John Archibald Campbell, associate justice of the United States Supreme court, 1853-1861

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ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT 1853-1861

Preface

In the preparation of the Annual Address delivered — by me before the Alabama State Bar Association at its Session of 1917, at Birmingham, I became interested in the professional and judicial life and services of Judge John Archibald Campbell. I was impressed with his relation to, and the part which he took in, eventful cases and decisions as counsel and Judge in the Supreme Court of the United States, and his connection with several transactions of national importance preceding and during the Civil War. It seemed to me that, both for their historical value and for a clearer understanding of the conduct and motives of the participants, they called for a more careful and thorough investigation than had theretofore been given them.

Judge Campbell’s career was, in many respects, unique and illustrated his remarkable capacity to render important service under unprecedented conditions. The generous manner in which the address was received, coupled with the approval of the surviving members of Judge Campbell’s family, encouraged me to enter upon and complete the work which is submitted in this volume. I am indebted to the family for much of the material which I have used. For the account of those incidents in regard to which different versions have been given I have relied upon, and to a large extent given the exact

Vili PREFACE language used in, the original manuscripts made by him at the time of their occurrence. While, of necessity, the work is of special interest to lawyers, it is hoped that, by reason of the general character and larger scope of the questions involved in important causes which he argued, or took part in deciding, it will appeal to students of our judicial and political history.

I desire to express especial obligation to Captain Frederick M. Colston, of Baltimore, son-in-law of Judge Campbell, without whose constant assistance and generous interest the work could not have been executed. My thanks are also due for valuable suggestions to Mr. Carleton Hunt and Mr. William P. Dart, of the New Orleans Bar, and to Captain Samuel A. Ashe, of Raleigh, North Carolina.

H. G. Connor

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VI.

VII.

VIII.

IX.

x.

Contents

. ANCESTRY AND EARLY CAREER AT THE BAR 1 II.

ASSOCIATE JUSTICE OF THE SUPREME CouURT OF THE UNITED STATES 16

THE SLAVERY QUESTION BEFORE THE CourT 54

Chapter I Ancestry And Early Career At The Bar

As early as 1729 several families of Scotch Highlanders had settled on the Cape Fear River in North Carolina. There they found a genial climate, a fertile soil, and a mild and liberal government. Everything contributed to their happiness and contentment. Their letters to friends and relatives in Scotland glowed with praise of their new home. Accordingly, when Neill McNeill, who had been one of the first Scotch settlers on the Cape Fear, returned from a visit to Scotland, in 1739, he brought with him three hundred and fifty Highlanders. The General Assembly, anxious to encourage further immigration of these sturdy settlers, exempted them from public and private taxes for ten years and offered the same inducement to any of their countrymen who might follow them.

Following this liberal offer came the disaster of Culloden, a general rise in rents in the Highlands, and the harsh enactments of the British Parliament, resulting in an immediate flow, strong and steady, of population from the Highlands to the New World. With a keen appreciation of its commercial advantages, the Highland immigrants selected a point of land at the head of navigation of the Cape

Fear, where they laid out a town, first called Campbellton, then Cross Creek, afterwards Fayetteville. The “Scots Magazine” and the ‘‘Courant”’ of that period, contain numerous accounts of the sailing of vessels, carrying a large number of Highlanders to North Carolina, from Islay, Skye, Sunderland, and other sections of the Highlands. Among other Highlanders who came to Campbellton were Allen McDonald and his wife Flora McDonald, both of whom returned to Scotland, after the battle of Moore’s Creek Bridge.!

Though unfortunate economic conditions lay behind this emigration, it is not, therefore, to be supposed that those who left their native land to seek homes in America belonged to an improvident and thriftless class, or that they arrived in Carolina empty-handed. Such people are not the kind who voluntarily take upon their shoulders the task of conquering the wilderness and laying the foundations of new States. The Highland emigrants were among the most substantial and energetic people of Scotland; they left the land of their nativity because it did not offer them an outlet for their activities. The ‘Scots Magazine” refers to some of them as “the most wealthy and substantial people of Skye,” and the “Courant” as the “finest set of fellows in the Highlands.” By the year 1754 the Highland settlement around Campbellton had grown so important that the General Assembly erected it into a

* Wheeler, John H.: History of North Carolina, 11, 126 ; Ashe, S.A.: History of North Carolina, 1, 265-66; Sprunt, James: Chronicles of the Cape Fear, 124-27, — county, which, with curious irony, was called in honor of the Duke of Cumberland, and gave it the privilege of sending two representatives to the General Assembly.

