlie assiduous and persevering chara.cter of young Turner soon
attracted notice, and he was adopted into the family of the
chief law professor of the university, and assigned to duty as a
clerk in his office, in which position he began the study of law,
and which, notwithstanding the death of his patron, which oc
curred soon after, he continued to prosecute with the most de
voted application and untiring energy, until the year 1802, at
which time he emigrated to the Mississippi Territory, and at
once began the practice of law in the city of Natchez, where
his genial disposition and cordial manners gained for him a kind
reception and professional encouragement.
The Governor of the Territory became so much impressed
with the worth of the young lawyer that he made him his aide-
de-camp, and with this office he began those distinguished public
services which rendered him so conspicuous in the annals both
of the Territory and the State. He held this position but a
short time before he was made clerk of the Territorial House of
Representatives, but continued to act also as the Governor's pri
vate secretary. In the latter part of the year 1802, he married
a Miss West, of Jefferson County, where he made his residence
and became clerk of the county court, but continued his prac
tice in other courts.
In 1803 Mr. Turner received the Federal appointment of
register of the land office and commissioner of lands for the
Territory. This office he held until 1805, when, on being su-
peiseded, he removed to the town of Greenville, in Jefferson

EDWARD TURNER. 85
County. Here he continued his practice of law until 1810, and
then removed to Warren County, which he was elected, in the
year 1811, to represent in the Legislature. About this time he
lost his wife, but married again the next year. In 1813 he re
turned to Natchez and resumed the practice of law in that city,
where he became also city magistrate and president of the board
of selectmen.
In 1815 he was elected to represent the county of Adams in
the Legislature, and was re-elected for several terms. In 1815
he was also appointed by the Legislature to prepare a digest of
the statute laws of the Territory, which was completed and
adopted in 1816. This digest contained all the statutes in force
at that period, and was entitled " Statutes of the Mississippi
Territory. ' ' This compilation was made in a masterly manner, .
and evinced on the part of the compiler a thorough knowledge
of the Territorial laws, as well as judgment and skill in its
arrangement. Judge Turner was a member of the Convention of 1817,
which framed the State Government, representing Adams
County in that body, and in which he took an active and lead
ing part. In 1818 he was elected to the first Legislature as
sembled under the State Government, and, with the exception of
one year, continued a member of the House of Representatives
until 1 822, during which time he was tAvice elected Speaker.
In 1820 he was appointed Attorney-General of the State by
Governor Poindexter. This office he held but a short time,
when he was superseded by legislative appointment.
In 1822 he was appointed judge of the criminal court of
Adams County, and in 1824 was. without solicitation, made a
judge of the Supreme Court of Mississippi.
In 1829 he became Chief Justice of the State, which position
he held until superseded by the intervention of the amended
Constitution of 1832.
In 1834 he was elected Chancellor of the State, which office
he held until 1839, during which he greatly improved the chan
cery jurisprudence of the State. In 1840 he was again elected
a judge of the Supreme Court to fill the vacancy occasioned by
the death of Mr. Justice Pray, and at the expiration of the

86 BENCH AND BAR OF MISSISSIPPI.
term, in 1843, he was chosen, at the age of sixty-five, to the
State Senate, to represent the district composed of the counties
of Jefferson and Franklin.
Through all this wide and varied theatre of public services
and multiplicity of public duties. Judge Turner acted his part
ably and faithfully. His superb patriotism was a constant in
centive to all his energies ; and he possessed in a high degree
those traits of character which engage confidence and respect.
His industry was indefatigable, and so versatile was his capacity
for usefulness that no sphere of public duty seemed foreign to
its adaptation and perfect adjustment. He was a man of great
integrity and purity of character, and his judicial career was
marked with an uprightness, impartiality, and love of justice
that invited a comparisou to that of Sir Matthew Hale. Judge
Turner was not a man of extraordinary natural endowments, nor
were his general acquirements extensive. He was not consid
ered a profound lawyer. His life was too checkered and varied
by the abstractions of public services for the requirements of
that jealous science. Yet his energy, integrity, and sound views
of justice and equity, made him an excellent judge. While he
possessed no one dazzling feature of character, he presented that
full round orb of virtue and usefulness, which is rendered reful
gent by its uniqueness and uniformity. He was a man of ex
emplary rectitude in all the relations of life : a kind husband,
affectionate father, a warm friend, and a great favorite with
the members of the bar. Ile^was of a portly and commanding
figure, and the qualities of his heart were vividly reflected in
the kind and genial features of his countenance and in his affa
ble manners. I will close this sketch of Judge Turner by in
troducing the following extract from the minutes of the Supreme
Court. At the expiration of his second term as judge of the
High Court, in 1843, he declined re-election, whereupon the
members of the bar then in attendance upon the court held a
meeting in Jackson, and, upon motion of Hon. William Yer
ger, resolved :
" That the State of Mississippi is under many obligations to
the Honorable Edward Turner for the many years of arduous
labor he has devoted to her service, and for the distinguished

POWHATAN ELLIS. 87
example of purity, integrity, and patriotism which he has
afforded to her citizens.
" That the members of this bar entertain the kindest feelings
of attachment for the honorable, for the upright, the pure and
impartial manner with which he has discharged the duties of
his station as a judge of this court.
" That a copy of these resolutions be forwarded to Judge
Turner, and that the same be published in the papers of this
city, and of the cities of Natchez, Vicksburg, and Holly
Springs, and that leave be asked to spread them upon the
minutes of the High Court of Errors and Appeals."

POWHATAN ELLIS.
Judge Ellis was a native of Virginia, and emigrated to Mis
sissippi during its Territorial era. I have been able to ascertain
nothing in regard to his early life or his antecedents prior to his
appearance in Mississippi. He was a lawyer of repute in the
Territory, and in 1818 was elevated to the supreme bench of
the State, being one of the first judges of that court. This seat
he held until the year 1825, when he was appointed by the Gov
ernor to fill the seat in the United States Senate which had been
vacated by the death of Hon. David Holmes, and at the expi
ration of the term in 1827 he was returned to the Senate by
election, which office he held until 1832. He was then ap
pointed judge of the Federal District Court, and afterward
United States minister at the city of Mexico, whence he re
turned to Virginia, and died in the city of Richmond.
The eminence of Judge Ellis was not due to any distinguished
ability. He was a man of ordinary talents and limited literary
acquirements ; but he possessed great energy of character, a patri
otic spirit, and a cordiality 'of manners which insinuated him into
popular favor. He had an air of bluster and boldness in his
bearing calculated to impress the ignorant with an idea of his
superiority, and a self-complacency that won the admiration of
the learned.
But notwithstanding these peculiarities of his character.

88 BENCH AND BAR OF MISSISSIPPI.
Judge Ellis was a pure and upright judge, and la popular and
useful member of society ; true to his friends and devoted to
his official duties. He delivered more opinions than any other
judge during the time he was upon the bench, and while he
entered into no profound disquisitions or elaborate discussion
of subtleties and technicalities, his decisions are illuminated by
his integrity, and his conclusions are just and correct.
He was never married, and was therefore somewhat unortho
dox in his views of the relations of husband and wife ; hence
it may not be surprising to find him, iu the case of Bradley vs.
the State (Walker, 156), holding to the old feudakdoctrine that
a husband might chastise an obstreperous wife, provided he used
a rod no larger than the thumb.
One of the most conspicuous acts of Judge Ellis, while in the
Senate of the United States, Avas his vote with Mr. Benton, of
Missouri, and Judge Smith, of South Carolina, against the ratifi
cation of the Treaty of 1828, establishing the boundary-line be
tween the United States and Mexico, which intersected the Red.
and Arkansas rivers and brought a non-slaveholding power to
the borders of Louisiana, and nearly to the boundary of Mis
souri ; which utterly deprived the slaveholding interest of what
ever advantages it obtained by the compromise measures of
1820, and left to it no expansion but the Territories of Florida
and Arkansas.
Whether Judge EUis and his two co-voters saw the full result
of this treaty. — the agitation that followed, and the Mexican
War — or not, yet they are entitled to all the merit which a bold
opposition to a most disastrous measure can bestow. But while
the senatorial career of Judge Ellis was characterized by alert
ness and fidelity, it was during its latter part overshadowed by
that of his brilliant colleague, George Poindexter.

JOHN TAYLOR.
The subject of this sketch was a native of the State of Penn
sylvania. He emigrated to Mississippi in the early days of the
Territory, and settled in the county of Adams, which in 1814

JOSHUA G. CLARKE. 89
he represented in the Territorial Assembly. He was also a
member, from that county, of the Convention of 1817, which
organized the State of Mississippi.
In 1818 he was elevated to the supreme bench, from which
he retired in 1822.
It is difficult, if not impossible, at this day to ascertain more
than the general character of many of the distinguished gentle
men who emerged from the dimly historic bar of the Territory
into prominent places in the jurispnidence of the State ; and
if Plutarch deemed it necessary to reside forty years in Rome
to quahfy himself for the task of writing the lives of some of its
eminent citizens, surely the disparity of circumstances will avail
as an excuse for the writer ; but from what we know of the
eminent lawyers who were early attracted to this rich and
blooming country, to achieve a prominent place among them
required talents and learning of a superior order.
There are but two reported decisions known to have been de
livered by Judge Taylor from the supreme bench — those of
Delahuff vs. Reed, and Stockett vs. Nicholson (Walker's R., 74
and 75), neither of which contains any features of special in
terest ; but there is no question that he was a lawyer of abihty,
and enjoyed a high judicial character.
He seems to have possessed no political aspirations, and,
although for several years a member of the Legislature, took no
active or ardent interest in partyism or public affairs. He was
thoroughly devoted to his profession, and, being a bachelor,
his law books were the chief objects of his solace and compan
ionship. He died in Natchez in 1823.

JOSHUA G. CLARKE.
Joshua G. Clarke was bom and reared in the State of Penn
sylvania, and received a competent education. He appeared in
the Mississippi Territory at an early period in its history, and
represented Claiborne County in the Territorial Legislature.
He AFas also a member of the convention assembled in 1817 for
the purpose of forming a State Government, and took an active

90 BENCH AND BAR OF MISSISSIPPI.
part in the proceedings of that body. In 1820 he was promoted
to a seat upon the supreme bench of Mississippi, and in 1821,
upon the establishment of a separate chancery system, he was
appointed the first Chancellor of the State, and held that office
until the year 1827.
Judge Clarke was a lawyer of ability, and a man of sterling
qualities. He possessed in a high degree that placid temper and
amiable patience which comport so compatibly with the requisite
character of a good chancellor and just judge ; and it is to be
regretted that his decisions have not been preserved. His learn
ing and integrity first directed our system of equity jurispru
dence into those channels through which it has fiowed with in
creasing volume and utility. His career upon the supreme
bench, though short, gave eminence to his judicial character.
His opinions are marked with learning, dignity, and force ; and
had he lived longer his usefulness would have, no doubt, in
creased with his years. He died at Port Gibson in 1828.

JOHN BLACK.
Judge Black was born and reared in the State of Massachu
setts. He emigrated to Mississippi about the time of the or
ganization of the State Government, and in 1826 was appointed
one of the judges of the Supreme Court. This office he held
until the year 1832. He was then appointed to succeed the
Hon. Powhatan Ellis in the Senate of the United States, and in
1833 was elected under the new Constitution for a full term.
Judge Black was evidently a lawyer of much ability, and one
of the ablest judges whose opinions are reported by Mr. Walker.
It is from these mostly that I have been able to judge of his
legal and judicial character. His decisions are lucid, terse, and
logical, and evince a perfect familiarity with the settled princi
ples of law. His course in the United States Senate was at first
distinguished for a marked devotion to the interest of his State
and section ; but his subsequent opposition to some of the
measures of Jackson's administration caused liim to become
unpopular with his constituency, and, on the 28th of January,

JOHN BLACK. 91
1835, the Mississippi House of Representatives, by a vote of 38
to 13, passed the following resolutions :
" Whereas, We regard it as a fundamental axiom in our sys
tem of government, that all power and pohtical right is inherent
in the people ; that the government, both State and Federal,
was only instituted for their good ; and that iu' adopting our
republican form of government the object was to select that
which would best subserve their wants, wishes, and interests,
with the least trouble and burden to themselves ; from which it
necessarily results that those to whom power or authority is
delegated or intrusted ought only to exercise or use it in ac
cordance with the opinion of those for whom they hold it,
whenever that opinion can be ascertained ;
"And wliereas, The Hon John Black was elected by this
Legislature a Senator to the Congress of the United States,
under the avowed pledge and promise of sustaining the princi
ples of the present administration, by which we understood he
would, by his vote and by his influence, support our President,
Andrew Jackson, in his efforts to preserve and protect the
Government from the influence of a corrupt and powei-fnl
moueved monopoly in the Bank of the L'nited States, and a
prodigal expenditure of the public treasure to objects of doubt
ful constitutional purposes, and a tariff of protection and mo
nopolies — all equally tending to consolidation ;
••' And whereas. The said Senator has upon various occasions
violated the pledges which he had given to the people of this
State, previous to his election, and more particularly in his votes
on various occasions in the Senate of the United States in re
lation to the Bank of the United States, and especially that
which he gave in voting for the resolution passed in that body
on the 28th day of March last, in which the President is
charged with having assumed to himself authority and power
not conferred by the Constitution and laws, but in derogation
of both ; and also because we believe that he has joined the
party opposed to the present administration, and to the best
interest of this State ; therefore,
'¦'¦Resolved, That in the opiuion of the House of Representa
tives of this Legislatui«, our Senator, the Hon. John Black, has

92 BENCH AND BAR OF MISSISSIPPI.
unfaithfully represented the people of this State ; and that at is
an obligation which he owes to them to vacate his seat in the
Senate of the United States, by resigning, and that he be in
vited to do so.
" ResoVoed, That our Senators in Congress be instructed to
vote for rescinding from the journals of the Senate the resolu
tion passed on the 28th day of March last, in which the Presi
dent is charged with exercising powers not granted, in relation to
the public deposits.
" ResoVoed, That a copy of these resolutions be transmitted
to each of our Senators in Congress, to the President of the
United States, and to the Governors of each of the States and
Territories." Notwithstanding this censure and request, it seems that Judge
Black did not see proper to comply until two years after, when
he resigned his senatorship and resumed his practice of law.
Waiving the delicate question of instruction to Senators, and
admitting the right of non-comphauce when the requirements
are contrary to conviction, it is difficult to account for this te
nacity of Judge Black, under the circumstances. Yet such is
the record of the matter.

RICHARD STOCKTON.
Judge Stockton was born and reared in the State of New
Jersey, and received a finished education at Princeton, where
he received the first honors. He belonged • to the same family
from which sprang the United States Senator of that name.
Judge Stockton was an eminent lawyer and a man of ability.
He was remarkably modest and unassuming in his manners.
He became a judge of the Supreme Court of Mississippi in the
year 1822, and resigned in 1825, when he was immediately
chosen Attorney-General, and held that office two years. He
delivered no opinion of the court while he sat upon the bench.
His resignation took place under the following circumstances :
In 1824 the Legislature of Mississippi passed an act in the
nature of a Stay-law, and entitled " An act for the further relief

RICHARD STOCKTON. 93
of debtors." This act provided that if property, taken in
execution, should not, when offered for sale, bring two-thirds
of its previously appraised value in cash, the sheriff should
proceed to sell the same on one year's credit.
In pursuance of the provisions of this act, the sheriff of Clai
borne County had levied upon and caused property to be duly
appraised, and failing to receive at the sale a cash offer amount
ing to two-third^ of the valuation, proceeded to sell the same on
one year's time, taking bond and security, which he returned
into court.
Upon this a motion was made before the Circuit Court, Judge
Stockton presiding, to fine the sheriff for "undue return and
false return." Judge Stockton declined to decide upon the
legality of the return made by the sheriff, but referred the cause
to the Supreme Court, which sustained the motion, and caused
judgment and a fine of one hundred dollars to be entered
against the sheriff for making " undue and false return."
Upon this the House of Representatives, at the next session,
1825, passed a resolution requiring the sergeant-at-arms to no
tify the judges of the Supreme Court to appear at the bar of
the House and show cause why they should not bo removed from
office in consequence of their decision in regard to the " Debt
or's Act."
In obedience to this summons. Judge Stockton appeared at
the bar of the House, begged leave to exhibit, in writing, a
plain and succinct statement of the case as decided by the Su
preme Court, and submitted the question to the determination
of the House, whether the judges, in rendering their opinion,
had been governed by impure motives, or had decided accord
ing to established law.
The position taken by the Supreme Court in this case was :
That as the original execution was issued, levied, aud executed,
and a forthcoming bond taken and forfeited previous to the
enactment of the "Debtor's Law," the sheriff should have
sold upon the forfeiture of the forthcoming bond, according to
the provisions of the statute ; that, by taking different security
from the original securit;f contained in the judgment, he vio
lated the obligation of the contract, made a new one between

94 BENCH AND BAR OF MISSISSIPPI.
the parties, not known to them at the time of the original under
taking, at the time of the judgment, at the time of the serving
of the execution, and at the time of the forfeiture of the forth
coming bond taken, under act of the Legislature, on the first
execution ; that, by giving an additional credit of twelve
months after the first suit had been prosecuted to judgment,
levy, and forfeiture of the forthcoming bond, and after execu
tion had been issued according to law upon that forfeiture, and
accepting as security the notes of persons different from the
original contracting parties, he not only impaired the obligations
of the contract, but entirely exonerated the original parties
from any further liability.
In support of the decision of the Supreme Court in this case,
Judge Stockton cited the following precedents, which he said
were all that he could recall to memory, or gather from the
limited libraries at that time in Jackson :
" No State shall pass any law impairing the obligations of con
tracts." Constitution United States, Art. I., Sec. 10.
" The State shall pass no ex post facto la,w, or law impairing
the obligations of a contract." Constitution of Mississippi.
" Any law which releases a j^art of the obligation of a con
tract must literally impair it. " 4 Wheaton, 197.
" One of the objects of the Constitution was to remedy evils
which had grown up in the several States, among which was
tliat of extending by law the time of payments stipulated in the
law." Ibid., 204.
"The convention meant to declare contracts inviolable."
Ibid. " The objection to a law, on the ground of its impairing tho
obligation of a contract, can never depend on the change which
the 'law effects in it. Any deviation in its terms, any post
ponement or acceleration of the period of performance, which
it prescribes, imposing conditions not expressed in the contract,
or dispensing with those that are, however minute or ap
parently immaterial in their effect upon the contract of the
parties, impair its obligation." Green vs. Biddle, 4 Wheaton,
U. S. Reports.
The law of North Carolina, passed during the war of 1812,

RICHARD STOCKTON. 95
giving a stay of one term, declared unconstitutional. 4
Wheaton, 186 ; 5 HalPs Amer. Law. Jour.
A law of a similar nature enacted by the Legislature of Ken
tucky pronounced unconstitutional. Blair ««. Williams ; Lapsley
vs. Brazier, Ky. Reports.
The committee propounded to Judge Stockton the following
questions :
" Was it the opinion of the Supreme Court that any officer,
executive or ministerial, can be punished for executing a law
before the same had been declared unconstitutional by the
court ?
" Was it the opinion of the Supreme Court that the court had
a right to make such a declaration of the unconstitutionality of
a law as to suspend its operation ; and would the court have
justified any ministerial officer for refusing to execute the same
law after such declaration ?
" Was it the opinion of the Supreme Court that the whole
of the seventh section of an act entitled ' An act further to ex
tend relief to debtors ' was unconstitutional ; or if only a part
of the section, what part ?
" Was it the opinion of the Supreme Court that the seventh
section was unconstitutional as to all contracts, or to such only
as had been entered into previous to the passage of the law '.
" Was it the opinion of the Supreme Court that the court had
power and right to declare an act of the Legislature unconstitu
tional ; if so, from whence does the court derive its power :
was it expressly delegated or implied, or was it from common
usage ?"
These questions were submitted to Judge Stockton in writ
ing, and to which he made the following written reply, ad
dressed to the chairman of the committee :
" After requesting you to accept for yourself, and expressing
for me to the other gentlemen of the committee, my sincere
thanks for the very handsome and delicate manner with which
they have treated me throughout the whole of this investiga
tion, to their inquiries I respectfully answer :
" As to the first of the inquiries,
" The question before the Supreme Court was, whether the

96 BENCH AND BAR OF MISSISSIPPI.
sheriff should be fined one hundred dollars, according to the
statutes, for failing to make a due return upon the execution,
and for having made a false return thereon. The motion to fine
the sheriff was in strict conformity to the statutes, and tlie com
mittee have, already, the opinion of the court in writing.
" Upon the second inquiry : The question was not made be
fore the Supreme Court.
" Upon the third and fourth inquiries : The opinion of the
Supreme Court, which is in possession of the committee, was that
it was unconstitutional as to all contracts made previous to the
passage of the law. That the court was not called upon to give
any abstract opinion upon any question not immediately before
them ; but if the committee were desirous of ascertaining what
his private opinion was, that while he was the junior member
of the bench, he would give it with great cheerfulness, and
assure them that the other members of the bench joined him in
opinion ; although, from the case before them not requiring it,
no official promulgation was made. ' '
But the character of the case was certainly very much
changed by these proceedings ; and it is strange that Mr.
Walker did not report it for its importance, not only in conse
quence of the difficulty it produced between the Legislature and
the Supreme Court, but also on account of the principles which
it involves. It seems, however, that the committee were dissatisfied
with both the reason and the result, and reported that, on a re
view of the case and the proceedings of the Supreme Court,
they believed that the opinion of the court, as to the constitu
tionality of the law, was erroneous ; and that, in regard to the
fine imposed upon the sheriff, they did not hesitate to say it was
unjust and illegal ; that they could not believe that any subor
dinate officer ought to be punished for executing any process
which emanated from competent authority ; that it was his
duty to execute it, and not to judge of its legality ; that they
knew of no power, either delegated or implied from the Con
stitution, that authorized the Supreme Court to make such a
declaration of the unconstitutionality of any law as to suspend
its operations ; but that they were constrained to believe that

RICHARD STOCKTON. 97
such power was assumed and maintained on the grounds of
judiciary precedent alone.
That they held it to be of the greatest importance that the
several departments of government should be separate and dis
tinct ; and that they should, at the same tune, harmoniously
co-operate in the great object of true governmental policy — the
common good — and they expressed the hope that all into whose
hands were committed such important trusts would execute
them with caution, so as to avoid coUisions, unless impelled by
the most serious necessity.
That they could not, for a moment, entertain an idea that
the Supreme Court were influenced in their decisions by any
impure motive, and invoked the Legislature to determine the
question with such firmness as should forever secure the rights
and interests of the community, and, at the same time, with
that justice, liberahty, and respect which is due to those to
whom was committed the administration of the laws.
And that, as it was manifestly unreasonable and unjust that
subordinate officers should be subjected to penalties for executing
a law enacted by competent authority, it was therefore recom
mended to the House to instruct the Judiciary Committee to
prepare and report to the House a bill providing against that
evil. This report was received and laid on the table, and on the
same day Judge Stockton tendered his resignation, as a judge of
the Supreme Court, to the Speaker of the House. He after
wards removed to New Orleans, and was killed in a duel there
in the prime of his life.
This deplorable end will present itself to the reader more
than once in tracing the biographies of eminent gentlemen of
the Mississippi bar, and it is to be regretted that the custom of
duelling has hitherto, especially in the South, bidden defiance
to the restraints of everj law enacted for its prevention. In
deed, the only efficacy of duelling laws seems to rest in an ap
peal to honor, by throwing difficulties in the way of the ordeal,
and attaching to it consequences to which men of honor will,
under ordinary circumstances, hesitate to subject an adversary
by sending a challenge. This is particularly the case among the
7

98 BENCH AND BAR OF MISSISSIPPI. •
officers of the United States army, who are promptly dismissed
from the service for accepting, as well as for sending, a chal
lenge ; and the laws of Mississippi attach a similar consequence,
in like instances, to the members of the bar ; but while the
army regulations can be promptly and vigorously enforced, it is
difficult, in view of public sentiment, to punish a duellist
through the courts. But even the certain aption of military
law has not been sufficient in all cases, and was unable to
prevent the fatal conflict between such men as Commodores
Decatur and Barron.
The method of prevention adopted by Gustavus Adolphus,
King of Sweden, is, perhaps, the only one which would prove
positively effectual. On hearing that two officers of his army
were abput to fight a duel, he. directed that it should be fought
iu his presence. The parties appeared on the ground, and their
sovereign also, according to his promise ; but to their astonish
ment they observed a gallows erected on the spot where they
were to fight. " Commence your battle as soon as you please,"
said the king ; " but," he added, pointing to the gallows, " I
am resolved that the victor shall be hanged by the neck, and
the vanquished by the heels." Each one, greatly dismayed at
being confronted with such terms, retired iu silence, and soon
after began a very intimate friendship, which continued through
life. But while duels often occur under the most deplorable cir
cumstances, and Hamilton ! Hamilton ! has resounded from the
Adirondacks to every corner of the continent, it cannot be denied
that the very existence of the custom exerts an elevating influ
ence upon the tone of Society, by causing gentlemen to have a
more careful regard for the feelings and honor of each other.
Who can determine the salutary influence of the duel between
Mr. Clay and Mr. Randolph upon the etiquette of Washington
-society ? And what would be the state of parliamentary ethics,
at this day, in the Congress of the United States, where party
faction, sectional antipathies, and personal prejudices, continu
ally seethe in a caldron of conflicting elements, were it not for
the menace of prompt and effectual accountability on the field of
honor ? The effect of the duello on society is not in its con-

JOSHUA CHILD. !•'••
.summation, but in the preventive virtue of its existence. It
places the weak upon a clear-cut and well-defined equality
with the strong, in seeking the redress of Avrong, and enforces
the golden rule in spite of selfislmess, insolence, and all the
frailties of human nature. And while a predominant gusto
for the vindication of honor, or, as Virgil calls it, gavd'cum
certaminis, should be discountenanced, yet, when a promptness
to resent a real wrong is associated with magnanimity, it must
be acknowledged to be a kind of coefficient of manhood — an
index to inscriptions which we admire upon the tablet of even
the heart of a savage. While the institution of chivalry, as it
existed in the middle ages, has long since been borne down by
the heavy tread of a cold asceticism, and our society bears but
little analogy to the scenes of Ivanhoe or the days of Richard
CcKur de Lion, the duello, in spite of all regrets and denuncia
tions, will continue to give tone to the upper circles of Southern
society so long as Southern honor maintains its historic standard.

JOSHUA CHILD.
Judge Child was a native of New England, where he had
been well educated in the various schools of science be
fore entering upon the study of law. He appeared in Missis
sippi about the time of the State organization, and practised
his profession in the city of Natchez. His thorough ed
ucation and the natural vigor of his mind enabled him to
achieve a rapid progress towards eminence in his profc-^sion.
He was soon accounted an able lawyer, and in 1825 was pro
moted to the supreme bench. About this time, however, he
began to yield to a propensity to drink, which his sociability and
natural ardor of temperament greatly aggravated.
There are many disgusting incidents of this character related
of Judge Child, which were said to have occurred in the various
counties of his circuit. It is related of him that on one occa
sion, in one of the border counties, while under the influence of
drink he became angry with some of the members of the bar,
and to vent his rage, at the close of the term he ordered an ad-

100 BENCH AND BAR OF MISSISSIPPI.
joumment, mounted his horse, and rode away witliout signing
the minutes of the court.
Judge Child was never married, and strongly manifested the
pecuharities usually belonging to those who grow old iu celib
acy. He was a man of courage, and engaged in a duel with
General Joor, upon -terms of bitter desperation, and in which
both parties were severely wounded.
His opinions from the bench were delivered in a lucid, terse,
and forcible manner, free from all prolixity or effort at dis
play, and resting upon the authority of the court rather than
upon an array of reported decisions.
He was fond of exhibiting his authority, at times excessively
satirical and somewhat overbearing ; hence he was not very
popular with the members of the bar. Judge Child resigned
his seat in 1831, and died not long afterwards.

GEORGE WINCHESTER.
' Judge Winchester was a native of Massachusetts, and was at
tracted, like many other young lawyers of talent and ambition,
by the flush times that followed the admission of Mississippi
into the Federal Union. He was well educated, having gradu
ated at Harvard College ; a good linguist, possessed an attractive
polish of manners, a prepossessing appearance, and a mild and
genial disposition.
His assiduity and superb natural talents soon procured for
him a high reputation as a lawyer. His polished elocution and
urbanity gained for him great success as an advocate, while the
subtle penetration and elastic vigor of his mind enabled him to
anticipate and disarm his adversaries, and fortify his side of the
question with ingenious applications and interpretations of the
very law relied upon to confound him.
Judge Winchester was seated upon the supreme bench in
1826, and held that position until 1829. He then resumed
his practice of law in the city of Natchez. He was an able and
eloquent judge, fond of elaborating subtleties of law and fact.

GEORGE WINCHESTER. 101
and of marshalling every feature of a case that entered into the
formation of his opinion.
It is said that on one occasion, after he had retired from the
supreme bench, he was engaged before that tribunal in a case
involving a large amount, and which had been pending for
many years, and after the arguments had been concluded the
court decided in his favor, but not on the grounds upon which
he had rested, whereupon he promptly moved the court for a
rehearing. He was not willing to accept the affirmance in his favor un
less it was the result of what he conceived to be the proper
views. In politics Judge Winchester belonged to the idtra
State Rights school, and presided over the Southern Rights
Convention, held at Jackson in 1849 for the purpose of adopting
measures to resist the encroachments of the anti-slavery party,
and was the author of the resolutions adopted by that body.
Judge Winchester was never married, and, like Judge Child,
possessed many of the eccentricities of protracted bachelorhood.
He had a most tenacious memory, and retained even iu old age
the results of the training of his youth. He died in February,
1851, old in years and full of honors — the meed of a well-spent
and serviceable life.
At a meeting of the bar of Adams County, convened at the
Court-house, February 5th, 1851, on the occasion of the death
of Judge Winchester, and for the purpose of paying a suitable
tribute of respect to his memory, the following proceedings
were adopted :
' ' Resolved, That the members of the bar attend the funeral
of the deceased, to be solemnized this evening.
" Resolved, That a committee, to consist of flve, be appointed
to draft and report resolutions appropriate to the occasion.
"The chairman appointed Messrs. S. S. Boyd, J. T. McMur
ran, Thomas B. Reed, H. S. Eustis, aud Ralph North said
committee, to which the chairman was added, and which re
ported the following resolutions :
" Resol/oed, That we have learned, with feelings of the deep
est emotion, the death of our friend and fellow-lafcorer, George
Winchester. That, whilst the severe labor of a lifetime, guided

102 BENCH AND BAR OF MISSISSIPPI.
by a calm, clear-sighted understanding, has built up for him a
reputation as a lawyer to which we can add nothing by the
public tribute of our respect, it gives us pleasure to bear tes
timony with one accord to his endearing virtues as a man — to the
largeness of that heart, ever guileless and benevolent, which, in
the familiar intervals of his life, was filled with good deeds and
generous impulses.
' ' That it may profit us to remember that the same intellectual
excellence which swayed the bench and ' propped the country's
cause,' also reasoned out for him the truth of revelation, and
enrolled our friend with the defenders of our faith, whose life
' allured to brighter worlds, and led the yra.y.'
" That Messrs. Eustis, McMurran, and Hewett be and they
are hereby appointed a committee to take the necessary steps
for the erection of a suitable monument over the grave of the
deceased. " Which report was unanimously adopted ; and on motion it
was then
"• Resolved, That the proceedings of this meeting be report
ed by the chairman thereof to the Circuit Court of Adams
County, at its next term, and that the chairman move the court
to cause these proceedings to be spread upon the minutes of
said court."

HARRY CAGE.
The subject of this sketch was a native of Tennessee, aud be
longed to a large and highly respectable family. His early ed
ucational advantages were limited, and he never acquired attain
ments sufficient to characterize him as a prof ound lawyer or man
of learning. He emigrated to Mississippi about the time of the
formation of the State Government, aud in 1829 was elected
to a seat upon the supreme bench, which he held until the re
organization of the courts under the Constitution of 1832. He
was then elected to Congress, in which he assumed an active part
in the exciting discussions of the period. In 1834 he resigned,
and retired to his plantation in Louisiana, where he died.

ISAAC R. NICHOLSON. im
Judge Cage owed his success more to his vivacity and con
geniality of disposition than to any professional qualifications.
He possessed social qualities of the highest order. Full of life
and anecdote, he was the central figure of every social circle,
while his ready wit and apt repartee, together with his easily
aroused sympathies and power of feeling, gave him considerable
forte in the art of persuasion.
While he seems to- have had but little relish for office, he
was yet evidently more of a politician, both by nature and by
culture, than a lawyer. He is said to have been fond of miscel
laneous and light literature, such as was congenial to his face
tious taste and furnished him with tales of humor and anecdote.
His manners were kind and unassuming, but his gentle and ami
able disposition reposed upon a spirit of indomitable courage.
As a judge he was conscientious and upright, patient and
polite in his audience, and accorded a courteous consideration to
all who approached him. He was, moreover, of an energetic
and enterprising nature, sincere and manly in his bearing, and a
general favorite with the members of the bai'.

ISAAC R. NICHOLSON.
Isaac R. Nicholson was a native of Georgia, whence he emi
grated to Alabama, and practised law in the northem part of
that State, where he achieved success and reputation. He then
removed to Mississippi, and in its rich field soon rose to emi
nence in his profession.
He was a man of limited education, and was possessed of no
remarkable natural endowment, unless it was that of an inex
haustible business capacity. For many years he represented the
county of Copiah in the Legislature, and in 1827 was chosen
Speaker of the House of Representatives. Here his official de
votion and business tact served to promote his popularity and
open the way to his judicial elevation.
In 1829 he was appointed to the supreme bench, but was
superseded by the intervention, of the Constitution of 1832,

104 BENCH AND BAR OF MISSISSIPPI.
under which the entire judiciary system of the State was re
modelled. He then resumed his practice at the bar of Natchez,
where he resided until his death, which occurred at that place.
While Judge Nicholson might not have been a profound law
yer, he was a successful practitioner ; if not peritus jure, he was
familiar with all the features of practice and the principles of
justice, and superseded by a sound judgment and studious ac
curacy the advantages of greater depth and latitude.
As a judge his decisions are terse and forcible, firmly fixed
upon the points in question, and logical to a certain intent. In
consequence of his industry, his accurate perception, and his
fidelity to his official duties, Judge Nicholson was called upon
to decide many of the cases in our early courts, and in which
many important questions were involved, some of which were
then discussed, perhaps for the first time in this country.
In the case of the State vs. Johnson (Walker, 392), he dis
cussed and adjudicated the question which had been long agitated
by the courts, both in this country and in England, as to the dis
qualification and competency of jurors. The point in contro
versy arose from the form of the question put to a juror on his
voir dire in the court below. He was asked if he had " formed
or expressed an opinion," instead of " formed and expressed."
The following decision of Judge Nicholson in this case is in
troduced as an indication of his manner of treating a question,
and on account of the rarity of its accessibility, in consequence
of the scarcity of Walker's Reports :
" The old Enghsh authorities lay down the rule that, to in
capacitate a juror for sitting upon the trial, he must have
formed and expressed his opinions against the accused, with
malice or ill-will. This rule has been much softened ; and, in
deed, such is not the doctrine of the courts of this Union. Al
though the common law is opposed to trying an individual by
men who have prejudged his case, yet, in most of the States
of the American Union, we have constitutions which guarantee
to the accused a fair and impartial trial.
' ' By the Constitution of Mississippi (Declaration of Rights,
Sec. 10), a speedy public trial by an impartial jury of the
county is given to the accused. But how are we to ascertain

ISAAC R. NICHOLSON. 105
the fact whether a juror stands indifferent between the parties ?
This must be dra^vn either from the juror on liis voir dirt, or
shown by evidence aliunde.
" I believe the first decision on this subject, in the American
courts, is to be found in the trial of Colonel Burr for high trea
son. The decision of Chief Justice MarshaU in that case has
been looked to by the State courts as the pole-star by which
they were to be guided.
"Judge Marshall says (Burr's Trial, 1 vol., 44) that ' to have
formed and dehvered an opinion, was sufficient to exclude
from the jury, but that slight impressions on the mind are not
sufficient. '
¦ • In the case of Vermilyea, ex parte '6 Cowan, 563), Mr.
.lustice Woodworth says that
" ' To have formed and expressed an opinion from a knowl
edge of the facts is gOod cause of challenge, and it cannot be
material from what source the knowledge was derived ; if the
bias proceeds from a preconceived opinion, it equally affects the
accused. '
" Chief Justice Spencer, in the case of Vanalstyne, decided
that ' if a juror had formed and expressed his opinion from a
knowledge of the facts, or from the information of those ac
quainted with the facts, it was good cause for challenge ; but if
the opinions of jurors were formed on mere rumors and report,
such opinions were not sufficient to disqualify. ' On the appli
cation for a new trial in the case of Fries, Judge Iredell put the
question on the ground that ' whenever a predetermined opin
ion is formed, from whatever motives, it creates an improper
bias, extremely difficult to get rid of :' and the same doctrine is
held by Mr. Justice Maxey, in the case of the People vs. Ma
thew (4 Wendell, 229).
" The rule then, to be drawn from these authorities, I think,
amounts to this : that if the juror has made up and expressed
au opinion, either from a knowledge of the facts or from the
information of those acquainted with the facts, or a decided
opinion from reports, he does not stand indifferent between the
parties, and should be excluded from the jury ; aud the situa
tion of the juror must be ascertained by triers appointed for

106 BENCH AND BAR OF MISSISSIPPI.
that purpose, or by the court ; and when referred to the court it
stands as a demurrer to evidence.
" In the case of Flowers, decided in this court at the Decem
ber Terra, 1829, 1 am satisfied that I went too far in laying down
the rule with respect to the examination of the juror on his voir
dire. I there stated that if the juror, on being interrogated,
answered positivel/y and affi/rmatively that he had formed and
expressed his opinion, the court should set him aside without
further inquiry. Since the decision of that case I have pre
sided on the circuit at the trial of seven capital cases, and expe
rience has fully satisfied my mind that jurors frequently answer
the question without understanding its true meaning. It is fre
quently the case that a juror who has barely heard the case
from report, and has but a slight impression on his mind, will
answer, affirma,tively, that he has formed and expressed opin
ions ; but upon further examination it will be discovered to
amount only to a hypothetical and not a decided opinion. In
fact, there are but few jurors who understand the difference
between a fixed and predetermined opinion and a hypothetical
one. Besides, much is often ascertained from the manner in
which the juror answers the questions : whether he shows sober
indifference, an agitation of feeling, or signs of ill-will. In fact,
it is almost impossible, from the nature of things, to lay down
any invariable rule on this subject- From the necessity of the
case, much must be left to the discretion of the judge, who is
'pro hae vice ' of counsel for the accused, to see that he has a
fair and impartial trial.
" In this case the juror was asked whether he had formed or
expressed, instead of formed and expressed, an opinion that
would have any influence on his mind in the determination of
the case as a juror. I have uot^been able to find a solitary case,
in the American decisions, where the form of interrogatory has
b6en practised upon, which is set forth in this bill of excep
tions. " The reason given in the books for the conjunctive form of
interrogatory is that a man who has made up his opinion, and
expressed it aloud, will be much more apt to adhere to it than
if he had only formed it and kept it concealed.

ALEXANDER M0NTG0:MERY. lO;

(( I

This reason is not satisfactory to my mind. I think if a juror
has made up a fixed opinion from a knowledge of the facts, al
though he has kept that opinion locked up in his own breast,
he is not a competent juror ; but if he has only fashioned in his
mind an opinion from report, and has not given utterance to
that opinion, it would not be sufficient to exclude him. .
" An impartial juror is one whose mind is open to receive the
impressions to be made by the testimony ; one whose mind is
poised upon the scales of indifference, and capable of weighing
the testimony adduced on trial in opposition to floating ru
mors." Yet, with all due respect to the opinion of the learned judge, I
must subjoin that it is difficult to perceive how any honest jm'or
could be hindered in forming a true opinion from the true state
of facts, by reason of a prior expression of an opinion " only
fashioned in his mind" from mere rumor and report. The
implication of this doctrine would assert that honesty must be
sacrificed to a mere specious assumption, and the justice of
conscience rendered subservient to a repugnant consistency.
It would, in short, disqualify a very large majority of men
for sitting upon an fionest jury — a conclusion which if based on
other grounds might not be far from the truth ; for an even-
handed dispensation of justice under all circumstances is per
haps the most difficult task ever imposed upon frail humanity,
and one in which none but the hand of Heaven is infalhble.

ALEXA^'DER MONTGOMERY.
The subject of this sketch was bom and reared at Natchez, in
the Mississippi Territory. He possessed a briUiant intellect,
and after having obtained the "best education that the schools of
his native town could afford, he apphed himself to the study of
law, which he prosecuted with such diligence and thoroughness
that he became one of the most learned and profound lawyers at
the bar of Mississippi. He had a peculiar aptitude for his pro
fession : a keen sense of duty, a natural energy of temperament,
and an inqtusitive tum of mind that always descended into

108 BENCH AND BAR OF MISSISSIPPI.
the very depths of investigation. He was not so much distin
guished for any one predominant quahty as for a copious blend
ing of all such as enter into the character of a justly eminent
lawyer. He devoted all his mental and physical powers to his
profession, and consequently his knowledge of law was deep,
and his success was the merited reward of his industry. His
pow^ers of perception were rapid and acute, his judgment sound
and penetrating, and his reasoning powers were blended with a
glowing imagination.
To these intellectual traits Mr. Montgomery added the beau
ties of great moral, worth. His integrity was superior to every
influence, and his devotion to duty beyond the reach of all
temptation. While his professional ethics were stern and dig
nified, his manners were softened by a complaisancy and polish
that betrayed the well-bred gentleman, and kind and amiable
man. In 1831 he was appointed to a seat upon the supreme bench
of the State, but was superseded in 1832 by the provisions of
the new Constitution, which introduced an elective judiciary.
Judge Montgomery was an able jurist as well as an eminent
advocate, and had he been retained upon the bench his career
would doubtless have been as brilliant and exemplary as his
success at the bar.
On retiring from the bench Judge Montgomery resumed his
practice of law in Natchez, in connection with his former part
ner, the distinguished Samuel S. -Boyd, and the firm was among
the most celebrated in the State. He continued his practice to
a great age, and died a few years since at the home of a rela
tive in Warren County.

CHAPTER IV.

THE BAR— EMINENT LAWYERS— 1817-1832.
ROBERT J. WALKER  WILLIAM B. GRIFFITH  WILLIAM VANNERSON 
SPENCE M. GRAYSON  ALEXANDER G. m'nUTT  WALTER LEAKE 
EDWARD C. WILKINSON  EUGENE MAGEE  BUCKNER C. HARRIS 
JOHN T. m'mURRAN  SAMUEL S. BOYD  SAMUEL P. MARSH  JOHN
HENDERSON- — RICHARD H. WEBBER.
In treating of the characters of the distinguished gentlemen of
the Mississippi bar whose eminence was based upon true merit
ungarm'shed by the gloss of official significance, the author takes
no shame to himself from the inadequacy of his ability to cope
with the noble lessons and sublimity of his theme. To depict,
in the style of aptitude and the language of felicity, those tran
scendent qualities and traits of character which wrested the
noblest achievements from the frowns of fate ; the genius that
hurled the gauntlet of triumph into the face of every vicissi
tude of fortune, and vsrenched the meed of fame from the cruel
clutches of adversity, would surely daunt the efforts of any pen
undipped in the unction of eloquence and uahaUowed by the
benison of inspiration.
But whatever may be his shortcomings, he yet cherishes the
hope that, if he cannot scale the height of his subject, he can
at least direct the eyes of admiration and the efforts of ambition
to the dazzhng gems that cluster on its brow.

ROBERT J. WALKER.
The subject of this sketch possessed par excellence one of the
brightest intellects that adorn the history of the bar of Missis
sippi, and one that would have been an ornament to any bar, in

110 BENCH AND BAR OF MISSISSIPPI.
any country, and in any age. Robert J. Walker was born in
Northumberland County, Pennsylvania, in July, 1801, emi
grated to Mississippi in 1826, and joined his brother, who had
preceded him, in the practice of law in the city of Natchez.
Mr. Walker'^ education was thorough and comprehensive. He
was well versed in most of the schools of science, and prior to
his study of law had graduated at the celebrated medical school
in Philadelphia. He was a fine linguist, thoroughly familiar
with classical history, and had acquired no little proficiency in
the polite literature of the French language.
He soon achieved a high eminence at the bar of Mississippi,
which he maintained with increasing lustre while he remained
in the State. He was assiduous in the study of his profession,
and became learned in all the branches of both the common and
civil law : a knowledge of the latter being necessitated by the
conflict of tenures which so much perplexed our early courts.
In 1828 he was appointed to report the decisions of the Su
preme Court. This task he performed with fldelity and ability,
and in 1832 presented the 1st Mississippi Reports, which em
bodied the decisions of the court from its establishment, in 1818,
to that time. In this work he never failed to assail whatever
he conceived to be an error of an important nature, and his re
ports are interspersed with many learned notes of this character.
In 1836 he was elected to succeed Mr. Poindexter iu the
United States Senate, for a full term from the 4th of March,
1835, and in 1841 was re- elected for a full term, from the 4th
of March of that year. During his career iu the Senate he was
characterized by the same fidehty, intellectual culture, and
eloquence which had rendered him so eminent at the bar, and
during that time became particularly distinguished by his argu
ments on the " Mississippi slavery question." He was a warm
and strenuous advocate of the independence of Texas ; aud
even after the fall of the Alamo and the butchery at Goliad,
and when the Mexicans were apparently waging a war of
extermination to all parts of that cotmtry, he did not for a mo
ment despond or doubt the final result ; and as early as the 22d
of April, 1S35, he called the attention of the Senate to the
struggle, aud suggested that whatever surplus funds were in the

ROBERT J. WALKER. Ill
treasun,- should be reserved for the purpose of acquiring Texas
from whatever might remain of the government de facto of that
country, and declared that the people of the Mississippi Valley
would never penuit Texas to be again subjected to the domin
ion of Mexico.
In 1S45 Mr. Walker was appointed Secretary of the L'^nited
States Treasury by President Polk, from which he retired in
1849. He was the author and the most able and efficient advo-
ate of the revenue tariff of 1S46.
In 1S57 he was appointed Governor of Kansas Territory by
President Buchanan : but, having espoused the anti-slavery
party, he resigned in 1858, in consequence of the adoption of
the Leeompton Constitution, and its approval by the adminis
tration. In 1.S61 Mr. Walker declared himseK in favor of the preser
vation of the Union, aud during the war resided in Europe as
the financial agent of the Federal Government, whither he was
sent chiefly to defeat the attempt of the Confederates to nego
tiate a foreign loan. This interception he effectuated by repre
senting the Confederate President as being a citizen of Missis
sippi, and as having been a leader in its repudiation of the
Union Bank bonds ; and as these bonds were held by European
capitahsts, they were not sLjw to be instUled with the fear that
a like result would attend any loan made to the Confederacy.
This representation, while it was without foundation in truth,
by thwarting the efforts of the Southern people to obtain money
abroad, was no less destructive to their cause than the fatal re
coil at Gettysburg. Indeed, it was the poisoned arrow from
whose wound the Confederacy never recovered, and by which it
was, in the beginning, shorn of half its strength.
Mr. Walker was a laiwyer of searching industry, and his suc
cess at the bar was due in a great measure to a careful and ac
curate preparation of his briefs. He left no leaf unturned that
would enable him to soimd his cases, aud to anticipate and
thwart his adversary, or strengthen the merits of his own side
of the question ; consequently he was never surprised or taken
at a disadvantage. He was alert, discerm'ng, and acute. His
powers of perception could not easily be evaded, and his mem-

112 BENCH AND BAR OF MISSISSIPPI.
ory possessed a clearness and tenacity, which enabled him at
all times to convoke the results of his extended culture. He
was a fascinating and edifying speaker, clear and precise in his
arguments, and strictly scholastic in his choice of language and
mode of expression. He possessed in a high degree the vox
argentea so much commended by Cicero.
He was kind and benevolent in his disposition, gentle and
affable in his manners, generous and magnanimous in his pro
fessional deportment, benign and playful in his features, chari
table and confiding in his nature, and gained the respect and
admiration of all who came within the reach of his influence.
He was of that type of character which never fails to win its
way to an exalted estimate among men. He died in the city of
Washington in November, 1869.

WILLIAM B. GRIFFITH.
William B. Griffith was a native of the State of Maryland.
He was of a wealthy family, and possessed the advantages of
early culture and a finished education. He had also studied law,
and acquired a knowledge of the elements of that science prior
to his removal to Mississippi. He located at Natchez about the
year 1818, and began his professional career at that Temple Bar
of the West, where he soon attained distinction ; and having
formed a co-partnership with John A. Quitman, the firm be
came one of the most celebrated in the State.
Mr. Griffith was gifted with intellectual faculties of a high
order, which, with his habits of apphcation and his professional
devotion, enabled him to master the law in all its branches, and
he became familiar with all its abstruse features and subtle prin
ciples. His mental qualities were adorned with an acute pene
tration and a brilliant perception, and his judgment was char
acterized by an unerring discrimination. His logic was clear,
close, and conclusive ; and his powers of argumentation were
among the most brilliant of his professional qualifications.
His high character as a lawyer was a combination of learning
and the finest social accomplishments ; he was a man of fasci-

WILLIAM B. GRIFFITH. li:;
nating and courtly manners, mild and forbearing in his inter
course with the many uncouth characters with whom the law
yers of that time were brought in contact. He was a graceful
and attractive speaker, and is said to have been the most
poUshed orator that had yet appeared in Mississippi ; and his
eloquence was of that gentle and persuasive character which ap
peals more to reason than to passion : he never indulged in
coarse invectives or vituperative assaults, but endeavored to
reach the affections as weU as the judgment of his audience,
whether a jury or popular assembly, by amiability of manner
and clearness of reason.
Such were the characteristics of a man whom both nature and
culture had marked for the fee of fame ; but in the meridian
of life his briUiant cai-eer was suddenly severed by the Nemesis
of aU human greatness. Mr. Griffith fell a victim to that scourge
which has of late years so often ravaged portions of the South,
and died with yeUow fever in the summer of 1.S29, leaving a
young and accomphshed wife, the daughter of Judge Edward
Turner, afterwards Chief Justice of the Supreme Court.
OEAnON DELIVEEED ON THE FOURTH OF JULY', 1819, BY
WULIAM B. GKIFFITH, ESQ.
Fellow-citizens : It is with mingled sentiments of pride and
of awe that 1 rise to address you. Of pride, -nlien I consider
myseK as the organ of this enlightened assembly in the expres
sion of their joy and congratulation upon the return of the an
niversary of our national independence ; of awe, when I reflect
upon the magnitude of the event and the sanctity of the occa
sion which we are assembled to commemorate. Be present, then,
spirits of our departed heroes ! descend from your exalted sphere,
to aid and inspire us this day, while we offer up, on the altar
which national gratitude has erected, the humble but sincere
effusions of republican congratulation ! We approach you, not
wath the fragrant incense of the East or the pompous glories
of the Hecatomb : we offer up what we conceive to have been
the object of your labors upon earth ; perhaps we may say,
without the imputation of impiety, an addition to the joys of
heaven — the grateful homage of a nation of freemen. To you,
8

114 BENCH AND BAR OF MISSISSIPPL
surviving brethren of the Revolution (if any such remain in this
assembly), this day must recall recollections which of themselves
will form your sweetest, best reward.
On this day, forty-three years since, our fathers framed and
pronounced the Declaration of Independence which you have
just heard read. Rising in their might, and relying upon the
justice of their cause, they ventured, young and inexperienced,
to place themselves in hostile array against the armies and fleets
of Great Britain. Encompassed with danger, surrounded by
open enemies, and friends more dangerous still, because they
were vacillating ; unprepared with means, unskilled in the arts
of war, behold this infant nation rearing the standard of war,
¦and bidding deflance to the veteran legions of the foe. Behold
the patriot soldiers of the Revolution suffering under the pangs
of hunger, or exhausted with the fatigues of the camp ; at one
tiane compelled to disperse to obtain a scanty subsistence, at aii-
'Other yielding to superior force, and reduced to the sad necessity
of turning their backs upon the foe. Who does not quake with
fear, or tremble with indignation, when he remembers the pri
vations, the distresses, and despair to which our armies were re
duced ? To what cause can we attribute that persevering cour
age, that magnanimous fortitude, which enabled them not only
to bear up against, but to rush forward and turn the current of
fortune ; to hurl back upon the enemies of freedom the weap
ons intended for their own destruction? It was the Genius of
Liberty. Rejecting the worn-out doctrines of passive obedience
and the divine rights of kings, abhorring the dictates of im
perial pride and despotism, the same spirit which impelled the
victim of fanatic zeal and bigoted priestcraft to quit the shores
of old England and plant a colony iu a new world, to brave the
dread inhabitants of the forest, and their still more formidable
enemies the savages — that spirit now animated our fathers ;
that spirit gave wisdom to their plans and energy to their
.actions. Yes, sacred Genius of Liberty ! without thee, Washington had
been but the subaltern of a king instead of the father of his
country ; without thee, Franklin had remained the humble
printer of a provincial district, instead of the representative of

WILLIAM B. GRIFFITH. 115
a free and united people. Without thee, the glorious achieve
ments which have immortalized the heroes of Breed's Hill and
Saratoga, of Lexington, Monmouth, and Trenton, had never
been heard of in history. The boundless and fertile regions
which are now inhabited by millions of freemen in the enjoy
ment of rational liberty, had still been the haunts of the howl
ing wolf or the roaming savage. But, happily for us, fellow-
citizens, the oppressions of the mother country soon reached a
point beyond which they could not be extended. They blew
into a flame the spark which might perhaps have been easily
smothered by prudence and forbearance. I will not attempt to
point out the causes, to mark the progress and display the re
sult of our revolutionary contest. The recital of these events,
in which we are all so deeply interested, would be unnecessary,
because I am persuaded they are deeply engraven on your
hearts. Let me rather call your attention for a moment to the
period which succeeded the establishment of our independence.
After having successfully asserted their claims to liberty and
an independent government, and extorted from our enemy a re
luctant recognition to that effect, a task remained of still greater
magnitude and difficulty. So long as the common danger ex
isted, the old Articles of Confederation were found sufficient to
unite our citizens in the general defence ; but no sooner was
this bond relaxed than a crisis presented itself which threatened
at once to mar the blessings so dearly purchased by the best
blood of our country. Private interests, and passions which had
long lain dormant, now reared their heads. State prejudices
and local jealousies threatened to usurp the dominion of public
spirit and disinterested patriotism. Ambitious and unprincipled
demagogues endeavored to inflame the passions of the people,
and thereby create confusion. At this moment of dismay, when
nothing but firmness and decision united to consummate wis
dom could have saved the Confederation from ruin, the sages
of the Revolution advanced to uphold the fabric which they had
erected. They had fought the battles of their country ; they
had expended their treasures and their blood in defence of her
rights : they now stepped forward to secure in the cabinet what
their arms had acquired in the field. They formed the Consti-

116 BENCH AND BAR OF MISSISSIPPI.
tution under which we are at present governed, and present
ed it for the approbation of the States. Here, fellow-citizens,
was exhibited to the world a spectacle of the utmost grandeur
and sublimity :' a nation of freemen canvassing with delib
eration, amending and finally adopting the charter of their
rights — a form of government certainly the best calculated of
any w^hich the world has yet seen, to secure every natural right
necessary to our happiness. As it was formed without violence
or bloodshed, so it went into operation without difficulty or re
sistance. If we were previously indebted to those who obtained, at the
point of the bayonet, the recognition of our independence, how
much was the obligation enhanced when they placed it upon so
firm and durable a foundation ! Other nations have been
goaded on by the oppressions of a despot to snap their chains
asunder and assert the unalienable rights of man ; other na
tions have had it in their power to frame for themselves govern
ments calculated for their happiness ; but in vain do we search
the pages of history for the example of a revolution similar to
our own. In some instances one tyrant has been put down
only to give room for another more cruel than the first. In
others a many -headed monster, under the form of an aristoc
racy, has sprung from the ashes of liberty ; while in some cases
the assertion of freedom has given rise to such abominable
cruelty, such unheard-of atrocities, that human nature revolts
at the recital. Of this latter description was the revolution in
France. Commenced under the auspices of those who admired
and envied our own, how differently, alas, was it conducted !
how differently terminated ! Like the wars which l^ave been
commenced under the mask of religion, the atrocities of those
monsters who disgraced the cause of freedom in France were
committed under the banners of liberty. When the sacred cross
of the Redeemer was carried as the ensign of the crusader, and
used as the signal for murder, rapine, and conflagration ; when
the meek religion of Jesus was employed to sanction bloodshed
and palliate crimes, its deluded followers believed themselves
working out a blessed immortality, and advancing the glory of
their spiritual as well as temporal masters. Thus Barras, CoUot,

WILLIAM B. GRIFFITH. 117
D'Herbois, and Robespierre, with the other monsters of the
Jacobin Club, erected statues to liberty and altars to the genius
of their country. But while the people were deluded with
these outward symbols, they exercised a cruelty the more de
testable because it was unnecessary, a tyranny the more gall
ing because it went under the name of liberty. The enthu
siasm of other nations who sympathized with the real patriots iu
France was gradually converted into disgust and horror, when
such was found to be the course of the revolution. It will al
ways afford matter of deep regret that such should have been
the event of a struggle capable, in itself, of the most beneficial
results, not only to France herself, but to the rest of Europe.
But to return from this digression. Immediately after the
organization of the Federal Government our prosperity com
menced. Under the auspices of him who led our armies to
battle during the war, the arts of peace were no less successfully
cultivated. Formed alike for the din of arms and the retirement
of peacef id life, equally great in the field and in the cabinet, he
offered to the world the rare and imposing spectacle of the
Chief Magistrate of four millions of freemen seated, hke a
father in the midst of his children, administering a government
of law and of liberty. Without the external insignia of roy
alty, unadorned with the gems and the purple of a monarch,
deriving no extrinsic aid from the splendid tinsel of a court, he
shone with a dignity unrivaUed because it was native ; he ex
cited a respect which was unequalled because it was the invol
untary homage of the heart, at all times due to exalted virtue.
Superior to passion and inaccessible to temptation, he was not
devoid of ambition ; but it was of that noble order which
aimed rather at the happiness of his fellow-citizens than his owu
aggrandizement. CaUed to the highest office of our country by
the unanimous suffrages of his constituents, he took the presi
dential chair with a modesty surpassed only by an ardent love
for his country ; aud when retiring to the walks of private life,
he carried with him the warm affection and enthusiastic admi
ration of every honest man and every good citizen. His fame
was founded upon virtuous actions and exalted patriotism.
Greali and good man ! the united voice of your own and of

118 BENCH AND BAR OF MISSISSIPPI.
other nations has pronounced your eulogy, and borne testimony
to the justice of the praises which we delight to bestow upon
your memory. After ages will continue to view with delight
the wreath which a grateful country has woven for your brow.
Heroes and statesmen will look to your character as their bright
exemplar, and patriots of every succeeding age wiU pronounce
with reverence and delight the name of the immortal Washing
ton. Under his administration, fellow-citizens, the resources of
our country developed themselves. Public credit, impaired
during the Revolution, was restored. Commerce and manufac
tures advanced with rapid strides, while agriculture rewarded
with abundance the labors of the cultivator. The calm which
had thus fortunately succeeded the storm of the Revolution gave
leisure for the active employment of all the arts of peace. Lit
erature and the sciences now raised their fallen crests, and ven
tured to come forth from the covert places to which they had fled
when the blast of the war-trumpet was heard. The war-worn
patriot resigned the armor which he had buckled on at the call
of his country, and exchanged the duties of the soldier for
those of the citizen. Hitherto known only as provinces of the
British Empire, the United States now took their stand as one
among the nations of the earth. From the close of the revolu
tionary contest until the commencement of our difficulties with
the two great belligerents of Europe, our situation was truly
enviable. While almost all the nations of the world were en
gaged more or less in destructive and ruinous wars, we alone
were at peace. Far as the eye could reach, or even the imagi
nation penetrate, we surveyed our extensive, our luxuriant pos
sessions. From the cold and rocky regions of the North, where
the hardy mountaineer collects his scanty harvest, to the mild
and genial districts of the South, where the earth affords to the
cultivator a rich reward for his toils, the delighted eye of the
philanthropist surveyed the joyful scene of a free, a happy, and
a contented people. Nursed under a government propitious to
liberty, and favorable to the development of our finest faculties,
every spring of the human mind was at work, and every affec
tion of the heart had room to expand. Our infant manufac-

WILLIxVM B. GRIFFITH. 11'.'
tures bade fair to rival the boasted fabrics of Great Britain and
France ; our commerce, like the fleecy clouds wliich adorn the
summer day, whitened every sea, and bore to the most distant
climes the produce of our soil and the fruits of our industry.
But alas 1 fellow-citizens, this state of prosperity was destined
too soon to be altered. Other powers could not conduct their
bloody contests without infringing the rights and injuring tlie
property of neutrals. Under pretence of searching for the prop
erty of their enemies, they assumed the right of visiting all
neutrals. From this first step, the fair exercise of which is no
doubt sanctioned by the la-fts of nations, the transition to the
impressment of American seamen and the confiscation of bona
fide American property was as easy as it was unprincipled.
The restrictive system entered upon with a view to the cure of
these evils, though productive of some important benefits, was
not attended with the expected success. Instead of effecting the
desired object of compelling the belligerents to relax their in
iquitous system of measures, it served only to paralyze more
completely our commerce and lessen our resources. The great
staples of the Southern and Western States were confined like a
dead weight at home, unproductive and useless. The mer
chants and traders of the Eastern and Middle States united with
the planters of the South in calling upon the GoveiTiment for
something more decisive. Such a state of things could not
long exist. National honor, as well as national prosperity, was at
stake, and nothing presented itself but the alternative of an hon
orable war or a ruinous and disgraceful submission to outrage
and insult. War was accordingly declared, on the 19th day of
June, 1S12.
With the more remarkable events of this contest you are too
familiar to render it necessary or even excusable in me to dwell
upon them. But I cannot forbear detaining you for a moment
upon one in which I am sure you feel particularly interested —
one in which every American must glory. At the period when
it occurred our Government had been restricted in its means and
crippled in its resources by the extremes of party spirit. Fac
tion, with her hydra head, distorted the views, misrepresented
the motives, and ridiculed the measures of the Government.

120 BENCH AND BAR OF MISSISSIPPI.
The army was discouraged, and the people desponding. Elated
by these circumstances, and calculating upon our distresses, our
enemies even went so far as to attempt a dissolution of the
Union. Buoyed up by the success of the Allies in completing
the downfall of Bonaparte, Great Britain directed all her ener
gies against this country, and determined to attack us at all
points. While her emissaries were at work in New England en
deavoring to foment the discord and blow into a flame the dis
sension of parties, an expedition was fitted out in the West In
dies which was intended to destroy the resources of the whole
Western country. You already perceive, fellow-citizens, that I
allude to the attack upon New Orleans. Next to the event
which we this day celebrate, that which I now allude to should
be dear to the recollection of our country. AU eyes, all
hearts were directed towards the gallant army under General
Jackson. Drawn up in front of the most formidable armament
which had ever landed in hostile array upon our shores, a raw
baud of undisciplined militia were about to engage in mortal
combat the regularly disciplined and veteran soldiers of Great
Britain. It was here, fellow-citizens, that our brave general- displayed
those qualities which have raised him so high in the estimation
of his countrymen. He observed with coolness the prepara
tions for the attack, and prepared with skill the necessary means
of defence. By the wisdom of his arrangements, the quickness
of his movements, and the undaunted energy of his mind, he
encouraged and fixed the few who wavered and feared, he com
pelled the ill-disposed to assume, at least, an apparent zeal for
our cause, and he raised to enthusiasm the ardor of those gal
lant men who had joined him from the neighboring States of
Kentucky, Tennessee, and Mississippi. But to you, fellow-cit
izens, why this detail ? 'To you who were his companions in
arms on the ever- memorable 8th of January, 1815 ? To you
who saw the British line one moment advancing gallantly with
fixed bayonets to the trenches, and the next prostrate in the
dust ? Like the blast of the hurricane when it passes over the
forest, mighty and resistless in its course, it has gone by ; but,
alas, how changed the scene ! The tall oak with its stately

WILLIAM B. GRIFFITH. 121
branches has kissed the earth, and the loftiest trees of the forest
lie riven and disfigured. Thus the proud army of our invaders
was reduced in a few minutes to the miserable " remnant of a
thing that was." Such, fellow-citizens, was the result of this
formidable expedition, and it is scarcely necessary to add that
this battle not only preserved from the most serious disasters
the whole country on the banks of the Mississippi, but diffused
over the close of the war a luminous and brilliant streak of
glory. Reposing, as we now do, in the bosom of our families, in the
enjoyment of peace and prosperity at home, and honor and re
spect abroad, it may be asked, why we recur to these scenes of
war and bloodshed ? Why conduct us to the camp and blood
stained field ? It is, fellow-citizens, for the purpose of keeping
alive those sentiments of patriotism which animated our citizens
in the day of battle. It is with a view to stimulate to fresh
deeds of valor the rising generation of our country, should an
invading foe again pollute our shores. It is for the satisfaction
of paying the dehghtful debt of gratitude— the gratitude which
a nation owes to her worthy sons. With the feelings which ani
mate the breast of a mother when she clasps to her arms her
protecting offspring who have rescued her from the grave — with
such feehngs as these does our country greet the recollection of
the heroes who have preserved from disgrace the nata'onal es
cutcheon. The Genius of Columbia looks down from above aud
approves the annual tribute of respect and gratitude which we
are this day paying to the patriots of the Revolution and their
brave descendants. She points to the tablet of Fame, on which
their names are inscribed ; she invokes the youth of our country
to bear their virtues in mind, and when occasion offers to imitate
their bright example. Surely, if there is any reward for patriot
ism, any stimulus to a noble ambition, it is the hope of living
forever in the hearts of our countrymen.
In the ancient times of the Athenian and Spartan republics,
it was such rewards as these which formed the heroes of Mara
thon and Thermopylae. The spot on which their fellow-citizens
had conquered and died was consecrated with tears, and each
returning annivei-sary of the day was celebrated by a solemn

122 BENCH AND BAR OF MISSISSIPPI.
festival. The young men and maidens, dressed in white and
moving in solemn procession, preceded by the priests bearing
the insignia of their reUgion, strewed their graves with flowers,
and crowned with cypress and laurel wreaths the simple column
on which their names and virtuous actions were recorded. Per
haps at such a festival as this Epaminondas first felt himself
inspired with devotion to his country ; here, perhaps, his infant
mind kindled at the recital of martial deeds, and blazed with
the ardor of patriotism against the enemies of his country.
Here the gallant Spartan imbibed those principles which have
immortalized the straits of Thermopylae. Here Demosthenes
may have made the first essay of that eloquence which united
Greece in one expiring effort for the preservation of liberty.
Like them, fellow-citizens, let us leave to the monarchs of Eu
rope to remunerate merit with garters, and encircle with stars
the breasts of their great and brave men. Be it ours to reward
our heroes with gratitude and love. Let us erect to them nion-
uinents more durable than brass, more lasting than the pyramids
of Egypt. So long as liberty shall exist and virtue be rever
enced, while patriotism shall be honored and bravery admired,
wnll we preserve in our hearts the recollection of their merit and
the remembrance of our obligations.
After having thus briefiy glanced at some of the more im
portant events of our own history, permit me, fellow-citizens,
to congratulate you on the present happy state of our own coun
try, and of the world. The great political volcanoes whose re
peated eruptions have desolated Europe during the greater part
of the last century have at last abated their fury ; a holy calm
has succeeded the storm of war, and the wretched inhabitants
begin to revive. The earth has resumed its verdure, and we
fondly anticipate a protracted season of peace and prosperity.
It affords also matter of pride and pleasure to observe the con
ciliating disposition, and friendly attitude manifested towards us
by foreign nations. Even our old enemy, Great Britain, seems
to be at last convinced that it is sound policy to remain at peace
with 'US. Whoever, indeed, considers the immense amount of
her manufactures annually consuiced in this country, and ob
serves how heavily the balance of trade is against us in our com-

WILLIAM B. GRIFFITH. 123
mercial concerns with her, will wonder what infatuation could
ever have blinded her politicians upon this subject. It became
evident, during our last contest with her, that every year added
to the excellence and increased the quantity of our domestic
manufactures. Two years' longer duration of the war would
have placed them upon so firm a footing as to have defied coin-
petition. When we reflect what a deadly blow this circum
stance must have inflicted on the manufacturing interest of
Great Britain, we cannot but condemn the rash and short-sighted
policy which could thus jeopardize the principal pillar of her
greatness. We turn with pleasure from the policy and conduct pursued
by European powers to the equitable and magnanimous meas
ures of our Government in her late transactions with Spain.
After a protracted negotiation, spun out by all the arts of di
plomacy and chicane which could be summoned in aid of the
" adored Ferdinand" by his worthy representative, Don Onis,
our affairs seemed at last to be drawing to a crisis. The trans
fer of the Floridas, or the liquidation of the demands of our
merchants for the unjust depredations committed on our com
merce, appeared to be the only methods of preventing war.
At this interesting moment, in the prosecution of the Seminole
War our troops occupied Pensacola, the key of the Floridas, and
we may say, indeed, of the Gulf of Mexico. By retaining posses
sion of this important post, our Government would have secured
the most obvious advantages. In case of a rupture with Spain
we obtained the " vantage ground," from whence every blow
would fall with double force. The measure, though not strictly
just, would have been easily excused by the example of almost
every civilized nation. Russia, Austria, and Prussia could not
exclaim against it after the partition of Poland ; France could
not object, when she remembered the arrondisnement of her
own empire ; England could not upbraid us while the battle of
Copenhagen was staring her in the face. The world would have
looked on and palliated if not praised the measure on the score
of political expediency. But mark the contrast : we had pene
trated into the Spanish dominions solely with a view to root
out our savage enemies ; this object once accomplished, our Gov-

124 BENCH AND BAR OF MISSISSIPPI.
ernment declared their readiness to deliver up the post to any
force competent to maintain the respect due to the neutrality
of the Spanish Government. The subsequent transfer of the
Floridas has precluded the necessity of doing so ; leaving, how
ever, no doubt, from the declarations of our Government, that
our faith and honor would, in any event, have been most scru
pulously redeemed.
We appeal confidently to the history of nations, and chal
lenge the production of an instance of conduct more truly mag
nanimous than that of the President in this transaction. It has
already met with the unqualified approbation of the most enlight
ened citizens in the community, and called forth from foreign
nations an expression of praise, the more gratifying because we
may suppose it to have been reluctantly given. While other
powers are endeavoring to extend their domains by the exertion
of authority and physical force, regardless of the rectitude or
depravity of the measure, it must be to us a subject of pride to
observe the magnanimity of our own Government under similar
circumstances. Rejecting the low arts of diplomacy, and the
more dangerous and formidable application of unjust warfare,
it seems to demonstrate to the world that in the intercourse of
nations as well as of individuals, " Honesty is the best policy."
Such has hitherto been, and such we trust will ever be, the,
characteristic feature in the administration of the United
States. The virtue and the morality of a people depend much
on the example of the Government, and the corruption of the
latter is almost always the sure forerunner of the former's
degradation. From the contemplation of our own happy condition at this
time you will tum, no doubt with pleasure, to sympathize with
our fellow-republicans in the South who are laboring to throw
off the trammels of a despotic and imbecile • monarch. The
time is fast approaching when the fertile and extensive regions
of South America will be inhabited by a race of people who
are destined to enjoy the blessings of liberty and independence.
The republican banners now float in triumph over the liberated
provinces of Chili and Peru, while the victorious San Martin is
driving the remnant of the royal armies from their last fortresses.

WILLIAM B. GRIFFITH. 125
Already has the Genius of Liberty risen in its splendor upon this
luxuriant and fertile portion of the globe. Already have the
clouds been dispersed which superstition and the policy of a
weak monarch had accumulated round the minds of the people.
Religion, before enthraUed in the mystic mazes of priestcraft,
begins to come forth in her lovely and native colors — not that
religion which sits in terror upon the dark and gloomy throne
of the Inquisition, presiding in blood over the groaning and tor
tured victim of the rack ; not that religion which Ughts the
sacrilegious fires of an auto dafe, and wafts to the throne of
the Eternal as an acceptable sacrifice the parting spirit of the
wretched heretic, whose heinous sin consists in a conscientious
difference of opinion ; no, it is the mild religion of Jesus, divine
in its origin as it is glorious in its progress, gathering under its
branches the scattered nations of the earth, not by the edge of
the sword, but by the mild efforts of persuasion and godlike
charity. And can we, fellow-citizens, while this glorious revolution is
progressing, look coldly on and remain idle spectators of the
scene i Can the descendants of the heroes of ' 76 — the immor
tal spirits who threw off the shackles of Great Britain, and
made a successful appeal to the God of Armies ; who caUed
aloud upon the nations of the earth to acknowledge and secure
their independence — can they be deaf to the appeals of milhous
of fellow- Americans who are striving in the same noble career '.
No ! Let us rather offer to the world the glorious spectacle of a
free and enlightened republic rearing her star-spangled banner
to extend the influence of freedom, to spread the blessings of
liberty and independence throughout the fairest portion of the
globe, to dispel the mists which superstition and ignorance have
left over the face of nature, and like the glorious orlj of day to
scatter light and genial heat through the dark and gloomy mazes
of Spanish policy. How glorious in after ages, when the plains
of the South shall teem with the children of a government mod
elled upon our own, to be hailed as the parent republic, to
whom, under Providence, they wiU be indebted for their dear
est privileges I The imagination cannot conceive a situation
more desirable, an undertaking more worthy of a free and en-

126 BENCH AND BAR OF MISSISSIPPI.
lightened nation. You wiU pardon me, fellow-citizens, if upon
a theme like this I should appear to have followed the sugges
tions of the heart rather than the maxims of a cold policy.
Some scope must, however, be allowed for generous and disin
terested actions, as well in the intercourse of nations as between
man and man. But upon this subject we have every reason to
rely upon the justice and generosity of our present Chief Magis
trate, and we doubt not that erelong the independence of one
or more of the patriot powers will be recognized.
But I fear I have exhausted your patience, and I will de
tain you but a moment longer. It is with a view to add my
sincere and ardent wish that the return of this day, through ages
yet to come, may find our country in the enjoyment of the
blessings of liberty and independence ; her shores unpolluted
with the footsteps of an invading foe ; her inhabitants uncor-
rupted by luxury, undivided by faction ; her dominions the
habitations of plenty and the residence of peace. While the
nations of Europe are contending for an extension of their
boundaries, aud bathing their plains in blood to satiate the rapa
city and gratify the ambition of their monarchs, grant, O God !
that our country may ever be the resting-place for the weary
dove of the Angel of Peace ! May the United States be the po
litical Mount of Ararat, where the tempest-beaten ark of liberty
shall touch and find a resting-place— an asylum for the wretched
victim of tyranny, a safe resort for the martyrs of liberty
throughout the globe. To make it such, fellow-citizens, depends
much upon ourselves. While we preserve pure and uncontami-
nated the principles which warmed the breasts of the heroes of
'76, while we admire their virtues and imitate their example,
the return of this day will ever find us, as we are now, a free
and a happy people.

^)

WILIIAM VANNERSON.
The subject of this sketch was a native of Virginia ; was born
and reared in the county of Amherst, but resided some time
in Lynchburg, where he married Mrs. Allen, a niece of Hon.
WiUiam H. Crawford, of Georgia. He removed to Mississippi

WILLIAM VANNERSON. 127
about the year 1825, and settled as a lawyer in jSIatchez, where
he soon acquired great personal and professional popularity, and
obtained a large local and circuit practice. He was several times
a representative of his county in the Legislature, aud in 1S37
was Speaker of the House. He was also for several years on
the circuit bench, and characterized his judicial career by a
strictly conscientious adherence to law and justice. He after
wards located at Monticello, in Lawrence County, where he re
sided and practised to an extreme old age.
Mr. Vannerson was by no means a man of profound learning,
either in law or any branch of erudition ; his early education
was deficient, and he never acquired the habits of close and as
siduous application. He was fond of society, and enjoyed its
animated pleasantries too keenly to relish the anchoritic seclusion
of profound legal study. Yet he was one of the most success
ful criminal lawyers at the Mississippi bar, and his practice on
that side of the docket was large and lucrative. To this branch
of the law his professional reading seems to have been chiefly
directed, as it was more congenial to his taste and pecuhar tal
ents, and gave scope and occasion for the exercise of his emo
tional energy and the sympathetic elements of his nature.
He was remarkably expert in all the features of criminal prac
tice, in the management of his cases, and in the examination of
witnesses ; and was astute in the methods of obtaining contin
uances, turns, and concessions favorable to his clients. But his
greatest strength lay iu his art of persuasion, and his remarkable
efficiency before the jury. His appeals to the bar of humanity
were pathetic and winning. He possessed a depth of Convic
tion and a capacity to feel, which spread their contagion to the
minds and feelings of his hearers, and often caused tears of sym
pathy to trickle down the cheeks of the most hard-visaged juror:
His sensibilities acted in concert with his mind ; and while the
one penetrated to the depths of reason, the other stirred the
soul of compassion.
As an orator Mr. Vannerson was fluent, logical, and, at times,
eloquent. He had a fine command of language, an earnestness
of manner, and a felicity of expression, which, united with a
glowing imagination, a lively fancy, and a fine taste for imagery.

128 BENCH AND BAR OF MISSISSIPPI.
commended his arguments to close attention and favorable con
sideration. His self-control and placid temperament enabled
him at all times to command the full exercise of his powers,
and his humorous tact clothed every incident in the colors of
advantage. He was not, however, altogether free from a vein of harmless
egotism. Like Mr. Sergeant Cockle, who, iu consequence of his
great powers of persuasion and influence over the mind of
juries, proudly received the appellation at the English bar of
" the Almighty of the North," Mr. Vannerson wore with distin
guished approbation and complacency the soubriquet of ' ' the
Napoleon of the bar." But the origin of these sounding epi
thets was' somewhat different : that of Sergeant Cockle was
fastened upon him by the following circumstance : A person
who was a party to an action pending in one of the assize courts
of the northern circuit of England, was in consultation with his
counsel, and, notwdthstandiug their encouraging assurances and
favorable views of his case, he listened with dolorous visage, and
finally exclaimed, " 1 am much obliged to you, gentlemen ; I
am much obliged to you ; but it won't do — it can't do — the
Almighty is against me." " Are you mad, man !" exclaimed
one of his counsel ; " what has the Almighty to do with your
cause ?" " 1 don't mean Almighty God, sir," rephed the client,
" I mean Sergeant Cockle — he's o' t'other side." But the au
thority by which Mr. Vannerson held his title must be inter
preted by the pride which he reposed in the claim.
It is said that on one occasion he entered the court-room
where a case was awaiting his participation, and handed the op
posite counsel a note stating that the " Napoleon of the bar"
had arrived, but regretted to find that he was to meet a Wel
lington. To which the gentleman replied that there was no
danger that a Blucher would come upon the field with his fierce
Prussians and turn the scale of the conflict.
Mr. Vannerson possessed great physical vigor and animation
of spirits. Full of life and vivacity, it was with difficulty that
he could preserve at all times, while on the bench, the dignity
of a judge, and often manifested a pending conflict between the
gravity of his position and a penchant to thrust good-natured

WILLIAM VANNERSON. 129
ridicule at some luckless pleader or verdant witness. He was
the soul of wit, and perhaps the most confirmed humorist that
ever appeared at the Mississippi bar. But his ridicule and sar
casm, though pungent and scathing in the highest degree, were,
nevertheless, always cast in the mould of good-nature. His
fondness for jest was ever on the alert, and he never lost a
suitable opportunity for its exercise. The foUowing letter gives
a spontaneous indication of his humor and amiability ; and by
which it wrill be seen that the distinguished gentleman to whom
it is addressed, and who kindly presented it to the writer, once
contemplated an undertaking similar to that upon which the lat
ter is now engaged. "  , 2d AprU, 1857.
" Hon. j. F. H. Claiboene.
" My deae Sir : Your welcome favor of date 6th February
last came to hand on the 10th of same month, and strange it is
indeed, and contrary to my usual habits, that I have suffered it to
remain so long without giving back an acknowledgment of its
reception. This is partly owing to the fact that I have been
much from home this spring, as our circuits commence earlier
than formerly, under the late arrangements ; and partly because
your proposition in some degree staggered my resolution, and
put to task in some measure my notions of prudence.
" I know, my dear sir, that you can do full justice in any
biographical sketch you may undertake, or fully illustrate and
beautify any incident of which you may be furnished the proper
data ; but I have doubted the propriety of giving to the public
much of the incidents of my humble career, for the reason that
there are so many persons still living who have felt my steel.
The truth is, my victims don't die off fast enough for the growth
of my fame in a particular line ; I am therefore at a loss to
know how I may gratify your wish in regard to the matter. I
can scarcely call to mind a single man whom I have wounded in
some sortie or conflict of words, who is not still living : in
stance our old friend Gains — he has suffered dreadfully in many
a Vannersonian campaign, and always bringing his disasters
upon himself. Judge Stone has suffered great havoc — all of
the Natchez bar, present and past. John B. Nevit, the Prince
of Democracy ; many of the merchants still living at Natchez ;
Lamkin, of HolmesviUe, can teU you of some of my mercilcfs
thumps on poor Stone. I have sometimes had the crowd of the
court-room jumping at Stone's expense.
" Beppo calls me the Nestor of the bar; if I am not mis
taken, perhaps it is the Clarion. My cognomen about here is

130 BENCH AND BAR OF MISSISSIPPI.
' the Napoleon of the bar.' I like that better, if one can hke any
misnomer. " About two years ago, Livingston, of New York, wrote to
me for a full sketch of my biography, for his intended work on
living lawyers of eminence. Judge Harris communicated to
me, somewhat inter nos, that Cassidy, of Meadville, was at that
time very anxious to become the biographer for the occasion ;
but it was not undertaken by him. I did not yield to the sug
gestion, partly because I thought Livingston's book would
prove to be a failure as to popularity, as it has turned out ; and
partly because his charge for inserting the sketches was too
highly extravagant for my purse. . The cause of the failure of
the work was that so many of the small minnows of the deep
law got into it by paying ; that if a whale chanced to get in
among them he showed to a disadvantage ; instead of magnify
ing the minnows, so that they could appear of respectable dimen
sions in such company, the work had the effect of reducing the
whale to their own size. So, my dear sir, if my biography is
lever written, I trust that I shall not be placed alongside of
such company as Mr. Livingston proposed to pick out for me.
' ' There is a peculiarity in relation to myself that I pray you
take the stating of as true — to wit : the almost total absencje of
any recollection of the things I may say or have said ; hence it
is apparent that none of my hits are ever given in anger, other
wise I should remember them. There are exceptions to this
characteristic trait, but they are few. I am often reminded of
having thrown a demolishing missile, and then remember it ; but
to give in detail anything of what I have said is almost impossi
ble. I remember well the jolly time in the city, which Beppo
called from the grave of long years' slumber ; and so I can recall
anything I may have said when reminded of it.
" But there is yet hope for you : we have mutual acquaint
ances, any or all of whom can give you more of the incidents
in my career than myself — Colonel O. J. E. Stuart, formerly
of Meadville, now of HolmesviUe; Hiram Cassidy, Esq., of
Meadville ; Hon. W. P. Harris, of Jackson ; E. G. Peyton,
Esq. , Gallatin ; E. Safford, Esq. , of Liberty, Amite County.
These are all literary men capable of appreciating anything that
is rich or spicy, t don't think Peyton will do much for the
subject, however ; he has often been a victim himself, though
he always enjoys a tilt I make at others. Saft'ord and Stuart
you will find interesting correspondents. Judge Posey, of
"Woodville, could no doubt help you out some if he would.
Hurst also, of Liberty ; but he hates the toil of writing so much
that he would most probably decline. Sam A. Mathews, of
HolmesviUe, is a sheer good fellow, loves wit and possesses it ;
he could give you a good page of me. I made a speech in
HolmesviUe last month (March), in defending a lady for cow-

WILLIAM VANNERSON. 131
hiding a merchant in his own store for insulting language ; Sam
Mathews said that speech and some of the incidents he was de
termined to publish. They said that when I was about to close
my speech, some of the crowd in the court-room cried out,
' Go on, go on ! ' a thing you know to be very unusual in a
court-room. I have not seen any publication of the speech yet.
" My dear Claiborne, this is a strange place I am in ; the
people here are all sedate, sorrowful, and gloomy ; they cannot
appreciate anything. The crack of witticism in this town is
never noticed ; it is like speaking in an unknown tongue ; it
falls like coin dropped into the sea, and is never heard of any
more. Prentiss himself would fail here in his best humor ; the
people don't know it ; they can't tuJce, as the saying is. Jer
sey Bumes would fail too. I hardly ever get a chance here to
practice any at my cheerful sport. I hate myself sometimes
when I find I am getting to be so much of a matter-of-fact
man. In this town ' genius sickens, and fancy dies ; ' but I
cannot leave it ; am comfortably situated with a most happy lit
tle home, a bountiful supply of everything, and a most lovely
residence. " I almost, nevertheless, envy your ovra sweetly secluded
home, away out, as it is, from the noise of the heartless world,
where everything is enjoyed that can make life glorious, and
where nothing but the ' echo ' of others' ills cau reach you.
May it always be so. God bless you ; being so happy as you
are, you ought to think of prolonging that happiness in another
life, where no echo of distress cau ever come.
" Truly yours, Van^'eeso^.

15

But while Mr. Vannerson claimed to be in oratory " the
Napoleon of the bar," he was certainly in his latter days its
Nestor in respect to age. It is said that at the time of his
death, in 1874, he claimed to be more than a hundred years old ;
and at this remarkable age, the old hero went down upon that
Waterloo field whose fiat no Napoleon could resist.
He left no family, but left a name full worthy of a place
where the whale cannot be reduced in magnifying minnows.

132 BENCH AND BAR OF MISSISSIPPI.
SPENCE M. GRAYSON.
Spence Monroe Grayson was born in Prince WiUiam County,
Virginia, in the year 1803. His early educational advantages
were but ordinary, and on the death of his father the burden
of his family devolved upon Spence, who was his oldest son.
He continued to labor for its support until assisted by bis
uncle, Beverly R. Grayson, a planter residing near Natchez,
Mississippi, who took the young man under his care and placed
him at school at Jefferson CoUege, iu the village of Washing
ton, near Natchez ; and as soon as he was sufficiently advanced
directed him to the study of law in the office of Thomas B.
Reed, then a lawyer of large practice in Natchez.
In 1825 or 1826 he received his license, and entered upon the
practice of his profession, in which he rose rapidly. In 1830
he married Miss Sarah R. Chew, only daughter of WUham L.
Chew, a wealthy planter of the vicinity, and in 1835 removed
to Yazoo County, where he purchased a large plantation near
Benton, then the county-seat, and in 1838 represented Yazoo
County in the State Senate.
Mr. Grayson attained great distinction in his profession, and
stood in the front rank of the Natchez bar, at a time when it
ghttered with the coruscations of the highest order of learning
and genius. He was a lawyer of fine judgment and skill, de
voted to his profession, and assiduous in his application. He
was consequently a successful lawyer, and engaged a large and
lucrative practice. He was by no means gifted with the powers
of oratory ; but he possessed that which, iu a lawyer, is far
better : he possessed depth of legal knowledge, strong logical
powers, and was forcible, lucid, and convincing in argument.
He was exceedingly kind and courteous in his manners, and
few men cherished more than he the elegance and charm of so
cial life. But while he was popular in society, naturally quick
of perception, and penetrating in judgment, his professional
eminence was due mainly to his perseverance and unwearied
application to the details of his profession. He died in Yazoo
in the summer of 1839.

ALEXANDER G. McNUTT. 133
ALEXANDER G. MoNUTT.
Alexander G. McNutt was born and reared in the State of
Virginia. His early educational advantages were,in consequence
of the poverty of his parents, very hmited, and he was at an
early age consigned to his own resources ; but buoyed by an am
bition to achieve an honorable place among men, and seeking a
more propitious field for the strife, he emigrated, in 1822, to
Mississippi and settled in Vicksburg, where he began the prac
tice of law, and soon attained distinction at the bar. Poor,
friendless, and destitute of aU resources save those with which
nature had endowed him — a sound head, an honest heart, and
high resolves — ^he came to this hospitable State, and by his in
dustry, sterhng honesty, and the vigorous exertions of a strong
and practical mind, rose, first to a high rank in his profes
sion, and then to the highest office in the gift of the people of
his adopted State. He was for several years a member of the
Legislature ; in 1837 he was Speaker of the Senate, and in
1838 was chosen Governor of Mississippi, to which office he
was re-elected.
While in the Legislature, Mr. McNutt distinguished himself
by his powerful aud successful exertions to secure to the new
counties formed out of the Chickasaw and Choctaw cessions
the exercise of the right of representation, which, on account of
the motley and incongruous elements of their constituencies,
was for some time vehemently opposed by the older and more
stably settled counties of the State. This action greatly en
deared him to the people of the new counties, and in 'his can
vass for Governor they supported him with unanimity aud
zeal ; but by this course he created enemies in other parts of
the State, who assailed him with much virulence, among whom
was the distinguished Sergeant S. Prentiss.
But it has been truly said that there are times when even the
virtues of a man provoke hostility : as Tacitus has expressed it,
' ' Nee 'minus pericuhim ex magna favia quam ex mala ; ' ' and ,
though bitterly assailed, he did not swerve in the advocacy of
his principles to conciliate his enemies or to soften opposition ;
but with a conscious rectitude, based upon principle, not policy,

134 BENCH AND BAR OF MISSISSIPPI.
he boldly proclaimed his views and fearlessly practised his pre
cepts. Governor McNutt was uncompromising in his opposition to
all monopolies, and fiercely antagonized the loose system of
banking at that time tolerated by the laws of Mississippi ; and
he predicted, as with the tongue of prophecy, the bankruptcy
and ruin that would inevitably follow the pledging of the credit
of the State in maintenance of such institutions. In his first
message to the Legislature in 1838 he said :
" Unless corporations are so modified as to subserve the pub
lic good, they are contrary to the genius of republican govern
ment ; monopolies never can be tolerated by a free people."
And he advised the Legislature to tax the stock of all banks
and other corporations in the State, those excepted whicli were
compelled to construct railroads. In his message of January,
1840, Governor McNutt pointed out with great force the
abuses of the whole banking system of the State, and recom
mended the repeal of all bank charters. In this connection he
said :
" The exercise of the repealing power is not in its nature
judicial. The same power that grants charters is competent
to repeal them. Public policy and convenience authorize their
creation, and if experience proves them to be detrimental we are
required to recall the privileges granted. ' '
This was another ground for the most virulent assaults on
the part of those who maintained the interest of the banks and
advocated optional issues and unlimited circulation.
Governor McNutt was a Democrat of the Jeffersonian school :
open, firm, and honest in his convictions, he boldly flung the
banner of his principles to the pubUc view. Indeed, it may be
said that his election as Governor in 1838 was the first but last
ing triumph in Mississippi of those pure principles of democ
racy, which have become so deeply imbedded in the political and
civil fabric of the State. He was emphatically a man of the
people. He knew what was conducive to their prosperity. The
fortunes of the State were grafted in the depths of his heart,
and no influence could induce him to swerve from the path of
true patriotism. Plain and xinassuming, he was great within

WALTER LEAKE. 135
himself, " smiled superior to mere external show," and bore his
talents and honors with modesty.
As a lawyer he was sagacious and true. While he never con
tracted those habits requisite for the acquirement of profundity
in that fathomless science, he was thoroughly familiar with the
great principles of law, and was always master of that which was
applicable to his cases. This his sound judgment and intellect
ual energy enabled him at aU times to convoke and apply with
unerring precision and discrimination, and consequently he
was always equal to any emergency that might arise in the
management of a cause, which he often gained in the face of
apparently insurmountable difficulties, and in defiance of all
forensic ostentation. His oratory was plain, logical, and enter
taining, and as a speaker he was a great favorite with the
people. He acquired a large fortune by his practice, and by his
sterling qualities and great services achieved a name that will
forever shine in the annals of Mississippi. He died in the year
1S4S.

WALTER LEAKE.
Walter Leake was, 1 beheve, a native of Virginia ; but I have
not been able to ascertain anything as to his origin or early ad
vantages. He made his advent into the Mississippi Territory at
an early period, and in 1817 was chosen one of the first Sena-
tore in Congress from the new State. This position he held
with distinguished abihty and fidelity until the year lS2i).
At the expiration of his term in the United States Senate, he
was appointed a judge of the Circuit Court, in which position
his career was marked by a thorough exposition of the law and
a strict adherence to the principles of justice.
He presided in the Circuit Court until 1^22, when he was
elected to succeed Mr. Poindexter as Governor of Mississippi.
While Governor his messages were replete with sentiments of
pure patriotism and with sound advice. He was a strenuous
advocate of every measure that tended to elevate the masses of
the people, and to nourish the spirit of independence and State
pride.

136 BENCH AND BAR OF MISSISSIPPL
His knowledge of law, together with his keen and discerning
judgment, enabled him to detect and suggest a remedy for many
abuses in our system of judicature. In his message to the Leg
islature in 1825, he deprecated the practice of permitting the
presence of young and unskilled district-attorneys in the grand
jury rooms, where from ignorance or design they might, and
no doubt often did, mislead the juries as to the law. He
thought that the grand jurors should be chosen from the most
intelligent and upright citizens, and should receive their instruc
tions and advice directly from the judges, without being in any
wise subjected to the influence of the district-attorneys. '
At the expiration of his gubernatorial term, in 1826, Gov
ernor Leake resumed the practice of his profession. He was
an erudite lawyer, and a man of stanch integrity ; and if a
sound judgment and a deep sense of patriotism characterized his
public career, his professional was no less distinguished for the
honor, industry, and ability, by which it was illuminated ; while
his private character was adorned with graces and virtues which
rendered him a favorite of society, and a true type of the
Southern gentleman. Governor Leake was a warm advocate of
the cause of education. In one of his messages to the Legisla
ture he said : " Wliile we contemplate the condition of the differ
ent nations of the earth, it is a source of the highest gratifica
tion, and ought to excite our deepest gratitude to the Author of
our being, that our lots have been cast in a land of freedom,
wliere civil and reUgious liberty are fully enjoyed, and the
rights of the people rest on a basis which can alone be shaken
by their own agency. The people, being possessed of the
physical power of the State, and all authority exercised by their
public functionaries emanating from them, wiU maintain and
protect their rights, so long as they possess that portion of intel
ligence which will enable them to know aud understand those
rights. " How important, then, is it that every avenue of informa
tion should be kept open to them ; that a general diffusion of
knowledge should be encouraged by promoting and aiding the
means of education throughout our State.
"Without knowledge, republican virtue must dwindle to a

EUGENE MAGEE. 137
shadow, and the people, in ignorance of their rights and privi
leges, will easily be made instruments by artful and designing
men for the destruction of their liberties."

EUGENE MAGEE.
The subject of this sketch was born in Ireland, and had there
received an excellent education in the best schools of the Jesuits.
preparatory, it is said, for holy orders in the Catholic Church.
It is not known at what time Mr. Magee came to this coun
try. In 1830 he was a law partner of Judge George Coalter,
in Vicksburg, where he enjoyed a fine practice, and in 1835
represented the counties of Warren and Washington in the State
Senate. Mr. Magee was a man of powerful native inteUect as well as
of extensive literary acquirements ; was weU read in his pro
fession, and possessed in a high degree that vivacity of inteUect
and store of humor so characteristic of an educated man of his
nativity and race. His vehemence in debate, his aggressive
zeal, caustic but good-humored wit, combined with no ordinary
degree of eloquence, soon gained for him great popularity and
success at the bar. He possessed a vigor and winning manner
that threw a halo of interest around his subject, and readily en-
hsted sympathy in his cause. This done, it was not difficult
for him to gain the favor of prejudice, if not the conviction of
judgment. He had, no doubt, studied thoroughly the intricate
system of common-law pleading, and was remarkably acute and
accurate in the preparation of his cases, and in the discussion
of aU questions arising from the pleadings. He was a man of a
kind and generous heart, and his varied accomplishments ren
dered him a favorite in society. He lived but a few years after
his appearance at the bar of Mississippi, and died of a pul
monary affection which had for some time rendered his health
delicate. Mr. Magee was in many respects a man of note, and
it is to be regretted that so little is known of his history.