As may be inferred from the name of their town, the Campbells were both numerous and prominent in the settlement. Among them was John Campbell, whose son, John Archibald Campbell, served during the Revolution as an officer in the American Army on the personal staff of General Nathanael Greene. Between the years 1779 and 1794 he represented New Hanover County in the State Senate nine terms and in the House of Commons three terms. He was a delegate in the Constitutional Conventions of 1788 and 1789 from New Hanover. In the Convention of 1788 he voted with the majority against the ratification of the Federal Constitution. He was also Judge of the Admiralty Court.*

Duncan Green Campbell, son of John A. Campbell, was born in North Carolina, February 17, 1787. He was graduated from the University of North Carolina in 1807. The following year he moved to Georgia, where he engaged in teaching, becoming president of a college for women. He studied law in the office of Judge Griffin, of Wilkes County, and was duly admitted to the bar. Soon after his admission he was elected Solicitor-General of the Western Circuit. Following his service in this office, he represented Wilkes County for four terms in the State Legislature. He was the author of, and introduced, the first bill in the history of Georgia having for its

1 State Records of North Carolina, xv1, 90-95.

purpose the promotion of the education of women in the State. His speech advocating the measure attracted wide attention and gave an impetus to public sentiment on the subject. In the cause of public education he was an enthusiast and never omitted an opportunity for its promotion. He was industri- -ous in his habits, liberal in his views, and always watchful of the public interests, especially of education and the diffusion of knowledge among the people. He was, for many years, a trustee of the University of Georgia.!

In 1824 Campbell was appointed, by President James Monroe, one of the commissioners to negotiate a treaty with the Creek Indians for the sale of their lands in Georgia and Alabama. The negotiations, with the complications growing out of them, became the subject of a long and bitter political controversy in Georgia. The question whether the course pursued by the commissioners should be approved, constituted the issue in the campaign of 1824, when the rival candidates for Governor were Governor George M. Troup and Campbell’s brother-in-law, General John Clarke.

Clarke’s supporters attacked the conduct of the commissioners and the treaty made by them. The controversy placed Campbell in a very embarrassing situation. Throughout the campaign, although he had more at stake in its issue than any man in the State, he took no active part in the angry strife, and while he continued the firm friend of General Clarke

Sparks, Jared: Library of American Biography; Miller, 8S. F.: Bench and Bar of Georgia, 137.

he lifted no voice in opposition or disparagement of Governor Troup. ‘‘With Roman firmness he awaited the decision of the people. Conscious of the rectitude of his own conduct, he was fearless of consequences.” ! -

Governor Troup was elected and the commissioners vindicated. The Legislature, by a unanimous vote, approved their action, while Congress also sustained the treaty.”

In 1828 Campbell was nominated for Governor. His election seemed assured, but he died July 30, 1828, before the day of the election. His memory is honored in the name of one of the counties of Georgia.

Duncan Green Campbell married Mary Williamson, youngest daughter of Micajah Williamson, Lieutenant-Colonel of the Georgia Regiment commanded by Colonel Elijah Clarke, which became famous in the annals of the War of the Revolution, in the Southern Department. It is said that her mother, Sarah Gilliam Williamson, grandmother of John Archibald Campbell, ‘“‘was perhaps the most remarkable woman who lived in Georgia during the Revolutionary struggle. Considering her loyalty to the cause of the Colonies, her courage in managing a plantation, with a large number of negro slaves, during the absence of her husband at the front, her sufferings at the hands of the enemy, together with the success of her descendants, she stands ahead of

1 Sparks: Library of American Biography. 2 “Georgia and States’ Rights,” Report, American Historical Association, 11 (1901), 55, 56-59.