138 BENCH AND BAR OF MISSISSIPPL
EDWARD C. WILKINSON.
The subject of this sketch was a native of Virginia, and emi
grated to Mississippi in the year 1830. Judge Wilkinson de
scended from a good family, and was thoroughly educated be
fore he entered the arena of the forum. Arriving first at
Natchez, then the Athens of Mississippi intelligence, and long
the seat of her legal renown, he found there no opening suitable
to his aspirations ; hence, after also inspecting the prospects for
a young lawyer in the city of Vicksburg, he visited Yazoo City,
where he finaUy located and began the practice of his profession,
in which he rapidly rose to distinction and eminence ; indeed,
so brilliant was his career and so highly esteemed were his abil
ities and virtues, that in 1833, but three years after his advent
to Yazoo, he was chosen a judge of the Circuit Court of that
district. The career of Judge Wilkinson upon the bench was charac
terized by a high degree of ability and an untarnished integrity
and uprightness. He was the soul of honor aud refined senti
ment, to which was added the sanctifying influence of piety.
Yet he was a man of a naturally impetuous and fiery tempera
ment, and predisposed to the influence of present impulse. It
was owing much to a momentary uucontroUable impulsion of this
quality that he was precipitated into an unfortunate affray at a
hotel in Louisville, in which it became necessary, in defending
himself and brother, to slay one of his antagonists, and for which
he was tried for murder before a Kentucky jury.
The affair occurred under the most trying and peculiar cir
cumstances. Judge Wilkinson was in Louisville for the pur
pose of marrying a beautiful and accomplished young lady in
that city. The marriage feast was prepared, and all things in
readiness for the happy consummation, which was to have oc
curred on the next evening, when the demon of fate rolled his
stone in the pathway of golden bliss.
On the night prior to that fixed for the wedding. Judge Wil
kinson accompanied his brother to the establishment of a tailor,
from whom the latter had ordered a suit of clothes ; and the fit
of the garments being bad, sharp words and finally blows were

BUCKNER C. HARRIS. 139
passed between the parties. The tailor, collecting his friends,
foUowed them to their hotel, and a violent assault was made on
Judge Wilkinson and his two comjianions as they descended
from their rooms to the supper-table. The result was the death
of two of the assailants.
It was on the occasion of this trial that Sergeant S. Prentiss
made one of his most powerful speeches in the defence. The
particulars of this trial will be found in the sketch of Mr.
Prentiss, to which the reader is referred. Judge Wilkinson and
his friends were honorably acquitted, upon the ground of self-
defence, which was their only plea.

BUCKNER C. HARRIS.
Buckner C. Harris was a native of the State of Georgia, and
belonged to a family of high social standing and intellectual
repute. After receiving a thorough education and the usual
training for the profession of law, he removed to the State of
Mississippi, about the year 1830, and settled jn the county of
Copiah. Here he soon acquired distinction in his profession, and
in 1833 was chosen to represent the counties of Copiah and
fleffierson in the State Senate, in which by his energy and ability
he attained a position of eminence and influence. He was an
active participant in aU proceedings of an important or general
nature transacted in the Senate during his connection with that
body, and it was there that his character and abihties were first
fully displayed to the view of the public ; and from that time
so rapid was his progress in the path of professional eminence
that in 1837 he was elected judge of the Circuit Court.
The career of Judge Harris, during the short time that he re
mained upon the bench, was characterized by a display of the
most eminent qualifications, and an exhibition of all those noble
traits of character Which constitute the mantle of juridical re-
nowTi. . .
He was learned in all the branches of the law, familiar with
the settled principles of right, and administered justice with a
stern and inflexible hand, in which he was prompted not only

140 BENCH AND BAR OF MISSISSIPPI.
by a penetrating perception aud sound judgment, but also by a
sensitive conscience and a controlling love of equity. He pos
sessed in an eminent degree the respect and confidence of both
the bar and the people, henCe his rulings and decisions were
generally received with confiding satisfaction.
Judge Harris was unquestionably a man of unswerving honor
and refined sensibihties. His kindness and amiability were
equally conspicuous with his integrity on the bench and his
sense of duty at the bar, and there is no telling what might
have been the measure of his professional achievements had he
remained in the field where his character had already assigned an
unbounded scope to his fame and usefulness. At the expiration
of his term of office as circuit judge, in 1841, Judge Harris re
tired from the bench and resumed his practice at the bar, and
soon after the annexation of Texas to the United States he re
moved to that State, where he resided until the time of his
death.

JOHN T. McMURRAN.
The subject of this sketch was a native of Pennsylvania.
After having received a good education he was sent to Chilli-
cothe, Ohio, where he read law in the office of his uncle. Judge
Thompson, who then represented that district in Congress.
Here he was thoroughly trained for the profession of law, and
having obtained license to practise he came to Natchez, Missis
sippi, about the year 1828, bearing a letter of introduction from
his uncle to General John A. Quitman, who had resided a short
while at Delaware, Ohio, prior to his advent to Mississippi, but
was now a member of the distinguished firm of Griffith &
Quitman, in Natchez, the most successful firm at that time
in the State. In consequence of his letter of introduction, Mr.
McMurran was engaged in the office of these gentlemen as a
clerk, in which position the extensive business of the firm
afforded him an ample opportunity for perfecting his knowledge
of law, and for familiarizing himself with all the details of prac
tice. Of this advantage he availed himself to such a degree
that, upon the death of Mr. Griffith from yellow fever in

JOHN T. McMURRAN. 141
1829, he became the partner of General Quitman. The career
of the new firm was successful in the highest degree, and
Mr. McMurran soon gained the ascendency of even his distin
guished partner, and took his position in the very front rank of
the profession.
Mr. McMurran possessed a vigor, perseverance, and inquisi-
tiveness of mind which permitted nothing to pass from under
his observation without his thorough comprehension of its char
acter and import ; and to these trained habits of sensation and
perception was added a cultured and well-regulated judgment.
While such qualities assert their superiority in whatever sphere
they may be exercised, the capacity of minute and accurate
attention is of all others the most important qualification
for success at the bar, and when it is nurtured and moulded
into professional habit, it is to genius a sure passport to the
sphere of eminence.
Mr. McMurran's knowledge of the law was profound and
exact. H-e was methodical and laborious in the preparation of
his cases, and always well armed with precedent and authority.
While his oratory was void of ornamentation, it was forcible,.
logical, and laden with argument. He readily perceived the
main points of a question, and addressed himself to the gist of
the controversy — a rule which commends itself both from its
utility and the sound sense by which it is dictated, and which,
if more universaUy observed, would greatly redound to the ex
pedition of the courts and the attainment of justice, while it
would often relieve a heavy burden from the patience of both
judge and jury.
As a man, Mr. McMurran was mild, amiq,b]e, and conciliatory,
and possessed a fund of quiet humor and anecdote, which ren
dered him highly interesting and pleasing to juries, and a most
agreeable- companion in social intercourse.
His wife was the daughter of Chief Justice Turner, a lady
whose accomplishments were in every way worthy of the char
acter of her husband, and who, no doubt, afforded him that
encouragement, in his struggle with his extensive practice,
which only the smile of loveliness can inspire.
While Mr. McMurran was a stranger to the sway of prejudice

142 BENCH AND BAR OF MISSISSIPPI.
and passion, he was yet a man of strong convictions, firm in
his embrace of principle, aud open and candid in the expression
of his opinion. But the law was his chosen sphere, and to that
he devoted all the energies of his character. He seems to
have manifested but little ambition for political preferment — a
field in which his marked executive abilities would have, doubt
lessly, achieved an eminence fully commensurate with that he en
joyed at the bar, where his career was a model of successful, in
telligent labor, and an exemplary exhibition of the shining vir
tues of industry, integrity, and truth.
His death was the occasion of general regret, aiid his loss, not
withstanding the exclusive privacy of his life, was viewed as a
public calamity.
SAMUEL S. BOYD.
Mr. Boyd was a native of Maine, had enjoyed ample advan
tages in early life, and was said to have been the best educated
lawyer that ever appeared at the Natchez bar. His scholarly at
tainments were united with great intellectual vigor, unwearied
application, and a sparkling vivacity of comprehension. He
made his appearance in Mississippi about the year 1830, formed
a copartnership in law with Judge Alexander Montgomery, and
in a few years was found in the front rank of the bar of the
State. As a lawyer he was profound and sagacious, with an alertness
and penetration that knew no surprise, and which baffled every
effort of undue advantage. His knowledge was as vast as the
range of thought and the bounds of jurisprudence, while his
judgment was commended by an accurate perception and ready
comprehension of the analogies and relations of facts.
In 1837 he was one of the special judges appointed to try the
case of Vick et al. vs. the Mayor and Aldermen of Vicksburg,
in the High Court of Errors and Appeals, and delivered the
opinion of the court. This opinion is able aud eloquent, and,
in view of the novel features of the cause, isenunqiated with re
markable clearness and vigor. It evinces a perfect familiarity
with the subtle and unsettled questions of law involved, and the

SAMUEL S. BOYD. 143
conclusion is reached by an irresistible train of syllogistic reason
ing ; but upon a different estimate of facts it was reversed by
the Supreme Court of the United States.
His brilliant command of language gathered the most elegant
and forcible phrases for the enunciation of his views. Full of
pathos and sentimentality, whatever opiuion he adopted, or
principle he espoused, was grafted in his belief, and his zeal
was warm with the ardent glow of conviction. This vehement
and emotional earnestness of manner gave great weight to his
utterances, and commended his views to the conviction of
others. Prodigal with learning and research, his style of orato
ry was incisive, cogent, and demonstrative, while his illustra
tions were apt, energetic, and lucid. Possessed of every ac
quired qualification, he was only deficient in that " divine
afflatus" which alone can give model to the perfect orator.
In social life Mr. Boyd was bland, polished, and refined, and
was a favorite in society. He married the daughter of James
C. Wilkins, Esq., the pioneer cotton merchant of Natchez, and
oue of its most eminent citizens. But, while surrounded with
accumulated wealth, standing face to face with every prospect
of greatness and every promise of happiness, Mr. Boyd, like
many of our most eminent men, died in the prime of life, on
the threshold of his honors, and in the full-blown flower of his
genius. He was traly a man of eminent merit, and his name is
entitled to a bright place in the annals of our bar, where monu
ments of tme worth are built only of hearts, and the memory of
greatness lives in the veneration of the great. Ibi emicat in
oeternum.

144 BENCH AND BAR OF MISSISSIPPI.
SAMUEL P. MARSH.
Samuel P. Marsh was born in South Carolina, and educated
at the university of that State. He was the son of a Baptist
preacher who emigrated to Mississippi and settled in the county
of Amite, where the subject of this sketch began his career.
Mr. Marsh was considered a superior lawyer, and achieved great
success at the bar. He was deeply read in his profession, and
indefatigable in the preparation of his cases. He often ap
peared before the Supreme Court of the State, and his briefs and
arguments evince much learning and research. He was evi
dently a lawyer of vast resources, possessed of keen perception
and logical powers of a superior order. His familiarity with
reported decisions was amply verified, aud he invoked them with
much aptitude and force.
He was a stanch Carolinian in politics, and entertained the
extreme tenets of that school ; but his devotion to^;he duties of
his profession precluded him from active particijiation in the
political contests of the period, and the only record of his ability
is the eminence which he achieved at the bar — a characteristic
which would present a wholesome example to those lawyers who
dissipate their talents and achieve no eminence at all. While Sir
Edward Coke boasted that his Institutes contained, three hun
dred quotations from Virgil, their frequent inapplicability
evinces the weakness of his literary vanity ; and, while it is true
that " A lawyer," as he says, " professeth true philosophy, and
therefore should not be ignorant of either beasts, birds, creep
ing things, nor of the trees, from the cedar of Lebanon to the
hyssop that springeth out of the wall," yet the proverb that
" Lady Common Law must lie alone" will not permit it to be
wedded with impunity to the absorbing abstractions of politics.
While the law is the best and even necessary school for the poli
tician, yet he must bid adieu to the forum when he enters upon
the hustings.
Mr. Marsh died in the meridian of his manhood and forensic
success, and the monotony of his professional life was justified
by his professional eminence.

JOHN HENDERSON. 145
JOHN HENDERSON.
The subject of this sketch was a native of the North, but emi
grated to Mississippi when quite a young man, and located as
a lawyer at Woodville, in Wilkinson County, about the year
1820. He soon achieved by his application a professional stand
ing, while his integrity and genial deportment gained for him
great personal populai-ity. In 1835 he represented the county
of Wilkinson in the State Senate, and was the author of the res
olutions impeaching the validity of the Legislature in conse
quence of the admission of members from the counties newly
formed out of the Indian cession.
He eai-ly became associated in political measures with General
John A. Quitman, and supported the political principles of
John Quincy Adams in opposition to those of General Andrew
Jackson ; but finally drifted, in company with his friend, into
sympathy with the views of Mr. Calhoun, and became a stanch
advocate of the doctrine of State Sovereignty.
While thus entertaining, in part, the principles of both polit
ical parties, he was elected, in 1849, by the Legislature of Mis
sissippi, to a full term in the United States Senate. In this
body he was considered an able debater and a strong supporter
of the rights of the States. His career rendered him popular
with the Democratic party, and on his return to Mississippi, at
the expiration of his term, he aligned himself with the politi
cians of the extreme Southern school of that period. He was
warmly in favor of the annexation of Texas, and the conquest
of Cuba and Mexico, and was closely connected with General
Qm'tman in his views and schemes looking to these enterprises.
In February, 1851, he was arrested, together with General
Quitman, and put upon his trial before the United States Dis
trict Court at New Orleans, for violating the neutrality laws of
1818, by his complicity with the Lopez expedition against the
island of Cuba, but was acquitted of the charge, and died soon
after the tragic failure of that enterprise.
Mr. Henderson was by no means a man of extensive literary
attainments or of finished education, nor was his oratory mod
elled after the style of Cicero. But he was an able lawyer ; he
10

146 BENCH AND BAR OF MISSISSIPPL
had thoroughly digested the great masters of the common law.
His learning was deeply grounded in fundamental principles,
which his astute discernment, sound judgment, and vigorous
appHcation rendered remarkably effectual in achieving success.
The great secrets of his professional eminence were an over
weening self-confidence and indomitable pertinacity. He was
never prepared to accept defeat, and clung to a case as long as
there was a suspended thread of possibility. Consequently he
was at all times a formidable antagonist, both in the forum
and on the hustings.
RICHARD H. WEBBER.
Richard H. Webber, a native of Kentucky, was a person of
limited education. It seems that he had never devoted himself
to the acquisition of a knowledge of any branch of erudition ex
traneous to his profession, but to this he had applied himself as
siduously ; and while he was devoid, to a great extent, of that
seemliness of bearing and polish of manners bestowed by gen
eral culture, there were few lawyers of his time at the Mississip
pi bar who could exert a more powerful influence by the mere
force of argument. He was a profound lawyer and a skilful
logician, and brought to bear upon his cases a depth of research,
a breadth of comprehension, and compactness of reason, which
were often no less surprising than effectual.
But while he confined his studious thoughts and investiga
tional labors exclusively to the law, he was by no means reclu
sive in his habits. He was fond of society and conversation, and
his genial disposition rendered him popular with the people and
a favorite at the bar. He settled in the piney woods district of
Mississippi about the year 1825, and soon acquired a large prac
tice throughout the counties of that section. His ungainly fig
ure and uncomely manners, which bordered upon the ludicrous,
so far from exerting a repellent influence, were rather an element
of popularity with the rude clients who at that day besieged the
courts in those piney settlements. Like the English advocate
Dunning, Mr. Webber was an instance of the triumph of geuius
over physical defects. The ardent congeniahty of his disposi-

RICHARD H. WEBBER. 147
tion led him to an excessive participation in scenes of revelry,
and sometimes in painful debauchery. Yet, such was the
strength of his mental organization that, so long as his physical
powers sustained the combat with his excesses, his mind re
tained its balance and in a great measure its brilliancy. Au
amusing circumstance of this feature of his character is related.
Mr. Webber had a case in court which hung upon a demurrer,
and, though deeply in his cups, awaited its call with the serenity
and alertness of the most sober anxiety ; but when the case was
taken up, the opposing counsel, whose cppious potations had dis
armed his mental faculties, arose, and in piteous strains aUeged his
indisposition and beseeched the court for a continuance. Mr.
Webber, aware of his advantage, aud eager for the forensic con
test, objected to the postponement, and stated to the court that,
while he respected the infirmities of his brother, yet he himself
was in the same identical predicament, and that there was no
telling when either of them would be in any better health.
The court, comprehending the situation and relishing the amuse
ment of the occasion, ordered the counsel to proceed with their
arguments ; and in consequence of the peculiarity of his tem
perament, Mr. Webber, though he could scarcely maintain a
respectable physical attitude and was at a disadvantage as to the
merits of his case, gained an easy victory over his more besotted
adversary. But in spite of the depth and strength of his judgment, the
astuteness and tenacity of his logical powers, and the command
which he possessed over his intellectual resources, the faculties
of Mr. Webber, both mental and physical, were greatly enfee
bled by this bane of the legal profession, and enemy of all intel
lectual excellence, and while his usefulness was impaired, the
number of his days was no doubt curtailed by his unfortunate
excesses.

CHAPTER V.

CHANCERY.
THE BENCH  CHANCELLORS AND VICE-CHANCELLORS  1821-1857  JOHN
A. QUITMAN  ROBERT H. BUCKNER  STEPHEN CO'CKE  CHARLES
SCOTT  JOSEPH W. CHALMERS  JAMES M. SMILEY.
In 1821, as already stated, the Legislature of Mississippi,
upon the recommendatiou of Governor Poindexter, severed the
common law and equity jurisprudence, and estabhshed a sepa
rate court of chancery for the State. The complex system
which had hitherto existed amounted almost to a denial of jus
tice in equitable cases, and was subversive of that uniformity
and consistency which should characterize the decisions of all
courts of justice, and upon which hinge the rights of property
and the safety of the citizen. It was found that after weeks of
intense contemplation of the fixed rules and settled maxims of
the common law, the most learned and experiencdd judges
found it difflcult, on opening the chancery side of the docket,
to transfer an untrammeled judgment to the clear and open
field of equity. It was difflcult for them to suddenly and tem
porarily thrust their minds beyond the bar of the letter of the
law into the true province of equity, which embraces its reason
and spirit, and extends beyond its reach.
While it might be practicable and feasible to maintain a com
bination of equitable jurisprudence with that of the civil law
which requires every case to be referred back to fundamental
principles, and which is really the essence and source of equity
jurisprudence, its mission is too incompatible with that strictum
jus which constitutes the body and pith of the common law to
be domiciled with it in one aud the same jurisprudence. While
it is true that, under our system, equity follows the analogy of

150 BENCH AND BAR OF MISSISSIPPI.
the law, if there be an analogy, yet its broad and copious prin
ciples declined to be harnessed harmoniously with technicalities
or restrained by arbitrary limits.
The act of 1821, establishing a separate and distinct system of
equity jurisprudence in Mississippi, rescued the noble science
from that crude and confused administration upon principles
of imaginary conscience and supposed right to wliich it had
been subjected while held subsidiary to the principles and
practice of the common law. And since its elevation to its
true position as a supervisor of law as well as an adjunct, it has
bounded beyond the mere visionary views of abstract justice,
and, no longer subordinated to the pecuUar condition of the
conscience of the presiding judge, has leaped upon a platform
of fixed principles and established rules which have been
gathered from the garnered wisdom and experience of man
kind. In no other State, perhaps, has the system of chancery juris
prudence been jieveloped, in the same length of time, to a
higher or more felicitous degree than in Mississippi. The dis
tinguished gentlemen who have occupied that bench, have
elaborated, both by precedent and principle, every species and
manner of relief that justice can demand or wrong and injury
jDrovoke within its sphere. They have prescribed a parry for
the vis major of every untoward event and legal accident, and
placed the victims of misfortune in the arms of redress. They
have afforded a mantle for the brow of error and a shield for
the unwary against the artifice of the cunning. They have
uncloaked the hidden transactions of fraud, both actual and con
structive, and vitiated every manoeuvre of falsehood and deceit.
Indeed, they have caused the administration of our courts of
equity to shed a benign and haUowed influence on every feature
of society and upon all the multiplied concerns of life. Two of
these gentlemen, Hon. J. G. Clarke and Hon. Edward Turner,
having been judges also of the Supreme Court, have already
been mentioned in connection with that bench.

JOHN ANTHONY QUITMAN. 151
JOHN ANTHONY QUITMAN.
In attempting a sketch of the life of this distinguished gentle
man, I shall not endeavor to follow him through the war of
Texan independence and the Mexican war. In these his career
forms one of the brightest pages in the history of the United
States. It records his glowing patriotism, fiery valor, and un
conquerable bravery, which form a part of our national pride
and national glory.
His name is immortally linked with the glory of Monterey,
Chepultepec, Contreras, Puebla, and other memorable fields of
the Mexican war, from all of which he emerged with his colors
sparkling with glory, and with victory perched upon his standard.
His was the first American flag that floated over the Mexican
capital, and he was the first civil and military governor of
Mexico — the only American who ever ruled in the ancient
halls of the Montezumas.
His biography has been written in two volumes by the Hon.
J. H. F. Claiborne, which, though I have not had the pleasure
of seeing it, from my knowledge of the ability and eloquence
of the distinguished author, I cheerfully recommend to the
reader. The following sketch of the hfe of General Quitman will be
confined to his career as a citizen and member of the Bench and
Bar of Mississippi. The facts have been culled chiefiy from
sketches published in 1848, during the life of General Quitman,
by Ritchie and Heiss, and from the records of the period, whicli
constitute au accurate synopsis of his professional and judicial
career :
The grandfather of General Quitman is said to have held an
important and responsible office under the great Frederick of
Prussia, and is understood to have enjoyed the personal regard
and confidence of that monarch. His father was also a native
of Prussia, and was educated at the celebrated University of
Halle, where he graduated with the highest honors of his class.
The liberal principles and free sentiments common to that and
other German universities were freely imbibed by the young
student, aud doubtless determined his settlement in America,

152 BENCH AND BAR OF MISSISSIPPI.
the theatre upon which was to be solved the interesting prob
lem of the capacity of man for self-government.
He arrived first in the Dutch island of Cura^oa, in the West
Indies, and while sojourning there married a daughter of the
governor — a lady distinguished no less for her beauty and
accomplishments than for her family and connections — and
was accompanied by her to the United States soon after the
close of the Revolution. This gentleman, the Rev. Dr. Fred
erick Henry Quitman, was equally distinguished for his piety
and talents and for his activity and energy of character. He
had the pastoral charge of the two Evangelical Lutheran
churches in Rhiiiebeck, Dutchess County, 'N. Y., and was
for many years president of the General Synod of that denomi
nation in the United States. He performed these various
duties with exemplary zeal and ability, and died at the advanced
age of seventy-two years, universally beloved aud respected by
all who knew him. His family included three sons and four
daughters. John Anthony Quitman, the youngest of these
childa'en, was born atRhinebeck, on the 1st of September, 1799.
From such parents the son could but deri ve very great ad
vantages in natural endowments as well as in counsel and exam
ple. A vigorous frame, a well-balanced mind, a love of truth
and honorable fame, undaunted resolution and industry, marked
his early years ; and his subsequent career but exemplified
these traits upon a wider theatre of -action, and in the practical
and varied duties of hfe, showing how truly the boy is tlie father
of the man.
At the age of ten years, young Quitman was placed at school
in the town of Schoharie, N. Y., and at sixteen was trans
ferred to the celebrated institution of Hartwick, near Coopers-
town, in the same State, then under charge of the reverend and
learned Dr. Hazelius. During part of his time at this institu
tion he acted in the capacity of tutor, and left it in his twen
tieth year, to accept a professorship in Mount Airy College,
near Philadelphia, which he held for about fifteen months and
until he attained his twenty-first year.
Considering the energy and vigor of his nature and the excel
lent opportunities he had enjoyed, it is not surprising that at

JOHN ANTHONY QUITMAN.. 153
this period his attainments were of the most thorough and
varied kind, or that he was held at both of these institutions in
the highest estimation for his talents and acquirements.
It seems that his venerable father had contemplated his son's
embracing his own profession, that of the ministry ; aud that
with this view, besides the usual academical course, including
the classics and the French, Spanish, aud German languages,
his attention had been directed to the Hebrew, and to church
history and biblical criticism, the knowledge of which he after
wards cherished and preserved by occasional study during the
course of a busy and stirring life.
But his own predilection was early and decided for the law ;
and without interfering with the course of study prescribed by
his father, he had already, and merely in those hours which
others might have given to amusement, quaUfied himself for
admission to the bar.
Thus having completed, at the same time, both his education
and his minority, the time had arrived for young Quitman to
launch his bark upon the ocean of life. Without either wealth
or potent friends, his circumstances demanded that he should
be the architect of his own fortune ; and with an abiding confi
dence in his own energy and his own powers to compass and
achieve it, he was buoyant with the hopes of the future. Hav
ing obtained the consent of his father, all that was now wanting
was a suitable location for the practise of his favorite profes
sion. This he determined should be in the far West, and, with
an outfit in books and a small sum of money, he lost no time in
entering upon his journey to the Ohio.
Arriving at Chambersburg, in Pennsylvania, he found but
a single line of stage-coaches running to Wheeling, and, unwill
ing to submit to the charge, $75 (the fare of a passenger, for
every fifty pounds of extra baggage), he placed his books in a
transportation wagon and pursued his journey on foot. At
Chillicothe, Ohio, the location he had in view, he found that a
law had recently been passed requiring a residence of one year
in the State before admission to the bar, and thereupon entered
the law office of Messrs. Brush, eminent lawyers of that place.
In the spring of- 1821, Piatt Brush, one of the firm, was ap-

154 BENCH AND BAR OF MISSISSIPPI.
pointed to the new laud office established at Delaware, Ohio,
then upon the Indian frontier. To this place young Quitman
accompanied him as a clerk, and, while performing the duties
of this office, acquired a knowledge of the land system of the
United States which was not without its value in after years.
Having thus passed the year of residence required, partly iu
further preparation for practice, and partiy in earning a
moderate compensation for his services, he underwent a highly.
creditable examination before the Supreme Court of Ohio, at
Delaware, and was admitted to the bar.
But the distressing condition of Ohio at this period —arising
from excessive and improvident bank issues, with the consequent
inflation and depreciation of the currency — ^produced a state of
things so inauspicious to the prosperity of the community in
which he lived, and to his owu, that he determined to relin
quish a position in other respects pleasant and encouraging, and
once more to seek his fortune among strangers. He according
ly removed to the city of Natchez, in the State of Mississippi.
In Natchez, General Quitman's professional career may be
said to have fairly commenced. Here he formed a copartner
ship with William B. Griffith, then an eminent lawyer, and by
applying himself to his profession with his characteristic energy
aud fidelity, he soon achieved, not only a lucrative practice, but
a respectable rank among the prominent members of the bar.
At this period he also took an active part in the consideration
and discussion of all the important questions of the day — espe
cially those that concerned the general or local interest of the
community in which he had established himself, and bore his,
full share in all the measures and movements tending to im
prove, harmonize, and ameliorate the condition of its society.
He was consequently popular in the community, particularly
with the other members of the bar and the fair sex.
In 1824 he married Miss Eliza Turner, the only daughter of
Henry Turner, Esq., of Virginia, and a niece of Chancellor
Turner, of Mississippi.
At the general election in the State of Mississippi, held on
the first Monday in August, 1827, General Quitman was elected
by a very large majority to a seat in the popular branch of the

JOHN ANTHONY QUITMAN. 155
Legislature, as a representative from the county of Adams, and,
as a member of the judiciary committee, soon became promi
nent for activity, sagacity, and ability, even among such men as
afterward Chief-Justice Sharkey and Judge Pray, of whom the
committee was composed.
Upon this theatre of action, his reputation for talents and
business capacity rapidly expanded, and in the next year, before
he had attained the age of twenty-nine, he was appointed by the
Governor (the Legislature not being in session) to the distin
guished and responsible office of Chancellor of the State. He
held this office for the uninterrupted period of six years, and by
no less than three several appointments : first by appointment
of the Governor, as stated ; secondly, by unanimous election of
the Legislature, at its next meeting ; and lastly, after the adop
tion of the new Constitution, which made the office elective by
the people, he was elected without opposition.
His decisions as chancellor were very numerous during the
period he held that office, and are universally admitted to have
been distinguished for beauty of style, force of argument, and
legal acumen. Embracing as they did, in the incipiency of
this branch of jurisprudence in Mississippi, many novel ques
tions, and containing sound and lucid expositions of the law ap
plicable to them, they contributed a valuable addition to the
existing authorities and precedents, and well entitled him to be
regarded as the father of chancery law in this State.
While holding the office of chancellor, he was, in 1831,
elected a member of the convention called to revise the Consti
tution of the State, and was placed at the head of the judiciary
committee iu that body. He was uniformly on the side of
liberal principles. To enumerate the various measures intro
duced or advocated by him in this convention, indicative of his
sound statesmanship and patriotism, would swell this sketch to a
dimension incompatible with the scope and purport of this
work. One, however, was too significant and important at the
time to be overlooked — this was a proposition to prohibit the
Legislature from borrowing money, or pledging the faith of the
State, for the purpose of banking. This proposition he pressed
with great zeal, and, notwithstanding much opposition, pro-

156 BENCH AND BAR OF MISSISSIPPI.
cured its adoption in a somewhat modified form as a part of the
fundamental law. The provision in question vrill be found in
Section 9, Art. VII., of the revised Constitution of 1832.
AVe can fully appreciate the political forecast and judgment
which at that time suggested this proposition, only by reflecting
through what a glittering prospect, and dazzling glare of profit
and success, was the danger perceived in the distance, and how
much embarrassment, not to say distress, the State would have
escaped if the restriction he introduced had been fully adopted
and faithf uUy observed. It is fortunate for Mississippi and for
most, if not all, of the States, which have since revised their
organic law, that this important feature of a republican Consti
tution, first introduced by General Quitman, stands forth as a
perpetual barrier against a policy that has wrought so much
mischief in our own State.
In 1834 General Quitman resigned the office of chancellor,
which he had filled with so much honor to himself and with
such general satisfaction to all branches of the community, for
the purpose of devoting his time to his private affairs ; but he
was not permitted to remain long in his retirement. In the fol
lowing year he was elected as State Senator from the county of
Adams. While a member of this body a vacancy occurred in
the office of governor of the State, and the Senate was convened
by proclamation of the acting secretary of State for the purpose
of electing a president of that body, to perform under the con
stitution the duties of governor. The choice fell on General
Quitman. He continued to hold the office of President of the
Senate as long as he remained a member of that body.
The message which, as acting governor, he deUvered to the
Legislature at its meeting in the following January, 1836, was
regarded at the time as a masterly production, and even now,
no one will arise from its perusal without according to it that
character. The design of this sketch being to give some idea
of the turn of mind and character of General Quitman, as well
as the principal events in his life, I will introduce a few para
graphs from his message, touching topics of the most general
and important character.
1. On the tendency of our system to centralization.

JOHN ANTHONY QUITMAN. 157
" To those who recognize the principle that the Constitution
of the United States is a solemn compact between sovereign
States, and that the government created by it is an agency estab
lished to execute certain defined trust powers for the common
benefit of the States, no apology need be offered for a brief al
lusion to our federal relations. Indeed the very idea of trust
powers is necessarily associated with the superintending power
of the political communities by whom they are delegated. Re
strictions and limitations arose in a jealous spirit of liberty, and
by jealous and unceasing vigilance alone can they be preserved.
Whatever may have been the opinions of patriotic statesmen of
the tendency of our complex political system at the period ot
its formation aud adoption, the experience of nearly half a cen
tury has now shown to the satisfaction of the attentive observer
of our political history that its inclination is to centralism.''''
" Those who feared, in the structure of this noble fabric of
human wisdom, that the power delegated to the different de
partments of the federal government would be scarcely suffi
cient to preserve the edifice from the assaults of State pride,
State ambition, and State prejudice, regarded it with the naked
vision. They did not imagine that their successors might view-
it through the false and magnifying medium of sophistical con
struction ! Much less, in the golden age of patriotism which
foUowed the chastening afflictions of the Revolutionary struggle,
was it anticipated that the power, the patronage, and the fiscal
means of the general government, would ever be used as the in
struments to control the freedom of elections, to overawe the
spirit of republican independence, and to perpetuate power in
the hands of those who might wield it."
2. . On education.
" I wiU not be deterred by the triteness of the subject from
most earnestly calling your attention to the cause of education.
The Constitution imposes its encouragement on us as a sacred
duty. When we reflect that in our political system every free
man partakes in the administration of the government, how im
portant is it that the means of acquiring general as well as po
litical knowledge should be placed within the reach of every
man. Upon the intelligence, the wisdom, and the virtue of

158 BENCH AND BAR OF MISSISSIPPI.
the great mass of the jDcople, the successful and happy opera
tion of our social system entirely depends. A government thus
constituted cannot be conducted and administered wisely if the
sources from which it derives its momentum be buried in igno
rance and error. ' '
About this time occurred an event that aroused all the sym
pathies of General Quitman's nature. It was the invasion, with
fire aud sword, of the then province of Texas by a powerful
Mexican army under Santa Anna.
Upon the reception of this news he determined, if possible, to
stay the threatened desolation, and, placing himself at the head
of a company of faithful followers, he hastened to join the Tex
ans in the defence of their homes and firesides, and it is to be
regretted that the scope of this work will not permit the recital
of his splendid services in their behalf ; but his name will never
be forgotten by the warm-hearted sons and daughters of the
Lone Star State.
In 1839 General Quitman visited Europe, accompanied by
Judge Thatcher, on business of the Mississippi Railroad Com
pany. Upon his return he was appointed by the Governor a judge
of the High Court of Errors and Appeals, to fiU the vacancy
occasioned by the death of Judge Pray. This appointment he
declined, in consequence, it is said, of the embari'assed state of
his private affairs, produced by his generosity to his friends.
He now entered into a law copartnership with J. T. McMur
ran in the city of Natchez, and so great was the success of the
firm that General Quitman, in a few years, found himself
again in opulent circumstances.
Distinguished as General Quitman was as a legislator and a
lawyer, upon the bench and in acting the executive, it is not
upon his services in these several relations solely, or even chiefly,
that his estimable reputation rests. Warmly alive to his duties
as a citizen toward the community in which he lived, and as a
man to his fellow-man, he was ready at all times to accord his
time and talents to promote the plans devised for elevating the
condition of .his fellow-creatures. In proof of this, it is only
necessary to state his connection with various societies and insti
tutions having these objects in view.

JOHN ANTHONY QUITMAN. 159
He was president of a Society for the Suppression of Duelling ;
director of the State Hospital ; president of the Board of Trustees
of Jefferson College ; trustee of the State University, of the
Lyceum, and president of several literary associations.
He received the honorary degree of A.M. from the College
of New Jersey, and that of LL.D. from the College of La
grange, Kentucky.
From 1839 to 1845, he hved comparatively a quiet life, but
was always fond of military societies and martial exercise ; and
the splendid military companies of Natchez attested his superb
skill and enterprise in this respect. But it was the occasion of
the Mexican war that afforded that feast of opportunities which
his ambition craved. It was there that his spirit revelled in the
high destiny for which he was by nature constituted and in
tended. In 1845 he was appointed brigadier-general in the United
States ai-my, and in 1847 he was promoted to a major-general
in the regular service.
At the Democratic Convention in Baltimore in 1848, he re
ceived a very complimentary vote for vice-president, and in the
same year was nominated by the Democratic State Convention
of Mississippi for presidential elector.
In 1849 he was nominated for governor of Mississippi, and
was elected by a majority of more than ten thousand. He was
a warm friend of the Cuban enterprise, and deeply sympathized
with the ill-fated Lopez expedition. He longed for the day
when the " Queen of the AntiUes" would plant its star in the
galaxy of the Union.
His open and avowed sympathies with the fllibusters caused him
to be arrested in 1851 by the United States Marshal, under the
direction of President Fillmore, and carried from the governor's
mansion of Mississippi to New Orleans to await his trial before
the Federal Court, on the charge of having violated the neutral
ity laws. His treatment on this occasion created intense indig
nation in Mississippi ; and so outraged were his feelings at the
novel proceeding that, on being arrested, he immediately re
signed his offlce as governor, and tendered his resignation in a
spirited letter of protest to the people, as follows :

160 BENCH AND BAR OF MISSISSIPPI.
" To the People of Mississippi : In November, 1849, 1 was
elected by your free suffrages governor of this State. My term
of offlce commenced with my inauguration on the 10th of Janu
ary, 1850. By the provisions of the Constitution it will expire
on the 10th day of January, 1852. In the middle of my term
of office, and in the active discharge of its duties, I am to-day
arrested by the United States Marshal of the Southern District of
Mississippi, by virtue of process originating out of charges ex
hibited against me in the District Court of the United States for
the Eastern District of Louisiana, for an alleged violation of the
neutrality laws of 1818, by beginning, setting on foot, and fur
nishing the means for a military expedition against the island of
Cuba. "Under these charges the marshal is directed to arrest me,
and remove my person to the city of New Orleans, there to be
tried for these alleged offences.
" Unconscious of having, in any respect, violated the laws of
the country, ready at all times to meet any charge that might
be exhibited against me, I have only been anxious, in this ex
traordinary emergency, to follow the path of duty. As a citi
zen, it was plain and clear that I must yield to the law, how
ever oppressive or unjust in my case ; but as chief magistrate
of a sovereign State, I had also in charge her dignity, her
honor, and her sovereignty, which I could not permit to be vio
lated in my person. Resistance by the organized force of the
State, .while the Federal administration is in the hands of men
who appear to seek some occasion to test the strength of that
government, would result in violent contests, much to be dread
ed in the present critical condition of the country.
" The whole South, patient as she is under encroachments,
might look with some jealousy upon the employment of military
force to remove a Southern governor from the jurisdiction of
his State, when it had been withheld from citizens seeking to
reclaim a fugitive slave in Massachusetts.
" On the other hand, the arrest and forcible removal from the
State of her chief executive magistrate, for an indefinite period
of time, would not only be a degradation of her sovereignty, but
must occasion incalculable injury and disaster to the interest of

JOHN ANTHONY QUITMAN. 161
the State by the entire suspension of the executive functions of
its government. The Constitution has not contemplated such
an event as the forcible abduction of the governor. It has not
provided for the performance of his duty by another officer ex
cept in the case of a vacancy. Such vacancies cannot happen
while there is a governor, though he be a prisoner to a foreign
power. Although he may be absent and incapable of perform
ing his duties, he is still governor, aud no other person can ex
ecute his office.
" It follows, therefore, that in such case the State would prac
tically suffer some of the evils of anarchy. The pardoning
power would be lost. Officers could not be commissioned or
qualified ; the great seal of the State could not be used ; vacan
cies in office could not be filled ; fugitives from justice could
not be reclaimed or surrendered ; the public works, the opera
tions of the penitentiary, and all repairs of public buildings
must stop for want of legal requisitions to defray the expenses
thereof. The sale of State lands and the location of recent
grants must be suspended.
" The convention of the people, called at the last session of the
Legislature, could not assemble for want of writs of election.
In case of the death or resignation of the administrative officers
of the State government, those important offices, including the
treasury, would be left without the superintendence or care of
any authorized person. In fine, the whole government of the
State would be iu confusion, and great inconvenience and per
haps irreparable injury flow from such a state of things. For
all these evils there is but one remedy. That remedy is my res
ignation. I therefore, fellow-citizens, now resign the high
tmst conflded to my hands, with no feeling of personal regret,
except that I could not serve you better ; with no feeling of
shame, for I am innocent of the causes which have induced the
necessity of this step. On the contrary, although personally I
fear no investigation and shun no scrutiny, I have spared no
efforts consistent with self-respect to avert this result. So soon
as I learned that attempts would be made, under an act of Con
gress of the last century, to remove me from this State, I for
mally offered to the proper authorities of the United States any
11

162 BENCH AND BAR OF MISSISSIPPI.
pledge or security to appear in New Orleans, and meet the
charges against me, so soon as my term of office should expire,
and I remonstrated against the indignity thus about to be
offered, not to myself, but to the State, in dragging away from
his duties her chief magistrate.
" My proposition was not accepted, and my remonstrance not
heeded. " It is not for me to complain. You are the aggrieved party.
My course in the matter meets the approval of some of the most
patriotic citizens near me. I sincerely hope, as it was dictated
alone by my sense of duty to the State, it may meet the appro
bation of my fellow-citizens.
" In thus parting from my generous constituents, it would be
proper to give them an account of my stewardship during the
short but interesting period that I have acted as their public ser
vant, but the official connection between us has been so sum
marily and unexpectedly severed, that 1 must defer the grateful
task to a future day.
" I have but to add that, during my short but exciting period of
service,! have in all things striven to be faithful and true to the
rights, the interests, and the honor of the State. For this I
have been abused and calumniated by the enemies of the South.
Treachery and faithlessness would have secured favor from the
same sources.
" Fellow-citizens, I now take m.y leave of you with gratitude
for the generous support you have extended to me, and with
cheering confidence that your honor and your interest may be
safely confided to the hands of the faithful and able son of Mis
sissippi who, as president of the Senate, succeeds to my place."
Whatever may have been the plea of justification on the
part of the President of the United States for his course in this
matter, it was certainly a novel incident in American history,
and one fraught with extreme danger. If the governor of a
State could, upon an indictment found in the Federal courts,
and which might be instigated by partisan interest or even per
sonal consideration, be dragged away from his office, and incar
cerated in the prisons of another State, at the discretion of a

JOHN ANTHONY QUITMAN. 163
judge, or at the pleasure of the President, it would need but lit
tle more to clothe the latter with a power virtually as arbitrary
as that wielded by the Czar of all the Russias. No enforcement
act, or Ku-Kliix law, could be so utterly subversive of the rights
of the States and of the people.
The course pursued by Governor Quitman in this emergency
was highly proper and honorable, and the reasons he assigns
for his action manifest a spirit as patriotic as his prosecution
was indicative of partisanship on the part of the administration.
Having been honorably acquitted of the charges preferred in
the indictment, he returned to Mississippi, and, in 1851, was
renominated for governor upon the issue of resistance to, or
acquiescence in, the compromise measures of 1850. He had
strenuously opposed those acts as being unjust and oppressive to
the Southern States. But a convention of the people declared
for acquiescence and submission, upon which General Quitman
retired from the canvass, but with unabated devotion to the
South, and undiminished ardor in support of the principles
which had so long formed the basis and embodiment of his po
litical creed. In 1855 he was nominated by the Democracy of
the Fifth Mississippi District as a candidate for Congress, and
was elected by a large majority.
As a representative in Congress, he kindled a new lustre
around his own name, and reflected additional honor upon his
State. As he had been a gaUant soldier, a wise judge, and a
faithful governor, he now proved to be an enlightened and lib
eral legislator. During his entire service in Congress, he was
chairman of the Committee on Military Affairs, and by his zeal
and abUity in these matters added zest and momentum to the
interest of the army.
At the Cincinnati Convention of 1856, he received, on the first
ballot, the highest number of votes for the vice-presidency, and,
in 1857, was re-elected to Congress without opposition. He
died at Natchez in 1858, in the harness of public service, and
was buried on the banks of the Mississippi. Bom where the
romantic Hudson wends its murmuring way through the High
lands of New York, it was meet and proper that his departing

164 BENCH AND BAR OF MISSISSIPPI.
spirit should mingle with the voice of the Great Father of
Waters, whose mighty current was a fit emblem of his own
majestic flow of soul.
It was thought that his decease was the effect of the National
Hotel poisoning, having dined there on that fatal day which
cost thirty-one persons their lives, and destroyed the health of a
great many more. Be this as it may, from that time his health
was greatly impaired, yet he clung to his duties until the ad
journment of Congress.
General Quitman possessed a genius of the highest order, and
of an exceedingly versatile character. Whether in the forum or
on the bench ; leading the dashing charge amid the thunders of
battle ; issuing his decrees from the throne of the Montezumas ;
resigning his gubernatorial chair to save the honor of his State ;
pleading his innocence as a traitor at the bar of Federal prose
cution ; defending the rights of the South in the halls of the
national Congress ; citizen or soldier, judge or politician, he
was always equal to whatever duties might devolve upon him.
He was sincere, honest, and unchanging in his attachments ;
lofty, open, and manly in his opposition. Chivalry and gen
erosity were the ruling traits of his character ; the one baffled
the envy of emulation, while the other conquered the bitterness
of opposition.
General Quitman possessed a remarkably stalwart frame, and
was capable of undergoing the severest labor. He had power
ful flsts, which, notwithstanding his natural amiability, he some
times used in self-defence or in resenting an insult, and always
to the discomfiture of his antagonist. It was said of him that
he never struck a man, without knocking him down, except on
one occasion, and that, he claimed, was a glancing stroke.
As a lawyer. General Quitman had few superiors, and as a
judge of equity but few equals ; his love of justice, keen sense
of honor, aud quick conscience, fitted him in a remarkable degree
for the administration of the principles of equity jurisprudence ;
and so long as the sword of Mississippi hangs in the temple of
war, and her voice is heard iu the halls of justice ; so long as
her niche remains in the shaft of fame, will the name of John
A. Quitman live in the memory and the heart of her people.

ROBERT H. BUCKNER. 165
ROBERT H. BUCKNER.
Robert H. Buckner was a native of Kentucky, and removed to
Mississippi soon after the establishment of the State government,
settled in Natchez, and became the law partner of John T. Mc
Murran. This firm enjoyed for many years a high degree of
prosperity, and was considered one of the best in the State.
Mr. Buckner was a man of quiet aud studious habits, devoted
to his profession, and prepared his cases with great exactness
and care. He was fond of investigation, and was generally
prepared to support his views by ample authority ; hence, he
was an excellent counsellor, but was deficient in the powers of
an advocate, and his mediocrity in this respect was greatly due
to his modesty and meekness of manners. He possessed in an
eminent degree that tender conscientiousness, power of patient
investigation, and scrupulous exactness, which were so conspicu
ous in the character of Lord Chancellor Eldon, and which
seemed to likewise fit Mr. Buckner especially for the chancery
branch of the profession.
In this respect his proficiency was distinctively acknowledged,
and in the year 1839 he was elected Chancellor of ihe State.
His career on this bench was distinguished for ability, dignity,
conscientiousness, and industry. He had made himself thoroughly
familiar with the whole system of equity, which he administered,
not in a visionary and abstract manner, but in strict accord with
the settled rules and estabhshed principles of the science, dug
out of the records of ages and sanctioned by the wisdom and
experience of mankind ; and to him, more than to all others, is
due that dignified, gentle, enUghtened, and complete system of
equity judicature which adorns the jurisprudence of Mississippi.
For six years he presided over the Superior Court of Chancery
with a wisdom and refinement, which would not have dis
paraged the most eminent lord chancellor that ever directed the
impressions of the great seal. His court was a sa/notum of
dignity and decorum, and his decisions glow with a lustrous
purity, doctrinal soundness, and logical clearness, unsurpassed
by the most luminous decrees of Hardwicke or Lyndhurst. It
is to be regretted that so few of these, comparatively, have been

166 BENCH AND BAR OF MISSISSIPPI.
reported ; those which have been preserved are found in " Free
man's Chancery Reports." They were commended as high
authority by the distinguished Chancellor Kent, and have met
with great appreciation wherever they have become known.
So devoted and assiduous had been the application of Chan
cellor Buckner to the duties and requirements of his office that
in November, 1845, he retired from the bench with enfeebled
health, which continued to decline. He died at his residence
near the city of Jackson on the 21st of September, 1846.
In closing this feeble sketch of this good and eminent citi
zen, I cannot refrain from quoting the following extract from
an obituary written and published at the time of his death :
"We have all sustained a loss — the whole community has
lost a patriotic and able citizen— his friends have lost one on
whose kindness and goodness they could always depend in time
of trial — the legal profession has lost an eminent and able mem
ber, and one of its brightest ornaments, one who both as an
advocate and counsel at the bar and as an occupant of oue of
the most important judicial positions of the land, had done
more than almost any other man to confer dignity and honor
upon the station in which he was placed, and to acquire an in
fluence and respect, throughout the State, for the court in
which he had so long and successfully practised and presided,
which could only be attained by unremitting ardor and industry,
coupled with the utmost purity of motive, and a full and sole
desire to do and accomplish right and equity between all par
ties. " In serving faithfully his country and his fellow-men in
every situation in life, which he has occupied, the late Chancel
lor Buckner has acquired a name and a reputation, brUliant and
untarnished, which extend far beyond the limits of this his
adopted State, and which he has left as a bright and glorious
legacy to his children."

STEPHEN COCKE. 167
STEPHEN COCKE.
The subject of this sketch was born in the eastern portion of
the State of Tennessee, and in 1818, when quite young, removed
with his parents to Columbus, Mississippi, where his father was
sent under the appointment as agent for the Choctaw tribe of
Indians. Here young Cocke acted in the capacity of clerk of
the agency, and subsequently as clerk of the Circuit Court.
His general education was consequently of a meagre charac
ter, but he was early trained to the habits and knowledge of
business. While performing the duties of circuit clerk, Mr.
Cocke tumed his attention to the study of law, in which he soon
manifested a commendable progress. Yet it cannot be said
that he ever acquired distinguished proficiency at the bar. He
was noted more for dUigence than aptitude iu his profession.
He was an indefatigable student, fond of patient investigation,
and even of antiquarian researches, and his success was due
more to these qualtities than to any marked intellectual bril
liancy. In 1834 Mr. Cocke represented the counties of Monroe,
Lowndes, and Rankin in the State Senate, and distinguished
himself for his vigorous championship of the cause of the new
counties formed of the Choctaw and Chickasaw cessions.
At an extra session of the Legislature convened in January,
1835, under the call of Governor Runnells, for the purpose of
extending legislation over the thirteen new counties formed out
of the territory recently acquired by treaty with the Indians,
and for the purpose of admitting them to representation, their
respective members — one from each county, as provided by the
Revised Constitution of 1832 — appeared, were duly qualified,
and took their seats in the House of Representatives ; but the
Senate refused to recognize the legality of the House — declined
all official intercourse with it, and immediately, upon its organi
zation, passed resolutions appointing a committee to " inquire
aud make report whether or not other and different persons
than those which constituted the Legislature at its last ses
sion, ' and such others as had succeeded to fijl vacancies that
had since happened in either House, as then constituted.

168 BENCH AND BAR OF MISSISSIPPI.
composed any portion or all of either of those bodies ; and also
to inquire aud make report whether or not the two bodies were
so assembled, and composed of such members aud description
of persons as were appointed, by the constitution and laws of
the land, constituent members of the Legislature of the State,
and whether the two bodies were so organized that the Senate,
in concert with the other body assembled as the House of Rep
resentatives, could enter upon a constitutional discharge of legis
lative duties." This committee was, however, enjoined to care
fully abstain from making any inquiry as to the qualifications
and election of any individual member of the House, and con
fine its investigations to the organization of the two bodies in
their aggregate character, and to report the causes, if there were
any, why the two houses, thus assembled, were not the Senate
and House of Representatives of the State of Mississippi.
Notwithstanding this, the Senate had, prior to the adoption of
these resolutions, appointed a committee to act conjointly with
members of the House to acquaint the governor of the or
ganization of the Legislature, but had declined, however, to
join the House in the election of a United States Senator.
As these entire proceedings are novel in our legislative his
tory, and the report of the committee, of which Mr. John Hen
derson was chairman, contains au interesting discussion of the
legal qualifications and of the mode and manner of electing
members of the Legislature, its substance is here given. They
reported that, in entering upon the duties assigned them, they
had found all the essential facts to which the several resolutions
had pointed their attention as circumscribed in their detail and
simple in their character, and which in substance were briefiy
these : That, since the last adjournment of the Legislature, on
the 25th of December, 1833, a writ of election had been
issued by the Governor, and dated 4th of November, 1834, au
thorizing and requiring an election in each of the new counties
(sixteen in number) to be holden on the second Monday and
day following in December (then) next, to fill a vacancy veTported
as existing in each of said counties for one representative.
The counties to which this writ of election was respectively
addressed were created by the Legislature on the 23d day of

STEPHEN COCKE. 169
December, 1833 ; and by the apportionment law of the 25th of
December, 1833, there was assigned to each county, respective
ly, one representative, in the next biennial session of the Legis
lature / that a special session of the Legislature, elected in No
vember, 1833, and continuing till the next ensuing election in
November, 1835, had been convened ; and that at this special
session members from nearly all of the new counties had been
returned under the election so by the Governor's writ directed,
and had been qualified and had taken their seats as members of
the House of Representatives.
That, from the foregoing facts, it became a difficult and im
portant duty to so apply the principles of the Constitution and
laws as to correctly ascertain whether the two bodies thus
assembled were the respective branches of the Legislature, or
whether there were such defect and irregularity in the organiza
tion of either body as to preclude it from the legal discharge of
legislative duties.
That, by the fifth section of the schedule in the Revised Con
stitution of the 26th of October, 1832, it was provided that the
members of the Legislature first thereafter to assemble should
be elected on the first Monday and day following, in December,
1832, but to continue in office only until the next general elec
tion, which should be held on the first Monday and day follow
ing, in November, 1833, and that, from the latter date, elections
should be biennial.
That, in pursuance of these provisions, the members elected
on the first Monday and day after, in November, 1833, alone
composed and continued the Legislature until the regular elec
tion in November, 1835.
The committee deduced the icAlawing postulata from the pro
visions of the Revised Constitution :
First. That the Legislature was of two years' continuance.
Second. That general elections were fixed at the expiration of
every two years.
Third. That they date their commencement from November,
1833. Fourth. That representatives should be chosen every two years.

170 BENCH AND BAR OF MISSISSIPPI.
Fifth. That the tenure of their office was for the term of two
years. They then pleaded, in support of their views, the apportion
ment acts, and the disruption of existing assignments by the ad
mission of the new members, but admitted the debatable ground
presented by the following provision of the Constitution :
" The Legislature shall, at their first session and at periods of
not less than every four nor more than every six years until the
year 1845, aud thereafter at periods of not less than every four
nor- more than every eight years, cause au enumeration to be
made of aU the free white inhabitants of this State, aud the
whole nwfhber of representatives shall, at the several periods of
making such enumeration, be fixed by the Legislature, and ap
portioned among the several counties, cities, or towns, entitled
to separate represen tation ,_ according to the number of free
white inhabitants in each, aud shall not be less than thirty-six
nor more than one hundred : Provided, however. That each
county shaU always be entitled to at least one representa
tive." This the committee endeavored to parry by arguing its want
of consistency : That one of the principal rules laid down, not
only to point the acumen of the jurist, but founded in the
plainest dictates of common-sense, to direct the mind in ascer
taining the object and meaning of any instrument, is to consider
it as a whole, and so to construe it, if possible, that so.me sense
and consistency shall be found in all its parts.
That it could never be beheved, because absurd and irra
tional, that any instrument, wiUingly aud honestly executed,
could at the same time be intended to contain rules or princi
ples in direct opposition to each other. More assuredly was this
true of an instrument containing the great and fundamental
rules for the government of a free people, and drafted with that
deep reflection and careful deliberation which it must be be
lieved were bestowed upon it by those appointed to discharge
the high and solemn trust of its preparation. That it was
scarcely conceivable that an instrument executed under such
circumstances, where every line was scanned and canvassed and

STEPHEN COCKE. 171
debated for weeks together, could possibly contain principles of
an unqualified contradiction.
Keeping in view these principles and the provisions of the
Constitution, the committee proceeded to ask," Whether before
an enumeration had been actually made of the free white in
habitants, etc., as directed, there was any mode, directly or in
directly, by which the apportionment of senators and representa
tives could be changed without a palpable violation of the Con
stitution, which provided that, until the first enumeration should
be made, the apportionment should remain as was then fixed by
law. They contended that the clause providing for " at least
one representative from each county" was not a substantive and
independent right attaching as an incident to each county at its
creation, and to aU counties by virtue of their existence as such,
but that it was au imperative direction to the Legislature to
guide it at the time of fixing the apportionment of representation.
On the creation of a new county, " when," say they, " does this
right of representation attach ? On enacting the law forming
the new county ? Without further legislation, how is the new
county to organize ? When and how shall its elections be
holden, and who shaU be its returning officers ?" That it
could not be presumed that any would contend that a new
county, on its mere creation as such, could efi'eotually prefer its
representative pretensions based upon this proviso, as s-mJ-
stantive, unqualified, and independent.
Such were some of the grounds urged by the committee in
support of their conclusion, which was that the body then
assembled in the House of Representatives was not, in verity,
the House of Representatives of the State of Mississippi.
This report was adopted by the Senate, to which Mr. Cocke
dissented, and offered the following protest :
" The undersigned Senator, from the senatorial district com
posed of the counties of Monroe, Lowndes, and Rankin, asks
leave to enter his protest against the agreement of the Senate
to the report made by the select committee, to whom was
referred certain resolutions by the Senate, seeking to inquire
into and make report, whether the two bodies, of which the

172 BENCH AND BAR OF MISSISSIPPI.
Senate is one, and now assembled under executive convocation
as the Legislature of the State of Mississippi, be or not the
Legislature recognized and established by the Constitution aud
laws of the land.
" In looking into the said report, the attention of the under
signed was strikingly called to the readiness of the said commit
tee to vindicate the constitutional organization of the Senate, and
thereby their own qualifications. This was within the admitted
constitutional province of the Senate ; and had that body con
tented itself with its own organization, the important legislation
required by the country could have proceeded harmoniously to
its legitimate consummation. But in the proceedings aforesaid
the Senate has not only eulogized its own organization, but has
usurped the province of declaring the organization of the House
of Representatives, 'the co-ordinate branch of the Legislature,'
obnoxious to the Constitution. The right of the Senate to
assume such an attitude is not to be found in any article of the
Constitution, is a violation of the common rules and courtesy
necessary in all legislation, is altogether unprecedented, and is
without all legitimate principle. The only articles in the Con
stitutiou which bear at all on this branch of the subject con
tain the following language : ' Each House shall judge of the
qualifications and elections of its own members.' ' Each House
may determine the rules of its own proceedings,' etc. The un
dersigned is therefore compelled to pronounce that the Senate,
in taking jurisdiction of the subject at all, hath assunaed a
superintending and appellate control over the exclusive province
of the House of Representatives, denied to the Senate by the first
principles of the Constitution. It is impossible to read the Con
stitution of this State without being impressed with the fact
that the convention, in making the distribution of the powers
of government, assigned them to three distinct departments :
those which are legislative to one, those which are judicial to
another, and those which are executive to another, and as much
right had the Senate to usurp the executive and judicial
authority of the State, as the exclusive legitimate province of the
House of Representatives.
" The distinctive character of the representative principle of

STEPHEN COOKE. 173
our government is, that the people in the distribution of the
powers have kept them separate, and declared that ' no person
or collection of persons being of oue of the departments shall
exercise any power properly belonging to either of the others. '
They have alike reposed confidence in each, have required of
each the same moral sanctions, and made each responsible to
them for the faithful discharge of public duty. The House of
Representatives, by admitting the members from the new coun
ties to quahfy and take their seats, acted within its exclusive
jurisdiction. The Senate hath therefore assumed an unwar
rantable interference with matters which the Constitutiou has
wisely allotted to the determination of others.
" The evidences of the constitutional organization of the
House of Representatives and of the Senate were at the com
mencement of this session reciprocally communicated to each
other and they united in the passage. of a joint resolution ap
pointing a joint committee to inform the Governor of their read
iness to proceed to business. This committee performed its
duty, and both Houses duly received the Governor's message.
The undersigned had hoped that these proceedings were indica
tive of the disposition of the Legislature to enter upon the dis
charge of its duties ; but this hope, he soon found, was illusory,
and the proceedings of the Senate hath resulted in the sena
torial declaration that there is no House of Representatives, and
thus concluded this session of the Legislature. ' '
Mr. Cocke then proceeded to argue that apportionments were
to be made by the Legislature at stated periods, and not oftener
than once in four years ; whereas new counties might be created
at every session, and that as the liability of taxation* followed
immediately upon the erection of a new county, the right to
representation was a substantive, independent, and immediate
right, recognized and provided for by the constitutional clause
declaring that every county should have at least one representa
tive ; and that consequently it was impossible for the Constitution
to contemplate the existence of a new county for four or more
years, bearing all the burdens of government with no voice in
its legislation. This was the sum and substance of his argu
ment, which he did not, however, express ,in very elegant or

174 BENCH AND BAR OF MISSISSIPPL
forcible language, but with sufflcient clearness for easy compre
hension. The position taken by Mr. Cocke was also maintained by
Governor Runnells, who, in a communication made to the Senate
in answer to a notification of its intention to adjourn that day,
declared that " The right of a bare majority of the Senate, or
indeed the entire number of that body, to adjudge of the consti
tutionality of the House of Representatives is denied in the
broad and unquestionable language of the Constitution. " Upon
the reception of the message containing this clause the Senate
immediately adjourned sine die.
The House then, refusing to acknowledge the adjournment of
the Senate for a longer space than three days, appointed a com
mittee to apprise the Governor that the two Houses of the Legis
lature had disagreed as to the time of adjournment, whereupon
his Excellency issued his proclamation proroguing the Legisla
ture until the next regular session, and it accordingly stood
adjourned. In 1845 Mr. Cocke was elected Chancellor of the State.
This offlce he held for the fuU term of six years. He was not
popular as chancellor, aud acquired no distinctive eminence on
the bench. His elevation was, no doubt, due in a great meas
ure to his popularity in the Legislature, and to his efforts in
behalf of the new counties.
His decisions manifest neither a high degi'ee of legal acu
men nor lucidness of style, but by patient and laborious applica
tion he succeeded in keeping the beaten track of his more emi
nent predecessors, and availed himself closely of precedents.

CHARLES SCOTT. 175
CHARLES SCOTT.
¦" Chancellor Scott was born in Knoxville, Tennessee, on the
12th of November, 1811. He was a descendant of a Virginia
family, noted for its production of many distinguished soldiers
and eminent statesmen. His father, Edmond Scott, was an
eminent lawyer and judge, distinguished for his eloquence and
ability, and presided for nearly thirty years as circuit judge of
the Knoxville district.
Major Joseph Scott, the grandfather of Charles, was an offi
cer under Washington in the Continental army ; was severely
wounded at the battle of Germantown, and after the war was
appointed Marshal of Virginia by President Jefferson. Major
Scott's brother. General Charles Scott, was also a distinguished
Revolutionary soldier, and afterwards became Governor of Ken
tucky. Charles Scott first began the practice of law in .Nashville, Ten
nessee, where he married, and soon afterwards removed to Jack
son, Mississippi, and there pursued his prof ession in copartnership
with George S. Yerger, who had married his sister. This firm
was eminently successful, and enjoyed distinguished reputation ;
and the ability and stanch integrity of Charles Scott, together
with his high sense of honor and amiability of character, com
mended him so highly to the people that in a few years he was
elected to the office of Chancellor of Mississippi, and long pre
sided over the Superior Court of Chancery with great ability,
and with the universal commendation of both bar and people.
It was he who first rendered the decree in the great case of
Johnston vs. the State of Mississippi, establishing the liability
of the State for the payment of the bonds of the Union Bank,
that case having been first instituted in the Chancery Court ;
and, notwithstanding that the popular sensibilities were adverse
to the result, the ability, purity, and sincere integrity, which
characterized his decision, caused it^to be generally received as
a satisfactory emanation of conscientious duty. It was affirmed
by the High Court of Errors and Appeals.
In 1859 Chancellor Scott removed to Memphis, Tennes
see, where, he conceived, a broader and more prolific field was

176 BENCH AND BAR OF MISSISSIPPI.
presented to the practice of his profession, which he there en
tered upon with the opening prospects of a briUiant career, but
so soon as the clouds of war began to gather along the horizon
he returned, in 1861, to Jackson, Mississippi, determined to cast
his lot with his adopted State in the impending struggle. He
had been a devoted friend of the Union, but when Mississippi
seceded, he promptly yielded to the demands of duty, and his
heart and hand became warmly enlisted in her cause. He
lived, however, but a short time after his return to Jackson,
where he died, and was buried by his beloved brethren of the
Masonic fraternity.
Chancellor Scott was a mo'st devoted Mason, and as such had
a national reputation. He was the author of two Masonic
works, which commanded attention not only from the members
of the craft, but from the general public, being noted for the
learning and research displayed by their author, and also for
the chaste style in which they are written. These works,
" The Keystone of the Masonic Arch," and " The Analogy of
Ancient Craft Masonry to Natural and Revealed Religion,"
still find a place in the library of every learned brother of the
ancient order. Their author was for many years Master of
Silas Brown Lodge, in Jackson, and afterwards was Grand Mas
ter of the Grand Lodge of Mississippi.
Chancellor Scott was not only an ardent and thorough stu
dent of the law, but he was also a ripe classical scholar, and
was familiar with the standard poets and writers of modern
times, particularly surpassing most of his contemporaries in his
knowledge of that greatest of all modem poets, Shakespeare.
His researches had even extended farther, aud much of his
time was devoted to sacred writers, while his knowledge of the
Bible was thorough and extensive. His studies in this direc
tion had convinced him of all the truths of religion, and he
was au exemplary Christian. This sentiment pervaded his
whole nature, and quickened a tender conscientiousness and
amiability, which not only rendered him an ornament to society,
but especially fitted him for the high office of Chancellor. He
was a man of noble candor and knightly courtesy, gentle and
affable in his manners, devoted to his friends, unwearied in the

JOSEPH W. CHALMERS. 177
performance of duty, aud unswerving in fidelity to his high
trust. A bright Mason, he cherished the virtue of charity ; a culti
vated lawyer, he loved the principles of justice ; an able and
upright judge, he promulgated the purest doctrines of equity ;
and a good man, his heart flowed in sympathy and generosity
toward his fellow-men. Many of his comrades and friends are
still living in Mississippi, and cherish his memory with feelings
of sincere affection.

JOSEPH W. CHALMERS.
The subject of this memoir was born in Halifax County, Vir
ginia, in the year 1807. His father. Captain James Chalmers,
was by birth a Scotchman and a near relative of Dr. Thomas
Chalmers, the celebrated Presbyterian divine. He emigrated
to America soon after the achievement of its independence, and
engaged flrst in mercantile pursuits and afterwards in planting.
His enterprise and industry met with adequate rewards, and he
became the possessor of a large plantation on Dan River, aud
the owner of numerous slaves. His son Joseph was destined
to the vocation of a merchant, and was placed at an early age
as a clerk in a mercantile' house, where he remained until he
arrived at the age of nineteen. But the mental restraints and
fettering routine of a life of trade were incompatible with the
cravings of his mind and the soaring desires of his ambition.
He had during his mercantile apprenticeship devoted every in
tervening opportunity to the cultivation of his literary taste
and to the acquisition of knowledge, and after the death of his
father, which occurred about this time, he determined to obey
the dictates of his desire to become a lawyer, and repaired to
the University of Virginia, where he spent two yea.rs, and then
entered the law office of the distinguished Benjamin Watkins
Leigh, in Richmond. On obtaining his license, he began the
practice of his profession in his native county, under every
promise which a thorough preparation and professional devotion
could engender, and with every prospect which a high order of
mental and moral qualities could vouchsafe to his ambition.
12

178 BENCH AND BAR OF MISSISSIPPL
At the age of twenty-three he married Miss Fanny Hender
son, daughter of Alexander Henderson, of Milton, North Caro
lina, and the grandniece of Hon. Leonard Henderson, Chief Jus
tice of that State ; and, in 1835, having sold his patrimonial in
terest to his older brother, he determined to seek his profes
sional fame aud his fortunes in the West, and emigrated to
Jackson, Tennessee. Here he at once took his position in the
front rank of the lawyers of the Western District, and was en
gaged in most of the important cases that came before the courts
of that section. He was oue of the counsel for the notorious
.John A. Murrell, when that famous robl^er was finally convicted
aud sentenced to the penitentiary at Nashville. While at this
bar, he recovered ten thousand doUars damages from a wealthy
young man who had deceived and ruined a poor young girl
lander promise of marriage, and his speech oh the trial of that
cause is still remembered by the old citizens of the country as
having been the most eloquent and pathetic ever heard at the
bar of the Western District.
In 1840 he removed to Mississippi, and located in the town
of Holly Springs, where he formed a copartnership with Judge
Alexander M. Clayton. This connection, however, subsisted but
a short time, and was dissolved by mutual consent. Mr. Chalmers
soon afterwards became the partner of Roger Barton, which as
sociation continued so long as they both lived, and constituted
the leading law firm of Northern Mississippi. Its practice em
braced a wide range, and was large in every branch of the pro
fession. This necessitated a division of their labors ; and while
Mr. Barton devoted his attention chiefly to the criminal side of
the docket, Mr. Chalmers, whose mental traits and legal ac
quirements seemed equally adapted to either domain, attended
principally to civil cases and suits in chancery.
For a period of many years there were few cases of import
ance before the courts of North Mississippi in which the services
¦of these gentlemen were not engaged. They never prosecuted,
¦but so successful were they in criminal defences that through a
long series of years, during which they defended more than a
score of men for homicide, they never failed to obtain the ac
quittal of their clients. Chief among these defences were those

JOSEPH W. CHALMERS. 179
of Dyson, Nelms, and Slodge, each of whom was charged with
murder, aud their crimes attended with desperate and apparently
hopeless circumstances.
In 1842, the Legislature of Mississippi established a vice-
chancery district composed of the northern counties of the
State, and provided for the election of a vice-chancellor, who
should hold his court in each of these counties, and which
should have concurrent jurisdiction with the Superior Court of
Chancery, of all cases in equity where the amount involved in
the controversy did not exceed five hundred thousand dollars.
To this bench Mr. Chalmers was immediately appointed by
Governor A. G. Brown, and held this position until the next
regular election in 1843, when he was succeeded by Hon.
Henry Dickenson, of Columbus. He discharged the duties of
this office with distinguished ability, with a conscientious adher
ence to the principles of equity, and with a dignity and purity
which gave elevation and honor to the new court.
In 1846, Judge Chalmers was appointed by Governor Brown
to the seat in the United States Senate made vacant by the ap
pointment of Hon. Robert J. Walker to the position of Secre
tary of the Treasury, and was subsequently elected by the Legis
lature for the short term ; at the expiration of which he de
clined re-election and was succeeded by Hon. Jefferson Davis.
While in the Senate he was a warm supporter of President
Polk and the measures of his administration. His speech in
support of the Mexican War, and that in maintenance of the po
sition taken by the United States in the dispute with Great Brit
ain concerning the Oregon boundary, were regarded as the ablest
delivered in the Senate on these questions.
During his term in the Senate he maintained the most cordial
relations with Mr. Calhoun, and renewed with him a friendship
which had originated during the nullification troubles of 1832,
when Mr. Chalmers offered his services to the State of South
Carolina, and was made a major in the army which that State
contemplated raising for the defence of its rights.
In 1848, he was chosen elector for the State at large in the
campaign for Cass and Butler, and made many able and elo
quent speeches during that canvass. He was an ardent State

180 BENCH AND BAR OF MISSISSIPPL
Rights Democrat, and prominent in all the councils of his party
and the State canvasses for many years. He was an enthusias
tic supporter of John A. Quitman and Jefferson Davis in their
contests with Henry S. Foote in 1851. He was a devoted
Mississippian, and on his death-bed expressed the wish that
none of his sons might ever abandon the State, but that they
might live and die faithf ul citizens of Mississippi. He died at his
residence in Holly Springs, in June, 1 853, in the forty-seventh
year of his age, from the effects of dyspepsia, from which he had
been a sufferer for many years. He left six children, four
sons and two daughters, only two of whom are now living —
General James R. Chalmers, member of Congress, and Hon. H.
H. Chalmers, Chief Justice of the Supreme Court of Mississippi.
As a lawyer Judge Chalmers was thorough and profound.
He possessed a vigorous grasp of intellect, a keen and ready ap
prehension, which could penetrate the most intricate combination
that could be woven from the web and woof of subtlety. His
judgment was clear and accurate, and reached with equal facil
ity to the gist of principle ahd the motive springs of action.
His official and professional character exhibited in a high degree
that difficult combination, a suavity of manner with the energy
of dispatch, and blended the purity of Sir Thomas More with
the expedition of Lord EUesmere.
But if he was eminent as a lawyer and judge, he was no less
distinguished for the amiable qualities of the man and the pure
and ardent sentiments of the patriot. His political convictions
were deep-seated and unalterable, and he was styled the
" Apostle of Democracy" in North Mississippi, an appellation
which his distinguished services in promoting the interest of his
party justly merited. He labored incessantly and arduously for
its success, aud with a confidence aud vigor that kindled the
hope of triumph even iu the gloom of defeat. He was a fluent
and forcible speaker, possessed a tasty and classical command of
language, and his elocution was easy and elegant. WhUe he
was invincibly aggressive in the performance of duty and the
advocacy of principle, his deportment was characterized by a
modesty and decorum which asserted the accomplished gentle
man and magnanimous man.

JAMES M. SMILEY. 181
As a lawyer, as a judge, and as a statesman. Judge Chalmers
was responsive and equal to every demand of duty, met with
promptness every requirement of honor and patriotism, and ac
quitted himself with distinction in every sphere of his life. He
was enterprising, public-spirited, and generous, and was consid
ered as a father by the junior members of the bar and the young
men of his town, and by his whole people as an able, upright,
and useful man, whose memory they delight to cherish, and
whose example should b^ followed by all who seek the path of
virtue and the road to true greatness and honor.

JAMES M. SMILEY.
James Malcolm Smiley was born in Amite County, Mississip
pi, on the 25th day of October, 1812. His early educational ad
vantages were the best which the newly-settled country could
afford, and being of studious habits and ambitious disposition,
he availed himself to the utmost of his opportunities. His par
ents encouraged his thirst for knowledge, and while quite young
he was sent to Jefferson College, at Canonsburg, Pennsylvania,
where he remained until the establishment of Oakland CoUege,
in Mississippi, when he returned to his native State and entered
that institution, which was then under the management of Dr.
J. Chamberlain, and graduated there in 1834, being the only
member of his class and the first graduate of the college.
He soon afterwards began the study of law in the office of Wil
liam Dillingham, Esq., who was then a lawyer in large practice
at Liberty, in Amite County. Here he pursued his studies one
year, and then repaired to New Orleans, where he took a legal
course under Hon. Alfred Hennen, and obtained license to prac
tise under the laws of Louisiana. He then pursued a course of
studies iu the law department of Transylvania University, at
Lexington, Kentucky, and graduated there. Returning to his
nati ve county, he began the practice of the law by himself, in the
year 1837, but afterwards formed a copartnership with Hon.
Van Tromp Crawford, of Amite County, which continued until
the latter was elected to the circuit bench, after which Mr. Smi-

182 BENCH AND BAR OF MISSISSIPPI.
ley again practised by himself, doing an extensive and lucrative
business in his own and adjoining counties.
In 1841 he married Mrs. Carroll, a most estimable lady of
Amite County, and during the same year was elected to repre
sent his county in the popular branch of the State Legislature.
To this office he was twice re-elected, and closed his legislative
career in the spring of 1846.
In the session of 1846, an act was passed by the Legislature
organizing what was termed a " vice-chancery district," includ
ing all the counties lying south of the tier through which the
Vicksburg and Meridian Railroad passes, and in the summer of
that year, Mr. Smiley was elected vice-chancellor of this district,
beating his popular opponent, Hon. Powhatan EUis, by a large
majority. The district was divided into sub-districts, and courts
were required to be held twice a year at Natchez, Monticello,
Mississippi City, and Paulding. The vice-chancellor, although
comparatively a young man, was found to possess abilities equal
to the position that he held, and in 1850 he was re-elected with
very little opposition, and held the office until near the close of
the year 1852, when he resigned, and removed to the city of New
Orleans. He there opened an office, and was soon engaged in a lucrative
practice iu the State and Federal courts. He was employed by
Mrs. Myra Clark Gaines, widow of General Gaines, in ^he cele
brated Gaines case then pending in the courts, and it was at his
suggestion and mainly through his efforts that the important and
indispensable step of probating the will of Daniel Clark, upon
which the claimant's success depended, was accomplished ; so
that to the skill and labor of Judge Smiley Mrs. Gaines is mainly
indebted for aU the benefits that have accrued to her in that
case ; and it is singular that all the compensation he received for
his services in the matter amounted to a mere trifle.
In 1853 he had the misfortune of losing his amiable and de
voted wife, who died of yellow fever. He remained in New
Orleans until the year 1859, when he returned to Amite
County, and was married about this time to Mrs. Southgate, of
Newport, Kentucky, who still survives him, and cherishes his

JAMES M. SMILEY. 183
memory with a fondness characteristic of the truest and noblest
of her sex.
He resumed his practice in Amite County with fiattering
- prospects, but the outbreak of the great civil war so paralyzed all
business that there was but little transacted in the courts during
its existence. In October, 1865, he was elected circuit judge of
the district including the seven counties in the south-west por
tion of the State, and held the office under that election until he
was appointed by the military authorities, from which time he
continued as judge until the adoption of the new Constitution,
when he was again appointed by Governor Alcorn in 1871, and
again, by Governor Stone in 1876, and continued on the bench
until January, 1878, when increasing ill-health and infirmities
compelled him to resign. He continued to reside at Magnolia,
in Pike County, until the 8th of April, 1879, at which time he
died, and was buried in Amite County, near the place of his
birth. During the last two years of Judge Smiley' s term of office,
he ordered the release on bail of several prisoners who were
charged with murder, for the conviction of whom there was a
clamorous popular demand, and which subjected his conduct to
a fierce animadversion. , The feeling indeed became fiercely de
nunciative, yet Judge Smiley pursued the even tenor of his
way, and was never known to take the shghtest notice of the
dissatisfaction. In every instance in which the bail was granted
the parties appeared for trial, and not iu a single case was
there a conviction by the jury of murder.
In other instances he was censured for not bringing certain
persons to a speedy trial who were accused of crime, and who
were shielded behind the subtlety of appliances over which it is
doubtful whether the judge could have any control ; but the
censure was nevertheless severe, and he was even threatened
with impeachment.
The main charge against Judge Smiley was that he had ruled
that murder was bailable. The Constitution of Mississippi de
clares that all cases are bailable except iu " capital offences
where the proof is evident or the presumption great," and a law,
passed in 1875, gave to the jury the power of fixing in their

184 BENCH AND BAR OF MISSISSIPPI.
verdict the penalty of murder at imprisonment for life. But as
capital cases are defined to be those in which the penalty is
death. Judge Smiley, it seems, was of the opinion that, in view
of this definition of th^ term " capital offenses," the verdict of
the jury was necessary to determine the character of the crime,
and that consequently all cases were bailable before conviction.
Aud although the Supreme Court afterward declared that such a
position was wholly untenable, yet it is difficult to see upon what
grounds the opinion of the aged judge could be assigned as a
feature of impeachable corruption.
He was also accused of fixing inadequate bail, and particularly
was he censured in this respect in the case of the State vs.
Bethea. In this case the prisoner was charged with murder,
and Judge Smiley fixed his bail at two thousand dollars ; but,
while the sum seems small as a recognizance to hold one to trial
for his life or perpetual imprisonment, in view of the just and
equitable spirit which pervades the law of bailment, he was
surely justifiable in taking into consideration the poverty of the
accused and of the country. It may have been as difficult for
Bethea at that time to procure satisfactory surety for two thou
sand dollars as for other men in other times to find surety for
twenty thousand, and the weight of such considerations rests in
the sound discretion of the judge.
In politics Judge Smiley was a Ufe-long and ardent Whig,
and prior to his promotion to the bench was a strenuous and
active advocate of the measures of that party ; but when he
ascended the tribunal of justice, he abated all political predilec
tions and spirit of partyism, and devoted all his powers to a con
scientious and equitable administration of the law, and observed
that reticence in regard to politics traditionally cherished by tiie
legal gentlemen of the old school.
Judge Smiley possessed a remarkably kind, gentle, and ami
able disposition, and was an attractive and entertaining compan
ion. His conversation was free from anything that partook of
censure, animadversion, or ridicule, and with the members of
the bar he enjoyed the most intimate and fraternal relations.
This was forcibly exemplified on the occasion of his resignation
as judge of the Circuit Court. When it was understood at

JAMES M. SMILEY. 185
Natchez that he had determined to take that step, the members of
the Adams County bar held a meeting and passed resolutions ex
pressive of regret at the approaching tennination of the pleasant
relations existing between them and the circuit judge, and pre
sented him with a silver cup appropriately inscribed, and accom
panied by kindly remarks and expressions of esteem, which were
responded to in feeling terms by the judge. Similar demon
strations of regard were made by the bar of other courts of his
district. His abihty as a lawyer and his character as a learned, upright,
and fearless judge are well known to the older members of the
profession. He was a profound and polished judicial scholar,
with a clear head and accurate powers of reasoning. His ad
dresses as an advocate to court aud jury, were characterized by
clearness, elegance, and force, and his arguments were illustrated
by the most lucid and incisive logic. His maimer was kindly
and concihatory, and his voice and facial expression pleasing
and persuasive. His oratory was usually plain and pointed, and
if embellished with rhetorical ornament, it was only for the pur
pose of illustrating his thoughts. He was oue of those lawyers
who brought to the Bench and Bar of Mississippi something of
the prestige of olden ti'mes.

CHAPTER VI.

THE CONSTITUTION OF 1832— REMODELING OF THE JU
DICIARY—THE BENCH— EMINENT JURISTS— 1832-1850.
WILLIAM L. SHARKEY  COTESWORTH P. SMITH  DANIEL W. WRIGHT 
JAMES F. TROTTER  P. RUTILIUS R. PRAY  JOSEPH S. B. THACHEK.-
Bt the Revised Constitution of 1832 the entire system of the
judiciary in Mississippi was remodeled, and a broader and more
expeditious channel given to the administration of justice. The
provisions of that Constitution in reference to the judiciary were
in substance as follows :
The first section of the fourth article declared that the judi
cial power of this State should be vested in one high court of
eiTors and appeals, and such other courts of law and equity as
provided for in that Constitution.
By the second section, the high court was to consist of three
judges, any two of whom might form a quorum, and the Legis
lature was required to divide the State into three districts, the
qualified voters of which were to elect one of these judges from
their respective districts for the term of six years.
Section three required that the office of one of these judges
should be vacated in two years, and of one in four years, so that
at the expiration of every two years there should be au election
of one of the judges.
Section four confined the jurisdiction of the court to such as
properly belongs to a court of errors and appeals.
Section five provided for the filling of vacancies by election ;
but the Governor might appoint if the unexpired terra did not
exceed one year.
The sixth section reqm'red the judges to be thirty years of age
at the time of their election.

188 BENCH AND BAR OF MISSISSIPPI.
The seventh required the court to be held twice a year, at such
place as the Legislature should direct, until the year 1836, and
afterwards at the seat of government.
The eighth section prescribed the manner in which the re
spective tenures of the judges chosen at the first election should
be decided : that is, as to which should hold for two years, which
for four, and which for six years.
Section nine prohibited a judge from sitting in a cause in.
which he was interested, and provided for the appointment by
the Governor of a competent person to sit in the place of a judge
so disqualified.
The tenth section provided that the salaries of the judges
should not be diminished during their continuance in office.
Sections eleven and fifteen inclusive provided for the organi
zation of circuit courts, and ordained that the circuit judges
should be elected in their respective districts, for the term of
four years, and should reside in their districts, and that the dis
tricts were to contain not less than three nor more than twelve
counties. Original jurisdiction in all matters, civil and criminal, was cen
tered upon the circuit courts, provided that in civil cases the
sum in controversy exceeded fifty dollars. These conrts were
to be held twice a year in each county • in the State. The
judges were permitted to interchange circuits, and were to re
ceive a compensation, which was not to be diminished during
tlieir continuance in office.
Section sixteen estabhshed a separate superior court of chan
cery, with fuU jurisdiction in all matters of equity, aud provided
for the election of a chancellor by the qualified' voters of the
State, for a term of six years, who should be thirty years of age
at the time of his election ; but it also gave the Legislature the
power of conferring equity jurisdiction on the circuit courts
of each county in all cases where the amount in controversy did
not exceed five hundred dollars ; also in all cases of divorce and
for the foreclosure of mortgages.
The eighteenth section provided for the establishment of a
court of probate in each county of the State, with jurisdiction
in all matters testamentary aud of administration, in all affairs

lUiffrav'BdIvBOGKlTiI] ^Sil5S."i:T'.'v"r.,.rKri-

;rTaph>7 SEUTXEP^ofJaJ'/anMiES,

Snttrf-it 'cco'dmi; I'j .i t rf ':<monss^AlU- ^Zln/ "¦MTm^h.fhtelTixtBfSii.lib^xcmfG'P'a'-' ¦'"^' nv.'

WILLIAM L. SHARKEY. 189
pertaining to orphans and in the allotment of dower ; in all
cases of idiocy and lunacy, and of persons non compos mentis.
The judges of this court were to, be elected by the qualified
electors of the respective counties for the term of two years.
Section nineteen provided for the appointment of the clerk
of the high court of errors and appeals, who should hold his
office for the term of four years, and for the election of the
clerks of the circuit and probate courts, whose respective terms
should be tM'o years. Sections twenty and twenty-one provided
for a board of police for each county, to consist of five persons,
which should have the supervision of roads, highways, bridges,
ferries, and of all matters of county police, and prescribed their
mode of election and qualifications.
The twenty-second section provided for the election by dis
tricts of justices of the peace in each county, aud limited their
jurisdiction to cases involving not more than fifty dollars.
Section twenty-four authorized the Legislature to establish,
from time to time, such inferior courts as might be deemed
necessary, and to abolish them whenever it might be deemed
expedient. Such was the status of our judiciary on the adoption of the
Revised Constitution of 1832. Let us now tum to the distin
guished gentlemen who administered the laws under this new
system.
WILLIAM L. SHARKEY.
The professional minds of lawyers and judges maybe divided
and aptly assigned to two separate and distinct classes, which
may be designated respectively the perceptive and the memo-
rative. To one class belong those whose legal knowledge and
perception are coterminous with the inscriptions of memory,
and consist of a vague medley of garnered precedents and au
thorities, which must be resorted to and invoked on all occasions
when it becomes necessary to grapple with any question of im
portance. Their knowledge of law is like that of the preco
cious youth who learned mathematics by committing Euclid to
memory without comprehending a single principle involved, or

190 BENCH AND BAR OF MISSISSIPPI.
how a single proposition was proven. To this class usually
belong those whose general education is limited, or whose
powers of perception hav^ never been whetted by close aud
continued application, and always those who are naturally de
ficient in the organs of analysis and abstraction.
The other class comprises those who depend upon their owu
conscious resources, who combine and embody the principles of
law with their own perceptions, aud mingle them with the ele
ments of their own judgment. Like Lord Thurlow, they do
not inquire so much " how the case was decided," as " why it
was so decided." With the first class, law is simply the result
of memory : an undigested mass, a lurid and confused super
ficiality, a medley of incomprehensibilities ; while with the
other class it is an emanation of their own minds, and they speak
as authorities themselves. Such was eminently the case with
Chief Justice Marshall, whose decisions required no authorities
to support them; and such was the character of the judicial mind
of William L. Sharkey, who for eighteen years presided in
Mississippi as the Chief Justice of her High Court of Errors
and Appeals.
In treating of the character of this distinguished jurist, it
will be difficult to steer between the Scylla of injustice on the
one hand and the Charybdis of adulation on the other. His
was a. character of which every feature belongs to the domain
of greatness, and whose composition is found only in the lofti
est spheres of human existence. William Lewis Sharkey was
born near a place called at that time Mussel Shoals, on the
River Holston, in the State of Tennessee, during, the year
1797. His maternal grandfather, Robert Rhodes, was a native
of Germany, from near the city of Cologne, on the Rhine. His
father, Patrick Sharkey, was a native of Ireland, and was reared
in the vicinity of Dublin. He came to America when a young
man, in company with his elder brother Michael, who was
afterwards the captain of a Virginia Company in the Conti
nental army during the War of the Revolution ; at the termi
nation of which, Patrick found his way to the new and beautiful
country between the Cumberland and the Alleghanies. Here
he married and settled, and here resided until his family con-

WILLIAM L. SHARKEY. 191
sisted of a wife and three sons — William Lewis, Jacob Rhodes,
and James Elliot.
In the year 1803, Patrick Sharkey removed his family to the
Mississippi Territory — .a country which at that period offered
but the roughest features of life, especially to those who were
destitute of means sufficient to command the few costly com
forts aud conveniences that it was possible to obtain in a new
and thinly settled community. The family fixed their abode
on a small farm on the Big Black River, in Warren County,
near the village of Warrenton, then the county seat. Here,
amid the heterogeneous population of a country whose richness
of soil was attracting all classes of people from the States, Will
iam Lewis Sharkey grew to that manhood which was destined
to shed such lustre upon his State and upon his age.
Compelled by the straitened circumstances of his parents
to perform the labors incident to a farm, he had but little op
portunity to avail himself of even the limited educational ad
vantages afforded by the primitive schools of the Territory ;
but, as if with an intuitive consciousness of a grand destiny, the
boy labored on, devoting his leisure hours to the acquirement
of those rudiments which were to kindle the fires of genius and
emblazon the laws of his country.
Before the expiration of his fifteenth year he entered the
army of General Jackson as a substitute for his uncle, was pres
ent at the battle of New Orleans, and witnessed the overthrow
of the British on the plains of Chalmette, on the memorable
8th of January, 1815. Both of his parents having died, he
found on his return the horrors of orphana,ge superadded to the
other hardships under which he labored, and his two younger
brothers depending upon his care. Yet, with a judgment and
discretion rare in one of his years, he determined to remain
upon the farm until he could earn and gamer sufficient means
to enable him to gratify that desire for knowledge which,
though thwarted by untoward circumstances, had always burned
in his bosom.
This purpose he achieved in a few years, and with determi
nation in his heart, ambition in his soul, and the proceeds of
the. sweat of his own brow in his hands, he repaired to Green-

192 BENCH AND BAR OF MISSISSIPPI.
ville, Tennessee, and at a school of some note in that place
acquired, by close application, a respectable knowledge of the
English branches in a comparatively brief period. He then
visited Lebanon, Tennessee, and there read law a short time,
under the instruction of the distinguished Dr. Hall.
On his return to Mississippi he entered the office of Messrs.
Turner & Metcalf, an eminent law firm in the city of Natchez.
Having now for the first time the practical advantages suitable
to his inclination and commensurate with his ambition, he ap
plied himself to the study of law with the utmost interest and
assiduity, and with all the vigor of his nature. The result was
speedy and proportionate with his efforts, and in 1822 he was
admitted to practice at the bar of the Supreme Court, and estab
lished his office at Warrenton.
Here his ability, integrity, and application, soon fruited into
a respectable and growing practice, but on the removal of the
county seat of Warren County to Vicksburg, in 1825, he moved
his office to that place, and formed a copartnership with the dis
tinguished John I. Guion. Here, under more favorable aus
pices, he rqse rapidly in professional reputation, and soon at
tained a lucrative practice.
In 1827 Mr. Sharkey was chosen the representative of Warren
County in the Legislature, in which he was assigned to the Ju
diciary Committee, with Judge Pray and General Quitman. In
this capacity a more ample opportunity was afforded him for
the exhibition of those emiuent features of his mind which
afterwards gilded his career upon the bench.
On the organization of the High Court of Errors and Appeals,
under the Constitution of 1832, he was elected by the people as
one of the three judges wliich composed that tribunal, and was
appointed Chief Justice, which position he held during eighteen
years. Prior to this he had been elected the circuit judge of his dis
trict, but held that office only a few months before he was pro
moted to the high bench.
About this time, Judge Sharkey married Mrs. Wren, widow
of Belfield Wren, an estimable lady, whose qualities of mind
and heart rendered her an eminently fit companion for the great

WILLIAM L. SHARKEY. 193
jurist, and who is yet living to cherish the memory of those
amiable qualities which so highly adorned his private character.
It has been said of poets that they are born such, and not
made ; and it is equally true that there are some men who seem
naturally fitted and destined for the station of judges : men
who possess great candor, in whose minds an acute discernment
and a sound judgment are predominating faculties, and to
whom the pursuit and attainment of justice afford the highest
mental gratification. To this class evidently belonged Hard
wicke, Eldon, Hale, Mansfield, Marshall, and Kent, and to these
I have no hesitancy in adding the name of Chief Justice
Sharkey. Judge Sharkey possessed in an eminent degree that quahty
so essentially requisite in a judge — a firm and unbending integ
rity. No circumstance could induce him to swerve from the
strict line of justice. His opinions are models of legal and
logical elucidation, and they all possess, as a prominent feature,
a thorough analysis of the case, with a view of setting forth in a
clear and unmistakable light the relations and rights of the
parties. His conclusions are never seized in a harsh and abrupt
manner, but are deduced along an illuminated path in a clear,
lucid, and logical method, so that when presented they readily
receive the homage of satisfaction. The style of his decisions
is forcible and elegant, rising sometimes to a chaste eloquence,
which is the only kind that the diction of law will permit.
During his long continuance upon the bench. Judge Sharkey
estabhshed many eminent precedents, and settled many ques
tions of law that had hitherto been held in conflict both in our
own courts and those of other States. He also made many
novel applications of the common law to render it conformable
to our polity and suitable to our condition and the state of our
society. These will be found sprinkled through many volumes
of the Mississippi State Reports.
The aU-pervadiug feature of his mind was a comprehensive,
vigorous common sense — a sagacity which, while it expanded to
the grandest outlines, did not despise or overlook the minutest
detaUs ; and his judgment found a subject in every concern of
Ufe. This faculty was the trident by which he so long ruled
13

194 BENCH AND BAR OF MISSISSIPPI.
the " vasty deep" of common-law and equity jurisprudence as the
Chief Justice of the High Court of Errors and Appeals. His
mental character was admirably adjusted for grapphng with
emergencies. He was never at a loss to find a clear path through
the most complex array of law and the most complicated state of
facts, and whenever in a cause there was au incongruity in ap
plying the common law to the incidents of society, he never
failed to sift from the antiquated principle some element com
patible with the justice of the case.
In 1850 Chief Justice Sharkey resigned, and resumed the
practice of law in Jackson, where he then resided. It is under
stood that this action was induced by pecuniary embarrassment,
arising from obligations which he had incurred as surety for
his friends, and which, notwithstanding the respectable salary
of his office, so rapidly diminished his means that he was com
pelled to return to the bar, which offered him much greater
emolument. Not long after his retirement from the bench he was appoint
ed by Mr. Fillmore, then President, as United States consul at
Havana. This he declined for like reasons — the state of his
private affairs. As a politician Judge Sharkey had few supe
riors in wisdom and purity, and it is a noteworthy fact that
during the whole time of his public services he was a stanch
Whig, while his constituency was as intensely Democratic. He
was bitterly opposed to the scheme of repudiation, which he
considered as both ruinous and dishonorable, and at the end of
his third judicial term, in 1847, he was opposed by a candidate
who was in favor of that policy, and with whom a large
majority of the people were in accord. Yet so unbounded was
his official popularity, and so great was the popular appreciation
of his services, he was triumphantly re-elected to the bench.
Judge Sharkey was a member of the celebrated Nashville
Convention, held in 1850, and was chosen the president of that
body, and in this capacity his great candor, firmness, and impar
tiality, together with his cheerful complacency and urbanity of
manners, gained for him universal respect and admiration. On
the adjournment of the convention he proceeded to Washing
ton where he was much consulted in regard to measures

WILLIAM L. SHARKEY. 195
proper for allaying the excited sectional feelings of that
period. While in Washington, President Fillmore tendered him the
position of Secretary of War, but this he declined, upon the
plea of his incompetency to perforni the duties pertaining to
that office. He was too much of an Antonine, both in principle
,ind disposition, to engage in the promotion of a pursuit which,
under ordinary circumstances, he considered as the disgrace and
calamity of human nature. He was emphatically a man of
peace, and during all those trying times which preceded, accom
panied, aud followed, the great civil war, his voice was continu
ally raised in its behalf. He was bitterly opposed to the seces
sion of the Southern States from the Union, and thought that
an antidote for its necessity could be found in a returning sense
of justice and in the fundamental law of the land.
He was a faithful devotee of the Constitution, and viewed it
as the true aud only palladium of national safety and national
happiness and prosperity ; hence throughout the long and
bloody contest his sympathies were decidedly on the side of the
Union — not that he did not view with pride and admiration the
glorious career of the Southern arms, and sympathize in all the
trials and woes of his people, but that his deep-seated principles
and unalterable convictions swayed the other attributes of his
nature ; and no sooner had the work of blood ceased than, throw
ing himself into the broad breach of reconstruction, he became
the faithful pilot and the Pythias of his people.
In consequence of his well-known attitude prior to and dur
ing the great struggle, he was appointed by President Johnson,
in 1865, Provisional Governor of Mississippi. The delicate and
ungrateftd duties of this office he performed, however, to the
great satisfaction of all parties, and at the first election under
the new system he was chosen a Senator from Mississippi in the
National Congress, but before his admission to this office, the
reconstruction policy of the President having been abrogated
by Congress, he was, together with the other Southern mem
bers, refused his seat.
This rebuff, which frustrated the efforts he contemplated for
the reconciliation of the two sections, was met with his usua 1

196 BENCH AND BAR OF MISSISSIPPI.
complacency and good-humor, and returning to Mississippi, he
quietly resumed his practice of law, which he continued to the
time of his death, which occurred in 1873. In manners Judge
Sharkey was kind and polished, and his conversation brUliant
and attractive. He was of a decidedly religious turn of mind,
and took great pleasure in examining and meditating upon the
truths of Holy Writ. He was a strict member of the Method
ist Episcopal Church, and died in the communion of that
sect. •
That was a beautiful idea in the philosophy of Zeno : that
we dwell within the body of God ; that He is the Soul of all,
and the universe is His body ; that the noble features of the
body are no less worthy of veneration than the divine and.
supreme attributes of the soul ; and this earthly veneration
consists in the love of virtue and the exercise of that which is
noble in the human character. The life of Judge Sharkey was
.a noble commentary upon this doctrine. He loved his fellow-
man, and his private and social life was as amiable and refining
as his public character was brilliant and elevating.
The simplicity of his virtues admitted no vanity or affecta
tion, and he enjoyed, with like modesty, the honors of his high
office and the veneration of society, while a cheerful and serene
temper asserted the benevolence of his nature.
The qualities of his heart were not strained, but flowed in
gushing torrents from deep and unfailing fountains ; and their
exercise found among his friends and associates a reciprocity
that but added intensity to their character.
Full of years and of honors, he carried with him to the grave
the love, the admiratiou, and the regrets, of his fellow-citizens.
His name is inscribed in letters of gold upon the jurisprudence
of Mississippi, and there it will remain so long as the voice of
justice shall be heard in the land, and will be handed down
from age to age, through the vastness of incomprehensible
time, as a magistrate distinguished and venerated for his talents
and integrity, a citizen honored for his splendid public services,
a man beloved for his untarnishable virtues.
But it now becomes necessary to close this sketch, however
imperfect it may be ; and with the hope that this feeble por-

WILLIAM L. SHARKEY. 197
traiture may prove an incentive, especially to the young mem
bers of the profession, to imitate the virtues of its subject, I will
close by introducing the resolutions passed by the members of
the bar of the Supreme Court of Mississippi, on the 19th of
May, 1873, iu reference to the death of Judge Sharkey, which
manifest in an eloquent manner the esteem in which he was
held by his brother members of the profession. The committee
reported as follows :
" The mortal life of William Lewis Sharkey has closed — a
life made honorable and distinguished by great public services,
which conferred enduring public benefits. In meeting together
to render a tribute to his memory, we are moved as weU by the
gratitude we feel for the rich legacy he has left us as by our
profound admiration for the ability which enabled him to be
stow it, and the just pride we feel in his widely extended fame.
In the infancy of the State he presided over her highest judicial
tribunal as Chief Justice ; expounding her Constitution and her
statutes, and expounding, illustrating, and enriching her juris
prudence ; and in the exercise of his high functions, not only
displayed a consummate abihty, but exalted the judicial office by
his integrity, firmness, and independence. We recall with
affectionate respect the mingled dignity and courtesy of his bear
ing on the bench, and the simphcity, decoram, and purity of a
private hfe united to such great talents and to such eminent
public virtues. And we bear testimony to his steadfast devo
tion to constitutional liberty, and to the ardent, pure, and
elevated patriotism which characterized his public and private
career. Therefore,
" Resolved, That we cherish a profound respect and venera
tion for the memory of WiUiam Lewis Sharkey, gratitude for
his great public services, and a just pride in his well-earned
fame ; and we tender our sympathies to his family.
' ' Resolved, That we wear the customary badge of mourning
for thirty days.
" Resol/oed, That the Supreme Court of this State and the
Circuit Court of the United States be requested to order the
foregoing to be spread upon their minutes ; that a copy of the
same be forwarded by the chairman of this meeting to the

198 BENCH AND BAR OF MISSISSIPPI.
widow of the deceased, and that the papers of this city and
State be requested to publish them.
" J. W. C. Watson, A. H. Handy,
" Geo. L. Pott'ee, D. Shelton,
" W. P. Haeeis, Committee."
The Chief Justice responded as follows :
" The court cordially unite with the members of the bar in
their tribute of respect to the memory of our departed friend,
William L. Sharkey, distinguished alike for his private virtues
and for his pubhc services. Many of the members of this bar
affectionately remember him as au upright man and an excel
lent judge, who for many years dignified the ermine of justice
upon this bench. It is their testimony that, in the learning of
the common law and equity jurisprudence, he had few equals
and hardly a superior. He was even more distinguished for
strong, practical good sense '; for firmness of will and straight
forward honesty of purpose. The candor and patience with
which he listened to argument found fitting counterparts in the
impartiality and equity of his judgments, which will remain
endurhig monuments of his eminent ability as a jurist, and will
ever command the confidence and respect of all who are devot
ed to the noble science of jurisprudence. As a testimonial of
affection and of sorrow, the court will order the proceedings of
the bar to be entered on the records."

COTESWORTH P. SMITH.
Cotesworth Pinckney Smith was a native of South Carolina,
but removed to the Mississippi Territory prior to its cession by
Georgia to the General Government, and resided in that portion
which was afterwards included iu Adams County aud subse
quently erected into the county of Wilkinson. Here his boy
hood was passed, amid the wild scenes of the country, and in the
enjoyment of such advantages as the state of its society afforded
at that period ; but being endowed with great energy, natural
talents, and more than ordinary ambition, Mr. Smith, on reach^
ing his maturity, tumed his attention to the law, which he
practised for many years with success.

COTESWORTH P. SMITH. 199
In 1826 he was chosen to represent Willtinson County in the
lower branch of the Legislature, and as chairman of the Com
mittee on Internal Improvements performed an active and
laborious part in that body. In 1830 he represented the county
of Wilkinson in the State Senate, and so greatly had his reputa
tion as a lawyer increased, and his popularity as a man of energy,
firmness, and uprightness enlarged, that in 1833 he was elected
under the new Constitutiou one of the judges of the High
Court of Errors and Appeals. His term expired in 1837, and
in 1840 he was appointed by the Governor to fill the vacancy on
that bench occasioned by the death of Mr. Justice Pray, but
was succeeded during the same year by the election of Mr. Jus
tice Turner by the people.
Returning to the practice of law with a riper experience, and
with his talents invigorated by the wide scope of their exercise
upon the bench, Judge Smith stood among the most prominent
of the Mississippi bar. But the popularity he had acquired as a
judge of the High Court asserted itself iu his being recalled to
that bench, and on his election, in 1849, he was made Chief
Justice of the State.
Chief Justice Smith was naturally endowed with talents of a
high order. He possessed au eager appetite for knowledge, and
extended his inquiries to every department of science ; and this
the briUiancy of his intellect permitted him to do without aay
apparent detraction from his legal abihty. He was fond of mis
cellaneous reading, and was well versed in all the polite htera-
ture both of the past aud of his day. He was consequently an
agreeable companion, and one of the most interesting and ac
complished conversationalists of his time. He was a man of
great intellectual independence, and however well he might
be acquainted with the opinions of others, he promptly
subordinated every question to the dictates of his own
views. He delivered the opinion of the court in the famous case of
the State of Mississippi vs. Johnson, which fixed the liability of
the State for the payment of the bonds of the Union Bank, and
which he knew would place him in a hostile attitude to the
party in control of the State Government, to a large majority

200 BENCH AND BAR OF MISSISSIPPI.
of the people, and would cost him his seat upon the bench and
perpetual exclusion from office.
In this case Judge Smith bases his conclusions upon the
broad and solid ground that the same principles which govern
iu matters of contract between private individuals apply to all
contracts to which the State has become a party. This rule is
founded on the presumption that sovereign States, who are sup
posed to be always ready to perform their undertakings aud to
discharge their just obligations, could desire no better rules by
which to ascertain their o-wn obligations and rights than those
according to which they dispense justice to their citizens.
He was deeply learned in all the branches of his profession,
and seemed to comprehend its most subtle principles more by
intuition than by laborious investigation. But his knowledge
of the law was not more conspicuous than other traits of his
character, which seemed to eminently fit him for the bench.
He was candid, conscientious, and impartial ; firm in his opin
ions, fond of justice, and fearless in his denunciation of wrong.
In this respect he very much resembled Sir Matthew Hale,
with whom his uniformly conscientious and equitable adminis
tration of law entitles him very properly to be ranked. Judge
Smith had but oue aim, and that was duty ; and this purpose
extended to all the relations of life. If the natural kindness
and amiability of his disposition ever faltered it was because it
confiicted with this ruling motive.
His manners were gentle, urbane, and concihatory, and the
honors bestowed upon him reflect the estimation in which he
was held by his fellow-citizens. He held the office of Chief
Justice for nearly twelve years, with uniform abUity, unflagging
zeal, and unswerving fidelity to the principles of law and jus
tice. He died in 1863.
The following proceedings are taken from the minutes of the
High Court :
" At a meeting of the bar of the High Court of Errors and
Appeals, in Jackson, on February 23d, 1863, held for the purpose
of expressing the feelings of the bar touching the death of the
late Chief Justice, Hon. Cotesworth P. Smith, upon motion,
Hon. William L. Sharkey was requested to act as chairman.

COTESWORTH P. SMITH. 201
and WilHam S. Yerger as secretary ; and upon motion, Hon.
WiUiam S. Yerger, Thomas J. Wharton, and George L. Potter
were appointed a committee to draft resolutions expressive of
the sentiments of the meeting.
. " The Attomey-General, Hon. T. J. Wharton, presented the
foUowing report, which was unanimously adopted :
' ' Since the last adjournment of this court, the State of Missis
sippi has mourned the loss of many valued and honored sons.
Among the number the Attomey-General has announced to the
court the name of the late learned and upright Chief Justice of
the High Court of Errors and Appeals, the Hon. Cotesworth
Pinckney Smith. Whilst we mourn with the whole people of
the State the loss of all her honored children, we owe to the
memory of the great, and good Chief Justice more than the
common meed of tears. Associated for years with him upon
terms of the most intimate and kindly intercourse, watching
him daily in the conscientious and equitable administration of
the law, we have been enabled to form a just appreciation of
the character of the man, and thus tu know how great the loss
which the Bench and Bar, as well as the State, have sustained
in his untimely decease.
" Bom in Mississippi while yet under the territorial govern
ment of Georgia, Judge Smith grew with the growth of his
State. Honored and trusted at all times by his fellow-citizens,
he never sought rewards or honors from any other source, and
never held an office not conferred by them. Endowed by
nature with mental faculties of the highest order, with moral
and physical courage which knew no fear, of humane and
kindly disposition, and actuated by a conscientious rectitude of
purpose and principle which nothing could swerve, Chief Jus
tice Smith- presented to the world the model character of a
judge. Learned, conscientious, fearless, and upright, for nearly
twelve years he presided in this court ; and each and all of us can
bear willing testimony that during all that time he administered
justice without sale, denial, or delay ; knowing no man nor any
party in his judicial action, but doing his duty in every case regard
less of men or parties, and with an eye single to law and justice.
" In the decease of such a judge the State mourns one of her

202 BENCH AND BAR OF MISSISSIPPI.
worthiest sons. In the death of such a man the world has lost
one of its noblest ornaments.
" As a feeble tribute to the memory of so much worth, and
that those who come after us may know how highly we who
knew him best appreciate it, the members of the bar of the
High Court of Errors and Appeals
" Resolved, That, in common with the people of the State,
they deplore the great loss sustained by the country in the de
cease of Cotesworth Pinckney Smith — a judge without fear aud
without reproach, a citizen conscientious in the discharge . of
every duty, and a man whose heart was open to every sympa
thy for the wants and sufferings of his fellow-man.
" ResoVced, That in his decease the High Court has sus
tained an irreparable loss, which, felt by all, is more particu
larly felt by his associates upon the bench and by the members
of the bar, who, daily associating with him, best knew his worth,
and therefore most deplore his loss.
" Further resolved. That we tender to his associates upon
the bench our sympathy for the loss sustained by them in com
mon with us all, and that we offer to the widow and family of
our deceased friend and brother the sincere condolence of
friends who, knowing well the great loss they have sustained,
are only able to feebly express their sentiments of love and
admiration for his worth, and their sincere grief for his un
timely end,
" Resolved, further, That a copy of this preamble and these
resolutions be forwarded to the family of the deceased, and that
the Attorney-General request that they be spread upon the
minutes of the High Court.
" William L. Shaeket,
" Chairmam,."

DANIEL W. WRIGHT. 203
DANIEL W. WRIGHT.
Daniel W. Wright was born in the eastern portion of tho
State of Tennessee, and was reared near Huntsville, Alabama,
whither his father's family had removed. Here he prepared
himself for the bar and began the practice of law, but in 1822-3
he emigrated to Mississippi and settled in Monroe County, at
a place called Hamilton. Here he rose to eminence in his
profession, and at the first election under the Revised Constitu
tion, in 1833, was chosen one of the judges of the High Court
of Errors and Appeals, for the term of six years. This office
he held until 1838, when he resigned, and having lost his wife
about this time he retired also from the bar, and made his resi
dence with his daughter, in the to-wn of Pontotoc, where he
died a year or two afterwards.
Mr. Justice Wright was a man of a naturally strong mind,
but in his latter days lacked somewhat the capacity of vigorous
application. He never wrote an opinion during the five years
he occupied a seat upon the high bench, which was not at all in
conformity with his early vigorous career at the bar, and can be
accounted for only upon the ground of au unfortunate con-vivi-
aUty to which he became addicted, and which impaired his
energies. Judge Wright was undoubtedly a lawyer of ability
and an orator of no ordinary powers. He possessed a close and
comprehensive discernment, was a good judge of law, and saw
at a glance its proper apphcation. But it was as an advocate
before a jury that Judge Wright exhibited his greatest powers.
This was the sphere to which his genius seemed especially
adapted. He was full of -vivacity and good-nature, fond of
humor and anecdote, and often wrested that from the good-will
of the jury which he could have scarcely obtained from its
judgment. He was an exceedingly kind and generous man,
and consequently possessed great personal popularity, which was
no doubt the main cause of his success.

204 BENCH AND BAR OF MISSISSIPPI.
P. RUTILIUS R. PRAY.
Mr. Justice Pray was a native of the State of Maine. He
was well educated, and on removing to Mississippi began the
practice of law in the County of Hancock, from which he was,
in 1828, elected to the Legislature, and was placed upon the
Judiciary Committee of the House of Representatives with
William L. Sharkey and John A. Quitman, and even among
those distinguished men acquired prominence for his abihty.
He was president of the convention which adopted the Re
vised Constitution of 1832, and presided over that body with
great dignity and parliamentary skiU. As a lawyer Mr. Pray
possessed qualities that enabled him to rise rapidly in his pro
fession, and in 1833 he was elected by the Legislature to revise
the laws of the State.
In the performance of this duty, he was required to prepare
a Revised Code of the statutes, and report its completion to
the Goveruor, who was requested to convene the Legislature for
the purpose of its adoption. He was authorized to alter and
amend the phraseology of existing statutes, and to prune, correct
and arrange, alter and amend, the provisions thereof, so far as
might be necessary to render the Code harmonious within itself,
and consistent with the provisions of the Revised Constitution.
This work he completed with great labor, but not in a satisfac
tory manner, and it was rejected by the Legislature. At the
regular election in November, 1837, he was chosen a judge of
the High Court of Errors and Appeals, which office he held
until his death, which occurred in 1839.
It is not linderstood that Jt^dge Pray possessed any pre-emi
nent quahties as a jurist, but he possessed qualifications that
rendered him distinguished as a lawyer and eminent as a citizen.

JAMES F. TROTTER. 205
JAMES F. TROTTER.
The subject of this sketch was born in Brunswick County,
Virginia, on the 5th of November, 1802, but at an early age
removed with his father's family to East Tennessee, where his
education was obtained, mostly under the tuition of Rev. Mr.
Doak, a pious divine, for whom his pupil ever entertained the
greatest reverence. He was there prepared for the practice of
law, and having obtained his hcense, removed in 1823-4 to the
County of Monroe, Mississippi, and located at Hamilton, then
the seat of justice of that county. Here he soon became the
competitor and rival of Daniel W. Wright, which emulation
continued as long as both remained at the bar.
As a lawyer the ability of Mr. Trotter was marked and well
recognized. He was devoted to his profession, and brought to
its study and exercise all the powers of his mind and all the
energies of his nature. While he possessed no feature of re
markable brilliancy, the full round orb of his character and
varied quahficatious justly entitled him to the distinction to
which he attained. His intellect was acute and penetrating,
and his powers of comprehension ready and conspicuous. He
had an easy command of language, and, while the style of his
rhetoric was without fiash or studied ornamentation, his logic
was characterized by its weight and solidity. He was a man of
indefatigable industry and of stem morals : almost stoical in
his aversion to idleness and intemperance. It was said of him
that he was always in a hurry. Yet, notwithstanding the
assiduity of his compliance with the demands of the most jeal
ous of professions, which necessarily precluded him iu a great
measure from mere social intercourse, he was a man of great
personal popularity, aud was several times chosen to represent
Monroe County in the State Senate.
On the reorganization of the courts under the Constitution of
1832, Mr. Trotter was elected judge of the Circuit Court of his
district, and carried to the bench the same penetrating judg
ment and dispatch of business which had rendered him success
ful at the bar.
In 1838 Judge Trotter was elected to a seat in the Senate of

206 BENCH AND BAR OF MISSISSIPPI.
the United States, to succeed Judge Black, who had resigned ;
but before taking his seat he resigned also, and, it is appre
hended, upon the ground that the bench offered, as he con
ceived, a sphere more suited to his abilities and taste than the
fickle arena of politics.
In December, 1838, he was appointed to the bench of the
High Court of Errors and Appeals, to fill the vacancy occasioned
by the resignation of Mr. Justice Wright, and in November,
1839, was elected by the people for the term of six years, but
resigned in 1842.
Mr. Justice Trotter delivered many important decisions while
upon the high bench, and his opinions are noted for great
strength and dignity of style, as well as for a penetrating dis
crimination, a sound judgment, and a profound knowledge of
the laAV. Though gentle and affable in manners, he was stern in
pursuit of justice ; and, in integrity, courage, and firmness, his
character is not inferior to that of Lord Chief Justice Holt,
whom he also resembled in his manner of excluding all extrane
ous or collateral questions from the case under consideration,
and carefully withholding an expression of his opinion upon
any point not necessary to the gist and justice of the cause.
His opinion in the case of Jane B. Ross et al. vs. Vertner et
al. (5 Howard 305), is a striking instance of this character. In
this case it seems to have been the effort of the learned counsel
to present to the court as many points as the utmost tension of
its features would admit ; but they were gracefully waived by
the judge, and the question rehung upon its proper hinge.
And this I conceive to be a most eminent quality in a supreme
judge — to avoid the expression of mere dicta, which tend only
to confuse and mislead the practitioner without authoritatively
affirming any principle.
On retiring from the bench of the High Court, Mr. Justice
Trotter removed to the tow^n of Holly Springs and resumed the
practice of law, but, in 1855, was elected vice-chancellor of the
northern district of Mississippi, which position he held until the
separate chancery system was abolished by the code of 1857,
when he again returned to his practice.

JAMES F. TROTTER. 207
In 1860 he was appointed professor of law in the State Uni
versity, and occupied that position two years.
While Judge Trotter was apparently always adverse to an
active participation in the mere strife of political parties,
he was an ardent supporter of the Southern cause, and no
one felt more deeply than he the result of the great con
flict ; but he comprehended the import of the arbitration
which the sword had awarded, and sought by his example
to reconcile his feUow-citizens to the inexorable fiat. On
the reorganization of the courts in 1866, he was appointed
to the circuit bench, and in the first court which he held
he presented the following preliminary remarks in his charge
to the grand jury of De Soto County, which, on account of
the dignity and patriotism of their sentiments and the sound
ness of their advice, are well worthy of a place iu this narrative.
Judge Trotter said :
" It is to me personally a source of great gratification to
meet you here to-day iu company with the other constituent
members of the court. It is upwards of four years, I believe,
since a court was organized and holden in De Soto County.
During that eventful period our State has passed a terrible
ordeal, in the midst of which she has been enveloped in shad
ows, clouds, and darkness. The return of peace has enabled
us to see the extent of the devastation which the work has
made, and to contemplate the whole of our losses. It is a
gloomy spectacle : wherever we go or wherever we tum our
eyes, we witness the sad memorials of our misfortunes, melan
choly evidences of our sufferings, and the cruelty and savage
ferocity of our late enemies. To-day we meet amidst the ruins
of our country, with all the bitter memories of the past crowd
ing upon our minds. One consolation is the hope that we have
reached the bottom, and are soon to fioat again upon the sur
face of peaceful and busy life. Though stripped of our most
valuable possessions, reduced to poverty, and some of us to ac
tual destitution, yet, being free to exert our energies, we will
soon rebuild our ruined fortunes and re-establish our prosperity.
We indulge in no unavailing regrets, no useless griefs, but, for-

208 BENCH AND BAR OF MISSISSIPPI. '
getting the past, push forward -with manly fortitude and buoyant
hope toward the goal of our destiny.
" We are happy that civil law has been restored, aud that peace
aud good order are about to resume their rightful dominion.
Meeting under the sanction of our constitution and laws, we
may, I fondly hope, again assert the rightful jurisdiction of our
State and enforce our o-wn municipal code. It is a source of
heartfelt congratulation that we assert these high privileges with
out danger of hindrance or molestation. It is true that some
of the acts of our Legislature, in reference to the labor and con
duct of our late slaves, may not have been entirely satisfactory
to the Federal authorities, yet I can scarcely anticipate a case
which can bring the decisions of this court into conflict with
any of the orders of the ' Freedmen's Bureau. '
' ' Since the sad era of our surrender we have rendered a cheer
ful obedience to the laws and Constitution of the United States,
and as a proof of the sincerity of our professions of allegiance,
and in order to re-establish amicable relations -with all of our
sister States, we made a sacriflce of upwards of four millions of
slaves, a peace-offering upon the altar of the Union ; and in ad
dition, we came under solemn obligations to obey the Constitu
tion and laws of the Union, by complying with the terms of
amnesty held out to us by President Johnson. These engage
ments we design to continue and observe in good faith, as we
have truly done in the past.
" Ha-ving failed, as other nations have, in maintaining our
separate existence as a free people, we laid down our arms when
we could use them no longer, and submitted to our destinies. We
took arms in defence of what we beheved to be a righteous
cause — the cause of self-government — and we struggled against
overwhelming numbers for four years. It was all in vain. But
let it be remembered that, though we lost our cause and almost
everything else, we yet preserved our honor. Every day's dis
closures sho-w more clearly the immense disparity iii the mUitary
forces of the two belligerents, and the wonder is, not that we
were finally beaten, but that we were able to maintain the con'-
test for so long a period. Every day adds a fresh chapter to
the skill and conduct of our leading generals, and to the heroic

JAMES F. TROTTER. 209
daring and endurance of our troops. Here is ample cause for
congratulation. We have won true glory in our struggle for
liberty — a stmggle which has no parallel in the history of the
world. " .But I wiU dismiss this topic with one single reflection more.
I express my feehngs by the simile of Huddlesford's oak,
which, after braving the storms of centuries, was at last uproot
ed and all its branching honors laid prostrate on the ground.
" ' Thou who, unmoved, hath heard the whirlwind chide,
Full many a winter round this craggy bed.
And like an earth-born giant hast outspread
Thy hundred arms, and Heaven's own bolts defied,
Now liest along thy native mountain's side
TJptorn ! Tet deem not that I come to shed
The idle drops of pity o'er thy head,
Or basely to insult thy blasted pride.
No ! still 'tis thine, though fallen, imperial oak.
To teach a lesson to the wise and brave.*
Our people always loved the Union. It was associated in their
minds -with the names of Washington, Madison, and Mason,
and Randolph, the fathers of the Constitution. In all the ware
which have been waged against foreign powers by the United
States, the Southern people have been conspicuous for their zeal
and gallantry in maintaining the honor and interest of the Fed
eral arms. Let our sister States but do us simple justice by ac
cording to us the rights that belong to us under the Constitution,
and they will find us as ready to shed our blood in the defence
of the Union, as we showed ourselves to be in the war of 1812
or that of 1846.
' ' We have now every motive to be true and loyal to the Fed
eral Constitution and laws. We have given our word and pledg
ed our solemn vows, and if permitted, we will redeem them to
the satisfaction of the world. I feel assured, indeed I know,
that the people of the South desire most earnestly to live in
peace under the Union, and enjoy its blessings and protection.
And I will not doubt that, in time, the people of the United
States will see that we enjoy the protection which our allegiance
14

210 BENCH AND BAR OF MISSISSIPPI.
challenges and demands. For allegiance and protection are
and must be reciprocal."
These were noble and patriotic words, and at the time of
their utterance Judge Trotter little recked of the sorrows yet in
store for his people, and but httle comprehended the vengeful
spirit which was even then poising its arrows at the South. He
maintained his position on the circuit bench until the time of
his death, which occurred in Holly Springs, March 9th, 1866.
The bar of Holly Springs paid a touching tribute to his mem
ory, and in response to its presentation for record upon the min
utes of the court. Judge Cayton, having granted the request,
said :
" It may not be out of place for me to add a few words of
testimony to the merits of the deceased as a man and his worth
as a judge. It has been my fortune somewhat to tread in his
footsteps, in his judicial career. When he resigned his place as
a member of the High Court in 1842 I was elected his successor.
He had left behind him on the bench a reputation which any
man might be content to equal. I never heard any one utter a
word against his uprightness and purity as a judge or his truth
fulness as a man. He seemed to have made the divine in
junction, ' Thou shalt do no unrighteousness in judgment,' his
motto and his model, and he lived up to it in his fullest sense.
His knowledge of his profession was varied and profound, and'
his opinions rarely failed to carry conviction with them.
"His taste, as well perhaps as his talent, suited the quiet repose
of the bench better than the strifes and the contests of forensic
efforts. Hence he spent the greater part of his professional
life clothed in the ermine of justice ; and well did its folds be
come him. It received no spot or stain by act of his, and was
laid aside as pure and white as the mantle that wrapped his
form in the grave.
" Nearly twenty-five years have since passed — years filled with
eventful changes and revolutions in private as well as public life,
and I stand here to-day, again his successor in judicial station.
And I may well be content to earn the same meed of approba
tion which has just been stamped upon his course by those most
competent to pass upon it.

JOSEPH S. B. THACHER. 211
" The poet who had the boldness to assemble the whole huniaii
race before the throne of the Omnipotent and the Eternal for
judgment, placed in the same category of guilt and of pun
ishment " ' The judge who takes a bribe
And the advocate who pleads his cause amiss.'
" Of a certainty we may pronounce our brother free from all
danger of this destiny ; and may we all strive, each in his
place, to be equally exempt from such a doom when our final
sentence is passed. "

JOSEPH S. B. THACHER.
Joseph S. B. Thacher was a native of Massachusetts, aud was
reared and educated in the city of Boston, where his father held
an important judicial office. He was a descendant of Oxen-
bridge Thacher, who was employed, iu connection -with James
Otis, by the merchants of Boston, in 1761, to defend them
against the Writs of Assistance, and whom, John Adams says,
the advocates of the crown hated more than they did Otis or
Samuel Adams. After having engaged in the practice of law
for a short time in his native city, he removed to Mississippi,
in search of those richer fields, which the fame of Prentiss,
Walker, and other natives of the North, had clothed with
dazzling inducements. Mr. Thacher settled in Natchez about
the year 1833, where he enjoyed a thrifty practice, and in
1837 was elected to succeed John I. Guion as judge of the
criminal court estabhshed by the Legislature in the counties
of Warren, Claiborne, Jefferson, Adams, and Wilkinson. This
office he held until 1840, when the Legislature abolished the
¦' criminal court."
In 1843, after a spirited political canvass, entirely incompati
ble with the nature and dignity of the office, Judge Thacher
was elected one of the judges of the High Court of Errors antl
Appeals for the term of six years. During his candidacy for
this office charges of a serious nature were circulated, connect
ing him with some dishonorable transaction in the city of Bos-

212 BENCH AND BAR OF MISSISSIPPI.
ton prior to his emigration to Mississippi. These, after a se
ries of criminations, recriminations, and a lengthy vindicatory
correspondence, were finaUy cleared away.
At the expiration of his term, in 1849, Mr. Justice Thacher
was a candidate for re-election, and during the canvass was
charged with ha\ing procured, during his candidacy in 1843, the
publication of articles highly disparaging to the character of his
opponent, and savoring of a detestable egotism.
These articles appeared in an " Extra" of the Gallatin Signal,
and were secretly circulated a few days preceding the election,
over the signature of the editor, who, during the canvass of
1849, upon application being made to him in regard to the mat
ter by the gentlemen of the bar and others of Natchez, swore
to the procuration of Judge Thacher, and disclosed his letter
arranging the terms and suggesting a schedule for the circula
tion of the articles.
This unfortunate disclosure conduced, no doubt, largely to
the defeat of Judge Thacher ; for, being a Democrat, he was on
the popular side of politics, while his opponent, Hon. Cotes
worth P. Smith, besides being a Whig, was liable to the, at that
day, further objection of being an avowed advocate of the lia
bility of the State for the payment of the bonds of the Union
Bank. But it must be remembered also that Mr. Justice Smith
had already served one term upon the high bench, and the mani
fest disparity in the ability of the two judges was decidedly in
favor of the latter.
It cannot be claimed for Mr. Justice Thacher that he was a
lawyer of comparatively much depth of professional learning.
His talents were more of the literary order than professional.
He was a strenuous advocate of the cause of education, was
much devoted to science and the fine arts, and wrote literary
essays of considerable merit.
His election to the high bench, in 1843, was due, no doubt,
more to his position upon the bond question than to any recog
nized ability, or special qualification for the office, thus evinc
ing the folly and absurdity of resting judicial promotions upon
mere questions of politics and the prejudices of parties.
The career of Judge Thacher upon the bench was character-

JOSEPH S. B. THACHER. 213
ized by uprightness, impartiality, and integrity. His decisions
manifest a laborious effort to reach the utmost limits of justice.
He was a close abider of precedent, aud held fast to every con
stitutional feature. He was a man of pure morals, and in social
life shoue with a brilliancy which only the highest order of ac
complishments could kindle.

CHAPTER VII.

THE BAR— EMINENT LAWYERS— 1832-1850.
SERGEANT S. PRENTISS  JOHN I. GUION  JOSEPH HOLT  VOLNEY E.
HOWARD  ANDERSON HUTCHINSON  DANIEL MAYES  WILLIAM E,
ANDERSON.
We have now arrived at a period the most brilliant in the
Mstory of the Mississippi bar ; when its shining lights flashed
an effulgence that attracted the gaze of admiration in all parts
of the country ; when it glittered with a galaxy of geuius for
which the scroll of oblivion has no place. It was during this
period that the flush tide of speculation rolled its sparkling bub
bles over the State, alluring thousands within its seductive but
ruinous vortex ; when banks of unlimited and baseless issues
sowed, with lavish hand, the seeds of financial ruin, which
finally fruited into one common and overwhelming crash.
It was now that the best legal talents were called for and
aroused — a genius that could baffle and expose the artifice of
cunning, an integrity that could thwart the designs of villainy,
and a love of justice that could rescue the innocent and unfor
tunate from the clutches of avarice. All these demands were
fully met, and the bar of Mississippi during that period takes
rank with any that graces the annals of the forum. Let us take
note of some of these, and first of

216 BENCH AND BAR OF MISSISSIPPI.
SERGEANT S. PRENTISS.
A few years prior to the period referred to, a pale and slender
young man made his appearance in the town of Natchez. He
was an entire stranger, and on his arrival had, it is said, but five
dollars in his pocket, which he soon expended in endeavoring to
secure the good wishes of his landlord and other inmates of the
hotel. He did not think, as he afterward said to a friend, that
his capital was sufficiently ample for investment in trade or
speculation, and conceived that the best use he could make of
it was to purchase, if possible, the kindness of his host. In this
he succeeded, aud obtained credit for his board until he could
procure a situation as teacher. This purpose he soon achieved,
and entered upon his duties as tutor to the children of Mrs.
Shields, a widow lady residing in Natchez. This position he
held about two years, and during that time devoted all his
spare hours assiduously to the study of the law.
As a mere private tutor and a friendless and penniless stranger,
he had but poor social advantages among the aristocratic circles of
Natchez, and consequently his life was monotonous and retired.
At the end of the second year of his experience as teacher he
abandoned his tutorship, entered the law office of the distinguish
ed Robert J.Walker, and, having soon acquired license to practise
law, he immediately entered upon his profession. And now,
with no friend but his resolution, and no fortune but his talents,
he leaped into the forum, an armed knight, amid an almost un-
paraUeled array of legal learning and forensic ability. The first
sound of his voice in the halls of justice dro-wned every whisper
of supercilious conjecture, and drew upon hin^ the gaze of won
der and admiration from bench, bar, and box.
There he stood, the commissioned champion of destiny, the
plumed hero of -victory, the personification of knowledge with
out recognition, of eloquence without plaudit, of fame without
a trumpet : an unheralded victor, he seized the reins of genius
and dashed away to fields unfmTOwed and unfought.
Sergeant Smith Prentiss was bom in the State of Maine, and
iu the city of Portland, on the 30th of September, 1808.
The paternal branch of his family was of English descent.

SERGEANT S. PRENTISS. 217
while that of his mother, whose maiden name was Mary Lewis,
was of Welsh origin. This, he said, was the whole amount of
his genealogical knowledge. It was thought, however, that his
American ancestors came over among the Pilgrims ; and his
father, WUham Prentiss, was a strict adherent to the stern doc
trines and rigid principles of the Puritan creed.
Mr. Prentiss had two sisters, who alternately resided with
him in Mississippi, and several brothers, one of whom he edu
cated for the ministry at a German university. His noble and
affectionate letters to these and to his mother constitute a diary
of filial and fraternal devotion rarely equalled in the pages of
memoir. He had lost his father when quite young, and in con
sequence of a severe fever had become, at an early age, an incur
able cripple. This circumstance created that solicitude on the
part of his mother which, notwithstanding her slender means,
resulted iu affording him advantages which she was unable to
bestow upon her other sous.
After the usual academical preparation, Mr. Prentiss was sent
to Bowdoiu CoUege, which he entered at the age of fifteen,
and graduated with distinction at the end of the usual
term. Thrown now entirely upon his o-wn resources, yet undaunted
by the frowns of circumstances, the young man determined to
seek his fortune in the far West, and at the age of nineteen bade
adieu to his widowed mother, his friends, and the scenes of his
childhood, and tumed his face toward the Ohio. Arriving in
the flourishing city of Cincinnati, he determined to seek em
ployment and a home there. In this he did not succeed ; and
it was now that the finger of destiny touched him and pointed
him to those sunny fields which were to afford a fit harvest for
his genius, and turning his steps toward the great Father of
Waters, he landed in Natchez in 1827.
Here, after the experience already mentioned, he formed, in
1829, a copartnership with General Felix Huston, then a dis
tinguished lawyer, and afterwards famous for his part in the
Texan War of Independence.
In 1832 Mr. Prentiss removed to Vicksburg and entered into
a law firm with John I. Guion, a gentleman of the highest

218 BENCH AND BAR OF MISSISSIPPI.
social and professional rank, and who had been the partner of
William L. Sharkey until the latter was raised to the bench .
This flrin, it is needless to say, became one of the most cele
brated iu the Union, and was continued until the year 1836,
when Mr. Guion Avas made judge of the criminal court.
In gazing back upon the career of this remarkable man, it re
sembles the glare of some brilliant meteor that suddenly flashed
along the horizon, and flamed toward the zenith -with increasing
glory, until, gathered into the bosom of the great orb of day, it
forms a part of the light of the universe.
In attempting to depict the legal character of Mr. Prentiss
it will be difficult to find words or images to represent the va
ried features and manifestations of his genius. The secrets of his
great success, the qualities upon which it hinged, though mani
fold, were yet so closely allied and intimately blended that re
spectively they formed but ripples upon the surface of a con
tinued stream. He possessed in an eminent degree those pow
ers of analysis which could enter into the very gist and heart of
a proposition and wind it off upon a thousand spindles, and a
masterly synthesis that could then gather up such threads as
suited his purpose, and weave them back into one compact and
unbroken cable. He could twist his subject into every conceiv
able attitude, aud lead his audience to every possible point of
observation : from peak to peak, from summit to summit he
would carry it to the lofty Pisgahs of his own views, where, as
tounded, it would gaze with giddy conception upon prospects
which the mind could reach only when buoyed by the wings
of his gorgeous imagery. Subsidiary to this was his classical
fancy and wonderful scope of imagination. His powers of
comparison seemed to be almost illimitable. There was noth
ing in language that did not afford him a metaphor ; nothing
iu history or romance that did not furnish him au allegory ;
and naught in nature that was not subservient to his image
ry, and that did not lend power to his iUustrations.
The vastness of the universe and the firmament of heaven
imparted their subhmity to his mind. The blushing flower, the
glowing iris, and the spangled canopy of night, shed their beau
ties upon his soul. The gnarled trunk, the dwarfed shrub, the

SERGEANT S. PRENTISS. 219
creeping vine, and their counterparts in the moral world, in
spired his wit and ridicule, while his humor was fed by all the
incongruities of humanity. •
Such were his intellectual features, which constantly asserted
themselves, whether he stood before a jury of the backwoods
or before the bar of the High Court ; on the flower-decked ros
trum, surrounded by thousands of eager listeners, or in the halls
of Congress, the same halo of genius clustered around his brow.
Calm and self-possessed, he was never at a loss for either sub
ject-matter or a happy manner of expression.
As an orator, Mr. Prentiss had few superiors. He possessed
in an eminent degree that active emotional energy which De
mosthenes characterized as the chief ingredient of eloquence — a
capacity for deep and manifest conviction, the power of feeling
and of making others feel, a just appreciation of the principle
embodied in the adage, ' ' Si vis me flere, primum dolendum
est tibi."
There was no subject which he could not clothe with interest.
He would gather up the dry leaves of some hackneyed politi
cal theme, and so adorn and irradiate them wdth his eloquence
that they would fall like corollas of roses upon his enchanted
audience. He possessed the "imperial voice" of Mirabeau ;
and, as CoUard said of Berryer, with him oratory was not
merely a talent, it was a power. He was more than an
orator : he was the living personification of human speech in
its splendor and in its majesty. In him all was eloquent — the
tone, gesture, attitude, and look, as well as the inspiration.
Yet underneath all this glitter flowed the deep, strong current
of knowledge. His eloquence never assumed the character
of mere superficiality, but was the sparkling ebullition of the
caldron of thought that seethed beneath, the aroma of the fiow
ers of his mind. While he possessed an almost inimitable com
mand of language, it was not the mere result of memory, but
his words wefe the natural and well-fitting garments of his
thoughts. His memory was one vast storehouse of facts, so
orderly arranged, so stratified and laminated, that he could at
any time pluck whatever he desired from its copious vaults.
Law was there, with its ten thousand precedents, to answer to his

220 BENCH AND BAR OF MISSISSIPPI.
call. History held up to his glance its musty tomes and vol
umes vast. Poetry was there, with her sparkling gems, and
smiled upoif his nod ; and there Science spread her mysteries to
his gaze. He had but to will, and all presented their sparkling
goblets to his lips.
In the spring of 1837, he represented Warren County in the
Legislature, and as a member of the House of Representatives
was vehement in his opposition to the admission of the members
from the new counties created out of the Chickasaw and Choc
taw cessions, during which he procured a protest severely cen
suring the conduct of the Speaker, and in which he was joined
by several other members, to be spread upon the journal of the
House ; and when that body declared the legality of the admis
sion of the new members, he tendered a violent protest against
the whole proceeding and retired from the House.
As a politician the biography of Mr. Prentiss forms a part
of the history of the Union. In the fall of 1837, after a mem
orable canVass, he and Mr. Word were elected, as the Whig
candidates for Congress, over the Democratic candidates. Gen
eral Samuel Gholson and Col. J. H; F. Claiborne. These gentle-
m.en, however, had been chosen at a special election, held in
July of that year under writs issued by Governor Lynch, to ob
viate a vacancy that would have existed iu the Mississippi rep
resentation at a called session of Congress convoked during that
summer, in consequence of the expiration of the term of the
preceding delegation ; and notwithstanding the election of Mr.
Prentiss and his Whig colleague, Mr. Word, at the regular
election held in November following, it was contended that the
special election of Messrs. Gholson and Claiborne conferred
upon them the tenure of the entire term. This was the subject
of a fierce contest, aud it was on this occasion that Mr. Prentiss
made his celebrated speech in the House of Representatives on
the " Mississippi contested election," and which he closed with
the following beautiful and often-quoted peroration :
" You sit here, twenty-five sovereign States, in judgment
upon the most sacred right of a sister State — her right to repre
sentation : that which is to a State what chastity is to a woman
or honor to a man. Should you decide against her, you tear

SERGEANT S. PRENTISS. 221
from her brow the richest jewel that sparkles there, and bow
her head in shame and dishonor. But if your determination is
taken, if the blow must fall, if the violated Constitutiou must
bleed, I have but one request to make. When you decide that
she shall not herself choose her o-wu representatives, then blot
from the spangled banner of the Union the star that glitters to
the name of Mississippi, but let the stripe remain as a fit em
blem of her degradation !"
The two parties and the friends of the contestants in the
House of Representatives were equally divided, but the casting
vote of Mr. Poik, who was then Speaker, caused Mr. Prentiss
and his coUeague to be rejected, and the whole question was re
ferred back to the people of Mississippi.
At the ensuing election in 1838 Mr. Prentiss was re-elected,
and took his seat in the House of Representatives. It must be
confessed that his career in Congress, though brilliant, was not
so glorious as was anticipated. His convivial disposition and
the temptations of the capital no doubt impaired to some ex
tent his capabihties. The few speeches that he made, however,
in the House of Representatives, as that, for instance, on "de
falcations," and that on the navy, though bitter and sarcastic,
sparkle with beautiful images and staj'tliug comparisons ; but
none of his speeches in Congress can compare with many that
he made on the st\imp and at the bar.
His celebrated speech on the Wilkinson trial at Harrodsburg,
Kentucky, iu 1839, was a masterpiece of forensic eloquence.
The history of this case is given by Mr. Thorp in the American
Review, September, 1851, aud in substance is as follows :
Judge E. C. Wilkinson, a distinguished gentleman of Missis
sippi, was engaged to be married to an accomplished young lady
of Louisville, Rentucky, aud during the month of December,
1838, accompanied by her brother and a young friend, he pro
ceeded to that city for the purpose of consummating the hal
lowed bands, and on their arrival there one of the party ordered
a suit of clothes from a well-kno-wn tailor of the place, and
which, when called for, proved to be unsatisfactory. Upon this
a contest arose in the shop, which resulted in the tailor's being
struck by one oi the party. The three gentlemen, ashamed of

222 BENCH AND BAR OF MISSISSIPPI.
the rencounter, immediately returned to their rooms at the Gait
House ; but the tailor, breathing vengeance against his assail
ants, went into the streets, and by exaggerated statements of
the affair enlisted many of his friends in his scheme of revenge,
and accompanied by these he proceeded to the Gait House, under
pretext of procuring the names of the three gentlemen for the
purpose of causing their arrest. Here they tarried around the
office of the hotel until the Mississippians came down to supper,
when the latter were immediately assaulted by the friends of
the tailor, which resulted in one of the most terrible tragedies.
The Mississippians were severely wounded, ind two of their
assailants were instantly killed. Judge Wilkinson and his com
panions were arrested and committed for trial ; but the Legis
lature of Kentucky, which was then in session, granted a
change of venue, and the trial was removed to Harrodsburg.
Here Mr. Prentiss was summoned to the defence, and here he
made the great speech which gathered all Kentucky into the
fold of his admirers.
He began by explaining the change of venue — the prejudice
among the populace of Louisville — that his clients had come to
Harrodsburg for justice — had fled thither for protection, " even
as to the homs of the altar." He theu paid a glowing tribute
to the dignity and learning of the presiding judge, to the im
partiality of the jury, and to the honor and gallantry of Ken
tuckians generally. After which he proceeded to state the
grounds of defence. This was simple : 1st. A conspiracy to
inflict personal violence. 2d. Reasonable apprehension. The
law applicable to these two propositions he stated in a manner
equally simple. It was, as he said, ' ' a mere transcript from
the law of nature. " This done, he proceeded to dissect the
evidence : strand by strand he pulled to pieces the tangled
hank, and held up every thread to the gaze and inspection of
the jury, and then, rejecting the rotten and the false, he twisted
an irrefragable cable with which he bound the conspiracy to the
minds of the jury. Then turning to the circumstances of the
parties, and to the impossibility of the quarrel's being sought by
Judge Wilkinson, he said : " With buoyant feelings and pulse-
quickening anticipations, he had come more than a thousand

SERGEANT S. PRENTISS. 223
miles upon a pilgrimage to the shrine of beauty, and not of
blood ; upon an errand of love, aud not of strife. He came to
transplant one of Kentucky's fairest flowers to the -warm gar
dens of the sunny South. The marriage-feast was spread, the
bridal wreath was woven, and many bounding hearts and spark
ling eyes chided the lagging hours. The thoughts of the bride
groom dwelt not upon the ignoble controversy which for au
unguarded moment had occupied his attention, but upon the
bright and glorious future, whose rapturous visions were about
to become enclumting realities.
Under such circumstances Judge Wilkinson could not have
desired the conflict. Had the fires of hell blazed iu his bosom,
they must have been quenched for a while. The very fiend of
discord would have been ashamed, fresh from a voluntary, vul
gar, bloody quarrel, aud reeking with its unsightly memorials,
to have sought the gay wedding banquet. " It is needless to
say that Judge Wilkinson and his companions were acquitted.
But if the eloquence of Mr. Prentiss was irresistible when
employed in the defence of the innocent, which was his especial
delight, the power of his withering invective was no less fatal
in the prosecution of the guilty. His speeches in the trial of
Mercer Bird and Alonzo Phelps are said to have been the most
powerful ever made before a jury in Mississippi.
Bird was convicted in the face of strong doubts as to his
guilt, but his subsequent confession confirmed the opinion of
Mr. Prentiss, and proved his penetrating scrutiny. He be-
Ueved him guilty, and brought to bear upon the case that tran
scendent eloquence which never failed to resolve the sternest
doubt into conscientious conviction.
Alonzo Phelps was a native of New England, but as a vaga
bond, a robber, and a murderer, had long infested the Missis
sippi. It was said that he had murdered no less than eight
persons, committed robbery upon robbery with impunity,
and had always succeeded in making his escape, until finally he
murdered a man in the vicinity of Vicksburg, for which he was
arrested and placed upon his trial. His prosecution was the occa
sion of one of Mr. Prentiss's most powerful efforts. It was then
that indignation and contempt added fury to his eloquence, and

224 BENCH AND BAR OF MISSISSIPPI.
turning upon, the prisoner, whom he characterized as the " Rob
Roy of the Mississippi," he depicted, in the most terrible colors
of the imagination, the merited punishment of his crimes,
which was beyond the power of any human tribunal to inflict,
and which nothing but the fires of hell kindled to full blast
around his head could expiate. , Under this scathing denuncia
tion the prisoner grew desperate, his muscles twitched with con
vulsive rage, his eyes glared with raving fury, and he afterward,
while in prison, told Mr. Prentiss that during his speech he was
several times on the eve of seizing one of the guns of the guard,
which were stacked around the bar, and shooting him down.
Mr. Prentiss replied that hp saw his motive, was watching him,
aftd was prepared for him. Phelps was of course convicted
and sentenced to death, but was killed in attempting to again
make his escape.
While he poured the vials of bitter vituperation upon the
head of guiltj he never failed to draw an inspiration of the sen
timental from every romantic feature and tender circumstance
of his cases. The following is a striking instance of the exer
cise of this quality :
A young gentleman of Virginia, who possessed considerable
property, had loved a young lady there who rejected his suit'
and married another, upon which he removed to Mississippi
and destroyed himself by dissipation, but in his will bequeathed
his entire property to this lady, who had then become a widow.
She accepted the bequest, but the heirs of the young man en
deavored to dispossess her of the legacy, upon the grounds that
the young man was non compos mentis at the time of the devise,
and brought au action to test the question ' ' devisa/oit vel non. ' '
Mr. Prentiss was employed in the defence, and during the trial
invoked his conceptions of the beautiful aud his powers of elo
quence to add new charms to the circumstances. He said :
" At the approach of death the mind will often cast off the
clouds by which it has been long obscured, and the heart, how
ever perverted by intemperance, will suddenly recover its former
purity. So, doubtless, in the last moments of the life of this
unhappy man, a remembrance of his early love shone across the
dreary lapse of his after years, aud the image of that first-loved

SERGEANT S. PRENTISS. 225
and never-forgotten one, rising above all intermediate objects,
recalled the fond hopes of his youth ; and under these vi vid in
fluences he strove to redeem the errors of his life by an act of
noble generosity. Thus dying,
" ' . . . like the dolphin, whom each pang imbues
With a new color, as it gasps away,
The last still loveliest, till— 'tis gone — and all is gray.' "
The lady was permitted to retain her legacy, the fruit of
unrequited love.
Mr. Prentiss possessed a wonderful degree of self-possession.
He was once defending an action of ejectment in the Circuit
Court of Washington County, and there happened to. be upon
the jury an old hunter from the swamps of Deer Creek, named
Belcher. The plaintiff's counsel had exhibited his title, and
closed his argument with such a stirring peroration that " Old
Belcher, " as he was called, could not refrain from venting his
con-viction, and exclaimed from the box, " That's a good
title; I go for the plaintiff ." Mr. Prentiss arose, and with a
pleasing smile said, " Wait a minute, Belcher ; wait till you
have heard my side." "Well," said Belcher, throwing him
self back,. "/'ZZ wa-i^." Mr. Prentiss then disclosed his case,
and closed with one of his characteristic appeals. He saw its
effect, aud turning to Belcher, asked, " What do you think of
that, Belcher?" "That's a good title too," said Belcher.
" ni go with tlie majority.' '
His arguments of mere questions of law were clear, perspicu
ous, and compact ; his effort was to whittle every question down
to a point — to disrobe it of all technicalities, and exhibit the
naked principle ; and when this was done he would proceed in
a logical manner to develop its application. His arguments in
the case of Vick et al. vs. the Mayor and Aldermen of Vicks
burg, 1 How. 381 ; the Planters' Bank vs. Snodgrass et al., 4
How. 573 ; and Ross et al. vs. Vertner et al., 5 How. 305, are
striking manifestations of this quality.
In the last-nam.ed case Mr. Prentiss entered into an elaborate
exposition of the nature of residuary tmsts, and of the powere
of corporations to execute tmsts, and showed that a court
15

226 BENCH AND BAR OF MISSISSIPPI.
of equity would never permit a trust to fail for want of a
trustee. These questions arose upon the contest of the last wUl
and testament of Isaac Ross, of Jefferson County, who had de-
V ised that his negro slaves, if they so desired, should be trans
ported to the coast of Africa, for which purpose an appropria-
, tion was made from the residue of his estate, in trust to the
American Colonization Society.
In 1839 Mr. Prentiss, at the request of the leading Whigs of
Mississippi, became a candidate for the United States Senate,
and entered upon a vigorous canvass for that office. But what
ever may have been his chances of popularity with the people,
had the election rested upon the popular vote, he was defeated
before the Legislature. But he was not yet to fetire from the
political world. An event was now approaching which absorbed
every other consideration, and engaged all the powers and ener
gies of his nature — ^the Presidential election of 1840. Mr. Pren
tiss leaped into the canvass, and almost every city from New
Orleans to Portland thundered with the applause of his elo
quence. It was during this canvass that he addressed for the flrst time
the people of his native city. There, on the common where
thirteen years before he had gambolled, a wayward and friendless
youth, he now saw the rushing tread of thousands eager to do
him honor and catch his words. His mother was present, and
the old lady's heart must have swollen with pride as she caught
the eloquent strains that gushed iu li-vring streams from his lips
and rolled away amid gorgeous imagery, bearing upon their
surface the minds and the hearts of the audience, until nothing
seemed left to the people but the power to admire aud applaud.
But it is foreign to the features of this work to follow him
farther in his pohtical career. It belongs to the history of the
country. In the spring of 1842, Mr. Prentiss was married to Mary Jane
Williams, daughter of James C. Williams, of Natchez. From
this time it seems to have been his desire to eschew politics
altogether, and devote himself entirely to his profession. He
was a kind and devoted husband, and his private affairs seem
now for the first time to have occasioned him any particular

SERGEANT S. PRENTISS. 227
solicitude. His expensive political canvasses had absorbed a
large portion of his means, while his disappointments and the
treachery of political friends had created a feeling of disgust for
the world, which he had never before experie"nced. The only
question in the politics of the State that seemed to interest him
after this was that of repudiation : this he denounced at all times
and under aU circumstances as a monstrum, horrendum, in-
forrn, ingens, a kind of moral and political malady which
should be eradicated at all events. Such was the tenor of all
his speeches of that period.
In 1845 his financial embarrassments had become so great
that he determined to remove to New Orleans, where brishter
prospects awaited the practice of his profession. This step was
occasioned in part by a decision of the Supreme Court of the
United States, which deprived him of his interest in the Vicks
burg " Commons," on which he had erected costly buildings
and expended large sums of money. He now cut himself loose
from all parties and all politics, and, ha-ving formed a copartner
ship in New Orleans with Mr. Soule, devoted his time exclu
sively to his practice, and to the acquisition of a mastery of the
civil law. Aud while it may be that Mr. Prentiss acquired no
additional fame in Louisiana, y^ t the very fact that he was able,
under the circumstances, to cope with the most eminent mem
bers of that bar, marked the transcendency of his genius. To
men of ordinary talents it would have been a reckless and
hazardous undertaking to step from the forum of a common-
law State into the arena of civil-law jurisprudence, with the ex
pectation that a knowledge of the one would unlock the intri
cate system of the other. A proficient in Blackstone could not
in consequence be an adept in Justinian. Yet the success of
Mr. Prentiss before the Louisiana courts shows that he had also
mastered the principles of the civil law ; how, and by what ex
traordinary method, his splendid genius could alone explain.
Among the last public speeches made by Mr. Prentiss was his
address to the returned volunteers of the Mexican War, at a
pubhc reception given them on their arrival at New Orleans, iu
June, 1847. Although he had opposed the war, on account ot
what he conceived would be the fruitsr that would grow out of

228 BENCH AND BAR OF MISSISSIPPI.
it, yet this was just such au occasion as called forth his best
efforts. Glorious was his theme, aud gloriously did his eloquence
acquit itself. His speech sparkled with sentiment, glowed -with
patriotism, and blazed with an eloquence that sent a thrill to
the heart of every soldier, and stirred the mingled depths of
pride, and joy, and sorrow, in the bosom of the vast audience.
His tribute to the memory of the dead, his compliments to the
gallantry of the living, and the welcome which he described as
awaiting them at their homes, where every hill would blaze with
bonfires, and every valley ring with shouts of praise aud joy,
were truly sublime.
' ' Welcome, ' ' said he, ' ' citizen soldiers, soldier citizens. Your
neighbors will regard you with respect and affection. Your chil
dren will feel proud whenever they hear the names of Monterey
and Buena Vista, and a grateful nation has already inscribed
your names upon its annals. Indeed it is a noble sight, worthy
of the genius of this great Republic, to behold, at the call of
the country, whole armies leap forth in battle array, and then
when their services are no longer needed, faU quietly back and
commingle again with the communities from whence they came.
Thus the dark thunder-cloud, at nature's summons, marshals its
black battalions and lowers in tlje horizon ; but at length, its
lightnings spent, its dread artillery silenced, its mission finished,
disbanding its frowning ranks, it melts away into the blue
ether, and next morning you will find it glittering in the dew-
drops among the flowers, or assisting, with its kindly moisture,
the young and tender plants.
" Gallant gentlemen, you will soon leave us for your respec
tive homes. Everywhere fond and grateful hearts await you.
You will have to run the gauntlet of friendship and affection.
The bonfires are already kindling upon the hills. In every
grove and pleasant arbor the feast is spread. Thousands of
sparkling eyes are watching eagerly for your return. Tears wnll
fill them when they seek in vain among your thinned ranks for
many a loved and familiar face ; but through those tears will
shine the smiles of joy and welcome, even as the rays of the
morning sun glitter through the dew-drops which the sad night
hath wept. ' '

SERGEANT S. PRENTISS. 229
A few months prior to this he had made his great speech in
New Orleans in behalf of the starving Irish in the famine of
1847. The occasion was a meeting of the citizens for the pur
pose of sending relief to the sufferers, and over which the Gov
ernor of the State presided. The assemblage was first addressed
by Mr. Clay, who was then on his visit to the South-west. He
was followed by Mr. Prentiss in a most eloquent, pathetic, and
soul-stirring speech, of which the following passages will con
vey but a dim idea :
" The Old World stretches out her arms to tlie New. The
starving parent supplicates the young and vigorous child for
bread. There lies upon the other side of the wide Atlantic a
beautiful island, famous in story and in song. Its area is not so
great as- the State of Louisiana, while its population is almost
half that of the Union. It has given to the world more than
its share of genius and of greatness. It has been prolific in
statesmen, warriors, and poets. Its brave and generous sons
have fought successfully all battles but their own. Iu wit and
humor it has no equal ; while its harp, like its history, moves to
tears by its sweet and melancholy pathos." . Into this fair region
God has seen fit to send the most terrible of all those fearful
ministers who fulfil His inscrutable decrees. The earth has
failed to yield her increase. The common mother has forgotten
her offspring, and her breast no longer affords them their
accustomed nourishment. Famine, gaunt and ghastly famine,
has seized a nation with its strangling grasp, and unhappy
Ireland, in the sad woes of the present, forgets, for a moment,
the gloomy history of the past. We have assembled, fellow-
citizens, to express our sincere sjonpathy for the sufferings of
Our brethren, and to unite in efforts for their alleviation. This
is one of those cases in which we may without impiety assume,
as it were, the functions of Providence. Who knows but what
oue of the very objects of this great calamity is to test the
benevolence and worthiness of us upon whom unlimited abuu-
'dance has been showered. In the name, then, of common
humanity, I invoke your aid in behalf of starving Ireland. He
who is able and will not give for such a sacred purpose, is not
a man, and has no right to wear the form. He should be sent

230 BENCH AND BAR OF MISSISSIPPI.
back to nature's mint, and reissued as a counterfeit on humanity
of nature's baser metal.
" Oh, it is terrible, that in this beautiful world which the
good God has given us, and in which there is plenty for us all,
men should die of starvation ! You who have never been be
yond the precincts of our own favored country ; you, more
especially, who have always lived in this great valley of the Mis
sissippi — ^the cornucopia of the world — who see each day poured
into the lap of your city food sufficient to assuage the hunger of
a nation, can form an imperfect idea of the horrors of famine,
of the terror which strikes men's souls when they cry in vain
for bread. When a man dies of disease, he alone endures the
pain. Around his pillow are sympathizing friends, who, if they
cannot keep back the deadly messenger, cover his face and con
ceal the horrors of his visage as he delivers his stern mandate.
" In battle, in the fulness of his pride and strength, little
recks the soldier whether the hissing bullet sing his sudden
requiem, or the cords of life are severed by the sharp steel.
But he who dies of hunger wrestles alone, day after day, with
his grim and unrelenting enemy. He has no friends to cheer
him in the terrible conflict ; for if he had friends, how could
he die of hunger ? He has not the hot blood of the soldier to
maintain him ; for his foe, vampire-like, has exhausted his
veins. Famine comes not up like a brave enemy, storming,
by a sudden onset, the fortress that resists. Famine besieges.
He draws his lines around the doomed garrison ; he cuts off all
supplies ; he never summons to surrender, for he gives no
quarter. Alas for poor human nature ! how can it sustain this
fearful warfare ? Day by day the blood recedes, the flesh
deserts, the muscles relax, and the sinews grow powerless.
At last the mind, which at first had bravely nerved itself for
the contest, gives way under the mysterious influences that
govern its union with the body. Then the victim begins to
doubt the existence of an overruhng Providence ; he hates his
fellow-men, and glares upon them with the longings of a canni
bal, and it may be dies blaspheming !
" Who will hesitate to give his mite to avert such awful
results ? Surely not you, citizens of New Orleans, ever famed

SERGEANT S. PRENTISS. 231
for your deeds of benevolence and charity. Freely have your
hearts and purses opened, heretofore, to the call of suffering
humanity. Nobly did you respond to oppressed Greece and
struggling Poland. Within Erin's borders is an enemy more
cruel than the Turk, more tyrannical than the Russian. Bread
is the only weapon that can conquer him. Let us, then, load
ships with this glorious munition, and in the name of our com
mon humanity wage war against this despot. Famine. Let us
in God's name ' cast our bread upon the waters,' and if we
are selfish enough to desire it, we may recollect the promise,
that it shall return to us after many days.
" If benevolence is not a sufficient incentive to action, we
should be generous from common decency ; for out of this
famine we are adding millions to our fortunes. Every article
of food, of which we have a superabundance, has been doubled
in value by the very distress we are now called upon to alle
viate. " We cannot do less, in common honesty, than to divide
among the starving poor of Ireland a portion of the gains we
are making out of their misfortunes. Give, then, generously
and freely. Recollect that in so doing you are exercising one
of the most godlike qualities of your nature, and at the same
time enjoying one of the greatest luxuries of life. We ought
to thank our Maker that He has permitted us to exercise, equally
with Himself, that noblest of even the Divine attributes, be
nevolence. Go home and look at your family, smiling in rosy
health, and then think of the pale, famine-pinched cheeks of
the poor children of Ireland, and I know you will give accord
ing to your store, even as a bountiful Providence has given to
you — not grudgingly, but with an open hand ; for the quality
of benevolence, hke that of mercy, " ' is not strained ;
It droppeth as the gentle rain from heaven,
rpon the place beneath : it is twice blessed :
It blesseth him that gives and him that takes.' ."
It is to be regretted that the remaining portions of this speech
have not been preserved in their original beauty and purity.

232 BENCH AND BAR OF MISSISSIPPI.
They were rejected by Mr. Prentiss as having been spoiled by
the reporter.
It is useless to state the effect of this noble and touch
ing appeal upon the hearts of the generous citizens of New
Orleans. They gave, and gave freely. The vessels were laden,
and the fruits of this appeal were tasted by many a famished
mouth ; while the prayers and blessings that went up from
thousands of woe-stricken hearts, for the unknown hand that
had set this tide of generosity in motion, might have opened
the gates of heaven to a fiend.
But if benevolence was a pre-eminent trait in the character of
Mr. Prentiss,' his magnanimity was equally conspicuous ; while
the fire of his ardor rendered him, at times, fierce in his denun
ciations, he was a generous foe, and quick to make the amende
honorable when circumstances required. This quality was
strikingly demonstrated during an unpleasant episode that
occurred in 1848, the circumstances of which were as follows : ,
James Erwin, a man of high standing and the son-in-law of
the great Henry Clay, during some pecuniary transactions in
New Orleans was made the subject of a suit which involved the
charge of fraud, and conduct of a very dishonorable character.
Mr. Prentiss was retained for the prosecution of the cause, in
which capacity he encountered the venerable and distinguished
-lohn R. Grimes, at that time the acknowledged head of the
New Orleans bar. The contest between them was that of
JEschines and Demosthenes, without their animosity. It was
like the conflict of Cicero and Hortensius on the trial of Murseua.
Mr. Prentiss was iu wretched health at the time, which together
with his pecuniary embarrassments rendered him, no doubt,
unusually excitable and morose. These, conjoined -with the
vigor of the defence, caused him to transcend the bounds of his
usual propriety so far as to assault the character and conduct of
the defendant beyond the measure justified by the record. He
is said to have been on this occasion extremely bitter and vitu
perative, and turning upon the defendant poured upon his head
streams of the most caustic and withering animadversion, and
on being interrupted by the counsel for the defence he pro
claimed himself personally responsible for his language.

SERGEANT S. PRENTISS. 233
Soon after the close of the trial, Henry Clay Erwin, son of
the defendant, a young man of only twenty years of age, and
who resided in Kentucky, proceeded to New Orleans, and im
mediately challenged Mr. Prentiss to mortal combat. The
challenge was peremptory. ' It gave him no chance for explana
tion, and left him no alternative but to fight or back down.
Mr. Prentiss at first, in view of the circumstances and the tender
years of his antagonist, listened to the persuasion of his friends,
and hesitated ; but the young man nobly claimed the right to
assume the quarrel of his father, and demanded an immediate
answer. On the next morning Mr. Prentiss announced to his
friends that he appreciated the feelings of " the gallant boy,"
as he caUed him ; that he could not deny him the right he
claimed, aud that he should accept the challenge ; yet he post
poned the meeting for two weeks, for the purpose of arranging
his private affairs, and in hope that the interval might afford
au opportunity for an accommodation. This, through the exer
tions of mutual friends, was finally effected. The chaUenge was
-withdrawn, and Mr. Prentiss retracted the offensive language.
After the adjustment, Mr. Prentiss addressed the following
graceful aud characteristic note to Mr. Erwin's second :
" RoBEET Johnson, Esq.
" Deae Sie : I am sincerely gratified that the difficulty be
tween Mr. Henry Clay Erwin and myself has been amicably ad
justed. From the beginning of this affair I have not enter
tained an unkind feeling toward Mr. Henry Clay Erwin. On
the contrary, I honor and appreciate the sentiments by which
he has been actuated, aud under similar circumstances should
probably have acted as he has done.
" I can now say frankly, what might heretofore have been at
tributed to improper motives : I disclaim all personal or im
proper feelings iu the matter out of which this controversy arose,
as well as all knowledge or approval of the newspaper publica
tions in relation to my remarks. I respond fully to the high
and honorable sentiments which have marked your course in
this matter, as well as that of your associates, and it gives me
pleasure to acknowledge the same."
The magnanimity of Mr. Prentiss on this occasion elicited a
beautiful letter from Mr. Clay, expressing his joy at the result,
and thanking him for his noble bearing towards his grandson.

234 BENCH AND BAR OF MISSISSIPPI.
Not-withstanding his natural amiability and gentleness of dis
position, Mr. Prentiss, during his heated canvasses in Mississippi,
found himself called upon to engage in two duels, both of
which w-ere fought -with Hon. Henry S. Foote, who was long
one of his most strenuous political opponents. It was on one
of these occasions, when his pistol had snapped and Mr. Foote's
ball had passed over his head, that, on taking his position for
a second shot, he saw a. little boy ascending a tree in his rear,
for the purpose of obtaining a better observation, and turning
to him he cautioned him of his danger, remarking that Gen
eral Foote was shooting very, wildly that day.
Notwithstanding his promptness to resent a personal insult,
and his readiness to accept personal responsibilities when his
honor was in the least involved, he harbored not a revengeful
thought, and was as ready to forgive as to propitiate. But he
was in disposition by no means a saint or puritan. He was
more of a gay, dashing, reckless cavalier ; more of a Coeur de
Lion than a John Knox, and more of a John Smith than a
John Carver.
His beautiful letters to his mother and sisters have already
been referred to. They breathe the very essence of genuine
affection, and exhibit the poised scales of the inner man. His
love for his vrife and children seemed unbounded ; indeed, for
many years before his death this seemed to be the only chain
that bound him to the world, whose beauties he could so gor
geously depict. His health, which had long been feeble, became
in 1849 so threatening as to occasion the utmost alarm to his
friends. He became subject to a chronic dysentery, which was
very much aggravated if not induced by his habits of life. This
disease continued to grow at times more malignant until June,
1850, when he became so emaciated as to be unable longer to
attend to any business, which he refused to abstain from so long
as he was capable of the least exertion. His last effort at the
bar was made in the defence of General Lopez, the Cuban pa
triot, before the United States court. In behalf of this individ
ual, while he denounced his American abettors, his sympathies
were warmly enlisted, and his exertions on the occasion utterly
prostrated his last physical powers. He now consented to be

SERGEANT S. PRENTISS. 235
carried with his family to Natchez. Here he continued to rap
idly decline, until the 1st day of July, 1850, when his spirit
soared away to those beautiful realms from which he had always
drawn his noblest inspirations, and the conception of whose
beauties had modeled his grandest images.
The burial service was impressively performed by the vener
able Bishop Green, of the Episcopal Church, who is still living
to pronounce that last sad requiem of humanity, " Dust to dust,
ashes to ashes." He was laid away by the side of the great
river where he first stepped upon the shore of his splendid
triumphs. The death of Mr. Prentiss produced a deep and general feel
ing of regret throughout the country. Glowing eulogies upon
his character and abilities were made at a meeting of the bar of
New Orleans, and touching tributes were paid to his memory
by the members of the profession in Natchez, Vicksburg, and
Jackson ; but as all these were of the same tenor and sub
stance, the proceedings of the bar of Jackson only are intro
duced :
"Pursuant to notice, the members of the Jackson bar assem
bled in the court-room of the chancery court, July 15th, 1850,
to -take some measures to express their sentiments relative to the
decease of the Hon. Sergeant S. Prentiss.
" On motion, Colonel J. F. Foute was called to the chair, and
L. V. Dixon appointed secretary. After a few remarks from the
chair more expressive of tiie object of the meeting, on motion,
WiUiam Yerger, John I. Guion, Caswell R. Clifton, and Dan
iel W. Adams, were appointed a committee to prepare a suit
able preamble and resolutions, who reported the foUowing,
which were unanimously adopted :
' ' The members of this bar have learned with unfeigned sor
row that their former companion and brother, the Hon. Ser
geant S. Prentiss, has departed this life. For upwards of fifteen
years Mr. Prentiss was a citizen of the State of Mississippi,
and during that period he established a reputation for legal
learning and ability, for high-souled and chivalrous patriotism,
and for spotless integrity and unsullied honor, which will en
dure as long as such qualities and virtues are cherished among

236 BENCH AND BAR OF MISSISSIPPI.
us. As an orator, the reputation of Mr. Prentiss is national.
As a lawyer, the judicial annals of our country have been illus
trated by no brighter name or loftier intellect. As a politi
cian, he received the unlimited confidence and support of one
great party, w^hile his political opponents accorded to him un
questionable integrity of purpose and sincere devotion to his
country. It is a source of pleasure aud of pride to his friends
to recount these things. Yet to the members of the bar, who
knew him well and intimately, his social qualities, and the gen
erous impulses of a heart which always beat responsive to every
sentiment of honor, friendship, manhood, and truth, render his
name more dear than the brightest achievements of his intellect. ,
Therefore, " 1. Resolved, That as au orator, a statesman, aud a jurist,
the fame of Mr. Prentiss will adorn the brightest page iu the
history of the Republic.
" 2. Resolved,, That the name of Prentiss is identified with
the history of Mississippi, and his memory will be forever
cherished among the dearest and worthiest of her sons.
" 3. Resolved, That in the death of Mr. Prentiss the legal pro
fession has lost one of its brightest ornaments, and the members
of this bar have lost a friend, endeared to them by every manly
and social virtue which could add to the enjoyment of profes
sional intercourse.
' ' 4. Resol/oed, That, as a tribute to the memory of the de
ceased, the members of this Bar will wear the usual badge of
mourning for thirty days ; and that John I. Guion, Charles
Scott, and Daniel Mayes be appointed a 'committee to present
the foregoing preamble and resolutions to the supreme and
chancery courts, and ask that they be entered on the minutes
of each of said courts.
" 5. ResoVoed, That John I. Guion be requested, at the Jan
uary session of the High Court of Errors aud Appeals, to deliver
au address commemorative of the distinguished abilities and
the exalted private virtue of the deceased.
" 6. ResoVoed, That a copy of these resolutions be forwarded
to the family of Mr. Prentiss, with the assurance of the sincere

SERGEANT S. PRENTISS. 237
condolence of the members of this bar in their great bereave
ment. "7. Resolved, That the city papers be requested to publish
these proceedings. "J. T. FouTK, President.
" L. V. T>ix.o^, Secretary."
At the opening of the session of the United States District
Court iu New Orleans, in November, 1850, the District- At
torney presented the resolutions of the bar of that city in refer
ence to the death of Mr. Prentiss, and moved that they be
placed upon the records of that court, upon which Judge
McCaleb delivered the following pathetic eulogy :
" In granting the motion just made by the District- Attorney,
I shall be excused, I trust, if I embrace the occasion to make
a few remarks.
" Amid the painful regrets we experience at the loss of Mr.
Prentiss, we can still dwell with a melancholy pleasure upon his
many noble qualities of head and heart. As the learned, able,
and eloquent advocate, he was at all times the object of our
warmest admiration ; as the kind and confiding friend, the hon
orable and chivalric gentleman, he had secured our affection
and lasting regards. In our sOrrowful reflections upon his de
parture from the active scenes of life, we can truly say that a
lawyer of extensive and profound acquirements, an orator of
rare powers of argumentation and of most briUiant fancy, a
man of unsullied honor, a patriot of ardent devotion and un
daunted courage, and a friend whose generosity knew no
bounds, has prematurely passed from the theatre of his useful
ness and his fame.
" The intellectual endowments of Mr. Prentiss presented a re
markable example in which great logical powers and the most
-vivid imagination were happily blended. With all his readi
ness in debate, he never failed, when au opportunity offered, to
enter into the most laborious investigations to obtain the mas
tery of a subject. If he frequently sought to amuse, he rarely
failed at the same time to instruct an audience. The rapidity
with which he seized the strong points of a case, added to his un-

238 BENCH AND BAR OF MISSISSIPPI.
tiring assiduity, rendered him at all times a most formidable
adversary. " In happy exhibitions of extemporaneous eloquence, in strik
ing illustrations, by a rapid and harmonious succession of brill
iant metaphors, he was rarely if ever excelled. But those who
regarded him as a merely eloquent declaimer were widely mis
taken in their estimate of his powers. His honorable zeal in
the assertion of the rights of a client, his high professional pride,
his respect for an adversary and the court, prompted him, in all
eases of importance, to a diligent and careful preparation. His
own wonderful powers of illustration were at all times supported
by the solemn mandates of authority ; aud the facility with
which he was wont to call to his aid the thoughts or effusions of
others, proves him to have been a student of an extraordinary
memory and of unremitting diligence. His ideas of intellect
ual excellence were formed by au attentive study of the best
models ; and those who enjoyed with him the pleasures of social
intercourse are aware with what humihty and veneration he
paid his devotions to the shrine of ancient genius. No man,
with all his admiration of modern excellence, was more prompt
in according superiority to those master spirits of antiquity
whom modern genius, with all its boasted progress, has yet sig
nally failed to outstrip in the race of true greatness and glory.
" It was in 1845 that Mr. Prentiss removed from the State of
Mississippi to this city, with a view to a permanent residence,
and for the purpose of pursuing the practice of his profession.
He came with a brilliant reputation as a lawyer and an orator ;
and I think it will be admitted by every candid mind that the
public voice, in other sections of the Union was not extravagant
in its estimate of his abilities. His almost unprecedented suc
cess as an advocate before the tribunals of Mississippi ; his elo
quent efforts in the pohtical arena, before large popular assem
blages in different parts of the country, and in the hall of the
House of Representatives of the United States, had gained him
universal applause, and indisputably established his claims to the
possession of talents of the highest order. It was my fortune
to be present at the Capitol at Washington in 1838, during the
long and exciting debate which arose out of the Mississippi con-

SERGEANT S. PRENTISS. 239
tested election. The most prominent champions who entered
the list on that interesting occasion were Mr. Prentiss himself,
then claiming his seat, and Mr. Legare, the distinguished jurist
and scholar from South Carolina. It is neither my province
nor desire to decide to whom belonged the chaplet of victory.
It is sufficient to say that the powerful and briUiant efforts of
Mr. Prentiss, in the defence of his trying and important position
as chaUenger of all comers, received the most enthusiastic en
comiums from political friends and foes ; and I take pleasure
in testifying that from none did I hear a more unqualified ex
pression of approbation than was given to me subsequently, in a
social interview, by the generous and accomplished antagonist
to whom I have alluded.
" The speech of Mr. Prentiss on that occasion was published
in the journals of the day, and is among the very few of his
remarkable exhibitions of argument and oratory remaining for
the admiration of posterity.
" We are told by Macaulay, in his elegant review of the
writings of Sir William Temple, that ' of the parhamentary
eloquence of the celebrated rivals (Shaftesbury and Hahfax)
we can judge only by report. . . . Halifax is described
by Dryden as
" ' Of piercing wit and pregnant thought.
Endowed by nature and by learning taught
To move assemblies."
Yet his oratory is utterly and irretrievably lost to us, like that
of Somers, of Bolingbroke, of Charles Townsend, of many
others, who were accustomed to rise amid the breathless expec
tation of senates, and to sit down amid reiterated outbursts of
applause. Old men, who had lived to admire the eloquence of
Pulteney in its meridian, and that of Pitt in its splendid dawn,
still murmured that they had heard nothing like the great
speeches of Lord Halifax on the Exclusion Bill.'
" These observations on what must ever be regarded as most
important omissions in the annals of parhamentary and forensic
eloquence iu England, remind us forcibly of similar omissions iu
our own history — omissions the more to be regretted because

240 BENCH AND BAR OF MISSISSIPPI.
they deprive us forever, as in the case of our lamented friend,
of the noble sentiments luminously arraj-ed, of those with whom
for years we have daily enjoyed the delights of social inter
course. " In the case of Mr. Prentiss, the omission is the more unac
countable, and perhaps the more unpardonable, because of the
great advantages he possessed of a finished education, and of his
extraordinary readiness as a writer as well as a speaker. It was
indeed a source of regret among his countless admirers that,
with all his professional pride, with aU his aspirations for profes
sional distinction, and all his ambition for victory in the pohti
cal arena, he should have manifested such utter indifference to
posthumous fame. He was sensitive to everything relating to
his character as an honorable man ; he was careful to preserve
untarnished the fair escutcheon of an honorable name ; yet in
the great intellectual conflicts in which he was so frequently
engaged he was content with the contemporary applause so
bountifully bestowed, and looked no farther. Posterity indeed
will never be able to appreciate his intrinsic worth ; but his power
ful logic, his brilliant wit, the radiant coruscations of his fancy,
his keen sarcasm and his melting pathos, will be treasured in
the grateful recollections of those who were permitted to wit
ness their effect. They will long be remembered as the
" ' Fruits of -a genial morn and glorious noon,
A deathless part of him who died too soon. '
" I have alluded to the professional pride of Mr. Prentiss. Eo
man regarded with more profound veneration the luminaries of
the law, and no man was more emulous of their triumphs. He
felt that the science itself presented the noblest field for the ex
ertion of the intellectual faculties, and was deeply sensible of
the high responsibilities assumed by all who embark in it as a
means of acquiring a livelihood. He treated with scorn the -vul
gar prejudice against it, founded upon the faults or delinquen
cies of its unworthy members. It was the profession which, in
his opinion, furnished the materials to form the statesman. It
was the profession from which the patriot could provide the
most efficient weapons to vindicate the freedom and honor of

SERGEANT S. PRENTISS. 241
his country. The boldest and most devoted champions of pop
ular liberty, iu every civihzed age and in every civilized clime,
were, in his opinion, to be found iu the ranks of the legal pro
fession. He believed that in our own country they afforded one
of the strongest bonds of the National Union. His sentiments on
this subject were delivered with characteristic energy and zeal,
and were suggested by the request with which he had been
honored, by the Law Association of Harvard University, to de
liver the address at its annual celebration. I can never forget
the feelings of gratified pride he expressed on the reception of
that invitation, or the emotions of regret he betrayed at being
compelled by his feeble health to decline it. Had his physical
strength been adequate to the task, Petrarch in the solitudes of
Vaucluse never responded with a prouder enthusiasm to the
summons from the metropolis of the world, to receive iu its
capital aud from the hands of a Senator of Rome 'the laurel
crown as the reward of poetic merit, than would our orator have
obeyed the request of the members of his noble profession in
that ancient university. But the triumph of Petrarch was not
reserved for our friend. His melancholy fate more solemnly
reminds us of that other devoted child of Italian song, who
had ' poured his spirit over Palestine,' and whose summons to
the honors of the laurel wreath was but a summons to his
grave. " We feel that it was but yesterday we beheld our friend here
in this hall, in the ardent and energetic discharge of his profes
sional duties, -with a countenance pale and emaciated, but radiant
with the fire of geuius ; -with a frame feeble and exhausted from
the ravages of disease, but with a spirit undaunted, a mind ever
luminous, and exhibiting in every effort its almost superhuman
energy. His mighty soul seemed ' swelling beyond the meas
ure of the chains' that bound it within its frail tenement. His
surrender at last to the King of Terrors was the result of an
other victory of genius over a favorite son, and forcibly recalls
the lines of the poet, in allusion to the death of a kindred
spirit : " ' 'Twas thy ov,-n genius gave the final blow.
And helped to plant the wound that laid thee low ;
16

242 BENCH AND BAR OF MISSISSIPPI.
So the struck eagle, stretched upon the plain.
No more through rolling clouds to soar again.
Viewed his own feather in the fatal dart.
And winged the shaft that quivered in his heart. '
' ' Amid the excitement of the forum he was unconscious of the
rapid decay of the organs -of life. Heedless ahke of the solemn
admonition of friends and the increasing debility of an over
tasked and broken constitution, he continued, day after day, to
redouble his exertions, and seemed to regulate his physical ac
tivity by the mighty energies of a mind that scorned all sympa
thy -with the feeble frame on which it was dependent for sup
port. One of the most important arguments made by him be
fore this tribunal— 1 allude to that in the case of the heirs of
Pultney vs. the City of Lafayette — was dehvered from his seat,
his declining health rendering it impossible for him to stand in
the presence of the court ; and yet I may with confidence ap
peal to his able and generous antagonist on that occasion, to
bear testimony to the systematic arrangement and masterly abil
ity with which every argument, and all the learning that could
tend to the elucidation of the important questions involved,
were presented to the court.
' ' I have thus, gentlemen of the bar, in a manner perhaps some
what unusual, though I trust not inappropriate to the occasion,
availed myself of the opportunity afforded by the presentation
of your eloquent resolutions to mingle my o-wn feeble voice with
the strains of eulogy which have already been heard, in heart
felt tributes to private and public worth ; to add my own hum
ble offering at the shrine of genius ; to hang my own garland
of sorrow over the tomb of a long-cherished friend :
" ' To mourn the vanished beam, and add my mite
Of praise, in payment of a long delight.' "
The close of this touching tribute of Judge McCaleb seems
indeed a fit point to terminate this sketch ; yet I will add a few
passages from an article that appeared m the New Orleans Pelta
at the time of the death of Mr. Prentiss, which sparkle with an
eloquence and genius strikingly kindred to that which they

SERGEANT S. PRENTISS. 243
seek to picture and commemorate. It was from the pen of Mr.
Walker, then editor of that paper, and a stanch political oppo
nent of Mr. Prentiss :
" One of the most gifted men this country has ever pro
duced, has fallen, in the very meridian of his genius and
usefulness ! Sergeant S. Prentiss is no more ! Almost friend
less and unknown, he made his appearance at the bar of
Mississippi, and soon a weak and debilitated boy, with gentle
lisp, and supported by a sustaining cane, was seen stealing away
the technical hearts of stem judges, and weaving seductive tales
in the honest ears of sworn jurymen. Resistless as the pene
trating breeze, his juvenile eloquence searched every avenue of
thought and feeling. The classic page and the varied mass of
modem literature were conveniently stored away in the massy
caverns of his broad and fertile intellect. A close train of di
dactic "reasoning on the most abstruse legal topic was lit up
with the pyrotechnic fires of his fancy. The most ordinary in
cidents of life, the merest commonplaces, were caught up on the
wings of his imagination and blended and effectively commin
gled, in his illustrative oratory, with the boldest and most gor
geous metaphors.
" With such talents, it will eixcite no surprise that he met
-with the most brilliant success at the bar. Located iu Vicksburg,
almost at a bound he leaped into the very highest position at
the bar of Mississippi.
" Few men in this country have ever risen more rapidly, or
sustained themselves more successfully. Of Mr. Prentiss's
career as a politician we need not speak : it will be found in the
history of the country. His speeches in Congress secured him
the most extended reputation as an orator. But, in truth, he
had no taste for political life. He soon returned to his favorite
arena — the bar — and resumed his splendid practice. The finan
cial troubles of 1836 fell upon Mr. Prentiss with great severity.
He lost by them a princely fortune. In consequence of these re
verses he removed to this city, as affording a larger sphere for
the exercise of his talents. Here he immediately took his posi
tion among the foremost of our lawyers. Many gentlemen of
the bar, of great eminence in States where the common law

244 BENCH AND BAR OF MISSISSIPPL
prevails, had not sustained here the reputation which they
brought with them. Mr. Prentiss was an exception to this re
mark. The remarkable quickness and analytical power of his
intellect enabled him in a very short time to master the rules
and theory of a system of jurisprudence quite different from
that in which he had long been trained. He soon achieved a
position at the bar of New Orleans as prominent as that he
occupied in Mississippi.
" Nor was his mind ' cribbed, cabined, and confined' within
the narrow limits of a mere professional life. He always iden
tified himself with every project of patriotism, benevolence,
charity, or literature that was agitated in his vicinage. A
monument to Franklin, or a sympathetic appeal in favor of strug
gling Hungary, or a donative response to the tearful orphan, or
a commemoration of the birthday of the Bard of Avon, would
equally fire his soul and syllable his tongue. He possessed one
of the most highly endowed intellects we ever knew. His
memory was singularly retentive, so that he could repeat whole
cantos of Byron on the moment. His logical faculty was very
acute and discerning. It w^as often the complaint of the court
and his brother lawyers that he would argue a case all to
pieces. ^ He would penetrate to the very bottom of a subject,
as it were, by intuition, and lay it bare in all its parts, like a
chemist analyzing some material object, or a surgeon making a
dissection. " His reading was full and general, aud everything he gathered
from books, as well as from intercourse with his fellow-men,
clung to bis memory, and was ever at his command.
" But his most striking talent was his oratory. We have never ¦
known or read of a man who equalled Prentiss in the faculty of
thinking on his legs, or of extemporaneous eloquence. He re
quired no preparation to speak on any subject, and on all he
was equally happy. We have heard from him, thrown out in a
dinner-speech or at a public meeting, when unexpectedly called
on, more brilliant and striking thoughts than many of the most
gifted poets and orators ever elaborated in their closets. He
possessed a rare wit. His garland was enwreathed -with flowers
culled from every shrub or plant, and from every cUme. And

JOHN I. GUION. 245
if at times the thorn lurked beneath the bright flower, the wound
it inflicted was soon assuaged and healed by some mirthful aud
laughter-moving palliative.
' ' His heart overflowed with warm, generous, and patriotic feel
ings. He was as brave and chivalrous as Bayard, as soft, ten
der, and affectionate as a loving child untainted by the selfish
ness of the world. His bosom was the home of honor, and all
narrow, selfish feelings were foreign to his nature.
"It is proper that such a mind should thus glide from these
scenes of worldly trouble. It is just that a bright exhalation,
which has shoue so brilliantly, should disappear thus suddenly
ere it begins to gradually fade and flicker ; that the flre of so
noble an intelligence should not diminish, and slowly go out
amid decrepitude and physical decay ; but that, like the meteor
shooting across the heavens, illuminating the earth, it should
sink suddenly and forever into the earth from which it sprung. "

JOHN I. GUION.
The subject of this sketch was born and reared in Adams
County, Mississippi. His parents were natives of South Caro-
hna, aud were of Huguenot origin. Mr. Guion was educated
in Tennessee, and studied law at Lebanon in that State. Here
he met William L. Sharkey, and here a friendship was con
tracted between them which subsisted throughout their lives.
On returning to Mississippi they entered into a copartnership
for the practice of law, in Vicksburg, which association existed
until Judge Sharkey was raised to the circuit bench, in 1832.
Mr. Guion then united in practice with the celebrated Sergeant
S. Prentiss, who was then approaching the height of his foren
sic fame, and this copartnership continued until 1836. During
that year the Legislature established an inferior court of ex
clusive criminal jurisdiction in the counties of Warren, Clai
borne, Jefferson, Adams, and Wilkinson. It was styled the
" Criminal Court," and had concurrent jurisdiction with the
circuit courts of these counties over aU crimes, misdemeanors,
and matters of a ci-imihal nature. Mr. Guion was appointed

246 BENCH AND BAR GF MISSISSIPPL
the first judge of this court, over which he presided about a
year, and then resigned. Judge Guion now resumed the prac
tice of law, and his old partner, Mr. Prentiss, having been
elected to Congress, he associated with him William C. Smedes.
In 1851 Judge Guion was President of the Mississippi Sen
ate, and on the resignation of Governor Quitman, in Febmary
of that year, became, by virtue of his office, acting Governor
of the State, which position he held until the next Governor-
elect was inaugurated, in 1852.
On his retirement from the executive chair Judge Guion
was elected judge of the Circuit Court, which seat he occupied
until the time of his death, which occurred iu 1855.
Judge Guion was one of those characters whose lustre glows
with a serene and steady light, aud which was never shadowed
by" the brilliancy of his eminent professional associates. While
the genius of Mr. Prentiss dazzled with its gorgeous flashes,
that of Judge Guion enchanted admiration, not so much by its
magnitude as by the fixed mellowness of its effulgence.
As a judge he was able, upright, and pure, readily comprehen
sive of every point upon which a proposition hinged, liberal in his
interpretation of law for the advancement of justice, and watched
the poise and inclination of its scales with a jealous and consci
entious eye.
As a lawyer Judge Guion was fully worthy of the eminent
distinction he enjoyed. Thoroughly versed in all the principles
of the science, he was proficient in all the functions of the pro
fession ; and while he cannot be said to have been assiduous in
application, his great ability and comprehensive views precluded
the necessity of that constant labor which success requires of
ordinary minds. He had in early hfe acquired a thorough
knowledge of the rudiments and fundamental principles of law,
and these he so wove in with his own judgment and percep
tions that they constituted a lucid stream which continually
flowed through his mind, and was constantly fed by the estua
ries of his superb genius.
But while his discussion of legal questions was marked with
great adroitness and force, the power which Judge Guion could
at all times exercise over the minds of the jury constituted.

JOSEPH HOLT. 247
perhaps, the most prominent feature of his forensic eminence.
His great integrity and love of justice, his kindness of heart,
which continually beamed in his face, lurked in every tone of
his voice, and gave air to every act and gesture of the man,
were even superior in effect to the charms of eloquence, in
which he was by no means deficient.
Judge Guion was a great favorite with his brother members
of the bar, and was popular with all classes of the people. He
displayed always a warm and attractive cordiality, a sincere
suavity of manner,- aud a courtesy that gushed from the pure
fountains of benevolence. Indeed, kindness was the controlling
attribute of this great and good man — a man whose abilities were
well worth the fee of fame, aud whose many endearing traits of
character entitle his name to be entwined with wreaths of living
green iu the memory of every Mississippian who delights to
cherish and honor the noblest virtues of humanity.

JOSEPH HOLT.
Joseph Holt was born in Breckenridge County, Kentucky,
in the year 1807. He received a thorough and finished educa
tion in the college at Danville, and was thoroughly trained for
the profession of law. He was admitted to the bar at Ehza-
bethtowu in 1828, soon attained a high rank as a lawyer, aud
served with distinction as district-attorney there, previous to his
emigration to Mississippi. He removed to the latter State in
1837, aud settled first at Jackson, where he resided a short time,
and then removed to Vicksburg. He brought with him to
Mississippi a high reputation both as a lawyer and politician.
He had taken a prominent part in the race of Richard M.. John
son for the Yice-Presidency, and in the National Democratic
Convention of 1836 had delivered a speech that gave him great
credit, and which was read with admiration throughout the
Union. With such a prestige his reception in Mississippi was of
course warm and flattering, and which, with his unassuming
dignity of manners and great ability as a lawyer, placed him at

248 BENCH AND BAR OF MISSISSIPPI.
once in the front rank of the profession, and he became one of
the brightest lights that ever shed lustre upon the bar of Mis
sissippi. Mr. Holt was gifted with a mind of brilliant powers. His
perceptions were remarkably acute and penetrating ; his com
prehension as vast as the range of fact and the fleld of juris
prudence ; and iu the discussion of general principles of law
he had no superior at the Mississippi bar. His mild and gentle
manners, calm demeanor, and dignified bearing, conduced
greatly to the triumphant effect of his logic. His accomplish
ments as a forensic orator were of the most forcible and striking
character. Clear and comprehensive in the statement of his
cases, w^ell fortified at all times by precedent and analogy, lucid
and logical in his arguments, fair and exact in his summation,
with a ready and unlimited command of language, his eloquent
and stirring perorations bore away the sympathy aud judgment
of courts and juries into an irresistible current of conviction.
Mr. Holt was engaged in many of the most important cases
ever brought before the courts of the. State, and was frequently
the opponent of Mr. Prentiss, of whom he was, in someway, con
sidered a prominent rival. Indeed, Mr. Holt had many friends
and admirers who claimed for him the meed of superiority. He
was a strong advocate of Democracy, while Mr. Prentiss was a
Whig, and this caused, no doubt, a claim to be advanced by
their respective friends which neither of the eminent counsel
advocated. They were opponents in the noted case of Vick et
. al. vs. the Mayor and Aldermen of Vicksburg. In this case
Newit Vick, who owned the soil where Vicksburg now stands,
proceeded in 1819 to lay off lots for the future city, leaving tire
space between the front street and the river as a common for
the use of the future inhabitants, and according to this plat
began to dispose of the lots, but died soon after. The town
was built pursuant to this plan, but in 1836 the heirs of Vick
laid claim to the " common." The board of Mayor and Alder
men filed a bill in chancery to quiet title in the city, claiming
that the property had been dedicated by Newit Vick to the
public use.
Mr. Holt was engaged as leading counsel for the complain-

JOSEPH HOLT. 249
ants, and Mr. Prentiss for the defendants. The suit involved
more than half a miUion of dollars, and was managed on both
sides with the most consummate skill and ability. The Chancel
lor decided in favor of the city, upon which Mr. Prentiss ap
pealed to the High Court. The able arguments of the counsel
were written, and are found rejjorted in full in 1 Howard, 379.
In this case the whole question of dedication of easements and
public uses was thoroughly and ably argued. The question is
an interesting and important one, from the fact that it involves
many conflicting precedents, and that there has been no fixed
line dra-wn between express and implied dedications.
The High Court reversed the decree of the Chancellor, and
dismissed the bill and injunctions, upon which Mr. Holt took
the case to the Supreme Court of the United States, which in
tum overruled the decision of the High Court and sustained
the decree.
The arguments iu this case will well repay the close study of
any practitioner.
After ha-ving remained about ten years at the Mississippi
bar, and having reaped an ample fortune from his practice,
Mr. Holt returned to Kentucky, and took up his residence in
the city of Louisville ; soon after which he went abroad, visit
ing various countries in Europe, and on his return to the United
States he was, in 1857, appointed by President Buchanan as
Commissioner of Patents at Washington. In 1859 he became
Postmaster- General, and on the resignation of John B. Floyd,
in 1860, he was placed for a short time at the head of the War
Department. In 1862 he was appointed Judge Advocate General of the
United States army, and iu that capacity took a prominent
part in the trial and exechtion of the unfortunate Mrs. Surratt,
the first woman ever executed by authority of the United States
Government. For his connection -with this matter, whatever
may have been his official attitude and obligations, he has re
ceived, and no doubt will always receive, the disapprobation of
all fair-minded mankind.
After this transaction, and the expiration of his office as Judge
Advocate, Mr. Holt retired from public view, and has since lived

250 BENCH AND BAR OF MISSISSIPPI.
in obscurity. It is hard to conceive that the amiable Joe Holt
of the Mississippi bar was the merciless Judge Holt of the Sur
ratt trial.
Truly may it be said, in view of him, that no man's life is
made up until his death. Whether it be from a higher degree
of conscientiousness or not, yet it is a fact worthy of note that
Judge Holt is the only person immediately responsible for the
issue of that trial who has not come to an unfortunate end ; and
whatever may be his official justification, his name will be for
ever connected with an event that will remain a stigma upon
the Government, which all the waters of Jordan can never
cleanse.

VOLNEY E. HOWARD.
The subject of this sketch was a native of the State of Maine,
where he received a finished education, and was thoroughly
prepared for the profession of law. When quite a young man
he determined to seek for fortune and fame in the great South
west, and turning his steps thither he arrived at the capital of
Mississippi about the year 1830, and immediately entered upon
his profession, in which he so rapidly rose iu the confidence
and esteem of the bar and the people that, in 1837, he -was
chosen reporter of the decisions of the High Court of Errors
and Appeals.
His reports are distinguished for regularity aud systematic
arrangement, and his captions and syllabuses are lucid, compre
hensive, and exact. He also took a prominent part in the poli
tics of the day, and was for several years editor of the Missis
sippian, a newspaper published at the capital, and the leading
Democratic organ of the State. He was a vigorous and caustic
writer, and attacked with scathing rebuke aud sarcasm every
measure which he deemed false to the interest aud welfare of
the people, while he maintained with inveterate alacrity aud
eloquence the true principles of his party.
His paper wielded a great influence throughout the State,
and the force and abUity with which he inculcated his views.