any of her Georgia sisters of that day... . Her five sons grew up to be successful men and her six daughters became beautiful, refined, and educated women, becoming the wives of distinguished men. One daughter married John Clarke, who became Governor of Georgia. To Sarah Williamson also belongs the distinguished honor of being the first American woman to furnish, from her descendants, two Justices of the Supreme Court of the United States. Justice John A. Campbell, of Alabama, was her grandson, and Justice L. Q. C. Lamar, of Georgia. and Mississippi, was her great-grandson.” Sparks, writing of the early settlers of middle Georgia, in the “Atlanta Constitution,” says: “Those from North Carolina were mostly the descendants of Scotch-Irish; from them sprang Micajah Williamson, Elijah Clarke, John Clarke... the Abercrombies, Holts, and Duncan G. Campbell. These families and these men, all were remarkable for energy, talent, and enterprise, and, scattered through the counties of middle Georgia, gave tone and emphasis to the people and fashioned the future of the State. Many of these and their descendants have filled the first offices of the State and high places in the Government of the United States through the long period of their existence, without the imputation of dishonorable conduct ever having been imputed to them. Proud amongst these was Duncan Green Campbell.’ 1

John Archibald Campbell, son of Duncan Green Campbell and his wife, Mary Williamson Campbell,

+ Atlanta Constitution, January 10, 1910.

was born in Washington, Wilkes County, Georgia, June 24, 1811. At the age of eleven years he entered Franklin College, later the University of Georgia, from which he was graduated in 1825, with the first _ honors of his class. The following interesting inci- - dent of his college life is given by Governor Gilmer in ‘The Georgians’’: ‘‘ While the son was a student of the college, his father visited Athens and was invited to attend a meeting of the Demosthenian Society, of which both father and son were members. Colonel Campbell held forth, by request, upon the topic of debate. When he was done speaking, John asked leave to answer the gentleman, and so knocked all his father’s contentions into non sequiturs that it was difficult to tell which had the uppermost in the father’s feelings, mortified vanity or gratified pride.”

Upon his graduation, Campbell was appointed by the Secretary of War, John C. Calhoun, to a cadetship in the United States Military Academy at West Point. By reason of his father’s death he resigned in 1828. He spent a year in Florida, teaching school to enable him to discharge the responsibilities imposed upon him by his father’s death. Returning to Georgia, he studied law with Governor Clarke and his uncle, John W. Campbell. In 1829, at the age of eighteen, by virtue of a special act of the General Assembly, he was admitted to the bar, together with Robert Toombs. Determined to leave Georgia, Campbell went to Montgomery, Alabama, where, on March 9, 1830, he was admitted to the bar of that State. He continued to practice his profession in Montgomery until 1837, when, desiring a larger field for his chosen life-work, he removed to the city of Mobile.

While residing in Montgomery, Campbell married Anna Esther Goldthwaite. A native of New Hampshire, she had accompanied her brothers, Henry and George Goldthwaite, to Alabama during the early years of the nineteenth century. The Goldthwaite family was established in Massachusetts as early as 1630. Mrs. Campbell’s father and grandfather were both Colonial officers in New England, and, during the Revolution, remained loyal to the mother country. During the war they went to England, where her grandfather, Colonel Thomas Goldthwaite, received from the British Government compensation for his service and loyalty, and for the loss of his large estate in New England. He lived at Walthamstow, near London, where his father had also lived.

The brothers whom Anna Goldthwaite accompanied to Alabama became eminent members of the bar of Alabama and won high repute in the service of the State. Both Henry and George Goldthwaite were Justices of the Supreme Court, the latter being Chief Justice and, from 1870 to 1877, United States Senator.!

In an address before the Alabama State Bar Association, in 1884, Judge Campbell, referring to his early career in Alabama, said: ‘‘I continued to practice without relaxation or diversion in her courts; relations and habits, whether professional, domes-

1 Appleton’s Cyclopedia of American Biography, u, 673.

tic, or political, were formed in her society. Character, capacity, motives for exertion or for action, were developed and expanded there; and as one product and result, there is an abiding love for the State, for the law as a science and a profession, and an interest in her judicial institutions and in the members of her State Bar... . The courts were administered by men of learning and apt judgment : and their deeds and words were marked with the impress of moral and intellectual worth, and of personal honor. There were among the Bar great resources of energy, research, readiness, and manliness of effort which were habitually applied.”