VOLNEY E. HOWARD. 251
caused them to be deeply impressed both upon public policy"
and private enterprise.
Mr. Howard was a man of undoubted ability, and a lawyer
of no ordinary capacity. Like Mr. Prentiss, he came to Missis
sippi without means and without friends, and with the suspicion
and prejudice existing at that time in the minds of the South
ern people against all natives of New England staring him in
the face, and which nothing but the most amiable character,
the most upright conduct, and eminent merit could have so soon
and so completely dispelled as to admit him to the full confi
dence and to the warmest support and patronage of the people.
About the year 1847, Mr. Howard, allured by the spacious
fields of that rising empire, removed to the State of Texas, and
in 1850 was a member of the Texan Legislature, in which he
took an active and able part in the affairs of the State, and in
the interest of the Missouri Compromise measures, which were at
that time agitating the waters of national politics. In conse
quence of which he was sent by the President of the United
States to California, on a mission of importance regarding the
organization of that State, where he established his residence,
and acquired much additional reputation in his profession.
By untiring industry and unswerving devotion to duty he
surmounted difficulties that would have deterred less resolute
spirits from the pursuit of fame, and, bursting from the gyves
of every shackle of circumstances, his abihties carried him
rapidly up the ladder to professional aud pohtical distinction.

252 BENCH AND BAR OF MISSISSIPPI.
ANDERSON HUTCHINSON.
Anderson Hutchinson was a native of Greenbrier County,
Virginia, where he received a common-school English educa
tion, most of which he acquired at intervals while assisting his
father iu his office, which was that of clerk of the county courts.
Here he also acquired some practical knowledge of legal forms
and processes, which was, no doubt, the foundation of those
habits of accuracy and that expertness in the preparation of
legal documents, which cliaracterized his practice.
On reaching the age of manhood Mr. Hutchinson emigrated
to Knoxville, Tennessee, where he was admitted to the bar,
and soon acquired considerable reputation. This he achieved
by means of perseverance and a vigorous devotion to the pro
fession, as well as by the native faculties of his mind, which
the very touch of learning kindled into a flame of genius.
After practising some years at Knoxville, he removed to Hunts
ville, in North Alabama, and there encountered, with increasing
reputatiou, the eminent lawyers of that noted bar. He then
removed to Mississippi, and established his residence in the
town of Raymond, in Hinds County, about the year 1835.
In 1840 he published, in conjunction with Volney E. Howard,
a Digest of the laws of Mississippi, for which the Legislature
allowed him $12,000, purchasing flfteen hundred copies, aud in
1848 he published his Mississippi Code. This is undoubtedly
a work of great merit, and required an incalculable amount of
labor as weU as great ability in its preparation. It is not a
digest, nor revision, nor a compilation of the statutes at large,
but an analytical compilation, excluding all enactments not in
force except those which were necessary to explain some right
originating from them, or requisite for affording an insight into
existing statutes.
The plan of this work conforms to the admirable analysis of
Blackstone's " Commentaries," and in its arrangement presents
a striking novelty as well as an exhibition of marked genius.
This work gave entire satisfaction, aud the Legislature
ordered two thousand copies to be distributed among the officere
of the State.

ANDERSON HUTCHINSON. 253
About the year 1850, Mr. Hutchinson removed from Missis
sippi to the State of Texas, and there acquired such an exalted
reputation as a lawyer and a man of integrity that he was made
one of the judges of the Supreme Court of that State. He had
been but a short time on the supreme bench when, while sitting
on the trial of au important case in the city of San Antonio,
before the boundary lines between the United States and Mexico
had been fully established, a band of armed Mexicans rushed
into the town, captureil the court-house, and carried away the
judge aud other officers of the court as prisoners to the castle
of Perote. Here he was closely confined, and subjected to
great hardships. This act caused a thrill of indignation through-
Out the country, and the American minister at the city of
Mexico, the celebrated Waddy Thompson, promptly demanded
his release and reparation for the outrage from the Mexican
Government. His release was effected, and satisfactory repara
tion made.
Judge Hutchinson then returned to Mississippi, and renewed
his practice in copartnership with Henry S. Foote.
As a lawyer Judge Hutchinson owed his success aud celebrity
more perhaps to an accurate and laborious preparation of his
cases than to any pre-eminent feature of ability. He was deeply
read in the law, and by application and indefatigable industry
availed himself fully of his extensive knowledge and good judg
ment. The accuracy of his pleadings, his uniform urbanity and
simplicity of manners, his fidelity to his clients, and the force
of character which he brought to bear upon a cause, all con
tributed to his great popularity aud success. He possessed an
extraordinary degree of promptness, decision, and energy,
which, with a sincere kindness of heart and love of justice,
enlisted for him a confidence which no power could shake. He
died in the year 1853.

254 BENCH AND BAR OF MISSISSIPPI.
DANIEL MAYES.
Daniel Mayes was a native of Kentucky, and had achieved
success aud reputation at the bar of that State prior to his re
moval to Mississippi. He came to this State about the time of
the exodus of the Chickasaws and Choctaws, au event which
occasioned a renewed tide of immigration of all classes of per
sons to occupy the lands vacated by the Indians. He had also
filled with distinction a chair as professor of law iu the Transyl
vania University, aud found at the bar of Mississippi many of
the younger members whose legal knowledge was due to his
instruction, and who entertained great respect for his personal
qualities, and a profound reverence for his professional abilities.
He established his residence at the capital of the State, aud im
mediately entered upon a highly successful and brilliant career
at the Mississippi bar.
His knowledge of law was scientific and thorough, and he
was a master of the intricate system of common-law pleading,
which,' notwithstanding the statutory simplification, afforded him
great advantage in the preparation of his cases and in the pre
sentation of special issues. His reputation, dignity of charac
ter, and urbanity of manners, soon engaged a confidence which
caused him to be called in the most important cases, and to
become involved in the most distinguished competition. Yet
his learning and legal abihty in every instance achieved the full
measure of expectation.
His arguments were characterized by a depth of research, an
astuteness of reason, and a logical exactness difficult to re
fute or even to palliate under ordinary circumstances. Every
volume of reported decisions responded to his call for precedent,
and his acute observation and keen comprehension extracted
authority from the most subtle analogies.
His argument in the case of Jane B. Ross et al. vs. Vertner
etal.,^ Howard (Appendix), is a brilliant exemplification of
these traits. «
In this case the superiority of the right of inheritance over
that of devise is luminously discussed and triumphantly vindi
cated. He contends that the right of inheritance is founded in

DANIEL MAYES. 255
nature as well as in the laws of the land ; that it is of higher
antiquity, as recognized and established by human law, than the
testamentary right ; and that the testamentary right, so far as
it exists by human law, was instituted not because of its con
forming to human reason or right, but to prevent certain abuses
growing out of the original, indefeasible nature of the right of
inheritance, such as the disobedience of children aud the neglect
of filial duties, and to prevent " the robust title of occupancy
from again taking place."
He ridicules the use made in the arguments of the Chancellor,
of the parenthetical expression of Sir William Blackstone, that
the power given to a dying person of continuing his property
by disposing of his possessions by will is " a hind of secondary
law of nature, ' ' aud adds : ' ' This phrase of Blackstone, ' a hind
of secondary law of nature,' is one of the few expressions to be
found in that very accurate and learned author which conveys
no idea to the mind. I defy any one to fix a definite and dis
tinct idea to, and give a definition of the phrase, ' a hind of
secondary law of nature. ' We can see what the author meant,
by resorting to the preceding words, but otherwise these words
are a mere empty sound. Blackstone himself considered the
phrase of no import, and therefore threw the words into paren
thesis as not affecting the sense of, or being important to, the
paragraph ; aud yet the Chancellor lays hold of. this loose paren
thesis, thrown into a sentence rather by way of fiourish than to
illustrate the subject, aud which evidently has no reference to
the position which Blackstone was maintaining, and makes that
loose expression the turning point of his opinion."
This able and elaborate argument of Mr. Mayes will well
repay careful perusal and reflective study. Yet in reply to the
argument of the opposing counsel, that a person may, unless
prohibited by law, direct in his will any disposition of his prop
erty after his death which he could have legally made during
his lifetime, it seems to the writer that he might have properly
taken a position which he hesitated to assume — namely, that
the right of posthumous dominion is not coextensive with the
right of disposing of one's property whilst living. If the words
" may direct in his wUl" imply an obligation upon the law t<

256 BENCH AND BAR OF MISSISSIPPI.
aid in executing the privilege granted, without which it would
be of no avail, it is certainly subject to restrictions which have
no power over the exercise of personal control. A man may
take his property to the middle of the Atlantic, and there
empty it into the sea, without legal restraint, but should he
direct such a disposition of it by his will — au institution which
derives its origin and power of operation only from positive
law — would that law lend its aid to the enforcement of such a
heartless behest ? or would it not rather intervene to frustrate
such an impolitic destruction, notwithstanding that all the
powers of metaphysics should combine to establish the sanity of
the testator ?
A man may make many dispositions of his property, in their
nature contrary and repugnant to all reason, provided he affects
neither the rights nor the morals of others, but which the law
would not sanction or promote by giving effect to an unreason
able bequest ; and hence it is not true that the right of testa
mentary control of property is as comprehensive as the right of
disposition during life, and neither has that sacred sanction
which gives force to the laws of equitable inheritance.
Mr. Mayes possessed an astuteness and sagacity of precaution
which gathered every legitimate and honorable means within
the spacious limits of his resources, and he was as fertile in
method as in the invention of expedients. It is related of him
that he was once employed in the defence of an unfortunate
man who had unintentionally killed a woman, who was residing
with him, by a stroke on the head while she was in the act of
inflicting great bodily harm on his sick wife, and in order to save
his client from a verdict of murder it became necessary to intro
duce the daughter of the latter as a witness — a little girl of ten
years, who was the only witness to the circumstances ; but the
tenderness of her age and her ignorance suggested the appre
hension that she would not be able to stand the ordeal to which
she would be subjected upon cross-examiuation.
Under these circumstances, Mr. Mayes procured a continuance
of the case, and ordered the little girl to be placed at school and
thoroughly instructed as to the nature of tmth and the obliga
tions of an oath. The plan was successful, and at the next term

DANIEL MAYES. 257
of the court the little witness detailed the circumstances of the
kiUiug with a firmness and consistency that baffied every at
tempt to impair her testimony, and saved her father from the
gallows. These circumstances were well calculated to kindle every spark
of his genius,' and his speech on this occasion is said to have
been a most brilliant combination of argument and eloquence,
of pathos and lucidity, and a depth of research that greatly in
creased his already distinguished reputation as an advocate.
As an orator Mr. Mayes is said to have possessed a round
measure of grace aud polish. Masterly in his command of lan
guage, yet unostentatious in his style, he valued more the ex
pressions of forcibility than the flourish of rhetorical ornamenta
tion ; hence his elocution was calm, terse, and vigorous ; his
phraseology accurate, and his choice of words apt and felicitous.
His manners were exceedingly placable and winning, and his
sense of professional propriety nice almost to a degree of fastid
iousness. Quick to assert his own dignity, he took no unseemly
hberties with the feelings and sensibilities of others, but a uni
form politeness and calm courtesy pervaded all his actions, and
characterized both his professional and social intercourse.
As a man he was warmly sensible to the feelings of philan
thropy and benefaction. He was kind, charitable, and benevo
lent, and always ready to aid any enterprise for the advance
ment of the public good or the relief of individual suffering.
That such a man should have enjoyed the highest esteem as
a la-wyer, a scholar, a citizen, and a man, and that he should
have gone down to his grave with the regrets of his fellow-
citizens and the benisons of hallowed memories, is but in con
formity with the experience of mankind, the dictates of hu
manity, and the will of Heaven.

17

258 BENCH AND BAR OF MISSISSIPPI.
WILLIAM E. ANDERSON.
It seems to be a characteristic of human nature, particularly
in its less cultivated state, to associate great deeds and eminent
qualities of the mind with great physical strength. We natural
ly expect that which is grand in nature to inspire us with the
feeling of sublimity, and this expectation is readily transferred
to the persons of famous individuals. The Scythians conceived
Alexander the Great to be some mighty giant whose very pres
ence would inspire the feelings of awe and reverence, and were
overwhelmed with surprise when a man of less than the ordi
nary size was pointed out to them as the great conqueror. And
even more prone are we to expect great mental quahties from
a powerful physical organization, notwithstanding that we may
remember that the mighty Achilles, after slaying the great Hec
tor, succumbed to the comparatively feeble javelin of Paris, and
that the fragile sling of the youthful David was more effective
than the ponderous beam of Goliath. Whether it may be
ascribed to an elevated state of mind kindred to that produced
by sublimity, or to the influence of some subtle mesmeric agency,
it is certain that a portly physical laspect and stentorian tone of
voice, when there is no apparent effort to daunt or overawe, add
greatly to the force of an orator and advocate ; and when these
are really combined with great powers of intellect the pre-emi
nence is complete.
Such was in a great measure the composition of the character
depicted in this sketch.
William E. Anderson was a native of Virginia, and of the
county of Rockbridge, aud had achieved reputatiou as a lawyer
in the State of Tennessee prior to his advent to the bar of Mis
sissippi, about the year 1835. He possessed a vigorous intellect
as well as a huge physical frame, and his powers as an advocate
attained conspicuous notoriety. While Mr. Anderson was tho
roughly familiar with the general principles of law, he was
by no means a person of studious habits, and was much fonder
of the pleasures of desultory reading than of obedience to that
stem restraint aud zealous application which the jealousy of the
law demands from all who would wear its garlands of honor and

WILLIAM E. ANDERSON. 259
its wreaths of victory. But Mr. Anderson was one of those in
dividuals whose deficiency in one quality generally requisite to
success was in a great measure counterpoised by the prepon
derance of others. His imposing personal appearance, forcible
powers of oratory, quick comprehension, and constant flow of
humor, obtained for him a position as au advocate which others
reach only by rare gifts, or by constant and la,borious applica
tion. Notwithstanding the excitability of his temperament and the
somewhat blustering air of his manners, Mr. Anderson was
a man of great amiability and gentleness of disposition. The
qualities of his heart seem to have been developed pari passu
with those of his mental and physical traits. He was of an ex
ceedingly cheerful turn of mind, fond of innocent frolic and
fun, and enjoyed life and the pleasures of society with all the
gusto that usually pertains to those who are possessed of a culti
vated fancy, a cleai* conscience, and a robust constitution.

CHAPTER VIII.

THE BAE— EMINENT LAWYERS— 1832-1861.
GEORGE 8. YERGER  ROGER BARTON  JACOB S. YERGER  ALBERT G.
BROWN  PATRICK W. TOMPKINS  HENRY S. FOOTE  JOHN H. MARTIN.

GEORGE S. YERGER.
While Nature, in her partiality, designates here and there
an individual as the favored recipient of her special endow
ments, and ordains him to a particular sphere of eminence, it is
rarely that she groups such an array of special talents within the
hmits of a single family, and fashions the intellectual traits of so
many of its members in the mould of greatness, as was vouch
safed to that to which belonged the subject of this sketch. The
Yergers seem to have been bom lawyers. There were six broth
ers in this family, who attained to the highest rank at the bar,
and the judicial records of both Tennessee aud Mississippi bear
everlasting testimony to their usefulness and their genius.
Their characters glowed with a remarkable simiUtude, and they
moved through their orbits of greatness with the uniformity and
unison of a brilliant constellation.
George S. Yerger was bom in Greensburg, Westmoreland
County, Pennsylvania, about the year 1808. His father was of
Dutch origin, and belonged to that sturdy yeomanry which gave
early and lasting prosperity to the Middle States of the Union.
With a large family and limited means, he emigrated, in 1816,
to the neighborhood of Lebanon, Tennessee ; and it was there
that his eldest son, George, found an opportunity to gratify his
early aspirations, who, having obtained a tolerable education,
tumed his attention to the study of law, and was soon admitted
to the bar. He then located in the city of Nashville, where he

262 , BENCH AND BAR OF MISSISSIPPI. '
was for many years reporter of the decisions of the Supreme
Court of Tennessee, and became one of the most eminent mem
bers of that bar.
In the prime of a vigorous manhood aud glowing reputation,
he removed, iu 1838-9, to the State of Mississippi, and located
at Vicksburg. Here his reputation, which stamped itself upon
his advent, soon spread throughout the State, and he took his
position among the foremost lawyers of the country — a position
which he maintained with a growing tenure and extending rec
ognition to the day of his death.
Mr. Yerger was, in every sense, a thorough lawyer. He
was master of the science of law in all its branches, and his
mind was richly stored with all manner of precedents, which he
had thoroughly digested, and so stratified in the capacious cham
bers of his mind that, with the aid of a vivid memory, they
furnished him unfailing resources in every emergency. If
there was any decision which could by parity or analogy be
brought to bear upon his view of a question, he was sure to in
voke the comparison. But his genius depended not alone upon
precedent : his penetrating judgment and keen understanding
found a ready interpretation of the most marked features, and
opened a path for justice through the most untrodden field, of
circumstance. Mr. Yerger was not au orator, so far as that quality depends
iipon the embellishments of fancy. His mind was too matter-of-
fact in its bent and too exacting iu its candor to indulge in the
mere visions of imagination, and he disdained all its " flower-
decked plats and blooming parterres." He was eloquent in the
depth of his convictions, in the earnestness of his manner, iu the
logical train of his thoughts, in the force and. power of his lan
guage, and in the moral mesmerism of the man. He sought
only for facts, and these he would render at first transparent,
then luminous, and then dazzhng, to the most obtuse mind of
obstinacy, prejudice, or unbehef. The gentle and sure-footed
gradations with which he advanced from the obscure to the ap
parent, from the dark to the visible, from the murky clouds of
doubt to the open glare of conviction, riveted the mind of hon
est inquiry and kindled perception in the eye of the dullest

GEORGE S. YERGER. 263
comprehension. If this be eloquence, he possessed that
. quality. He knew how to avail himself of every consideration that
tended to awaken the feelings of sympathy and gain the good
will of courts, juries, and audiences ; not, however, by specious
declamation or the cunning arts of suasion, but by an appeal to
the nobler passions of men : a true sense of justice, a sound
moral rectitude, and to a just aud full conjprehension which he
quickened in the minds of his hearers by his accurate and lucid
interpretation and sound reasoning.
He planted himself firmly upon first truths and fundamental
principles, and from these his mind, armed with the lance of
penetration, clad in the mail of a sound judgment, and dis
ciplined by correct association, sallied forth to meet every com
bination of circumstances and every challenge of emergency.
FaUacy he detested, and to it showed no quarter ; while his plain
logic intersected the -winding paths of ambiguity with the
straight road of tmth.
To these traits of mind and professional accomplishments Mr.
Yerger added the noblest qualities of the heart, and to which
his intellectual powers were subordinated by means of a rare
moral regimen which he made the rule of his thoughts and ac
tions. Here, indeed, lay the great power of the man — the
source from whence sprung those goodly qualities and kindly
manifestations which rendered his life an example of benevo
lence, neighborly kindness, and rectitude.
In addition to the glare of its ability, his career at the bar was
characterized by an uninterrupted glow of professional gentility
and ethical urbanity. He never lost his placidness by the rul
ing of the court ; nor was his courtesy, ever scorched by the
heat of argument. He indulged in no fierce denunciations or
coarse invectives, and though fervid and emphatic in maintain
ing his positions and iUustrating his points, he disdained the
weapons of depreciation and ridicule ; but, always kind, candid,
and courteous towards court, counsel, witness, and juror, he
wove into his professional character a web of beautiful ethics
no less adorning aud expedient than its woof of genius or its
warp of talent.

264 BENCH AND BAR OF MISSISSIPPI.
In social and domestic life he was no less conspicuous for the
amenity and affection with which he ornamented those circles.
While he was a faithful laborer, aud complied patiently with the
stern requirements of his profession, he reserved ample time for
acts of neighborly kindness, for the dispensing of an open-hand
ed charity, and for the hallowed enjoyment of a fond, beautiful,
and lo-ving domestic association.
About 1844 Mr. Yerger removed to the city of Jackson, and
confined his practice mostly to the bar of the high court, where
he gained his most brilliant professional trophies, the records of
which bear a testimony to his genius and ability far more com
plete and satisfactory than could be wrought by the most gifted
pen of metaphysical delineation. The calm and sedate quality
of his mind led him to prefer the discussion of commercial
questions and those of an equitable nature rather than those
which spring from the ruder jarrings of society or from crim
inal infractions ; yet his learning and tact were admirably adapted
to all the duties of au advocate and to the province of criminal
practice. His defences, into which he entered with all the zeal
of his nature, were stern barriers to the arm of prosecution, and
his vindication of the afterwards distinguished General Dan.
Adams, who unfortunately slew his antagonist in a personal con-
ffict in the streets of Vicksburg in 1844, is said to have been a
masterly specimen of criminal pleading.
In politics Mr. Yerger was a stanch advocate of the princi
ples of the Whig party, and in the campaigns of 1840 and '44
took an active part in support of its Presidential nominees. But
he never sought office ; he had no relish for the clash and tur
moil of public life, and his devotion to his profession was su
perior to any ambition which he might have entertained for po
litical preferment. Indeed, of all the affairs of life, his nature
seemed to have a clear-cut aud well-defined shape for the legal
profession ; to it he devoted his energies, and died only when he
had achieved all that it could give of -victory and of fame.
His death, which occurred in April, 1860, was attended with
somewhat remarkable circumstances. He had left Jackson but
a few days before, buoyant with hope and the vigor of health,
for a visit to Bolivar County. There he joiiied in a deer hunt,

ROGER BARTON. 265
and, having shot a large buck, ran to secure the struggling ani
mal, and fell dead upon the carcass from an affection of the heart
produced by the excitement and severe exercise of the occasion.
His death cast the gloom of deep regret over the entire State,
and left a void in the ranks of the bar which time could conceal
but never close.
Mr. Yerger reposed au unqualified faith iu the great truths
of Christianity. He was a devoted communicant and faithful
member of the church. He had searched the Scriptures, and
threw the weight of his great intellect in the scale with the wise
of earth who have found there the promises of eternal life.

ROGER BARTON.
This remarkable man and emiuent lawyer was born iu the
State of Tennessee, near the present city of Knoxville, on the
10th of October, 1802. He was the son of Dr. Hugh Barton
aud Mary Shirley Barton, both of whom were natives of Vir
ginia. After receiving a good classical education at one of the
colleges of East Tennessee, he began the study of law at Knox
ville, in 1824, under the Hon. William E. Anderson, and after
having practised his profession there for several years he re
moved to the town of Bolivar, and formed a copartnership with
Judge V. D. Barry, a prominent lawyer of that place, whose
daughter Eudora he afterwards married.
He was soon returned from his adopted county to the Legis
lature of Tennessee, and -was afterwards selected by that body to
fill the office of attorney -general, which he conducted with great
abiUty, and with a distinguished exhibition of those qualities
which afterwards rendered him so famous in criminal practice.
He had thus already acquired an enviable distinction at the
bar of his native State when, in 1836, attracted by prospects
more commensurable -with his ambition, he emigrated to Missis
sippi, and located at Holly Springs, in Marshall County, where
he formed a copartnership with the Hon. Joseph W. Chalmers.
Here his remarkable talents and striking characteristics gained
for him at once both practice and popularity, and at a special

266 BENCH AND BAR OF MISSISSIPPI.
election in 1838 he was chosen to a seat in the Legislature, to
which he was again elected in 1849, and assumed an influential
and leading position in that body.
At the close of the first term of Hon. Jefferson Davis in the
United States Senate, Mr. Barton was presented and strongly
urged for that position by the people of the northern portion of
the State, and which, on account of his known ability aud great
popularity, he would most likely have obtained, had it not been
for the military glory of Mr. Davis, which rendered his pre
ferment always grateful to the people of Mississippi.
A thorough Jeffersonian in his views of government, Mr.
Barton was a stanch advocate of State rights, and was prompt
to vindicate, on all occasions, the honor of his adopted State,
which was now the object of his pride and the home of his
strongest affections. Its honor and prosperity were the absorb
ing themes of his thoughts, and the welfare of its people the
great passion of his life. He was for more than twenty years
the most able and influential leader of his party in his section of
the State, and, had he sought office, could have obtained any
within the gift of his people.
But second only to his patriotism was the love of his profes
sion. In this he had engaged, from the beginning, all the
powers of his nature, with the fondness of a devotee, not so
much, however, in respect to its recluse and subtle features as
its abstract utilities and practical achievements ; for while, by
the measure of an almost unparalleled success, he was truly a
great lawyer, his remarkable talents were too self-reliant and
versatile to submit to the jealous restraints and exacting subser
viency necessary for the acquisition of pre-eminent legal pro
foundness. Hence his mind was not a mere mosaic of prece
dent and memorized cases, iu which every blank was a desert of
mental darkness, but iu brilliancy of perception, in the exercise
of intuitive judgment, and in the masterly preparation and as
tute management of his cases, he has had few equals at the
bar of Mississippi.
He was brave aud magnanimous, and whether in law or poli
tics, always struck fuU at the crest of his adversary. In the
great civic contests of 1840 and 1844 he nailed his flag to the

ROGER BARTON. 267
mast, and the effective broadsides of his eloquence and logic
swept the raging sea of politics and left it clear and calm, and
radiated by the glare of his genius.
An eloquent and distinguished contemporary, the Hon. David
C. Glenn, says of him during this period : " Soul and feeling
spoke in aU he said and did. Wit, radiant and mellow, poured
as from an exhaustless fountain ; and his humor, as brOad as that
of Dickens and as grotesque as Hogarth's, was never darkened
by malice or pointed -with a sneer, but rejoiced iu the sunshine
of a glorious genius which was all his own, yet ripened and ele
vated by an antique and classical cultivation in which he was
surpassed by few men of his time. And never did a champion
of old face every fortune with a truer spirit. Defeat or disaster
never cast him down. Like the wrestler of old, he rose re
freshed by the fall. While his principles were in danger he
was ever foremost on the battlements of the enemy ; but when
success crowned his standard, by his own -wish Mr. Barton was
ever last and least among the victors. The spoils were not a
part of his pftnciples, and ambition never led him astray."
Mr. Barton was always ready to serve his people in any capa
city which immediately affected their interest, but invariably de
clined all positions of a general or mere honorary character. In
1837, in connection with Governor Yroom of New Jersey, he
was appointed by the President a member of the commission to
examine the claims of the Choctaw Indians to contingent reser
vations under the 14th article of the treaty of " Dancing Rab
bit" Creek, which was a matter of -vital importance to the peo
ple of the northern cotmties of Mississippi, and performed the
difficult and laborious duties involved in this trust with distin
guished skiU and diligence.
At the district convention at Pontotoc in 1849, he received
the nomination of his party for Congress, but happening to bo
present attending the Federal court, then in session there, Mr.
Barton proceeded immediately to the hall of the assembly, and
amid the welcome shouts of congratulatory applause promptly
declined the honor. He was afterwards tendered by President
Pierce the position-of United States consul for the island of
Cuba, which he also declined.

268 BENCH AND BAR OF MISSISSIPPI.
Among the chief features which achieved for Mr. Barton his
great success at the bar were, in the first place, his remarkable
judgment and discrimination in selecting the precise law appli
cable to the case in question, and in rejecting the adduction and
urgency of that which, however plausible, could not stand the
test of being tried on and adjusted to the facts. He thoroughly
studied the history and character of his cases, carefully gathered
every obtainable fact, and fully contemplated the law arising
from them. He was cautious aud dehberate in assuming his
ground, and surveyed with care every inch of the field before
he rushed to the attack or planted his hues of defence. Hence
there was a fatal precision, a pre-engaging certainty, attending
the positions he assumed, which no skill or art of sophistry
could ever shake.
His logical powers were as intuitive and spontaneous as his
judgment. He studied and adhered to no fixed rules or con
ventional arts of speech. The chain of his thoughts was the
linked impulses of his own genius, and his incomparable lan
guage was but the swaddling- robes in which his ide^s sprung clad
into his mind. His eloquence consisted in a pohshed simphcity,
a fascinating candor and earnestness of manner, and a forcible
originality knit into the closest logic and woven into the richest
and most striking illustrations. His extemporaneous command
of language was a rhetorical phenomenon, and his spontaneous
utterances sparkled with a vigor which premeditation would only
have dimmed. His oratory was always adapted to the occasion,
aud whether clad in the purple robes of dignity, draped iu the
circumspect attire of gravity, or decked iu the gorgeous colors
of eloquence, it was equally effective in solemn appeals to the
understanding and judgment of the court, in the sparkling
streams of humor with which he beguiled the feelings of the
jury, and in the gushing floods of satire and invective which he
poured upon the head of injustice and guilt.
And again, that which added greatly to his success as a law
yer was his uniform placidity and good-nature ; as has been
said of another, he -wielded the club of Hercules wreathed with
roses. He united the withering sarcasm of Sheridan with the
amiable temper of Sir Matthew Hale. In his character were

ROGER BARTON. 269
blended the rich fancy of Fox, the vehemence of Burke, aud the
courage of Erskine, with the calm depths of Holt and the can
dor and self-possession of Pitt. He would, when occasion jus-
tifled, chastise the unfortunate victims of his animadversion with
an air of gentility that added smart to the excoriations of his
lash, until, writhing in the agonies of chagrin, or conscious
guilt, they would often rush from the court-house, as did the
clergy of Virginia on one occasion to escape the piercing shafts
of Patrick Henry.
But his thoughts and his feelings were equally poised under
the control of his tutored judgment and polished sense of pro
priety ; if the former were never confused by complexity, the
latter were never disconcerted by circumstances. It was related
by Judge Trotter that " on one occasion Mr. Barton was en
gaged in a case of which the gist was fraud, aud he endeavored
to establish the mala fides of the transaction by inductions from
a variety of concurring circumstances. The party against whom
he appeared was a veteran in such practices, and it was almost im
possible to reach him. But no web of perfldy was ever so artfully
woven that the Major could not unravel its threads and expose
it in its naked depravity. The celebrated John Randolph, in
his palmiest days, never revelled more in the grateful task, or
lashed the guilty wretch with more success. But on this occa
sion his adversary, long trained to such encounters, withstood
the Major's fire for some time like a salamander. But, roused at
last by one of his most bitter sarcasms, he sprung to his feet as
if touched by a galvanic battery, and boldly facing the Major
ordered him to retract what he had just said. Upon which the
Major, dropping the thread of his remarks, exclaimed, with the
utmost nonchalance, ' If you are so impatient, sir, to make a
speech that you cannot wait until I am through, I wUl certainly
give way. ' The man was surprised and confused, and the gen
eral roar of laughter had a more quieting effect upon him than
if the Major had knocked him down "with his fist."
A striking feature of the oratory of Mr. Barton, and one
which peculiarly characterized that of Patrick Henry, was his
bold and comprehensive aphorisms, which, couched sometimes
in a timely uttered sentence or phrase, would often overthrow.

270 BENCH AND BAR OF MISSISSIPPI.
at one stroke, the most elaborate argument of an opponent.
Judge Trotter related also au incident of this character.
"Major Barton," said he, "was prosecuting the claim of a
poor man for compensation for personal services. The oppos
ing counsel denounced the Major's client as a worthless bankrupt,
who paid no debt himself whilst he was seeking to enforce an
unjust claim against a man who had rather befriended than in
jured him. To this the Major replied by simply asking this
question : ' Is it, then, seriously proposed that because the
plaintiff is poor he shall be kept so forever ? ' "
But it was on the criminal side of the law that Mr. Barton
achieved his greatest and pre-eminent distinction.
It is said of -Lord Mansfield that while he was attorney-gen
eral he never lost a Crown case, for the reason that he took care
that the Crown should never become a party to a cause when its
rights were not a matter of certainty ; and it was said of Mr.
Barton that, while he was engaged for more than twenty years
in a more extensive criminal practice than any lawyer in Missis
sippi, yet during that time he never failed in a criminal de
fence, because he always succeeded, by his adroit management,
in securing both the most favorable action of the court and the
good-will aud sympathy of the jury. He seized upon every
vantage-ground, and lost none which he once occupied, and it
required but little time for him to so weave his mesmeric
charms around the minds of the jury that they became imbued
with his feelings and saw everything through his glasses.
Sir Richard Steele said of Lord Chief Justice Holt : " He
always sat in triumph over, and in contempt of, -vice ; he never
searched for it, or spared it when it came before him. At the
same time he could see through the hypocrisy and disguise of
those who have no pretence to virtue themselves but by their
severity to the vicious." This trait was prominent in the
character of Mr. Barton. He was quick to read the hearts of
men, to interpret their motives, and to detect the springs of
human action ; and he knew just where and when and how
to touch the propitious chord which was to awaken sentiments
and views harmonious to his own.
He was among the few eminent lawyers of whom it may be

ROGER BARTON. 271
said that an overflowing humor and an overweening propensity
for ludicrous anecdote and badinage never impaired the most
impUcit faith in his sincerity, nor weakened the force of his
most subtle and gravest arguments ; but, on the other hand, he
possessed the happy faculty of blending the force of his wit
with the power of his wisdom. It was not with him as Dr.
Johnson says it was with Shakespeare, an irresistible fondness
for a mere " quibble" which allured him from the " dignity and
profundity of his disquisitions," nor the " Cleopatra for wliich
he lost the world and was content to lose it,' ' but it was the
aroma which sprung from the blossoms of his genius and the
flowers of his philanthropy.
With such a happy blending and exact adjustment of pre
eminent qualities, the career of Mr. Barton flashes like a meteor
across the annals of Mississippi jurisprudence ; and so varied
and versatile were the qualities of his genius that it may be
safely affirmed that, had he applied himself with an assiduity
commensurate with his powers and professional adaptation, he
would have taken his stand among the first lawyers of the
world. Mr. Barton possessed a singularly kind and generous heart.
His sympathy for the poor and distressed was deep and easily
aroused, and invariably called forth his best services iu their
behalf. His generosity often forbade justice to himself, and he
often endured all the inconveniences of that which Juvenal
calls " res angusta doy^i" rather than press the collection of his
just dues. Toward the young members of the profession he
maintained a fatherly attitude, and was ever ready to aid them
-with deeds of kindness, with words of encouragement, and with
inspirations of hope. Nothing short of an attempted undue ad
vantage, or an exhibition of a manifest lack of principle, ever
caused him to deviate from a high-wrought professional cour
tesy, or to turn his back upon a new beginner.
He was a man of the most exuberant spirits, viewed every
circumstance in the most generous hght, . and presented the
bright side of the world to all who came in contact with him.
His dignity was the offspring of unswerving rectitude, aud his
simphcity of manners the product of a clear conscience and

272 BENCH AND BAR OF MISSISSIPPI.
guileless disposition. To his country he was a pillar of patriot
ism, to his friends the living statue of a Pythian fidelity, and to
his family the model of generosity, affection, and love ; and
that such a man should have enjoyed the warm and universal
meed of friendship and esteem is but the reward of those who
practise the hallowed precepts of that golden rule proclaimed by
Heaven and dictated by the noblest sentiments of humanity.
He died of acute rheumatism on the 4th of March, 1855, in
the vigor of his manhood aud intellect.

JACOB S. YERGER.
Of all the varied characters of men there is no one whose
traits are wrought to a higher standard of excellence, and whose
, composition is more devoid of the petty weaknesses as well as
the grosser foibles of mankind, than that of a truly learned,
just, and upright judge. His functions are among the most
sacred and elevated that pertain to the affairs of humanity, and
he feels the weight of that responsibility which incurs from a
higher seat the same judgment which he has meted to others.
His mind is at once the S'an and the moon of the law. It
sheds its beams upon its obscure features, illumines without len-
ifying its stem aspect, and in turn refiects back its light upon
the face of society, penetrates the dark confines of human de
pravity, and presents a beacon for the guidance of rectitude.
His heart is a tablet upon which are inscribed in mingled
characters the rigid outlines of justice, the stem mandates of a
jealous rule, and the smiling pictures of benevolence and phi
lanthropy. He knows no passion but his devotion to duty ; he
cherishes no motive but the attainment of justice ; he fears no
displeasure but the reprimands of conscience, and seeks no ap
plause but the benediction of right.
His conscience vibrates at the tenderest touch of doubt, and
utters its strains of hallowed dictation at the slightest breath of
appealing virtue. His judgment stays to catch the notes of its
approbation, and his actions leap forth at its bidding, as did the
charmed rocks from their mountain-beds at the ravishing strains

"S VAu^oBtusltoljm.^"'^

JACOB S. YERGER. 273
of Orpheus. It is there alone that he seeks for justification and
reward, and there finds himself the sanctified recipient of the
blessing vouchsafed to the faithful servant. He holds to the
sentiment of Persius, '''Nee te qxtmsiveris extra," and which
Dryden has happily translated :
" The conscience is the test of every mind ;
Seek not thyself, without thyself, to find."
In this rare category of exalted virtues I have no hesitancy in
including those of the distinguished gentleman whose character
forms the subject of this sketch.
Jacob Shall Yerger was born in the town of Greensburg,
Westmoreland County, Pennsylvania, on the 11th of January,
.1810, and in 1816 removed with his father's family to Leba
non, Tennessee, where he was reared and educated. He was
one of eleven children, and in consequence of the poverty of
his father his educational advantages were sparse and limited.
FuU, however, of the workings of an innate genius and the am
bition of conscious talents, on attaining his majority he elected
the profession of law, and began its study in the office of his
brother, George S. Yerger. Having, after a thorough prepara
tion, obtained his hcense to practice, he located in the city of
NashviUe, and entered at once upon his prosperous and brill
iant career. In this exacting field his talents were soon recog
nized, and he rose rapidly to the front rank of his profession.
But in the midst of an extending practice and the most flatter
ing prospects, he was enchanted with the flush times which then
dwelt upon the banks of the great Father of Waters, aud in the
winter of 1837 he removed to Mississippi and established his
office in Vicksburg.
This bar was at that time adomed with briUiant genius,
and was justly regarded as one of the most distinguished in
the South. It was there that the eloquence and tact of
Prentiss, the logic and skill of Holt, and the astuteness and legal
acumen of Guion, mingled iu tides of genius which none but
the highest order of talent could stem. But Mr. Yerger was
fully equal to the task before him and to the expectations
which his reputation engendered, and his ability soon gushed
18

274 BENCH AND BAR OF MISSISSIPPI.
forth in streams that rivalled the overwhelming intellectual
torrents of his new associates, and characterized him as one of
the most profound lawyers at the bar of Mississippi. His pracr
tice in the Federal courts, in the High Court of Errors and Ap
peals, and in the Superior Court of Chancery, was perhaps the
largest and most lucrative in the State, and which he retained
until his election to the circuit bench in 1855.
Judge Yerger possessed in the concrete all the eminent qual
ities which enter into the composition of a great lawyer and
great man, while in the abstract the characterizing features of
his greatness were strongly asserted in a judgment cast in the
mould of a deep and accurate comprehension, in a perception
whetted to the sharpest edge of intuition, in a power of logic
wrought of the most ingenious skill and the soundest reason, in a
memory which embraced the scope of his observation, and in an
ardor of application and a devotion to duty over which no
circumstance or consideration could exercise a diverting sway.
His capacity for close discriminations and subtle distinctions
placed his positions in the management of a case beyond the
reach and coping power of ordinary intellects, while the apt
communication of his ideas, the purity and simplicity of his
diction, and the pathos of his convictions, unfolded the most
abstruse doctrines and lurking points to the view and understand
ing of common-sense. His position towards his clients was that
of a faithful counsellor and friend. He deceived them with no
apparitions of false hopes, and with no inducements to unjust
and fruitless litigation ; but, candid and conscientious in all his
dealings with them, he engaged their confidence, and they
trusted him with an aposl olic faith.
As a judge he was the Cato of integrity and the Aristides of
the Mississippi bench. He was a wise and faithful expositor of
law, a stern and unswerving vindicator of justice— au upright
arbiter before whom the weak and the oppressed found an am
ple and sure redress of their wrongs. He possessed the un
bounded confidence of the bar and of the people, and his deci
sions were received as emanations from the fountains of wisdom
and justice. His addresses to the grand jury were models of
legal exposition and' moral commentary, and the dignity and de-

JACOB S. YERGER. 275
corum which he maintained in his courts were elevating to the
bar, admonishing to the people, and an honor to judicature.
At the expiration of his first term as circuit judge of the then
third judicial district of Mississippi, Judge Yerger was re-elected,
and continued in that office to the time of liis death ; and the
ermine which he laid aside at the summons of that inexorable
sheriff of Heaven, was as pure and spotless as the shroud that
enfolded his honored remains.
In every sphere of hfe Judge Yerger maintained the same
high character which embeUished his career upon the bench.
He was a true patriot, and though widely differing from a ma
jority of his fellow -citizens on many vital issues of his day, so
lofty was his integi-ity, so firm were his con-victions, and so sin
cere his motives, that they -wrenched respect from the fiercest
opposition. He was in politics an active and devoted Whig,
and his services to that party both in Tennessee and in Missis
sippi claimed the recognition of marked fidehty and efficiency.
He was t-wice elected to represent the city of Vicksburg in the
Legislature of the State, and whUe a member of that body in
1841 moved the rejection of the message of Governor McNutt,
which suggested the policy of repudiation, as being unworthy
of consideration and an affront to the Legislature ; and so vehe
ment and able was his opposition that the message was received
by a majority of only four votes, notwithstanding the popular
majority known to exist in favor of the measure.
He was convinced that the payment of the bonds of the
Union and Planters' Banks was legally binding upon the State,
and advocated their liquidation upon matter of principle arising
from honest convictions. As chairman of the committee ap
pointed for that purpose, he reported to the Legislature the cir
cumstances and conditions under which those bonds were issued
and sold, and introduced a resolution declaratory of their valid
ity and binding effect upon the State. The adoption of both
the report and resolution was bitterly opposed by some of the
ablest men in tiie State, but, mainly through his exertions, was
carried by a considerable majority.
At this same session he introduced, and succeeded in procuring
its passage a bUl for funding the indebtedness of the State, the

276 BENCH AND BAR OF MISSISSIPPI.
wisdom of which was exemplified in the gradual recall of a large
amount of outstanding warrants fi'om a depreciated circulation,
aud consequently in the speedy restoral of the credit of the
State. In 1845 Mr. Yerger removed to the county of Washington,
and was returned to the Legislature from that county. In 1852
he was sent as a delegate to the Whig Convention at Baltimore,
and on his return was made one of ' the electors at large for the
State. In the canvass which followed, his vigor and. eloquence
added greatiy to the strength of his party, aud increased his
reputation for consummate ability.
On taking his seat upon the bench. Judge l^'erger discarded
all his partisan enthusiasm, and carefully avoided aU participa
tion in politics ; but when the question of secession began, iu
1860, to assume a serious aspect, he threw all his ability aud in
fluence in opposition to that measure. He considered it un
necessary, impolitic, and ruinous, and in the March convention
of 1861 stemmed almost alone the revolutionary tide that swept
over that body. While he felt deeply the wrongs of his people,
he loved the Union, and was willing to rest satisfied with the
obtaining of further constitutional guarantees of equality -within
its fold. But when the die was cast and the fatal consequences
thronged upon the country, he sent three of his sons to answer
the call of his State in 1861 for troops, and afterwards, so soon
as he became of proper age, buckled on the armor of a fourth,
who was killed in battle in 1864.
In 1865 Judge Yerger was unanimously elected as a delegate
from his county to the convention for reorganizing the State gov
ernment, and was chosen president of that body, over wliich he
presided in a manner dignified, able, and satisfactory.
But if his official character was adorned with ethical traits
which engaged the affection and esteem of the bar and of his
political associates, his private life was no less embellished with
the charms of social accomplishments. His conversation was
edifying and entertaining, his manners affable and attractive,
aud he possessed a rich vein of polished humor, which gave him
a fondness for ludicrous narrative and an aptness in the dehnea-
tion of eccentricity. He was consequently popular among all

ALBERT G. BROWN. 277
classes of people, aud to such an extent that on his re-election
to the bench in 1861, he is said to have lacked but two votes of
being the unanimous choice of the district. He was the friend
of the -widow aud the orphan, and his charity was large and
open-handed. He dehghted in exteading a helping hand to
strugghng youth, aud was exceedingly kind and generous in his
demeanor towards the young members of the bar.
Judge l^erger was married in 1833 to Miss Mary H. Bowen,
of Smith County, Tennessee, and had nine children, only two of
whom are now hving. He was a tender husband, a kind
father, a true friend, aud a dutiful citizen. He died of conges
tion of the brain, in Vicksburg, on the 14th of July, 1867, and
left a deep and universal regret for the loss of one whose life
was spent in usefulness aud ended in purity.

ALBERT G. BROWN.
Albert GaUatin Brown was bom in Chester District, South
Carolina, on the 31st day of May, 1813, but iu 1823 his fa
ther moved his family to Mississippi and established his home in
the county of Copiah. He was a plain, honest, and industri
ous planter, and confined himself to the practical views of life
and to the study of good husbandry ; consequently his son was
early indoctrinated in the principles of domestic economy and
in the just and correct notion of the realities and verities of life,
which became the mould of his future character. He was early
inured' to those habits of honest toil which brought him into
sympathy with the great mass of struggling humanity, and he
cherished a life-long effort for its elevation.
Having obtained such education as his circumstances and the
common schools of the country at that period afforded, young
Brown entered the law office of Hon. Ephraim G. Peyton,
afterwards Chief Justice of Mississippi, and before he had
reached his majority was admitted to the bar and became the
partner of his distinguished preceptor. He was therefore im
mediately engaged in an extensive practice, to which he devoted
his energies and talents with such vigor, fidelity, and skill, as at-

278 BENCH AND BAR OF MISSISSIPPL
tracted popular notice aud admiration, and stamped his early
manhood with unmistakable indications of future eminence.
His great popularity and rapidly growing distinction at the bar
soon, however, evoked a summons to another sphere, aud in
1836 he was chosen to represent the county of Copiah in the
Legislature ; but, having caused some dissatisfaction among a
portion of his constituency by his vote for the admission of
members from the counties lately formed out of the territory
ceded by the Chickasaw and Choctaw Indians, he resigned his
seat in 1837, announced himself a candidate for re-election, and
was triumphantly returned.
While a member of the Legislature Mr. Brown participated
actively and infiuentially in the discussion of all important ques
tions of the period, and distinguished himself -particularly by the
interest which he took iu matters of finance, and by the ability
which he displayed during his second term, as chairman of the
Committee on Banking, in his recommendations regarding that
system. In 1839 he was nominated and elected by the Democratic
party to a seat iu the National Congress, where, iu conjunction
with Hon. Jacob Thompson, he served the interest of his party
and section with a vigor and efficiency that justified the confi
dence and expectations of his constituents and gave him repute
throughout the country.
At the expiration of his term, in 1841, he decUned a renomi
nation for Congress, and became a candidate for the office of
circuit judge in his district, to which he was elected by a large
majority. His career upon the bench was characterized by a
conscientious uprightness and an unswerving integrity, and by a
dispatch which was greatly promotive to the ends of justice and
conducive to the interest of society. His comprehensive views,
uncommon firmness of mind, strong powers of reason, intuitive
discernment and love of justice, rendered him eminently fitted
for the duties of a judge, aud he brought to the bench the same
personal qualities which had endeared him to the people as a
lawyer, as a politician, and as a man.
In 1843, when he had just ascended his thirtieth year, he was
elected Governor of Mississippi. During the canvass of that

ALBERT G. BROWN. 279
period the public mind was greatly agitated upon the question
of paying or rejecting the bonds of the Union Bank. Judge
Brown was iu favor of the repudiation of these bonds, while his
Whig opponent, Hon. George R. Clayton, contended for their
validity and binding power upon the faith of the State, because
their issuance was an act authorized by a majority of the people.
But on referring to this question. Governor Brown in his in
augural address said that " to set up the will of a majority as
being superior to the Constitution of the State as a measure of
power was virtually making one acknowledged wrong a pretext
for committing a still more grievous wrong.' '
The administration of Governor Brown was distinguished for
the many important measures which he recommended, and their
beneficiality to the general interest of the State. He was
warmly enlisted in the cause of education, and iu his first message
to the Legislature said :
" As intimately connected with the future glory and happi
ness of our State, the subject of education, more perhaps than
any other, challenges our deepest consideration. Where is the
seminary fund ? is a question often asked, but never satisfactorily
answered. To members of the Legislature let me say, our com
mon constituents will expect of us some account of this munifi
cent fund, and a speedy application of it to the great purpose for
which it has been set apart. The day which witnesses the com
pletion of this magnificent temple of learning will be a brilliaut
one in the annals of Mississippi. It will be the dawning of a
new era in the history of letters, and as such will be hailed with
joy by the friends of science throughout the nation.
" Our State will not be appreciated at home nor sufficiently
honored abroad until her educated youth shall acknowledge as
their alma mater this or some other reputable college within
our own limits. The practice of sending our youth abroad
to be educated ought to be discouraged. The only effectual
means of doing so is to rear up colleges aud academies at home
which may successfully compete with those of other States."
The impetus which these sentiments and recommendations
gave to Ihe cause of education resulted during his administra
tion in the establishment and endowment of the State University

280 BENCH AND BAR OF MISSISSIPPI.
at Oxford, an institution which, if it has not reached the stand
ard of his wishes, owes its foundation and advantages largely to
his genius and patriotism.
In 1845 Governor Brown was re-elected, and during his sec
ond term as Governor, in 1847, appointed Hon. Jefferson Davis
as United States Senatol-, to fill the vacancy occasioned by the
death of Hon. Jesse Speight, and which was approved by the
unanimous election of Mr. Davis by the Legislature in 1848.
In 1847, before the expiration of his second gubernatorial
term, Governor Brown was again elected to a seat in the
National House of Representatives, and was re-elected in 1849.
In 1853 he was elected to a seat in the United States Senate,
which he held by re-election until 1861, when he resigned, in
company with the other Southern Senators, to share the fortunes
of his people and the new Confederacy.
It would not comport with the province of this work to fol
low commentingly this remarkable man through his long and
brilliant political career. Its features belong to the brightest
pages of our national history, and should be studied in full for
the great lessons of principle, of patriotism, and of true great-,
ness, moral, social, and political, which it teaches. It resem
bles the glow of some brilliant star steadfastly pursuing its
course and shedding its benign and untarnishable beams amid
the wreck of constellations and the Phaetonic confusion of the
firmament. Governor Brown saw no remedy for the difficulties that beset
the pathway of his people but in the throes of revolution and
secession, and he considered the election of Mr. Lincoln to the
Presidency upon a purely sectional platform as the final and
consummating act of justification. With this honest conviction
he returned to his constituency. He had used his best efforts to
stay the solemn alternative, but when his State had seceded and
he saw the skeleton hand of war roUing up the Federal Consti
tution and unfolding in its stead the banners of subjugation and
vengeance, he promptly girded himself for the contest, and
raised a military company known as the " Brown Rebels," of
which he was made the captain. He was no stranger to the
drill and discipline of a soldier : he had in early manhood manii

ALBERT G. BROWN. 281
fested an interest in the military organization of his State, and
had been made a brigadier-general of its militia. His company
was assigned to the Eighteenth Mississippi Regiment, com^
manded by Colonel E. B. Burt, and was among the first troops
sent to Virginia. There he participated in the battles of BuU
Run and Manassas, and soon afterwards at Leesburg, where
Colonel Burt was killed.
But notwithstanding that his services in the field were as
conspicuous for ardor and gallantry as his civil services were
brilliant aud eminent, his people felt the need of his able and
faithful counsel, and on the convening of the Legislature in
December, 1861, he was elected to the Senate of the Confeder
ate States, and took a leading position among the eminent gen
tlemen of that brilliaut assembly.
At the termination of the war, ex-Governor Brown retired to
the privacy and seclusion of his farm, but, like Cincinnatus, he
was ever ready to answer the call of his people, and devoted
himself in 'his retirement to plans aud efforts to ameliorate their
sufferings, and to secure some remnant of hope from the apparent
wreck of every prospect. These meditations and purposes led
him to assume positions in advance of his people, and which
they were not yet prepared to occupy ; but time vindicated his
wisdom and prescience, and proved the grand old patriot to be
as true in adversity to the best interest of his State as he had
been iu the brightest days of its prosperity.
Through all the varied spheres of his remarkable life — three
times in the Legislature, three times in Congress, three times a
national Senator; twice the Governor of Mississippi, a brigadier-
general of militia, a captain in the Confederate army — Govern
or Brown occupied the same exalted position in the esteem of
his associates and in the confidence and affection of the people.
No stain marked his pathway, and no blot dimmed a line of his
record. Yet, notwithstanding the splendor of his unbroken
success, he seems to have had really no fondness for the glitter
ing honors which were poured upon him, and soon after the
war he wrote to a young friend as follows :
" Tme, as you say, I had many offices. Indeed I may say
that I never knew defeat in any of my aspirations. And it is

282 BENCH AND BAR OF MISSISSIPPI.
just because I had success which people call wonderful that I
feel competent to administer a word of caution to the young
men of this generation. My young friend, do uot be deceived
by the glitter of office. lam now past my three-score years,
and am fast travelling into the ten. I have held almost every
office in the gift of the people, and I can truly say with the
preacher, ' It is all vanity and vexation of spirit.' Looking
back over a long and I hope uot unsuccessful life, I can say
with a clear conscience, my greatest regret is that I have ever
made a political speech or held an office. There is a fascination
iu office which beguiles man, but be assured, my young friend,
it is the fascination of a serpent ; or, to change the figure, it is
the ignis fatuus which coaxes you on to inevitable ruin. I
speak of that which I know. If my young friends will be gov
erned by my advice, I have this to say, after all my successes as
a public man, now when my head is blossoming for the grave :
I feel that it would have been better for me if I had followed
the occupation of my father and been a farmer. ' '
The domestic life of ex-Governor Brown was all that the
sweets of conjugal affection could render it. During his first
session in Congress, iu 1841, he was married to Miss Roberta
Young, of Alexandria, a lady of rare and fascinating accomplish
ments, who administered the affairs of his household with all
the felicity of intelligence and amiability, and who still survives
to cherish his memory and observe the reverence in which it is
held by his countrymen. His death occurred on the 12th of
June, 1880, and was attended by the following circumstances :
He had ridden on the evening of that day to the village of
Terry, a short distance from his residence, to procure the at
tendance of a physician for Mrs. .Brown, who was suffering from
the effects of chills, and, after having spent a short time iu attend
ing to business aud in making social calls, he returned, accom
panied by Dr. Rawles, his family physician. On reaching his
residence he requested the doctor to walk in, while he would
ride to the pond to water his horse. In about twenty minutes
from that time the horse was observed returning riderless, and
search having been made immediately, the ex-Governor was found
lying dead in the pond, and in shallow water, with his face

PATRICK W. TOMPKINS. 283
downward. Dr. Rawles repaired immediately to the scene,
and upon examination pronounced that his death was occa
sioned by a sudden attack of apoplexy or congestion, as there
were none of the usual symptoms of death by drovraing.
His remains were conveyed to Jackson on the next day, where
tliey were to be interred, and were laid in state beneath the
rotunda of the Capitol. Here they received every token of
honor and respect which the sorrow and sympathy of a whole
people could offer, and on the next day the distinguished gen
tlemen who bore his pall to the grave and tossed with solemn
reverence the cold clods upon his coffin, consummated the last '
act which the honors of this world could perform for the mor
tal parts of greatness. But, turning away from these, we find
him still living — living in the good which he has accomplished,
in the grandeur of his record, in the glorious example which he
has left as a legacy to coming generations, in the prosperity of
his country, and in the affections of his people. His name will
gather the tribute of honor as it passes down through the gen
erations, and so long as there is a Mississippian, a heart will
quicken with reverence for the memory of Albert G. Brown.

PATRICK W. TOMPKINS.
There is no trait of character which confers so much benefit
upon its possessor — which lops away so many brambles, levels
down so many hillocks, and surmounts so many obstacles of life
— as that which we call amiability.
Power may reach the limits of its control ; force may blunt
its weapons against the tough hide of obstinacy ; reason may
exhaust in vain its logic upon the dull ear of perversity, and
the unction of suasion may congeal before the cold threshold of
misanthropy ; but good-nature wields a soothing influence over
the most obdurate circumstance, aud binds the sternest fate a
captive to its charms.
Notwithstanding its discountenance by the mock dignity of
asceticism and the pharisaical gravity of the self-righteous, a
merry humor rarely fails to flnd a kindling reciprocation in the

284 BENCH AND BAR OF MISSISSIPPI.
bosom of the most embittered misanthrope. It is indeed the
most efficacious antidote to that more prevalent spirit which not
only magnifies the real ills of life, but which even soars away
upon the wings of excursion in search, not of the olive-leaf of
hope, but of the rising peaks of sorrows which it knows not of.
The hilarious man dispenses a contagious cheerfulness which
penetrates and often dispels the most settled gloom. He weaves,
the garlands of pleasantry of the very thorns of life, and hangs
a rose upon every thistle. Such a man is truly a promoter of
philanthropy ; and such was the character of the subject of this
sketch. Patrick W. Tompkins was a native of Kentucky, but was of
Irish parentage, and possessed in a remarkable degree the wit
and humor so characteristic of that good-natured race. His
early education was limited, but his sprightly inteUect and con
scious talents led him at an early age to the study of the law.
He was first admitted to the bar of his native State, where he
practised for several years with a success which only ability,
energy, and assiduous application, could achieve.
He removed to Mississippi about the year 1838, a period
when so many afterwards distinguished gentlemen first made
their appearance iu this field of professional eminence, and here
he entered upon a career of much briUiancy. He was particularly
noted for his successful criminal practice, and was engaged in
many of the most important cases of that character. His gen
eral knowledge of the law was extensive, and his famiharity
with precedent sufficiently ample to meet the exigencies of any
ordinary occasion ; while his quick sagacity, incisive argumenta
tion, and ready retort, greatly promoted the irresistible effect of
his energetic and careful preparation.
His management of a case was astute and ingenious, and so
conducted as to secure every advantage which the circumstances
presented and the law allowed. But his main forte lay iu his
art of captivating the jury, an effect which his sparkling wit
and abundant store of apt, illustrative, aud pleasing anecdote
rarely failed to accomplish. In -vivacity of humor, graceful
ridicule, and sparkling repartee, he was perhaps more like Cur
ran than any other member of the Mississippi bar. Yet his

PATRICK W. TOMPKINS. 285
wit was not so elevated and polished as that of Curran. Where,
indeed, in the history of the Forum could we find another Cur
ran ? From whom besides him could we, as a matter of course,
expect the reply he made to Lord Robinson, when the latter
threatened to commit him for contempt of court ? "If your
lordship should commit me, both your lordship and myself
may reflect, that I will not be the worst thing your lordship
has ever committed." And his lordship was so completely
overwhelmed with the wit and boldness of the reply that, so far
from committing him, he called upon the other members of
the bar to restrain Mr. Curran within the rules.
Yet Mr. Tompkins possessed much of the same spirit and of
the same vivacity of retort. As a political debater he had few
superiors, a,ud entertained a decided fondness for the contests
aud excitement of the hustings, which, together with his un
bounded personal popularity, finally constrained him to tum his
attention to politics.
In 1847 he was elected to a seat in Congress, and his career
there was both briUiant and honorable, during which he en
gaged in all of the important discussions of the period. He
was a stanch supporter of Mr. Polk's administration, and
vigorously exposed and derided the grounds of opposition, on
the part of the New England States, to the Mexican War.
Mr. Tompkins was a man of congenial and warm-hearted dis
position, sincerely philanthropic in sentiment, and a patriot of
the purest type, aud while he remained iu Mississippi enjoyed
a professional, political, and personal popularity of which but
few men can boast. On the acquisition of Cahfornia he re
moved to that State, and died a few years afterwards.

286 BENCH AND BAR OF MISSISSIPPI.
HENRY S. FOOTE.
Henry Stewart Foote was born in Fauquier County, Virginia,
on the 20th of September, 1800. His educational advantages were
good, and he graduated at Washington CoUege, Lexington, Vir
ginia, in 1819, was admitted to the bar in 1822, and in 1824
emigrated to Tuscumbia, Alabama, where he edited a Demo
cratic newspaper. In 1826 he removed to Jackson, Missis
sippi, and formed a copartnership for the practice of law with
Anderson Hutchinson. His position at the bar soon became
prominent, and he enjoyed au extensive practice, but his taste
and tum of mind soon led him to an active participation in
politics, and so great was his popularity as a political leader that
in 1847 he was elected to a seat in the United States Senate
aud was made chairman of the Committee on Foreign Relations.
His vigor of mind, political tact, and ready powers of debate
caused him to assume an active and conspicuous position in re
gard to all the important questions of that period, and particu
larly in respect to the Compromise measures of 1850. In 1851
in a hotly contested election, he was chosen Governor of Missis
sippi over the Hon. Jefferson Davis.
Governor Foote was a thoroughly aggressive politician. He
advanced his views boldly, and advocated them with a vigor and
ardor that excited the admiration of the people aud gained the
respect of his opponents. He has the character, however, of
having been fickle in his politics — a feature which sprung, no
doubt, from the traits already observed. As Governor of Mis
sissippi his administration was marked by vigorous efforts for the
advancement of the material prosperity of the State, and gave
satisfaction to the people.
In 1854 he removed to California, but in 1858 returned to
Mississippi aud resumed the practice of law in Vicksburg. In
the Southern Convention, at Knoxville, in 1859, he took strong
grounds for the preservation of the Union. He was bitterly
opposed to the policy of secession, and when the question began
to assume a serious aspect in Mississippi, he quit the State and
•resided iu Tennessee, but when that State also espoused the
secession cause he gave adhesion to it, and was chosen as oue

HENRY S. FOOTE. 287
of the Tennessee delegation in the Confederate Congress, where
his career was chiefly noted for his hostility to the Confederate
President, and finaUy for his opposition to the continuance of
the war. He was in favor of capitulating upon the terms
offered by Mr. Lincoln iu 1863 and 1864. After the war he
became identified with the administration of General Grant, and
was appointed superintendent of the United States Mint at
New Orleans, which office he held to the time of his death,
which occurred at his home in Nashville, on the 20th of May,
1880. Governor Foote possessed a fiery and vehement temper, and
was engaged while in Mississippi in several duels, two of which
were with the distinguished Sergeant S. Prentiss. He was,
however, when not agitated by the excitement of opposition,
exceedingly mild in his manners, and was an accomplished dev
otee of the social circle, but he was at all times inclined to be
argumentative, and on the stump was of ten fierce in ridicule and
invective. He was at one time very popular with his party in
Mississippi, and few men ever exercised more influence over
popular assemblies than he at one time wielded.
As a lawyer Governor Foote was learned and astute ; he was
apt and alert in discernment, quick to perceive, and logical in
argumentation. His tenacious disposition rendered him ex
ceedingly loath to accept defeat, and he was in all respects a
formidable antagonist. He was engaged in many of the most
important criminal cases that occurred in the State during the
time of his practice at the bar of Mississippi, and acquitted him
self with abUity and remarkable success. His main professional
strength lay in his capacity for captivating the minds of the
jury : his methodical arrangement of facts, his forcible illustra
tions, earnestness of manner, boldness of assault, and complacent
though scathing rejoinder and ready repartee, gained for him
first the attention and theu the favor of the jury. The bold
ness of his assumptions and the apparent depth of his convic
tions were too startling for the question of ordinary minds, and
they yielded assent to that which they felt incompetent to dis
pute. But it was on the hustings that Governor Foote achieved

288 BENCH AND BAR OF MISSISSIPPI.
his greatest triumphs. As a popular orator he had but few
superiors, and gathered applause in every phase of his political
idiosyncrasy. He was familiar with human nature, and he knew
how to present successfully the colors of plausibility to the mind
of ignorance until it mistook illustration for comprehension and
sympathy for conviction.
Governor Foote was author of several works, entitled respec
tively, " Texas and the Texans," " Sylla and Charybdis," and
" The Bench and Bar of the South- West." While his style is
by no means void of elegance, neither of these works has met
with the favor which the reputation of their author proclaimed
for them. Like that of many great orators, his pen failed to
reproduce the inspiration that fell from his hps. But the iuflu-
ence which he long wielded over the destinies of Mississippi
aud the sheen which his talents added to its jurisprudence
inscribe his name indelibly and lustrously upon the pages of its
history.

JOHN H. MARTIN.
The subject of this sketch was a native of Virginia, and was
bom in the County of Albemarle in the year 1790. He was
a descendant of a Huguenot family which came to the colony,
perhaps in the number which flocked thither at the dispersion
of that sect by the revocation of the Edict of Nantes. He was
a soldier in the army of General Jackson during the Indian
wars, and was promoted to a majority for conspicuous services.
He was also in command of Tennessee troops at the battle of
New Orleans. Soon after the termination of the war he began
the practice of law at Glasgow, Kentucky, where he acquired
prominence ; but in 1826 he removed to Nash-ville, Tennessee,
and became associated with Hon. John Bell and Judge Henry
A. Crabb. From this distinguished connection he no doubt
received the confirmation of that lofty estimate of the dignity
of his profession and the sanctity of the duties of an advocate,
that calm self-possession, and refined and high-bred courtesy,
which afterwards characterized his professional ethics.

JOHN II. MARTIN. 289
When Judge Crabb was promoted to the supreme bench and
Mr. Bell elected to Congress, Mr. Martin became the partner
of George S. Yerger, and this firm prepared the volume of
Tennessee Reports styled Martin & Yerger's, au elegant ana
lytical presentation of the law, whose syllabi and compendiums
assert the ability of the authors. Mr. MJrtiu afterwards held
for a short time, under the appointment of the Governor, the
position of circuit judge. In 1836 he removed to Vicksburg,
Mississippi, and formed a copartnership with Judge Beverly
Hughes. When this firm was dissolved he practised some time
alone, and then became associated with Charles Scott, afterwards
Chancellor of the State.
Judge Martin was a well-read lawyer, conspicuous for his ap
plication and devotion to his profession, and noted for his in
tegrity and fidelity. He was a man of modest and amiable
deportment, bland and courteous in his bearing ; and while he
made no effort in his oratory towards ornation or display, his
logical powers were prominent, and he was a clear, earnest,
aud persuasive speaker. His success at the bar was due more
to the depth of his knowledge, his exact preparation, and con
scientious dealing with the interest of his clients, than to any
brilliant superficiaUty. He was a strict Presbyterian in religion
and morals, and was at the time of his death au elder in that
church. He died of yellow fever at Vicksburg in 1841.

19

CHAPTEE IX.

THE BAR^EMINENT LAWYERS— 1832-1868.
WILLIAM S. BARRY  GEORGE R. CLAYTON  DAVID C. GLENN  WALKER
BROOKE  JAMBS C. MITCHELL.
In his famous funeral oration pronounced in honor of those
who feU in the Samian war, Pericles endeavored in au elegant
manner to impress the devoted patriotism of the dead, as an ex
ample of glory, upon the living ; that their deaths were a joint
and hallowed offering upon the altars of their country, and that
while, collectively, they gave to it their lives ; individually,
they received that renown which never grows old, and the most
distinguished tomb they could have, that in whicli their glory
is left behind them, the subject of everlasting record ; that for
illustrious men the whole earth is the sepulchre ; aud not only
do the inscriptions upon columns in their own country point it
out, but in all lands there dwells an unwritten, inheritable
memorial of the heart, more durable than any material monu
ment. There is not au instance in the history of this world in which
any class of individuals exhibited a loftier patriotism, a more
glowing pride, or a more splendid gallantry, than that displayed
during the civil war by the members of the Mississippi bar ;
and the same is true in regard to the conduct of the profession
throughout the South. No sooner had the first cloud-caps of
the coming struggle heaved in view, than their briefs were left
unargued, their books were laid away, their offices were closed,
and with drawn swords they were found in every town, in
every village, and in every hamlet marshalling their countrymen
iu the array of battle, organizing companies and regiments, en
couraging the brave and shaming the timid, leading the advauc-

292 BENCH AND BAR OF MISSISSIPPI.
ing files, swelling the ranks, or heading the hurrying columns
of the Confederacy. Everywhere and iu all positions they met
the issue with a determination and devotion that challenge
comparison in the annals of patriotism.
Many of them had exhausted their pens and their powers of
speech upon the hustings and iu the halls of legislation, in argu
ment of the great questions which were now certified by the
voice of honor and of patriotism to the arbitrament of war.
Before this tribunal they were prepared to vindicate and seal
with their blood the scroll of principles which they had advo
cated upon the platform ; and if the mortality list is any indica
tion of bravery in battle, surely the claim of the bar to that
quality is paramount, if vouchsafed in proportion to its losses.
No trade, no occupation, no class of persons, suffered so much
as the legal profession. So great were its casualties that popu
lous counties were left without an attorney, aud on the resump
tion of the courts whole districts could not furnish lawyers
sufficient to conduct the ordinary legal business and litigation.
Their lights had gone out amid the clouds of war like the ex
piring sparks of a meteoric shower. The forums that were
wont to echo to their eloquence were sUent and dumb, while in
many instances, a few old men alone remained to afford exam
ple and pilotage to the untutored youths who were ushered into
the places of the fallen. Among the latter were our Blyth,
Barksdale, Harrison, Rogers, Miller, Bald-win, Aldridge, Autry,
Leigh — men who sunk the lawyer iu the patriot, the patriot in
the soldier, and the soldier in the martyr to the liberties of
their country.

^g'V ¦*^Ti''t>*^ RoUiD,

Sf

At^^^

^:Z-'-t>t'-<^

/'A^.

WILLIAM S. BARRY. 295
WILLIAMS. BARRY.
The distinguished subject of this memoir was born in the then
village of Columbus, on the 10th day of December, 1821. His
early educational advantages were good, and after the usual
academical preparation, he -was sent to Yale CoUege, and gradu
ated with distinction at that institution about the year 1845. On
his return to Columbus, he entered, as a student of law, the
office of Messrs. Harrison & Harris, and soon attracted atten
tion by the earnestness of his apphcation, the courtesy of his
manners, the polished fiueucy of his language, aud by the re
markable eloquence which he displayed in a debating society
composed of the best speakers and most intelligent men of the
town. On obtaining his license, Mr. Barry began the practice of law
in copartnership with Judge J. S. Bennett, and soon manifested
a brilliancy of talent and a rare aptitude for his profession
which furnished flattering indications aud promise of future
eminence, but, becoming weary of professional monotony, he
retired from the bar iu 1847 aud settled as a planter on his
farm in Oktibbeha County. Here, however, his talents soon
commanded notice, and in 1849 he was elected from that county
to a seat in the lower House of the State Legislature, and was
re-elected in 1851. While in the Legislature Mr. Barry partici
pated actively in the promotion of all the leading measures of
his party, and in the discussion of the exciting questions of that
period, in which his manly bearing and oratorical powers com
manded much respect and influence.
In 1852 he removed to that portion of Sunflower County
afterwards included in the county of Leflore, and iu 1853 was
elected to a seat in the National House of Representatives.
AVhile in Congress Mr. Barry was noted for his alertness and
penetration, and for his skill and eloquence in debate. He
took strong grounds in opposition to the party denominated
" Know-Nothings," and in his speech on " Civil aud Religious
Toleration," delivered in the House of Representatives on the
18th of December, 1854, he exposed the policy and principles of
that party in a lucid, searching, and effectual manner. He

296 BENCH AND BAR OF MISSISSIPPI.
contended that a secret political association was dangerous to
the rights of the people and to the stability of the government,
and that a person might as well owe allegiance to a foreign
sovereign, and be ready to obey /lis commands, as assume obli
gations to any society of his countrymen which might place him
in collision with his own Government : that the most beautiful
and soothing effect of civilization, the loveliest imfiuences of
our own institutions, has been to mollify prejudice agavnst those
outside our borders, and to bring the whole family of nations,
as it were, into a common brotherhood.
At the expiration of his term in Congress, Mr. Barry dechned
a re-election and resumed the practice of his profession in
Columbus, in copartnership with Thomas Christian, Esq. This
flrm continued with an increasing command of business until
1855, when the political admirers of Mr. Barry would no longer
dispense with his abilities iu the arena of politics, and he was
again induced to come forth from the retirement of professional
life ; and in the midst of the fierce political contest of that
year he became the leader of the Democratic party in his sec
tion of the State. He was again elected to the Legislature,
and was made speaker of the House, over which he presided
with an energy and ability that fully comported with his repu
tation. From this time Mr. Barry became absorbed in the contem
plation of the great question of disunion, whose rapid approach
his sagacity even now foresaw ; and as it rolled its huge pro
portions to the brow of the political horizon, he became more
and more convinced that, though beast it might be, it was far
preferable to that monstrum horrendum^, informe, ingens, of
Northern fanaticism, whose ravages threatened the destruction
of every Southern interest and Southern right ; he therefore
boldly and firmly embraced the alternative, aud on taking his
seat as a delegate from the county of Lowndes in the Mississippi
Secession Convention of 1861, he was immediately chosen the
president of that body. In this convention were assembled,
par excellence, the wisest and best men of the State, and the
lofty bearing and sublime attitude maintained by Mr. Barry as
its presiding officer gave a dignity, steadfastness, and solemnity.

WILLIAM S. BARRY. 297
to its proceedings, full worthy of the momentous event. So
impressed was he with the importance of the occasion and the
great object which had been achieved, it is said, that it was
with the most powerful manifestations of the mingled feelings
that throbbed and swayed within his bosom, with faltering
voice and tearful eye, that he announced the decision of the
convention, that Mississippi was no longer a member of the
Federal Union, but a Sovereign and Independent State. It is
said that he never again used the pen with which he signed the
Ordinance of Secession, but carefully laid it away with its half-
delivered ink, and left it to his only son, a namesake, with the
injunction that it should be preserved as an heirloom in the
family. Mr. Barry was not a disunionist per se, and had used his best
endeavors to stay the storm, so long as he considered an effort
to do so consistent with manhood and honor. If, as a member
of the Charleston Convention of 1860, he seceded with others
from that body, it was for the purpose of procuring the nomi
nation of a person for the presidency who would possess the
confidence of the Southern people, and whose character would
give assurances that would allay their excitement and discon
tent ; aud with this view he participated actively in the nomina
tion of Breckenridge and Lane iu the subsequent convention at
Baltimore. Mr. Barry was chosen by the Mississippi Convention as one
of the seven delegates to the convention of the Southern States
at Montgomery, aud was afterwards elected a member of the
Pro^usional Congress of the Confederate States, but as soon as
the war was fairly begun he conceived that his duty was in the
field, and having obtained authority from President Davis to
raise a regiment for the war, he resigned his seat, returned to
Mississippi, and in the spring of 1862 organized aud mustered into
service the 35th regiment of Mississippi infantry. This regiment
was led by Colonel Barry through some of the bloodiest scenes
of the great struggle, and he was regarded as one of the best
volunteer officers in the Confederate Army. His regiment took
an active part in the conflicts with the army of General Grant
in Mississippi and in the defence of Yicksburg, where it -was

298 BENCH AND BAR OF MISSISSIPPI.
surrendered. It subsequently shared in the Georgia campaign
and participated in the battles around Atlanta. In the begin
ning oi the expedition of General Hood, Col. Barry was wound
ed at Altoona, and rejoined his regiment in the vicinity of
Mobile, where he was captured in the assault on Blakely on the
9th of April, 1865.
As an officer Col. Barry was characterized by an unswerving
devotion to duty, a courage which knew no odds or disparity, a
coolness which no danger could perturb, and by a stern justice
blended with kindness. He was greatly admired and beloved
by his men, and they would have followed him into the mouths
of the guns of Balaklava.
Returning from the war, Col. Barry retired to the seclusion
of his home, and on being asked by a friend in what manner
he employed his time, -he replied that as far as he could, he
was living in a state of vacuity, that the present was all gloom
and there was no promise in the future. " My thinking in the
past," said he, "has not been profitable — my hopes for my
country have all been blasted, and as far as I can, 1 will quit
thinking and for a while lead a negative existence."
His naturally feeble constitution, which his heroic nature had
sustained through tho hardships and trials of war, became bur
dened with a despondency which induced a rapid decline of his
health, and soon his friends beheld with silent sorrow and com
miseration the ravages of the fatal malady that had fastened its
inexorable grip upon his emaciated frame ; yet he maintained
to the last that independence of spirit and sublime sentiment of
patriotism which had been the ruUng passion- of his life. In
answer to a solicitation made by the authorities of Yale CoUege
a short time before his death for a biographical report, he de
nominated himself " originally a Democrat, theu a States
Rights man, during the war a conscientious rebel (so called),
and at that time a pardoned reconstructed Johnson man."
He reported himself "practising law iu Columbus, trying to
gather from the -wreck which the war made of all our fortunes
whatever may be left, and to make a support for my family by
my profession. As to religion, by education a Presbyterian ;
by taste, an Episcopalian ; in practice, nothing."

WILLIAM S. BARRY. 299
It has been said that all great passions are born in solitude,
that they are tamed and degraded by the common intercourse
of society, and utterly lost and extinguished in public com
panies, crowds, and assemblies ; but here M-e have a brilliant
light, kindled in the blaze of the forum, in the halls of legisla
tion, aud in the smoke of battle, waning away and extinguish
ing itself in the damp of seclusion — the noblest passions that ever
swayed the heart of mortal mouldering in the rust of inaction
and the canker of despondency. Col. Barry saw no hope for
his country, and that dread refiection obscured every light and
cast the gloom of darkness over his existence. He died in
Columbus, at the residence of his sister, Mrs. J. D. Bradford,
on the 29t.h of January, 1868.
Col. Barry possessed a superior order of talents, which ren
dered him at an early age an ornament to his profession and the
idol of his party. His combined elegance of manner and elo
quence of diction rendered him one of the most accomplished
and popular orators of liis day. It is said that his speech at
Montgomery in answer to the caU of the people on the day
of the inauguration of President Davis, was more happily con
ceived, more eloquently delivered, and more highly applauded,
than that of any of the distinguished gentlemen who spoke on
that inspiring occasion. As a la-wyer he possessed all the quali
ties of a successful advocate ; full of sensational and perceptive
energy, his comprehension was rapid and his retort ready, while
his logical powers were adapted to the most subtle and abstruse
reasoning. His imagery was copious and fascinating, and his
art of suasion conquered the sternest obstinacy and soothed into
sympathy the bitterest rancor of prejudice. While his know
ledge of the law was drawn perhaps more from the hastily and
promiscuously gathered crops of genius, than from the more
sohd stores of profound research and experience, so potent
were the combined powers of his mind that he seemed to
possess, by intuition, resources adequate to any emergency.
His strong and lively imagination, fine tastej faultless expres
sion, and elegant vein of humor, rendered him an interesting
companion, and a favorite of society — a circumstance which, so
far as it allured him from the dull routine of professional life,

300 BENCH AND BAR OF MISSISSIPPI.
and from the monotonous path of professional distinction, to the
dazzling arena of politics, was not conducive to that eminence
which his genius had fashioned for him at the bar.
Col. Barry was unswerving iu his adherence to the line of his
duty, and whether amid the carnage of the sword, the encounters
of parliamentary debate, in the conflicts of the forum, or in
the concerns of private life, he permitted no circumstance to
intervene, aud no obstacle to stand un assaulted between him
and the performance of a moral obligation.
He possessed a sublime reverence for justice and truth, and
abhorred duplicity and evasion in whatsoever garb they might be
arrayed, or whatever may have been the plea that invoked
them. His judgment was formed calmly and deliberately, and
he was always ready to defend his positions by honest argument
and logical illustration. While his disposition was exceedingly
amiable, he was scathing in his invectives against injustice,
flerce in his denunciation of wrong, and eloquent in the defence
and advocacy of right.
Col. Barry was a warm friend, and a devoted husband and
father. He was married on the 20th of December, 1851, to
Miss SaUy Fearn, daughter of Dr. Thomas Fearn, of Hunts
ville, Alabama. This lady is yet Uving, and is entitled to more
than an ordinary share of the credit and esteem due to the
amiable, the accomplished, and the faithful wife and widowed
mother. Her maternal devotion awakened in her bosom an
energy and determination wMch have woven the web of pros
perity from the weeds of desolate widowhood.
Col. Barry was affectionate and sincere in his attachments,
and could see no fault in his friends. He was the soul of honor,
and knew no feeling of envy .or sentiment of jealousy. He
delighted in aiding his younger brothers of the bar, and main
tained towards all a frank and generous attitude. His kindness
of heart and consideration for the comfort of his friends were
beautifully exemplified on the night of his death. They knew
that his end was nigh, and many of them had gathered in at
tendance on the final scene, and a few minutes before the fatal
hour arrived, he tumed to his sister, Mrs. Bradford, of whom
he was the dying guest, and asked what friends were in the

GEORGE R. CLAYTON. 301
"sitting-room. On being told their names he charged her to ex
press to each of them his grateful appreciation of their kindness
in calling to see him at such an hour, and to convey to them
the highest assurance of his friendship and good-will. He theu
said :
" Sister, those friends will remain during the night, and you
must not forget about midnight to provide them with some re
freshments. Go out and direct that coffee be ready for them at
that hour." But before the hour arrived for this last appoint
ed feast of friendship, the spirit of William S. Barry had taken
its flight, and his cup remained unsipped upon the hallowed
board. But down to the end of time his name will glitter in
the annals of Mississippi in glaring association alike with the
brightest days of its prosperity and the darkest hours of its ad
versity ; in the fornier, he was an honor to its glory, and in the
latter, the glory of its gloom.

GEORGE R. CLAYTON.
There is a republican heraldry more glorious than all the glit
tering insignia and emblazoned armorials that ever gauged the
pride of the grandest aristocracy — a heritage which can neither
be devised as an appurtenance of domain, nor bequeathed as an
incident of the proudest title of nobility. It is the legacy of
ancestral emulation — the spirit which in ancient Rome devoted
whole families, through generations, to the service of the
Republic, and which impelled the third Brutus to emulate the
glory of the first.
This legacy brings iu its train the treasures of example ; the
invaluable stores of refined training, and the wealth of hallowed
inspirations. He who heirs this inheritance possesses every
motive to the strife for eminence, the strongest incentives to
virtuous and vigorous action, and is guided by the most imperi
ous infiueuces that conduce to the expansion and development
of the highest moral and intellectual character ; the virtues of
his ancestors form the beacons of his pathway, while a tutored
ambition bids him onward. Such were some of the influences

302 BENCH AND BAR OF MISSISSIPPI.
which moulded the character of him who forms the subject of
this sketch.
George R. Clayton was born in Athens, Georgia, on the 6th
of October, 1808, and was the oldest son of Hon. Augustine S.
Clayton and Julia Clayton, nee Carnes. He graduated at the
University of Georgia in 1827, and read law in the office of his
father, who was one of the many able lawyers, distinguished
jurists, and eminent representatives in Congress, of whom
Georgia can so justly and proudly boast. George began the
practice of law in his native town, and his natural ability and
thorough professional training enabled him very soon to attain
a position of prominence at the bar ; but the attention which
the sprightliness of his genius had so early attracted was not to
permit its confinement to the dull routine of a law office, and
its seclusion from public affairs.
In 1834 he was elected to a seat in the Legislature of Georgia,
and participated with activity and prominence in all matters of
general legislation, and particularly distinguished himself by
the remarkable abiljty and zeal he displayed in the advocacy of
a petition made to the Legislature for the pardon of a minister
of the gospel, the Rev. Mr. Johnston, who had been convicted
on circumstantial evidence of the murder, in his own house, of a
young girl who was his ward. Here was a theme and occasiou
well calculated to kindle the glowing benevolence of his nature,
and elicit the brightest coruscations of his intellect ; and he
nobly availed himself of the opportunity. After a thorough in
vestigation of the case, Mr. Clayton became so profoundly con
vinced of the innocence of the applicant for legislative clem
ency, that he threw all the impulses of his heart and powers
of his genius into the struggle for the rescue of the unhappy
man from the terrible fate that awaited him ; aud in this noble
effort achieved a reputation throughout the State forpre-emineut
qualities, and for an intellectual ability rarely attained by one
of his "years.
About this time Mr. Clayton was married to Ann R. Harris,
oldest daughter of Gen. Jephtha V. Harris, who for more than
forty years practised law in the Northem Circuit of Georgia,
with distinguished success ; and if it be true that the germs of

GEORGE R. CLAYTON. 303
excellence pulsate iu inheritable veins, this lady brought to him
a dowry kindred to that heritage described in the beginning of
this sketch.
In 1836 Mr. Clayton removed with his family to Mississippi,
and established his residence in the town of Columbus, where
he continued the practice of law, and took his position among
the most emiuent of the profession ; but, while he was a
devoted barrister, he entertained firm and vigorous opinions re
garding matters of public interest, and still listened to the
voice of political ambition. During the very next year after
his advent to Mississippi, we find him engaging in a fierce dis
cussion, at Columbus, with Alexander G. McNutt, aud acquit
ting himself with distinction in his polemical contest with that
veteran politician, who was then canvassing the State for gov
ernor upon the Van Buren platform.
At the election following this canvass Major McNutt was
elected, and during his term as governor promulgated those
doctrines which finally resulted in repudiation. To this princi
ple Mr. Clayton was bitterly hostile, and in 1843 engaged in a
canvass for governor against Hon. Albert G. Brown, in which
the main issue between the opposing candidates was repudiation
or payment on the part of the State of the bonds of the Union
Bank, but the policy of repudiation was embraced by a majority
of the people, and Mr. Brown was elected.
As the writer has frequently had occasion to refer to this
question, which carried men into office and hurled others out, it
may not be improper to present here a brief history of its char
acter, and the infiuences which were brought to bear upon the
people in its support.
On the 21st day of January, 1837, an institution was incor
porated by an act of the Legislature of Mississippi, under the
style and title of " The Mississippi Union Bank," with a capital
of $15,500,000, which was to be raised by a loan to be obtained by
the Board of Managers appointed by the Legislature, and com
posed of three persons from each county in the State, who were
to open books of subscription at their respective county seats,
until the appointment of a Board of Directors should intervene ;
and in order to facilitate this loan the faith of the State was

804 BENCH AND BAR OF MISSISSIPPI.
pledged, both for the security of the capital and interest, which
was to be promptly paid by the bank as the bonds should
severally faU due.
The Constitution required that auy act pledging the credit
of the State should, in order to be valid, be re-enacted by the
succeeding Legislature. This was done, and at .the same time
a supplemental act was passed by the subsequent Legislature in
regard to the incorporation of subscribers, which was embodied
iu the original act, aud somewhat modified its provisions.
Under this blended enactment of legality and invalidity the
larger portion of the bonds were sold, and hence the origin or
rather the basis of the question, which has assumed various at
titudes in its progress.
The repudiators contended that the supplemental act- passed
by the second Legislature so altered the provisions of the
original act as to require the sanction of a third Legislature to
give validity to any part of the proceedings ; while the bond-
payers urged that as the supplemental act confirmed, and did
not alter that portion of the original act which created the State
liability, the pledge was valid and binding ; and this was the
position maintained by the High Court.
Many aud varied were the influences brought to bear upon
the people iu the fierce and prolonged contests between the
respective adherents of these policies. It came to pass that the
payment of these bonds by the State would have incurred a
heavy tax upon all kinds of property, and a ruinous burden
upon the prosperity of the State. This was a powerful incen
tive to popular indifference, if not to positive antagonism to
their payment ; and so far the repudiators, in addition to the
charge of illegality, rested their position upon a law of nature.
But even broader grounds were in time assumed, and it was de
clared that one generation could not bind another. This prin
ciple derives force from a celebrated letter of Mr. Jefferson to
Mr. Madison, written from Paris in 1789 ; of which the follow
ing extracts are introduced, as well for the sake of the import
ance and novelty of the arguments as on account of their appli
cation to the question of Mississippi Repudiation, especially at
¦this day.

GEORGE R. CLAYTON. 305
Mr. Jefferson says : " The question whether one generation
of men has the right to bind another, seems never to have been
started either on this or our side of the water. Yet it is a
question of such consequence as not only to merit decision, but
place also among the fundamental principles of our govern
ment. The course of reflection in which we are immersed here
on the elementary principles of society, has presented this ques
tion to my mind ; and that no such obligation can be so trans
mitted, I think very capable of proof. I set out on this ground,
which I suppose to be self-evident, that the eartli belongs in
usufruct to tlie liv'ing ; that the dead have neither powers nor
rights over it. The portion occupied by any individual ceases
to be his when he himself ceases to be, aud reverts to society,
unless conventional laws have directed its future use. But no
one takes it by natural right. Then no man can, by natural
right, obhge the lands he occupied, or the persons who suc
ceed him in that occupation, to the payment of debts contracted
by him.
" What is true of every member of the society individually, is
true of them aU collectively ; since the rights of the whole can
be no more than the sum of the rights of the individuals. To
keep our ideas clear when applying them to a multitude, let us
suppose a whole generation of men to be born on the same day,
to attain mature age on the same day, aud to die on the same
day, leaving a succeeding generation in the moment of attain
ing their mature age all together. Each successive generation
would in this way come and go off the stage at a fixed moment,
as individuals do now. Then I say, the earth belongs to each
of these generations during its course, fully and in its own
right. For if the first could charge it with a debt, then the
earth would belong to the dead, and not to the living, genera
tion. Then no generation can contract debts greater than can
be paid during the course of its own existence."
Yet, notwithstanding the ingenuity of his argument, Mr.
Jefferson seemed to ignore the fact that, if there can be such
things as demise aud inheritance, even though they be purely
conventional, they may also be coupled with conventional con
ditions, and the enjoyment in usufruct by the heir made to de-

306 BENCH AND BAR OF MISSISSIPPI.
pend upon the payment of the debts contracted by the ancestor,
perhaps for the very rights which he has transmitted, and
upon the simple ground that a thing is bound for the price of
its purchase. , It is not to be understood, however, from these
remarks that the writer undertakes to decide upon the merits of
this controversy on the question of the bonds ; for, if the
"vox populi " theory be correct, the will of Heaven has long
since settled the whole matter.
Those who favored the payment of the bonds contended,
first, for their legality, and then for the honor and credit of the
State, which they conceived should be preserved at all events.
Some abhorred the principle of public repudiation to such au
extent as to dispose them to waive all doubts of their legality,
in favor of their payment ; and among these was the subject of
this sketch. The stanch position of Mr. Clayton in opposition
to repudiation debarred him, with many other men of eminence,
from the preferments which his abilities merited, and which his
popularity otherwise would have achieved.
He was a warm advocate of States rights, favored separation
as the only mode of preserving them, and was a member of the
convention that withdrew the State of Mississippi from the
Union, and took an active and vigorous part in all the proceed
ings of secession, the right and justification of which he main
tained to the day of his death.
Having lost his wife some years before, he was married in
1861 to Miss Laura Johnston, daughter of Gabriel Johnston,
Esq., of Mobile, a lady of many noble qualities aud accomplish
ments. At the close of the war his aged mother was still living, and
so soon as the affairs of the country would permit, he hastened
to look after her welfare ; and while on a visit to her with his
family, he was stricken with disease of the heart, and died in
Athens, Georgia, in 1867, in the house of his mother aud the
home of his childhood.
As a lawyer, Mr. Clayton was thorough, accurate, and vigor
ous ; conspicuous for his ready grasp and tenacity of tenable
positions, aud for his ability to fasten conviction upon the
minds of both judges and jurors. This was due to his masterly

DAVID C. GLENN. 307
knowledge of law, his brilliant logical powers, and his polished
arts of suasion. His probity and integrity commanded uni
versal confidence, while his almiable and courteous bearing en
gaged the most affectionate esteem of his brothers of the bar.
As a man his prominent characteristics were an uncompromis
ing morality, a warm benevolence, and au attractive amiability,
which were constantly displayed in every phase and condition
of his life. He was from early manhood a member of the
Methodist Episcopal Church, and was not ashamed to bear -wit
ness to the merits of religion and the efficacy of the cross. In
all the relations of life Mr. Clayton was cherished and admired,
aud was pointed out by his fellow-citizens as a man upright in
purpose, meek in spirit, pure iu heart, circumspect in walk,
and in every way worthy of imitation.

DAVID C. GLENN.
David Chalmers Glenn was born in the State of North Caro
lina about the year 1824, but, having lost his father, he was
brought to Mississippi when a mere infant, and, at au early age,
was placed in the law office of his uncle, Hon. J. W. Chalmers,
who was then the partner of Roger Barton at Holly Springs.
His early educational advantages were very limited, and he en
joyed, for the most part, only such as were afforded in a busy
law office. But his ambition stimulated an application which,
together with his rare natural endowments; soon enabled him to
surmount all untowardness of circumstances, and, in 1842, when
but eighteen years of age, he was admitted to the bar under
omens of a propitious future. He had, however, no sooner
achieved his entrance upon a successful career at the bar than,
impelled by his ardent patriotism and fiery spirit, he embraced
a warm interest in the political questions of the day, and, in
1844, entered the exciting canvass of that period, a young but
])rilliant champion of the Democratic cause.
His political speeches during the campaign attracted much at
tention and were highly applauded ; indeed, his able impeach-
meut of the conduct of some of the Whig leaders, and his unan-
20

308 BENCH AND BAR OF MISSISSIPPI.
swerable arraignment of some of the measures of that party, dis
played powers whicTi designated him as the future attorney-
general of the State.
In the fall of 1844, he removed to Jackson, where he soon at
tained to an extensive practice, and assumed his position as
one of the most eloquent, energetic, and brilliant advocates be
fore the bar of the High Court. ,
In 1848, he again felt himself called upon to euter the pohti
cal field in support of the national nominees of his party, the
principles of which he cherished with partisan devotion, and
whose interest he considered as paramount to all other claims
upon his talents. In this campaign he acquired additional rep
utation for political acumen, for briUiant logic, and for a superb
and thrilling eloquence, which made him the favorite and pride
of his party.
In 1849 he was chosen, by a large majority, attorney-general
of the State, and acquitted himself iu that office with such
marked ability and satisfactory performance that he was re
elected, and even strongly urged to accept a third term, which
he, however, declined, and, at the expiration of his second term
as attorney- general, reuioved to Harrison County and took up
his residence upon the sea-shore, where the buffetings of the
pent waves were symbolic of the proud heavings of his own
hampered spirit. But his retirement and choice of abode -were
not made with the spirit that dictated the message of the Gre
cian misanthrope. He mused no thought like this :
" Come not to me again : but say to Athens,
Timon hath made his everlasting mansion
Upon the beached verge of the salt flood.
Whom once a day with his embossed froth
The turbulent surge shall cover."
Col. Glenn was ever ready to respond to the call of duty,
and when the campaign of 1860 marshalled its ominous clouds
along the political horizon, he came forth from " the beached
verge of the salt flood" and his eloquent voice swelled from the^
capital of the State to its circumference. He was a member of
the Charleston Convention, and mingled his thrilling strains with
the eloquence of William L. Yancey. He was also a member of

DAVID 0. GLENN. 309
the Mississippi Convention of 1861, which passed the ordinance
of secession, of which he was a strenuous advocate, and was chair
man of the committee on the formation of a Southern Confeder
acy. He had bitterly opposed acquiescence in the compromise
measures of 1850 ; and the circumstances attending the admis
sion of California into the Union convinced him that secession
was the only alternative for the South. And it is certain that,
if such a policy was to prevail, then was the time for its adop
tion. There was then no organized revolutionary party at the
North, prepared to destroy the government and drench the con
tinent in blood in the interest of fanaticism, and, if the South
Carolina doctrine of co-operation had then been embraced, the
country would, in all probability, have escaped the woes which
afterwards befell it.
As a lawyer, the character of Col. Glenn needs no other
eulogy than that proclaimed by his efficiency as attorney- general
of Mississippi. He was a thorough lawyer, a brilliant logician,
and a most eloquent advocate. He possessed in a high degree
that lactea ubertas of diction which, while it flowed in placid
streams or dashing torrents as the theme and occasion demanded,
yet bore upon its surface the cream of thought and sentiment —
that supreme excellence of oratory which, while it flashes with
the ornaments of elocution, is yet characterized by " quot verba,
tot pondera."
He was truly a high-spirited, generous, and magnanimous
man ; as patriotic as Cincinnatus or Reguhis, as courteous as
Chesterfield, and as chivalrous as the Chevalier Bayard. But
no effort of mine could more eloquently describe his characteris
tics than they are set forth in the following tribute from the
bar of the High Court of Errors aud Appeals, and in the touching
and pathetic remarks of Hon. T. J. Wharton on presenting the
resolutions to the court. To these I am happy to defer all fur
ther efforts to do justice to the character of my subject.
At a meeting of. the members of the bar of the High Court of
Errors aud Appeals, on the occasion of the announcement of tho
death of Hon. D. C. Glenn, on motion of W. P. Harris, Hon.
E. S. Fisher was called to the chair, and Samuel Livingston ap
pointed secretary.

310 BENCH AND BAR OF MISSISSIPPI.
The object of the meeting having been explained, on motion,
the chair appointed T. J. Wharton, W. P. Harris, H. W. Wal
ter, S. J. Gholson, and J. T. Harrison, a committee to prepare
and report resolutions expressive of the feelings of the meet
ing ; and thereupon the meeting adjourned to Saturday, Janu
ary 9th.
On Saturday, January 9, 1869, the meeting was called to
order, and Gen. W. S. Featherston, in the absence of Hon. E.
H. Fisher, took the chair, when Hon. T. J. Wharton, chair
man of the committee, on motion, reported the following reso
lutions . regarding the death of Hon. D. C. Glenn, which were
unanimously adopted :
The bar of Mississippi is again called upon to moum the loss
of one of its most distinguished members. The melancholy in
telligence has reached us that the spirit of the gifted and chival
ric David Chahners Glenn, who was for many years the distin
guished attorney-general of the State, has returned to the God
who gave it, and all that was mortal of him has been consigned
to the grave, there to repose until the resurrection morn ; we,
his friends and brothers, assembled from different portions of
the State, have met to pay a last tribute of respect to his mem
ory, and to mingle our tears of sympathy over his untimely fall.
To attest our sense of the loss the State has sustained, we
resolve :
1. That, in common with all classes, the bar of Mississippi
have received "with profound sensibility the announcement of
the death of the Hon. David Chalmers Glenn, for many years
an eminent member of the profession, and attorney-general of
the State.
2. That we tender to the family and relations of the deceased
our sincere condolence in the melancholy dispensation of
Divine Providence which has been visited upon them, and the
State, in the death of one so beloved and honored.
3. That the foregoing preamble and resolutions be presented
to the High Court of Errors and Appeals, with a request that they
be spread upon the minutes, and that the secretary furnish a
copy to the family of the deceased, and also one to " The Clar
ion" for publication.

DAVID C. GLENN. 311
On motion of H. H. Chalmers, the chairman of the commit
tee was requested to present the foregoing resolutions to the
High Court of Errors and Appeals, and request that they be en
tered upon the minutes ; aud thereupon, after being addressed
by William Yerger, Esq. , the meeting adjourned.
¦¦' On presenting these resolutions to the High Court, Hon. T. J.
Wharton delivered the following eloquent eulogy upon the char
acter of- the deceased, which was published at the time by the
request of the members of the bar :
' ' May it please the Court : At a meeting of the members of
the bar, held in this chamber this morning, resolutions were
adopted which, as chairman of the committee reporting them, I
have the honor to submit, with the request that they be spread
upon your minutes. I beg the indulgence of your honors, if I
preface the reading of them -with a few remarks which I trust
may not be deemed inappropriate. It might seem superfluous, if
not indeed presumptuous in me to utter a word after the very
eloquent tribute which was paid to the memory of the deceased
by the gentleman, Hon. C. E. Hooker, who announced to the
court on Wednesday last the melancholy event which has occa
sioned the action of the bar. The apology I offer is, that for a
period of nearly a quarter of a century, an intimacy, both per
sonal aud professional, existed between the deceased and myself,
which was never interrupted for a moment. I was his immedi
ate successor iu the office of attorney -general of the State. In
that, as in every position and relation of life, I was the recipi
ent of his confidence and friendship. To those not so well ac
quainted with him, what I shall say will probably appear fulsome
aud extravagant ; but to all who knew and appreciated him I
confidently appeal.
" Pavid Chalmers Glenn -was a remarkable man. God had
vouchsafed to him endowments rarely bestowed upon our race.
He made his impress upon all with whom he came in contact.
There was a magnetism about him, both charming and irresist
ible. " He was beloved and honored in life, as he is now mourned
in death, by all classes aud professions of our citizens. The

312 BENCH AND BAR OF MISSISSIPPI.
memory of such men should not be allowed to perish with what
is mortal in their nature. It is the sacred duty of the people,
nay, of the commonwealth, to cherish with vestal fidehty the
memories and the deeds of their illustrious dead. It is the
achievements, the lives, the characters of its great men which
make the history aud constitute the true glory of every nation.
The innumerable caravan, as generation succeeds generation,
passing along the shores of time, is lost in the sea of obli-vion.
It is only the few, ' the immortal names that were not born to
die,' that are remembered. The undistinguished dead return
to dust and leave no record behind them.
" It was not more l^eautifuUy than truthfully said by that
greatest intellect of the age in which he lived, Daniel Webster,
' that a superior and commanding human intellect, a truly
great man, when Heaven vouchsafes so rare a gift, is not a tem
porary flame, burning brightly for a while, and then gi-ving
place to returning darkness. It is rather a spark of fervent heat,
as well as radiant hght, with power to enkindle the common mass
of human mind ; so that when it glimmers in its own decay, and
finaUy goes out in death, no night follows, but it leaves the world
all light,, all on fire from the potent contact of its own spirit.'
Another, pronouncing an eulogy on the author of that sentiment
catches up the refrain, and as if in continuation, exclaims, ' No,
sir, our great men do not wholly die ; all that they achieved
worthy of remembrance survives them. They live in their re
corded actions ; they live in their bright examples ; they live
in the respect aud gratitude of mankind ; they live in that pe-'
culiar influence by which one single commanding thought, as it
runs along the electric chain of human affairs, sets iu motion
still other thoughts and influences, in endless progression ; and
thus makes its author an active and powerful agent in the
events of life, long after his mortal portion shall have crumbled
ill the tomb. '
" Born in the State of North Carolina, the deceased came to
Mississippi in infancy. With limited advantages of education,
without experience, fortune, or patronage, but with that lofty
intellect and those almost unrivalled powers of eloquence which
have made his name familiar as a household word in this, his

DAVID C. GLENN. 313
adopted State, he entered upon that career which became so dis
tinguished. When but a boy, he was taken into the law office
of the Hon. J. W. Chalmers and the Hon. Roger Barton.
Under their auspices he was introduced to public notice. He
was probably the youngest man ever admitted to the bar in Mis
sissippi. He was scarcely eighteen years of age when he was
licensed. At that time the bar of North Mississippi shone re
splendent -with a galaxy of learning and talent unsurpassed, if in
deed, ever equaUed, in its history. At the same time he
botmded into the political arena, and in the memorable contest
of 1844, when aU over the United States the intellectual giants
of the two contending parties met, as Greek meets Greek, face
to face, and when, ' Like fabled gods, their mighty war
Shook realms and nations in the jar,'
David C. Glenn proved himseK a foeman worthy of the steel
of the taUest champion of the opposing party. Again iu 1848,
when the party with whose destinies his fortunes were identi
fied was once more summoned to the field in grand national
tournament, his clarion voice was heard resounding in strains of
loftiest eloquence, from Tishomingo to the sea-shore. So in
1850-51, when the State and the Union were convulsed with
excitement caused by the admission of Cahfornia, he was found
where the storm of battle raged hottest, and where the missiles
flew thickest and fastest. His last and most brilliant campaign
was in the national election of 1860, a struggle which culminated
in the deplorable civil war, from which the country has so re
cently emerged, and in which, though borne down by superior
numbers, our loved but stricken South challenged the admira
tion of the world by her almost superhuman exhibition of hero
ism and endurance. Though thus distinguished as a party
leader and debater, the only political position he ever occupied
was a seat iu the convention of January, 1861. That body was
composed of all the most distinguished men of the two parties
in the State. Then and there, as always and everywhere be
fore, D. C. Glenn was the eamest advocate of the same political
opinions he espoused when he flrst appeared before the public ;

314 BENCH AND BAR OF MISSISSIPPI.
and it is not disparaging to others to say that he was at least
the peer of the most distinguished of its members. But, if pos
sible, his career in his profession was more conspicuous than in
the political arena.
" In the fall of 1844 he moved to the capital of the State, and
entered earnestly and actively upon the practice of his profes
sion in the High Court of Errors and Appeals. The bar practis
ing in that forum at that day might have safely challenged
comparison with any bar in America, if not in the world. To
attempt an enumeration of the illustrious names .which adomed
its annals would be both tedious aud invidious. It is. sufficient
to say that the juvenile jurist commanded their respect and
admiration. " In 1849, ha-ving barely attained the age required by the con
stitution, twenty- five years, he was by an overwhelming major
ity elected attorney-general of the State. How he sustained
himself in discharging the arduous and responsible duties of
that important position may be inferred from his unanimous
re-election for a second term. At the close of - that term, he
resisted all appeals to fill the station longer, and took up his res
idence on the sea-shore in the County of Hancock, where he con
tinued to reside until his death. The reports of the decisions of
the High Court, during" the time he filled the office of attorney-
general, are replete with the evidences of his learning, zeal,
ability, and eloquence.
" But the ' divine affiatus ' which inspired his utterances, and
carried irresistible conviction to the minds of his hearers, has
died away even as the remembered tones of a mute lyre. That
dark flashing eye, on fire with genius, that silver tongue with
its mellifluous accents, that spare lithe form, trembling under
the inspiration of the inner life, struggling for birth, are all re
membered by those of us whose good fortune it was to behold
him, ' when his blood was up, and the full tide of inspiration
was pouring upon him. '
" To all these advantages was added a voice of surpassing
power aud sweetness, so perfectly modulated and attuned that
its very tones expressed the thoughts of the speaker. His im-
agiuation, which was ' wild of thought and gay of wing,' was

DAVID C. GLENN. 315
chastened by culture, and enriched by the choicest collections
from classic literature. He culled from the fields of history,
romance, and poetry, and comljiued the rarest exotics with the
productions of his owu genius. But for all this, he never sacri
ficed an argument for a figure of speech. The embelhshments
of rhetoric were only added as a relief to himself and his audi
ence. When such embellishments were employed, it was only
because they were so apropos that they could uot be kept back.
' ' Such is a feeble portraiture of him at the bar and before pop
ular assemblies. To many of us he wds linked by closer ties
than any which his many intellectual powers could have cre
ated. The charm, the fascination of his manners, the warmth
and spontaneity of his friendship touched and won the heart.
But alas ! ' The boast of heraldry, the pomp of power.
And all that beauty, all that wealth e'er gave,
Await alike the ine-vitable hour :
The paths of glory lead but to the grave. '
" In the pride of mature manhood j in the high noon of his
fame, his sun has set in the night of death ; and nothing re
mains for us who survive, but to cherish his memory, and strive
to imitate his example, in so far as it was crowned with virtue,
honor and distinction."

316 BENCH AND BAR OF MISSISSIPPL

WALKER BROOKE.
Among those gentlemen of our bar who seemed to have been
designated by nature for the profession of the law, there were
few who possessed such indications in a more remarkable degree
than the subject of this memoir.
Walker Brooke was born in the State of Virginia on the 25th
of December, 1813, and tliere his boyhood and his youth were
passed. His early scholastic advantages were good, and at the
age of twenty-one years, he completed his education at the uni
versity of his native State, where he had given marked evidence
of those intellectua] traits whicli afterwards so highly adomed his
character. Soon after retiring from the university, he began
the study of law iu the school of the celebrated Judge Tucker,
oue of the most eminent jurists of the Old Dominion, where
he had every advantage that learning, refinement and the most
distinguished example could afford. These opportunities were
well improved, and Mr. Brooke was admitted to the bar with
every prospect which a high order of talent aud a thorough prep
aration could offer.
But finding his means inadequate to that probationary ordeal
which, at that period, claimed many years of a young practi
tioner before he could assert a position at the bar of Virginia, he
emigrated to Kentucky, and there taught school, during two
years, in order to maintain himself until the door of practice
should open to him.
But for this he possessed the unfailing " sesame ;" and now
turning his eyes toward that already illuminated legal field, he
removed to Mississippi and located at Lexington in Holmes
County, where his abilities were soon recognized, and he be
came immersed in a large and lucrative practice. His talents
were also sought in another sphere, aud he was several times re
turned as the representative of Holmes County iu the Legis
lature, where his career was characterized as brilliant among the

WALKER BROOKE. 317
eminent gentlemen who, at that period, took their seats in that
body. On the election of Senator Foote to the gubernatorial chair
of Mississippi iu 1851, Mr. Brooke was appointed to fill his un
expired term in the United States Senate ; iu which his politi
cal acumen, stanch patriotism, aud logical eloquence, attracted
the notice of the whole country, and Mr. Brooke retired from
this high position with the meed of an honorable efficiency, and
with the laurels of a well-deserved reputation.
He was a member of the Mississippi Seceding Convention of
1861, aud was appointed one of the committee of fifteen to re
port au ordinance of secession ; and while he sustained that
measure, he was disposed to plunge not without caution into the
abyss, and sought to impend its effect upon the contingency of
an effort towards reconciliation. He also introduced a resolution
to refer the whole matter to the action of the people at the
polls, but such formalities and delays were not compatible with
circumstances, or in accord with the spirit of the times ; and
Mr. Brooke was swept along -with the current. On the passage
of the ordinance, he was chosen one of the delegates to the
Provisional Congress of the Southern States at Montgomery,
and in that body continued to favor the measures of prudence.
He seems never to have entertained the sanguine views of many
of his associates, and appeared more disposed to obey the dic
tates of a cool judgment than the fiery impulses of the moment.
He was during his whole life an inveterate and uncompromis
ing Whig, and waged a fierce aud relentless war upon Democ
racy ; by the leaders of which he was dreaded, while his party
was a rival power in the State, as a fearless champion and a foe
of no unworthy steel.
As a lawyer, Mr. Brooke was conspicuously imbued with the
learning of his profession, and by his free indulgence of a taste
and fondness for knowledge, had cultivated a familiar acquaint
ance -with the whole field of literature. He had also thoroughly
studied mankind, was versed in all the varied phases of human
nature, and understood those which indicate and measure the
virtues and vices of men ; hence he was a ready detective of
their motives, and capable of unweaving the most intricate webs

318 BENCH AND BAR OF MISSISSIPPI. '
of cunning and deceit. This faculty gave him great power, both
in the elicitation of evidence and the elimination of truth, while
his lucid method and simplifying analysis often substituted a
willing conviction for that confusion with which the subtleties of
a less experienced advocate often darken the minds of the jury.
His perceptive faculties were quick, penetrating and alert,
and his cultured legal judgment weighed every fact in the scale
of applicable law. His terse and forcible logic was blended
with an earnestness and vigor that penetrated to the most obtuse
understanding, while the candor aud suavity of his manners so
captivated the minds of his hearers that conviction anticipated
reflection, burst every barrier of prejudice, and followed en
chained in the wake of attention. There were few men who so
blended the softer emotions of a generous nature with the ruder
elements of a stern and dutiful professional regimen. Firm and
uncompromising in the faithful discharge of a trust, and un-,
swerving iu his devotion to the interests of his clients, he was
mild and courteous in his professional bearing, simple and cor
dial in all his dealings, aud exhibited at all times a heart over
flowing -with the sentiments of charity and benevolence.
But in no respect was he more exemplary in kindness and
amiabiUty than in his deportment toward the younger members
of the bar, a quality of kindness which seems to be inseparable
from the traits that constitute true professional greatness. He
was always ready to befriend them, both in counsel aud in deed,
and with a patience aud alacrity as if his learning and experi
ence were possessions in which they had a fee title of participa
tion ; and there are many living members of the profession
who, to-day, remember with grateful feelings his words and acts
of encouragement, and cherish the haUowed impressions of his
generous aid.
While Mr. Brooke enjoyed, during the space of nearly thirty
years, a large aud lucrative practice at the bar of Mississippi,
his great hospitality, large-handed charity, and liberal expendi
ture, precluded the accumulation of fortune. He found his
greatest pleasure in the happiness of his friends, and in the
gratification of every wish of his family, by whom he was be
loved and venerated to the depths of devotion.

WALKER BROOKE. 319
He was married in 1840 to Miss Jane L. Eskridge of Carrol
County, a lady adomed with many rare traits and accomplish-
irients, by whom he had ten children.
His death, which occurred on the 19th of February, 1869,
was attended by circumstances of a singular nature. He was
eating oysters iu company with some friends, in a saloon in
Vicksburg, when, in endeavoring to swallow one of unusual size,
it lodged iu his throat, and, in his effort to expel it, it was
forced into the trachea, and produced suffocation and insensibil
ity : and although it was removed by a physician as soon as cir
cumstances would permit, yet, so great was his prostration and
the effusion of blood to his brain that it became the immediate
cause of his death, which foUowed on the next day.
His death was deeply felt in the community in which he
lived, and at the" bar, of which he was a distinguished ornament,
while the State mourned the loss of one of its purest patriots.
The bar of Vicksburg paid a beautiful tribute to his memory, in
which he was characterized as an ornament to his profession, an
honor to his State, and a model father, friend, and citizen.

320 BENCH AND BAR OF MISSISSIPPI.

JAMES C. MITCHELL.
James C. MitcheU was a native of Virginia, and was bom near
the celebrated Peaks of Otter, a circumstance to which in his
joviality he attributed his lofty aspirations and untamable dis
position, as well as his majestic stature. At au early age he re
moved to East Tennessee, and, having adopted the law as his
profession, rose so rapidly in eminence and in popular esteem
that, while quite a young man, he was elected to a seat in Con
gress, where the versatihty of his genius, his unfailing flow of
humor, and eccentric characteristics, procured for him popular
ity if not influence.
Mr. Mitchell, while eccentric in some respects, possessed the
trait, unusual in such characters, of admiring that quahty in
others. While in Congress he was fondly intimate with the
afterwards famous General Sam. Houston, whom he is said to
have very much resembled and in whom he found an attractive
congeniality ; and so often were these two together that they
were designated as " the couple." But the future hero of San
Jacinto, with his unpretending manners, is said to have often
complained that his friend Mitchell was too much disposed to
promote his own consideration at the expense of his colleagues,
and as an evidence of which he related that on oue occasiou the
Tennessee delegation in Congress agreed to pay their respects in
a hodj to a distinguished foreign minister who had lately arrived
in Washington, and when they reached the door of his residence,
Mr. Mitchell stepped forward and handed to the janitor a card
upon which was inscribed " James C. Mitchell- and the rest of
the Tennessee delegation."
But this blended trait of joviality and egotism contained no
vein of envy or malevolence. He was fond of notoriety, and
especially of distinguished compliment, an instance of which he
is said to have often related with great pride and complacency.
He had delivered an able argument upon the tariff question, and •
on returning to his seat passed that of John Randolph, who, ris-

JAMES C. MITCHELL. 321
ing and taking his hand, said : " General MitcheU, 1 thank you,
in the name of Virginia, for your eloquent and noble speech. I
¦have not heard the like before, since I came into Congress, and
I regard you as one of our most precious jewels, yes, sir, one of
our most precious jewels."
At the expiration of his term in Congress in 182.8, he was
elected to the circuit bench of Tennessee, aud, as a judge, is
said to haver been zealous aud efficient, and to have given grate
ful satisfaction to his constituency. On the bench his ambition
and integrity of purpose were directed to the ends of justice,
while his peculiarities were confined to a punctilious observance
of propriety. His notions of judicial dignity and court deco
rum were rigid and sometimes ludicrously exacting. It is re
lated th-aton one occasion, when he was presiding in the trial of
a case of great importance, a young man with creaking boots
passed several times across the court-room greatly to the annoy
ance of his honor, who finally, having exhausted his patience,
exclaimed: "Mr. Sheriff, bring that young man before the
court immediately !" Which having been done, the judge ad
dressed the astonished culprit thus : " Pray, sir, how much did
your fcoots cost you ?" " Ten dohars, sir," replied the young
man. "WeU," said the judge, "you will never be able to
say that again. The boots shall cost you twenty doUars. Enter
a fine of ten dollars against this young man for striding through
the court- room in creaking boots."
Judge Mitchell was the author of a work entitled " Mitchell's
Justice," a supply of which he is said to have carried with him
around the circuit, and to have taken occasion on the first day
of each term to intimate from the bench that all who desired a
copy could procure one by calling at his private room.
He came to Mississippi about the year 1837, and located in
Hinds County. He was then advanced in years, but had lost
none of his colloquial versatility aud facetious humor, and soon
rendered himself popular with his new associates. He was fond
of relating stories of which he was the hero, and was always
ready to entertain his brother members of the bar, who fre
quently convened in his room after the forensic labors of the
day to listen to his amusing narratives of the ludicrous events of
his experience or the wonders of his owu personal performance,

322 BENCH AND BAR OF MISSISSIPPI.
and which his brilliant imagination aud highly wrrought powers
of description v/ould clothe in all the colors of romance. As au
instance of this kind, it is related that on one occasion the citi
zens of the town in which he resided while in Tennessee, ar
ranged for a grand reception to be given to a distinguished citi
zen on his return home from a foreign mission, in which he had
acquired much honor and distinction for his able and faithful
services, " aud," said he, " as I was known to be -(^ersed in the
etiquette of Washington, whence I had lately returned, I was
appointed to deliver the welcoming address, which 1 did in a
style truly satisfactory, and with so much grace that it was in
consequence arranged also that I should escort the accomplished
daughter of the ex-minister to the ball to be given that night,
and engage her in, the first set. To aU of which I most pleas-
edly consented, and when the dance began I led my charming
partner out. There were at least fifty couples upon the spacious
floor, and, while gracefully weaving her through the mazes of
the contra, I occasionally whispered the most delicious senti
ments in her ear, until completely charmed with my agility and
gallantry the fair creature exclaimed, pathetically, ' Oh ! Col.,
Mitchell, how 1 do wish that you were not a ma/rried man.'
' Most adorable lady !' said I, ' I wUl assure you that at least a
thousand of your sex have expressed the same wish ;' and, at
this moment, seeing a vacant space adjacent, I leaped fully
ten feet from the side of my fair partner, and, gracefully whirl
ing, turned to the astonished lady, and waving my hand in
token of respectful submission to her approbation, I said,
' Pray, Miss, what do you think of that.' To which she re
plied, ' That, sir, was certainly the most extraordinary feat I
ever -witnessed, and I can only apply to you the words of Lord
Byi'on in his description of George the Fourth :
' Without the least alloy of fop or beau,
A perfect gentleman from top to toe. '
The success of Judge Mitchell at the bar was due more to his
bold assumptions, to the startling postulates which his imagina
tive powers and copious flow of speech clothed with a confusing
plausibility, and to his ready wit, than to any profound depth
of learning or logical acumen — more to a superb genius than to

JAMES C. MITCHELL. 323
any solid legal attainments. His disposition Was too much of a
social character, and he was too fond of the pleasantries of so
ciety to submit to the restraints of close application, and his
spirits too exuberant to bear the jealous monotony of profes
sional routine. He was more the political than the legal advo
cate, and had few superiors on the stump. He was aWliig in
politics, and a warm admirer of General Harrison.
It is related that, during the presidential campaign of 1840,
some Democrat in one of the piney woods counties of Missis
sippi had among other things accused General Harrison of cow
ardice at the battle of Tippecanoe, where he claimed to have
been present and to have witnessed his misconduct ; and it hap
pened that while Mr. Mitchell was making a speech at a large
gathering in that county in the interest of his favorite, he
espied the individual who had made this assertionj and calling
his name, asked :
" Did you say that you were at the battle of Tippecanoe, and
that you sawGenei-al Harrison display evidences of cowardice ?'"
Answer. " I did."
Judge Mitchell. " Did you see me there, sir ?"
A. " I do not remember seeing yon."
Judge M. " Yet, sir, I was there, and was constantly by
General Harrison's side, and if you had been there, you would
have seen me." Then turning to the audience, he exclaimed,
" See, fellow-citizens, how easily a lie can be refuted."
A short time before his death he was a candidate in Hinds
County for a seat in the Legislature, and it is said that in a
joint discussion before a large assemblage of the people of the
county, Judge Mitchell, summoning his remarkable powers of
ridicule, assailed his opponent with such a torrent of derision
that the latter, losing all patience, exclaimed : " Judge Mit
cheU, when you descend from that stand I will whip you."
"That you may do," said the judge, "but it will not elect
you ; for I remember that when I was a boy my father owned
a bull that could whip all the other bulls in the neighborhood ;
yet I never heard it urged that his T)ullyism' fitted him for the
Legislature." Judge Mitchell died at his home iu Hinds County in 1843.
21

CHAPTER X.

THE BENCH— EMINENT JURISTS— 1850-1880.
WILLIAM YERGER  WILLIAM L. HARRIS  EPHRAIM 8. FISHER  EPHRAIM
G. PEYTON  COLLIN S. TARPLEY.
This chapter closes the dead list of the eminent gentlemen
who occupied seats upon the bench of the High Court of Errors
aud Appeals of Mississippi. Many of their contemporaries and
some of their associates upon the bench are still living, and it
is hoped that they may long hve to enjoy that high station in
the respect, love, and veneration, of their fellow-citizens, which
their great abilities, model characters, and illustrious services
have so justly merited ; and that they may long look with pride
upon the full fruition of peace, happiness, and prosperity, un
der that reign of justice to the establishment of which their
precepts and examples have so greatly conduced ; and that by
reason of length of days, they may, if possible, achieve even
more good than did their distinguished compatriots who have
preceded them to that court of competent awards where the
meed of virtue is foimd in the approving smiles of Omnipo
tence.

326 BENCH AND BAR OF MISSISSIPPI.

WILLIAM YERGER.
This great aud good man was bom in Lebanon, Tennessee,
on the 22d of November, 1816. The family of Mr. Yerger
was of Dutch origin. His parents were prosperous aud highly
respected. His early educational advantages were good, and he
was graduated from the University of Nashville, where he also
studied law, before he was twenty-one years of age, aud was
immediately admitted to the bar.
In 1837 he removed to Mississippi, aud settled in the to-wn of
Jackson, where he at once began that splendid career which
culminated in the most brilliant reputation, and most lucrative
practice at the bar of Mississippi. The politics of Mr. Yerger,
which were those of the Whig party, precluded him from the
political preferments to which the versatility of his geuius and
his ambition might have aspired ; but so stern and uncompro
mising was his integrity that no glitter of prospect could induce
him to swerve from the strict line of his principles. Indeed,
so fixed and rectified were his conscientious resolves, that
neither the frown of tyranny nor the applause of flattery, the
smiles of fortune nor the whirlwinds of adversity, could shake
them from the firm base of his convictions ; but if the shattered
heavens had fallen upon his head, the ruins would have buried
him clad in the robes of conscious rectitude.
But, notwithstanding his politics, aud kuown hostility to
some of the popular measures of the day, which were likely to
become of judicial cognizance, so great was his ability as a law
yer and his worth as a man, that they finally wrenched the
tribute of even partisan recognition, and in 1850 he was elected
by the popular vote to a seat upon the High Bench of Errors
aud Appeals. During the civil war he was a member of the
Legislature, and in the convention of 1865 and throughout the
dark days of reconstruction he was active and strenuous in his
efforts for the restoration of the State government and the
amelioration of the condition of his people.

WILLIAM YERGER. 327
In contemplating the character of Judge Yerger we are daz
zled by the uniformity and constancy of its glow. There are
no jetting traits to serve as landmarks to the analysis. There
are no conspicuous planets or brilliant constellations to arrest
om- gaze. No glaring meteors flash along the sky. No auroras
or milky ways usurp broad tracks iu the flrmanient, but the
whole canopy, from the zenith to the horizon, blazes with one
common, uniform hght, such as flows from the full round orb of
day. The qualities of his head and heart were in constant
equipoise, so that it is difficult to judge which was the most
vigorous of his virtues — whether his main springs of action
vibrated most from the touch of judgment or benevolence,
patriotism or philanthropy, piety or pity.
On his first appearauce at the bar of Mississippi, where he
immediately came iu contact -with some of the most eminent
legal minds of the country, though scarcely past the threshold
of manhood, he exhibited a depth of learning, a penetration of
judgment, and a knowledge of human affairs, unsurpassed by
the precocious intellect of Lord Chatham. Sedate, dignified
and respectfid in his bearing, he was utterly free from the
frivolities and indiscretions that frequently attend one of his
age and conscious powers. His conduct and conversation were
apparently impressed with the mould of experience, and were
so striking as to require no aid of ostentation to give them
prominence. His perception was quick and penetrating. His language
expressive and chaste ; and he came into court with success and
reputation stamped upon his brow. Certainty followed in the
train of his -virtues, and step by step, in rapid succession and
with the unbroken continuity of time. Judge Yerger climbed
to the proud eminence of his fame.
As a lawyer he had few superiors on this continent. He had
studied deeply every department of jurisprudence, was pro
found in all the branches of the profession, and the great
principles of law had become identified with his own judg
ment. Nature seemed to have bestowed upon him every qualification
in her power for the emiuent sphere in which he moved, and

328 BENCH AND BAR OF MISSISSIPPL
these the culture of severe and systematic training had polished
and blended into abilities of rare brilliancy aud outline.
At the bar his powers of reasoning, of comprehension, of
perception, and of the exercise of sound judgment, were so
equally prominent and poised, that no faculty of his mind
seemed to claim superiority or predominance ; but if there was
any one trait that might be designated especially as the key
to his success as an advocate, it was the capacity for making a
lucid presentation of his case — -for presenting a concise syn
thetical summation of facts, a forcible and con-viucing apphca
tion of law, for disrobing his adversary of all false color and
superficiality, and for whittling the question down to the very
hinge of fact and gist of legal merit. The powers of his intel
lect moved with the order and regularity of a well-adjusted
machine, with all its parts under the perfect control of the
motive power. He subjected every grain of fact, and every
texture of law to the stern crucible of infiexible justice.
His powers of oratory were characterized by no hyperbolical
display, or gewgaws of declamation. His eloquence, which was
always compatible with his theme, aimed at no deception or
hallucination, but his suasion appealed directly to the bench of
judgment and the bar of justice.
As a judge of the High Court of Errors and Appeals, Mr.
Justice Yerger developed only in a more public manner his
great abilities, and the eminent traits of his character. His
learned, copious, and lucid decisions, glare -with immortal splen
dor upon the pages of Mississippi jurisprudence. Whilst he was
the soul of amiability and courtesy, he was self-reliant aud inde
pendent in his views, and positive and determined in his opinions.
In the great case of The State of Mississippi v. Johnson, 25
Mississippi Reports, 625, which involved the liability of the
State for the payment of the bonds of the Union Bank, not
withstanding that the opinion of the court fixing liabiUty upon
the State had been delivered by Mr. Chief Justice Smith, and in
which Judge Yerger fully concurred, yet he saw proper to de
liver his individual opinion, and with the fate of Dentatus
peering in his face, he placed his back against the constitution
and laws of the State, and tm'uing his front to the people, de-

WILLIAM YERGER. 329
fied the penalty of his integrity. This decision, though power
ful, clear and unassailable, so far as concerned the law of the
case, was not accepted by the dominant political party, and was
as fatal to the official preferment of Judge Yerger as was the
defence of Queen Caroline to the professional advancement of
Lord Brougham.
When every effort had been made to control the opinion of
Lord Mansfield, iu the case of Rex v. Wilkes, that great judge
took occasiou to make the following illustrious observations
from the bench :
" I pass over the many anonymous letters I have received.
Those in print are public, and some of them have been brought
judicially before the court. Whoever the writers are, they
take the wrong way. I will do my duty unawed. What am I
to fear ? What mendax infamia from the press which daily
coins false facts a.nd false motives ? The lies of calumny carry
no terror for me. I trust that my temper of mind, and the
color and conduct of my life, have given me a suit of armor
against these arrows. If during this king's reign, I ever sup
ported his government and assisted his measures, I have done it
without auy other reward than the consciousness of doing what
I thought right. If I have ever opposed, I have done it upon
the' points themselves, without mixing in party ov faction, aud
without any coUateral -views. I honor the king and respect the
people ; but many things acquired by the favor . of either, are,
iu my account, objects not worth ambition. I wish populaeity,
but it is that popularity which follows, not that which is run
after. It is that popularity which, sooner or later, never fails to
do justice to the pursuit of noble ends by noble means. I will
not do that which my conscience tells me is wrong, upon this
occasion, to gain the huzzas of thousands, or the daily praise of
all the papers which come from the press ; I will not amoid
doing what I thvnh is right, though it should draw on me the
whole artillery of libels, all that falsehood and malice can in
vent, or the credulity of a deluded populace can swallow. I
can say -with a great magistrate, upon an occasion and under
circumstances uot unlike, ' Ego hoc cmimo semper fui, ut invid
iam virtute partam^ gloriomi, non invidiam, puta/rem.' The

330 BENCH AND BAR OF MISSISSIPPI.
last end that can come to any man never comes too soon, if he
falls in support of the law aud liberty of his country, for liberty
is synonymous to law and government."
The following are extracts from Judge Yerger's opinion,
presenting his reasons for the separate enunciation of his views,
which, like Lord Mansfield, he entertained unshaken by oppo
sition and unswerved by circumstances.
' ' WhUe I concur most fully in the opinion of the court, pro
nounced by the chief justice, I deem it proper to express my
individual opinion upon the questions presented by the record,
and to give some of the reasons which have influenced the for
mation of that opinion.
" The importance of the questions in controversj' will justify,
if they do not require, this course. Every member of the court
has given to this question an attentive and careful examination.
The important and interesting questions arising in it, and which
¦weve presented in a novel and unusual manner, were well calcu
lated to evoke a most patient investigation.
"On the oue hand a private individual presented himself _
before the judicial tribunals of the State, alleging that he had a
just and legal demand against the State, the payment of whicli
had been refused ; that this demand consisted in the bond of
the State, sealed with the great seal, signed by the governor
and treasurer, and executed and delivered to him, pursuant to
an act of the Legislature, by which the faith of the State was
pledged for its payment and redemption.
' ' On the other hand, the State of Mississippi denied the vahdity
of this bond, alleging that it was sealed and delivered by the
goveruor without authority, and that the act of the Legislature,
from which he pretended to derive his power, was unconstitu
tional and void, and that no contract or agreement made under
it created any valid obligation binding upon the State.
" We are not unaware of the unusual interest which these
questions have excited for many years, and that they were at
one time the subject of an animated political controversy.
" But sitting here as judges to administer the law, under the
solemn sanction of our oaths, we have endeavored to discard
from our minds every extraneous and improper influence, and to

WILLIAM YERGER. 331
address ourselves, without bias, to the candid examination of the
legal questions presented by the record. As judges, it is our
duty to declare the law, not to make it. Reasons of State
policy or political expediency should not influence our judg
ment. It is our duty to decide the law of the case as it appears
upon the record, regardless of all consequences. Entertaining
these views, and having formed my opinion in accordance with
them, I am only anxious to explain the grounds on which I
have proceeded, so as to satisfy the mind that the judgment
given in the case is the only one which could have been given
iu accordance with the rules o flaw. . . . In this matter we have
no discretion ; the path of duty is plain and obvious. As the
constitutiou and laws have authorized suits to be instituted
against the State, it is the duty of the court to pronounce judg
ment in them, as in all other cases that may come before it.
" As the plaintiff has appealed to the judicial tribunals of this
State, the matters in controversy must be decided according to
the constitution and laws of Mississippi, and to those rules of
law which regulate and govern alike the contracts of States and
the agreements of private individuals."
Mr. Justice Yerger then proceeds to exhibit in a clear and
unmistakable light the competency of the agency of the gov
ernor aud treasurer, and the liability of the State, alike as indi
viduals, for the acts of its agents done within the scope of
authority :
That the contract on the part of the State, which required
the sanction of two successive Legislatures, was not impaired
by the mere technical and model changes made by the supple
mentary act, but that it was sufficient if the identical section
of the original act creating the liability was re-enacted by the
subsequent Legislature. That the introduction of new and
additional provisions in the supplementary act could not defer
the validity of the original act to the sanction of a third suc
ceeding Legislature.
That the provision of the supplemental act admitting the
State as a stockholder did not destroy the identity or change the
character of the corporation : That corporations are not affected
by a change of the individuals who compose them.

332 BENCH AND BAR OF MISSISSIPPL
But that " State policy aud pohtical expediency," which
Judge Yerger declared to be of no avail upon the bench, con
tinued to thwart by its inaction the execution of the law as ex
pounded by the High Court, untU the "carpet-baggers" in
their Constitution of 1868 relieved the people of the State from
all responsibility, and all unpleasant contemplation of the
question, by forever foreclosing and precluding the liability of
the State for the payment of these bonds.
Judge Yerger possessed a mind of the most fertile resources,
and was never at a loss for apt iUustration ; while he seemed to
spurn the subtle process of abstraction, he penetrated and ex- '
plored every feature of a question with the lantern of Diog
enes. Eschewing the Baconian system of slow and tedious
induction, he preferred the Socratic method of practical investi
gation and rapid conclusion. He followed the train of reason
ing with a glance, and his judgment grasped the truth as if by
intuition. There was no fleld of knowledge closed to his view, and his
genius sought the summit of every social elevation. The great
kindness of his nature was at all times manifested, whether upon
the bench or at the bar, in friendly companionship or in the
domestic circle ; his heart pulsated -with a benevolence that shed
around him a halo of benign and attractive 'influence. His
sympathies were always with the weak, the afflicted, and the
distressed ; and so warm and free was his charity, that they
never failed to obtain succor at his hands. The widow and the
orphan were the objects of his unfailing solicitude, and they
always found in him a champion ready to devote his utmost
energies to their cause.
Every imposition of power, every infringement of right, and
every unjust act, were objects of his indignation, and awakened
his sympathies for the sufferer, and he was ever ready to invent
and advise the proper means of obtaining redress.
In the case of ex parte Adams, 3 Cushman, 883, the
prisoner had been committed for contempt by the judge of the
Circuit Court for refusing to answer questions propounded to
him by the grand jury, and applied to the judges of the High
Court for a writ of habeas corpus. The sympathies of Judge

WILLIAM YERGER. 333
Yerger were evidently awakened in behalf of the prisoner, but
how to effect his enlargement was the question.
The right to punish for contempt was inherent, and pertained
to all courts of justice, independent of any statutory power.
The acts and judgments of thq Circuit Court concerning all
matters within its jurisdiction were binding and conclusive, until
set aside or reversed by some authorized appellate power. The
legality of their judgments could not be questioned. The
power to discharge from commitments for contempt was ex
pressly excluded by the habeas corpus act. What could be
done for the prisoner ? Judge Yerger turned to the record.
The order of committal lacked an expression of conviction. It
was not lawful to imprison a person without conviction and
judgment, both of which must appear upon the record. The
prisoner was discharged.
Mr. Justice Yerger was a man of great forbearance and self-
possession. He was never known to -violate the rules of pro
fessional propriety ; under the severest test of patience, in the
heat of the fiercest forensic contests, he preserved a dignified
composure, and courteous equanimity towards court, counsel, and
witness ; like Lord Chesterfield, he considered politeness as the
lubricator of society — the crowning jewel of personal graces.
Not to roughen, but to smooth the path of others, he recognized
as the great duty of man to man.
The following instance of his self-sacrificing devotion to the
welfare and happiness of others was related by Judge Potter :
" He and other distinguished counsel were, with myself, con-
cemed iu a most important cause. It so happened that papers
pertaining to that cause, and which might possibly become
very important in the future progress of the suit, were a part
in his possession and a part in mine. One night about mid
night, toward the close of his illness, being seized with one of
those paroxysms of pain and nausea incident to his disease, he
requested his son to hasten for his physician ; but at that
moment his thought seems to have turned to that suit, and he
directed his sou to sit down first and write notes to Judge
Johnston and myself, informing us where to find those papers
in his possession, and requesting us to place them all together

834 BENCH AND BAR OF MISSISSIPPL
in a safe place. With the pains of death upon him, he thus
waived the call of his physician and the relief that his skill could
give, that he might provide for the security of another. Those
papers must be cared for before he would think of himself."
The physical powers of Mr. Justice Yerger were never equal
to his moral aud intellectual. They constantly struggled under
the heavy burden of his professional labors until, finally, in the
full bloom of his juanhood, aud in the height of his usefulness
aud fame, his small and feeble body bent beneath the burden
of his intellectual treasures, aud, no longer able to withstand the
demands of his energy and the attrition of his mind, sank ex
hausted into the sleep of death. His name is forever blended
with all that is virtuous as a citizen, eminent as a lawyer, aud
righteous as a judge. He died in the city of Jackson on the
7th day of June, 1872.
The following proceedings were enacted at the bar of the
Supreme Court on the announcement of his death :
' ' On the meeting of the Supreme Court, on Saturday, the
8th day of June, 1872, after the minutes were read and signed,
the Chief Justice announced that, in consequence of the deiath
of William Yerger, and out of respect to his memory, no busi
ness would be taken up on that day, and the court was ordered
to be adjourned until 10 o'clock on Monday following, and on
the adjournment of the court the foUovring proceedings were
adopted by the bar :
" On motion, Chief Justice Peyton was requested to preside
over the meeting, aud the clerk of the Supreme Court was ap
pointed secretary. .
" On motion, the chair appointed a committee to draft resolu
tions expressive of the feelings of the members of the bar in
regard to the death of William Yerger.
" The following gentlemen composed the committee :
Wiley P. Harris, William L. Sharkey, George S. Potter,
Thomas J. Wharton, and Amos R. Johnston.
" On motion, it was
' ' Resolved, That the members of the bar of Jackson, as a
mark of respect to the memory of their deceased brother, Judge
William Yerger, will attend the funeral in a body, aud that the

WILLIAM YERGER. 335
judges and officers of the Supreme Court, aud of the other
courts of the city, be requested to attend also.
" On motion of General Freeman the meeting theu adjourned
until 11 o'clock on Monday. " Jackson, Monday, June 10, 1872.
" Pursuant to adjournment the meeting was called to order
by the Chief- Justice, when W. P. Harris, on the part of the
committee, reported the following preamble and resolutions :
" William Yerger, the great citizen, our neighbor, our
friend, our brother, is dead ; and we, assembled to render cus
tomary honors, lack words to declare his worth and the mag
nitude of our loss. No memorial that we cau frame would
fitly present him, all worthy and admirable, as he deserves to
be remembered. The testimonies of his life, his daily goings
out and in among us, are a brighter record than any we cau
offer. " To declare him pre-eminent and faithful upon the bench,
at the bar, in the halls of Legislature, and in his whole course
of public duty as a citizen, is to utter but part of what we know
is justly due to his memory.
" Devoted to his profession, aud diligent in the use of extraor
dinary abilities. Judge Yerger possessed vast acquirements in the
law, and there arose no question in the profession that seemed be
yond the scope of his powers or range of his studies. His in
tuition was wonderful, aud he seemed to reach, by thought, the
right conclusion, to which others came by laborious study. A
devoted advocate of the just rights of his client. Judge
Yerger was ever the exemplar of perfect courtesy, and al-
¦ though most sensitive and high-spirited, he so possessed the
power of self-control that, iu the course of a long practice, it is
not remembered that he ever violated the courtesies of the pro
fession. He was a man of strong convictions and positive opin
ions, but, nevertheless, he possessed so much and such gentle
ness of grace that, in all his intercourse, he was ever aud pre
eminently the brotherly man, the faithful friend, the composer
of strife, the promoter of good, aud the advocate of peace aud
virtue.

336 BENCH AND BAR OF MISSISSIPPI.
" For many years Judge Yerger enjoyed, perhaps, the largest
and most lucrative practice in the State ; but, notwithstanding
the excessive labors it imposed End the strong temptations of
accumulating gains, he never, so far as known, turned a deaf
ear to the claims of the friendless or the widow or orphan, but,
as we know, freely gave time and labor and talents to secure
or defend their rights. Of him it may be truly said, ' He de
livered the poor that cried, and the fatherless, and him that had
none to help him. '
" The death of such a man, so capable and so worthy, is not
only a family bereavement, but also a public loss, a great loss to
the judiciary and to the State and country ; be it, therefore,
" ResoVoed, That we cherish with abiding affection and rever
ence the memory of our departed brother, William Yerger, and
we tender sincere and affectionate sympathy to his son-owing
family. " ResoVoed^ That we wear the customary badge of mourning
for thirty days.
" Resolved, That the Attomey-General be requested to pre
sent the proceedings of this meeting for record in the Supreme
Court ; that a copy thereof be delivered to the family of the
deceased, aud that copies be published in the newspapers of the
city." On presenting these resolutions. Judge Wiley P. Harris
made the following appropriate and beautiful remarks :
" Me. Chairman : Before asking the adoption of the reso
lutions which have just been read, I will say a few words upon
the deeply interesting but melancholy subject to which they
relate. " The deplorable event, the bare dread of which has hung like
a cloud over this community for the past three or four months,
has at last occurred. In spite of the prayers of the good,
in spite of that mute appeal which the great needs of the
community and the country made iu behalf of one so eminently
wise, good, and useful, we have lost William Yeegee.
" How much this sad utterance, now heard on all sides, means
to the State, ill prepared to lose any of her supports, with laws

WILLIAM YERGER. 337
and institutions recently and radically remodelled, and yet* un
tried ; how much to the community in which he dwelt, and
which looked to him as counsellor and guide ; how much to his
family aud kindred ; how much to the profession to which he
belonged, and to the high' rank and reputatiou of which he so
much contributed — it is difficult to estimate. Certainly we are
more likely to underrate than overrate the magnitude of the
misfortune. A great and beneficent light has been extinguished
in our midst. We shall see its brightness and feel its warmth
no more forever. An estimate of his character, so far as we are
capable of estimating it, -will serve to convey some idea of the
extent of the loss we have sustained.
" It is not for me to attempt to measure the intellectual stature
of WUham Yerger, nor to point out and define those traits of
mind by means of which he built up a splendid and lasting repu
tatiou. I may refer, however, to the manifestations of his great
powers, which were obvious to all.
" Prior to the war his political opinions excluded him from
public pohtical life — that theatre on which the display of great
inteUectual strength attracts the largest share of public atten
tion. He was, however, elected to ¦ a seat on the bench of the
High Court of Errors and Appeals, and he at once made himseU"
famous there. I will only recaU to your mind, Mr. Chairman,
his great judgment in that greatest of cases, in which the issue
was the liabihty of the State to pay the Union Bank bonds. In
the face of a popular feehng violent and proscriptive, and
which had carried men into office, and driven men from office,
he firmly and fearlessly declared that the State was legally, as
well as moraUy, bound to pay these bonds.
' ' He was a member of the Legislature during the war, and after
the war a member of the Convention of 1865, wliich had to deal
with many grave and difficult questions. His profession drew
him into the discussion of the greatest questions which arise iu
the jurisprudence of a country ; and without going into particu
lar instances in which he displayed hjs almost unrivalled abili
ties, I may sum them up by saying that he was always equal to
the occasion, and always rose to the fuU height of every ques
tion, whatever it chanced to be, which was prefeented to him,.

338 BENCH AND BAR OF MISSISSIPPI.
or upon which he was called to speak or act. His perceptions
were singularly quick and clear, and the vigorous activity of
- his mind without any parallel in my observation of inteUectual
men. " The resources of his mind were rich and varied, and were
always under his instant and absolute control. His capacity for
intellectual labor was, it seemed, almost without limit. Sir
Walter Scott defines talent to be a capacity for inteUigent intel
lectual labor ; if so, William Yerger's talents were really tran
scendent. ' ' It was in the legal forum that he displayed to us more fre
quently the wonderful strength and fertility of his mind. His
learning was 'accurate and complete, and he had, moreover, that
which learning may improve but cannot supply. It was said
of Lord Hardwicke that he had an intuitive perception of the
law ; and this rare gift WiUiam Yerger possessed to a degree
that was almost startling. He could, with apparent ease, un
ravel the most entangled controversy, and there was no question
of law so difficult or turbid, by contradictory precedents, that
he could not readily see to the bottom of it. We all had oc
casiou to admire the sure-footed sagacity with which he man
aged a cause in court. He never hesitated, nor stumbled, nor
blundered. i
" He had, in addition to these extraordinary powers, traits
which heightened their effect, and which denote a superior
mind and a superior man ; and these were, a temper under
complete control, and a uniform decorum and moderation of
language ; and he taught us, among many other fine lessons,
that this kind of forbearance was compatible with the highest
attainable success.
" .But, Mr. Chainuan, these imposing and brilliant intellectual
traits, admirable as they are, do not account for that strong hold
he had upon the minds and hearts of men, nor for that marvel
lous personal sway which he acquired over all who knew him.
There is another side of his character about which I can speak
with greater confidence, because I am better able to comprehend
it. He was thoroughly and pre-eininently a good and generous
man. Surely the bright flame which warmed aud illuminated

WILLIAM YERGER. 339
that capacious mind was kindled iu the heart. It is this which
explains why it is that so many persons not connected with him
by the ties of kindred or the engagements of business feel his
death to be to themselves a peculiar personal misfortune. To
this we owed that kindly warmth of manner, the genial smile
aud brightening eye in his cordial greeting of his acquaintance.
His generous heart flowed freely iu friendship, kindness, and
sympathy to everybody.
" Lord Clarendon, in his fine delineation of the character of
John Hampden, notes the singular personal sway which he ac
quired over all who came in contact with him ; and it seems, in
deed, that the king against whom he was fighting felt this sway,
for when Hampden was wounded fighting in the Parliamentary
army, the king sent his own surgeon to attend him. ' Speaking
of the charm of Hampden's character and manners. Clarendon
says : 'He had a fiowing courtesy towards all men.' I could
never contemplate the character of WiUiam Yerger, and cannot
contemplate it now, without recalling this fine portrait ; and I
have never thought that the great fame of Hampden suffered
by the comparison.
" To this kindly and genial spirit we owed the exhibition
of the liberal hospitality which he dispensed. He was truly
' given to hospitality,' and hospitality in him was of that high
quality which exalts it into a noble virtue. Poverty was no
check to this spirit in him, aud it was iu his house that one
learned that hospitality was not made of bread and meat alone.
Indeed, it seemed to me that the most acceptable thing he
offered to his guests was himself. He would set himself to
woi-k with persevering diligence and tact to compel the dullest
man and the dullest company to enjoy themselves, and this
was his constant habit, whether host or guest.
" These qualities, however, though pleasing to contemji^late,
merely contributed to the amenities of life. His rich nature
held treasures far more precious. He was the most useful
person I ever knew. No man, burdened as he was, ever did as
much hard work gratuitously for other people as he ; nay, with
or without the burden, for when he was asked for help, his own
burden seemed to grow as light as a feather. How he contri vud
22

340 BENCH AND BAR OF MISSISSIPPI.
to do so much is to me a real mystery, and, besides, I am con
vinced, and the conviction does not spring merely from per
sonal admiration, that he went about this work with a positive
relish. He was always willing, always ready, and what is more to
the purpose, he always tried, and tried zealously, and rarely failed.
" During the stress of the civil war, and especially during that
dreary period which followed the military occupation and gov
ernment of the State, many people got involved in sore trouble.
He was not exempt himself, and yet he busied himself night
and day with the troubles of his neighbors, as though he had
aio cares of his own. He seldom, if ever, spoke of them.
' ' His firmness and unconquerable spirit, coupled with his high
icharacter and reputation, secured the respect of the military
men in command here, and gave him a certain influence which
lie employed for the noblest purposes. He never exerted it for
.himselt. In those days people flocked about him as though
.there was healing'in his touch.
" The resolutions declare truly that he was the friend of the
friendless, the widow, and the orphan. How many, how very
many of these, felt the protection of his sheltering hand ! It
always seemed to me that he regarded himself as expressly
commissioned to take charge of them. He responded for them
in the courts ; and if William Yerger was found evincing un
common zeal and exhibiting more than his usual anxiety ; if he
was found ransacking the libraries and fortifying himself with
books, you might know from these signs whose case he had in
charge. " It is needless to inquire what he was as the head of a family.
From what we know of him otherwise, we would naturally con
clude that a beautiful harmony reigned in his household, and
this is true. In his professional relations he was not only void
of offence, but made his example a standard of propriety. A
quiet dignity of bearing and decorous language marked his in
tercourse with the bench and bar ; indeed, he seemed to have no
deficiency. ' ' Such was the man we have, lost ; such the loss to which we
must now reconcile ourselves. I have touched his admirable
.character here and there — conveying, I know, but a faint im-

WILLIAM YERGER. 341
pression of its great excellence. The theme is very fruitful,
but I am conscious that there are around me many of his
friends whose feelings prompt them to say something on this
sad occasiou, and I give way to them."
Eloquent and touching tributes were then pronounced by Mr.
Justice Simrall, Judge Handy, General T. J. A^'harton, Judge
Morris, and Judge Potter.
The resolutions were then unanimously adopted, and Chief
Justice Peyton responded as follows :
" The court unites with the bar in honor to the memory of
our departed friend, William Yerger, and receives with pro
found sensibility their resolutions commemorative of his life
and virtues, aud eminence as a jurist. Possessing a vigorous
mind, diligent habits, earnest and honest purposes, and liberal
views, kind and benevolent in his disposition and affections,
and simple and unaffected in his manners, his life was one of
dignity and usefulness. The memory of such a character and
such a life goes far to soften the sorrow we feel for the loss so
ciety and the country have sustained. At the call of Him who
gave it, he yielded up -with Christian resignation a life full of
years and full of honors, aud a bright example to mankind.
" For a limited period he was a distinguished ornament of this
bench, and the integrity, learning, and ability exhibited by him
-n-hile he dignified the ermine of justice, are to be seen in the
impartiality and equity of his judgments. These judgments
remain, and are his best monuments. While the records of this
court endure they will recall the memory of the just and fear
less magistrate who pronounced them, and -will be esteemed as
valuable contributions to the jurisprudence of his country.
" We cherish his memory with affectionate recollections, and
feel that the just tribute of the members of the bar will be
soothing to the hearts of his bereaved family, and will be au
enduring memorial of a character truly exemplary in every de
partment of life, and oue which lawyers aud judges may emulate
with advantage.
" As a testimonial of honor, of affection, and of sorrow, the
court will order that the proceedings of the bar, with this re
sponse, be entered on the minutes."

342 BENCH AND BAR OF MISSISSIPPI.

WILLIAM L. HARRIS.
William Littleton Harris was born in Elbert County, in the
State of Georgia, on the 6th of July, 1807. He was the son
of General Jeptha V. Harris, and his maternal grandfather was
Major Richardson Hunt, both of whom were men of high
character and influential standing. His ancestors moved from
Virginia to Georgia prior to the American Revolution, and left
numerous descendants. His parents reared a family of twelve
children, to the education of which they devoted themselves
with such care, anxiety, and aff'ection as to attract the admiration
of their neighbors and friends, and inspire feelings of deep and
lasting filial veneration. They lived to a very great age, and
saw their children all matured and married, the father having
attained, at the time of his death, the age of seventy five years,
and the mother having reached the longevity of eighty-two.
The early educational advantages of William L. Harris were
good, and after the usual academical preparation he entered the
University of Georgia at Athens, at the age of fifteen, and
graduated in 1825. On finishing his collegiate course he imme
diately applied himself to the study of the law, and in 1827, being
yet under legal age, he was admitted to the bar by special legis
lative enactment, and began the practice of law iu the town of
Washington, iu Wilkes County, which was included iu what
was, at that time, designated as the northem judicial circuit of
Georgia. Among the practitioners at the bar of this circuit at
that period were many gentlemen of eminence, and afterwards
of renown, such as Augustus B. Longstreet, Joseph H. Lump
kin, Garnett Andrews, William C. Dawson, Alexander Pope,
Robert Toombs, Alexander H. Stephens, and many others of dis
tinction ; yet amid this brilliant array of talent Mr. Harris rose
rapidly in his profession, and soon achieved a conspicuous place
in this galaxy of legal luminaries, and from whom he, no doubt,
learned those lessons of professional vigor, devotion, and pro
fundity, which characterized his entire career at the bar.

WILLIAM L. HARRIS. 343
But, notwithstanding his prospects and the position he had
achieved at the bar of his native State, the unlimited resources,
unbounded prospects, and prolific harvest of litigation, which
had already attracted so many eminent lawyers to Mississippi,
now presented their allurements to his ambition, and in 1S.">7
he removed hither and settled in the town of Columbus.
To this new and inviting field, which afforded a scope so com
mensurate with his ambition, he transported a vigorous dili
gence, a stern integrity, an unswerving professional faith, a ge
nius, aud a knowledge of law, which enabled him, almost at a
bound, to take his position in the very front rank of the profes
sion. In 1853 he was elected judge of the Circuit Court of the sixth
judicial district of Mississippi ; and in this position he admin
istered justice with an ability and rectitude that gave the utmost
satisfaction and received universal admiration.
In 1856 he was appointed by the Legislature to co-operate
with Judges William L. Sharkey and Henry T. Ellett of the su
preme bench in revising and codifying the laws of Mississippi,
which was performed iu a most thorough, skilful, and able man
ner, and which was adopted, during the next year, at a special
session of the Legislature, and is known as the Revised Code of
1857. At the expiration of his term, in 1857, Judge Harris was re
elected to the circuit bench, and, in 1858, he was elevated to the
bench of the High Court of Errors and Appeals.
In 1860 President Buchanan tendered to him a seat upon the
bench of the Supreme Court of the United States, to fill the
vacancy occasioned by the death of Mr. Justice Peter V.
Daniel, of Virginia, but this appointment Judge Harris declined
in consequence of the approaching and foreseen disruption of
the Federal Union. He spurned the honors of an office which
might place him in an attitude of official hostility to measures
the adoption of which he foresaw would be the only alternati ve
to the degradation of his people.
In 1865 he was again chosen one of the judges of the High
Court of Errors and Appeals of Mississippi, but upon the over
throw of the Johnson reconstruction in 1867, and the remand-

344 BENCH AND BAR OF MISSISSIPPI.
ment of the State to military control and the mahgnant ven
geance of the Radical party, Judge Harris, together with Judges
Handy and Ellett, the other members of the court, resigned
his seat upon the high bench, and, resuming the practice of his
profession, he removed to Memphis, Tennessee, and there
formed a copartnership in law with Judge Ellett and Colonel
James Phelan, who had late been a Senator from Mississippi iu
the Confederate States Congress. This firm, composed of men
of such distinguished ability and reputation, enjoyed in this
ample field every promise of a brilliant career ; but in the fol
lowing year. Judge Harris was suddenly attacked with a vio
lent pneumonia, and died, after a short illness, on the 27th of
November, 1868, leaving a family of seven children, his wife
having died in the preceding spring.
The life and character of Judge Harris are kindling incen
tives to that honorable ambition which finds its satisfaction only
in the distinguished performance of high public trusts, to that
patriotism which derives more happiness from the faithful dis
charge of public duties than from the attainment of the most
coveted private ends, and to that conscious rectitude which finds
its reward in the commendation and applause of all good men,
and in the smiles of Heaven which mirror themselves upon the
unruffied surface of a clear conscience.
When such men die it behooves us to pause and contemplate
the instructive lessons which their lives have inscribed upon the
great chart of human existence, for the purposes of paying
proper reverence to their memories and of gathering up the
noble inspirations which continue to emanate from the hallowed
tracks of departed worth. To review and record the qualities
of one who has reaped the highest esteem of his fellow-citizens,
is a custom which finds its sanction through aU ages down to
the very depths of antiquity, and to which we owe the great
lessons of virtue, the landmarks of greatness, and the beacons
of fame which have given hght to the generations of earth, and
pointed mankind to a higher and nobler sphere. Hence to cite
examples of the different features of true greatness is by no
means difficult, but to analyze and interpret the varied measures
and varieties of qualities that enter into its composition is a task

WILLIAM L. HARRIS. 345
of different import, and we will find ourselves met by insupera
ble barriers at the very threshold of tire investigation. There
we will find Genius blurring the vision with its dazzling train
and mocking at every effort to discover its source, and by its
side Wisdom with its Argus eyes, whose peer is far beyond the
superficial scope of vulgar gaze.v There Honor's helm flashes
an effulgence which but for its rarity would kindle a faith that
would glorify the world ; and there is Charity, distilling her
gentle drops into the hearts of the unfortunate, and soothing
the festering ulcers of human woes, blessing ahke him that
gives and him that receives. Memory is there, with its tablet
of gilded inscriptions. Perception is there, with the Sphinx
glare of its penetrating glance ; and there is Judgment, with the
staff of reason in one hand and the plumb-line of truth and jus
tice in the other. There Virtue marshals her white-robed train,
and hallowed Piety reigns the sceptred lord of all.
What pen can depict the characters of this gorgeous court ?
What ambassador from the realms of Metaphysics can penetrate
its secret councils and describe its rivalries and its harmonies ?
Surely we must retire from the labyrinthian threshold and await
the denouement of the heralds of action. With this conviction
let us return to the subject of this sketch, and confine ourselves
to the contemplation of features whose sources we may not in
vade. As a lawyer, William L. Harris possessed every quality requi
site to pre-eminence. He was thoroughly familiar with the
fundamental principles of law, and skilled in all the details
of the profession. His quick and penetrating perception and
sound judgment enabled him to seize at once upon tho pivotal
points of every question, and to gather every fact within the
embrace of trlie proper legal principle, while his logical powers
asserted themselves in the lucid statement of his cases, the
clear deduction of his conclusions, and in both the analytical
and synthetical modes of reasoning.
Subsidiary to his acknowledged abilities, he possessed a chiv
alric sense of honor, a stem love of justice, and a fiowing senti
ment of sympathy which caused him to become, as it were,
identified with his clients, and their cause became adopted as

346 BENCH AND BAR OF MISSISSIPPI.
his own ; hence he possessed the unbounded confidence of his
patrons, while his dignified bearing and amiable demeanor
gained the favor of the court, the sympathy and good-will of
the jury, and the respect and admiration of the bar. To say
that such qualifications achieved honor and success would be to
repeat what has already become a maxim in the progress of this
work, and an uncomely repetition of that which the mind of the
reader has already embraced.
On the bench the career of Judge Harris would have adomed
the ermine of any country, and in any age : as conscientious and
upright as Lord Chief Justice Hale, he possessed the penetrat
ing vision and brilliant perception of Lord Mansfield, the
equitable poise of Eldon, and the intuitive judgment of Hard
wicke. His decisions are delivered in a neat, elegant, and
lucid manner. The scope of his judgment is always compre
hensive, his elucidation conspicuous and convincing, wdiile his
verbiage is characterized by a fluent and chastened simplicity.
His style is pure without ostentation, his sentences forcible
without verbosity, his judgments impartial, and fixed immova
bly upon the firm foundations of law. His great familiarity
with the leading decisions both of the American and English
courts afforded him at all times ample precedent and analogy,
Avhile his own comprehensive and acute conceptions of general
principles enabled him, -with or without precedent, to apply the
law with unerring hand to the complete vindication of justice.
But such comments may be useless, if not tedious, to the
professional reader. The decisions of Judge Harris speak for
themselves. They are the best monuments of his genius, the
brightest and most durable um of his greatness ; and to them let
the professional reader address himself for the great lessons which
they teach — lessons inculcating the example of an able lawyer,
a conscientious man, and a learned aud upright judge.
While Mr. Justice Harris devoted his whole life, almost ex
clusively, to the fonim, he was a man of flrm and decide.d
political principles. Making his debut into manhood about the
time of the formation of the old States Rights party in Georgia
during the year 1835, he espoused its doctrines with a devotion
that never swerved throughout the vicissitudes of peace, war.

WILLIAM L. HARRIS. 347
or reconstruction. In defeat as well as in victory he adhered
with equal firmness and unshaken conviction to the political
teachings of his youth.
On the triumph of the Black Republican party and the elec
tion of Abraham Lincoln to the Presidency, he believed that
the only hope for the Southern States was iu a disruption of the«
Union, and he advised secession at all hazards, as the only rem
edy for the overwhelming evils that threatened the country.
On the 30th day of November, 1860, the Legislature of Mis
sissippi, convened under the call of the Governor, passed a series
of resolutions authorizing aud requesting the Governor of the
State to appoint as many commissioners as he might deem
necessary and proper to -visit each of the slaveholding States
and inform them that the Legislature of Mississippi had passed
an act calling a convention of the people for the purpose of con
sidering the existing threatening relations of the Northem and
Southern sections of the Union, which had been greatly aggra
vated by the election of a President on principles of hostility to
the States of the South, and to solicit the co-operation of those
States in the adoption of such measures as might b^ necessary
for their common safety and defence.
In pursuance of these resolutions the Governor appointed
Judge Harris to -visit his native State and present to the Legis
lature of Georgia the resolutions and wishes of the Legislature
of Mississippi. He repaired immediately to Milledgeville,
where he was received with the most distinguished considera
tion, and, on December 15th, he delivered the foUowing ad
dress before the Georgia Legislature :
' ' Mr. President and Gentlemen of the Senate and House of
Representatives of the State of Georgia : I am profoundly sen
sible of the dehcate and important duty imposed upon me by
the courtesy of this public reception.
"Under different circumstances it Would have afforded me
great pleasure, as a native Georgian, reared and educated on
her soU, to express to you fully the views which prevail in my
State in relation to the great measures of deliverance and relief
from the principles and policy of the new administration, which
are there in progress.

348 BENCH AND BAR OF MISSISSIPPI.
" I cannot consent, however, upon the very heel of your
arduous and exciting session, to avail myself of your respectful
courtesy to the State I have the honor to represent, as well as
your personal kindness to her humble representative, to prolong
the discussion of a subject which, however important and ab-
.f-sorbing, has doubtless been already exhausted in your hearing
by some of the first inteUects of your State, if uot of the nation.
" I beg, therefore, to refer you to the action of Mississippi —
already submitted to your Executive — to ask for her the sym
pathy and co-operation she seeks f6r the common good, and
briefly to suggest to you some of the motives which influence her
conduct. " I am instructed, by the resolution from which I derive jaj
mission, to inform the State of Georgia that Mississippi has
passed an act calling a convention of the people ' to consider the
present threatening relations of the Northem and Southern sec
tions of the Confederacy, aggravated by the recent election of a
President upon principles of hostility to the States of the South,
and to express, the earnest hope of Mississippi .that this State
will co-operate with her in the adoption of efficient measures for
their common defence aud safety.'
" It will be remembered that the violation of our constitu
tional rights, which has caused such universal dissatisfaction in
the South, is not of recent date. Ten years since, this Union
was rocked from centre to circumference by the very same out
rages of wdiieh we now complain, only now aggravated by the
recent election. Nothing but her devotion to the Union our
fathers made, induced the South then to yield to a compromise,
in which Mr. Clay rightly said we had yielded everything but
our honor. We had then in Mississippi a warm contest, which
Anally ended in reluctant acquiescence in the compromise meas
ures. The North pledged anew her faith to yield to us our
constitutional rights in relation to slave property. They are
now, and have been ever since that act, denied to us, until her
broken faith and impudent threats had become almost insuffer
able before the late election. There were three candidates pre
sented to the North by Southern men, all of whom represented
the last degree of conservatism and concession which their

•WILLIAM L. HARRIS. 349
respective parties were willing to yield to appease the fanati
cism of the North. Some of them were scarcely deemed sound
in the South, on the slavery question, aud none of them suited
our ultra men. Aud yet the North rejected them all ; and their
united voice, both before and since their overwhelming triumph
ill this election, has been more deflant and more intolerant than
ever before. They have demanded, and now demand, equality
between the white and negro races under our Constitution :
equality in the honors and emoluments of office, equality in the
social circle, equality in the rights of matrimony. The cry has
been, and now is, ' That slavery must cease or American liberty
must perish,' that 'the success of Black Republicanism is the
triumph of anti -slavery,' ' a revolution in the tendencies of Gov
ernment that must be carried out. '
" To-day our Government stands totally revolutionized in its
main features, aud our Constitution broken and overturned.
The new administration, which has effected this revolution,
ouly awaits the 4th of March for the inauguration of the new
government, the new principles, and the new pohcy, upon the
success of which they have proclaimed freedom to the slave,
but eternal degradation for you and for us.
" No revolution was ever more complete, though bloodless,
if you will tamely submit to the destruction of that Constitution
and that Union our fathers made.
" Our fathers made this a Goverilment for the white man, re
jecting the negro as an ignorant, inferior, barbarian race, inca
pable of self-government, and not, therefore, entitled to be
associated -with the white man upon terms of civil, political, or
social equality.
" The new administration comes into power under the solemn
pledge to overturn and strike down this great feature of our
Union, without which it would never have been formed, and
to substitute iu its stead their new theory of the universal
equality of the black aud white races.
" Our fathers secured to us, by our constitutional Union,
now being overturned by this Black Republican rule, protection
to life, liberty, and property, all over the Union, and wherever
its flag was unfurled, whether on land or sea.

350 BENCH AND BAR OF MISSISSIPPI.
" Under this wretched lawless spirit and policy, now usurp
ing the control of that Government, citizens of the South have
been deprived of their property, and for attempting to seek the
redress promised by the compromise laws, have lost their liberty
and their lives. Equality of rights secured to white men, in
equal sovereign States, is among the most prominent features of
the Constitution under which we have so long lived.
" This equality has been denied us in the South for years, in
the common Territories, while the North has virtually distrib
uted them as bounties to abolition fanatics and foreigners, for
their brigand service in aiding in our exclusion.
"Our Constitution, in unmistakable language, guarantees the
return of our fugitive slaves. Congress has recognized her
duty in this respect by enacting proper laws for the enforcement
of this right. And yet those laws have been continually nuUifled,
and the solemn pledge of the compromise of 1850, by which
the North came under renewed obligations to enforce them, has
been faithlessly disregarded, and the Government and its officers
set at deflance. Who now expects these rebels against the laws
passed by their own consent and procurement. — rebels against
justice and common honesty — to become pious patriots by the
acquisition of power ? Who now expects Mr. Lincoln to be
come conservative, when the only secret of his success and the
only foundation of his authority is the will and command of
that robber clan, whose mere instrument he is, who have
achieved this revolution in om- Government by treading under
their unhallowed feet our Constitution and laws, and the Union
of our fathers, and by openly defying high Heaven by wilful
and corrupt perjury ?
"And, above all, who is it in the South,, born or descended
of Revolutionary sires, who so loves such company as that he will
long hesitate before he can obtain the consent of a virtuous and
patriotic heart and conscience to separate from them for
ever ?
" Mississippi is firmly convinced that there is but one alterna
tive :
"This new Union -with lAnaoln Black Republicans and free
negroes, without slavery, or slavery under our old constitutional

WILLIAM L. HARRIS. 351
bond of union, without Lincoln Black Republicans, or free
negroes either, to molest us.
" If we take the former, then submission to negro equality is
our fate. If the latter, then secession is inevitable — each State
for itself and by itself, but with a view to the immediate for
mation of a Southern Confederacy, under our present Constitu
tion, by such of the slaveholding States as shall agree in their
conventions to unite with us.
" Mississippi seeks no delay ; the issue is not new to her peo
ple. They have long and anxiously watched its approach.
They think it too late now to negotiate more compromises -with
bankrupts in political integrity whose recreancy to justice, good
faith, and constitutional obligations, is the most cherished fea
ture of their political organization.
" She has exhausted her rights in sacrificial offerings to save
the Union, and nearlv all is lost but her honor and the courage
to defend it. She has tried conventions until they have become
the ridicule of both our friends and our enemies — mere instru
ments of fraudulent evasion and delay, to wear out the spirit of
our people and encourage the hopes of our common enemy. In
short, she is sick and tired of the North, and pants for some
respite from eternal disturbance and disquiet. She comes now
to you, our glorious old mother — the land of Baldwin, who first
defiantly asserted and preserved your rights as to slavery, in the
Federal Constitution, fn opposition to Messrs. Madison, Mason,
and Randolph, and the whole Union, except the two Carolinas; the
land of Jackson, who immortalized himself by his bold exposure
and successful overthrow of a legislative fraud and usui-pation
upon the rights of the people ; the land of Troup, the sternest
Roman of them all, who, single-handed and alone, without co
operation, without consultation, but with truth and justice and
the courage of freemen at home on his side, defied this National
Government iu its usurpation on the rights of Georgia, aud exe
cuted your laws in spite of the threats of Federal coercion — it
is to you we come, the brightest exemplar among the advocates
aud defenders of States rights aud State remedies, to take coun
sel and solicit sympathy in this hour of our common trial.
' ' I ash you, Shall Mississippi follow in the footsteps of

352 BENCH AND BAR OF MISSISSIPPI.
Georgia, when led by her gallant Troup f Or is it reserved for
this generation to repudiate and expuage the brightest page in the
history of my native State ? Impossible ! God forbid it ! For
bid it, ye people of all Northern and Western Georgia, who to
day owe your existence and unparalleled prosperity to the main
tenance of your rights at the risk of civil war !
" I see around me some gallant spirits who bore their share
in the dangers, and now wear with honor, here to-day, in this
hall, the laurels won on the side of their State, under the banner
inscribed ' Troup and the Treaty,' in that memorable struggle.
Need I appeal to them, in behalf of my adopted State, to know
on what side they will range themselves iu this struggle of right
against usurpation, of brute force against the constitutional
rights of a sister of this confederacy of equal States ? I make
no such appeal ; I know where you stand. To doubt it^ would
be to offer you the grossest insult. In this school of republican
orthodoxy I drew my first breath. It was here I first studied,
then embraced, and next feebly advocated, the principles of State
rights and State remedies, of resistance to tyranny, of the
supremacy and sovereignty of the people of a State, and the
subservieucy of governments to their peace and happiness and
safety. These principles will descend with me to the grave,
where this frail tenement of dust must perish, but they will live
on with time, and only perish when tyranny shall be no more.
" I need not remind your great State that thousands and
thousands of her sons aud daughters, who have sought and
found happy homes and prosperous fortunes in the distant
forests of her old colonial domain, though now adopted children
of Mississippi, still cling with the fond embrace of filial love to
this old mother of States and of statesmen, from whom both they
and their adopted State derive their origin. It will be difficult
for such to conceive that they are not still the objects of your
kind solicitude and maternal sympathy.
"Mississippi indulges the most confident expectation a/iid
belief, founded on sources of information she cannot doubt, as
well as on the existence of causes operating upon them alike as
upon her, that every Gulf State will stand by her side in de
fence of the position she is about to assume ; and she would

WILLIAM L. HARRIS. 353
reproach herself, aud every Georgia son within her limits would
swell with indignation, if she hesitated to believe that Georgia,
too, would blend her fate with her natural friends ; her sons
and daughters . — ¦ her neighboring sisters in the impending
struggle. " Whatever may be the result of your deliberations, I l)eg to
assure her, from my intimate knowledge of the spirit and affec-
ticms of our people, that no enemy to her constitutional rights
may consider his victory -won while a Missist^ippian lives to pro
long the contest. ' Sink or swim, live or die, survive or per
ish,' the part of Mississippi is chosen : she vAIl never submit to
the principles and policy of the Black Republican administra
tion. " She had rather see the last of her race — men, women and
children — immolated in one common funeral pile than see them
subjected to the degradation of civil, political, and social
equality \vitli the negro race."
The Legislature of Georgia appointed a committee to request
of Judge Harris a copy of this address, and ordered it to be
printed, together with all the proceedings attending his recep
tion. It may not be improper in this place to observe that, notwith
standing the patriotic glow and sound orthodoxy which pervade
this speech of Judge Harris, it exhibits, in regard to the real
and paramount issues of the great struggle, a misconception
which characterized the views of most of the distinguished men
of the South. The very feature which he seems to dread and
abhor above all others — the forced equality of the races — was the
only impossiljle phase of the contest, aud one which, so far as
social equality is concerned, resulted in a direction entirely op
posite to his fears. The Southern people seem never to have
fully comprehended the nature of the civil war wliich they
waged for four years with a vigor and determination never be
fore witnessed by this world.
The slavery question was made a hood to blind the eyes of
all true lovers of liberty in both sections of the country. Upon
this ground the Southern people were induced to take issue ;
and here all the elements of the strife were gathered, while iu

354 BENCH AND BAR OF MISSISSIPPI.
the background stood the Republican leaders planning a revolu
tion of the entire system of government. The real issue was
an obliteration of the doctrine of States rights, and a transfer of
all sovereignty, practically, to the General Government. They
well knew that the power on the part of the Federal Govern
ment to make war upon the States was an assumption of all
other powers, and that a paramount allegiance to that govern
ment being once admitted, the revolution would be complete ;
the full sovereignty of the National Government would be
established ; there could be no imperium in imperio, and the
States would virtually become mere police districts, with noth
ing but mere police powers.
But not even these escaped invasion. The States were robbed
of their control of the qualifications of suffrage and the man
agement of elections, and both public and private institutions
were for a time actually forced into subserviency to the views
of the party in possession of the National Government.
With the lights now before us the aspect becomes almost in
conceivable when we look back to the confined views of our most
distinguished men in regard to the issues involved in the war.
If Judge Harris could have then seen what he lived to dis
cover — that the contest on the part of the Federal Government
was really for consolidation and complete sovereignty — his
noble arguments in defence of secession would have assumed a
more comprehensive scope, and his predictions would have been,
if possible, of a more serious nature, so far as they would have
affected a greater number of people. Such an. issue, if foreseen
and presented with the same ability as were the horrors of negro
freedom, would have aligned thousands, who fought on the
other side, in the ranks of the Confederacy, and thousands of
others who remained neutral from a misapprehension of the true
nature of the confiict. This issue was by no means a mere col
lateral and incalculable result, but was, from the first, the logic
of the teachings and the gist of the doctrines of the Radical Re
publican party ; but it was smothered, first by the cry against
slavery, and then, after the heart of the South had become fired
with resistance to the assault upon their institutions, it was
drowned in the cry for the preservation of the Union.

WILLIAM L. HARRIS. 356
To this Union, so long as it moved iu the orbit in which it
was projec^ted, no patriot was more devoted than Judge WiUiam
L. Harris. He gloried in its greatness and power, and iu the
wisdom of its Constitution, which he had thoroughly mastered.
He comprehended fully all its features and understood all their
bearing and import. And had he accepted the position offered
him as one of the judges of the Supreme Court of the United
States, his patriotism, his political integrity, and his abihty as a
constitutional lawyer, added to his other qualifications, would,
doubtlessly, under ordinary circumstances, have rendered him
pre-eminent among the great jurists who have occupied that
bench, and his constitutional interpretations would have had a
conservative weight and a benign influence upon the weKare
of the country.
Judge Harris was a man of amiable disposition. He possessed
a flo-wing warmth of friendship and kindness, an unassumed aud
polished courtesy, and a patent sincerity, that attracted the re
spect and admiration of every circle. He was just aud uniform
in his estimate of -virtue. There were none so high as to escape
the exactions of his measure of propriety, and none too low to
feel the warmth of his sympathies.
His hberality was bounded ouly by his means of exercising it,
and, not-withstanding a lucrative practice and the temptation to
accumulate wealth, the idea of gain was to him a matter of sub
ordinate consideration. This was perhaps due, in a great meas
ure, to his abomination of mere gloss and superficiality. He
was exceedingly matter of fact and unostentatious in his man
ners, and this feature of his character was manifested to a re
markable degi-ee at the very close of his hfe. A few moments
before he expired he tumed to Dr. Mann, who was present to
whisper in his ear the last consolations of religion, and said,
" Perform foi^ me the last funeral rites ; but I beg that whatever
you may have to say, let it be plain and simple. ' '

23

356 BENCH AND BAR OF MISSISSIPPI.

EPHRAIM S. FISHER.
Ephraim S. Fisher was born near DanviUe, Kentucky, on
the 15th of November, 1815, and was educated in the college
at that place, in which his proficiency was marked by rapid
progress. He early manifested a thirst for knowledge and an
aptitude in its acquisition which gave unmistakable assurances
of his destiny. So moral and assiduous was his deportment and
so scholarly his attainments, that while yet a student he was
employed as an assistant tutor. On retiring from college he
engaged in teaching a country school, and, having determined
to prepare himself for the bar, pursued the study of law during
the intermissions of. his preceptorial duties.
In 1833, impelled by au ambition alert for more flattering
prospects, he emigrated to Mississippi, and resided for some
years in Vicksburg, where he became connected with the clerk's
office, and at the same time pursued his legal studies under the
, instruction of Joseph Holt. In 1838 he obtained his license
from the High Court of Errors and Appeals, and imme
diately entered upon his brilliant professional career at the
bar. He practised, however, only about oue year in Vicks
burg, and in 1839 removed to North Mississippi and located
at Coffee-ville. Here he entered at once upon a large and
remunerative practice, which was interrupted only by the
popular demand for his pohtical services. He was elected
to the Legislature, but, having served one term, declined the
re-election offered him, and devoted himself exclusively to his
profession. About this . time he married Miss Martha A.
Towns, an estimable lady, the accomphshed daughter of Colo
nel Armistead Towns, a wealthy and genial planter of Yalo
busha County. They reared a large and interesting family, of
whom five daughters and two sons, and their mother, are now
living. The professional success and popularity of Mr. Fisher
continued to increase until he occupied an emiuent position at

EPHRAIM S. FISHER. 357
the bar, and in 1851 was elected to the bench of the High
Court of Errors aud Appeals, which position he held until a
short time prior to the civil war, when he resigned and returned
to the bar. Judge Fisher was opposed to the policy of seces
sion. He had always been a Clay Whig in politics, and depre
cated the idea of a dissolution of the Union. He seemed to
have a premonition of the consequences, and a prescient esti
mate of the terrible results that would attend its failure ; but
when he saw the irresistible tide sweeping over the country, he
accepted the situation and threw himself into the current. He
voted for Mr. Davis to be President, aud during the war ac
cepted a colonelcy iu the Home Guards, and took au active
part in enhsting the old men for the purpose of encouraging
the people.
In 1865 he was nominated for Governor of Mississippi by
the Constitutional Convention. He was at that time attending
to some professional business in Washington, and returned to
Mississippi only a few days before the election. This circum
stance and'the indifference he manifested in regard to the office
were fatal to his chances of obtaining it. He, no doubt, saw,
while in Washington, the humiliating attitude in which the
party controlling the Federal Government was preparing to
place the sovereignty of Mississippi, and was reluctant to ac
cept a position which he foresaw would be fraught with so
much responsibihty and vexation.
After the war Judge Fisher resumed the practice of his pro
fession, but in 1869 was appointed by Governor Alcorn to
the bench of the Circuit Court. In 1876 he removed to Texas
and located in Georgetown, where he continued the practice of
law in copartnership with one of his sons, but died suddenly a
short time afterwards. Mr. Wirt says of the distinguished
Robert Goodloe Harper that, while apparently in good health,
standing before the fire, and reading a newspaper, " He
dropped down dead ;' ' and the death of Judge Fisher, which
occurred on the night of the 12th of October, 1876, took place
under somewhat similar circumstances. He had just partaken
of a hearty supper with his accustomed prandial joviality, and
was sitting by the fire discussing in a gleeful manner -with his

358 BENCH AND BAR OF MISSISSIPPI.
son the logical triumph of the open letter of Hon. Jeremiah
Black to Mr. Garfield, which had just appeared, and then turn
ing to his son, who had but a moment returned from an attend
ance on court, requested him to go iu to his supper aud re
turn quickly ; that he had some important business to transact
with him, alluding to a case in which they were employed.
His son finished his supper, and caUing to his father, who had
walked out on the portico, announced himself ready. The
Judge re-entered the room, and suddenly placed his hand upon
his forehead. His son inquired the cause of his agitation. He
replied that he felt a severe pain over the eye, and laid down
on the bed, but became immediately unconscious, aud died
within an hour.
Judge Fisher was thoroughly famUiar with legal science.
His mind eagerly grasped the great principles of his profession,
and he delighted in unfolding their intricacies and applying
them untrammelled by technicalities to the promotion of the
ends of justice. He considered that fundamental principles
were the best criterion and measure of justice, and he found
in them an embrace for every legal right which fact or circum
stance could engender ; hence he made them the standard of
his policy at the bar and of his opinions on the bench. He
was quick and adroit in the detection and disposal of technical
ruses and logical subtleties, and in grasping the true, points in
volved iu obscure and difficult questions. He was searching
and accurate in his discrimination of applicable law, and vig
orous aud clear in advocating his convictions and setting forth
his conclusions. His decisions are characterized by a depth
of learning and a glow of conscience, and while they display no
rhetorical efforts, they are logical in method, chaste in style,
and lucid in argument.
The career of Judge Fisher, both at the bar and on the bench,
presents a uniform example of lofty purpose, conscientious
deahng, and punctihous devotion to duty. Nothing could
swerve him from the solida mens of conscious integrity, and
while he may not have had any one professional feature of
transcendent brilliancy, he possessed that admirable poise of
qu9,lities and exact adjustment of quahfications which rendered

EPHRAIM GEOFFREY PEYTON. 359
his character conspicuous and attractive from every point of
observation. He was noted for the warmth of his kindness
and the flowing generosity of his disposition, and while his
learning, urbanity, aud candor received the tribute of esteem
from the members of the bar and his associates on the bench,
his sincerity and honesty gained for him the respect of all
parties and of all classes of people.

EPHRAIM GEOFFREY PEYTON.
This upright and eminent judge was born near Elizabethtown,
in the State of Kentucky, on the 29th of October, 1802. To
this place his ancestors had emigrated from Virginia, where they
could trace their origin back to the earliest settlement of the
Old Dominion, and indeed far away in the annals of English
history. At an early age young Peyton was sent to the college
at GaUatin, and was there joined by his cousin, the distinguished
Colonel Baihe Peyton, who was a youth of about the same age.
At the age of seventeen young Peyton left college, aud in
company with an older brother emigrated to Mississippi in
search of fortune aud a home. His brother was ambitious of
achieving distinction as a lawyer, but on reaching Natchez they
foimd their means so nearly exhausted that they were compelled
to seek a Uvelihood by different m6des. Ephraim became a
printer's boy, iu which capacity he served until he had earned
means sufficient to renew his search for more congenial and
favorable prospects. This he soon partially achieved, in obtain
ing a small school in the forests of Wilkinson County, near
Woodville. Here he maintained himseK and at the same time
studied law imtil, having acquired a sufficient knowledge of its
principles, he proceeded, in 1824-5, to Natchez, where the Su
preme Court of the State was then sitting, aud after the most
rigid examination of those times was admitted to the bar as one
of three among twelve applicants. Having obtained his hcense

360 BENCH AND BAR OF MISSISSIPPI.
he filled his saddle-bags with law-books, and going forth, pene
trated into the -wilds of the interior in search of a suitable loca
tion. In this phght he arrived at Gallatin, the seat of justice
of Copiah County, where the court was held in a log-cabin.
Here he began his career as a lawyer, and soon afterwards, by
means of his professional income, established a mercantile
house at Grand Gulf on the Mississippi ; and while engaged in
this dual vocation he married Miss Artemisia Patton, the daugh
ter of a wealthy aud influential planter of Claiborne County.
He now settled permanently at Gallatin, and there were all his
children born, fourteen iu number, but nine of whom reached
the age of their majority.
Mr. Peyton had also, prior to his marriage, embraced the error
common to most young lawyers of ability aud promise, and
allowed himself to be diverted by the allurements of pohtics.
" As I now recollect," says the Hon. Albert G. Brown, " I
flrst saw Mr. Peyton on the 4th of July, 1826, more than fifty
years ago. He was then a young and very handsome man.
The occasion was the celebration of the national anniversary.
The place was a grove, near the centre of where the old town of
Gallatin once stood. The guests of note were the then candi
dates for Governor and Lieutenant-Governor. To my boyish
mind he seemed to be a splendid specimen of humanity, and
when in riper years I came to know him better, 1 found no
occasion to change that opinion.
' ' Mr. Peyton was the orator of the day. All that I recollect
of it is that his speech was highly applauded. The candidates
and the people gathered around him, and seemed by their con
gratulations to indicate that he had made a gi'eat speech. In
the evening he was hoisted by an enthusiastic multitude on a
table, and announced himself as a candidate for the Legislature.
When the votes were counted at the election, it was first sup
posed that he had been chosen, and his friohds were wild with
enthusiasm. But on a closer count it was found that he had
been beaten by a tally of five votes. The next year he was a
candidate again, and was chosen -without serious opposition.
He served a single term in the Legislature, and after that per
sistently refused to compete for any political offlce."

EPHRAIM GEOFFREY PEYTON. 361
In 1839, however, Mr. Peyton was elected District-Attorney
for what was then the fourth judicial district, and was re
elected several times to the same position, until, worried with
the duties of the office, and desiring to return to general prac
tice, he resigned in the midst of a term, very much to the regret
of the people, who fully appreciated his efforts towards maintain
ing the dignity and efficiency of the laws, in the preservation of
order and the prevention of crime. The election of Mr. Pey
ton from this district, which was intensely Democratic, was a
noble tribute to his ability as a lawyer and his integrity as a
man, paid him regardless of his political principles, which were
those of the Whig party, and of which he was a warm and un
swerving advocate.
He was bitterly opposed to the policy of secession, and his
lifelong antipathy to the measures of Democracy arrayed him
after the war in the ranks of the Republican party, in which his
great abUities brought him at once, to the front rank, and in
1868 he was appointed by Governor Alcorn a judge of the
Supreme Court of Mississippi. In 1870 he was chosen Chief
Justice of the State, which position he held until the expulsion
of his party from power by the election of 1875.
Chief Justice Peyton was a profound and accomplished law
yer. He had, from his first adoption of the profession, studied
law in the most scientific and scholarly manner, and his success
at the bar was the just fruition of eminent ability and stanch
integrity. So assiduous was his apphcation that it is said by
Hon. A. G. Brown, who read law under him and was well
acquainted with his habits aud characteristics, that for fifty
years he studied law each day as if he was preparing to be ex
amined for the bar on the next.
During all these years of devoted labor, throughout the ex
tended scope of his professional sphere, amid the multiplied
concerns of a busy life and the varying fortunes of his party
and people, he preserved a spotless integrity and stainless
honor. His political opinions were grounded in the depths of con-vic
tion, and his policy was cast in the mould of long-cherished prin
ciples ; and however antagonistic they may have been to the in-

362 BENCH AND BAR OF MISSISSIPPI.
terest of his people, not a breath of suspicion ever suUied the
sincerity and honesty of his motives.
His mind was vigorous aud active, and, in addition to its large
stores of legal learning, possessed resources gathered from every
branch of science. While he delighted to delve in the rugged field
of his profession, his sentimental nature and refined taste gath
ered the gems of romance and the flowers of aesthetics ; yet his
imagination never led him to neglect the realities of life for the "
mere visions of fancy. His attention was attracted but not be
guiled by that literary curiosity which often allures a man of
genius from his chosen pursuit and engages his powers in the
wasting diversions of inutihty. Capable of great application,
and fuU of the ardor of a versatile geuius, he devoted himself
with severe restraint and indefatigable zeal to the attainment of
all useful and reflning knowledge. He spent a large portion of
his earnings for books, and at the time of his death his law and
miscellaneous library was valued at many thousand dollars, and
was said to have been the most comprehensive and best selected
private library iu the State. This advantage, iu view of his as-
sidious habits of study and investigation, accounts for the super
abundant resources of precedent and the ready familiarity with
legal history, which he exhibited in his contests at the bar.
But it was as a judge of the Supreme Court that he won his
brightest laurels. It was here that his fearlessness of character,
his uncompromising regard for truth and justice, and his' exten
sive knowledge of law, were most strikingly exemplifled. He
blended, in an admirable manner, the stem features of the judge
Avith the sympathetic attributes of the philanthropist. The
warp of his j ustice was woof ed with mercy, and the rigorous re
quirements of law were tempered with the gentle mandates of
equity. His decisions will remain a more noble and enduring
monument of his ability and integrity than any that could be
outlined by the pen of history or constructed by the skill of art.
He occupied this position during a period when many novel
questions arose pertaining to the attitude of the State towards
the General Government, which the leaders of his party claimed
to have been radically changed by virtue of secession and the
result of the war. While in this respect his opinions may

EPHRAIM GEOFFREY PEYTON. 363
not have met the approbation of those who took a purely his
torical -view of the fabric of our Government, yet his judicial
purity, his unblemished personal character, his great learning,
and unKorm prudence aud regularity of conduct, gained the gen
eral confldence of his fellow-citizens at a time when the vicious
attitude of his party in Mississippi kindled the fires of partisan
animosity throughout the' State.
His integrity was sustained by au unfailing physical as well
as moral courage. Whatever his conscience dictated or his
judgment approved he dared to maintain, and was fierce in his
resentment of the least assault upon his honor or invasion of his
dignity. While he was Chief Justice, he was approached on
one occasion by the notorious Adelbert Ames, then Governor of
Mississippi, who visited him privately for the purpose of induc
ing him to exercise au influence over his son, who was one of
the chancellors of the State, in his decision of a case in which
the Governor felt himseK interested. The Chief Justice spumed
the corrupt overture with the most violent indignation, and
ever afterwards hated both Ames and his administration.
After his retirement from the supreme bench, in the faU of
1875, he sought refuge from the rugged field of long labors and
the asperities of his public hfe iu a home sweetened -with re
pose, but hghted only by the smiles of fihal affection, his -wife
ha-ving died some years previous. Here he gave his time to
parental devotion and to the examination of revealed truths, to
which he gave his hearty assent. But old age and decrepitude
had now laid their inexorable grasp upon his frame, aud, grad-
uaUy bending beneath their weight, he died in Jackson, on the
5th of September, 1876.
While his latter days were embittered by the estrangement of
his old friends and the assaults of political enemies, yet no sooner
is he laid away in the grave than all political animosity is sunk
beneath the wellings of veneration, and reflecting now only upon
his great abihty as a judge and his merits as a man,
" His friends, estranged but yesterday, in sorrowing awe return
To gather up his greatness into history's golden urn."
At a meeting of the members of the bar of Copiah County, at
Hazlehurst, convened to pay a tribute to his memory, the com-

364 BENCH AND BAR OF MISSISSIPPI.
mittee appointed to draft an expression of their feelings, which
was composed of his old associates and neighbors, in the pream
ble to their resolutions said :
" In his family he was remarkable for his kindness, indul
gence, and generosity, and was the pattern of propriety. His de
portment in society, at the bar and on the bench, was marked
at aU times with that graceful courtesy that distinguishes the
gentleman of culture and refinement. He was a generous
friend to the young practitioner, and extended to him that con
sideration which encouraged to studious application to the
learned profession in which he had embarked, and to which the
accomplished judge had devoted himseK, through so many
years of toil, with that distinguished success which has enrolled
his name in the rank of the most learned jurists of his age ; and
we may add, that the firmness, decision, and stern integrity of
the lamented late Chief Justice, who disrobed himself of the er
mine as he had put it on, pure anduudefiled, are not less worthy
of adnjiration and emulation than his profound knowledge of
the law."
His moral heroism displayed itseK in every sphere of his hfe,
and seemed always equal to any emergency that might drop
. from the hand of fate. In the great crash attending the fail
ure of the Brandon Bank he lost almost his entire fortune, con
sisting, it is said, of near a hundred thousand doUars, aud was
left laden with heavy and pressing debts, from which his friends
advised him to seek refuge in bankruptcy ; but he repelled the
idea, and resolved to pay his entire indebtedness, both princi
pal and interest. This his industry aud vigor in the manage
ment of his affairs, seconded by his clear-minded and devoted
wife, enabled him finally to effect — a circumstance to which he
often referred with pleasure and pride iu the latter days of his
life. This heroism of his character was strikingly exemplified on
his bed of death, when his accomplished youngest daughter,
who had been accustomed to reading to him, repeated those
beautiful words from Addison's Cato :
" 'Tis not iu mortals to command Success ;
But we'll do more, Semprouius : we'll deserve it."^

. EPHRAIM GEOFFREY PEYTON. 365
"The tears," says she, "gathered and fell with the emotions
that swayed through his being." And thus his last words
and last thoughts were lost iu the grand aud the unutterable.
The venerable and distinguished Colonel Baihe Peyton says :
' ' The last time I saw my cousin Ephraim was when we were
together -within the college walls. He was studious, talented,
and advanced in learning beyond those of his years ; full of
order and system in whatever he did ; aud, as 1 recollect, his
handwriting was like copperplate. But above all was he noted
for his brave, candid, and honorable nature, as being in him
self the mirror of truth ; courteous to all, generous, chivalrous,
pecuharly sensitive and high-wrought at a point of honor, yet
in the cahns of his strong nature, none were more tenderly con
siderate and sympathetic."
These traits, which so remarkably distinguished his youth,
relaxed nothing of their grasp upon his nature as he advanced
in years. If they were roughened and rendered more rugged
by the rude clashings and asperities through which he wrought
his after hfe and his eminence, they were also chastened by the
growth of a well-balanced mutual influence and by the reins of
a riper judgment. It was the same character acted upon by
the sweets aud acids of a busy life and tempered in the furnace
of experience, the same blent bulk of qualities expanded and
rounded by the breath aud spirit of development. He united,
to a wonderful extent, those extremes of humanity, a rigid firm
ness and a deep sympathy, yet where they met together there
was no discoverable point of weakness. His character was a
clear, well-defined arching over and blending of virtues that
constitute the philanthropist aud the stern judge ; aud he went
down to his grave not only full of years but full of honors.

366 BENCH AND BAR OF MISSISSIPPI.

COLLIN S. TARPLEY.
Collin S. Tarpley was born in the city of Petersburg, State
of Virginia, in the year 1802. His father, having failed in busi
ness, determined to seek a reparation of his fortunes in the
West, and before CoUin had reached his tenth year the famUy
removed to Nashville, Tennessee, where its circumstances were
such that his mother, who was a lady of education, was com
pelled to aid in its support by teaching school. By this means
she was enabled to send her son, who had been prepared chiefly
under her tuition, to Cumberland University. But on the re
moval of the family soon afterwards to Giles County, the pov
erty of his parents was such as to preclude him from auy further
prosecution of his studies than that which he could accomplish
at night, and during such recreations as the labors of the field
would permit. During the winter of 1819, however, he was
again enabled to attend school by walking a distance of five
miles, carrying his blankets and provisions with him on each
Monday moming, and remaining in the vicinity of the school
during the week, studying at night by the light of torches, and
sleeping upon the hard floor ; yet under these severe circumstan
ces his industry aud assiduity enabled him to maintain a position
at the head of his classes and win the first honors of the
school. On reaching the age of manhood, he taught school for a year
or two, as a financial necessity, and then entered the law office
of Governor A. V. Brown and James K. Polk, -who were at
that time partners. These gentlemen afforded him great aid, both
in his studies and in pecuniary matters, which enabled him to
estabUsh himseK in practice. He located his office iu the town
of Pulaski, where he resided until about the year 1831, and then
removed to the town of Florence, in Alabama. Here he became
associated with the Hon. John McKinley, afterwards one of the
judges of the Supreme Court of the United States. His practice

COLLIN S. TARPLEY. 367
was large, and he enjoyed every prospect of eminent success ;
but Mississippi was extending her inviting arms and presenting
unusual fields for lucrative practice, and in 1836 Mr. Tarpley
removed to this State and settled in Hinds County, where he
formed a copartnership with Judge Taylor. Here he entered at
once upon a large practice in the High Court of Errors and Ap
peals, in the Superior Court of Chancery, and in the Federal
courts. It is said that iu the spring of 1838 his firm instituted
near a thousand suits, one half of which were brought in the
Federal courts, and consequently involved an amount exceeding
$500 each.
On the resignation of Chief Justice Sharkey, iu 1851, Mr.
Tarpley was appointed by Governor Whitfield to fiU the va
cancy on the bench of the High Court, which position he ac
cepted ; but in consequence of the right of the Governor to
make the appointment being questioned, he resigned soon after
wards and resumed his practice at the bar.
As a lawyer. Judge Tarpley was eminent both for his pro
found learning and great success. His mind was vigorous and
grasping ; was searching, retentive, and logical, and his energy
was active and indomitable. His oratory was generally plain
and didactic, but forcible and impressive, and his arguments
were weighty with learning and practical thought.
He was imbued with a deep sentiment of philanthropy and
public-spiritedness, and his enterprise extended to every impor
tant interest and public concern. He delighted iu projects for
the advancement of the public weal and the elevation of society,
and took an active interest in the progress of agriculture and in
railroads. In his speech before the Shelby County, Tennessee,
Agricultural Association, in 1859, he uttered a glovsdng pane
gyric upon the elevating character of agricultural pursuits, and
made a strenuous appeal to Tennesseeans for the conversion of
the Hermitage, the home of Andrew Jackson, then the prop
erty of the State, into an agricultural college. " Let the Her
mitage, then," said he, " be turned into a great agricultural col
lege, organized and sustained as a State institution, where the
youth of Tennessee may not only learn to admire the mihtary
glory, but imitate the no less useful domestic virtues of the sage

368 BENCH AND BAR OF MISSISSIPPI.
whose spirit presides over and hallows its sacred precincts ;
where th'ey may learn the most ancient and least understood of
all the arts — that of tilling the soil upon scientific principles."
Judge Tarpley was the originator of the scheme for the New
Orleans and Jackson Railroad, drafted and procured its charters,
devoted his time aud talents towards the organization of the com
pany, and was at the time of his death one of its board of direct
ors. He lived to see the project which he was the first to con
template, and which was scouted as the dream of a visionary,
grow into a great thoroughfare, aud extend from New Orleans to
the Ohio.
In politics Judge Tarpley was an ardent Democrat. He was
a member of the Baltimore Convention of 1852, and was en
thusiastic in support of the principles of his party. While he
was devoted to the Union as it was made by our forefathers, he
was far from counselling submission to wrong in order to pre
serve it. "Better," said he, "to shiver the Union into a
thousand fragments, and trust to Providence, and the inteUi-
gence and patriotism of the people for the formation of a better
one, than to become the slaves of the stronger section, and to feel
ourselves to be inferiors when we have heretofore stood as
equals. I counsel no such craven spirit of submission as this."
But, happily. Judge Tarpley did not live to see the ruin which
was then pending over his country. He died in the spring of
1860, ere the dismal clouds had heaved in -view. Aud if it be,
as Lord Mansfield says, "that death never comes too soon to
him who falls in defence of the liberties of his country," surely
it comes not too soon to the patriot when it closes his eyes to the
vision of their overthrow.
Judge Tarpley possessed a keen taste for literature. Some of
his contributions to periodicals upon the subjects of agriculture
and railroads were republished in pamphlet form and largely
circulated; aud in 1851 he wrote and pubhshed in pamphlet
the life of Colonel Jefferson Davis, whom he at that time
strenuously advocated for Governor of Mississippi.
He took a deep and active interest in the affairs of the Church,
was a wariii Methodist, aud steadfast in his faith. His Christian
and moral -virtues were in fuU countei'poise with his inteUectual

COLLIN S. TARPLEY. 369
traits, and while the latter gave him eminence as a lawyer, the
former shaped the character of the man. The following resolu
tions were adopted by the bar of the High Court on the occasion
of his death :
" The members of the bar of the High Court of Errors and
Appeals have received with profound regret the sad intelligence
that another of their number has been taken away.
' ' Before reaching the period fixed by the Psalmist as the limits
of human life, Collin S. Tarpley was cut down, in the full
strength of his intellect and the vigor of mature manhood. For
nearly a quarter of a century he was a member of this bar, en
joying the respect of all for the high order of his talents, his
varied legal attainments, and his kindly courtesy towards his
associates. "Beginning life without the adventitious aids of fortune or
family influence, Collin S. Tarpley, by his inteUectual acquire
ments, persevering energy, and courteous manners, attained a
prominent position in Mississippi as a lawyer, a politician, and a
citizen ; and now that the grave has closed over him, his associ
ates at the bar desire to pay the last tribute of respect to the
memory of a deceased brother, who, during his whole career,
bore himself towards them -with the kindly courtesy of a Chris
tian gentleman ; and, to that end, they
" Resolved, That in the decease of CoUin S. Tarpley the State
of Mississippi has lost one of her worthiest and most valuable
citizens, and this bar one of its most eminent aud able members.
" Resolved further, That the members of the High Court of
Errors and Appeals be requested to accompany the members of
the bar to the funeral of their deceased brother as a mark of
respect to his memory.
' ' Further resolved. That they sympathize with the family of
the deceased in their great affliction, and tender to them heartfelt
condolence of friends who know and feel their loss.
' ' Further resolved, That these proceedings be presented to
the High Court of Errors and Appeals, in open court, with a re
quest that they be spread upon the minutes, and that they be
published in the city papers, and a copy be furnished the family
of the deceased. "

CHAPTER XL

THE BAR—EMINENT LAWYERS— 1832-1880.
AMOS R. JOHNSTON  JAMES T. HARRISON  JOHN B. SALE  WILLIAM F.
DOWD.

AMOS R. JOHNSTON.
One of the noblest commentaries upon American institutions
is the facility which they afford to genius and rectitude for
rending the clouds of obscurity, for bursting from the most
adamantine gyves of condition into the glare of honor and the
full round orb of fame. Fate has here no iron bed upon which
its victims, hke those of Procrustes, are bound and fitted by the
fiat of unalterable decree. Here genius, once fledged in the nest
of morality, leaps forth like a young eagle from its eyrie, and
spreading the wings of resolution, soars away to the heights of
its ambition and capability. Here honor demands no glittering
armorial, wealth no splendid heirlooms of inheritance, and emi
nence no pride of pomp or lictorial badge. Here fame requires
no arbitrary circumstances, depends upon no golden opportuni
ties, and exacts no impersonal qualifications ; but only that he
who would reach its realms shall be guided by the beacons
which it has established along the sacra via of its glory.
Many of our most distinguished citizens began life under the
most unfavorable circumstances, and it is with the superlative
pride of patriotism that we point to our Franklins, our Clays,
and our Stephenses as the peculiar and legitimate fruit of Our
state of society, which none but the tree of liberty could have
blossomed aud matured in spite of the blasts that beat upon
the opening buds, and of whose fame the compass of space,
24

372 BENCH AND BAR OF MISSISSIPPI.
like the terminal god of the Romans, has no arms~ to mark the
bounding tJiule.
There were also' many eminent gentlemen of the Mississippi
bar who, as we have seen, could trace their beginning to a
period when they stepped upon the stage of life the appren
ticed architects of their own fortune, and with no tool but their
talents and no whet-rock but their integrity, constructed the
ladder of their own eminence. Among these was the subject of
this sketch.
Amos R. Johnston was born in the State of Tennessee. His
scholastic advantages were scanty, and his early education was
obtained principally in the office of a country newspaper ; but
so vivid was his aptitude, and so strenuous were his diligence
and application, that he was soon enabled to ascend the tripod ;
and having established a paper in a small village in Henry
County, iu connection with the afterwards famous General Zol-
licoffer as a partner, he became at an early age a political writer
of repute in the Westem District.
About the year 1830, Mr. Johnston emigrated to Mississippi
and took up his residence iu the town of Clinton, where he
resumed his editorial pursuit, and at once achieved a prominent
position. Clinton was at that time the centre of wealth and
infiuence, and from this point he effectively promulgated the
staid and conservative doctrines which characterized through
life his public conduct and pohtical creed. Though origiually
a friend and supporter of General Jackson, he soon abandoned the
Democratic party and became an energetic, determined, and
uncompromising leader of the old Whig party.
In 1836 he represented Hinds County in the Legislature, in
which he coUeagued with Messrs. Prentiss, Guion, Tompkins,
and other leaders of that party, and was one of the most effi
cient and influential advocates of its measures.
He served but one term in the Legislature, and about this
time removed to Jackson, where he continued his editorial
labors until the year 1839, when he was elected clerk of the
Circuit Court of Hinds County, and from that time his connec
tion with the press ceased. He then established his residence
at Raymond, the seat of justice of the county, where he resided

AMOS R. JOHNSTON. 373
until the year 1865, when he again removed to Jackson, and
there abided until the time of his death. Mr. Johnston served
two terms as clerk of the Circuit Court, and was in 1845 elected
Probate Judge of Hinds County, and held that office for three
terms. It was during the period of his clerkship that he turned
his attention to the study of law, aud the legal proficiency
which his genius and assiduity acquired during that time, bur
dened as it was with his official duties, was eminently indicated
by the efficiency and popularity of his career as Probate Judge
of the county, in which office his conscientious integrity and
scrupulous exactness in the administration of matters pertaining
to that com"t gave him a reputatiou for uprightness which was
enlarged in every sphere of his life, and which grew with his
advancing years.
In 1851 Judge Johnston was elected, in the heated canvass of
that period, a member of the convention convened to determine
the course of Mississippi iu regard to the Compromise measures
of 1850, and in that body strenuously advocated acquiescence
aud the preservation of the Union, which he deemed paramount
to every other consideration. He was opposed to the doctrine
of secession, and seemed with prophetic eye to foresee in that
movement a terrible civil war, the final overthrow of the South,
and the train of woes that would inevitably follow ; and through
out the fierce preparation and fiery ordeal his voice, if not
heeded, was respected as that of one whose love for his State
and section, and whose fidehty to what he conceived to be the
true interest of his people, were wholly beyond the reach of
doubt and above all question.
Judge Johnston was too ardently devoted to his profession to
have much relish for the scramble for office aud the fickle
honors of political preferment. At one time he was solicited
by his party to become a candidate for Cougress, and at another
he was its choice for Governor of the State, but in each instance
he declined the nomination and sought in his law office the ex
ercise aud development' of those eminent traits of his character
which recoiled from' the cunning schemes and wily shifts of
politics. Tacitus says of Galba, " He seemed too great for a
private man, while he was one," and it maybe said, of Mr.

374 BENCH AND BAR OF MISSISSIPPL
J ohnston that as a private man he seemed too good for a public
one. Yet he was always ready to serve his people on any occa
siou of great moment, and his consistency and fidelity never
swerved or varied throughout the ever-changing panorama of
events which spread themselves upon the two last decades of his
life. His well-kno-wn sentiments in regard to the Union caused
him to be defeated for the first and only time, in his candidacy for
the Convention of 1861, which adopted the ordinance of seces
sion ; but he was summoned to that of 1865, which enacted its
repeal. After this Judge Johnston allied himself with the
Democratic party, exerted his utmost powers, aud invoked his
great ability and extended infiuence to defeat the vengeful
policy of the party in possession of the Federal Government,
and in 1875 was elected to the State Senate from the counties
of Hinds and Rankin, amid the throes of the reaction which
redeemed the State from the clutches of radicalism and the rule
of adventurers.
But it was as a lawyer that the resplendent qualities of his
mind, and as a private citizen that those of his heart, shone with
the greatest lustre. And so fuU-orbed, luminous, and poised
were these in their respective orbits that it is difficult to say
which emitted the purest light or flashed the most calescent
flame ; or which shed the brightest glow upon his character,
or gave the most brilliancy to his reputation. His knowledge
of the law in all its branches was thorough, comprehensive, and
profound. He was a close, curious, attentive, and apt student ;
and his knowledge was rooted in the very depths of the science,
while the quality and bent of his mind were peculiarly adapted
for comprehending the minutest features as well as the grandest
outlines of the profession. His rapid and impulsive perception,
his accurate discernment, and intuitive judgment, readily
embraced and digested the character of every question of law
or fact. His patient, painstaking, aud complete preparation of
his cases anticipated every turn and shape which they might
assume, and he was never surprised or driven to a disadvantage
ous position. His studious habits placed him apace with the
progress of jurisprudence ; and he was familiar with the re
ported decisions, which his skill in parity of reason aud his

AMOS R. JOHNSTON. 375
powers of analogy and comparison enabled him to invoke on all
occasions, and apply, to the discomfiture of his adversary, in a
manner as effectual as novel and unexpected.
His genius was of a high order, and he possessed to an almost
perfect degree that exact measure and full, round composition
of qualities required to form the character of a great lawyer.
Minute in investigation, methodical in arrangement, synthetical
in his logic, he advanced in his arguments with the sure-footed
pace of a master logician. Nor was his oratory of an ordinary
kind ; but while devoid of any effort towards ornation or display,
his manner of speaking was forcible, effective, and engaging,
and at times, when occasion required, was elevated to eloquence
and sublimity.
While stem aud unyielding in the conduct of his cases, he
rarely swerved from the most placid deportment, aud main
tained on all occasions a pure and polished system of profes
sional ethics, which cemented the most pleasant relations between
himself and both the bench and the other members of the bar.
His manners were characterized by a simple dignity, an engag
ing yet unassuming suavity, a winning courtesy, and a sympathy
which held in its embrace all the sufferings and sorrows of
humanity. His liberality was catholic aud large-handed, aud
whether it was extended at the bidding of patriotism or the calls
of private distress, it knew no discrimination but the worthiness
of its objects, and no bounds but his ability.
His sympathetic nature rendered him peculiarly prone to a
fondness for defending those unfortunate individuals who had
fallen under the vindicatory vengeance ojf the law ; aud his
feelings and faculties once engaged in behalf of the accused, he
clung to the defence with an energy and tenacity which gained
the admiration of courts and juries, wrenched sympathy from
the heart of prejudice, and which rarely failed to stay the arm
of the fiercest prosecution.
One of the most noted instances of this character was in the
case of the State of Mississippi vs. Boles. The defendant was
indicted at the October term, 1846, of the Circuit Court of
Warren County, for the murder of Donnaho, and at the May
term, 1847, was tried, convicted, and sentenced to be hung ; but

376 BENCH AND BAR OF MISSISSIPPI.
on a writ qf eiTor, taken by Judge Johnston to the High Court,
a new trial was obtained. At the May term, 1848, of the War
ren County Circuit Court the venus was changed to Hinds
County, and at the May term, 1849, of the Circuit Court of
that county the prisoner was again found guilty and sentenced
to death ; but upon a writ of error to the High Court a new
trial was again granted, and mainly for the following reason :
A juror whose name had been regularly reached upon the list
of the special venire, having stated to the court that his wife
was sick, was excused from serving, notwithstanding the protest
of both the counsel for the defence and the District- Attorney.
At the May term, 1852, of the Circuit Court of Hinds
County, Boles was tried the third time, and was again convicted
and sentenced. During this trial the following circumstance
occurred : On the list of those who had been summoned on the
special venire was the name of John W. Jones, and when this
name was called, James W . Jones came forward aud established
himself as a juror, upon which Judge Johnston stated to the
court that the name of James W. Jones was not upon the list
furnished to his client, objected to his being impaneUed, de
manded the production of John W. Jones, and declined to pro
ceed with the call without him. This objection the court over
ruled ; and upon a third writ of eiTor the High Court said that
the prisoner was surely entitled to be tried by a jury selected
from the persons summoned under the special venire, and
according to the list furnished him, provided that it contained
a sufficient number who were competent ; but as the panel was
completed in this . case before the venire was exhausted, the
objection was not well taken. But iu consequence of the admis
sion as evidence on this trial of the affidavit of the prisoner for
the change of venue, and of the former convictions, the High
Court, iu 1854, reversed the judgment and ordered a fourth trial,
at which the prisoner was acquitted.
It is said that during the course of this trial, which pended
through more than eight years, the prisoner, who was incar
cerated in au upper story, dropped a peach-seed beneath the win
dow of his cell, in the early period of his imprisonment, which
germinated and grew into a large tree, from whose branches he

''''"S,''bvjluiiieW9 ^¦^••'

/.^l^,^...^^ 7^ J/^

JAMES T. HARRISON. 377
plucked and ate fruit before his enlargement ; and that having
entered into confinement a hale, hearty, aud robust man, he
emerged from his long durance old, gray-headed, and decrepit.
But it is not upon a few leading cases alone that the evidence
of the eminent qualities of Judge Johnston rest. He was enter
prising and determined in all his undertakings, open and
avowed in creed and action, and detested even the appearance
of equivocation. His mental character was fashioned in the
mould of law, his moral in the cast of rectitude. No disorders
of society or state of public moral declension could shake his
firmness or lower the standard of his virtue, and throughout the
vicissitudes which upheaved the social order of the country he
was the same patriot, the same upright citizen, the same pure
man, and maintained to his end an integrity of conduct and a
calmness of spirit which reproduced and recalled the examples
of the patriots of ancient days ; and at his death, which occurred
iu 1879, it was a universal sentiment that a great and good man
had fallen iu Mississippi.

JAMES T. HARRISON.
Among the many great lawyers who have adorned the bar of
Mississippi there were few, perhaps, whose characters presented
such a full, round orb of eminent quahties, and whose mental
traits it would, in a metaphysical view, be more difficult to
abstract and define, than those which characterized the subject
of this memoir ; the attempted portraiture of which must
result disastrously alike to the skill of the artist and the power
of his colors.
James Thomas Harrison was born near the village of Pendle
ton, in the State of South Carolina, on the 30th of November,
1811. His father, Thomas Harrison, was a distinguished law
yer and a descendant of a signer of the Declaration of Indepen
dence. He was also captain of a battery in the war of 1812,
and was afterwards Controller- General of the State.
The mother of James T. Harrison was a lady remarkable for

378 BENCH AND BAR OF MISSISSIPPI.
her many graces and accomplishments. She was the daughter
of General John Bayliss Earle, who was a leading member of the
famous Nullifying Co'nvention, and one of the most highly-
respected and popular men in his State.
The residence of Thomas Harrison, Lowther HaU, was situ
ated on the little river Tugaloo, aud opposite to Fort Hill, the
home of John C. Calhoun ; and it was in the glare of such sur
roundings that the subject of this sketch imbibed those beams of
greatness which kindled the fires of his genius and afterwards
blazed along his own pathway. The inspirations of such a
nursery, and the impressions which he received from the master
mind of his distinguished neighbor, blended with his natural
endowments in the formations of a mind which afterwards ex
panded into an illustrative type of true greatness. He was a
close and devoted student, manifested at an early age an eager
and inquiring mind, and his career was one of those rare instances.
in which youthful precocity realizes the hopes of parental ambi
tion and the promises of early years. On reaching the age of
eighteen he graduated with distinction at the University of
South Carolina, and then studied law under the celebrated
James L. Pettigru, of Charleston, where he was admitted to
the bar. The teachings and examples of his distinguished pre
ceptor no doubt left plastic impressions upon the already highly-
wrought mould of his mind, and stamped his career with the fore
bodings of future success.
Having now arrived at the age of majority, he contracted the
raging desire among young lawyers of that period to emigrate
westward, and lured by the professional attractions of Missis
sippi, which were then being spread upon the gaudiest wings of
report, he determined to make his future home amid her bloom
ing prairies and tangled wilds — a step which, he said, he soon
regretted, and that some remark of his father predicting, when
he gave his consent to the move, that he would soon tire of the
hardships of his new home and return to the old, was mainly the
cause of his remaining.
Arriving in Mississippi in 1834, he established himself at
Macon, the county seat of Noxubee County, aud there begau
his first struggles for professional fame. Possessed of ample

JAMES T. HARRISON. 379
means supplied by his father, who was iu affluent circumstances,
he was enabled to direct his application with a view to improve
ment rather than to the speedy acquisition of gain ; but it was
uot long before his talents were recognized, and he soon found
himseK iu the midst of a remunerative practice.
At Macon Mr. Harrison formed a copartnership with the late
Judge Ruff, but he remained at that place only two years, after
which, induced by the prospects of a more extended field, he
removed to Columbus, where he made his permanent abode and
achieved his great success. Here he was married, in 1840, to
Miss Regina Blewett, the eldest daughter of Major Thomas
Blewett, who was one of the wealthiest planters iu Mississippi, by
whose assistance, together with his own ample patrimony and
acquired means, he was now in a condition to pursue his profes
sion simply for the love which he bore it, and this love, setting
apart his affection for his family, was the ruling passion of his
life. He loved the law as the grandest edifice ever erected by
the mind of mortal man, as the great receptacle into which has
flowed the wisdom of the ages. He recognized the truth of the
saying of Sir Henry Finch, that " the sparks of all the sciences
in the world are raked up in the ashes of the law," and he
adopted the maxim of Lord Keuyon, that "melius est petere
fontes quam sectari rivos. ' '
He had early consecrated all his energies, his talents, and his
ambition to his profession, aud he clung to it through life with
the fondness and fidelity of a devotee, and with an indefatigable
determination to dive to its depths and ride upon its surface, to
be among its heroes, " aut CcBsar, aut nullus."
But while he conceived, as Mr. Locke said of 'manhind aud
man, that the proper study of a lawyer was law, yet there was
one book which he considered as an indispensable adjunct, and
from which he often drew the most cogent streams of convic
tion. When the venerable Macklin entered his sou as a student
of law at the Temple, he enjoined upon him the Bible as the
first book he must study. " The Bible, Mr. Mackhn, for a
lawyer?" asked the learned gownsman. " Yes, sir," replied
Macklin, " the properest and most scientific book for an honest
lawyer, as there you will find the foundation of all law and
morality. "

380 BENCH AND BAR OF MISSISSIPPL
Mr. Harrison always kept a Bible and concordance within reach
of his office chair, aud its precepts, no doubt, smoothed the
rough edges of his legal character, and gave ascendency to that
warmth of charity and habitual amiability which so highly
adorned his life.
The genius of Mr. Harrison was adaptable to universal appli
cation. It is said that Sir Isaac Newton attributed the great
excellence of his mental qualities not to any superior endow
ment, but to an acquired capacity for close attention and patient
thinking. Bat Mr. Harrison inherited talents of the highest
order. He possessed all the qualities and acquirements which
constitute a brilliant and well-regulated mind, and had it been
guided in that direction, would, no doubt, have roamed as
luminously amid the constellations and azure fields of the
heavens as it did through the lurid cope of equity and the laby
rinthian concaves of the common law.
He had cultivated a habit of minute observation, of steady
and continuous attention, and contemplated the law in all its
elements and relations. No fact or circumstance, on the trial
of a cause, escaped the glare of his perception, no testimony the
exact measure of his estimation, no evidence the poised scales of
his precision, no law the facility of his application, no artifice
of an opponent the depths of his penetration, aud no sub
tlety the winnowing process of his analysis.
His reasoning was logical aud profound, and the succession of
his ideas was regulated and controlled by a cultivated aud accu
rate synthesis. In argument he was close, alert, aud compre
hensive ; nor did he permit the train of his thoughts to be
broken by frivolous and transient diversions ; but with his own
view fixed solely 'and directly upon the goal of conviction, he
blinded the minds of his hearers with no collateral display. •
His ready powers of association and comparison afforded him
great facility for analogy and parity of reason. He viewed
facts according to tlieir just and true relations, and connected
them in his mind by a chain of kindred features aud dependen
cies. Hence his memory was active and faithful, and always at
his command for the purveyance of his boundless resources.
He possessed a highly -wrought and vivid imagination, which

JAMES T. HARRISON. 381
at times leaped from the copious hive of sentiment, gathered
sweets from every flower of imagery, and feasted upon the very
ambrosia of .^Esthetics. Yet he rarely indulged in hyperbolism,
but restricted his metaphors to objects and features which har
monized with truth. His fancy attached itself more to the elu
cidation of obscure intricacies and to the weaving of technical
subtleties than to the shallowness of overwrought imagery.
As a special pleader Mr. Harrison had no superior, if an equal,
in the annals of the Mississippi bar, aud had he lived iu the days
of Mr. Stephens aud Mr. Chitty, he would, doubtlessly, have
taken rank with the most skilful pleaders in the courts of West
minster Hall. Illustrating this feature of his professional char
acter, the facetious author of " Flush Times of Alabama aud
Mississippi," referring to him as " Jim T.," gives an amusing
description of his early standing among his legal associates.
Speaking of the older members of the bar of that period, Mr.
Baldwin says :
" The aforesaid leaders carried it with a high baud over us
lawyerliugs. What they couldn't get by asking the court, they
got by sneering and browbeating. They could sneer like Mal-
groucher, scold like Madam Caudle, and hector like BuU}^
Ajax. We had a goodly youth from the Republic of South
Carolina, Jim T. by name. The elders had tried his mettle.
He wouldn't fag for them, but stood up to them like a man.
Jim was equal to any of them in law, knowledge, and talent,
and superior in apphcation and seK-confidence, if that last could
be justly said of mere humanity. He rode over us rough-shod,
but we forgave him for it, in consideration of his worrying the
elders and standing up to the rack. He was the best lawyer
of his age I had ever seen. He had accomplished himself in
the«elegant science of special pleading, had learned all the arts
of confusing a case by all manner of pleas and motions, and
took as much interest in enveloping a plain suit in all the cob
webs of technical defence as Vidocq ever took in laying snares
for a rogue. He would ' entangle justice in such a web of law '
that the bhnd hussey could have never found her way out again,
if Theseus had been there to give her the clew. His thought
by day and his meditation by night was special pleas. He loved

382 BENCH AND BAR OF MISSISSIPPI.
a demurrer as Dominie Dobiensis loved a pun — with a solemn
affection. He could draw a volume of pleas a night, each one so
nearly presenting a regular defence that there was scarcely any
telling whether it hit or not. If we replied, ten to one he
demurred to the replication, and would assign fifteen special
causes of demurrer in as many minutes. If we took issue we
run an imminent risk of either being caught upon the facts, or of
having the judgment set aside as rendered on immaterial issue.
"Jim T. was great on variances too. If the note was not
described properly in the declaration, we were sure to catch it
before the jury ; and if any point could be made on the proof,
he was sure to make it. How we trembled when he began to
read the note to the jury ! and how ominous seemed the words
' I object ' of a most cruel and untimely end about being put to
our case.
" How many cases w^here, on a full presentment of the legal
merits of them, there was no pretence of defence, he gained, it
is impossible to tell. But if the ghosts of the murdered victims
could now arise, Macbeth would have an easy time of it com
pared with Jim T. How we admired, envied, feared, and hated
him ! With what a bold, self-relying air he took his points !
With what sarcastic emphasis he replied to our defences
and half defences ! We thought that he knew all the law there
was, and when in a short time he caught the old leaders up, we
thought, if we couldn't be George Washington, how we should
like to be Jim T. !
" He has risen since that time to merited distinction as a ripe
and finished lawyer ; yet ' in the noon of his fame ' he never
so tasted the luxury of power, never so knew the bliss of
envied and unapproached pre-eminence, as when, in the old log
court-houses, he was throwing the boys right and left as fast as
they came to him, by pleas dilatory, sham, and meritorious ; de
murrers, motions, and variances. So infallible was his skill in
these infernal arts that it was almost a tempting of Providence
not to employ him. ' '
To these indications may be superadded an incident which oc
curred in his old age, and within the observation of the author :
Mr. Harrison was engaged in the defence of a cause before the

JAMFS T. HARRISON. 383
Circuit Court of Colfax, now Clay County, in which there was a
heavy claim for damages for " enticing away" laborers who were
under contract, and on the introduction of the case he claimed
its dismissal for lack of merit and cause of action, contending
that, by virtue of the thirteenth and fourteenth amendments,
the common-law relation of master and servant did not exist in
this country. There were apparently no American precedents
at hand, and seemingly a fatal ,halt was caused in the proceed
ings, during which the counsel for the plaintiff drew forth ad
vance sheets of the Crispins' case, which is contained, I believe,
in the 109th Massachusetts Reports, theu in press, and which
he had obtained a few days before from the reporter of that
State. The court, without objection on the part of Mr. Harrison,
permitted the loosa sheets to be read, and it transpired that iu
that case the Supreme Court of Massachusetts, in answer to the
very argument advanced by Mr. Harrison, held that the right
of action in such cases depended not upon any positive law, but
was a right rising out of the contract, and was applicable to all
classes and conditions of men.
From this time the ruhngs were all against hiin, and he was
brought down to the jury -with every circumstance apparently
stamped with premonitions of defeat. But the plaintiff had
no sooner begun the introduction of his testimony than Mr.
Harrison seized upon a technical variance between the declara
tion and the proof, which he managed so adroitly as to cut off
the plaintiff from the main body of his evidence, and reduced
all possible damages to a mere nominal amount. Upon which
the counsel for the plaintiff, on realizing the situation, ob
served that Mr. Harrison, after having been dislodged from his
perch in the topmost branches, and shaken from bough to
bough, and from twig to twig, when brought to the roots had
sprung upon a stump and barked " variance," at which Mr.
Harrison, now resting iu the placidity of a narrow triumph,
joined in a hearty laugh ; but had he been laboring under the
irritation of defeat, he would, most likely, have hurled back
one of those sarcastic and scathing retorts of which, when occa
sion required, he possessed such perfect mastery.

384 BENCH AND BAR OF MISSISSIPPI.
Over all these attributes was the exercise of a sound and
correct judgment, which, nurtured in the lap of learning
and fed from the copious stores garnered by tributary qualities,
expanded to the vast outlines of his comprehension, seized upon
everv feature of entity, laid hold upon every object in nature,
and was equally efficient in the formation of opinion and in the
guidance of action. He possessed a sanguine temperament and
strong emotional energy, which in his latter days gave him at
times the appearance of being captious, but his w^ell-balauced
judgment and kindness of heart dispelled that austerity which
is generally a concomitant of bodily infirmity and mental se
nescence, and he was one of the comparatively few of mortals
whose capacity for intellectual enjoyment did not slacken at the
touch of age. His " vigenti annorum lucubrationes" extended
to the end of his life. •
But while the aspirations of his genius and the cravings of his
ambition seemed to find no limits -^Yithiu the scope of his profes
sion, he entertained no desire for official preferment, and had no
taste for public life. Twice he was offered a seat upon the
supreme bench of the State, aud as often declined it.
He was chosen, without his knowledge, by the Mississippi Con
vention of 1861, a delegate to the Convention of the Southern
States at Montgomery, and there advocated the adoption of the
old fiag in a speech said to have been of remarkable force and
eloquence. He was also in the Confederate Congress during
the entire period of its existence, and was considered one of the
most able and efficient members of that distinguished body.
But his ardent temperament and gallant disposition would have
hurried him into the thickest of the fiery drama had it not been
for a near-sightedness which rendered him totally unfit for mili
tary service.
On the reorganization of Mississippi under the Johnson ad
ministration, he was elected by a large popular majority to a seat
in the Federal House of Representatives, aud repaired, with his
credentials, to Washington ; but the entire Mississippi delega
tion having been refused admittance, he returned to his practice,
and confined his interest in public affairs to the redemption of his
State and people from the Moloch grasp of Federal oppression.

JAMES T. HARRISON. 385
But about this time he received a compliment which he
highly appreciated, and which he considered really as one of the
proudest events of his hfe. The following communication will
set forth its nature : "Jackson, July 13, 1865.
"Hon. James T. Haeeison.
' ' Dear Sie : The uudei-signed, believing that it is proper that
the bar of Mississippi should be represented on the occasiou of
the trial of President Davis, have selected you as such represen
tative. "Apart from the transcendent importance of the case, as affect
ing the most vital principles of constitutional freedom, it is due
to the eminent character of President Davis that counsel from his
own State should offer their services. More especially so since
one of the most eminent lawyers of America, a resident of a
Northem State, has already asked the privilege to aid in the
defence. We earnestly appeal to you to gratify the -wishes of
your professional brethren.
' ' WiU you please respond at your earliest convenience, as it is
uncertain what time may be appointed for the trial ?
"We may add that all expenses incurred by you will be de
frayed. We could not ask a higher sacrifice of you than the
loss of time you would be compelled to submit to by acceding
to our request.
" We could convey no higher expression of our confidence in
your professional ability than is implied in your selection for
this most delicate and important trust.
" The civihzed world regards the trial with more interest than
any one which has occurred within the annals of our race.
With what feelings should Mississippi contemplate the scene iu
which her most iUustrious citizen is arraigned for his hfe for
having been placed in the position he lately occupied as the rep
resentative of her most sacred rights ?
" We have the honor to be,
" Very truly, your obedient servants,
" C. E. HooKEE, A. R. Johnston,
" F. Andeeson, a. p. Hill,
" T. J. Whaeton, E. S. Fishee, " and others."
Mr. Harrison promptly accepted the trust, and said that if
the trial should occur he would appear in defence, but that he
did not believe it would ever take place ; that, with Chief Jus
tice Chase presiding, there would be no chance of conviction,
aud he did not believe the United States Government would
risk the stakes.

386 BENCH AND BAR OF MISSISSIPPI.
These predictions, engendered by his far-seeing judgment and
legal acumen, were f uUy verified, and the Government seemed
to labor as hard to justify an escape from the issue as it had
bustled to impress the resoluteness of its purpose ; while Mr.
Harrison was relieved from a defence in comparison with
which, in view of the magnitude of its bearings, those of War
ren Hastings and Queen Caroline would have dwindled into
utter insignificance, as, indeed, would all others, scarcely except
ing the frantic farces of the revolutionary tribunals which
brought the heads of Charles I. and Louis XVI. to the block.
But, rivalling the jewels of his intellectual crown, there were
the shining qualities which decked the almost unsullied robes of
his purity. While his life was one continual path of duty, it
was the clear, cool, breezy walk of rectitude, arched over with
the canopy of genius, and garlanded -with the flowers of charity
and benevolence. His professional ethics were pure, elevating,
and exemplary, and while he was vehement and pertinacious
in advancing and maintaining his positions, he was gentle and
yielding to the rulings of the court, dignified and urbane towards
his opponents at the bar, tender and conciliatory in the examina
tion of honest -witnesses, but peculiarly severe towards the pre
varicating, evading, and contumacious. This last well-known
characteristic enabled him, no doubt, to extract from fear many
a truth iu the promotion of justice which would otherwise have
remained locked in the bosom of dishonesty. While he de
lighted to entrap them iu technicalities, he was generous to the
younger members of the bar, and always ready to give them aid
aud counsel. But he had no mercy on negligence and inexcus
able ignorance. He thought that they should thoroughly qual
ify themselves before entering the bar, and was severe on those
who entered through his examination. The author experienced
his inquisitiveness in that respect.
There were but few, if any, who dispensed more professional
charity than Mr. Harrison. If he charged a poor man, it was
but a nominal fee, and he alwa.ys advised such to avoid litiga
tion if possible. He had early in ,his professional life adopted
two rules, to which he continued to adhere — not to charge a
widow, nor to prosecute a man for his life. He said that during

JAMES T. HARRISON. 387
his early practice he once prosecuted a capital charge upon purely
circumstantial evidence, and after con-viction labored as hard
to rescue the unfortunate man as he had done to con-vict him
on the trial ; which he succeeded in doing, but that the near ap
proach of the execution gave him such a shock that he never
afterwards had any faith in circumstantial evidence, and resolved
never again to engage iu a prosecution involving life.
Among the many exhibitions of his genius he cherished a re
markable fondness for the science of geology, or rather for its
objects, for his devotion to the study of law would not permit
such an exacting rival ; but he was fond of geologizing, and his
cabinet of collections, which he arrayed in his law office, and to
which he took pride in directing the attention of his visitors,
was truly novel and interesting, aud perhaps the most complete
group of specimens possessed by any individual iu the State.
It was on one of these excursions, not long after the war,
among the rocks of Noxubee County, that he received a wound
from the fall of a large stone, which necessitated the amputation
of a large portion of his right foot, a circumstance which caused
him great suffering during the remainder of his life.
He died at his residence in Columbus on the 22d of May,
1879. Aud here prudence would dictate that the curtain should
faU upon this feeble narrative ; but I must subjoin that, in addi
tion to aU these more public qualities of head and heart, Mr.
Harrison maintained the most affectionate domestic relations.
He was a fond husband, a doting father, and a devoted friend ;
and while the friendship he inspired needed but the mesmeric
contact -with his virtues to assume the growth of love, the golden
chain was hnked with the jewels of domestic felicity. To say
that he was dear to his family and his friends would be to arro
gate an unnecessary and gratuitous act of judgment, aud to say
how dear is not perhaps in the power of speech or thought.
For such a character to have been free from every fault and
failing of humanity would not have been human. Yet so few
were his weaknesses that they weighed but little in the scale of
his greatness. His glory gathered in his dawn, blazed with
splendor in the meridian of his life, and gilded the horizon of
his declining years. And while he has disappeared behind the
25

388 BENCH AND BAR OF MISSISSIPPI.
sunset and the night, his fame will return with the morning,
aud ascend the current of the stream of time, until it is gathered,
with all the bright things of earth, into the realms of eternal
light, and receive its plaudits from the everlasting shores.
Numerous and eloquent eulogistic speeches were made on
the death of Mr. Harrison by his brother members of the bar,
while the press of the State teemed -with tributes to his memory.
¦The following resolutions were adopted by the bar of Columbus :
" The members of the Lowndes County bar, desirous of giv
ing public expression to their feelings, and of the sense they
¦entertain of the loss which the bar has sustained by the death of
its oldest and most distinguished member, who for more than
half a century has illustrated the virtues of the profession,
iadomed it by the exhibition of rare and eminent talents, and
ileft to his survivors au example of spotless purity and integrity
of life ; and also to manifest the affectionate esteem in which
they hold the memory of their venerated departed brother, as a
'Citizen eminent for all the attributes that adorn citizenship, and
,as a man endeared to their affections, as well by his private as
public life ; by social qualities of heart, as well as by the vigor
of his intellect, do adopt the following resolutions :
'" 1. ResoVoed, That the members of the bar heard -with deep
¦ and painful regret of the death of the Hon. James T. Harrison,
aud that we sincerely condole -with the members of his family
over the calamity which has befaUen them, and the great loss
.sustained by the community.
* ' 3. Resolved, That, as a testimony of respect for the memory
of the deceased, the judge's bench be draped in mourning du
ring the remainder of the term.
" 3. Resolved, That, as a further token of respect, your Honor
be requested to have the proceedings of the bar spread upon
tiie minutes of the court, and that they be pubhshed in the city
papers, and that the secretary furnish a copy to the famUy of
the deceased." ' _ -,
Iwvill close thia sketch with the following extracts from some
of tlr^ eloquent addresses delivered on the occasi^ of Mr. Har
rison'^ death by thp gentlemen of the bar, and \fhich I have
selected only by viAue of a di^ffSplt discrimination in favor of
literar-v excellence aUd inetaiDhysieal merit./ *•

/

\ ¦ 'WajJ.

JOHN B. SALE. 391

JOHN B. SALE.
]f an uncommon strength of judgment and a justness of
lught, which measure events by the rules of prudence, weigh'
iry fact and phenomenon in the scale of an attentive observa--
a, and rescue truth from the shackles of sophistry, may be
lepted as an interpretation of genius, I have no hesitancy in
ribing that quality to the subject of this sketch, while I must
)t to him the possession of au overruling virtuous sentiment
ich, like that of Hercules, decided the course aud guided
3ry motive of his life.
S^enophon, in his elegant Memorabilia of Socrates, relates a
lutiful allegory describing the choice of Hercules between the
lerficial allurements of sensuality and the pure charms of vir-
!. The youthful hero, having arrived at the age of discre-
tt, seeks the stillness of solitude for the purpose of reflecting
1 deciding upon his course of life ; and whilst in a state of
•plexity as to whether he should enter upon life by the way
virtue or that of vice, he is approached and accosted by two
men of remarkable appearance and stature. The countenance
one of these ladies glowed with benevolence and the modest
ile of amiability. Her manners were dignified and gentle ;
jry gesture betokened the highest culture of decency and gen-
ty. She wore no ornaments. Her native charms needed no
ificiality to add to their serene splendor. She was adorned
;h neatness and elegance, and all her garments were of the
rest white.
Ihe other was not -without beauty ; but, not-withstanding her
iged cheeks and carmiued lips, her countenance had the ap-
irance of being sallowed aud bloated from luxurious excesses,
i while she affected the most engaging manners, her demeanor
s evidently studied and constrained, and every artifice was
orted to to remedy her natural defects. Her fingers and ears
i breast glittered with sparkhng ornaments. She was ex-

392 BENCH AND BAR OF MISSISSIPPI.
ceedingly bold, and the blush of modesty was altogether a
stranger to her cheeks. Her dress was of the most gorgeous
colors, and she was ever on the alert to detect the glance of
admiration ; indeed, she would often stop to admire her own
shadow. With characteristic pertness, she hastened in advance
of the quiet, majestic step of her companion, and addressing
Hercules -with a bland but affected smile, announced to him that
she was aware of the character of his meditations, and if he
would accept the offerings of her friendship, she would conduct
him along the most flowery paths of happiness and ease, where
. every delight should court his enjoyment, and not a thorn of
pain or thistle of sorrow should ever pieree his feet. Free from
the harsh and annoying concerns of life, the pleasures of luxury
should be his ouly employment.
Upon this flattering and seductive announcement, Hercules
demanded her name. " My friends," said she, " call me Hap
piness, but my enemies brand me with the nickname of Sen
suality." But the other lady had by this time arrived, and accosting
Hercules, said that she too had come to offer the consolation of
her friendship in the matter about which he seemed to be dis
turbed. That she was not a stranger to his eminent parentage, and
had remarked the goodness and amiability of his disposition from
his early childhood, and from which she entertained the most
lively hopes that if he would follow her lead he would achieve
glory for himself and be an honor to his chaperon. But that
she did not intend to allure him with specious promises of pleas
ure, but would represent things as they existed in reality, and
disclose to him the will of Heaven concerning them. " Know,
then, young man," said she, "that the all--wise rulers of the
universe have decreed that nothing great, nothing excellent
can be obtained without care and labor ; that no good, no hap
piness, can be attained on any other terms. If, therefore, you
would secure the favor of the gods, adore them. If you desire
the love of your friends, be worthy vof it. If you wish to be
honored by your fellow-citizens, serve them. If you wish the
fruits of the earth, cultivate it. Thus alone, O Hercules,
mayest thou attain that fehcity with which I am empoT^ered to

JOHN B. SALE. 393
reward those who yield to my direction, and who not only enjoy
the richest blessings of earth, but when the fatal hour arrives,
my votaries sink not like others into inglorious oblivion, but
live forever in the favor of the gods and the grateful remem
brance of mankind."
Let us now trace the a,pplication of this beautiful allegory to
the subject of our sketch. John Burmss Sale was bom in
Amherst County, Virginia, on the 7th of June, 1818. He was
the son of an eminent divine, Rev. Alexander Sale, and of Sarah
Burmss Sale.
"While he was a boy his father moved to Lawrence County, in
the State of Alabama, and. there placed him in the college at
Lagrange, where he was educated under the supervision of the
now venerable Bishop Paine, who was then the president of
that institution, and whose voice may have been to young Sale
what that of the lady in white was to Hercules. And as the
life of Hercules evinced the -wisdom of a choice which enabled
him under the sternest decrees of fate to glorify the teachings
of virtue, so that of the subject of this sketch verifled the power
of those haUowed admonitions which he received from his pious
father and sanctified preceptor.
On the completion of his collegiate course Mr. Sale read law
under Judge Ormaud, of Alabama, and was admitted to the bar
of that State in 1837, at Moulton, when he was but nineteen
years of age, and two years later was chosen judge of the Pro
bate Court. His morahty and close application, together with
the eminent qualities of his mind, enabled him very soon to
achieve the distinction of a young lawyer of much promise, and
finally conducted him to the position of eminence.
In 1845 he removed to Aberdeen, Mississippi, where, two
years afterwards, he formed a copartnership with John Good-win,
Esq. This firm continued until 1854, when Colonel James
Phelan, afterwards Senator from Mississippi in the Congress of
the Confederate States, was admitted as a member, and on the
death of Mr. Goodwin, in 1857, Messrs. Sale & Phelan ¦ con
tinued their copartnership until the outbreak of the civil war.
In 1861 Judge Sale organized a company of volunteers,
which was assigned to the 27th Mississippi Regiment. On the

394 BENCH AND BAE OF MISSISSIPPI.
reorganization of this regiment he was elected major, and was
soon made heutenant-colonel, and assigned to duty as judge-
advocate of the Army of Tennessee.
He remained in this position about six months, was theu pro
moted to colonel, aud ordered to report to General Bragg, at
Richmond, as chief of staff, and remained in this position until
the close of the war. In this capacity the services of Colonel Sale
were so meritorious and efficient as to elicit expressions of grate
ful recognition from his commander, aud on hearing of his death
General Bragg wrote : " Colonel Sale waste me not only a true
friend^ but a wise counsellor and an unwavering support, upon
which I relied with confidence in times of great trial."
On his return home in 1865 Colonel Sale renewed his copart
nership with Colonel Phelan, and the firm was soon after joined
by Colonel William F. Dowd, and became oue of the most
noted iu the State. On the removal of Colonel Phelan to Mem
phis, about a year later, the firm of Sale & Dowd continued
until 1875, when it was dissolved by mutual consent, aud Colo
nel Sale then admitted Mr. E. H. Bristow to a share in his
practice. This copartnership continued until the death of
Colonel Sale, which occurred on January 24th, 1876, from a
spinal affection induced by too prolonged and intense mental
application. He was first married to Miss Susan Turner Sykes, daughter
of Dr. William A. and Rebecca Sykes, formerly of Decatur,
Alabama, and afterwards of Aberdeen, Mississippi. She died
in 1848. His next marnage was with Miss Nannie T. Mills, of
Aberdeen, who died in 1857. In 1860 he married Miss Lou
Leigh, daughter of the Rev. Hezekiah G. Leigh, formerly of
Mecklenburg County, Virginia, and the founder of Randolph
Macon CoUege. She died in 1863, during the absence of her
husband in the army, and in 1866 he married Miss Annie Cor
nelius, of New Orleans, daughter of William Cornelius, Esq., a
prominent lawyer of that city. This estimable lady survives
him. As a lawyer, Colonel Sale possessed many eminent qualities.
While he may not have been distinguished for that coruscating
briUiancy of imagination which Shakespeare characterizes as a

JOHN B. SALE. 395
" fine frenzy," he possessed an accurate perception, a sound
and penetrating judgment, aud an indefatigable power of ap
plication. Hence his knowledge of the law was deep and thor
ough, aud his arguments lucid and logical. So careful was
he of profound research, and so patient of investigation, that he
never appeared iu court without having made a thorough prep
aration, whatever may have been the nature of his case.
He was unswerving in his integrity and stern devotion to
principle, was conscientiously faithful to the interest of his
clients, but spurned a cause which he believed to be unjust.
His abhorrence of anything like fraud was exemplary and pro
nounced, and he never lost au occasiou to lash the iniquity of
knavery. Chivalrous aud magnanimous iu his disposition, he
had no sympathy for the illiberal and the mercenary, and
brought all the powers of his mind and all the energies of his
nature to bear iu the elimination of truth and the -vindication of
justice. These well-kno-wn features of his character engaged
universal confidence in him as a lawyer, arid the highest respect
for him as a man.
Blended -with his legal acquirements and the sterner traits of
his character. Colonel Sale possessed a nature tenderly sensitive
to the beautiful aud the sentimental. He was fond of poetry and
music, and in spare hours often quenched his aesthetic thirst in
the Pierian springs and the fountains of Parnassus. His col
lection of paintings e-vinced a cultivated taste for the fine arts,
aud his fondness for literature was exemplified in the scope and ,
excellence of his library.
He was also bland and courtly in his bearing, dignified and
polished in his demeanor, and altogether engaging in his man
ners. The presentation and conduct of his cases were calm,
methodical, and clear, and when he was not aroused by his scorn
of undue advantage, were suave, courteous, and conciliatory.
That he was a successful lawyer was but the natural result of
these qualities, and he enjoyed a lucrative aud enlarging prac.
tice to the day of his death.
While his patriotic heriosm and professional eminence shed a
halo around his character, there were few men who have gone
do-wn to their graves clad in the robes of a more spotless purity ;

396 BENCH AND BAR OF MISSISSIPPI.
and, as Sir James Mackintosh said of Mr. Grattan, " The purity
of his life was the brightness of his glory. ' ' His patriotism cher
ished the honor of his country, his ambition sought the mastery
of his profession, his love revelled in the haUowed precincts of
his home circle, while his hopes, buoyed by his unswerving
faith, feasted upon the promises of divine revelation. •
The religious character of Colonel Sale was in the highest
degree bright and exemplary. He had long been a strict mem
ber of the Methodist Church, and died, as he had lived, in the
enjoyment of all the hallowed influences of Christianity. The
lady in white attended upon the death of her votary.

WILLIAM F. DOWD.
I cannot by auy means subscribe to that materialistic doc
trine which would consign genius and intellectual culture to the
narrow sphere of an earthly existence, and which would send
us from this world disrobed of all intellectual graces, with no
conception but that of accountability, and with no endowment
but an embryo capacity for an existence certified only by the
dim scroll of religious faith or the blank sheet of infidelity.
There is with every one, notwithstanding the dogmas of
casuists, an inward revelation that the acquirements and treas
ures of the mind are immortal, and, as the Greeks expressed it,
to aioviov jiir}p.a, "possession forever," aud when we are
told that " angels desire to look into these things" we are re
minded that the cravings of the inteUect are manifested even
around the very throne of heaven, aud there continues to
weave the golden threads of thought, and gather its ambrosial
food — to rise higher and higher until it is merged in the zenith
of illimitable light. It must be believed, too, that the gifts of
genius are in part the talents of the parable, and that its proper
development is the usury demanded.
This everlasting quahty was possessed in an eminent degree

WILLIAM F. DOWD. 397
by the subject of this sketch — a genius which has left behind it
a superb mark, a proud niche in the column of legal fame.
WiUiam Francis Dowd was born iu the State of South Caro
lina, at Society Hill, in the District of Darlington, on the 31st
of December, 1820. His paternal ancestors were of Irish ori
gin, and were distinguished as soldiers in the war of the Ameri
can Revolution. His father was a captain in the war of 1812,
and was afterwards a Baptist clergyman noted for his strenuous
advocacy of the missionary interest, and for his exertions towards
the establishment of educational institutions. His mother, who
had been educated at the Moravian School of Salem, in North
Carolina, was a lady of culture and refinement ; and to her
teachings Colonel Dowd always attributed -with distinguished
pride those ambitious aspirations and eminent qualities which
achieved his success in hfe.
In 1832 young Dowd emigrated to the State of Tennessee
with his parents, who settled on a small farm on Forked Deer
River, near the town of Jackson. Here he was reared to man
hood, aud here, during the frequent and protracted absences of
his father on ministerial duties, he attended, during the day
time, to the improvement and cultivation of the farm, and at
m'ght listened to the instructions of his amiable and devoted
mother, who inspired him with that spirit of application and
thirst for knowledge which attended him through life. He also
attended at intervals a common school in the vicinity, and was
maintained a short time at an academy in Brownsville.
In 1841 the family removed to Mississippi and established its
residence in Monroe County, near the -village of Smithville.
The mind of his aged father had now become greatly impaired,
and young Dowd found himself burdened with the main
charge of the family, and with the responsibility of educating
his younger brother and his sister. He continued to labor with
his own hands for their support and promotion, but the dull
and monotonous routine of farm drudgery did not satisfy his
intellectual appetite and the cravings of his ambition. He
longed for a sphere in which his conscious genius could assert
its claims to the notice and respect of his fellow-men. The law
presented its boundless field and its shafts of glory to his imagi-

398 BENCH AND BAR OF MISSISSIPPI.
nation, and, encouraged by his cultured and ambitious mother,
he entered upon its study with a determination aud avidity
which predestinated at once a successful career. He continued,
however, his attention to the farm, and taking his Blackstone
with him to the field, he would select some shady spot where
he coiUd observe the progress of the laborers, and there pore
over those great principles which he was afterwards to elucidate
with so much depth and brilliancy. And to-day a tree near the
roadside is pointed out by his old neighbors as having been a
favorite beneath whose shady boughs he pursued his study, all
absorbed and heedless of the jeers and jokes hurled at the
young disciple of Coke by the rustic denizens who passed that
way. He was admitted to the bar about the year 1846, aud made
his first appearance at the April term, 1847, of the Monroe
County Court. He was then a member of the firm of Coop-
wood, Herbert & Dowd, of Aberdeen. His very first efforts
commanded the attention and admiration of the court and the
older members of the bar, and caused him to be recognized at
once as a young man of decided genius and great promise.
About this time he became also the editor of a newspaper
published iu Aberdeen in the interest of the Whig party, which
he conducted with skill and ability, and without relaxing his ap
plication to his chosen profession. In 1854 he was married to
Miss Ann W. Brown, daughter of Colonel James Brown, of
Lafayette County, Mississippi, a lady of accomplished culture
and many distinguished graces ; and so great had become his
popularity as a successful advocate that his professional income
during the year of his marriage is said to have reached the
amount of twenty thousand dollars.
He was an unswerving advocate of the doctrine of States
rights, favored secession as the only remedy against Federal
usurpation, and upon the advent of the civil war promptly
marshalled all his energies for the conflict ; and, under a com
mission from the Confederate Secretary of War, raised and mus
tered for the duration of the war the 24th Mississippi Regiment
of Infantry, of which he became colonel. His first engagement
was at the battle of Corinth, in which his regiment took a dis-

WILLIAM F. DOWD. 399
tinguished part, holding with desperation a large force of the
enemy in check while the bloody drama of the day was being
enacted. At the battle of Perryville he acquitted himself with
conspicuous gallantry, and at the battles of Lookout Mountain
and Missionary Ridge the 24th Mississippi, led by Colonel
Dowd, gained a brilliaut wreath of the glory of those two terri
ble days. After this his health became too feeble for field ser
vice, and he was appointed by the President one of the judges
of the military court for North Alabama, which position he
held until the close of the war.
On the return of peace he again opened the doors of his offlce,
and in 1865 entered into a copartnership in law with Colonel
Sale and Hon. James Phelan, which continued until the year
1867, when it was dissolved by the voluntary withdrawal of
Colonel Phelan. The firm of Sale & Dowd was then formed,
and existed until dissolved by mutual consent in 1876. These
firms are celebrated in the legal annals of the State for the great
learning and ability of the gentlemen composing them.
After his severance with Judge Sale, Colonel Dowd continued
the practice alone, and his business was at all times more than
equal to his physical ability, which, becoming more and more
impaired, finally gave way beneath the onerous burdens which
his mental energies imposed upon it. His intense and con
tinued apphcation would brook no restraint, his ambition to
achieve would hsten to no bodily rebuke, and he feU on the
plain of his greatness -with the same spirit with which he leaped
into the field. He died at his home in Aberdeen, on the 28th of
November, 1878.
As a lawyer Colonel Dowd stood in the front rank of the
profession, and his mind seemed to be singularly adapted to its
utmost requirements. He took especial delight in developing
and applying its most abstruse and intricate doctrines. It was
the kind of food which the high order of his genius demanded,
the sphere of well-contested and lofty excellence which suited
his ambition, and where his superior intellect foimd a goal
worthy of its noblest efforts. He loved its labors, its clashes,
and its excitements. Its difflculties were the choice feasts of his
soul, and its triumphs the crown jewels of his life. He had

400 BENCH AND BAR OF MISSISSIPPI.
mastered the law in all its branches, was thoroughly familiar
-with its fundamental principles, which, with his keen perception
and aptness in analogy, gave him rare powers of discrimination,
of detecting the weak points in the positions of his adversary,
and of invoking every available prop in support of his own.
His legal abilities were most strikingly exemplified in the dis
cussion of subtle and abstract questions of la.w, and his genius
glowed with the most splendor in assailing arguments which
were apparently unanswerable. But iu no department of the
science or features of its practice did he lack those powers which
command success and win the meed of fame.
His logic was accurate, forcible, and repellent of- assault. His
powers of analysis extended to the confines of logical di-visibility,
aud his synthesis was characterized by a bold yet closely linked
aud unbroken chain of reasoning ; and when all his forces were
marshalled into action, a calm, sound judgment sat like Xerxes
upon the rock of Salamis as generalissimo of the array.
He was fond of argumentation, prided himself iu his logical
alertness ; and while he was ever ready to signify his recogni
tion of just claims and of good qualities, he was quick to detect
chicanery and discrepancies, and his criticism of these was often
severe. His repartee was ready and apt, and the edge of his
satire sometimes painfully keen, yet he never indulged in vitu
peration and abuse, and under ordinary circumstances he was a
paragon of gentlemanly courtesy and of refined professional
ethics. His powers of endurance were great, and he possessed a re
markable capacity for intense and continued mental exertion.
The preparation of his cases was laborious and elaborate, and he
made it his invariable custom to search for and cull every fea
ture avaUable to his case from the reported decisions of both
England and America. Hence his positions were generally im^
pregnably fortified, while his vivid memory and ready com
mand of his resources rarely permitted him to be surprised or
placed in a disadvantageous attitude.
He was equally skilled in law and in equity, while his ability
and success iu criininal defence was of a superior character ;
and his extensive practice, which extended over the counties of

WILLIAM F. DOWD. 401
Northern Mississippi and to the Supreme aud Federal courts of
the State, was never too varied in its features for the versatility
of his genius. The cases iu the argument of which he perhaps
made the greatest reputation before the Supreme Court were
those of Narcissa Scruggs vs. The Memphis and Charleston
Railroad Company ; Well et al. vs. The Board of Supervisors
of Pontotoc County ; and The State Board of Education vs. the
City of Aberdeen. But it was before the United States Court
that he won his proudest laurels ; and it fell to his lot to be en
gaged before that court in one of the most remarkable and im
portant cases ever brought before a judicial tribunal of this
country. Soon after the enactment of the notorious Enforcement Law a
large number of citizens of Monroe County, Mississippi, were,
-without discrimination, save as to politics, arrested upon process
issued by virtue of an indictment presented by a grand jury of
the United States for the Northern District of Mississippi,
charging them with the murder of a negro residing in that
county, and were carried by the United States marshal before
the Federal District Court, then in session at Oxford. Colonel
Dowd, with Generals. J. Gholson aud others, was employed for
the defence, and immediately flled a petition for a writ of habeas
corpus, upon the trial of which the relators traversed the re
turn of the marshal as to the validity and lawfulness of the in
dictment and capias, and the authority by which the prisoners
were held.
This was a case well calculated to kindle all the fires of genius
and to test all the powers of the mind. It was the first attempt
made to enforce this despotic law, aud involved its constitution
ahty ; invoked a thorough aud penetrating knowledge of the
features of our complex system of government, the source and
extent of Federal power, and the nature of its grant, whether
general or specific, expressed or implied, and the rights of the
State involved. In the investigation of these great and vital
questions they had no guidance of precedent, no illuminations
of anj' fixed formulas, but were compelled to coin their argu
ments from the crude ores of principle and stamp them with the
superscription of analogy ; to hew a pathway for the courts, and

402 BENCH AND BAR OF MISSISSIPPI.
one that would shed some light upon the dark destiny of their
country. Yet, actuated and inspired by the spirit of patriotic
devotion, and a dutiful determination to achieve justice for their
clients, they rose to the height of the subject, and spoke, -with
manly candor, words of warning which fell like the omens of
fate upon the ear of the Government.
Colonel Dowd made the chief and closing argument, in which
he completely and forever paralyzed the features of this bloody
biU, and clothed it in the garb of everlasting indignation and scorn
in the eyes of every just and patriotic man. Had he achieved
nothing before, his efforts on, this occasion would have entitled
Ifls patriotic eloquence to a place by the side of that of Mr. Pitt
in his precocious splendor, of that of Pulteney in the meridian of
his glory, and of that of Lord Halifax when, in the ripeness of
age, his speeches on the " Exclusion Bill" electrified Britain
from John O'Groat's to Land's End.
Impelled by its intrinsic merits, by the importance of the
case and the magnitude of its issues, 1 have been constrained to
introduce the main portion of Colonel Dowd 's argument, both as
an illustration of his legal character aud as au elucidation of the
chief features of the American Government, as distorted by the
throes of the civil war.
In closing the argument on the part of the relators, Colonel
Dowd rose and said :
" May it please the Court : To say that this case is oue of
surpassing interest and importance is to give a poor, beggarly
account of the real magnitude of the great principles involved.
Under all circumstances the trial of a human being for a capital
crime awakens the deepest interest in the minds of the court,
jurors, and counsel, and involves the gravest responsibilities.
But here we have at stake the lives of twenty-seven of the'most
respectable citizens of Mississippi ; men of individual character
and personal responsibihty ; men with reputations untarnished
-with crime, unspotted by suspicion, bearing names known and
honored when Mississippi was a Territory : one a gray-haired,
feeble old man, who has nearly hved out his threescore years
and ten. Others are the sons of the pioneers of our State, and
have been on the plantations cleared by their sires more than

WILLIAM F. DOWD. 403
half a century. These names include our entire neighborhood ;
none are left but women and children.
" But, if your Honor please, this prosecution aims a stab at the
heart of the Constitution of the United States, and of every
State in the Union. If successful, it annihilates the whole ju
dicial system of Mississippi, and of every other State. While it
concedes the right, it proposes to rob every American citizen of
the benefit of a speedy aud impartial trial by a jury of his peers,
chosen from the vicinage or county iu which he resides, by
dragging him a hundred miles from his home to a circuit or
district com-t of the United States, there to be tried by a jury
selected from the whole district ; by a marshal who holds his
offlce at the will of the Government, and who is compelled to
organize the jury according to the dictates of the prosecution !
"luthe long list of judicial murders and butcheries in the
reign of James II. , the right of trial by jury was seldom denied,
but the benefit of that immortal form of trial was denied by the
selection of twelve partisans of the Crown, organized to convict.
The list of wrongs embraced in the words ' against Ufe, lib
erty, and property,' as used iu all the great charters of English
hberty, and in all the constitutions of this country, include
every cause of which the State courts have jurisdiction ; and if
the Congress of the United States cau legislate for the punish
ment of every such offence, and confer on the Federal courts
exclusive jurisdiction, the entire judicial systems of the States
are blotted from existence.
" The testimony shows that au awful crime has been commit
ted. Alexander Page, a negro, a citizen of Mississippi and of the
United States, was torn from the arms of his wife, in the mid
dle of the night, by a band of disguised ruffians, and murdered
iu cold blood ; even his appeal to his murderers for time to
make a last prayer to his God, for mercy on his soul, was bar
barously refused : uushrouded, unheralded, unknelled,(he was
' hurried into eternity ! It was a crime only surpassed iu atrocity
by the Nathan murder in New York, by the attempt to roast
the four brothers alive iu their burning dwelling in Indiana,
and others of a similar character, with which the press of the
Northern States daily teems.

404 BENCH AND BAR OF MISSISSIPPL
" But there is a crime surpassing in turpitude all the horrors
of all other murders blended together, and that is judicial
murder. " The court which usurps jurisdiction and consigns its victim
to the gallows without authority of law is guilty of this un
pardonable sin. It is difficult to beheve that even the great
atonement can obliterate the offence from the records of
eternity. " I trust and believe that the wild clamor which rings out over
the whole Union, calling for the suppression and punishment
of the Ku-Klux clans, -will not be permitted to enter the charmed
circle of this court-room. All great national and judicial crimes
have been committed in the name of law, or of order, or of re
ligion. " The massacre of Saint Bartholomew was committed in the
name of our holy religion, amid the prayers and tears of the per
petrators, and was hailed by a part of the Christian world with
thanksgiving and praise. The judicial butcheries which blacken
the pages of English history were all committed iu the name of
the Lord, or in that of law and order ! In all ages and in all
times the tyrant or tyrants who destroyed the liberties of their
countries did so under the pretext of protecting life, hberty,
and property. Necessity is now known as the tyrant's plea.
Under this plea, and this alone, the avowed necessity of suppress
ing the wicked and rebellious Ku-Klux clans ; under the false
cry, known by the utterers to be false, that the State courts and
State authorities are incapable of doing justice, this prosecution
gravely proposes to your Honor to assume jurisdiction in the
case of an alleged murder of a citizen of Mississippi, by other
citizens of Mississippi, on the soil of Mississippi. The real pros
ecutors in this case are concealed. It is certain that the poor
ignorant widow of the murdered man has been put forward by
men behind the scenes, prompted by motives of private ven
geance or treason to the Constitution, and restrained only by the
cowardice that belongs to malignity. The testimony proves be
yond all question that the witnesses for the prosecutiou have
been suborned, and, so far as it affects the relators in this cause,
that it is perjury in its most revolting form. Revenge has

WILLIAM F. DOWD. 405
cohabited with perjury, and this prosecution is the offspring of
the loathsome amour.
" The law officer of the crown and the other gentlemen of the
bar who conduct this prosecution have been fatally and cruelly
deceived. Even the Governor of the State, out of the secret
service fund of $50,000, has employed able counsel to aid this
prosecutiou in crushing the jurisdiction of the courts of Missis
sippi. I am sure that able lawyer and statesman -was as cruelly
deceived in reference to the true objects and aims of this prose
cution as the other gentlemen of the bar who conduct it.
' ' Before entering on the discussion of the main, vital issue in
volved in this cause, I propose to refer briefly to the law of Bail
under the Constitution and laws of the United .States.
' ' I. Bail in all cases, except capital crimes, is a matter of right.
In capital cases it is a matter in the sound discretion of the court.
For this purpose testimony was introduced : The law requires
that on the return of the writ of habeas corpus the judge or
court shall hear ' testimony, and inquire into the nature and
circumstances of the case, aud the usages of law.' 1 Brightly 's
Digest, 90-91 ; Habeas Corpus Act, ib., 301-2 ; 2 Brightly 's
Digest, 213, 214 ; Conkhng's Treatise, 577-579.
" In aUowing a traverse of the return, and the admission of
evidence on the trial of a writ of habeas corpus, the acts of Con
gress are more hberal and comprehensive than the laws of Mis
sissippi. See Code, 365.
" The writ may be granted after indictment as well as before,
and the only difference consists in the fact that after indictment
the court may bail but not discharge on the evidence, if the
court has jurisdiction. But in all cases when the court has no
jurisdiction, or if the relators under any circumstances are held
in custody without authority of law, they are entitled to a final
discharge. " The foUowing cases in the United States courts sustain these
views: Ex parte Milligan, 4 Wallace, 118; Kearn's case, 20
Curtis, 89-91 ; United States vs. Hamilton, 3 Dallas, 17 ;
ex parte Yeager, 8 Wallace, 94.
" The object of imprisonment is not to punish, but to secure
the attendance of the prisoner at the final trial. It is brutal aud
26

406 BENCH AND BAR OF MISSISSIPPI.
inhuman to punish by imprisonment or otherwise before the
party is found guilty. 8 Barbour, S. Court R., 162, 3-8.
" In Mississippi the same principles are settled in the foUow
ing cases: Ex parte Moore, 36 Miss. R., 137 ; Beal vs. The State,
39 Miss. R., 715 ; Wray's case, 30 Miss. R., 673.
" Are not the parties entitled to a discharge in this case, when
the indictment is manifestly founded on perjury ?"
Colonel Dowd then referred to the testimony, and called atten
tion to its contradictions, discrepancies, and the false identifica
tion on the part of the witnesses who had pointed out as being
among the prisoners whom they recognized at the killing, cer
tain gentlemen of Oxford wdio were bystanders, and had never
been in Monroe County. He then proceeded :
" Under the ruling of the court I am forbidden to comment
on the testimony, and I forbear. I only refer to it to maintain
the proposition that the true intent, meaning, aud spirit of the
acts of Congress require the court to discharge a prisoner when
it is clear that he is held in custody by an indictment conceived
iu sin and shapen in iniquity ; procured, upeld, aud maintained
by perjury.
"II. This indictment, stripped of the immaterial verbiage,
amounts to nothing more than the ordinary indictment in the
State courts, against citizens of Mississippi, for the murder of a
citizen of Mississippi. It is wholly unauthorized by the Consti
tution or laws of the United States, and if valid, the Federal
courts have exclusive jurisdiction of every case of trespass upon
person or property, of all assaults and batteries, arson, burglary,
robbery, and larceny, committed in the respective States. The
first count of the indictment was ' that the defendants banded
and combined together, and went in disguise upon the premises
of Alexander Page, formerly a slave, aud a man of color, now
a freedman, aud who was, under the Constitution of the United
States, entitled to the protection of his life, liberty, and prop
erty, and with intent to oppress, threaten, and intimidate him,
the said Alexander Page, and with intent to hinder and prevent
him in the protection of. his life and liberty, secured to him by
the Constitution of the United States, and then and there did
kill and murder the said Alexander Page.'

WILLIAM F. DOWD. 407
" Nothing can exhibit in a stronger light the desperate straits
to which the accomplished pleader, who drew this indictment,
was driven, than the extraordinary fact that it is attempted to
be founded on a provision of the Constitution of the United
States ! Its conclusion is not ' against the form of the statute
in such case made and pro-vided,' but its language is ' contrary
to the provision of the Constitutiou of the United States.'
" The bar and bench of the world will be startled at the an
nouncement that au indictment is founded on the organic laws
of the land, on a constitutional provision, on a supposed grant
of power to Congress, aud not on a Congressional enactment to
carry that power into execution. An indictment founded on
Magna Charta ! An indictment founded on Petition of Rights !
But it is not sought to be fastened on a constitutional grant of
power to Congress, but on a prohibition, a limitation on the
power of the States.
" The last clause of the first section of the Fourteenth Amend
ment declares that ' no State shall deprive any person of life,
liberty, or property without due process of law ; nor deny to
any person within its jurisdiction the equal protection of the
laws. ' The pleader could not weave, twist, or work this lan
guage into the indictment. He was therefore driven to the
necessity of averring that the relators committed the deed
' -with intent, there aud theu, to hinder aud prevent him, the
said Alexander Page, in the protection of his life and liberty, so
secured to him by the Constitution of the United States.'
" To prevent\nxn in ^s protection. Not to hinder or prevent
the Government from the exercise of its power as a protector ;
that would be treason, or akin to it. But poor Page was killed
to prevent him from his owu protection. I never heard of but
oue such perversion of language. The brave hunter, holding a
bear by the ears in a canebrake, finding his strength faihng,
shouted to his companions to run up to him and heVp him
let go.
" There ar'e propositions iu morals, law, and philosophy that
heed only to be stated to receive the unqualified condemnation
of mankind.
" The second count in this indictment is founded on the sixth

408 BENCH AND BAR OF MISSISSIPPI.
and seventh sections of the Enforcement Act, and avers, in
substance, that the relators, citizens of Mississippi, disguised
themselves and went on the premises of Alexander Page, another
citizen of Mississippi, ' with intent to hinder sind prevent him
iu the enjoyment of his personal security, secured to him by
the laws of the United States, and him, the said Page, did then
and there, on the 29th of March, 1871, did kill and murder,
contrary to the form of the statute,' etc. This is nothing more
nor less than an indictment for murder in the ordinary form,
with a detail of the circumstances of aggravation, which is not a
violation of any statute of the United States.
" The Fifth Amendment of the Constitution of the United
States is not a grant of power to legislate for the protection of
the life, liberty, and property of persons and individuals in
the several States, but is a prohibition on the power of Con
gress. . . .
" For the first time in the political and judicial history of this
country, it is boldly affirmed and plausibly maintained that the
prohibition of a power means a grant of power. If this mon
strous proposition cannot be maintained, the whole prosecution
falls to the ground.
' ' The legal term ' grant ' has its origin in the feudal system.
It was a gift or conveyance from the crown, clothed with abso
lute power, of lands or franchises, or special privileges to inferiors,
or to the subjects of its bounty. What is a prohibition ? It is
to interdict, to forbid. The sovereign, the creator, commands
the creature, ' Thus far shalt thou go, and no farther.' To
confound the two terms, aud make prohibition mean grant, is to
confound all previous meanings and use of words, and to insult
the understanding of mankind.
"It is impossible to form a correct opinion of thpse words
without a recurrence to first principles and to contempora
neous history.
" When we attempt to construe the constitutions and laws of
European States, we must start with the theorem that all power
was vested in the crown. This power is supposed to be derived
from God himself, and kings reign by divine right. All the
powers enjoyed by their legislative bodies, all the privileges

WILLIAM F. DOWD. 409
and immunities enjoyed by citizens or persons, are grants from
the king, voluntarily made, or wrung from his reluctant grasp
at the point of the sword by powerful barons, or by the simul
taneous uprising of a whole people, amid the throes, agony, and
blood of a mighty revolution.
" But on this continent the people are sovereign, and the
source of all power. First the State Governments were formed,
and certain powers were granted to them. Then the States aud
the people created the Government, the Constitution of the
United States, and granted to it certain other powers. The
original Constitution was mainly a grant of powers, with a few
limitations on the powers of the States. Great alarm was mani
fested, and a -widespread dissatisfaction expressed, that the new
Government under its implied powers would destroy the liberties
of the people and overthrow the State Governments. To still
this gathering storm, the first ten amendments of the Constitu
tion were proposed and adopted.
"AU these amendments have received a judicial construction,
and are declared to be prohibitions on the powers of the Gov
ernment, and not grants of power from the people of the
States. " The Ninth Amendment declares that the enumeration in the
Constitutiou of certain rights shall uot be construed to deny or
disparage others retained by the people.
" The Tenth Amendment declares that ' the powers not dele
gated to the United States, nor prohibited by it to the States,
are reserved to the States respectively or to the people. '
" There stand the solid, massive granite walls between the re
served powers of the States and the people and those delegated
to the General Government. They may be battered down with
cannon ; the usurpations of Congress, combined with a corrupt
or cowardly judiciary, may undermine them ; but they shall
stand while a remnant of the spirit of our honored ancestry
lives in the hearts of the American people. It is certain they
will never fall before the blasts of political ram's-homs, although
the circuit may be completed more thau seven times.
" Grant, for the sake of argument, that these several prohibi
tions on the legislation of Congress, on the powers of the Federal

410 BENCH AND BAR OF MISSISSIPPI.
Government, may be termed guarantees, and that the rights to
life, liberty, and property are protected iu oue sense, or secu/red
by the prohibitions on hostile legislation on the part of Congress
or the States, the great question remains unanswered, Do those
limitations of power confer on Congress the power to legislate
or provide for the punishment of local crimes or offences com
mitted iu the several States ?
" Alexander Hamilton, one of the authors aud great expound
ers of the Constitution, declared that these prohibitions embraced
in the first ten amendments of the Constitution were unneces
sary ; because, he said, they are in reference to powers not
granted by the people of the States ; and how can Congress
legislate on any subject unless the power is conferred in express
terms or by necessary implication ?
' ' And with the ken of a prophet he predicted the very scene
that is being enacted here to-day, when he declared that, if these
amendments were adopted, the enemies of constitutional liberty
might seize upon them as a pretext to legislate upon forbidden
subjects. " The Constitution was ordained and established by the people
of the United States for themselves, for their own government,
and not for the government of the individual States. Each
State established a constitution for itself, and in that constitution
provided such limitations and restrictions on the powers of the
particular government as its judgment dictated. The people
of the United States framed such a government for the United
States as they supposed best adapted to their situation, and best
calculated to promote their interests. The powers they con
ferred on this government were to be exercised by itseK. The
limitations on power, if expressed in general terms, are naturally,
and we think necessarily, applicable to the government created
by the instrument. They are limitations of power granted in
the instrument itself ; not of distinct governments framed by
different persons, and for different persons. These restrictions
are obviously intended for the exclusive purpose of restraining
the exercise of power by departments of the General Govern
ment. Some of them use language applicable only to Congress ;
others are expressed in general terms.

WILLIAM F. DOWD. 411
" In every inhibition intended to act on State power, words are
employed which directly express that intent.
"It is universally understood, it is a part of the history of the
day, that the great revolution which established the Constitution
of the United States was not effected without immense opposi
tion. Serious fears were entertained that those powers, which
the patriot statesmen, who then watched over the interests of
our country, deemed essential to union, and to the attainment of
those invaluable objects for which the union was sought, might
be exercised in a manner dangerous to liberty. In almost every
convention by which the Constitution was adopted, amendments
to guard against the abuse of power were recommended. These
amendments demanded security against the apprehended en
croachments of the General Government. Baron vs. VAtj of
Baltimore, 7 Peters' R., 243-7, 8, 9.
" Yet the law officer of the crown absolutely quotes this de
cision in support of the apprehended encroachments of the
General Government ! The same doctrines are maintained in
Puryear's case, 5 Wallace, 476 ; Twitchell's case, 7 Wallace,
324 ; Fox vs. State of Ohio, 5 Howard, 434 ; Withers vs. Buck
ley, 20 Howard, 90, 91.
" In the original Constitution, there are prohibitions on the
powers of the States as well as on the powers of the Federal Gov
ernment (citing the 10th section of the 2d article).
" It is a remarkable fact that Congress in all its legislation, ex
tending over nearly a century, has never attempted to legislate
against a sovereign State, or on subjects embraced within the
several limitations on the State and National Governments before
enumerated. " The States have often passed laws impairing the obligation of
contracts, aud emitted bills of credit. Did Congress ever com
mit the inconceivable folly of attempting to make it a criminal
offence, and punish the individuals for obeying the laws of their
State ? The honor of asserting such a power remained for this
prosecution. In the century of our national existence, which
has nearly passed away, lived Hamilton, and Jay, and Jefferson,
and Adams, and Madison, and Clay, and Webster, and'Calhoun,
and Marshall, and Story, and Parsons, aud Taney, and last.

412 BENCH AND BAR OF MISSISSIPPI.
though not least, our own great Sharkey. It never occurred to
auy of these illustrious statesmen and jurists that a prohibition
was equivalent to a grant.
" But the learned gentlemen for the prosecution gravely insist
that Congress has passed laws to punish individuals for counter
feiting coin of the United States, a power that is prohibited to
the States.
" They seem strangely to forget that this legislation is not
founded on the limitation on the power of the States, but upon
an express grant of power in the 8th section of the 2d article :
' Congress shall have power to coin money, regulate the value
thereof,' etc. This power was vested in the Federal Govern
ment, and prohibited to the States. It is therefore exclusive,
and the power to punish for the crime of counterfeiting is
absolutely necessary to carry into effect one of the most im
portant powers delegated expressly.
"How, then, can the Government of the United States act
upon the clauses in the Constitution imposing limitations on the
powers of Congress and of the States ? If the State of Missis
sippi, in violation of the 1st section of the Fourteenth Amend
ment, shall pass a law ' to deprive any person of life, liberty,
or property, without due process of law, or a law .denying to
any person within its jurisdiction the equal protection of the
laws, ' what would be the remedy ? Can a Congress, filled with
partisans maddened from au exciting contest, determine whether
the law is a violation of this provision of the Constitution or
not ? The Legislature of the State might hurl back her
anathemas at Congress, and demand of her officers the execu
tion of the law. It is mainly for this reason that the Federal
courts of the United States were established. The judiciary is
a co-ordinate department of the Government, and is entirely
independent of the legislative and executive. Au absolute des
pot combines all these powers ; and it is immaterial, for all the
practical purposes of life, whether this despot is called a kaiser,
au emperor, a king, a czar, a parliament, a congress, or a presi
dent. ' ' Every government must in its essence be unsafe and unfit for
a free people where a judicial department does not exist with
powers coextensive with the legislative department. Where

WILLIAM F. DOWD. 413
there is no judicial department to interpret, pronounce, and
execute the law, to decide controversies, and to enforce rights,
the government must either perish by its own imbecility, or the
other departments of the government must usurp powers ior
the purpose of commanding obedience, to the destruction of
liberty. The will of those who govern -will become, under such
circumstances, absolute and despotic ; and it is wholly imma
terial whether such power is vested in a single tyrant or an
assembly of tyrants.
" Montesquieu says that there is no liberty if the judiciary
power be not separated from the legislative and executive pow^-
ers. Personal security and private property rest entirely upon
the wisdom, the stability, and integrity of courts of justice. A
despotism is rendered more intolerable and oppressive when the
actual administration of justice is dependent upon caprice or
favor, upon the will of the rulers, or the influence of popularity.
When power becomes right, it is of little consequence whether
decisions rest upon corruption or weahness, upon accidents of
chance or upon deliberate wrong. A judicial department is in
dispensable to administer justice and protect the innocent from
injury and usurpation.
" The power of interpreting the laws involves necessarily the
function to ascertain whether they are conformable to the Con
stitution or not ; and if not so conformable, to declare them
void and inoperative. As the Constitution is the supreme law
of the land, in a conflict between that and the laws, either of
Congress or the States, it becomes the duty of the judiciary to
follow that only which is of paramount obligation. Otherwise
the acts of the legislative and executive would in effect become
supreme and uncontrollable, notwithstanding any prohibitions
or limitations contained in the Constitutiou, and usurpations of
the most unequivocal and dangerous character might be assumed
without any remedy within the reach of the citizens. Story on
the Constitution, Sec. 1573 ; Federalist, No. 78 ; 1 Kent's
Corns., Sec. 20, p. 420-6.
" To make these great principles enduring and effective, the
judges hold their offices for life, and are regarded as the bul
warks of the Constitution against legislative encroachments.
" It is, then, a naked, unmitigated usurpation of power for

414 BENCH AND BAR OF MISSISSIPPI.
Congress to declare, under the 1st article of the Fourteenth
Amendment, that the law of a State impairs the rights of
personal security and private property.
" But it is contended that if Congress cannot indict and punish
a State, it can usurp the powers of the judiciary, determine when
a State shall deprive by law any person of life, liberty, or prop
erty, and theu proceed to punish the officers and people of the
State for obeying its laws, by direct legislation.
" To arrive at this monstrous perversion, the words of the Con
stitution are stricken out, the word State is obliterated, aud the
word person inserted in its stead, and it is made to read thus :
' Nor shall any person iu any State deprive any other person of
life, liberty, or property without due process of law,' and
Congress inay enforce this by appropriate legislation. This
would strike down at one blow the entire judiciary system of
the States. If the eminent lawyers who compose the Judiciary
Committee of the Senate had been bereft of all patriotism, a
proper regard for their own reputations, and a decent respect
for the opinions of mankind, would have deterred them from
the commission of a deed so fatal to the liberties of their coun
try. Does any sane man believe that the great States of the
Union would have committed suicide by the adoption of such an
amendment ? Congress could immediately have passed laws, to
punish murder, arson, larceny, assault and battery, to allow
actions for damages for trespasses to the 'person and. property iu
the Federal courts, aud, as will be hereafter shown, could make
the jurisdiction of these courts exclusive.
" When the law officer of the crown and the learned retained
counsel tell this court ; when the Congress of the United States
declare, in the Enforcement Bill, that the laws of the United
States — the Government of the United States — grants to the
people their rights and privileges, they openly throw around
their shoulders the imperial purple, aud trample do-wu aU that is
sacred and dear to every American citizen.
' ' Can the creature grant to the creator ? The people, the sov
ereign people of the United States, and the States, have granted,
delegated, certain powers to the Federal Government,- and re
served all others to themselves. The ungrateful creature now

WILLIAM F. DOWD. 415
turns on its creator, and says, ' I grant you rights and privi
leges ! ' It is blasphemy I But Congress never intended to
give birth to suoh a legal and moral monster. It is an unwar
rantable perversion of the Constitution and laws, and is the off
spring of this abominable prosecutiou. When we shall here
after show the true intent and meaning of the 6th section of
the Enforcement Act, I expect to defend successfully the Gov
ernment of my country from this aspersion on its good name
and fame.
" Admitting, for the sake of argument, that the rights of the
people of the several States to life and property are secured by
the limitation, in the Constitution, on the powers of the States
and of Congress, that the rights, privileges, and immunities of
American citizens weee geanted by the soveeeign people, and
defined in the Constitution, counsel for the prosecution assume
and tahe for granted the whole question at issue when they
say that Congress can pass laws to punish local offences against
person and property, and confer on the Federal courts juris
diction to try persons in the several States for murder, larceny,
aud trespass to person and property.
" ' The powers not delegated to the United States by the Con
stitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people. ' Tenth Amendment
Const. " Where did the power to try persons in a State for a violation
of the criminal laws originally reside % It is not denied that it
belonged exclusively to the Legislature of the State to define
crime and prescribe its punishment ; to the courts of the
several States to enforce law thus adopted, before the formation
of the Federal Government. The right to life and property, the
power of the State courts to punish crime, belonged to the peo
ple and to the respective States, when the ground on which our
magnificent national Capitol stands was a wilderness. It came
-with the Mayflower ; it fastened on Plymouth Rock ; it was the
solid, imperishable granite, laid as the foundation of every
American State. The right to life a/nd property are not words
of modem origin ; they are older than the common law of Eng
land ; they are recognized — not granted — by the law of Moses,

416 BENCH AND BAR OF MISSISSIPPL
and their history goes back to the origin of the human race, and
of all human government. This right is a part of the common
law of all nations through all time. It was a part of the com
mon law before it was written, and is interwoven as a part and
parcel of the British constitution. When and wliere did the
States, or the sovereign people, delegate to Congress or to the
Federal courts the power to try local offences against life and
property ? Where shall this ragged, naked, wretched, vagrant
power flnd a foothold in the Constitution and laws of the land \
It is flrst located in the 6th section of the Enforcement Act ;
driven from this, it seeks a lodging in the 4th article of the
original Constitution, providing that citizens of each State shall
be entitled to all the privileges and immunities of citizens of the
several States ; driven from this, like the -vital spark in the dying
body, it runs through all the lanes and avenues of the Constitu
tion and the laws, and shrieks for help, but shrieks iu vain : it
dies right here, in this court-room, on the very spot of its origin.
' ' Judge Story says, in his immortal Commentaries : ' The Gov
ernment of the United States is one of limited powers, lea-ving
all residuary general powers in the State Governments, or to the
people thereof. The jurisdiction of the General Government is
confined to a few general objects which concern the general wel
fare of all the States. The State Governments have full super
intendence and control over the immense mass of local interest in
their respective States, which connect themselves with the feel
ings, the affections, the municipal institutions, and the internal
arrangements, of the whole population.
" ' They possess the immediate administeation of justice in
all oases, civil and criminal, which conoeen the peoperty,
PERSONAL RIGHTS, xsT> peaceful pursuits of their mon citizens.
The powers of the States extend to all objects which in the
ordinary course of human affairs concern the LIVES, liber
ties, and property of the people ! ' Story on the Constitution,
Sees. 510-13 ; Federahst, No. 45 and No. 17.
" With what overwhelming power do these eloquent words,
this massive logic, fall on the arguments of the prosecut
ing counsel ! With the highest respect for their learning and
abiUty, I must be allowed to say that, however lofty their aspira-

WILLIAM F. DOWD. 417
tions may be, however high they may elevate the structure of
professional fame, it will never rise higher thau one Story !
" Let us keep our eyes steadily on the great question. It is not
whether the sovereign people guaranteed or secured iu the Con
stitution rights of life and property, by prohibitions and limita
tions ; not whether they defined citizenship and authorized Con
gress to legislate on the subject ; but did the States or people
grant or surrender to the Federal Government the power to
punish local crimes aud misdemeanors agaiftst personal security
and private property ?
' ' If this power was never surrendered by the States, or con
ferred by the people on Congress, it follows that the words used
in the 6th section of the Enforcement Act, to the effect that if
two or more persons conspire and go in disguise on the premises
of another, with intent to intimidate any citizen, with intent to
hinder his free exercise and enjoyment of any right or privilege
granted or secured to him by the Constitution or laws of the
United States, signify au unmitigated, naked usurpation of power
by Congress, and it is the solemn duty of this court to declare it
null and void. But, taking the whole act together, it is mani
fest that this was not the intention of Congress, as we shall here
after demonstrate.
" ' V. All persons bom or naturalized in the United States and
subject to the jurisdiction thereof are citizens of the LTnited
States, and of the State wherein they reside.' Fourteenth
Amendment, Sec. 1. This is nothing more nor less than a clear
definition of the class of persons who are citizens of the United
States. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of th6 United
States. This, as we have seen, is only a limitation on the legis
lation of the States.
" The privileges and immunities of a citizen are wholly distinct
from the absolute rights of the individual. The Constitution
everywhere uses the term person iu reference to the absolute
right of the individual as contradistinguished from the privi
leges and immunities as a citizen. The office of President of
the United States, member of Congress, elector, cabinet offi
cers, judges of the Federal courts, citizens of the United

418 BENCH AND BAR OF MISSISSIPPI.
States, are all created by the sovereign people, with their privi
leges and immunities defined in the Constitution. Granting that
Congress may legislate, and make it a felony to go on the premises
of one of these officers, with intent to hinder him while in the
performance of his duties, and with intent to deprive him of
the privileges and immunities of his office, it certainly does not
follow that the States nave thereby surrendered their power to
the Federal courts to punish a crime against the absolute rights
of the individual. Your Honor is the judge of the district and
circuit courts of the United States ; if two or more persons in
disguise were to enter this court-room, drag you from the bench,
with intent to hinder and prevent you from holding your court,
and discharging the duties of your office, it would be an invasion
of your privileges and immunities as a judge, and Congress can
make it a felony, and the Federal courts might inflict the pun
ishment. But, sir, you are a resident of Lafayette County, Mis
sissippi. If the same disguised persons were to go on your
premises, while not in the discharge of your official duties, with
intent to deprive you of your life, or to commit any other out
rage on the person or property of R. A. Hill, as an individual,
from motives of private vengeance, no impartial lawyer will
contend that the State court would not have exclusive jurisdic
tion to punish the ruffians ; and an indictment could not be
maintained in the Federal court. If the honored and lamented
President Lincoln had been assassinated while on a -visit to his
home iu Illinois, and not in discharge of his official duties,
would that great State have surrendered the right to try the
assassins ? Would any member of the able bar of that State say
that, because of his privileges and immunities as President of
the United States, the Federal courts could maintain jurisdiction
to punish the assassins ?
" A citizen of the United States is as much the creation of the
sovereign people in the formation of the Government, aud his
' privileges and immunities ' are as much the same creation,
as the ' privileges and immunities ' of the office of President or
judge. " Before the formation of our Government a citizen of the
United States had no existence. What are his pri-vileges and
immunities ?

WILLIAM F. DOWD. 419

((

1. First and foremost is the right of suffrage — the right to
vote. This right lies at the foundation of the whole grand
fabric of the Republic. If the murdered man, Page, had been
exercising the right to vote, if any election had been in progress,
if the assassins had gone to his premises to hinder or prevent
him in the right of voting, this would have been au invasion of,
and an attack on, him as a citizen. But this is uot pretended
in the indictment.
" 2. An American citizen has the right or the ' privilege ' to
hold auy office within the gift of the American people. If
either of the ignorant, degraded black -wretches who perjured
themselves on this trial were a candidate for the office of Presi
dent, or member of Congress, or if he held the office. Congress
may legislate on the subject, and the Federal courts may punish
persons for ' hindering and preventing him in the enjoyment
of this right. '
" 3. The 2d section of the 4th article of the Constitution
pro-vides that citizens of each State shall be entitled to all privi
leges and immunities of citizens of the several States. Incom
prehensible as it appears, this pro-vision is claimed by counsel as
a grant or surrender by the several States of the exclusive power
to try local crimes — for murder, arson, larceny, etc. It has too
often received a judicial construction to admit of doubt or con
troversy. " In a given State every citizen of every other State shall have
the same privileges aud immunities which the citizens of that
State possess. They are not subject to the disabilities of alien
age ; they can hold property by the same titles by which every
other citizen may hold it, and no other ; discriminating legisla
tion against them would be unlawful. Lemon vs. The People,
20 New York R., 608.
' ' The right of a citizen of one State to pass through or to reside
in any other State for purposes of trade, agriculture, profes
sional pursuits, or otherwise ; to claim the beneflt of the writ of
habeas corpus ; to institute and maintain actions of any kind in
the courts of the State ; to take, hold, and dispose of property,
either real or personal, maybe mentioned as some of the particu
lar privileges and immunities of citizens which are clearly

420 BENCH AND BAR OF MISSISSIPPI.
embraced in the provision of the Constitution. Corfield vs. Car-
gill, 4 Washington C. C. R., 380-1 ; Smith vs. Moody, 26 In
diana R., 302.
" But it does not embrace privileges conferred by the local
laws of the State. Connors vs. Elliott, 18 Howard, 591 ; Murray
vs. McCarty, 2 Manford, 393.
" Although this provision has stood in the Constitution for
nearly a century, the great statesmen of the times have never
found it necessary to legislate on the subject. Granting that
Congress has the power to impose fines and penalties on a per
son in one State for hindering and preventing a citizen of
another State iu the enjoyment of the privileges and immunities
secured in this clause of the Constitution, how is it possible, by
auy perversion of language, or any rule of construction, to
make its provisions embrace the facts stated in this indictment ?
" Page, the murdered man, was not a citizen of another State,
but of Mississippi ; and, it is alleged, was murdered by citizens of
Mississippi. It was, therefore, a violation of the penal laws of
Mississippi, and not au invasion of the privileges and immunities
of a citizen of another State. Strange as it may appear, on this
extraordinary perversion of this provision of the Constitution is
thro-wn the main argument of the counsel for the Government.
" IV. A citizen of the United States, under our treaty stipula
tions with foreign powers, has the right to travel, trade, and
carry on extensive commercial transactions everywhere beneath
the star-lighted heavens — in the streets of London, or Peking, or
St. Petersburg, on the land or on the sea ; he has only to ex
claim, ' I am au American citizen,' aud he is instantly covered
with a shield no earthly power dare strike or assault. This was
oue of the proudest boasts of Rome. The protection extended
to her citizens is celebrated in story and song ; and our Federal
Government deserves all the eulogies thus bestowed on that
celebrated empire. Yet while Rome armed her proconsuls
with almost absolute power for the government of her prov
inces, she never interfered with the local administration of
justice. " If a State shall make or enforce a law which shall abridge
the privileges or immtmities of a citizen of the United States,

WILLIAM F. DOWD. 421
as we have before seen, it then devolves on the judicial depart
ment of the Government, the Federal courts, to determine on the
merits of the law, and declare it unconstitutional and void.
" It will thus be seen that there is a wide field for the legisla
tion of Congress to protect and maintain the rights, privileges,
and immunities of an American citizen without usurping tho
reserved powers of the States to punish jyersons or individuals
for local offences against the criminal laws of the State.
" Half the controversies in the world arise from a misappre
hension of the meaning of terms. What is the meaning of the
phi-ase ' citizen of the United States ' 'i He is a member of
the political body which holds the power and conducts the Gov
ernment through its representatives. He is, therefore, a constit
uent member of the sovereignty. Scott vs. Sanford, 19 How
ard, 404-5."
Colonel Dowd here referred to the definition of this phrase, as
already discussed by one of his associates, and theu proceeded :
" What is meant by the 5th section of the Fourteenth Amend
ment, which declares that Congress may enforce by upprcprlate
legislation the provisions of the article ? The word ' appropri
ate' has received a judicial constmction. \t means that which
is necessary. " The 1st section clothes Congress with the power to protect
the citizen as such in the enjoyment of his political rights.
Under the 2d section it may apportion representatives among
the States. Under the 3d Section it may legislate for the pun
ishment of the class of persons described, for accepting or hold
ing an office contrary to its provisions. The 4th section is but a
limitation on the power of Congress and the States, and no legis
lation can be framed or had, or is necessary or appropriate.
" Having thus demonstrated that the sovereign people and the
States have only conferred on the Government and Congress the
power to protect its officers and citizens as such, and has with
held among the reserved powers the exclusive right to the States
to define and punish all offences against the person and property
within the limits of the States respectively, we now come to the
consideration of the Enforcement Act, and the Civil Rights
Bill, which cbustitutes a part of it."
27

422 BENCH AND BAR OF MISSISSIPPI.
Of these Colonel Dowd here entered upon an elaborate dis
cussion, in which he commented at length upon their various
features and their import, and contended that so far as they
affect the case at the bar, these laws were not intendod to violate
the provisions of the Constitution ; but that, if the Enforcement
Act admitted the construction placed upon it by the counsel for
the Government, it was a palpable violation of the Constitution,
a naked, unmitigated usurpation of power, subversive of the
liberties of every American citizen, and the Federal courts must
declare the act unconstitutional and void.
That the Civil Rights Bill was aimed solely at the hostile leg
islation of some of the States which were reluctant to admit the
full equality of the negro race before the courts, and was never
intended to give the Federal courts jurisdiction of an assault
growing out of a personal feud between citizens or persons in
the same State.
" It is not pretended, ' ' said he, ' ' that the relators murdered
Alexander Page under the color of any law or custom of the
.State of Mississippi, which deprived him of his equal rights as a
citizen, and for which the 2d section of the act provides a remedy
and prescribes the punishment of fine and imprisonment. But
the astounding proposition is maintained by the counsel for the
Government that the negro is not only made the political equal
of the white man, but special privileges are conferred on him
by this act, in the teeth of the statute that he shall have the
EQUAL benefit of all laws. It is insisted that the negro wife
may prosecute the murderers of her husband in the Federal
courts ; but it is conceded that if a negro murders a white man,
¦or oue white man another, or a black fiend commits rape on a
white woman, then the white friends of the victim cannot prose
cute the offender in the Federal courts, but are confined to the
State courts ! This is technically styled ' Equality before tbb
LAW ! '"
After commenting at length, and in an able and exhausting
manner, upon the intention and proper construction of the va
rious features of these acts, Colonel Dowd proceeded as fol
lows :
" Vll. Nothing can be .more conclusive. Nothing which the

WILLIAM F. DOWD. 423
human tongue can utter will so utterly annihilate the whole
argument of the counsel for the prosecution as a careful perusal
of the 8th section of the Enforcement Act. It provides
that ' the district courts of the United States, within their re
spective districts, shall have, exclusive of the courts of the
several States, cognizance of all crimes and offences committed
against the provisions of this act.' The Civil Rights Bill con
tains the same provision. If, then, the crime of murder, or
arson, or burglary, or assault and battery, is committed in Mis
sissippi by one citizen of the State against another, the offence
can only be tried in the Federal court ! If a trespass is commit
ted by oue citizen of Mississippi upon the property of another,
both being citizens of the United States, the Federal court has
exclusive jurisdiction. Counsel seek to avoid the force of this
blow by asserting that this section of the act is unconstitu
tional 1 This will not do ! If Congress has the power to define
a crime, and fix its punishment, and to confer jurisdiction on
the Federal courts, it has the power to make that jurisdiction
concurrent with the State courts or exclusive in the Federal
courts. This is as well settled as any rule in the annals of ju
dicial decisions. Thus, in the Judiciary Act of 1789, the jurisdic
tion of the Federal courts to entertain suits between citizens of
different States is made concurrent with the jurisdiction of the
State courts. It was for a long time a disputed question
whether, in a case where the Constitution authorized Congress
to invest the Federal courts with jurisdiction, it had the power
to make that jurisdiction concurrent with the State courts. But
it has never been questioned that Congress might make the juris
diction of the Federal courts exclusive. The iUustrious Story
maintained the former, and the majority of the court the lat
ter view.
" In his able dissenting opinion, iu the case of Moon vs. Hous
ton, 5 Wheaton's R. , 47-76, Judge Story says : ' Can the national
courts be ousted of their jurisdiction by the trial of the offender
in a State court ? Would an acquittal in a State court be a good
bar upon an indictment for the offence in the national courts ?
Can the offenders against the letter of the Constitution of the
United States be subject, for the same offences, to be twice put

424 BENCH AND BAR OF MISSISSIPPI.
in jeopardy of life and limb ? These are questions which can
not be answered in the affirmative.' "
Colonel Dowd here read and commented at length upon the
opposing opinions of Judge Story, Judge Kent, and other au
thorities, upon the question of the jurisdiction of the Federal
courts, and the power of Congress to make it concurrent or
exclusive. " It follows, inevitably — and uo human ingenuity cau avoid
the conclusion — that if this indictment can be maintained on its
allegations, and the proof taken in the cause, that a citizen of
Mississippi who murders another cannot be prosecuted aud con
victed aud punished in the State courts ; if the doctrine con
tended for is true, the rights of property are as sacred as the
rights of the person ; are protected by the same constitutional
and legal guarantees ; and Congress may enact laws to punish,
or provide for damages, iu every case where the rights of prop
erty are invaded. Let this be established as the law of the land,
and every State court crumbles into dust. This court could not
try all cases of this character now pending in Mississippi in a
half -century. The Federal Government must make every cir
cuit in the State a district, and appoint its clerks, marshals, and
judges. It is only necessary to contemplate the terrible picture
to place on it the seal of your unqualified condemnation."
At this point Colonel Dowd entered upon the conclusion of his
argument, in which he rehearsed the character aud circum
stances of the prosecution, and contended that the officers of
Monroe County and the courts of the State were thoroughly
disposed and fiUly competent to do their whole duty. He de-
.picted in glowing terms the inevitable consequences had this
flrst effort to strike down the entire judiciary of a State been
made in New York, in California, or in Indiana. " This is not
the cause alone, ' ' said he, " of a whole neighborhood of honorable
gentlemen. Every American citizen has a deep interest in the
struggle. If the jurisdiction is maintained, the Government of
the United States is clothed with absolute aud despotic powers.
I plead for every American citizen ! I plead for the generations
who are to come after us! I plead the cause of justice and ¦
human freedom all over the habitable globe !"

WILLIAM F. DOWD. 425
Colonel Dowd concluded his argument with a lengthy and elo
quent peroration, aud closed with the following appeal to the
court :
" From the final trial there is no appeal from your decision.
The terrible responsibility rests on you alone. Discharge these
men ! Order them, if you please, into the custody of the State
officers. I pledge myself they shall stand the trial. I know
your learning and abihty as a judge, your purity as a man. You
stood by the Union in the darkest hours of its fortunes. Stand
by its Constitution now ! The judicial system of my State is the
sun and centre of her form of government. Let it shed its
light ! Let it not be shorn of its beams, remaining iu a baleful,
disastrous eclipse — an object of derision to its enemies and of
melancholy pity to its friends ! Rather let the mailed hand of
the warrior strike it from existence. Rather let a usurping Con
gress blot it out at one stroke. Let it go down, like the sun in
our own Southern seas, in one unclouded blaze of living light !
Plunge us at once iu the dark, moonless, rayless, starless night
of anarchy and blood, upon which uo dawn shall ever rise forever
and ever. Then let eternity place its seal on the awful crime !"
The prosecution remained disarmed and paralyzed, but the
issue was too momentous ; the prisoners were not discharged,
nor remanded to the custody of the State authorities, but they
were admitted to bail. It is a remarkable fact that soon after
this trial Colonel Dowd was invited by the Government to accept
the position of Assistant District- Attorney to aid in the- prosecu
tiou of all other cases which might arise in the Northern District
of Mississippi under the Civil Rights Bill and Enforcement Act.
" In my troth," said Queen Elizabeth, who happened to be
iu the Court of King's Bench when Sir Thomas Egerton, after
wards Lord EUesmere, was arguing a case against the Crown, " he
shall never plead agaiiist me again," and immediately caused
him to be made oue of her counsel. And the Government did uot
intend that Colonel Dowd should again appear in such a damnify
ing attitude to its cherished purposes. To his occupancy of this
position his friends, and particularly his partner. Colonel Sale,
were strenuously opposed, the latter declining to participate
either in its duties or the large fees promised. But Colonel Dowd

426 BENCH AND BAR OF MISSISSIPPI.
contended that it was a province of his profession to defend
thieves and murderers for pay, and he did not see why he
should not do the same for a corrupt government ; but whether
he ever accepted the appointment or uot, he never appeared
before the Federal court in that capacity.
Colonel Dowd possessed a vivid and fruitful imagination,
which often clothed his oratory in the garb of hyperbolism, yet
his illustrations were so clear and his imagery so apt that the
most over-wrought coloring. could not detract from the symmetry
of his .figures.
A few years before his death he was invited to address the
Ladies' Memorial Association of Aberdeen. This was on Dec
oration Day, May 18th, 1874, an occasion which quickened the
loftiest seutiments of his nature and called forth the most
eloquent coruscations of his genius. After eloquently sum
ming the sentiments and motives which actuated the South
ern people throughout the mighty struggle, and depicting in
terms of lightning flash the grandeur of patriotic martyrdom,
and the glory achieved by the Southern soldiery, with a sublime
gradation he turned from the dry bones of the dead but im
mortal past to the fresh and living present, to the budding pros
pects of the opening future, and compared the Union to the
river St. Lawrence, "which, taking its rise in the Arctic re
gions, frozen by ice, retarded by hills, persistently forces its way
until it widens into grand rivers, magniflcent lakes, and inland
seas, covered with the commerce of half a continent, aud calmly
floats past splendid cities, populous towns, green meadows, and
supplies the cattle upon a thousand hills.
' ' Suddenly the great river reaches the rapids of Niagara. With
the energy and power of the Gulf Stream, roaring like the ocean,
furious and exasperated, it rushes to its doom over the terrible
falls, shaking the solid rock-ribbed earth as it goes down ;
shivered into foam and spray, wave beating against wave, cur
rent against current, the mass plunges into the Devil's Hole,
where, governed by no laws, flUed with the wrecks of the
dead past, wild, confused, aud distracted, they break themselves
in vain against the granite walls, and madly whirl aud rave,
round and round, in one dread maelstrom.

WILLIAM F. DOWD. 427
" Do the waters thus remain in this gulf of despair ? No !
by the eternal law, ever restless, ever moving, ever striving, they
gradually find their way out. Again the grand river moves
smoothly ; again the wealth and commerce of half a continent
floats on its surface and gladdens its shores. It glides through a
thousand beautiful, lovely islands, aud majestically enters the
great ocean."
Colonel Dowd had but one fault, and one which often invades
the purlieus of professional eminence. In his later days he be
came addicted to a rather excessive use of stimulants, not, how
ever, iu a spirit of debauchery or frivolous conviviality, but to
quicken his overburdened physical energies, and to satisfy a
cra-ving for mental excitement which the monotonous surround
ings of professional routine no longer afforded.
He was a kind, chivalrous, aud generous man, v/ith a heart
dehiscent to every touch of charity, and a sympathy sensitive to
every appeal of misfortune. In his private and social relations
he was an affectionate husband, a kind father, and an everlast
ing friend.

CHAPTER XII.

THE BAR— EMINENT LAWYERS— 1850-1880.
FULTON ANDERSON  GEORGE L. POTTER  WILLIAM A. LAKE  JAMES
PHELAN  WILLIAM R. BARKSDALE  HARVEY W. WALTER.

FULTON ANDERSON.
The subject of this sketch was born in Knoxville, Tennessee,
on the 8th of March, 1820, aud was educated at the University
of Nashville, where he was graduated in 1836, at the early age
of sixteen years. On completing his education he studied law
under his father. Judge William E. Anderson, and at the age of
nineteen obtained license to practice his profession.
In 1840 he removed to Mississippi and settled at Raymond,
in Hinds County, where, during that year, he made his first pub
hc speech in advocacy of the election of Harrison and Tyler.
So brilliant were the manifestations of his genius and so rapid
his professional ascent, that he soon achieved a distinguished
position at the bar, and in 1847 was chosen State's Attorney
for the district composed of the counties of . Hinds and War
ren ; but disliking the duties of a public prosecutor, he re
signed the attorneyshii) in 1848, and resolved never again to
prosecute for a fee.
In 1848 Mr. Anderson was married to Miss Mary Yerger, an
elegant and accomplished lady, the oldest daughter of Hon.
George S. Yerger, of Jackson, and in 1849 removed to that
place and formed a copartnership -with that distinguished gen
tleman. This was for many years, until the death of Mr. Yer
ger, one of the leading firms at the bar of the High Court of
Mississippi.

430 BENCH AND BAR OF MISSISSIPPI.
As a lawyer Mr. Anderson was learned, diligent, and astute,
and was one of two or three gentlemen whose respective claims
to the meed of superiority at the bar of the High Court was a
matter of contention among their friends. His knowledge of
the law was thorough and comprehensive, and his powers of ar
gument were of the highest order ; indeed, it is doubtful
whether a more logical mind than his could be found in the
annals of the Mississippi bar. He was a gentleman of refined
sentiments and a high sense of honor ; stem and unyielding iu
the performance of duty, he was courteous and suave in his
professional deportment and social etiquette.
During the war Mr. Anderson was elected to the Legislature,
and was a candidate for a seat in the Confederate States Senate,
but was defeated by Hon. J. W. C. Watson. In 1865 he was
appointed by Governor Humphries, under a resolution of the
Legislature, one of the counsel to aid in the defence of ex- Presi
dent Davis, should he be brought to trial for treason by the
United States Government, as was then threatened ; and in the
failure of the occurrence of that event, Mr. Anderson lost an
opportunity for the exercise of his eloquence, his legal learning,
and logical powers, which would have given him, no doubt, a
world-wide renown.
He was in politics an ardent Whig, and was a co-operation
candidate for the Convention of 1861, but was defeated. In
January, 1861, he was sent as a commissioner on the part of
Mississippi to solicit the concurrence and co-operation of Vir
ginia iu the measures of secession ; and it was not for Thucydides
in his elegant delineation of the events preceding the Peloponne-
sian war to describe a more accomplished embassy than that per
formed by Mr. Anderson to the capital of Virginia. His glow
ing summation of the wrongs already inflicted, as well as of
those in process of perpetration, upon the lights of the Southern
States, fell in stirring strains upon the proud ears of the patri
otic gentry of the Old Dominion ; and while they listened to
his eloquent appeals to their ancestral renown, the statesmen of
the old school recalled the glory of other days, and felt that the
time had arrived for rekindling the flres of Bunker Hill and of
Yorktown. The foUowing is the full text of his speech dehv-

FULTON ANDERSON. 431
ered before the Convention of Virginia, in the city of Richmond,
February 18th, 1861 :
" Gentlemen of the "iJonvention : Honored by the govern
ment of Mississippi with her commission to invite your co-oper
ation in the measures which she has been compelled to adopt for
the vindication of her rights and her honor in the present peril
ous crisis of the country, I desire to express to you, iu the name
and behalf of her people, the sentiments of esteem and admira
tion which they in common with the Avliole Southern people
entertain for the character and fame of this ancient and re
nowned commonwealth.
" Bom under the same confederated government with your
selves, and participating iu the common inheritance of consti
tutional liberty, in the achievement of which your ancestors
played so distinguished a part, we take as much of pride and
pleasure as you, her native sons, in the great achievements and
still greater sacrifices which you have made iu the cause of the
common government, which has in the past united them to you ;
aud nothing which concerns your honor and dignity in the fu
ture can fail to enlist our deepest sympathies. In recurring to
our past history we recognize the State of Virginia in the first
great struggle for independence ; foremost not only in the vindi
cation of her own rights, but in the assertion and defence of the
endangered liberties of her sister colonies ; and by the elo
quence of her orators and statesmen, as well as by the courage
of her people, arousing the whole American people in resistance
to British aggression. And when the common cause had been
crowTied with victory under her great warrior statesman, we
recognize her also as the leader in that great work by which the
emancipated colonies were united under a written constitution,
which for the greater part of a century has been the source of
unexampled progress in all that constitutes the greatness and
happiness of nations ; nor do we forget that that progress has
been due in a pre-eminent degree to the munificent generosity
of Virginia in donating as a free gift to her country that vast
territory north-west of the Ohio River which her arms alone
1 ad conquered, aud which now constitutes the seat of empire,
and, alas, too, the seat of that irresistible power which now

432 BENCH AND BAR OF MISSISSIPPL
erects its haughty crest in defiance aud hostility, and threatens
the destruction of the honor and the prosperity of this great
State. " I desire also to say to you, gentlemen, that in being com
pelled to sever our connection -with the Government which has
hitherto united tis, the hope which lies nearest to our hearts is
that, at no distant day, we may be again joined in another
Union, which shall spring into 'life under more favorable omens
aud with happier auspices than accompanied that which has
passed away ; and if, in the uncertain future which lies before us,
that hope shall be destined to disappointment, it will be the
source of enduring sorrow and regret to us that we cau no more
hail the glorious soil of Virginia as a part of our common coun
try, nor her brave and generous people as our fellow-citizens.
' " Fully participating iu these seutiments, it is with pride and
pleasure that I accepted the commission of my State for the
purpose I have indicated. Though when I consider the gravity
of the occasion, the high interests which are involved, and the
influence which your deliberations are to have upon the des
tinies of present aud future generations, I confess my regret that
the cause on which I am come has not been intrusted to abler
and worthier hands.
" In setting forth to you, gentlemen, the action of my State,
and the causes which induced it, I shall be compelled to speak
in terms of condemnation of a large portion of what has hither
to been our common country ; but in doing so I wish to be
understood as excepting from whatever terms of censure I may
employ that large body of patriotic and conservative men of
the northern section who have, iu all our struggles, manfully
defended the constitutional rights of our section. For them the
people of my State have no cause of complaint, and whatever
the future may bring forth, we shall ever remember their efforts
in behalf of the Constitution aud Union, as we received them
from their ancestors and ours, with admiration and gratitude.
Our grievances are not from them, but from the dominant fac
tion of the North which has trampled them under foot and now
strikes at us from the elevation it has obtained upon the pros
trate bodies of our friends.

FULTON ANDERSON. 433
" I propose, gentlemen, in discharge of my mission to you,
briefly to invite your attention to a review of the events which
have transpired in Mississippi since the fatal day when that sec
tional Northem party triumphed over the Constitution and Union
at the recent election, and afterwards to the causes which have
induced the action of my State.
" On the 29th of November last the Legislature of Mississippi,
by au unanimous vote, called a convention of her people, to take
into consideration the existing relations between the Federal
Government and herself, and to take such measures for the vin
dication other sovereignty and the protection of her institutions
as should appear to be demanded. At the same time a pre
amble setting forth the grievances of the Southern people,
and a resolution, declaring that the secession of every
aggrieved State was the proper remedy, was adopted by a vote
almost amounting to unanimity. The last clauses of the pream
ble and resolution are as follows :
" ' Whereas, They (the people of the non-slaveholding States)
have elected a majority of electors for President and Vice-Pres
ident, on the ground that there exists an irreconcilable conflict
between the two sections of the confederacy, in reference to
their respective systems of labor, and, in pursuance of their
hostUity to us and our institutions, have thus declared to the
civilized world that the powers of the Government are to be
used for Ihe dishonor and overthrow of the southern section
of this great confederacy. Therefore, be it
" 'Resolved, By the Legislature of the State of Mississippi,
that, in the opinion of those who constitute said Legislature, the
secession of each aggrieved State is the proper remedy for their
injuries. '
" On the day fixed for the meeting of the convention, that
body convened in Jackson, and on the 9th of January, 1861,
proceeded to the adoption of au ordinance of secession from the
Federal Union, by which the State of Mississippi withdrew from
the Federal Government the powers theretofore confided to it,
and assumed au independent position among the powers of the
earth, determined thenceforth to hold the people of the non-
slaveholding section enemies iu war, and in peace friends. But

434 BENCH AND BAR OF MISSISSIPPI.
at the same time, and by the same ordinance, it was provided
' that the State of Mississippi hereby gives her consent to form
a Federal Union with such of the States as may have seceded, or
may secede, from the Union of the United States of America,
upon the basis of the present Constitution of the United States.'
" This action of the Convention of Mississippi, gentlemen,
was the inevitable result of the position which she, with other
slaveholding States, had already taken, in view of the antici
pated result of the recent Presidential election, and must have
been foreseen by every inteUigent observer of the progress of
events. " As early as the 10th of February, 1860, her Legislature
had, with the general approbation of her people, adopted the
following resolution :
" ' Resolved, That the election of a President of the United
States by the votes of one section of the Union only, on the
ground that there exists an irrepressible conflict between the two
sections in reference to their respective systpms of labor, and with
an avowed purpose of hostility to the institution of slavery, as it
exists in the Southern States, and as recognized in the compact
of the Union, would so threaten a destruction of the ends for
which the Constitution was formed as to justify the slaveholding
States iu taking counsel together for their separate protection
and safety. '
" Thus was the ground taken, not only by Mississi;ppi, but by
other slaveholding States, in view of the then threatened pur
pose of a party founded upon the idea Of unrelenting and eter
nal hostility to the institution of slavery, to take possession of
the Government and use it to our destruction. It camiot, there
fore, be pretended that the Northern people did not have ample
warning of the disastrous and fatal consequences that would fol
low the success of that party in the election ;. and impartial his
tory will emblazon it to future generations, that it was their
folly, their recklessness, and their ambition, not ours, which
shattered into pieces this great confederated Government, and
destroyed this great temple of constitutional liberty which their
ancestors and ours erected, in the hope that their descendants
might together worship beneath its roof as long as time would last.

FULTON ANDERSON. 435
" But, in defiance of the warning thus given, and of the evi
dences accumulated from a thousand other sources, that the
Southern people would never submit to the degradation implied
in the result of such an election, that sectional party, bounded
by a geographical line which excluded it from the possibility of
obtaining a single electoral vote in Southern States, avowing
for its sentiment implacable hatred to us, and for its policy the
destruction of our institutions, appealing to Northern prejudice,
Northem passions, Northern ambition, and Northern hatred of
us, for success, and thus practically disfranchising the whole
body of the Southern people, proceeded to the nomination of a
candidate for the Presidency, -^vho, though not the most con
spicuous personage in its ranks, was yet the truest representa
tive of its destructive principles.
" The steps by which it proposes to effect its purposes — the
ultimate extinction of slavery and the degradation of the South-
em people — are too familiar to require more than a passing allu
sion from me.
" Under the false pretence of restoring the Government to the
original principles of its founders, but in defiance and contempt
of those principles, it avowed its purpose to take possession of
every department of power — executive, legislative, and judicial
— to employ them in hostility to our institutions. B.y a corrupt
exercise of the power of appointment to office it proposed to
pervert the judicial power from its true end and purpose — that
of defending and preserving the Constitution — to be the willing
instrument of its purposes of wrong and oppression. In the
mean time it proposed to disregard the decisions of that august
tribunal, and, by the exertion of barefaced power, to exclude
slavery from the public territory, the conimon property of all
the States, and to abolish the internal slave trade between the
States acknowledging the legality of that institution.
" It proposed, further, to abolish slavery in the District of
Columbia, aud iu all places within the territory of the several
States, subject under the Constitution to the jurisdiction of Con
gress, and to refuse hereafter, under all circumstances, admission
into the Union of any State with a constitutiou recognizing the
institution of slavery. ^

436 BENCH AND BAR OF MISSISSIPPI.
" Having thus placed the institution of slavery, upon which
rests not only the whole wealth of the Southern people, but
their very social and political existence, under the condemnation
of a government established for the common benefit, it pro
posed in the future to encourage immigration into the public
territory by giving the public lands to immigrant settlers, so as,
within a brief time, to bring into the Union free States enough
to enable it to abolish slavery within the States themselves.
' ' I have but stated generally the outline aud the general pro
gramme of the party to which I allude, without entering into
particular details or endeavoring to specify the various forms of
attack which have been devised and suggested by the leaders of
that party upon our institutions.
' ' That this general statement of its purpose is a truthful oue
no intelligent observer of events will for a moment deny ; but
the general view and purpose of the party has been sufficiently
developed by the President-elect.
"'It is my opinion,' says Mr. Lincoln, 'that the slavery
agitation will not cease until a crisis shall have been reached and
passed. A house divided against itself cannot stand. I believe
this Government cannot endure permanently half slave and half
free. 1 do uot expect the house to fall, but I expect it to cease
to be divided. It will become all one thing or another. Either
the opponents of slavery will arrest its further spread and place
it where the public mind shall rest in the belief that it is in the
course of ultimate extinction, or its advocates -will push it for
ward until it shall become alike lawful in all the States, old as
well as new. North as well as South.'
" The party thus organized on the principle of hostility to
our fundamental institutions, and upon the avowed policy of
their destruction, with a candidate thus representing that prin
ciple and policy, has succeeded in the Presid'ential election, by
obtaining a large majority of the votes of the people of the
non-slaveholding States, and on the 4th of March next would,
unless prevented, have taken possession of the power and pat
ronage of our common Governmient, to wield them to our
destruction. In contemptuous disregard of the principle on
which that Government was founded, and received our assent,

FULTON ANDERSON. 437
to insure domestic tranquillity, promote the general welfare, and
within the limit of its constitutional power to exercise a foster
ing and paternal care over every interest of every section, it
was to become our foe aud our oppressor, and never to pause in
its career of hostility aud oppression until our dearest rights, as
well as our honor, were crushed beneath its iron heel.
" We, the descendants of the leaders of that illustrious race of
men who achieved our independence and established our insti
tutions, were to become a degraded and a subject class under
that Government which our fathers created to secure the
equality of aU the States — to •bend our necks to the yoke which a
false fanaticism had prepared for them, to hold our rights and
our property at the sufferance of our foes, and to accept what
ever they might choose to leave as a free gift at the hands of
au irrepressible power, and not as the measure of our constitu
tional rights.
" All this, gentlemen, we were expected to submit to, under
the fond iUusiou that at some future day, when our enemies had
us in their power, they would relent in their hostility; that fanati
cism would pause in its career without having accomplished its
purpose ; that the spirit of oppression would be exorcised, and in
the hour of its triumph would drop its weapons from its hands
and cease to wound its victim. We were expected, in the lan
guage of your own inspired orator, to ' indulge in the fond illu
sions of hope, to shut our eyes to the painful truth, aud listen
to the song of that siren until it transformed us into beasts. '
" But we iu the State of Mississippi are no longer under that
illusion. Hope has died in our hearts. It received its death
blow at the fatal ballot-box in November last, and the song of
the siren no longer sounds in our ears. We have thought long
and maturely upon this subject, and we have made up our
minds as to the course we should adopt. We ask no compro
mise, and want none. We know that we should not get it if we
were base enough to desire it, and we have made the irrevoca
ble resolve to take our interests into our owu keeping.
" I have already said that twelve months since the State of
Mississippi, in connection with other slaveholding States, had
taken a position in anticipation of the result of the recent Presi-
28

438 BENCH AND BAR OF MISSISSIPPI.
dential election, from which they could not recede if they were
base enough to desire it. I shall be pardoned by you, I trust,
for adding that an event of then recent occurrence, which
deeply concerned the honor and dignity of Virginia, exercised
a controlling influence in consolidating the Southern mind on
this subject. When the exasperation was at the highest, which
had been caused by the long and weary struggle which the
Southern people had been compelled to make in defence of their
institutions, the daring outrage on your soil to which I allude
was perpetrated.
" This State, relying on the faith of constitutional obligations
and of those friendly relations which they were created to
uphold and maintain, unconscious herself of any sentiment less
noble than that of uuwaveiing loyalty to her constitutional
obligations, and therefore wholly unsuspicious of any treason
able design against her own peace and welfare, was, in a moment
of fancied repose, in a time of profound peace, to her own
amazement and that of the whole Southern people, made the
scene of a foray by a band of conspirators and traitors from the
Northern States, whose purpose was to light up the fires of a
servile insurrection, and to give, your dwellings to the torch of
the incendiary and your wives and children to the knives of
assassins. The disgraceful attempt, it is true, ended iu igno
minious failure. True that yoUr slaves proved loyal, and by a
prompt' execution of your laws you vindicated your dignity and
exacted from the wretched criminals the just forfeiture of their
lives. But the event had, nevertheless, a terrible significance
in the minds of the Southern people. It was justly considered
as the necessary and logical result of the principles boldly and
recklessly avowed by the sectional party which was then grasp
ing at the reins of government, and which is now about to be
inaugurated into power.
" Let it not be supposed that I refer to this disgraceful event
with a desire to stir up a spirit of hostility or revenge, or to re
awaken those sentiments of just indignation which the fact is so
well calculated to excite. I refer to it as a necessary and legiti
mate result of the irrepressible conflict which has been pro
claimed, of which the President-elect gave a true exposition

FULTON ANDERSON. 439
when he said, ' There is a judgment and a conscience at the
North against slavery which must flnd an outlet either through
the peaceful channel of the ballot-box or in the multiplication
of John Brown raids.' I refer to it as a warning to the people
of the Southern States, and to you, the people of V^irginia, of
what they and you are to expect in the future when that party,
whose principles thus give encouragement, aid, aud comfort, to
felons aud traitors, shall have firmly established its dominion
over you.
" These are some of the causes, gentlemen, which have at
last convinced the people of Mississippi that the hour has arrived
when, if the South would maintain her honor, she must take
her own destiny into her o-wn hands ; but let it not be supposed
that they have uot always felt a strong attachment to the Union
of the Constitution, pruvided that instrument could be admin
istered in the spirit in which it was created. That form of gov
ernment, on the contrary, is dear to our hearts, and its necessity
to them and their posterity has received the sanction of their
judgment. Loving it not wisely but too well, they have clung
to it long after its obligations were abandoned by those who
were the chief recipients of its benefits, under the fond illusion
that a returning sense of justice and a restoration of fraternal
relations formerly existing would secure to them their rights.
They long and vainly hoped that the time would again return
when each and every section of the confederacy would recog
nize the rights and interest of all, and that we might in harmony
with each other have continued to rejoice over what had been
achieved of glory and prosperity in the past, and to look for
ward -with united hope to the bright and glorious prospect which
au observance of the principles of the Constitution promised in
the future. But, alas, how has that hope been disappointed ;
how has that illusion been dispeUed !
" Could we think that the crisis which is now upon us -was
but a temporary ebullition of temper in one section of the
country which would in a brief time subside, we might even yet
believe that all was not lost, and that we might yet rest securely
under the shadow of the Constitution. But the stem truth of
"history, if we accept its teachings, forbids us such refiections.

440 BENCH AND BAR OF MISSISSIPPI.
It is not to be denied that the sentiment of hatred to our insti
tutions in the northern section of the confederacy is the slow
and mature growth of many years of false teaching, and that as
we have receded farther and farther from the earlier and purer
days of the Republic, aud from the memory of associated toils
and perils in the common cause which once united us, that seuti-
meut of hatred has been fanned from a small spark into a
mighty conflagration, whose inextinguishable and devouring
flames .are reducing our empire into ashes.
" Ere yet that generation which achieved our liberty had
passed entirely from the scene of action it manifested itself in
the Missouri controversy. Then were heard the first sounds of
that fatal strife which has raged, with occasional intermissions,
down to this hour. And so ominous was it of future disaster,
even in its origin, that it filled even the sedate soul of Mr. Jeffer
son with alarm ; he did not hesitate to pronounce it, even then,
as the death-knell of the Union, and in mournful and memorable
words to congratulate himself that he should not sur-vive to wit
ness the calamities he predicted. Said he :
" ' This momentous questibn, like a fire-bell in the night,
awakened aud filled me -with terror. I considered it at once the
death-knell of the Union. It is hushed, indeed, for the pres
ent ; but that is ouly a reprieve, not a final sentence. A geo
graphical line, coinciding with a marked principle, moral and po
litical, once concurred in and held up to the passions of men,
will never be obliterated, and every new irritation will mark it
deeper, until it will kindle such mutual and mortal hatred as to
render separation preferable to eternal discord.
" ' I regret that I am now to die in the belief that the useless
sacrifice of themselves, by the generation of 1776, to acquire
self-government and happiness for their country, is to be thrown
away by the unwise aud unworthy passions of their sons,
and that my only consolation is to be that I live not to weep
over it.'
" But so far were the Northem people from being warned by
these sad, prophetic words, that at each renewal of the struggle
the sentiment of hostility has acquired additional strength and
intensity. The passions enlisted in it have become more bitter.

FULTON ANDERSON. 441
the disregard of constitutional obligations more marked, aud the
purpose to destroy our institutions more fixed and definite.
" All infidel fanaticism, crying out for a higher law than that
of the Constitution aud a holier Bible than that of the Christian
has been enlisted iu the strife, and in every form in which the
opinions of a people can be fixed and their sentiments perverted.
In the school-room, the pulpit, on the rostrum, in the lecture-
room, and in the halls of legislation, hatred aud contempt of us
aud our institutions, and of the Constitution which protects
them, have been inculcated upon the present generation of
Northem people. Above all, they have been taught to believe
that we are a race inferior to them iu morality and civilization,
and that they are engaged in a holy crusade for our benefit in
seeking the destruction of that institution which they consider
the chief impediment to our advance, but which we, relying on
sacred and profane history for our belief iu its morality, believe
lies at the very foundation of our social and political fabric, and
constitutes their surest support.
" This, gentlemen, is indeed an u-repressible conflict, which
we cannot shrink from if we would ; and though the President
elect may congratulate himself that the crisis is at hand which
he predicted, we, if we are true to ourselves, wiU make it fruit
ful of good by ending forever the fatal stmggle, and placing
our institutions beyond the reach of further hostility.
" I know not what may be your views of this subject, nor
what your purpose iu this crisis ; but I have already told you
what the people of Mississippi have resolved on, and to that
determination, you may rely upon it, they will adhere through
every extremity of prosperous or adverse fortune. They, like
you, are the descendants of a revolutionary race, which for far
less cause raised the banner of resistance against a far mightier
power, aud never lowered it until that victory which the god of
battles gives to brave men iu a just cause had crowned their
efforts and estabhshed their independence ; and they have, hke
them, decided that the time has arrived to trust for the safety of
their honor and rights only to their own strong arms and stout
hearts rather than submit to placing those priceless blessings in
the keeping of their inveterate foes.

442 BENCH AND BAR OF MISSISSIPPI.
" I shall enter into no discussion of the right of secession,
whether it be peaceful aud constitutional, or violent and revolu
tionary. If decided at all, that question must in the nature of
things be decided first" by those who would force us back into a
union with them, which we have repudiated, and when they
shall have made up their minds on that subject, it wiU remain
for us to join the issue and accept the consequences, be they
peaceful or bloody. We shall do all in our power to avoid a
hostile collision with those who were once our brothers, though
now divided from us by an impassable gulf ; we wish them no
harm, and could our prayers avail them we would freely offer
them, that in their future destiny they may have that prosperity,
liberty, and peace which we intend to seek for ourselves under
a new organization. All good men, too, will pray that that
Providence which presides over the destinies of nations and
shapes their ends, rough-hew them as they will, will so ordain
that the friends of liberty throughout the world may not have
cause to mourn over the folly and madness and wickedness of an
effort by arms on this continent to subject a whole people,
united in the vindication of their rights, and resolved to die in
their defence.
" But if it must be so, aud we are compelled to take up
arms, we trust we shall know how to bear ourselves as freemen
engaged in a struggle for their dearest rights. We have
learned the lesson how to do so from the history of your own
noble commonwealth, and we will attempt, at least, to profit
by the glorious example.
" The conviction of the justice of their cause will be a tower
of strength in the hour of battle, and inspire the hearts of the
Southern people like the sounds of that divine music which, in
the words of the great poet,
" ' ... cheered the hearts of heroes old,
Arming to battle ; -and instead of rage.
Deliberate valor breathed flrm and unmoved
By dread of death to fight or foul retreat. '
" And when that hour comes, we know, too, where Virginia
will stand. Her banner will fioat proudly ' over the perilous

FULTON ANDERSON. 443
edge of battle,' wherever it rages, and the blood of her sons
-will enrich every field where Southern men strike for their
rights and their honors.
" Having thus stated the action of my State, and the causes
which induced it, I should probably best consult the proprieties
of the occasiou by adding nothing to what I have said. I
trust, however, I shall be pardoned for offering one or two sug
gestions for your consideration. The fundamental idea which
has influenced the action of the seceding States is the demon
strated necessity that the Southern people should take their in
terest aud their honor into their own keeping, and thus rescue
them from the power of an avowedly hostile govermnent. It is
not that they are oppose.d to a union, of the confederated
States. Such a form of government is not only dear to their
hearts, but its value and necessity to them and their posterity
receives the recognition and approval of their judgment. It is
no fault of theirs that the Union, as it recently existed, has
ceased to be practicable or desirable. The Southern people may
well recur with pride to the history of their connection -with
that Government. Well may they ask when have they, as States
or indi-viduals, proved faithless to the obligations it imposed ?
In what point have they f aUen short of the full measure of duty
aud comity to their sister States ? What indulgence have they
not shown to the insulting prejudices and unreasoning fanati
cism of the other section ? What sacrifices of blood aud treasure
have they not made in the common cause, and what efforts to
bring back the harmony which, iu the language of oue of her
most eloquent sons, reigned in those days when Massachusetts
summoned Washington to lead the armies of New England, and
when Virginia and Carolina sent supplies of corn and rice to
their famishing brethren in Boston ?
" But such a form of government being demonstrated to be
impracticable with the Northern people, all that is left us is the
creation of a great and powerful Southern Union, composed of
States inhabited by homogeneous populations, and having a com
mon interest, common sympathies, common hopes, and a com
mon destiny.
" This is the inevitable destiny of the Southern people, and this
destiny Virginia holds iu her hands. By uniting herself to her

444 BENCH AND BAR OF MISSISSIPPI.
sisters of the South who are already iu the field, she will make
that a peaceful revolution which may otherwise be violent aud
bloody. At the sound of her trumpet in the ranks of the South
ern States, ' grim-visaged war will smooth his wrinkled front,'
peace and prosperity will again smile upon the country, and we
shall hear no more threats of coercion against sovereign States
asserting their independence. The Southern people, under
your lead, will again be united, and liberty, prosperity, aud
power, in happy union, will take up their abode in the great
Southern Republic, to which we may safely intrust our desti
nies. These are the noble gifts which Virginia can again confer
on the country, by prompt and decided action at the present.
" In conclusion, gentlemen, let me renew to you the invitation
of my State and people to unite and co-operate with your
Southern sisters who are already iu the field in defence of their
rights. We invite you to come out from the house of our ene
mies, and take a proud position in that of your friends and kin
dred. Come, aud be received as an older brother, whose counsels
will guide our action and whose leadership we will willingly
follow. Come, aud give us the aid of your advice iu counsel,
and your arm in battle, and be assured that when you do come,
as we know you will do at no distant day, the signal of your
move wiU send a thrill of joy vibrating through every Southern
heart from the Rio Grande to the Atlantic, aud a shout of joy
ous congratulation will go up which will shake the continent
from its centre to its circumference."
After perusing this address the reader will not thank the his
torian of this work for an expression of his opinion of Mr. An
derson's oratory or patriotism. Suffice it to say, that his elocu
tion was cultivated and pleasing, and his manners as an orator
graceful and engaging. But, like all of our leading men and
eminent patriots, who had thrown their minds, their hearts, and
their hopes into the issue of the great struggle, the result was to
Mr. Anderson overwhelming and irremediable. The gloom that
hung over his country, the misfortunes that bore down his peo
ple, seemed to add the weight of age to his meridian years, aud
he passed from the scene amid the darkness that thickens on the
brow of approaching dawn. He died at his residence, in Jack
son, on the 27th of December, 1874.

GEORGE L. POTTER. 445

GEORGE L. POTTER.
George Lemuel Potter, long a distinguished lawyer at the bar
of Mississippi, was bom in the city of New Haven, Connecticut,
on the 10th of November, 1812. His early advantages were lib
eral, and after a thorough preparation in the best schools of his
native city he was sent to Yale College, from which he was grad
uated in the twenty-first year of his age. He then studied law,
and, having obtained his license, emigrated to Mississippi in
1835, and located in the city of Natchez, where he pursued his
profession until the year 1S40, when he removed to the town of
Clinton, in Hinds County, and there formed a copartnership with
Mr. H. E. Van Winkle. He remained in Clinton about three
years, aud then removed to Jackson, where he soon took rank
among the first lawyers who practised at the bar of the High
Court. For thirty- five years there was scarcely a lawyer in
the State who a^jpeared more frequently before that bar, and
the reported decisions during that time abound with arguments
made by him upon the most important questions, and which dis
play a profoundness of research, powers of analysis, logical acu
men, and a briUiancy of success that would perpetuate the fame
of any jurist at any bar and in any age.
His intellect was subtle, penetrating, and profound, and was
thoroughly trained and disciplined by severe, constant, and in
tense exercise, while his capacity for mental labor seemed to be
of an exhaustless measure. He rarely spent an idle hour, but
was ever busy either in the investigation of some abstruse legal
question which was involved in his practice, or presented to his
mind by his powers of analogy ; or he was actively engaged in
the promotion of some scheme to advance the welfare of the
community. The professional acquirements of Mr. Potter were of the
highest order, and he was a lawyer of great learning and ability ;
the qualities of his mind were singularly adapted to the em-
bracement of those tenuous and recondite features of the prof es-

446 BENCH AND BAR OF MISSISSIPPI.
sion which constitute the test of superiority and are required to
fill the measure of eminence. His intellect spread itself like a
" diffusive touch" throughout every part of a subject, gathered
up the ingredients of truth, and constructed a chain between
cause and effect of which his perception traversed and inspected
every link. While his distinctions were, sometimes, apparently
without a characterizing difference, and his theories too refined
and attenuated for ordinary vision, they were found when
assaulted to be cables of reason which moored his positions to
fundamental principles and unquestionable truths.
His mind was peculiarly practical. He had no taste for the
specious and ornamental, and rarely indulged in rhetorical fig
ures or flights of imagination. He gave no thought to his man
ner of oratory, and no attention to his style of elocution ; but
with his mind centred upon the matter of his discourse and
the pith of his argument, his eloquence gushed, fresh and pure,
from the fountains of conviction, and his logic roamed free and
untrammelled through the field of thought, guided only by the
light of perspicuity and the goal of truth.
His features and habits partook of the character of his mind.
The former were clear-cut and strikingly prominent, while his
homely attire and unkempt appearance gave an enigmatical air
to the man, which, while in keeping with his meekness and sim
plicity, presented au eccentric contrast with the brilliancy and
intellectual flashes of his conversation.
But as the source of these outward manifestations of his great
ness, he erected a pure structure of the inner man. He pos
sessed a perfect mastery over himself, maintained a severe moral
regimen, and cultivated a system of strict self-abnegation, to
which his actions conformed more and more as he advanced in
years. So striking were these features that they impressed
themselves upon the attention of all who came within the reach
of his influence, and caused them to contemplate more seriously
the problem of life and the proper way in which the great bat
tle should be fought.
In the prime of life -he had amassed a store of resources, and
acquired a professional reputation which gave him the command
of fortune ; but the acquisition of wealth did not enter the cur-

GEORGE L. POTTER. 447
riculum of his aims, and formed no part of his ambition. He
performed a large amount of charitable and unrecorapensed
labor, and seemed to be satisfled with a bare sufficiency of means
for the support of his family. He made uo effort to gain popu
larity, repelled the overtures of official distinction, and gathered
scantily from the riches which an ample professional patronage
placed within his reach.
But the curious gaze which such an exceptional character
would have attracted was diverted by his great talents and at
tainments, aud his eccentricities were lost in the admiration of
his exalted virtues. To oue not familiar with these the charac
ter of Mr. Potter would have been, indeed, an unsolvable
enigma. But the strangest thing connected with the character of this
remarkable man was that his great fondness for severe and in
tense intellectual labor, his rigid abstinence, and apparent de
ficiency of taste for the ordinary pleasures and gratifications of
life, were by no means associated with solitary habits ; nor did
he " All the livelong day
Consume in meditation deep, recluse
From human converse."
On the contrary, he sought the society of men, delighted in ani
mated conversation, and cherished the warmest friendships and
the keenest sympathies. He was uniformly calm and cheerful,
and maintained on all occasions an imperturbable equanimity.
His life was blameless, and abounded in good deeds. He
labored earnestly for the pubhc weal, with no expectation or de
sire of reward. His charity flowed freely, and no labor was too
severe for him in the performance of a kindly act or in gratify
ing the wishes of a friend.
Mr. Justice Chalmers, in his response to the presentation of
the tribute of the bar of the Supreme Court to the memory of
Mr. Potter, related some striking instances of this character.
He said :
" Twenty-one years ago, while a law student iu this city in
the office of the Attorney-General of the State, I was directed
by my preceptor to prepare a brief iu the case of Mask vs.

448 BENCH AND BAR OF MISSISSIPPL
The State, reported iu 32d Miss. R. Pursuing my investi
gations for this purpose in the State Library, I discovered that
one of the questions involved was of first impression in this
court. Mr. Potter, already in the meridian of his fame as a law
yer, happened to be in the library, and I took the liberty of call
ing his attention to the question. I shall never forget my sur
prise at the cheerfulness with which he abandoned his o-wn work
and the kindness with which he pointed out to me the conflicting
decisions in other States, aud explained the reasons upon which
they were based. It remains in my memory as my first distinct
recollection of him, and my last is of a similar character. A few
days before his death I incidentally mentioned to him iu the
same library a question of some difficulty which I had under
consideration as a member of this court, aud I was astonished
the next day by his coming to me -with a sheet of paper covered
with citations of authorities upon the point. Trivial as these
circumstances are, they illustrate that kindness of heart, that
abnegation of self, that eamest sympathy for the troubles of
others, which we all knew, and which, no doubt, are more pre
cious at that Supreme Bar before which his immortal spirit stands
to-day than all the wealth of learning and of genius which he so
often displayed before this.
" It has been said that the bar instructs the bench no less than
it is instructed by it. Never did we realize this fact more sen
sibly than in listening to the arguments or perusing the briefs
of our deceased brother. Nothing that learning, or labor, or
ingenuity could suggest was left unsaid ; and if sometimes the
very acuteness and subtlety of his intellect misled him, it was
as difficult to detect the fallacy of his reasoning as it was to re
sist the power of his logic."
The death of Mr. Potter, which occurred on the 6th of Feb
ruary, was shockingly sudden and unexpected. He had left his
residence in Jackson on the evening before to attend the chan
cery court of a neighboring county, in which he was engaged in
an important case. He had finished his argument and seated
himself at a table in the Taar ; he was engaged in writing, but be
fore the document was finished he was suddenly stricken with
apoplexy, and died immediately. It is somewhat a remarkable

GEORGE L. POTTER. 449
coincidence that the only law partner he ever had, Mr. Van
Winkle, met with the same sudden death, who also was seized
with apoplexy while standing in the vestibule of the Capitol,
and, hke Mr. Potter, died almost without a struggle.
The life of Mr. Potter was a beautiful commentary upon
the calm and peaceful assurances of Christianity. He walked
strictly in its paths, and plucked every joy of its promises. The
last time his friends beheld him he was sitting in his accus
tomed pew, from which he proceeded to the train that bore him
to the scene of his death.
The foUowing beautiful tribute was paid to his memory by
the bar of the Supreme Court, and which was accompanied by
the usual resolutions :
" Judge George Lemuel Potter, the great lawyer, the useful
and public-spirited citizen, the humble and devout Christian, the
devoted and unselfish friend, has been called suddenly from the
scene of his earthly labor. It is fit that his surviving brethren
of the bar should pay this tribute to his memory, and testify
their appreciation of his worth.
" For more than thirty-five years he has practised at the bar
of this court. The reports of its decisions contain many evi
dences of his ability as a lawyer. Those of us who have heard
him at the bar can bear testimony that his great fame as a jurist
was not undeserved. He was, indeed, one of the brightest lu
minaries of our profession, distinguished by his rare intellectual
endowments aud his vast legal acquirements.
" Yet, learned and great as he was, there was nothing in his
manner, nor in his intercourse with the bench and bar, which
indicated that he was conscious of a superiority over others ; he
was modest, gentle, and ever mindful of the rights and feelings
of others.
" He maintained his side iu argumentation with the skill of
a great dialectician supported by vast aud varied learning. He
enjoyed his victories at the bar with moderation, and submitted
to defeat without complaint. His capacity for labor was ex-
¦ traordinary, and his industry almost without a parallel.
" By the gentleness of his manners and the tmthfulness and
sincerity of his nature he won the esteem and love of us all.

450 BENCH AND BAR OF MISSISSIPPI.
He was a sincere and devoted Christian, illustrating in his daUy
intercourse with his fellow-men the spirit of peace and love of
his Divine Master. He was frank and candid, without brusque-
ness ; he was liberal in praise when commendation was due, yet
was no fiatterer ; he was foremost iu every good work ; he was
so full of kindness for his fellow-man, so ready and prompt to
render any assistance in his power to whomsoever might ask or
need it, that it may -with truth be said that he passed the
greater portion of his life in unrecompensed labor for others.
Few men have deserved so well of the community in which they
lived, aud few, when death has called them hence, have been so
mourned. His death is a great public loss, and it inflicts a
deep wound on us, his surviving brethren. ' '

WILLIAM A. LAKE.
William A. Lake, long a prominent member of the bar of
Mississippi, was bom in Dorchester County, Maryland, in the
year 1808. His educational advantages were ample, and he was
admitted to the bar at the age of twenty-one. Two years later
he was elected to a seat in the Legislature of Maryland, aud at
the expiration of his term, in 1834, he removed to Mississippi
and resumed the practice of law in the city of Vicksburg, at first
in copartnership with Mr. WiUiam H. Hurst, and afterwards
with Judge J. S. Yerger. He rose rapidly to distinction in his
new home, and wrought his way to a merited position among
the most eminent members of his profession.
But while he was learned as a lawyer and successful as an ad
vocate, his varied accomplishments fitted him peculiarly for the
position of a popular leader, and he was several times called to
represent Warren County in the Legislature of the State, first
in the lower House and then iu the Senate.
He possessed in an eminent degree the qualities that gain the
confidence 'of the public and insure popularity with the people.
He was an eloquent speaker, enthusiastic in his partyism, bold,

WILLIAM A. LAKE. 451
frank, and fearless in the avowal of his principles, yet courte
ous and gentle in his opposition. His character was a blended
model of sensitiveness, honor, aud magnanimity. His personal
popularity was consequently great, and he was chosen in 1856
to represent the Fourth Mississippi district in the Cougress of
the United States, in which his course was marked with a fidel
ity that reflected credit upon himself, and with a dignity aud
ability that gave honor to his section and constituency. In
1861 he was a candidate for a seat in the Confederate Congress,
and in consequence of some personaUties or misunderstand
ings, growing out of the heated cauvas8,^he was challenged by
his opponent. Chambers, and fell upon the field of honor.
His death was greatly lamented, especially by the community
in which he lived, and to which his useful talents and social vir
tues had endeared him to an extent equalled only by the pride
which it felt in his geniijs.
Mr. Lake was gifted with intellectual powers of a high order,
but his eminence at the bar was not alone the result of superior
talents : it was due iu a great measure to his assiduity, his ca
pacity for labor, and his close attention to all the details of the
profession. He omitted no test of patience, uo tedium of in
vestigation, and no item of labor necessary to advance the cause
of his clients or promote the attainment of their rights.
His spirited sense of honor and unswerving integrity com
manded respect aud inspired confidence ; his polished and ur
bane manners attracted the good-will of all who came in contact
with him, while his cultured aud refined oratory gave him a
power of suasion which the sternest defiance could not wholly
withstand. He was also an able and forcible logician, and,
whether in the forum or the haUs of legislation, proved himself
an antagonist worthy of the keenest steel.
His accomplishments were varied and versatile, and his per
sonal attributes were uo less conspicuous.for their excellence than
his professional attainments. His impulses, though vehement,
were kind and gentle, and his moti ves w^ere pure and unselfish.
In his family he was kind and patriarchal, and in all his inter
course with his fellow-men he was frank, noble, and scrupulous
in the observance of all the forms of courtesy.

452 BENCH AND BAR OF MISSISSIPPL
His public honors were indisputably deserved, honestly
gained, and worthily worn ; and, as an eminent divine said of
Alexander Hamilton, ' ' He stood upon an eminence, and glory
covered him ; from that height he has fallen — suddenly, forever
fallen." Mr. Lake stood upon an eminence in Mississippi, and
his glory was the respect, the honor, and the admiration in
which he was held by his feUow-citizens.
While he was quick and resolute iu maintaining his own
honor and dignity, he was not revengeful, nor arrogant or over
bearing in his demeanor. On the night before his death he
-wrote to his wife, " My conscience approves my conduct iu this
matter, and however it may result, I feel that 1 shall not re
proach myself. I have many friends to whom I am devotedly
attached ; and although I have some enemies, I have never in
tentionally harmed them." And he declared to a friend upon
the field that it was neither his intention nor desire to kill his'
antagonist. But his magnanimity was no defence against the
fatal missile. He fell, and the bar was deprived of oue of its
most distinguished members, society one of its brightest orna
ments, and the State of Mississippi one of its most patriotic and
useful citizens.

JAMES PHELAN. 455

JAMES PHELAN.
The father of James Phelan was a native of Ireland, and was
a descendant of one of the ancient families of that country.
Being well educated, and possessed of au ample fortune, he was
ambitious of filling a higher sphere than he could hope to enjoy
under the system of political exclusion maintained against Cath
olics, at that time, in his native country, and in 1793 emigrated
to America. He resided for many years in New York and New
Jersey, and during that time was an officer of the First United
States Bank in New York, the Bank of Manhattan, and subse
quently cashier of the Bank of New Bmnswick in New Jer
sey. Having lost his property by au ill-advised laud speeiUa-
tion in New Brunswick, he determined to seek the reparation
of his fortune iu the South, aud removed to Hunts-ville, in Ala
bama, about the time of the admission of that State into the
Union. Here the subject of this sketch was bom, on the 20th of No
vember, 1820. His father, actuated, perhaps, by notions of pri
mogeniture imbibed in his native country, bestowed all the means
he could afford upon the classical education of his oldest son,
while the subject of this sketch enjoyed but few educational ad
vantages ; and, when about the age of fourteen years, with that
self-reUance and spirit of independence which characterized him
through life, he sought employment as an apprentice to the
printer's art, in the office of the Huntsville Democrat. But so
brilhant was his genius, and so conspicuous were his native tal
ents, that he was soon enabled to exchange the stick for the
quill, and his editorials attracted the attention of the leading
men in the State. In consequence of his political acumen, and
the incisive vigor of his editorials, he was afterwards called by
the unanimous voice of the party magnates to take charge of the
editorial columns of The Hag of the Union, the central organ
of the Democratic party, published at Tuscaloosa, the capital
29

456 BENCH AND BAR OF MISSISSIPPI.
of the State. Through -the columns of this journal he exer
cised, for many years, a controlling influence in the politics of
Alabama, and in 1843 was elected State Printer.
In this double capacity his energy and business qualiflcatious
abetted the development of his talents, and having acquired a
competency he determined to devote his future career to the
law, and entered the office of his older brother, Judge John D.
Phelan, at Marion, Alabama, where he soon prepared himseK
for the profession, and was admitted to the bar of the Supreme
Court of his native State in 1846. He then returned to Hunts
ville, where he began his professional career, and iu 1847 mar
ried Miss Eliza Moore, of that place — a lady noted for her ac
complishments, and afterwards for her conjugal devotion.
In 1849 Mr. Phelan removed to Aberdeen, Mississippi, where
he soon achieved a distinction of the flrst rank in his profession,
and in 1854 formed a copartnership with John B. Sale. This
firm was justly regarded as one of the ablest iu the State, and
the association continued until the outbreak of the civil war.
Possessed of an ardent temperament and an inherited hatred
of oppression, he espoused the Southern cause with all the
warmth and vigor of his nature. In every heated campaign his
voice had been heard in thrilling notes in defence of Democratic
principles and in the advocacy of States rights ; and when the
great issue, now fixed and defined, was arraigned before the tri
bunal of the sword, no one was more ready than he to place his
life as an offering in the scale ; but his talents designated him
for other duties thau those of the field. In 1860 he was elected
to the State Senate, and in the first organization of the Confed
erate Government was chosen one of the Senators of Mississippi
in the Confederate States Congress. He had never sought
office, but, preferring the quiet of private life, had given to his
profession that undivided allegiance which Lord Eldon said it
demanded. But the vast importance and the great responsibil
ity which now attached to the counsels of the young nation, upon
whose wisdom hung the mightiest issues that ever freighted the
thoughts of men, opened to Mr. Phelan an illimitable field for
his patriotic efforts, and one to which his talents were peculiarly
adapted. On this field he met men who had been long trained

JAMES PHELAN. 457
iu the two Houses of the United States Congress, and others dis
tinguished at home for their learning and ability. He was ar
rayed against men who had held the first rank as pohticians and
popular orators both iu Congress and in the State governments,
and one less dauntless might have shunned a controversy with
men of such overwhelming reputation as Yancey, Clay, Barn
well, and Wigfall ; but Mr. Phelan at once took his place in
the front rank, and his speeches exhibited a profundity of re
search and -vigor in debate which have rarely been equalled by
the best-traiued parliamentarians. He was devoted to truth,
and the supremacy of law, as the best shield of liberty. It was
not, therefore, -with him to question whether he would fare well
or ill in such contests, but whether the country would be bene
fited or injured by the measures which were under debate. In
illustration of this, some extracts are appended to this sketch,
from a speech he made in the Confederate States Senate in oppo
sition to an amendment proposing to repeal the section of the
Judiciary Act which gave appellate jurisdiction to the Supreme
Court in certain cases originating in the State courts. At this
period there existed a great prejudice against the recognition of
any power not subordinate to that of the State, and the amend
ment seemed about to pass without opposition when Mr. Phelan
arose, the unexpected defender, of the gate, and presented him
self an untried but full -armed champion in the defence of
what he believed to be a vital interest about to be crushed under
popular error.
After the close of Mr. Phelan's senatorial career be was ap
pointed judge of a military court, and continued to discharge,
in an able manner, the duties of that station until the close of
the war. In every position, whether as senator, judge, or citi
zen, he gave an eamest aud unswerving support to the adminis
tration of Mr. Da-vis, justly considering that while carping criti
cism might weaken the defence of the country, it_ could not
possibly strengthen the arms which were upholding its banner.
Between him and Mr. Davis existed a warm personal friendship
aud the freest interchange of opinion ; indeed, there was no
man to whom the Confederate President more fully revealed his
purposes and motives. It is not supposable, however, that a

458 BENCH AND BAR OF MISSISSIPPI.
man of such marked characteristics as Mr. Phelan would uni
formly agree with any one on such complex questions as were
involved in the war and the policy of the new government ;
but whatever may have been the measures in regard to which
he disagreed -with Mr. Davis, discussion usually brought them
into concurrence, and the trials of the long and wasting war left
them only closer friends than before.
Judge Phelan was always an advocate of the strongest meas-
Tures which would tend to increase the means of our defence.
With him all the property and all the men of the Confederacy
were due to the exigencies of the struggle, and in January,
1863, he introduced a bill in the Confederate States Senate
providing for the impressment and appropriation to the public
defence of all cotton within the Confederacy, which was re
ferred to a special committee, and was reported by it, after some
amendments, with the recommendation that ,it should pass.
The -object of this measure was twofold — to prevent the cotton
remaining on the plantations in exposed localities from falling
into the hands of the enemy, and to form the basis for a foreign
loan. The latter, however, could have been sufficiently estab
lished, as it was, by voluntary subscriptions, and largely more
was obtained in this way than could be carried to the seaports
or run through the blockade. But Mr. Phelan conceived, no
doubt, that the more of the staple the Government controlled
the greater would be the weight of its credit, and stronger the
inducement to foreigners to protest against the blockade.
At the close of the war J udge Phelan found himself impover
ished, and not even permitted to resume the practice of his pro
fession, which constituted his only means for the support of his
children. Under these circumstances he went to Washington
to ask at the seat of Government for the removal of his disabili
ties. He was no stranger to the President, and although there
were others on adike errand who had been waiting for an audi
ence many days, Mr. Johnson, on receiving the card of Judge
Phelan, directed that he should be shown in immediately, and in
quired of him the object of his visit. Judge Phelan carried with
him no papers ; he went there to make no plea in abatement or re
cantation of his opinions, and therefore answered merely, " I

JAMES PHELAN. 459
have come to get permission to wOrk in order that I may sup
port my children. " To some remark of the President iu regard
to the conduct of the South, Judge Phelan promptly responded
that he had followed his convictions of duty, aud had no apology
to offer. President Johnson, to his honor, respected the man
hood of the answer, and influenced, perhaps, by the evident in
tegrity of the speaker, referred him to the Attomey-General,
who was instructed to prepare the necessary papers which would
enable the Judge to resume his professional labors.
He returned to Aberdeen and revived his copartnership with
Judge Sale, which was afterward joined by Colonel William F.
Dowd ; but the ravages of war had left but a remnant of the
wealth which formerly abounded in the country in which he
had made his home, and seeking more encouraging prospects
in the pursuit of his profession, he removed, in 1867, to Mem
phis, Tennessee, and became associated -with Judges William L.
Harris aud Henry T. EUet, both formerly of the High Court
of Errors and Appeals of Mississippi. This firm was character
ized by transcendent ability, and enjoyed every prospect of a
large patronage ; but was dissolved, on the death of Judge Har
ris, in 1868. Judge Phelan continued the practice of his profes
sion in Memphis with success aud marked distinction to the time
of his death, which occurred on the I7th of May, 1873.
As a lawyer Judge Phelan was briUiant and profound. The
faculties of his mind were quick, energetic, and grasping, and
were always at his command. He had mastered every feature
of the law, and his familiarity with the decisions of the courts
loaded his vi-vid memory with an inexhaustible store of prece
dents, from which his genius was never at a loss to model an
analogy. He was quick to perceive the substance and character
of a proposition, and his powers of analysis penetrated readUy
the most complex questions of law and fact, and resolved the
most abstruse features into clear and unquestionable principles ;
and then, again, he would gather the scattered elements of
abstraction and bind them into a synthetical hinge, upon which
conviction would pivot at his bidding. His argumentation was
always logical and closely knit, and his presentation of his cases
was clear, forcible, aud convincing. His thoughts were em-

460 BENCH AND BAR OF MISSISSIPPI.
bodied with the interest of his chents, and he clung to their
causes with the ardor and fidelity o:^ a zealot.
As an orator Judge Phelan has had but few equals in the
South. His command of language was remarkable, and his
diction was chaste, engaging, and apt. His imagery and iUus
tration were copious and brilliant ; indeed, so varied was his
metaphor that, however often he might repeat his propositions,
they presented themselves with new force, and in such new and
startling colors as to obviate even the resemblance of redun
dancy. He was exceedingly poetical in his taste, was fond of
the tender and sentimental, as well as the grand and sublime.
The author met him but once, but he recalls from an indelible
impression the beautiful application he made during that inter
view of Sterne's figure of the angel, the tear and the blot. Few
men possessed in a higher degree than Judge Phelan the mingled
character of the lion and the lamb. Fearless, and when excited
fierce, he was generous, chivalrous, aud gentle ; and though he
usually wore a cold exterior, he was warm-hearted, and even
tender to the helpless and unfortunate. Perhaps this trait will
be better illustrated by the the two foUowing incidents than by
description. On one occasion, at Aberdeen, he saw a man of desperate
character with a pistol levelled at another quite near to him, and
with serious intention of killing the object of his anger. Judge
Phelan had no animosity to the one^ and no friendship for the
other ; notwithstanding, he sprang before the man with the
pistol, and holding a knife near to his face, warned him if he
pulled the trigger he too should die, thus saving the life of
one who had no claim upon him, at the risk of his own.
While residing in Memphis, and when time had whitened his
hair but had not chilled the impulses of his heart, he visited a
circus where he saw a little girl placed on a horse to lea,p over
some poles or ropes as the horse ran beneath them. The child
failed in the attempt, and fell ; the master of the ring replaced
her upon the horse, and in a second attempt she again fell, and
manifested the utmost dread aud agitation while the master was
preparing to force her to a third effort ; but while he was in the
act of replacing her upon the horse Judge Phelan ordered him

JAMES PHELAN. 461
to desist. To this he made a defiant reply, and declared that the
child should perform the feat. Judge Phelan answered, " At
your peril dare to put her up again," and with such manifesta
tion that the master of the ring sent her away.
Well has it been said that the truest are the gentlest. No
braver, truer man than Judge Phelan walked the earth while
he trod upon it, and the sod covers none more magnanimous
and generous than he was. Just to his fellow-men, many of
whom he had served and none of whom he had intentionally
injured, with a deep love for all that is beautiful and with a
devout reverence for his Creator, whom, without cant, he had
devotedly worshipped, he met death like a Christian and philos
opher. Speech on the Judiciary Bill.
Mr. Clay, of Alabama, having offered to amend the bill organizing the
Supreme Court by repejlling the 45th section of the Judiciary Act, passed
by the Provisional Congress, giving appellate jurisdiction to the Supreme
Court of the Confederate States, of cases originating in the State courts,
arising under the Constitution, treaties, and laws of the Confederate States,
etc., no Senator taking the floor, and the President having put the ques
tion for final action to the Senate,
Mr. Phelan rose and said :
" Me. PEEsroENT : It might reasonably have been expected
that those who advocate the repeal of an existing law would
have presented us the argument demanding its expurgation from
the statute-book. This, however, the friends of the pending
amendment have declined. A consciousness of strength, doubt
less, is the solution of their silence ; and unless this novel and
menacing measure is to stalk unchallenged through the Senate,
it must now be halted and assailed. In my opiuion, the issue it
presents involves questions and consequences of the most solemn
import to the future peace and stability of our Government ;
and I am amazed that, as a summer cloud, it awakens no won
der as it passes by. I think I perceive the sharp, quick, scarce-
seen gleam of the lightning flash, though all is hushed, to be
followed by a peal of jarring thunder. I feel, as it were, fall
ing upon my heart the herald rain-drop which foretells the
mustering storm that will ultimately rock to ruins the ascending

462 BENCH AND BAR OF MISSISSIPPI.
temple of our Confederacy. Thus -counselling with my own
conscience, obeying the behests of my own judgment, aud un
awed by the array of age and intellect which confronts me, in
opposition, I dare not withhold my feeble voice from the con
demnation of a measure which, as I believe, wiU be hurtful to
the harmony and disastrous to the perpetuation of our country.
" Hurried to the floor, Mr. President, by the rapidity with
wliich this measure was passing through the Senate, I am unable
to produce a tithe of that documentary history which more
ample time would have enabled me to obtain, corroborative and
persuasive, if not absolutely conclusive, both of the constitu
tionality and expediency of the act proposed to be repealed.
" Let us flrst analyze the clause from which the power to
pass this act is extracted. It is as follows :
" ' The judicial power shall extend to all cases arising
under this Constitutiou, 'the laws of the Confederate States, aud
treaties made, or which shall be made, under its authority,' etc.
" Our language furnishes no words more absolute, nor can a
sentence -be framed more comprehensive. The word 'all'
exhausts the idea of unity, entirety, and completeness. . . .
" The question then recurs, Are the cases specifled in the
45th section included within the catalogue of those enu
merated in the Constitution ? This is not denied. If so, then
the exemption of such cases from the general grant, when
arising in State courts, must be specially shown from other
clauses of the Constitution. It is alleged that the intention to
limit the judicial power of the Confederate courts is apparent
from the second clause of. the 2d section of the 3d article, as
follows :
" ' In all cases affecting ambassadors, or other public ministers and con
suls, and those in which a State shall be a party, the Supreme Court shall
have original jurisdiction. In all the other cases before mentioned the
Supreme Court shall have appellate jurisdiction, both as to law and fact,
with such exceptions and under such regulations as the Congress shall
make. '
" What was the leading design of this clause ? Was its
•primary object to indicate from what courts appeals should lie ?

JAMES PHELAN. 463
Was it to determine the general matter of appeals at all ?
Surely not. It was to select from the enumerated heads of
general jurisdiction a few cases which should be originally in
stituted in the Supreme Court. It says. In all other cases
before mentioned the Supreme Court shall have appellate juris
diction. ' The grant of appellate jurisdiction is as comprehen
sive as the grant of power in the preceding clause. It attaches
to ' cases,' not to courts. No words of limitation anywhere ap
pear ; and to interpolate by implication the words ' in the
Confederate courts,' or other equivalent expression, but betokens
the blindness, as it will tax to exertion the giant's strength.
" The law now sought to be repealed is the 45th section
of our Judiciary Act, which gives to the Supreme Court of the
Confederate States appellate jurisdiction over the State courts
in cases arising under the Constitution, treaties and laws of the
Confederate States, etc. This section of our act is, with cer
tain alterations, the 25th section of the Judiciary Act of
the United States. The clause in our present Constitution,
upon which said 45th section is based, is identical — so far
as this issue is concemed^ — -with the old Constitution upon which
said 25th section was predicated. The history of that clause,
aud that law, therefore, under the old Government, are most
pertineut in determining the constitutionahty of the act pro
posed to be repealed.
' ' Never did instrument undergo an analysis so sifting aud
severe as that to which the Constitution was subjected, from
the adjournment of the Federal convention to its final ratifica
tion by the conventions of the States. The general plan was
stretched upon the rack of torturing criticism ; every provision
was punctured and explored ; . ' trifles hght as air ' conflrmed
the jealous lovers of liberty iu apprehensions of danger ; specks
on the hgrizoif, that have long since disappeared, were scanned
with microscopic eye, as portentous harbingers of evil ; aud the
uplifted voices of the mightiest intellects in the land were heard
exclaiming, ' Lo ! here ! ' and ' Lo ! there ! ' as they labored
to arouse and reveal to the people the alarming powers granted
in the Constitution, all tending to ceritrahze and consolidate the
National Government, to the destmction of the sovereignty of

464 BENCH AND BAR OF MISSISSIPPI.
the States. The judicial power, filtered through the flames of
an almost fanatic enmity, was charged with having yielded this
appellate jurisdiction, in the enumerated cases, over the State
tribunals ; and although sedulous to guard against the exag
gerations of this distempered zeal, and desirous to abridge, as
sharply as truth and candor would permit, the powers conferred,
yet this allegation was neither evaded nor denied by the
friends of the Constitution ; but, on the contrary, without a dis
senting voice, the existence of such a power was boldly con
fessed and proclaimed. The Constitution was ratified, the Gov
ernment organized, and early during the first session of the first
Congress the law was enacted giving to the Supreme Court the
jurisdiction now contested as unconstitutional. That Congress,
too, was composed of several distinguished statesmen, who had
been members of the convention by which the Constitution was
formed ; and all were fresh from the fierce debates, and flushed
with the arguments against which it had battled, iu its hard-
won triumph through the States. The simple fact of its pas
sage, under such circumstances, would seem to roll a great
stone upon the mouths of those now so vociferous in its denun
ciation. But this is not the only argument in favor of its con
stitutionality furnished by that occasion. The debates in the
Senate were not reported until 1794. In the House an attempt
Was made to prevent the organization of any inferior Federal
courts, upon the ground that the State tribunals were sufficient
for the administration of justice in those special cases specifled
in the Constitution ; and in this connection the principle of
the appellate jurisdiction of the Supreme Court over the State
judiciary was fully discussed and asserted without the utterance
of au opposing voice. Mr. Smith, of South Carolina, said :
" ' Justice could be as well administered in thfe Staters in the District
courts ; and their adjudications would be subject to revision in the Federal
Supreme Court, which offered suiEcient security. If the State courts are
to take cognizance of those causes which by the Constitution are declared
to belong to the judicial courts of the United States, an appeal must lie
in every case to the latter, otherwise the judicial authority of the Union
might be altogether eluded. To deny such an appeal would be to frus
trate the most important objects of the Federal Government, and would

JAMES PHELAN. 465
obstruct its operations. . . . ' Appeals from all the State courts to
the Supreme Court would be indispensable.'
" Mr. Jackson said :
" ' He was of the opinion that the people would much rather have one
appeal which would answer every purpose ; he meant frorn the State
courts directly to the Supreme Court of the continent. If State judges
do not respect their oaths, there remains the appellate jurisdiction of the
Supreme Court to control them. They can reverse or confirm the State
decrees as they may find them right or wrong.'
" The constitutionality and necessity of this power in the Su
preme Court was asserted by many others, extracts from whose
speeches it is needless to accumulate.
" Thus spoke from the porch of our national temple the liv
ing architects of the Constitutiou, iu regard to its design, ere
the scaffolding was removed through which it had ascended.
The bill passed, was approved by Washington, himseK Presi
dent of the Federal Convention, and became a law. . . .
" In 1815 an act was passed giving to State courts jurisdiction of
aU complaints, suits, and prosecutions for taxes, duties, etc. , aris
ing under acts of Congress. No such suits or prosecutions, it pro
vided, in any State court, should be delayed, barred, suspended,
or defeated by any State law ; and aU final judgments were ex
aminable in the courts of the United States ' according to the act
<?/'1789.' This bill originated in the House, was referred to a
special committee iu the Senate, composed of Bibb of Ken
tucky, Barboirr of Virginia, and Chase of Vermont, who re
ported it with a slight amendment, was then considered in com
mittee of the whole, aud finally passed both Houses, without even
a division ! Yet this Congress was composed of such men as
Gaston, Macon, Cheves, Forsyth, Troup, Lo-wndes, Pickens,
and Calhoun ! Reason becomes restive and probability impa
tient in thus laboring the facts of history in refutation of a
faUacy so bald and patent as that embodied in the pending
amendment. Let their torturiig cease.
" From the date of its approval to the hour which shook the
Confederacy asunder, through all the fiuctuatious of principles
and predominance of parties, under every administration, and

466 BENCH AND BAR OF MISSISSIPPI.
amid the storms of pohtical strife which have convulsed the
country, no effort has ever been made to alter or repeal this
first-born of our earliest Cougress. And are the teachings of
time, the sanctions of experience, the acquiescence of genera
tions of great and good men who have gone before, to pass us
by, unheeded as the idle wind ? Are we now to be told, in
tones of sternness, intolerant of denial, that a law, .thus mantled
with the sanctities of age, aud covered with the hoar-frost of
antiquity and tradition, is but the wrinkled harlot of political
prostitution, still pregnant with the foul progeny of Federalism ?
" I am not unaware that, in a case or two in the State
tribunals of Georgia and Virginia, the constitutionality of the
act under discussion has been involved, and advocates of repeal
have referred to those decisions as the impregnable fortress from
which we are to be demoUshed. Unable to obtain the volumes,
I invoke their production by those who follow me iu reply, and
pledge myself to establish that in not more than one of them,
perhaps, was the question of the constitutionality of the existing
law either presented or decided. But admitting at this point
the full force attributed to those few isolated decisions, to what
weight are they entitled, even as mere legal precedent or
authority, in comparison vtdth the ' multitude which uo man can
number ' of distinguished jurists by whom the law has been
recognized, obeyed, and defended for nearly a century, in courts
of equal dignity, convened over half a continent ! Their
novelty alone invests them with notoriety ; aud, contrasted with
the array of learning and intellect by which they are confronted
and confuted, they are but as ' dust in the balance,' or atoms in
the air. Their fate is conclusive of their fallacy. Things of a
day — the wonder of an hour — like bubbles, they rose aud broke
upon the torrent they sought to stem, and, unheeded, were
swept into forgetfulness. Again, by what strange reversal of
established rule and perversion of ancient practice do Senators
flout in our faces and demand deference to the decrees of these
judges of a State, to the discardal and contempt of the opinions
of the supreme bench of the United States, by which, without
a dissenting voice, they were as often reversed and denied ?
Senators would illuminate and magnify, beyond all legitimate

JAMES PHELAN. 467
influence, the few men by whom they are sustained, whilst they
seek to dwarf and diminish the multitude of mighty inteUects
by whom their allies are overshadowed and obscured. The
fables of the frog aud the ox, aud the cock among the horses,
aptly Ulustrate the hugeness of their effort and the danger of
their position. As if conscious of the futility of the enter
prise in whic^h they have embarked, the Senator from Texas (Mr.
WigfaU) more than intimates his belief that the existence of a
Supreme Court is detrimental to the weKare of the country ;
and threatens, if the pending amendment is defeated, to resist
the organization of such a tribunal. Energized by a spirit of
such relentless hostihty, the rude hand of innovation is, then,
to be Ufted for the destruction of that ancient temple whose
solemn ministrations forbid the strange fire he would pile upon
its altar ! Will not such a sentiment startle from their repose
those who appreciate and would perpetuate the checks and
balances which preserve, in equipoise, the delicately-adjusted
machinery of our confederate form of government ? . . .
" The act of 1789, though constitutional, was justly obnoxious
in its detail, to criticism and censure. Congress, however, and
not the court, merited condemnation for the policy it initiated.
The wrong alleged to have been perpetrated was not in en
larging, but in limiting, in the cases specified, arising in State
courts, the appeUate jurisdiction of that tribunal. The act was
as follows :
" ' Sec. 25. A final judgment or decree, in any suit in the highest court
of law or equity of a State, in whch a decision can be had, where is
drawn in question the validity of a treaty, or statute of, or an authority
exercised under the United States, and the decision is against tlieir valid
ity, or where is drawn in question the validity of a statute of, or author
ity exercised under any State, on the ground of their being repugnant to
the Constitution, treaties, or laws of the United States, and the decision
is infamor of their validity, may be re-examined and revised or affirmed, in
the Supreme Court of the United States, upon a writ of error. '
" The direct and practical tendency of this section was to
strengthen the legislative aud executive, and to deprive the
judicial department of its legitimate influence in the operations
of the Government. It avoids, as far as may be, all interference

468 BENCH AND BAR OF MISSISSIPPI.
by the Supreme Court with the action and designs of the other
departments, by sheltering them behind the judgment of the
State judicatures whenever those tribunals decided iu favor of
their usurpations. If, in such a contest, the State court sus
tained the validity of Federal legislation, its decree was flnal ; no
appeal was allowed! Should such court, however, deny the
validity of such action, an appeal might be taken. There was,
then, everything to be gained by the Government, and nothing
to lose. A decree in favor of the power exercised by the
Federal Government was virtuaUy declared to be infalhble. A
denial of its power by the same court was supposed to be wrong,
and might be revised. Now, this, offensive feature of the old
act has been abolished, in the law enacted by the Provisional
Congress, proposed to be repealed. Appellate jurisdiction is
given to the Supreme Court, in the enumerated cases, whether
the State tribunals admit or deny the validity of legislative
action, and whether they oppose or support the assumed
powers of the Federal Government. The partition wall has been
broken do-wn which forbid the entrance of the citizen into the
high forum of the national judiciary, to invoke protection
aigainst legislative oppression, sustained by sectional adjudica
tion ; and the door of its majestic temple now stands open
wide to welcome the humblest suitor who seeks its altar to re
dress his wrong ! . . .
" The flower takes its coloring from the soil from which it
springs, and the atmosphere by which it is surrounded. The
venerable Senator (Mr. Barnwell) was reared in South Carolina,
aud a member of its famed Convention in 1832. The Senator
from Alabama (Mr. Yancey) also, I believe, a native of that
State, has battled for the principle as it were the law, scorched
by the flnger of heaven upon tablet stone ; whilst the Senator
from Texas (Mr. Wigfall), reared in the same State, full
charged in every flbre of his frame with its subtle fluid, sparkles
whenever touched with the animating electricity of the doctrine.
Let me not be misunderstood in my reference to South Caro
lina. My earliest political reading and reflection are blended
with an appreciation of her noble but erratic zeal in seeking
' to drag by the locks ' the drowning rights and honor of the

JAMES PHELAN. 469
South. Denying the remedy by which she sought to redress
our wrongs, my heart ever thrilled with admiration of her gal
lant people and dauntless chiefs ; and, as barrier after barrier
gave way which guarded the citadel of Southern safety under
the pressure of compromises, concocted by political factions,
struggling for the spoils of power, I watched her standing aloof
from the vain strife, with a faith that never faltered, and an
eye that never slept — the lone sentinel upon the watch-tower of
Southern freedom ; and when the fulness of time had come, by
her prophet-statesman so long foretold, never can my soul eo
thrill again -with gratitude and gladness as when I beheld her
snatch the symbol of her sovereignty from the gorgeous flag of
the Union, fling her blue banner, with its defiant star, to the
mustering winds of revolution, and prepare to tread alone, if
need be, the red wine-press of war. But stern aud self-sacrific
ing as has been her spirit in defence of Southern rights and
honor, the political theory of our Government, as propounded
by her distinguished statesmen, and to which the pending
amendment is alhed, never has and never will be sanctioned
by any portion of the American people. I do not invoke,
neither will I participate in, auy discussion of the doctrine of
nullification. The subject was exhausted in that ' war of the
giants,' under the shock of whose encounter the nation stood
entranced. Further argument or effort upon the theme, like
the kaleidoscope, though casting, perhaps, novel and attractive
figures, would be but multiplied reflections of the bright parti
cles and broken fragments of that logic aud eloquence, the full
glory of whose pristine splendor illumines the past. Whether
right or wrong, as an abstract principle, the necessity for a
recognition of the doctrine of nullification has been merged in a
practical assertion of the great right of secession, now the foun
dation-stone of our new Republic. An attempted exercise of
this sacred right under the old Government, it was always felt,
hazarded, and did actuaUy awaken, thj tocsin of war. Now, if
in her sovereign capacity a sister State shall proclaim her sepa
ration from the Confederation, we smoke the calumet, and bid
her depart in peace. . . .
" 1 desire now uo strong govemment, Uke a central and

470 BENCH AND BAR OF MISSISSIPPI.
self-dependent sun, attracting by its power and absorbing
by its influence the essential and substantial rights of the
people and the States ; but rather, like the moon, shedding
its serener ray of light, reflected from the original fountain,
mingling its radiance and sharing the glory of the night with
the bright stars of sovereign and independent States by which it
is attended. But pass the measure now pending, and the stars,
one after another, will fall from your national standard, ' even
as a fig-tree casteth its untimely figs, when shaken of a mighty
wind.' The frailest gossamer that floats upon the breeze will
be a chain of triple steel in comparison with the brittle tie which
binds together our rising Confederacy. Let the mighty moun
tain of our revolution, whose painful and protracted laboring is
now filling the land with gore and groaning, give birth— neither
to a mouse contemptible for its insignificance, nor to a mon
ster, dangerous for its giant strength ; but let there come forth
a being of manly beauty and heroic mould, clothed with majesty,
but girt with goodness, a compound of humanity and divinity,
and which, though liable to die, will impart immortality to its
existence by the wisdom, the justice, and the moderation of its
reign." Messrs. Semmes, of Louisiana ; Yancey, of Alabama ; Barnwell, of South
Carolina ; Haynes, of Tennessee ; and Maxwell, of Florida, having ad
dressed the Senate in support of the amendment of the Senator from
Alabama, Mr. Clay,
Mr. Phelan said :
" Mr. President, having been forced to open this debate, and
having furnished a target for distinguished Senators who have
occupied the fioor, I accept the indulgence, in fairness accorded
me, of a general reply to the converging batteries by which my
argument has been assailed. The storm of assault has been en
countered, and the positions defended, I humbly conceive, still
stand, not only uudemolished, but impregnable, strengthened
rather than impaired by the novel nature of the attack which
they have elicited. . . .
' ' In seeking to estabUsh the power of Congress to grant to
the Supreme Court appellate jurisdiction over the State courts

JAMES PHELAN. 471
in ' cases ' arising under the Constitution, treaties and laws of
the Confederate States, I hastily collated the facts of contem
poraneous history and exposition. Challenged to such a com
pilation by the Senator from Texas, the legitimacy of the argu
ment, deducible from that source iu the pending issue, was not
only acknowledged, but asserted. It was not, therefore, to
have been anticipated, after appearing at the summons, that the
advocates of repeal would not only have shunned the combat,
but have denounced, as beneath the dignity of the contest, their
o-wn chosen arena. Yet what says the Senator from Alabama
(Mr. Yancey) in relation to the mass of historical facts adduced
iu my former argument, persuasive, if not absolutely conclusive.
of the constitutionality of the act he urges us to repeal ? Refus
ing to confess the force, but without attempting to weaken, by
analysis or denial, this truthful aud con-vincing array, with
scarcely less than divine authority he says to the mountain
pile, ' Be thou removed and be thou cast into the sea.' But -the
stubborn hill still obstructs his pathway. He dare not hazard
its ascent ; he cannot remove, and his commands it will not
obey. I also cited the opinions of eminent statesmen of an
early day in exposition and support of the act sought to be
destroyed. To this argument the Senator from Alabama re
plies — and it has been repeated by others on the same side. — that
both precedents aud opinions are of a nature too doubtful and
dangerous either to command his respect or to furnish a basis
for his legislative action ; and with that boldness which ' would
grasp without remorse, and wear without shame, the diadem of
the Caesars,' he proclaims that we of to-day better comprehend
the meaning of the Constitution than those sages whose creative
minds brought it into being.
" Mr. President, it was only Him who spake as never man
spake, who could thus dissipate, by the word of his mouth, the
sayings 'of them of old time,' and substitute for their teach
ings His owu infallibility. I disclaim the portion falling to
myseK, of those high powers, which the sentiment of the Sena
tor from Alabama would confer upon us all. I delight to
drink at those deep wells— at which generations have slaked
their thirstings — dug in the wide waste of the world's barren
30

472 BENCH AND BAR OF MISSISSIPPI.
brain, by those patriarchs of the past, who have now gone to
rest, as rest I trust they do, ' where the good rest, and their
works do follow them.' I desire to imbibe truth, and seek
for strength in the warfare of life at the well-worn pilgrim
shrines of  " ' the great of old,
Those dead, but sceptered sovereigns, who still rule
Our spirits from their urns. '
' ' I prefer to steer my frail and tossing bark by the beacons
and landmarks of those ' immortal names that were not bom
to die ; ' and in comparison with whose mighty fame we puny
politicians of to-day but duplicate that wonder of the museum
which represents the mammoth frame of the mastodon bestriding
the tiny skeleton of the mouse. Conscious of my infirmity, and
distrustful of my own erring judgment, I choose to follow the
guidance of those wise men the radiant chandelier of whose
wisdom and virtue and inteUect illumines my pathway, rather
than, like the ephemeral firefiy, to pursue my devious wander
ings, aided only by the dim ray emitted from the dark lantern
of my own mind.
" This novel and abrupt discardal of all that has hitherto been
recognized as sacred aud legitimate in such investigations as
that iu which we are now engaged, could only have been ex
torted by the dire extremity to which our opponents have been
reduced. In his great speech upon the constitutionahty of the
United States Bank, Mr. Madison asserted the following rules
of construction in the interpretation of the Constitution :
" ' An interpretation which destroys the very characteristics of the Gov
ernment cannot be just.'
" ' In controverted cases, the meaning of the parties to the instrument, if
to be collected by reasonable evidence, is a proper guide. '
' ' ' Contemporaneous and concurrent expositions are a reasonable evidence
of the meaning of the parties. '
" Undeterred, therefore, by the cavalier coolness with which
such testimony has been flipped from the fingers of Senators, I
proceed to add other selections from the stores of contemporane-

JAMES PHELAN. 473
ous history in condemnation of the insidious heresy with which
the policy of the country is so eagerly sought to be impregnated.
" I read from the 82d number of the Federalist.''
A Voice. — Alexander Hamilton, the Federalist.
Me. Phelan. — " Mr. President, I have heard, without
astonishment, the name of this truly great and patriotic states
man huffed by scuffiing partisans amid the wrangUngs of the
hustings, but I am surprised that it should thus be assailed with
a sneer, in a body supposed to be conversant with his history.
Mr. Hamilton was never a Federalist in that sense which made
it a term of opprobrium. He never held that the Constitution
constituted a govemment of tJie aggregate people, and not a
compact betioeen so-oereign States. This was the fundamental
principle which gave rise to the old Federal and Republican
parties. He declared ' that there is not a .syUable in the plan
of the Constitution which empowers 'the national courts to con
strue the laws according to the spirit of the Constitution.'
" Mr. Calhoun said :
" 'The doctrine of consolidation maintained by the Senator from Massa
chusetts was not the doctrine of Hamilton, who strenuously maintained
the federative character of the Constitution, but who was accused of sup
porting a policy which would lead to consolidation.' . . .
" 1 challenged the production of those decisions in State tribu
nals by which the unconstitutionality of the act sought to be re
pealed was alleged to have been maintained, and pledged my
seK to prove that in not more thau oue or two of them was the
point ever presented or determined. I also denied that the old
Supreme Court had ever asserted auy power over political qurs-
tions, or the right to adjudicate such controversies between the
States aud the Geueral Government as parties to the original
compact, and that the few cases which had provoked criticism,
as trenching upon the sovereignty of the States, only granted
the citizen, when sued or prosecuted by a State, a right to have
the judgment against himself, involving his rights under the
Constitution, the treaties, or the laws of the United States, re
viewed in the supreme national judiciary. How has this solici
tation and denial been met and accepted ? Hours of argument

474 BENCH AND BAR OF MISSISSIPPI.
have been expended, aud indefinite references made to deci
sions, but without the presence of a volume, or the analysis of a
solitary case ! A judgment by default, or a sentence for stand
ing mute, may fairly be demanded on these points against the
friends of the amendment. As a substitute for the specific dis
closures of judicial arrogance and usurpation, we were warned
to anticipate, under the laws of 1789 on the part of the Federal
judiciary, we have only listened to discursive criticisms upon
the character and influence of a distinguished individual, the es
sence of all of which was energetically declaimed, in the lan
guage of the Senator from Texas (Mr. Wigfall), ' that iu
stamping his opinion upon the country. Chief Justice Marshall
had done more to change the character of our Government, to
fasten upon its policy a tendency to consolidation, and to destroy
the sovereignty of the States, than any otlier man who ever
lived.' Irrelevant as such geueral assertions are to the pend
ing issue, 1 trust I may be indulged briefiy to attempt an hum
ble vindication of that eminent jurist from the harsh charge with
which his memory has been assailed. Time would not permit,
nor does the occasion demand, a minute dissection of the nu
merous decisions upon constitutional law pronounced by that
eminent man. It will be sufficient to establish his sacred regard
for the sovereignty of the States, his denial of the liability of a
State to be made a defendant upon original proceedings, his
disclaimer of all right in the Federal judiciary to determine ^o-
litical questions, and his restriction of its jurisdiction to ' cases '
in law or equity between parties liable to be summoned to its
forum. "Pending the debate iu the Virginia Convention, as to
whether a State was not liable to be sued under the grant of
judicial power, Mr. Marshall said :
" ' With respect to disputes between a State and the citizens of another
State, the Federal jurisdiction has been decried with unusual vehemence.
i Jiope no gentleman will think that a State will be called at the iar of the
Federal court. . . . It is not rational to suppose that the sovereign
power shall be dragged before a court. . . . It is said there will be
partiality in it if a State cannot be defendant; if an individual cannot pro
ceed to obtain judgment against a State, though he may be sued by a

JAMES PHELAN. 475
State. It is necessary to be so, and cannot be avoided. I see a difficulty
in making a State defendant which does not prevent its being plaintiff. '
" In 1800, one Robbins was brought by habeas corpus before
the district judge of South Carolina, when it appeared that the
prisoner was charged with having committed murder on the
high seas, on board a ship of war belonging to England. Re
quisition was made by the British minister that he be delivered
up, by virtue of the twenty-seventh article of the treaty of
amity between the United States aud Great Britain. At the
request of Mr. Adams, theu President, au order was made to
that effect. At the next session the subject was brought be
fore Congress by Mr. Livingston, of New York, by certain reso
lutions, one of which began as follows :
" ' Resolved, That inasmuch as the Constitution of the United States de
clares that the judiciary power shall extend to all questions arising under
the Constitution, laws, and treaties of the United States, etc. '
" In the debate which the resolutions elicited, Mr. Marshall
said :
" ' The gentleman from New York has relied on the 3d section of the
3d article of the Constitution, which enumerates the cases to which the
judicial power of the United States extends, as expressly including that
now under consideration. Before he examined that section it would not
be improper to notice a very material mis-statement of it made in the reso
lutions offered by the gentleman. By the Constitution, the judicial power
of the United States is extended to all cases in law or equity arising under
the Constitution, laws, and treaties of the United States ; but the resolu
tions declare the judicial power to extend to all questions arising under
the Constitution, treaties, and l^ws of the United States. The difference
between the Constitution and the resolutions was material and apparent.
A case in law or equity was a term well understood, and of limited signifi
cation. It was a controversy between parties which had taken a shape
for judicial decision. If the judicial power extended to every question under
the Constitution, it would involve almost every subject proper for legisla
tion, discussion, and decision ; if to every question under the laws and
treaties of the United States, it would involve almost every subject on which
the executive could act. The division of power stated by the gentleman
could exist no longer, and the other departments would be swallowed up
by the judiciary." ... By extending the judicial power to all
cases in law and equity, the Constitution had never been understood to

476 BENCH AND BAR OF MISSISSIPPI.
confer on that department any political power whatever. To come within
this description, a question must assume a legal form for a forensic litiga
tion and judicial decision. There must be parties to come into court who
can te reached hyits process andtound Try its power ; whose rights admit of
ultimate decision by a tribunal to which they are bound to submit. A
" case " in law or equity — proper for judicial decision — may arise under a
treaty where the rights of individuals acquired or secured by a treaty are
to be asserted or defended in court. But the judicial power cannot extend to
POLITICAL COMPACTS.'
" Can the Senator from Texas (Mr. Wigfall) conceive or ex
press a purer doctrine in regard to the judicial power, as con
nected with the sovereignty of the States, than this speech con
tains ?
"In 1824, in Osbern-us. United States Bank, Judge Marshall,
after quoting the judicial clause, reiterates the same principle, as
follows :
" ' This clause enables the judicial department to receive jurisdiction to
the full extent of the Constitution, laws, and treaties of the United States,
when any question respecting them shtM. assume such a form itint the ]\i-
dicial power is capable of acting on it. But that power is capable of act
ing only when the subject is submitted to it, by a party who asserts his
rights in the form prescribed by law. It then becomes a case. . . . The
words seem intended to be as extensive as the Constitution, laws, and
treaties of the Union, and designed to give the courts of the Government
the construction of all its acts, so far as they affect the rights of inbividit-
ALS. '
"Let me close this imperfect defence both of the Supreme
Court and of the eminent Chief Justice, by whom it was so long-
adorned, against the special distrust and criticism of the Senator
from Texas, by a reference to the opinions of Mr. Calhoun :
" ' I yield,' says he, ' to few in my attachment to the judiciary depart
ment. I am fully sensible of its importance, and would maintain it to the
fullest extent in its constitutional powers and independence.'
" Again : ' I must greatly lower my opinion of that high and important
tribunal for intelligence, justice, and attachment to the Constitution ; and
particularly of that pure and upright magistrate who has so long, and
with such distinguished honor to himself and the Union, presided over its
deliberations with the weight that belongs to an intellect of the first
order, united with the most spotless integrity — to believe, for a moment.

JAMES PHELAN. 477
that an attempt so plainly and manifestly unconstitutional as a resort to
force would be in such a. contest, could be sustained by the sanction of its
authority.' "Mr. President, it was asserted that to resist the pending
amendment was to favor the odious doctrine of federalism, and
to assume a position antagonistic to the principles of the Repub
lican party of early days. This charge swept within its com
pass a respectable portion of members on this floor. I denied
the imputation with an emphasis which disdained all com
promise, and defied the production of a particle of truth by
which it could be substantiated. Who has attempted to accept
the challenge, extorted from us by so severe au arraignment ?
' ' My whole argument, thus far, has tended not only to a gen
eral refutation of the charge aUeged, but to prove that the
maintenance of the law, sought to be repealed, was the doctrine
and design of the old Republican party. Let the proof be
more closely riveted. The memorable contest of 1798 brought
that party into existence. Mr. Madison,, more than any other
statesman, stood forth its parent and sponsor ; and his celebrated
Report has ever furnished the platform of the party, and the
exposition of its principles. He was a member of the first
Congress, in 1789, by which the Judiciary Act was passed, and
defended this appellate power of the Supreme Court over State
tribunals in the following emphatic language :
" ' Mr. Madison said it would not be doubted that some judiciary sys
tem was necessary to accomplish the objects of the Government, and that
it ought to be commensurate with the otlier branches of the Oovemment.
Under the late confederation it could scarcely be said that there was any
real legislative power ; there was no executive branch, and the judicial
was so confined as to be of little consequence. In the new Constitution
a regular system is provided. The legislative power is made effective for
its objects ; the executive is co-extensive with the legislative ; and it is
equally proper that this should be the case with the judicial. . . .
" ' Laying aside all other difficulties, a review of the Constitution of the
courts in many States will satisfy us that they cannot be lyrusted with the ex
ecution of the Federal laws. In some States they might be safe organs of
such a jurisdiction ; but in others they are so dependent on State legisla
tures that to make the Federal laws dependent on them would throw us

478 BENCH AND BAR OF MISSISSIPPL
back into all the embarrassments which characterized our former situa
tion. '
' ' The doctrine advanced by the Virginia and Kentucky resolu
tions of 1798-99 does uot deny the constitutionality of this ap
pellate power of the Federal Supreme Court in ' cases ' involv
ing the rights of individuals. They assert a principle in no way
connected with it. The fundamental doctrine they present, as
embraced in the third Virginia resolution, is ' that in case of the
exercise of powers not granted in the compact, the States who
are parties thereto have the right to inteepose for arresting the
e-vil, and for maintaining within their respective limits the
authorities and liberties appertaining to them.' It is only the
States, in their sovereign capacity as such — as parties to the
compact — and through the same medium by which they became
parties, that can thus ' interpose ' to arrest the execution" of
Federal laws. No single department of a State government can
do so ; and, until the State does thus ' interpose, ' mere indi-
-vidual rights, litigated iu the form of judicial ' cases ' arising
under the Constitution and laws of the United States, are recog
nized as being subject to the final adjudication of the Federal
judiciary. Until the State in its sovereign capacity does thus
interpose, its sovereignty cannot be involved ! This right of a
State thus to interpose was denied by the old Federal party,
who asserted, in the answers of their legislatures to the Virginia
resolutions, ' that in the Federal courts, exclusively, and in the
Supreme Court of the United States, ultimately, was vested the
sole authority of deciding on the constitutionality of every act
of the Congress of the United States.' To this Mr. Madison, in
his Report, thus replies :
" ' It is objected that the judicial authority is to be regarded as the sole
expositor of the Constitution, in the last resort. On this objection it may
be observed, 1st, that there maybe instances of usurped power which the
forms of the Constitution would never draw within the control of the
judicial department ; 3d, that if the decision of the judiciary be raised
above the authority of the sovereign pa/rties to the Constitution, the de
cisions of the other departments, not carried by the forms of the Consti
tution before the judiciary, must be equally authoritative and final with
the decisions of that department. But the proper answer to the objec-

JAMES PHELAN. 479
tion is that the resolution of the General Assembly relates to those great
and extraordinary occasions in which all the ordinary forms of the Consti
tution may prove ineffectual against infractions dangerous to the es
sential rights of the parties to it. The resolution supposes that dangerous
forms, not delegated, may not only be usurped and executed by the other
departments, but that the judicial department also may exercise or sanc
tion dangerous powers beyond the grant of the Constitution ; and, conse
quently, that the ultimate right of the parties to the Constitution to judge
whether the compact has been dangerously violated, must extend to viola
tions by one delegated authority as well as by another ; by the judiciary
as well as by the executive or the legislative.
' ' ' Moweter true it may be that the judicial department is, in all questions,
siibmitted to it by the forms of the Constitution, to decide in the last resort,
this resort must, necessarily, be deemed the last in relation to the authori
ties of the other departments of Government ; not in relation to the
rights of the parties to the constitutional compact from which the judicial
as well as the other departments hold their delegated trusts.'
" Mr. Jefferson, the friend of Madison, the champion of the
old Republican party, and the apostle of hberty, declared
" ' That the courts of the States retain all their judicial cognizances not
expressly alienated by the Federal Constitution. The Federal Constitu
tion alienates from them all cases arising under the Constitution, laws of
Congress, treaties, etc'
" Is it not wonderful that the alien and sedition laws, which
ouly violated the rights of the citizen, should have alarmed the
statesmen of that day, and aroused a tempest of popular indig
nation, which, rolUng its thunders to the Capitol, prostrated in
ruins a powerful party, and tore the obnoxious enactments from
the statute-book ; while an act now branded as a fell destiroyer
of the sovereignty of the States was then permitted to erect its
slaughter-house upon an opposite page of the Constitution !
Truly are we ' -wiser in our generation than were the children
of light.' . . .
" Let the emjjhatic asseveration of Mr. Calhoun finish the
proof. In defending the peculiar traits of his party against Mr.
Webster, in 1833, and in reply to au argument based upon tho
judicialpower of the General Government, Mr. Calhoun said :
" ' The clause in the Constitution which provides that the judicial power
shall extend to all cases in law or equity arising under the Constitution,

480 BENCH AND BAR OF MISSISSIPPI.
and to the laws and treaties made under its authority, has no bearing on
the points in controversy.''
" Mr. President, a word, and I have done. The principle of
the amendment, so far from elevating, trails in the dust the true
dignity of the States. It recognizes the omnipotent power of a
supreme bench, composed of a few judges, virtually to disrupt
their alliance with the Confederacy without the consent of the
people. It arms a single co-ordinate department of a State gov
ernment with the despotic prerogative of paralyzing aud arrest
ing at any moment, and against their will, the co-operation of
both the legislative and executive departments, in giving effi
ciency to the administration of the General Govemment. . .
" The principle deeply dishonors, in the estimation of mankind,
the lofty spirit and true -dignity of our common Confederacy.
National degradation in-vites indignity. In the elegant language
of Junius, ' Public Honor is security. The feather that
adorns the soaring bird supports his flight. Strip him of his
plumage, and you fix him to the earth. ' There is something
august and imposing in the idea of a State convoking in coun
cil the majestic sovereignty of its people, suspending its exist
ing governmental organization, and proclaiming in that popular
voice, which is as the voice of God, that it dissolves its political
connection with the Confederation, aud reassumes, as an inde
pendent State, its separate seat in the great coUege of nations !
The mighty consequences incident to such action are consistent
with the potent and imposing organ through which it is pro
claimed. . . . "

WILLIAM R. BARKSDALE. 481

WILLIAM R. BARKSDALE.
William Robert Barksdale -\vas born in Lauderdale County,
Alabama, on the 26th of April, 1834, but removed with his par
ents, in October of the same year, to the county of Yalobusha, iu
Mississippi. They were natives of Tennessee, and were intel
ligent and influential citizens, noted for their exemplary moral
and social worth, and for their domestic virtues and parental
solicitude. Aud the subject of this sketch, after having re
ceived the advantages of the best schools of his county, was
sent, in 1851, to the State University ait Oxford, where he grad
uated with distinction in 1855.
His deportment while at college was notably scholastic, and
his studious habits, strict observance of the rules, courteous
maimers, and high sense of honor gained the admiration and
esteem both of the professors and of his fellow-students, and he
developed during his collegiate course a vigor of inteUect aud an
inquisitiveness of mind which destined him for an eminent
sphere in life. So prominent were his scholarly attainments,
and so exemplary his integrity and moral habits, that, after hav
ing graduated, he was retained two years at the University as an
adjunct professor ; but, in 1857, having chosen the profession of
law, for which his talents seemed peculiarly adapted, he entered
the law school of the University, and in 1859 received his di
ploma from that department. He then returned to Yalobusha
County, establishedliis office in the to-wn of Grenada, and entered
immediately upon a brilliant professional career. But the ver
satility of his genius, his eloquent oratory, and ardent patriotism
were soon demanded in another sphere, and he responded with
alacrity to the public call, and entered the service of his State
with all the spirit and enthusiasm of his nature.
In the fall of 1860 he was chosen by the States Rights party,
of which he was a warm and strenuous advocate, to a seat in the
memorable convention which, on the 9th of January, 1861,

482 BENCH AND BAR OF MISSISSIPPI.
passed the Mississippi Ordinance of Secession, and, although he
was but twenty-six years of age, he was a conspicuous member
in that distinguished assembly. The vigor of his counsel, the
ardor of his patriotism, and the fire of his eloquence not only
challenged the attention and respect of the wisest men, but
kindled a glow which permeated the action of that body and
gave warmth to its proceedings.
But if Mr. Barksdale was ardent in his advocacy of secession,
he was equally ready to seal the act with his blood, and, at the
first call of his State for troops, in 1861, he responded to the
sound of its bugle, and from that day to the closing scene of the
struggle he followed the flag of the Confederacy -with Spartan
gallantry and patriotic devotion.
In 1862 he was promoted to the position of Adjutant- Gen
eral on the staff of General W. S. Featherston, with the rank of
major, and served in that capacity until 1864, when he was trans
ferred to the staff of Major-General Walthall. He was a faith
ful and efficient officer. General Featherston, in his eulogy on
his life and character, delivered in the Mississippi House of
Representatives in January, 1877, said :
" He was a model soldier, fearless in action, self-sacrificing
and noble in example. Like the heroes of the Roman Republic,
his country was his idol, upon whose altar no sacrifice was too
dear to be made. He followed the path of duty without reck
oning where it led — whether to victory or the grave. In the
storm of battle he was calm, self-possessed, and ever pressing
upon the foe -with undaunted courage. In camp, on the march,
and in all the various phases of a soldier's life, he was always to
be found iu the full discharge of his whole duty — au exemplar
to his comrades in arms. Aud although he rose not higher than
a major in the military service, he was in intellect and courage,
strategy, and all the elements of true generajship, capable of
higher command. He did not seek his own promotion : he rose
above all selfish thoughts, aud with all the zeal that could glow
in the heart of a pure patriot, looked alone to the independence
of his native South, and to the attainment of that end he directed
all the powers of "his mind and body."
At the close of the war Major Barksdale resumed the prac-

WILLIAM R. BARKSDALE. 483
tice of his profession in Yalobusha County, accepted with manli
ness the harsh degrees which Fate had pronounced against his
country, aud maintained the terms of the Southern surrender
with a faith which ouly the highest sense of honor could guar
antee. He applied himself diligently to the restoration of law, order,
aud good govemment ; and so vigorous and fervid were his efforts
in this respect, so just and pronounced the appreciation of his
ability aud integrity, that, during the excl usiveness of the
Radical regime, he was elected to the office of District Attor
ney, a position which he filled with an" efficiency that checked
the demoralizing effects of Radical policy aud re-established the
security of society. He was a bold and fearless officer, and fol
lowed the path of his duty regardless of circumstances. He
had no compromise to make with lawlessness, no leniency to
offer to crime and corruption, but his iaims were fixed upon the
goal of right, and he was guided only by the standard of integ
rity. In the great political revolution of 1875 Major Barksdale w-as
elected to a seat iu the lower House of the Legislature of Missis
sippi, and held a prominent position in that body. He took an
active part in the dethronement of Governor Ames and in the
dispersion of his notorious officials. His commanding yet
courteous dignity, his thrilling eloquence and marked ability,
gave him an influence that made its impression upon every
legislative act, and his opinions were emiuent among the criteri-
ons of -wisdom and expediency.
But in the noonday of his promise, and in the midst of the re
viving hopes of his country, to which he had so prominently ad
ministered, his career was suddenly ended, and Mississippi was
called upon to moum the death of one of her most devoted and
useful sons. He died at Grenada on the 10th of January, 1ST7.
Mauy beautiful and touching tributes were paid to his mem
ory iu both Houses of the Legislature, which was then in ses
sion, and his character and services were set forth in preambles
and resolutions, and by the speakers, in elegant and glowing
terms, while the members of the bar embalmed his memory in
honor upon the records of the courts of his county.

484 BENCH AND BAR OF MISSISSIPPI.
As a lawyer Major Barksdale was a safe and conscientious
counsellor. He was quick to perceive, yet cautious in his con
clusions. His mind was highly analytical in its operations,
and his judgment was the result of a thorough process of reason
ing. While his genius was of a superior order, he yet trusted
no specious paths of instinct, and relied upon no byways of in
tuition. His cases were thoughtfully and thoroughly investi
gated, aud he proceeded with the sure-footed pace of reason.
He was eminently a practical man, and, discarding the mere
theoretical and visionary, he sought only for the reasonable aud
the real. He viewed things in their tme relation, and when sat
isfied as to their character and significance, he acted upon his
own judgment. General Walthall, who was intimately ac
quainted with Major Barksdale, says :
" More than any man I ever knew, his conduct was regulated
by his head, and less by impulse or passion, but the proportions
of his character aud intellect were so harmoniously adjusted that
he could have had no safer guide. For his judgment was dis
passionate, neither colored by fancy or sentiment, nor distorted
by prejudice impervious to reason. His sense of duty was high
and pure, and his convictions of right and wrong were clear and
well-defined. His standard of justice was exact, his sense of
honor elevated, and his courage calm and fearless. Therefore,
both as concerned himself and those he dealt with, he could have
had no more unerring director of his course than his philosophic
mind, supported by his sound morality."
Major Barksdale was fond of the labors of his profession
His industry was systematic and unremitting, and he was assidu
ous in his searches for the solution of every question which pre
sented itself in his practice. He was consequently deeply
learned for one of his age and experience, and had his life been
prolonged, he would doubtlessly have become one of the most
profound lawyers of his time.
While he was too much devoted to the duties of his profession
to dally in the lap of society, he was full of charity and neigh
borly kindness, and his friendships, though slowly and cautiously
formed, were maintained with a knightly faith and growing
warmth. He was true to every conception of duty, faithful and

';^

^z-j

HARVEY W. WALTER. 487
frank to his cUeuts, and maintained toward the court and his
brother members of the bar an honorable dealing and a bearing
of uniform courtesy and propriety.
He was ambitious of applause and popularity, but it was
" that popularity which follows, and not that which is run after. ' '
He scorned a baseless reputation, and sought to lay a solid
foundation for the eminence which he strived to achieve— an
eminence founded in the solidity of his own proveu worth, and
erected pari passu -with his own development. Hence he was
an eamest and self-reliant man, devoted to the true, the real,
and the practical ; upon these he built his hopes, and upon
these rested his titie to the high character he enjoyed as citizen,
soldier, lawyer, and public servant.

HARVEY W. WALTER.
In all human existence there is no blending of virtues so rare
and admirable as that which characterizes the true philanthro
pist : which ehminates all idea of seK from human actions, and
devotes an individual to the service and welfare of his fellow-
creatures. Such was the character of the Saviour of mankind,
and we may only look for such along the path in which he trod
— among those who, like the subject of this sketch, have imbibed
his spirit and follow his teachings, which enjoin that " greater
love thau this hath no man, to lay down his life for his
friends." Harvey Washington Walter was born in Fairfield Co-imty,
Ohio, on the 21st of May, 1819, while, his parents, who
were natives of Virginia, were temporarily residing in that
State, and at an early age removed with them to Kalamazoo, in
Michigan, where they settled and lived to a venerable age.
They were noted and highly respected for their noble and gen
erous qualities', and it was from this source that Mr. Walter
imbibed in his earhest youth that noble spirit which adorned his

488 BENCH AND BAR OF MISSISSIPPI.
character, and stamped his life upon the pages of virtue and of
fame. During his early years his father enjoyed the possession of
wealth, and afforded his son every advantage ; but having sud
denly lost the greater portion of his property by au unfortunate
investment, he could no longer render him assistance, and at
the tender age of fourteen years young Walter found his fate
depending upon his own resources. But buoyed by his genius
and ambition, and supported by the staff of a virtuous resolution,
he stepped upon the journey of life ; aud while no glittering
prospects charmed his view, his destiny was haloed with the de
vout benisons of a father's blessing and the haUowed guerdon
of a mother's prayers.
These were his only patrimony. With these he went forth,
and his energy and determination soon cleared away the un
toward circumstances that clustered along his youthful pathway.
He alternately taught and attended school, and by this means
obtained a collegiate education. Having completed his course
in college, and seeking now for a propitious field for his future
labors, he turned his eyes towards the South, as if impelled by
those warm aud generous feelings which sought the accord and
mutuality always vouchsafed by that people with whom his lot
was destined to be cast. About the year 1838 he joined the
throng of emigrants who were pressing into the beautiful coun
try which had been recently acquired from the .Indians in North
Mississippi, and having determined upon the profession of law,
he taught school two years at Salem, in Tippah County, as a
means of support while preparing himseK for the bar.
In 1840 he obtained his license and located in Holly Springs,
where every prospect which energy, integrity, and talent could
engender in a fruitful field smiled immediately upon his career.
He soon took his position in the front rank of his profession, and
achieved pre-eminence at a bar which was scarcely excelled by
any in the South. His splendid talents and indomitable energy
were kindled and fueled by the able competition amid which he
began his forensic career, and the blaze of his eminence con
tinued in the ascendant. His ability extended in every direc
tion of usefulness, aud his name became associated with every

HARVEY W. WALTER. 489
entei-prise for the advancement of the interest of his county and
for the promotion of the honor and weKare of Mississippi.
It was mainly through his exertions that the Mississippi Cen
tral Railroad was projected and pushed to completion — an enter
prise which he foresaw to be necessary to the development of
the resources of his section of the State, and to the accomplish
ment of which he devoted his energy and means liberally and
unweariedly. Mr. Walter was an ardent friend to the interest of education.
He took great pride in the prospects of the University of Mis
sissippi, and was at the time of his death one of its trustees.
Refined and elevated iu his sentiments, temperate iu his habits,
and lofty in his aspirations, he was a devoted Christian and the
patron of every moral and religious promotion. He was long a
conspicuous member of the Masonic fraternity, and after having
presided over its various subordinate bodies, was, iu 1844, made
Grand Master of the State Lodge. He was a Mason not only
in the mere superficiahties of the order, but in heart, in prac
tice, and in all the walks of life.
Mr. W,alter was intensely Southern in his principles, yet as a
Whig he opposed the doctrines of secession until he considered
that measure an inexorable alternative to the dishonor and po
htical degradation of his people, and then he was ready, as he
was in everything that engaged his sympathies, to sacrifice what
ever its promotion might demand. He was a member of the
Mississippi Secession Convention, and served with great ability
upon the Committee on Federal Relations. No sooner had the
tocsin of war sounded than he girded himself for the struggle,
and as lieutenant of a company of infantry responded to the
first caU of his State for troops, in 1861. He was ordered to
Pensacola, and soon after reaching there was transferred to the
stafiE of General Bragg as Judge Advocate, and served in that
position with distinguished efficiency until the close of the
war. Colonel Walter accepted the conclusion of the conflict with .
the same conscientious aud abiding faith with which he had
drawn his sword, and returning to HoUy Springs resumed the
practice of his profession, counselled a conservative and dignified
31

490 BENCH AND BAR OF MISSISSIPPI.
policy, and devoted himself to the amelioration of the rigorous
circumstances of his people.
As a lawyer he was well read and profound. His comprehen
sion was ready and acute, the succession of his thoughts was
closely logical, and his argumentative powers clear, vigorous, and
incisive. The versatUity of his legal genius was remarkable,
and he seemed to be equally quahfied for eminence in either
branch of the profession, and his high sense of duty and devo
tion to the interest of his clients engaged on all occasions his
utmost powers. That distinguished jurist, Hon. A. M. Clay
ton, speaking of Colonel Walter, says : " He possessed in an
eminent degree the two most requisite characteristics of a law
yer — patience and perseverance. He saw his end clearly, and
never grew tired in pursuing it. He never saw but oue side of
a case, and that was his o-wn. He overlooked all obstacles that
stood in his way, and drove on to his conclusions regardless of
their presence, and if not always successful, he always presented
the strongest and most favorable view of his case."
His legal learning and powers of analysis are amply exhibited
in his briefs in the Reports of the Supreme Court. These are
too well known to the profession to require more than a passing
reference. His knowledge was ever at his command, and he
was never at a loss for rephcation or retort.
His stores of precedent were comprehensive, and which the
quickness and alertness of his memory and mental operations
enabled him to call to his support in every emergency. He
was a clear reasoner, an eloquent speaker, and possessed a mes
meric influence over the minds of juries.
As a citizen Colonel Walter had. no superior in his sphere of
neighborly usefulness. While he was conspicuous in every
public assembly, he was the centre of the social circle, and the
welcomed and honored guest of every private entertainment.
Generous and magnanimous in principle, he was courteous and
affable to all classes, and his opinion was deemed the criterion of
propriety and expediency.
But the crowning gem in his chaplet of exalted virtues was
the jewel of charity, which sparkled more brUliantly than that
which blazed in Diomede's crest or flamed in the imagination of

HARVEY W. WALTER. 491
the alchemist. He had always been noted as a man of good
deeds ; but it was when that besom of death, with its " woe-de
lighting train — the ministers of grief and pain," swept over his
devoted town, in 1878,- that this divine quality of his nature was
exemphfied with more than mortal glare. When the neighbor
ing town of Grenada had fallen into the arms of the inexorable
fiend, and its shrieks reached the gates of HoUy Springs, they
were thrown -wide open to its flying, homeless people, and Colo
nel Walter was mainly the author of the deed. He opposed all
quarantine regulations, and opened his heart, his hands, and his
house to the terror-stricken refugees, and when the fatal malady,
lurking in the clothes of the strangers, reached forth and seized
upon his own people, he counselled and urged them all to flee
for their lives ; but, said he, " As for me and my sons, we can
not go ; we must flght this foe ; we must succor our people and
administer to the sick, the dying, and the dead. ' ' Colonel Wal
ter's family was a remarkably interesting one. He was married,
in 1849, to Miss Fredonia M. Bro-wn, daughter of Colonel James
Brown, of Oxford, a lady of rare accomplishments and of an
exceedingly amiable character. From this marriage were born
ten children, nine of whom lived until the -visitation of the
scourge. He had promptly, at the outbreak of the fever, sent
his family away, except his three sons, who partook of the heroic
spirit of their father aud shared his glorious death.
While iu the midst of his charitable labors. Colonel Walter was
himseK stricken down, on the 19th day of September, 1879, and
his three sons foUowed him -within the same week. These noble
young men had but recently graduated vsdth distinction at the
university of the State, aud Frank was a law partner of his father,
while Avent and Jimmie were studying for the profession in his
office. When Frank, the oldest, was advised to leave, in the
beginning of the plague, he replied, ' ' No, I cannot go ; and
if Idle, let my epitaph be written in the one word — Duty." It
is said that it had always been his wish to be a great lawyer,
lead a blameless life, and that his death might be crowned with
some glorious act. On the fatal morning when he was stricken,
before retiring to his home to die, he went in person and select
ed his burial-casket, observing that as he had lived as a gentle-

492 BENCH AND BAR OF MISSISSIPPI.
man, he wished to be buried as one ; and ere the next day's sifn
the young man was laid away. Jimmie, who was acting as
postmaster of the city of the dead, died on the same day, pray
ing that his life might be spared for the sake of his mother and
httle sisters. Avent, who had fallen a few days before, went
away rejoicing at the thought of meeting his mother, his father,
aud his brothers and sisters in heaven. The pious death of this
young man would furnish a theme for a sermon that would echo
against the walls of eternity.
Thus perished this noble family, while standing in the breach,
while endeavoring to ward from others the shafts more fatal .
than the arrows of Apollo that twanged their fatal whiz through
the Grecian camps on the plains of Troy. Amid all these scenes
of terror, when the eyes of Heaven seemed averted from the
doomed people, Colonel Walter still bowed to the will of his
Maker. On one occasion a young wife who had just lost her
husband, and who now saw other members of her famUy dying,
half crazed with grief, wandered through the streets in despera
tion at her calamities. Colonel Walter met her and endeavored
to comfort and soothe her agonizing distress, but in the bitter
ness of her grief she cried out against the justice of God. His
eloquent and only reply was to reverently uncover his gray head,
and glancing upward, exclaim, " Though he slay me, yet will I
trust him."
No nobler martyrdom was ever recorded upon the pages of
history or hallowed the memory of mortal than that which
crowned the death of this good man and his three noble and
promising sons ; but they have their reward. Let them sleep.
Rest, honored ones, rest from your toil.
Beneath your own dear Southern soil.
With those you died for take your rest ;
Sleep on now with our loved and blest.
Sleep till the just Almighty One
Pronounce on you the sweet " Well done."

CHAPTER XIII.

THE COXVENTION OF 1861— THE CONSTITUTION OF
1868— THE PRESENT STATE OF MISSISSIPPI JUFJS-
PKUDEXCE.
THE BAR  EMINENT LIVING LAWYERS WHO ARE MORE THAN THREE
SCORE AND TEN TEARS OLD  SAMUEL J. GHOLSON  ALEXANDER M.
CLATTON  ALEXANDER H. HANDT  JAMES M. HOWRY  J. F. H.
CLAIBORNE.-*
The Convention of 1861, which -withdrew Mississippi from
the Federal Union, made no changes in its organic law. The
Constitution of 1832 was readopted, -with the addition of the
foUo-wing amendment :
" Be it ordained and declared, and it is hereby ordained and
declared. That the Legislature shall have power to fix the time
of holding aU elections, and may adjust the terms of office to
conform to any changes hereafter to be made, and may fix the
time for the commencement of its biennial sessions.
" Be it mdained and declared, and it is hereby ordained and
decla/red. That if any part of the present Constitution of the
State of Mississippi shall be in confiict with any ordinance
passed by this Convention, such part of the said Constitution
shall be held to be abrogated and annuUed to the extent of such
conflict, but no further."
These ordinances, however, contained nothing materially
repugnant to the existing Constitution, save the altered status
* It is to be regretted that the Honorable John W. C. Watson failed to
respond to the solicitations of the author in regard to data for his biog
raphy ; for his standing for many years at the bar of Mississippi surely
entitles him to a prominent place in the annals of its eminence.

494 BENCH AND BAR OF MISSISSIPPI.
of its political allegiance and the adoption of the Confederate
Constitutiou as the supreme law of the State ; and the courts
ha-ving fallen almost into disuse during the period of the war,
no improvement was ingrafted upon the judicial system by
legislative enactment.
But the Constitution of 1868 remodelled the entire judiciary
of the State, broke up the very fountains of its established order
of society, and instituted the era of a new political polity. The
High Court of Errors, and Appeals, with its elective judiciary,
was abolished, and a Supreme Court, consisting of three judges
appointed by the Governor, subject to the confirmation of the
Senate, was established and clothed with such jurisdiction only
as properly belongs to a supreme court. " The circuit benches
were also required to be filled by appointment, aud a separate
chancery court was established iu each county, with full juris
diction in all matters in equity and such as pertain to a court of
chancery. For this purpose the State was required to be
divided into districts composed of not more than four counties,
and the chancellors were made appointable in the same manner
as the circuit judges and the judges of the Supreme Court ; and
it authorized the Legislature to select such partisan papers as it
might see proper in the several counties as official journals. It
established the office of lieutenant-governor, who should by -vir
tue of his office be the Speaker of the Senate ; also a commis-
iouer of emigration and agriculture, who should be elected by
the Legislature on joint ballot, and substituted a county board
of supervisors for the old board of police.
It inaugurated a comprehensive system of pubhc schools, and
pro-vided for the appointment of a State superintendent of edu
cation, who, with the Secretary of State and Attorney-General,
should form a Board of Education for the management and in
vestment of the school funds under the direction of the Legisla
ture. It also provided for a superintendent to be appointed for
each county by the State board, but that office might be made
elective by the Legislature. It provided for the estabhshment of
au agricultural coUege, and devoted to its endowment the two
hundred and ten thousand acres of land donated to the State for
educational purposes by the Geueral Government.

THE CONVENTION OF 1861. 495
It enfranchised all competent citizens of the United States
who shall have resided six months iu the State and two months
in the county of their suffrage, and required an oath of the
electors to support and obey the Constitutiou and laws of the
United States, and of Mississippi, and affixed a clause that no
amendment made prior to the year one thousand eight hundred
and eighty-five should require a property or educational qualifi
cation for any person to become an elector. It prohibited the
uttering of private notes and biUs as money, and restrained the
State from participating in the stock of corporations, aud from
lending its credit to any private enterprise.
The Revised Code adopted at the session of 1880, and which
took effect in November, contains many important changes
and decided improvements iu the judicial practice of the State.
It has abolished the troublesome " writ of error," aud provides
that causes shaU be taken to the Supreme Court only by appeal,
and which shall not fail iu consequence of any irregularity, if
the appeUant will perfect his appeal as may be required by the
Supreme Court.
Dower aud courtesy are abohshed, aud husband and -wife in
herit respectively from each other, taking a child's part K there
are children, and the whole estate if there are no chUdren by
any marriage.
Married women are completely emancipated from aU common-
law disabiUties as to their separate property, and they may deal
with it aud bind themselves personally as if unmarried, and hus
band and wife may sue each other. The women are free from
every legal restraint except the bonds of matrimony.
Private seals are abolished, and neither their presence or
absence affects any instrument either as to rights or remedies.
Defect of religious belief does uot render one incompetent as a
¦witness. Persons charged -with crime may testify in their own behalf
in all cases in which the prosecutor is made a witness, or in
which the admissions or confessions of the accused are intro
duced as evidence.
With these decidedly improved features, and with the excep
tion of a few anomalous provisions in its Constitution placed

96 BENCH AND BAR OF MISSISSIPPI.
lere for partisan purposes, and not by the hand of her people,
le jurisprudence of Mississippi is, perhaps, as perfect and ele-
ated as could be devised by the -wisdom of men, while its bar
;ill partakes of that eminence which has so gloriously character-
;ed it from the first establishment of the State courts. While
le past holds out its beckoning visions of glory, the present
res with its living examples the heart of the rising generation,
ad presents to the gaze of ambition a personification of the
rightest memories of other days — days to which these men
jally belong, but whose spans of hfe the mercies of a benign
'rovidence have lengthened out and left as the last unextiu-
uished beacons of past greatness — as living landmarks in the
•ack of fame.
In presenting the sketches of the eminent hving gentlemen of
le Mississippi bar who are more than threescore and ten
ears of age, the author will, as far as possible, refrain from
.udatory observations upon their private character, however
inch it may be merited, for the reason that he deems it im-
roper, and that it would no doubt be distasteful to the distin-
iiished gentlemen themselves.

SAMUEL J. GHOLSON. - 497

SAMUEL J. GHOLSON.
Samuel Jonathan Gholson was bom in Madison County, Ken
tucky, on the 19th of May, 1808, but emigrated iu 1817, with
his father's family, to the northern part of Alabama, where his
youth was passed. His early education was very limited, being
such only as he couli obtain from the common country schools
of that period ; but he possessed a remarkable energy and an
ambition which knew no goal but success, and on arriving at the
age of manhood he studied law iu RusseUviUe, Alabama, under
the guidance of Judge Peter Martin. Iu 1819 he was licensed
to practice by the Supreme Court of his adopted State, and in
1830 removed to Mississippi and located as a lawyer at Athens,
in Monroe County, where he was married, in 1838, to Miss Rags-
dale, a lady conspicuous for her virtues.
In 1833 he was elected to the Legislature of Mississippi, and
was continued a member of that body by re-election until 1836,
when he was chosen to a seat in the United States House of
Representatives, at a special election held by order of the Gov
ernor, to fiU a vacancy in the Mississippi delegation occasioned
by the death of General David Dickson, and was returned for a
full term at the regular election in 1837. This latter election
was contested by his "Whig opponent, Mr. Word, in connection
-with Mr. Prentiss, who at the same time contested that of Colo
nel J. F. H. Claiborne, the circumstances of which are pre
sented in the sketch of the last-named gentleman.
The career of Mr. Gholson in Congress was marked with
-vigor and fidelity. He was vigilant and bold in the defence of
the interest of his section, and in the advocacy of the principles
of his party, and came repeatedly in conflict with Hon. Henry
A. Wise, of Virginia, who, supported by Mr. Bailie Peyton, of
Tennessee, both professed fireeaters, sought to play the rdle of
Mr. Randolph in the House, and not unfrequently attempted to
sneer down or intimidate their opponents.

498 BENCH AND BAR OF MISSISSIPPI.
On one occasion, after some rather rough and cutting remarks
made by Mr. GholsQu, Mr. Wise rose, and pointing to him, said,
" If impudence and ignorance constitute a blackguard, there
stands one." Mr. Gholson made a scathing reply, and " coffee
and pistols for two" was on the tapis^ but by the powerful in
fluence of Mr. Calhoun and other mutual friends, a duel was
prevented, though the two gentlemen never spoke to each other
afterwards. In 1838 Mr. Gholson was appointed by Mr. Van Buren to
the judgeship of the United States District Court for the State of
Mississippi, and retained his seat on that bench until the out
break of the civil war in 1861. While occupying this posi
tion au incident occurred which strikingly illustrated the pa
triotic character of the man. When Governor Quitman was
arrested by the United States authorities, charged with com
plicity in the expedition of Lopez, he was brought before
Judge Gholson, who was theu holding his court at Jackson, to
give bail for his appearance before the District Court at New
Orleans, the alleged locus crimiinis, to answer to the indict
ment ; but when the Governor appeared at the bar of the court
Judge Gholson ordered him to be released simply upon his
promise to appear and answer. He could uot consent to require
of the Governor of his State any other recognizance than his
word of honor. But no stronger obligation could have been
exacted from John A. Quitman.
Judge Gholson, having resigned his position, was elected a
member of the Mississippi Secession Convention, and partici
pated actively in the proceedings of that body. When the war
began he joined as a private one of the first companies raised in
his county, and was afterwards chosen its' captain. He was
wounded through his right lung at the siege of Fort Donelson,
and his company having been captured at the fall of that place,
he raised another and took the field under General Sterling
Price, participating in the battles of luka and Corinth, aud in
the latter engagement was badly wounded through his left thigh.
In the spring of 1863 he was appointed Major-General of
Mississippi State troops, and was placed in charge of the pro
tection of the railroads of the State against sudden incursions.

SAMUEL J. GHOLSON. 499
In 1864 he received two serious wounds in au engagement -with
Denver near Jackson, and on the 27tli of December of the
same year received a wound in the fight with Grierson's com
mand, at Egypt, Mississippi, which caused him to lose his left arm.
Why Judge Gholson was not appointed to the bench of the
Confederate District Court for Mississippi is somewhat inexpli
cable. It is, indeed, strange that he should have been permitted
to descend from a bench which he had so long and so worthily
occupied, and, at his age, muster himseK into the ranks as a pri
vate soldier. H6 had been a hfelong friend of Mr. Davis, per-
sonaUy, pohtically, and officially ; and the neglect was not in
conformity -with the kuown constancy and rewarding policy of
the Confederate President. It may have been, however, that
this position being necessarily of a sinecure nature during the
existence of the war, Mr. Davis, knowing his fiery ardor, de
sired the mUitary services of Judge Gholson, and which he in
tended, in time, to properly recognize had not the latter been so
disabled by wounds which he received at the outset. Bat, be
this as it may, no complaint escaped the lips of Judge Gholson.
He did not halt to inquire about political ethics or the measure
of his o-wn deserts, but sought only the efficiency of action, and
desired only that capacity in which he could best serve the in
terest of his country.
At the termination of the war General Gholson resumed the
practice of his profession ; but the people again demanded his
services, and in 1866 he was elected to represent his county in
the lower branch of the Legislature. In 1878 he was again
elected to a seat in that body, and was chosen Speaker of the
House. As a lawyer, as a legislator, as a judge, and as a soldier, the
career of General Gholson has been briUiant and exemplary.
His predominant traits are a sound judgment, an untarnishable
integrity, and an indomitable resolution. His perception is ac
tive and penetrating, and his analytical and synthetical powers
constitute him a dialectician of the first order. As an orator his
style is plain, logical, and terse. He is a profound lawyer, and'
loves his profession with the fervor of a devotee. He is still
practising in Aberdeen, -with the vigor of much younger years.

500 BENCH AND BAR OF MISSISSIPPI.
With a constitution which neither ball nor bomb nor blast
could apparently shake, his mind has kept pace with his phys
ical vigor, aud while old age has planted its tracks upon his
brow, the weight of years seems to have no burden for his
brain. Looking back with no regrets upon the past, he rejoices
in the hopes which he has lived to see burst forth upon his
country through the clouds which so long hung like a pall of
darkness over it. His patriotism is as sacrificial as that of
Regulus, as prompt as that of Cincinnatus, as faithful as that of
Franklin, and as ardent as that of Washington ; and when the
great key-note of time shall sound the requiem of this grand old
man, none will go up before the great High Court with a
brighter record of all that constitutes the upright judge, the
faithful counsellor, the useful citizen, the true friend, and the
honest man.

ALEXANDER M. CLAYTON.
Among the distinguished gentlemen whose talents have
adorned the bench and bar of Mississippi, there is no one whose
career is more conspicuously identified with its jurisprudence
than the venerable gentleman whose name introduces this
memoir. Alexander M. Clayton was born in CampbeU County, Vir
ginia, on the 15th of January, 1801. His opportunities for ob
taining an education were confined to the ordinary schools of
the country ; but possessing an innate vigor of high resolve, and
actuated by a spirit of lofty purpose, on arriving at his ma
jority he entered a law office in the town of Fredericksburg, and
after a diligent preparation was admitted to the bar in 1823.
He then located himself and commenced practice at Louisa
Court-House, where, in 1826, he married Miss Thomas, a lady
of culture and refinement, and a descendant from ancestors of
Revolutionary repute. His early professional prospects were
flattering, but the lucubrationes of a young lawyer at the bar of

<^i^. ^ .i^^^y^

ALEXANDER M. CLAYTON. 503
Virginia at that period were defined by an arbitrary custom, and
often painfully prolonged ; and chafing under restraints which
prevented the immediate and full development of his talent^ ,
Mr. Clayton sought a more ample and less ceremonious field,
and removed to Tennessee and settled at the fiourishing town
of Clarks-viUe. Here he met many distinguished lawyers, such
as Hon. Cave Johnson, Judge WilUam Brown, Judge William
Turley, and others, by whom the talents of the young Virginian
were immediately recognized, aud they gave him a kindly aud
friendly reception. He had been but a short time in Clarks-
-viUe before he was employed in some of the most important
cases at that bar, and established a reputation which placed him
in the first rank of his profession. He then formed a copartner
ship -with Mr. Turley, which continued as one of the leading law
firms in that portion of Tennessee until the latter was elevated
to the bench. But in the midst of his professional triumphs
Mr. Clayton met, in 1 832, with the greatest of reverses in the
loss of the devoted wife who had espoused his early fortunes,
encouraged liis youthful hopes, aud inspired his professional
ambition. This event was a severe shock to his sensitive and
affectionate nature, and seemed for a time to unsettle his plans,
to mar his hopes, and to cast a settled gloom over all his pros
pects. But, fortunately, a circumstance intervened which prom
ised some relief to his mind and drew him away from the scenes
of his sorrow. He was appointed by General Jackson, then
President of the United States, to the position of United States
Judge for the Territory of Arkansas. He held this office, how
ever, for only one year, and then resigned and returned to
ClarksviUe. While in Arkansas he had occasion to visit the
country bordering on the Mississippi River, where the cholera
was then raging with fatal malignity, and having contracted
this terrible disease in its most virulent form, his constitution
was prostrated to such a degree as to indicate a settled infirmity
fatal to the performance of his professional duties. But after a
protracted state of physical debility the healthful breezes aud
inspiring scenes of his early trimnphs restored his health, and
now catching the enticing reports of the exceeding fertihty,
the scenic beauty, aud flushed prospects of the country which

604 BENCH AND BAR OF MISSISSIPPI.
had been lately ceded to the United States by the Chickasaw
and Choctaw Indians in Northem Mississippi, he removed to this
State in 1837, and settled on a plantation near the present village
of Lamar, in Marshall County. His agricultural operations were
successful. The forests, which had never echoed but to the
whoop of the Indian, were soon felled by the slaves which he
brought with him from Tennessee, and bountiful crops were the
reward of his judgment and enterprise. He, in the mean time,
however, relaxed none of his energy and devotion in the pursuit
of his profession. He found in this State a vast fleld of litiga
tion, and entered immediately upon a lucrative and growing
practice. The loose system of banking establishments, their
numerous failures, and the efforts made to fix liabihty on the
individual members of these corporations, have already been re
ferred to iu this work as fruitful sources of litigation at that
period in Mississippi.
In 1842 Mr. Clayton was elected to the bench of the High
Court of Errors and Appeals to fill a vacancy occasioned by the
resignation of Mr. Justice Trotter, and in 1844 was re-elected
for a fuU term. His decisions are remarkable for profound
learning, and for the many novel and important principles
which they established in our jurisprudence. They are always
clear and penetrating, embrace every hinging feature, and pre
sent a lucid exposition of every point necessary to disclose clearly
the rights of the parties and the equity involved in the dispute.
Whilst upon the bench of the High Court, Judge Clayton de
livered a series of opinions involving the question of the limita
tion of estates in our jurisprudence. These opinions, which met
with the concurrence of the other judges, inculcated the doctrine
that the Mississippi Statutes had so far modified the common
la-w as, of themselves, to furnish rules amply sufficient to de
termine all questions of that character -without recurrence to the
artificial and technical principles of the English law.
And notwithstanding that, after his retirement from that
bench, the High Court in the case of Jordan vs. Roach over
threw the doctrine which Judge Clayton had laid down, the new
Code of Mississippi, 1880, by formally abolishing the rule in
Shelley's case, and adopting provisions in support of his doctrine.

ALEXANDER M. CLAYTON. 505
confirms the wisdom of his efforts to emancipate our juris
prudence from such antiquated technicalities.
A striking parallel lietween his manner of treating a question
and that of Judge Sharkey is presented in their separate opin
ions in the case of Montgomery et al. vs. Ives et al. (13 S. ife
M., 161). Their conclusions iu this case are identical, but
reached upon grounds somewhat different, and which involve a
conflict in the legal construction of historic data.
Judge Clayton's term upon the High Bench expired in 1851,
and he was a candidate for re-election ; but as he had taken
strong grounds for the doctrines of the States Rights party a
short time before iu the Nashville Convention, and iu the Mis
sissippi Compromise Convention, held in the early part of 1851,
as well as during the canvass, iu which an address which he
pubhshed to the people constituted mainly the platform of the
campaign, he shared the defeat of his party and returned to a
-vigorous practice of his profession, in copartnership with Hon-.
J. W. C. Watson, of Holly Springs.
On the election of Mr. Pierce to the Presidency he tendered
to Judge Clayton, -without solicitation on his part,- the position
of consul to Havana. This office he accepted, and repaired to
the island of Cuba. At that time there was considerable ex
citement in the Southern States, caused by a report raised, uo
doubt by filibusters, that a treaty had been formed between
France, England, and Spain for the purpose of " Africanizing
Cuba." Judge Clayton received instructions to investigate the matter
and ascertain the truth as to the existence of such a treaty, and
he entered zealously upon that duty. Having availed himself
of every source aud means of information, he became satisfled
that the alarm was false, and his report to his government to that
effect calmed aU apprehension in regard to it, and the strict
enforcement of the neutrality laws during his residence in the
island pUt an end to the projects of the filibusters. It was not
long, however, b.efore the failure of his health aud uncongeni-
ality of the situation caused him to resign and return to his
home in Mississippi. But being attracted by the rapid growth
and commercial prosperity of Memphis, he sooh after removed

506 BENCH AND BAR OF MISSISSIPPI.
to that city and formed a copartnership with Judge Archibald
Wright and D. M. Currin.
This firm enjoyed a large patronage ; b'ut Judge Clayton had
not been long in Memphis before the unmistakable omens
which began to flit across the political skies stirred his patriotic
anxieties. He was a member of the Charleston Convention, and
of that subsequently held at Baltimore, aud when he saw the
dark shadows of the approaching storm gathering along the hor
izon he stepped boldly into the arena of action. He returned to
Mississippi, and in 1861 was chosen a delegate from Marshall
County to the convention which withdrew Mississippi from the
Federal Union.
In this body, as chairman of the committee appointed for that
purpose, he presented an able address setting forth a declaration
of tiie immediate causes which induced aud justified the seces
sion of the State of Mississippi from the Federal Union. He
was also chosen one of the seven delegates to the Montgomery
Convention, and was subsequently ordained to a seat in the Pro
visional Congress of the Confederate States. His services dur
ing this period were of marked efficiency. His great legal
learning, calm and conservative judgment, and unswer-ving
fidelity to the interest of his people, rendered his counsel at
once weighty and influential.
When the Confederate Government was inaugurated Judge
Clayton was appointed to the bench of the Confederate District
Court for Mississippi, aud held that position until the close of the
war. There was during this period, of course, but little civil
business before his court, and only one point of a general in
terest in the laws of war was decided by him, which was, that
where the Govemment was powerless to protect, it had no power
to punish.
After the close of the yrar he was appointed, on the death of
Judge Trotter, to a seat on the circuit bench, and was elected
afterwards for a full term, but was removed by Governor Ames
in consequence of his inabihty to take what was called the iron
clad oath.
He has always taken great interest in the cause of education
and in all public enterprises. He was made a trustee of the

ALEXANDER M. CLAYTON. 507
State University upon the establishment of that institution, and
still maintains that relationship. He was also a chief promoter
of the constmction of the Mississippi Central Railroad, and was
for several years oue of its directors.
His legal attainments are comprehensive and profound, and as
a constitutional lawyer his abihties are pre-eminent.
Judge Clayton has always been a devotee of the pure and
fundamental principles of the American Constitution, and iu his
legal eye the decision of the United States Supreme Court in
the Dred Scott case was a just and tme vindication of Southern
rights, and triumphantly repeUant of the assaults of Northem
fanaticism ; but when he saw the doctrines laid down in that
case rejected, the courts contemned, and the Constitutiou itself
repudiated, he saw no remedy for the South but iu secession.
He maintained the spirit of constitutional law with great abihty
and fervor, but the wisdom and experience of Nestor could
not avert the disastrous results of the quarrel of Achilles and
Agamemnon, and Judge Clayton retired from the scene amid
the -wreck and ruin of his country ; but now, iu the eightieth
year of his age, he has lived to see the smouldering ashes cleared
away, the past, save the remembrance of its grandeur, fast sink
ing into obli-vion, and his country putting on the robes of a new
prosperity, rising
Like Thebes, or some razed city, from its tomb
In beauty, as if never man-ed by shot or bomb.
And looking back through the checkered vista of fourscore
years, he has seen the blossom and the fruit of its greatness, and
the destruction of all save those eternal principles which reside
only in the mind of integrity and the heart of the patriot.
In 1879 he lost his second wife, with whom lie had lived in
the warmest affection and in the bonds of unbroken harmony
for more than forty years, who was to him a true and devoted
friend. He now resides at his home near the -village of Lamar, in Ben
ton County, Mississippi, in quiet seclusion, ha-ving withdrawn
from all public affairs, and if the good wishes of his country and
the esteem of his fellow-citizens can soften the bed of death, his
last rest will be upon a couch of down.

508 BENCH ANTD BAR OF MISSISSIPPI.

ALEXANDER H. HANDY.
The subject of this sketch was born iu Somerset County,
Maryland, on the 25th of December, 1809. He was well
educated, and, having obtained his license as a lawyer, removed
to Mississippi in the year 1836. In January, 1837, he was ad
mitted to the bar of the High Court of Errors and Appeals,
and entered at once upon a most successful professional career.
In 1853 he was elected to a seat upon the bench of the High
Court over Judge William Yerger, who was then upon the
bench, but who had rendered himself unpopular with the
dominant party in consequence of his opinion in the case of
Johnston vs. The State, in which he maintained the liability of
the State for the payment of the bonds of the Union Bank.
Judge Handy held this office untU October, 1860, and was then
re-elected without opposition.
In 1865 he was again elected a judge of the High Court over
George L. Potter, and iu January, 1866, was appointed Chief
Justice of Mississippi. In November, 1866, he was re-elected
without opposition, but resigned the position on the 1st day of
October, 1867, by letter to the Governor, in consequence of the
court's being placed by tljie Federal Government in subordina
tion to the military power of the United States.
He then removed to the city of Baltimore and resumed the
practice of his profession, but was soon after appointed Profes
sor of Law iu the University of Maryland, which position he
held until 1871, when he returned to Mississippi and resumed
the practice of law at Jackson, and in October, 1877, was ad
mitted to the bar of the Supreme Court of the United States.
Judge Haudy has always been a firm believer in the doctrine
of States rights, is immovably Southern in his views, and fa
vored secession both as a right and a necessity. He was ap
pointed by the Governor of Mississippi, in December 1860,
as a commissioner to the State of Maryland in relation to

ALEXANDER H. HANDY. 509
the pohtical crisis then existing ; and faihng in his efforts to
communicate with the Legislature of that State, in consequence
of the refusal of its Governor to convoke that body, Judge
Handy addressed himseK directly to the people, and in his
speech delivered at Princess Anne, on the first day of January,
1861, presented the subject of secession — its right and its reason —
in a lucid and elaborate manner. He depicted, with the ken of
inspiration, the pohcy and purposes of the party about to take
possession of the Federal Govemment, aud showed that the
principles announced by the President-elect and the leaders of
his party were subversive of all equality in the Union, destruc
tive of the rights of the Southern people, and virtually a revolu
tion of the Government. But, although the people of Maryland
were aroused by his presentment of the situation, they could do
nothing in -view of the action of the State Govemment.
In 1862 Judge Handy wrote and published a pamphlet
entitled " Secession considered as a Right in the States compos
ing the late American Union of States, and as to the Grounds of
Justification of the Southern States in exercising the Right. " In
this treatise he thoroughly and ably discussed the fundamental
principles of the American Government, the conditions upon
which it was created, and its interpretation by the authors of the
Federalist. The work is a profound and instructive constitu
tional argument, which every lawyer should read who seeks a
thorough knowledge of the history, character, and interpreta
tion of the Constitution of the United States.
Judge Haudy is a fluent speaker, a polished -wi-iter, and an
interesting compauiou. The qualities which so eminently fltted
him for a judge designated him for other marks of distinction,
and in 1861 the title of LL.D. was tendered him by the
faculty and trustees of the University of Mississippi, but his
modesty impelled him to decline the honor ; aud in 1867, on
his resignation as a judge of the High Court, he was offered the
position of Professor of Law in the same institution, but that was
also declined.
As a lawyer Judge Handy is leamed aud profound, and his
legal learning is united to a character of unspotted integrity,
and is blended with a purity which eminently fitted him for the

510 BENCH AND BAR OF MISSISSIPPI.
bench. As a judge, his uniform urbanity, together with his
able and dignified manner of administering justice, excited the
admiration of the bar. His decisions are searching and compre
hensive, clear and logical in enunciation, and exhaustive in
their elucidation of the rights of the parties. His opinions
are numerous, aud enter largely into the composition of sixteen
volumes of the Mississippi Reports, from vol. 26 to vol. 41,
inclusive. They are characterized by an independence of thought and a
self-reliance which bespeak the possession of resources rarely
acquired, and a fertility of legal geuius which only a clear and
well-defined sense of right and wrong could inspire, and which
only talents of the highest order could develop.
These decisions constitute for his fame a far more splendid and
enduring monument than all the pillars and shafts that mechan
ism could rear, and are records more glorious than all the vol
umes of praise and adulation that history could produce.
Through them his name is inscribed luminously and indelibly
upon every title-deed, every tenure, and every relation of the
society of Mississippi.
Judge Handy now resides in Canton, Madison County, and is
stiU engaged in the practice of his profession.

JAMES M. HOWRY. 511

JAMES M. HOWRY.
James Moorman Howry was bom in Botetourt County, Vir
ginia, on the 4th of August, 1804. His ancestors came from
Europe prior to the American Revolution and settled in Vir
ginia and Pennsylvania. His father removed to Tennessee iu
December, 1811, and located near Rogersville, where the sub
ject of this sketch was reared aud educated. His education,
though not finished, was solidly moulded iu a classical academy
in that town, and was steadUy enlarged by his studioiis habits
aud inquisitiveness of mind.
He was au industrious and energetic boy, and he even now
takes great deUght in boasting of the thrifty and vigorous
habits of his youth. At an early age he was placed in the
mercantile house of Francis Dalzell, iu Rogersville, where he
acquired that capacity for business which has characterized his
life as one of gi'eat usefulness and activity. He was subse
quently employed, for several years, in the office of the chan
cery clerk of his county, where he obtained considerable know
ledge of the functions of equity, and imbibed a fondness for
forensic proceedings and an ambition for legal distinction which
finally induced him to launch into that sphere and decided the
fortune of his Ufe.
But not yet supplied with sufficient means for his purposes, he
conducted for several years a mercantile house for oue Colonel
George Hale, and during the latter part of this time devoted
his spare hours to the study of law. He then entered the law
office of Govemor Peter Parsons, of Rogersville, and for two
years apphed himself diligently to a thorough preparation for
his chosen profession. His studies were iuterrupted only by
the ardor -with which he embraced the martial rage excited by
the war of 1812, and which had not yet subsided. He aban
doned the study of law and entered a mihtary academy, and at
the age of seventeen was elected first lieutenant of a company,

512 BENCH AND BAR OF MISSISSIPPI.
at the age of nineteen was made captain, at twenty-two a major,
and then colonel commandant.
Resuming the study of law, he obtained license and practiced
one year at Rogersville, and then removed to Middle Tennessee,
where he rose so rapidly in his profession that at the ensuing
convention he lacked but one vote of being nominated for Attor
ney-General of the twelfth Tennessee district, to which office he
was afterwards appointed by Governor Carroll. He was for sev
eral years clerk of the House and Senate of the Tennessee
Legislature, and during the performance of these duties the
members of the bar at the courts in which he practiced volun
tarily attended to his cases.
He removed to Mississijjpi in the year 1836, and located in
Oxford, where he has since resided, and is now the oldest inhabi
tant of that place. He soon attained a large and lucrative prac
tice at the bar of his adopted State, and was one of the most suc
cessful lawyers of that period.
In 1840 he became the Democratic candidate for the office of
Circuit Judge, but the unpopularity of Mr. Van Buren iu North
em Mississippi, whose cause he espoused in the canvass, pro
moted the election of Judge Iluling, who was a supporter of the
hard-cider ticket. This election was held to fill a vacancv. and
in 1841, at the regular election, Colonel Howry was elected to
the circuit bench for a full term, his opponents being Alexander
M. Clayton aud Judge Huling. His fi-rst court was to be held
at Holly Springs, in December. His commission had been duly
forwarded by Governor McNutt and entered upon the records
of the court, and he had taken his oath of office. But iu the
mean time Judge Huling claimed that, notwithstanding the
specialty of his election the preceding year, he was entitled by
its virtue to retain his seat during the full succeeding term,
and when the day for holding the court at Holly Spriugs
arrived he ascended the' bench, it is said, before he had par
taken of his breakfast, and having secured the services and sup
port of a deputy sheriff of his pohtical faith, caused him to pro
claim the court to bp open.
The clerk, who was^ a Howry man, refused to serve him,
and iu this posture he remained until ten o'clock, at which

JAMES M. HOWRY. 513
time Judge Howry made his appearance, the high sheriff opened
the court, and the clerk seated himself at his desk. The court
house was fiUed with excited people, who were divided in their
sympathies. Judge Howry, pointing to Judge Huling, ordered
the sheriff to take that man away. The sheriff replied that
while he believed Judge Howry to be the rightful incumbent
it was not a matter resting in the power of his decision, and re
fused to hurl Judge Huling from the bench ; and after fining
each other alternately several times, the two judges adjourned
respectively. Judge Howry until two o'clock in the afternoon,
aud Judge Huling until nine o'clock of the next morning. In
the evening Judge Howry's court met, pursuant to the morn
ing's adjournment, and he adjourned again until haK past
eight o'clock of the next day, which placed his reoccupation of
the bench a haK hour iu advance of his rival, and procured him
relief from any further interruption.
The Huling party then proposed that a case should be made
up for the decision of the High Court, which was agreed upon
aud sent up under the style of Lemuel Smith vs. HaKacre. The
docket was theu cleared by continuances, and the mutual consent
of counsel to wait until the title to the judgeship should be de
cided. The case was called up before the High Court in Janu
ary, 1842, and was decided in favor of Judge Ho-wry.
Here I cannot refrain from noticing an event of a personal
nature that occurred soon after he ascended the bench.
In 1843 Judge Howry was holding court, by interchange
with Judge Adams, at Athens, in Monroe County, and while
sitting upon the trial of a negro for murder a fierce controversy
arose between General Reuben Davis and Judge Frank Rogers
in regard to the competency of a juror. The judge promptly
decided the question, and took occasion to admonish the counsel
of their wrangling ; and when Mr. Davis, in the youthful ardor
of a fiery temperament, continued to pursue the quarrel with Mr.
Rogers, the judge fined him fifty dollars, for which Mr. Davis
attacked him in the haU as soou as the court was adjourned aud
demanded to know why he had been fined. The judge replied
that he, did not, out of court, give explanations of his action on
the bench ; upon which Mr. Davis struck him a slight blow in

514 BENCH AND BAR OF MISSISSIPPI.
the face with his open hand. The judge, casting his eyes
around, discovered a carpenter's hammer lying on a shelf near
by, and, seizing it, gave his antagonist a blow that caused a
severe rent across the crown of his head. Mr. Davis, in the
mean time having drawn a small knife, was cutting vigorously
at the judge's jugular, when they were separated, bleeding from
mutual wounds whose marks they bear to this day.
On the next moming Judge Howry informed the lawyers that
he would hold court for them no longer, for the reason that
some of them stood by and suffered a visiting judge to be put
in jeopardy of his life, and by one of their own number. It was
accordingly adjourned.
General Davis, in speaking of this affair to the author, said,
laughingly, that when his friend Howry failed to argue his
notions of -law into his head, he tried to hammer them in. The
matter was, however, adjusted, and for thirty-seven years the
two gentlemen have been fast and mutual friends, and many
acts of kindness and friendship have passed between them.
On the establishment of the University of Mississippi, in 1844,
Judge Howry was appointed oue of the trustees of that institu
tion, and his services on that board were acknowledged by his
colleagues to be of the highest efficiency, and their records
teem with resolutions and tributes to that effect.
His energy and attentiveness iu superintending the erection
of the buildings, in putting the institution into operation, and
his continued services in promoting its interest as chairman of
the executive committee and afterwards as secretary and treas
urer of the board of trustees, are well known to the alumni and
the country, and connect his name inseparably with the estab
lishment and fortunes of the institution. His connection with
it continued until it fell with the State under the control of the
Republican party, when the stanch Democracy of Judge Howry
precluded his reappointment by Govemor Alcom, and he was
forced, with his coUeagues, to give place to henchmen of the
Republican Governor.
In 1857 he was nominated by a convention of the Demo
cratic party of his county, and elected to a seat in the State Sen
ate, in which he served two terms, and distinguished his legis-

JAMES M. HOWRY. 515
lative career by the zeal and abiUty with which he advocated
the interest of the university.
He has always been an active promoter of all public enter
prises, and has devoted much of his time to the advancement of
the interest of the town and county of his residence. FuU of
generosity, charity, and personal enterprise, he has been an
active patron of every meritorious cause.
His position in the Masonic fraternity is well kno-wn through
out both Tennessee and Mississippi. He presided for many
yeai's over the lodge and chapter, was Grand Master of Missis
sippi, and Grand High Priest of the chapter.
The long career of this distinguished gentleman furnishes one
continued and brilliant example of a lofty and well-directed am
bition, an incessant round of duty vigorously and conscientious
ly peri'ormed — a pathway paved with industry and enterprise,
and glowing with beneficence aud honor.
Asa lawyer Judge Howry is noted for his practical genius
and accurate comprehensiou of fundamental principles. His
knowledge of the law extends to a depth which can be attained
only by the joint exercise of dihgence, temperance, and talent ;
and these qualities, joined to kiudness of heart and gentUity of
manners, disclose the cause of his successful hfe.
His strict attention to business, his stem integrity, and the
faithful and ardent apphcation of his time and talent to every
trust reposed in him by his feUow-citizens, gained for him their
admiration and esteem — the highest earthly rewards that can be
bestowed upon man ; and, laden with these, he has borne them,
untarnished aud undiminished, down to the hoary verge of four
score years.

516 BENCH AND BAR OF MISSISSIPPL

J. F. H. CLAIBORNE.
While this distinguished gentleman was never a practitioner at
the bar of Mississippi, he occupies a place so conspicuous iu its
political and literary annals that the omission of his biography
would stamp the seal of incompleteness on auy work professing
to treat of Mississippi eminence.
J. F. H. Claiborne was bom at Natchez, in the Mississippi
Territory, in the year 1809. He is the eldest son of General F.
L. Claiborne, who devoted the best years of his life to the mili
tary service of the United States, and died in 1815 from the
effect of wounds that had never healed. At the age of fourteen
years he was sent to his relations in Virginia to be educated, and
four years afterwards entered the law office of his distinguished
kinsman, Hon. Benjamin Watkins Leigh, of Richmond. While
there he was seized with a slight attack of hemorrhage which
alarmed his friends, and it was deemed ad-visable that he should
return to the milder climate of Mississippi. He resumed his
studies iu the office of Griffith & Quitman, at Natchez, but was
soon compelled to abandon them and go to sea for his health.
He repaired to Cuba, and spent the winter on the south side of
the island. On this trip, and during his residence there, he
chanced to have for his companion a young man in delicate
health who afterward became distinguished as the famous James
Bowie, the inventor of the Bowie knife, the hero of the great
rencounter at Natchez, and finally a martyr of the Alamo, where
he was engaged in initiating the great scheme of Spanish land
claims which afterward produced so much litigation in Louisi
ana. After having resided six months in Cuba, Mr. Claiborne
returned to Virginia and entered the law school of General
Alexander Smyth, one of the most eminent jurists of that com
monwealth, at Wytheville, and in less than twelve months, hav
ing been.examined by Judges Johnston, AUen, and Saunders,
he was duly admitted to the bar.

J. F. H. CLAIBORNE. 517
On his return to Natchez he found the people greatly agi
tated by the contest between Adams aud Jackson for the Presi
dency, and he was prevailed on, by the Jackson executive com
mittee, to take charge of the editorial columns of the paper
theu published by the venerable Colonel Andrew Marschalk.
This step, and delicate health, again diverted him from the pur
suit of his profession, aud from that time his talents were de
voted to pohtics.
Before he had attained his majority he was elected to repre
sent his native county iu the Legislature, and was twice re
elected by large majorities. He then removed to Madison
County, and while iu his twenty-fourth year was nominated by
acclamation in the first Democratic convention that had assem
bled in the State, as a candidate for Congress for the State at
large. Mr. Claiborne was not present at the convention. Hon.
Daniel W. Wright, of Monroe County, at that time one of the
most popular men in the State, and afterwards judge of the High
Court, was likewise nominated by acclamation, but declined the
candidacy, and Benjamin W. Edwards, of Hinds County, a man
of high character and flne talents, was substituted. This was
the last year of General Jackson's administration, and the people
of Mis.sissippi were nearly equally divided between the adherents
of Mr. Van Buren, of New York, and Mr. Hugh L. White, of
Tennessee, who were candidates for the Presidency.
Messrs. Claiborne and Edwards were for Van Buren. Their
opponents on the White ticket, in alliance with the Whigs,
where James C. Wilkins, of Natchez, and General David Dick
son, of Hinds County. Though the nominees were thus put for
ward as pohtical antagonists, representing different parties or
factions, yet it seems that the people did not so regard them,
and after a thorough canvass by the several candidates, during
which Mr. Claiborne addressed the people in every county in the
State, and often at every precinct in the county, the State was
carried for Mr. Van Buren by a smaU majority, and Geueral
Dickson (White) and Mr. Claiborne (Van Buren) were elected
to Congress by large majorities. The canvass, though animated,
was conducted in a spirit of great cordiality, and the four gen
tlemen maintained for each other the highest respect and feel-

518 BENCH AND BAR OF MISSISSIPPI.
ings of the warmest friendship. Before Congress assembled
General Dickson died, and was succeeded by Hon. Samuel J.
Gholson, of Monroe County, who was chosen at a special
election. Mr. Claiborne stood high in the confidence of his party at
home, and in Congress was assigned to a prominent committee,
and took an active part in the debates, more or less acrimonious,
that occurred at that exciting period. On one occasion, when
Mr. John Quincy Adams attempted to present a petition from
slaves in Virginia, and the Southern representatives spontane
ously retired from their seats and assembled in a committee-
room to discuss the situation, Mr. Henry A. Wise, of Virginia,
being in the chair, a set of resolutions, to be presented on the
next day in the House, having been adopted, it was moved
that the chairman of the meeting be requested to present them.
Upon which Mr. Claiborne took the floor and said that he arose
to protest against the motion. That he represented a constitu
ency that owned more slaves than any other represented in the
meeting, and that he would never consent that the gentleman
from Virginia, who habitually opposed their interests, and often
voted with Mr. A.dams and the abohtionists, should be the organ
of Mississippi.
At which Mr. Wise, greatly excited, pointed his flnger
towards Mr: Claiborne aud said, ' ' You shall hear from me to
night." At this moment General Glasscock, of Georgia, in a voice
that was heard far beyond the chamber, cried out, " I agree
with the gentleman from Mississippi. The chairman of this
meeting shall not represent Georgia in the House."
By this time there was great confusion, and the meeting was
about to be resolved into a scene of general hostilities. Messrs.
Claiborne and Glasscock had already reached the door when
Mr. Calhoun, who had left his seat iu the Senate to attend the
meeting as a deeply interested spectator, intercepted them aud
prevailed on them to remain, and Mr. John M. Patton, of Vir
ginia, a moderate and conservative man, was designated, by
unanimous consent, to present the resolutions. That Mr. Wise,
who was both intensely brave and vindictive, never carried out

J. F. H. CLAIBORNE. 519
his threat was due, most probably, to Mr. Calhoun, and to the
necessity for unity at that juncture.
Mr. Claiborne subsequently again came in collision with Mr.
Wise and Colonel Bailie Peyton, of Tennessee, who were mem
bers of a select committee to investigate the management of
the deposit banks, and were evidently seeking to implicate the
administration in some illegitimate transactions. One of the wit
nesses, Mr. Reuben Whitney, proved somewhat refractory, and
refused to be intimidated by the overawing attitude of his inter
rogators. He declined to answer a question which he consid
ered disrespectful and improper, and at the same time threw
his arm behind his back. Mr. Peyton cried out, " Lf you move
your arm one inch I shall shoot you in your tracks." The
committee immediately adjourned, and on the next day one of
its members, Mr. Lincoln, of Massachusetts, moved that Whit
ney be arrested and brought to the bar of the House.
Mr. Claiborne moved to amend by adding, " And that he
be allowed counsel when brought to the bar, ' ' and supported the
amendment in an elaborate speech, to which Mr. Lincoln, Mr.
Peyton, and others responded, and to whom Mr. Gholson, of Mis
sissippi, rephed iu au able and pointed argument. The amend
ment was adopted. Whitney was in due time acquitted of the
contempt, and it was established that neither when before the
committee or at any other time in his life had he ever worn
arms, and was therefore perfectly innocent of the alleged at
tempt to assassinate the investigating committee, or any one of
them. It appeared, however, from the language used by Mr.
Peyton to the accused, that the honorable gentleman himself was
armed. Mr. Claiborne had some peculiar claims on the friend
ship of Mr. Peyton, but it is said that for that action the latter
never forgave him, and from that moment manifested towards
him a studied estrangement.
About this time oue of the greatest questions that had ever
agitated the country grew out of the insolvency of the United
States Bank, and of most of the State banks, the apparent fail
ure of the whole system, and it became necessary to find some
agency for managing the financial affairs of the Government.
President Van Buren determined on what was kno-wn as the In-

520 BENCH AND BAR OF MISSISSIPPI.
dependent Treasury plan, or a complete divorce of the Govern
ment from the banks. To this end he called a special session
of Congress, to assemble on the first Monday in September.
The terms of the Mississippi members had expired, and the
regular election would uot be held until the first Monday iu
November. Govemor Lynch therefore issued his proclamation
for a special election of members of Congress, to be held on the
third Monday in July. The Governor's idea was that the mem
bers elected under his proclamation were to serve only for the
special session, but the people generally believed, and the press
for the most part insisted, that the election could not be for a
less period than two years, the constitutional term. The vote
stood : Claiborne, 11,203 ; Gholson, 9921; Prentiss, 7143; Acee,
6691. When Congress assembled, the right of the Mississippi mem
bers was challenged on the first day of the session, by General
Mercer, of Virginia, oue of the leaders of the Bank party, and
the question was referred to the Committee on Elections, com
posed exclusively of distinguished lawyers, who in due time re
ported that Messrs. Claiborne and Gholson had been duly
elected members of the Twenty-fifth Congress.
By this time the Ba:nk party in Mississippi^ — -then powerful in
numbers and talents, and controlling most of the capital of the
State, with the power to favor or to crush all who were indebt
ed to them, aud with one of their party iu the executive chair
wielding the official patronage, and influenced by urgent advices
from Washington and the commercial centres of the North —
determined to oust the sitting members if they could.
They therefore assumed that the July election was for the
special session only, and Messrs. Prentiss and Word were in
duced to take the field and make a thorough canvass of the
State, with all the machinery of the banks in operation to aid
them. They canvassed without opposition. Messrs. Claiborne
and Gholson were in their seats, voting steadUy with the admin
istration, at a time when parties were nearly equally balanced,
and their votes on the vital questions of the day could not be
spared. The sitting members were disposed to resign their
seats and return to canvass the State, but at a confidential con-

J. F. H. CLAIBORNE. 521
ference of all the leading friends of the administration in both
Houses of Congress it was determined that it was their duty to
remain and cast their votes for the important measure impend
ing, in which the Government and the party had staked their
fate. At the same time a caucus of the Democratic members of
the Mississippi Legislature, with mauy eminent citizens from all
parts of the State, transmitted to them resolutions to the same
effect. The election was held in November, and the vote
stood : Prentiss, 13,651; Word, 12,340 ; Claiborne, 6258 ; Ghol
son, 6032. The two latter, however, were not candidates.
The votes they received were spontaneously cast by ardent par
tisans, but the great body of their friends abstained from vot
ing, considering them already elected for the entire term.
When Messrs. Prentiss and Word presented themselves, they
found the seats they claimed occupied. The question, of
course, had to go to the Committee on Elections, who again re
ported substantially as before. It was theu that Mr. Prentiss
made his celebrated speech, and proved himself the most
eloquent man in the United States. Both of the sitting mem
bers were prevented by sickness from making a reply. Mr.
Gholson, who was fully capable of arguing a question of law or
fact with any adversary, was prostrated with typhoid pneu
monia, and Mr. Claiborne, who had few superiors in the arts of
rhetoric and in eloquence, w"as suffering from a violent attack
of hemorrhage, with which he was seized in the room of the
Committee of Foreign Relations, occasioned, no doubt, by the
excitement of the contest, from which he has never entirely
recovered, and has never since then ventured to deliver a public
address. After a protracted and violent contest, in which every man
mustered under his party banner, the House reversed its de
cision as to the sitting members, but at tlie same time refused
to allow the claimants their seats, and the whole matter went
back to the people. Messrs. Prentiss and Word renewed the
canvass with great activity. Mr. Gholson, disgusted, retired
from the contest, and Mr. Claiborne went to Havana to recover
his health. The people, however, put forward his name, and
-with him General Davis, of Marshall County. The vote stood :

522 BENCH AND BAR OF MISSISSIPPI.
Prentiss, 12,722 ; Word, 12,077; Claibome, 11,776; Davis,
11,346. This terminated the public career of Mr. Claiborne. He re
solved never again to ask or accept office, and though many op
portunities have offered it, he has adhered to his resolution. He
attached himself to the press, and continued to maintain with
unabated vigor the doctrines of the Democratic party -on all the
issues of the day.
During all the excitement of this contest the relations of the
parties had been perfectly friendly, but it was the fate of Mr.
Claibome to come once more in collision with his celebrated
adversary, and under circumstances which did not result so ami
cably. In 1842 Congress established a board of commissioners to
examine aud adjudicate the claims of the Choctaws under the
fourteenth article of their last treaty with the United States.
Mr. Claibome, feeling a deep interest in the Indians, was ap
pointed president of this board. These claims, if allowed,
would have covered the best lands in many of the new counties.
The claimants were required to swear that they had never dis
posed of their claims. But in the progress of the investigation
it was found that their claims had been purchased for a very in
adequate consideration by a company which extended through
several States and comprised many influential men, some in
high official position. Mr. Prentiss had been engaged as attor
ney for the company, on a contingent fee of $100,000, and at
tended the meetings of the commissioners. At one of these
meetings Mr. Claibome exposed the whole transaction, and
avowed his determination to submit the matter to 'the authorities
at Washington. This occasioned a violent scene of criminations
and recriminations. Mr. Prentiss and his friends hastened to
Washington, and were there confronted by a printed expose of
the case from the pen of Mr. Claiborne, which lay on the desk
of every member of Congress. Mr. John Bell, of Tennessee,
moved to refer the matter to a select committee, which would
have been appointed by the Speaker, who had an interest in the
claims. Mr. Thompson, of Mississippi, chairman of the Commit
tee on Indian Affairs, moved to. refer it to his committee. After

J. F. H. CLAIBORNE. 523
a bitter fight his motion prevailed, and the plan recommended
by Mr. Claiborne was adopted— to pay the Indians neither land
nor money, but to allow them the value of their claims, remove
them west, fund the money, aud pay them the interest annu
ally. Thus the great speculation ended, but the exasperations
its faUure occasioned lasted for many years.
In 1844 Mr. Claiborne moved to New Orleans and became
editor of the Jeffersonian, the State journal, which was pub
lished iu both French and EngUsh, and of the Statesman, in
Enghsh and German, devoting twelve hours daUy to these
entei-prises. When Mr. Pierce, between whom and Mr. Clai
borne there existed a long and close intimacy, was nominated
for the Presidency, Mr. Claiborne was induced by the Hon.
John Slidell and the Hon. E. La Sere to become the editor of
the Louisiana Courier, the oldest paper in the city. Mr.
Pierce warmly invited him to Washington, to fill a prominent
position there, or go abroad ; but his health being extremely
precarious, he retired to the sea-coast of Mississippi and there
engaged iu the culture of sea-island cotton, where he remained
as a planter until the outbreak of the war.
For the last three years he has resided near Natchez, en
gaged in -writing the " History of Mississippi." Colonel Clai
borne is the author of several biographical works of great
merit, and his history will no doubt take its place as a standard
in the great historical chain. He is a writer of remarkable
fluency, and his style is chaste and elegant. He is a habitual
student, and his memory is stored with recollections of the last
flfty years. His literary attainments have placed him in the
ranks of the first scholars of the age. The University of Mis
sissippi has conferred upon him the degree of LL.D., and he is
a member of the Historical Society of Wisconsin, of the His
torical Society of Alabama, and has recently been elected Fellow
of the Royal Historical Society of London.
His life is an exemplary model of temperance and moral
rectitude. He is not attached to any church, and is by no means
a saint or a puritan ; but he never attends places of amuse
ment ; has never been at a public dinner or a political conven
tion ; never entered a gambling-house or race-course ; never
33

524 BENCH AND BAR OF MISSISSIPPI.
played a game of billiards, chess, or backgammon ; never car
ried a bowie-knife or pistol ; never smokes or chews tobacco ;
never uses an oath ; is strictly temperate ; never was a witness
in court, and never had a lawsuit. Yet, while he rarely
goes from home, no man enjoys society more, and he is devoted
to his friends. He often remarks that one of his greatest con
solations is that he has hved to become reconciled to every on,;
with whom he came in collision, and that he will meet them as
friends in the spirit land. His eye fills with tears when he
refers to his last interview -with the dying orator, S. S. Prentiss,
which was, brought about by their mutual friend, the late Gov
ernor John J. McRae.
Colonel Claiborne adheres to his ancient political faith, but
blaimes both sections for the war — the North for its unconstitu
tional encroachments, the South for precipitate action and want
of statesrnanship in not providing for the gradual emancipation
of the slaves, thus reconciling itself to the civilization of the age
and acquitting its conscience of a great crime. He considers
that the old Federal Union with the reserved powers lodged iu
the States was extinguished by the war ; that we now have a
N ational Government, exercising as much force and power as any
in Europe ; that efforts to embarrass it, or to restore the old
system, will be abortive and injurious ; and that our true policy
is a pronounced loyalty to the Government, and thus build uj)
our waste places and secure public order aud tranquillity.
For other particulars of this gentleman's career reference is
made to the following article from the Pennsylvania Inquirer,
then the leading organ of the national Whig party :
EXTEACT TO THE EDITOR, DATED
Washington, January 28, 1837.
It has occurred to me that the dullness of political correspond
ence from Washington might be enlivened by incidental
sketches of the men who flourish in the National Councils ;
and as it is equally my duty and pleasure to make my letters as
interesting as practicable, I shall in a few moments proceed to
give you a miniature portrait of the youngest member of,, the
House of Representatives.

J. F. H. CLAIBORNE. 525
1 am not una-ware that, in writing sketches of the kind, the
paragraphist lays himself liable to censure on the part of party,
and to disapprobation on the part of the subject delineated. I
have experienced these evils ; but as I am not one of those hinds
or bondmen so ably described by Sir Walter Scott in his inim
itable novel of " Ivanhoe," I shall attempt to sketch the Hon.
John F. H. Claiborne, of IMissis-sippi, who is, as I before said,
,the youngest member of the House of Representatives.
Mr. Claiborne is a native of Mississippi, and it is a fact
somewhat remarkable that he is the only member from the
west of the mountains who is a native-born citizen of that
region. He was lineally descended from the Claibornes of
Virginia, a family conspicuous iu the political annals of the
"Old Dominion" and Louisiana. From his father he inher
ited a patrimonial estate equal to the demands of a classical edu
cation, and those other essentials which are indispensable to the
completion of a well-educated gentleman.
After ha-ving completed his education in the best seminaries
of learning in the Valley of the Mississippi, his thirst for letters
induced him to devote himself to the duties of the public
press. But as he was not content with a mere knowledge of
the art of the editorial profession, he resolved to become a
practical printer, and with this view learned the business of a
setter of types. As soon as he had become a printer in theory
and in fact, he placed himself at the head of a newspaper in
Mississippi, and was in fact and in theory its editor.
His earliest efforts as an editor were directed to the advance
ment of the political fortunes of General Jackson, and whilst
he was thus engaged it was my fortune to be most warmly and
zealously employed in striving to defeat the hopes of the old
soldier. And I well recollect that in those days of turmoil
and political war my paper and his, though located at distant
points of the Union, not unfrequently came in collision.
In. the year 1835, Mr. Claiborne having, as the editor of a
public newspaper, assisted in the business of elevating other
men to office, arrived at the conclusion that he should not be
guilty of any act of injustice if he " looked aloft" for his own
preferment. He accordingly, iu conformity with the usages of

526 BENCH AND BAR OF MISSISSIPPI.
the South and Southwest, nominated himself a candidate for
Congress, and was elected -without difficulty. On making his
entrance at Washington, he modestly held himself in the back
ground — a course, by the way, which prudence and interest
should alwa.ys dictate to the candidate for legislative honors — and,
if I recollect aright, did not make his "first appearance" on
the legislative stage till late in the session. Ill health attended
him most of the session, and yet he was a daily attendant on the
House of Representatives. I ought to have remarked in
another place that Mr. Claiborne, before he had attained the
age of twenty-one years, was elected to represent the city of
Natchez in the popular branch of the Mississippi Legislature,
Avhieh position he continued to occupy till he was elected to
Congress. At the commencement of the present session, in accordance
wath custom aud the dictates of friendship aud duty, he was
called to announce to the House the death of his late coUeague,
the Hon. David Dickson. He rose to discharge the painful
office under evident and strong embarrassment ; but at last,
controlling his feelings, he proceeded to offer a few unstud
ied and generous remarks on the character of the deceased, pre
paratory to offering the usual resolution, but before he closed
he had won every heart and elicited the sympathies aud tears
of the assembled multitude. Never did man effect more in so
few words ; never was a stronger feeling produced by the elo
quence of the unpremeditated language of the heart.
Although nothing like effect was aimed at, the speech pro
duced everything that could have been desired, and Mr. Clai
borne was immediately ranked among the most eloquent orators
of the House of Representatives.
Since the time just referred to Mr. Claiborne has frequently
addressed the House with admitted success aud approbation,
and never rises without commanding undivided attention.
In politics he acts with the administration ; and though not
a blind or a mad partisan, he yields to it a steady and a com
manding support. In doing this he does not find au admirer
iu me ; and it is to be hoped, if he supports Mr. Van Buren's
administration — and he will do it to a certainty — ^that it will be

J. F. H. CLAIBORNE. 527
worthy of his aid and worthy of the country. In his devotion
to Mississippi he is somewhat enthusiastic, if not absolutely
fanatical, and, in my opinion, caiTies his sectional prejudices
to an unnecessary extent.
On the abolition question he is exceedingly ultra, and if he
possessed the power, I doubt uot would soon silence all agi
tation on that subject by the passage of proscriptive edicts.
Having been born and educated in a land of slaves, and being a
large slave-holder himself, it is but natural that he should be
somewhat ardent in relation to the subject ; but if he hopes to
put au end to free discussion and the freedom of the press at
the North, he -will find thousands who, opposed as they may be
to the fanaticism of abolition, and ready to protect the South in
the enjoyment of her chartered rights, will never surrender one
iota of that liberty of speech, of action, and of the press, which
is the birthright, the glory, and the boast of every free Anglo-
Saxon American. The dastard of the North who would sur
render the birthright of a freeman deserves nothing but the
execration of our common country.
There is not a paragraph in Mr. Claiborne's political text
book that I can assent to. He is the friend of the administra
tion — an opponent of the tariff — an opponent to all schemes for
the distribution of the public lauds : to all his positions I stand
in the relation of the antipodes to the meridian. As a man of
talents, as a scholar, and as one of the most promising young
statesmen, he has my admiration.
I did intend to offer some extended specimens of his manner
and matter as an orator, but as I have already exceeded my
limits, I must content myself with offering a few paragraphs
only. The following is an extract from a speech of his, deliv
ered a few days since, on Mr. Chilton Allan's resolution to
distribute the public lands :
" Sir, it is unwise thus to sport with the affections of your
people ; it is hard thus to deprive one of his home, humble
though it be. Sprung from the earth, and destined to return
to it, every man wishes to acquire an interest in it — some little
spot that he may call his owh. It is a deep, absorbing feeling,
that nature has planted in us. The sailor on the ' ' vasty

528 BENCH AND BAR OF MISSISSIPPI.
deep ;" the lone Indian aud wild-bee hunter on the prairies of
Missouri ; the mountaineer, as he threads his chamois-track ;
and the soldier, perishing for fame ere he freezes into a stiffened
corse, dreams, all dream of their early home ; and when every
other feeling is subdued and withered, the heart that would
not blench at scenes of crime and blood will soften under the
' Rans de Vache,' the early song of childhood.
" It is an undying feeling ; and w^heu one has gone out from
his father's wasted roof, and in the untrodden forest clustered
his family around some humble shed, cau he see it wrested from
him by the laws of his country without cursing that country
and those who govern it ?
» -X- **-){•* -X-
" Mr. Speaker, for years past our legislation and our Con
stitution, or at least the spirit of our Constitution, have been
frequently antipodes to each other. The Constitution rose from
the wreck of ancient prejudices, a structure of light and beauty,
based upon the great principle of equal rights, and dedicated
to rational liberty and law. The other has too often been
deformed by features incompatible with the genius of the age ;
stamped with the crude conceptions of feudal times ; fettered
with the restrictions dug up from sepulchred centuries. Thus
your criminal code in this age of philosophy is founded on the
precepts of Draco. The dungeon and the scaffold do their work
as they did a thousand years ago, and the Promethean light of
science that we hold in our hands serves but to show the skele
tons of the victims shut up for debt who have perished amid
the death damps of your jails and dungeons. The same cuiTcnt
runs through your whole system of jurisprudence."
Mr. Claibome is. an ardent advocate, not only of the project
now before the country for the recognition of the independence
of Texas, but an advocate for the annexation of that province
to this Union. Here again I am most warmly opposed to him.
In the speech from which I have already quoted he thus spoke
on the subject :
" Mr. Speaker, this is the only Govemment that ever specu
lated iu the soil. England, when she held her dominion here,
was prodigal in her donations. Spain gave away her lauds.

J. F. II. CLAIBORNE. 529
Her sons were the pioneers of *this new world : nor storm, nor
unknown seas, nor shipwreck could deter them. On, on they
went, in the career of high adventure. Land and honors M'ere
the rewards she held out to them, and their whole history is a
series of phenomena, from the outset of her great navigator to
the downfall of Montezuma — the most extraordinary triumph
ever obtained by civUized valor over physical force. Texas has
pursued the same policy, and its wisdom is evident. If her
public domain had been fettered with the same legal restraints
to settlement that exist here, uot five hundred of the many
thousands now there would have crossed the Sabine. But she
has invited them by hberal donations ; and when that soil was
invaded and the flag of despotism reeking over her beautiful
prairies, look how bravely those emigrants have rushed to her
defence. Oh, sir, you may rifle the leaves of history for deeds
of fame, you may search among the fallen columns and mutilated
tombs of Greece aud Rome, immortal even iu their dissolu
tion, but you will never flnd a cause more sacred, that has been
more nobly maintained, than the cause of Texas. Land of the
brave and free ! refuge of the unfortunate ! home of the poor !
soon may thy star shine iu cloudless beauty from our own loved
banner of living glory."
The quotations I have made will afford you some idea of
Mr. Claiborne's eloquence. He is always impassioned, and
never speaks without evincing that feeling which is the pecuhar
attribute of genius, and which can only be subdued and chast
ened by age and experience. He is now on the minor side of
twenty-eight years ; his person is tall and slender, and has evi
dently suffered from those diseases which are peculiar to a
Southern climate. His voice is round, fuU, and melodious, and
his action chaste, dignified, and original.
Possessed of a large fortune, the greater part of which was
acquired by his own industry and enterprise, he has early in life
devoted himself to politics ; and, with resources, intellectual,
fiscal, and physical, ample and at his immediate command, I see
no reason why he shoidd not ultimately attain that goal towards
which a commendable ambition directs his steps.

APPENDIX.

APPEI^DIX

JUDICIAL DATA.
JUDGES OF THE SUPEEME COURT, CIECUIT JUDGES, CHANCELLORS,
AND ATTORNEYS-GENEEAL OF MISSISSIPPI, SINCE THE ORGANI
ZATION OF THE STATE GOVERNMENT.
Under the first Constitution of Mississippi, adopted in 1817,
the Supreme Court was held semi-annually by the Circuit Judges
sitting in bank at the capital of the State. The Judges during
that period — 1817-1832 — and the years in which they were re
spectively, appointed, were as follows :
John P. Hampton, C.J. ; W. B. Shields, John Taylor, Pow
hatan Ellis, Joshua G. Clarke, 1818 ; Walter Leake, 1820 ; Liv
ingston B. Metcalf, 1821 ; Richard Stockton, 1822 ; Edward
Tumer, C.J., 1824; J. Caldwell, 1825 ; John Black, George
Winchester, 1826 ; William B. Griffith, Harry Cage, 1827 ;
Isaac R. Nicholson, 1828 ; WiUiam L. Sharkey, 1831.
Judges of the High Court of Errors and Appeals elected by
the people under the Constitution of 1832 :
William L. Sharkey, C.J. ; Daniel Wright, Cotesworth P.
Smith, 1833 ; P. Rutilius R. Pray, 1837 ; James F. Trotter,
1839 ; Cotesworth P. Smith, Edward Turner, 1840 ; Alexander
M. Clayton, Reuben Davis, 1842 ; Joseph S. B. Thacher, 1843 ;
A. M. Clayton, 1845 ; W. L. Sharkey, C.J.; J. S. B. Thacher,
1847 ; William Yerger, Collin S. Tarpley, 1851 ; Cotesworth
P. Smith, C.J. ; Ephraim S. Fisher, Alexander II. Handy,
1855 ; William L. Harris, 1859 ; xilexander H. Handy, C.J.;
B. W. Hurst, WiUiam L. Harris, Henry T. Ellett, 1863.
Judges of the Supreme Court appointed by the Governor
under the Constitution of 1868 :

534 APPENDIX.
Thomas Shackleford, C.J. ; Ephraim G. Peyton, E. Jeffords,
1868 ; Ephraim G. Peyton, C.J. ; Horatio F. Simrall, Jonathan
Tarbell, 1870 ; Horatio SimraU, C.J. ; H. H. Chalmers, J. A.
P. CampbeU, 1876 ; J. Z. George, C.J., 1879.
Judge George was elected to the United States Senate by the
Legislature of 1880, but retains his position upon the bench,
which, it is understood, he will not resign until he takes his seat
in the Senate on the 4th of March, 1881. Judge Chalmers will
then be Chief Justice by virtue of his seniority in office.
Judges of the Superior Court of Chancery, 1821-1857 :
Joshua G. Clarke, 1821 ; John A. Quitman, 1828 ; Edward
Turner, 1835 ; Robert H. Buckner, 1839 ; Stephen Cocke,
1846 ; Charies Scott, 1853.
Vice-Chancellors :
Joseph W. Chalmers, appointed for the Northern District,
established in 1842 ; succeeded by Henry Dickenson, elected in
1843 ; James M. Smiley, elected for the Southern District,
established in 1846 ; George W. Doharty for the Northem
District, 1850 ; B. C. Buckley for the Southern District, 1853.
The Chancery Courts were abolished in 1857, and their juris
diction conferred upon the Circuit Judges.
Judges of the Circuit Courts, elected under the Constitution
of 1832 :
T. A. Willis, A. M. Keegan, James F. Trotter, Alexander
Montgomery, E. C. Wilkinson, 1833 ; T. B. StirUng, J. Scott,
1834 ; J. Walker, R. Hughes, G. Irish, 1835 ; James M.
Maury, 1836 ; R. S. G. Perkins, CasweU R. Clifton, Buckner
0. Harris, I). O. Shattuck, G. CoaUer, T. S. Stiriing, 1837 ;
H. S. Bennett, Isaac R. Nicholson, J. a!" MarshaU, 1838 ; V.
T. Crawford, F. W. Huling, J. Battaille, 1840 ; Franklin E.
Plummer, G. Coalter, C. C. , Cage, Albert G. Brown, J. H.
Rollins, M. L. Fitch, S. Adams, H. S. Bennett, V. T. Craw
ford, B. F. Coruthers, II. Moimger, James M. Howry, 1841 ;
T. A. WiUis, 1843 ; Stanhope Posey, T. A. WUlis, G. Coal
ter, A. B. Dawson, R. C. Perry, F. M. Rogers, H. R. MiUer,'
1845 ; Wiley P. Harris, 1847 ; Stanhope Posey, William S.

APPENDIX. 535
Bodley, J. E. McNair, Jacob S. Yerger, John Walter, E. G.
Henry, WiUiam L. Harris, P. D. Scruggs, William M. Han
cock, Joel M. Acker, William Cothran, 1847-1860 ; Hiram
Cassidy, II. W. Foote, J. E. McNair, J. A. P. Campbell, J.
S. Ilamm, J. W. Thompson, 1860-1868.
Appointed by the Governor under the Constitution of 1868 :
Green C. Chandler, James M. Smiley, A. Alderson, W. II.
Hancock, Uriah Millsaps, Robert Leachinan, J. A. Orr, W. D.
Bradford, B. B. Boone, Orlando Davis, C. C. Shackleford, E.
S. Fisher, Jason Niles, W. B. Cunningham, George D. Brown.
The districts having been changed is the cause of their omis
sion up to this period. The foUo-wing Judges were appointed
in 1876, and are yet on the bench, except Judge Cothran, who
has lately died :
1st District, J. A. Green.
2d " J. W. C. Watson.
3d " Samuel PoweU.
4th " B. F. Trimble.
5th " W. M. Cothran.
6th " J. M. Arnold.
7th " J. S. Ilamm.
8th " A. G. Mayers.
9th " S. S. Calhoun.
10th " J. B. Chrismau.
11th, Special Statutory District, embracing only
Warren County, U. M. Young.
12tli, Special Statutory District, comprising ouly
Adams County, Ralph North.
District Chancellors appointed by the Governor under the
Chancery Court Act of 1871 :
l.st District, WUham G. Henderson.

2d

G. S. McMillan.

3d

Wesley Drane.

4th

Thomas Christian.

5th

Theodric Lyon.
6th
0. H. Whitfield.
536

APPENDIX.

7th Dist

rict, Austin Pollard.

8th

' A. E. Reynolds.

9th

' De Witt Stearns.

10th '

' J. F. Simmons.

11th

' Dallas P. CoUey.

12th

' J. J. Hooker.

13th '

' Samuel Young.

14th

Edward Hill.

15th '

' E. Stafford.

16th

' E. W. Cabinniss.

17th ' '

' G. R. Gowen.

18th

' D. ISI. Walker.

19th '

' J. W. Ellis.

20th '

' E. G. Peyton, Jr

J. J. Hooker died in 1873, and W. A. Drennan was ap
pointed to fill the unexpired term ; but he was removed by
Governor Ames for refusing bail to one Morgan, who had mur
dered his competitor for the office of sheriff of Yazoo County.
D. N.Walker died also in 1873, and J. R. Goltury was ap
pointed to fill his term.

inted by Governor Ames iu 1875 :

1st District, WiUiam G. Henderson

2d

G. S. McMillan.

3d

R. Boyd.

4th

' J. J. Dennis.

5th

' C. A. Sullivan.

' 6th '

0. H. Whitfield.

7th '

' William D. Frazee.

8th

' C. C. CulUns..

9th

L. C. Abbott.

10th

' J. N. Campbell.

11th '

P. P. Bailey.

12th

' Thomas Walton.

13th

' WiUiam Beck.

14th

> E. Hill.

15th

E. Stafford.

16th

' H. R. Ware.

CORRECTION— PAGES 536, 537.

I omitted to state that J. C. Gray was appointed Chancellor of the
3d, and Chas. Clark of the 4th District, in 1876. They died in 1878,
and were succeeded by J. B. Morgan and W. G. Phelps respectively.
Also, that the initials of Chancellor Graham are T. B., instead of G.
B., and those of Chancellor Berry, T. Y., instead of G. G. Also,
that Chancellor Brame declined a re-appointment in 1880; and that
H. S. Van Eaton succeeded Chancellor BeiTj'. I wUl add, in this
connection, that my remarks in reference to the efficiency of the
Chancellors, were intended to apply only to some of those in offlce
prior to 1876. I had no intention to reflect in the least on those in
office since, inasmuch as it is well understood that since 1876, those
officers have been noted for their ability, integrity and high judicial
virtues. I make this statement because some of my friends have
suggested that my remarks in this respect might be misconstrued.

APPENDIX. 537
17tii District, R. B. Stone.
18th " E. H. Osgood.
19th " Hirain Cassidy.
20th " E. G. Peyton.
Upon the accession of the Democratic party to power in
1876, the number of these chancellors was reduced from 20 to
12, and the persons appointed were as follows :
1st District, L. Haughton.
2d " A. B. Fly.
3d " J. B. Morgan.
4th " W. G. Phelps.
5th " R. W. WiUiamson.
6th " L. Brame.
7th " George Wood.
8th " G. B. Graham.
9th " E. G. Peyton.
10th " G. G. Berry.
11th, Special Statutory Distiict, comprising only
Warren County, U. M. Young.
12tli, Special Statutory District, comprising only
Adams Countjj, Ralph North.
All of these were reappointed in 1880, except L. Brame,
who was succeeded by Frank A. Critz. G. G. Berry has also
been superseded by some one.
In consequence of the appointment of some perhaps totally
incompetent persons to this bench, and some whose characters
for honesty were impeachable, these courts have uot enjoyed
fully the confidence and respect due to their functions, nor the
popularity deserved by their organic efficiency. But it is to be
hoped that amid such ample and capable material, many young
Eldons, Ilardwickes, Kents, and Buckners may yet assert them
selves in Mississippi, and raise these courts to a standard of emi
nence equalled only by their importance.
Attorneys-General of Mississippi since the organization of the
State Govemment :
Lyman Harding, 1818 ; Edward Turner, 1820 ; Thomas B.
Reed, 1821 ; Richard Stockton, 1825 ; George Adams, 1827 ;

538 APPENDIX.
Richard M. Gains, 1830 ; M. D. Patten, 1834 ; Thomas F.
CoUins, 1837 ; John 1). Freeman, 1841, re-elected in 1845 ; I).
C. Glenn, 1850, re-elected in 1854; Thomas J. Wharton,
1858 ; Charles E. Hooker, 1866 ; Joshu^ Morris, 1869 ; J. E.
Harris, 1873 ;. Thomas C. Catchings, 1875.
The position of the last-named gentleman challenges obser
vation. His career is laden with peculiar responsibility. The
time of his election, his youth, aud his talents, constitute him
in some way a representative and leader of the young bar of the
State, and his masterly course as Attorney-General has proudly
merited the relation.

APPENDIX.

539

LIST OF BIOGRAPHIES IX ALPHABETICAL ORDER.

PAGE
Adams, Robert H  24
Anderson, Fulton  429
Anderson, William E  358
Barksdale, William R  481
Barry, William S  395
Barton, Roger  265
Black, John  90
Boyd, Samuel S  143
Brooke, Walker  316
Brown, Albert G  277
Buckner, Robert H  165
Cage, Harry  103
Chalmers, Joseph W  177
Child, Joshua  99
Claiborne, J. F. H  516
Clayton, Alexander JI  500
Clayton, George R  ^pl
Clarke, Joshua G  89
Cocke, Stephen  167
Davis, Joseph E  73
Dowd, William F  396
Ellis, Powhatan  87
Fisher, Ephraim S  356
Foote, Henry S  386
Gholson, Samuel J  497
Glenn, David C  307
Grayson, Spence M  133
Griffith, William B  113
Guion, John 1  245
Hampton, John P  81
Handy, Alexander II  508
Hardingf, Lyman  36
Harris, William L  343
Harris, Buckner C  139
Harrison, James T  377
Henderson, John  145
Holt, Joseph  347
Howard, Volney E  350
Howry, James M  511
Hutchinson, Anderson  252
Johnston, Amos R  371
Lake, William A  450

Leake, Walter  135
Magee, Eugene  137
Marsh, Samuel P  144
Martin, John H  388
Mayes, Daniel  354
McMurran, John T  140
Mc^^ltt, Alexander G  133
Mitchell, James C  320
Montgomery, Alexander  107
Nicholson, Isaac R  103
Peyton, Ephraim G  359
Phelan, James  455
Poindexter, George  ,27
Pray, P. Rutilius R  304
Prentiss, -Sergeant S  216
Potter, George L  445
Quitman, John A  151
Rankin, Christopher  22
Reed, Thomas B  23
Sale, John B  391
Scott, Charles  ] 7.')
Sharkey, William L  189
Smiley, James M  181
Smith, Cotesworth P  198
Stockton, Richard  93
Tarpley, Collin S  366
Taylor, John  88
Thacher, Joseph S. B  211
Tompkins, Patrick W  283
Toulmin, Harry  21
Trotter, James F  305
Turner, Edward  84
Vann,erson, William  126
Walker, Robert J  109
Walter, Harvey V,'  4-87
Webber, Richard H  146
Wilkinson, Edward C. .  138
Winchester, George  100
Wright, Daniel W  303
Yerger, George S  361
Yerger, Jacob S  272
Yerger, William  320

3 9002

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