In 1836 Campbell was elected to the State Legislature. This was regarded, in those days, as an essential step in the preparation of a lawyer for a larger sphere of activity in his profession. In 1842 he represented the city of Mobile in the Legislature. “At this time he was generally regarded as a man of clear and vigorous intellect. In the Legislature he stood foremost among the leaders. On important occasions, his powers were exhibited with a cogency of argument which commanded a degree of attention which was accorded to but few members. In the Supreme Court, if not without a rival, he had no superior. His facts were stated in such a natural order and logical connection that the truth was illuminated and the judgment usually convinced.” !

His personal appearance and manner, at this period of his life, are thus described by Mr. Miller: “He is cold, taciturn, not the least suggestion that

1 Miller, S. F.: Heads of Alabama Legislature.

he courts society, absorbed in thought, with heavy brow, yet unassuming expression of countenance. At times he is pleasant, and always respectful when it becomes necessary for him to converse. ... He seems to hold all elegance and imagination in utter contempt, as unworthy a practical man. As a member of the Democratic Party, he stands alone in Alabama for greatness of conception in all that relates to our political system.”’ ?

While Campbell’s experience in the Legislature was unquestionably valuable to him in his career, his title to fame rests not upon his accomplishments as a lawmaker, but as an advocate and jurist. He used wisely the opportunity afforded him during these years, building upon strong and broad foundations the structure upon which judicial and professional fame, later in life, came to him.

When he moved to Mobile the titles to lands in Alabama were unsettled and complicated. The Spanish grants were obscure, the surveys not exact, and the growth of Mobile was rapidly increasing the value of lands in the town. He began the study of the French and civil law, purchasing the works of the standard authors. In his library were found the complete works of D’Auguessau, Merlin, Denisant, Cocklin, and others. As a student he was vigorously severe and industrious, prompted by a quenchless thirst for thorough and complete information.

During the first years of his practice he spent an hour each week-day in the study of Saunders’s Pleading, reproducing the forms of declarations and

1 Bench and Bar of Georgia, 137.

pleas and eliminating all unnecessary words. His ambition was not in the line of political preferment, but in professional learning.

In the Supreme Court of Alabama, and on the dockets of: the Circuit Courts in which he practiced, is to be found the record of his labors. Evidence of the loyalty with which he paid court to the jealous mistress of which, as he says, ‘‘ without relaxation or diversion” he was the suitor, is likewise found in his opinions, in the reports of the Supreme Court of the United States, and in his arguments before that tri- - bunal, both before and subsequent to his elevation to the Bench and retirement. He argued, at the December Term, 1850, of the Supreme Court of the United States, Collins vs. Hallert.1 At the December Term, 1851, he had six appearances, the most important, in point of the interests involved and the questions presented, being Gaines vs. Relf, Exr., and others.2 He appeared in this case in the Circuit Court of the United States, where his argument elicited very high praise. It was published in full by the New Orleans papers. His analysis of the testimony, orderly arrangement, quotation and application of authorities, from writers on the civil law, and decided cases, American and English, sustain the encomiums pronounced by those who heard him.

One of the New Orleans dailies said: ‘‘A large assemblage filled the court-room, called as well by the deep interest felt in this very novel and extraordinary case, as by the fame of the gentleman appointed to speak. Their expectations were fully gratified.

The argument of Colonel Campbell was one of the ablest efforts we have ever heard. It was terse, logieal, learned, profound, and eloquent. All the important points in favor.of Mrs. Gaines’s claims were urged with an irresistible force of logic, a clearness of style, and a vigor of thought that seemed to carry conviction with all the listeners and greatly to startle the defendants, who have all along reposed very confidently on the strength of their case.”

Following his argument the same paper said: “The name of this distinguished gentleman is heard on every side, and appears to be in the mouths of every one. His wondrous argument in the great Gaines case has all but immortalized him, so lucid, forcible, and convincing was it... . Mr. Campbell has reaped the field clean and garnered up for himself a rich harvest. ... A merchant, whose business was pressing, who desired to be on ’Change at a certain hour, thought that he would drop into the United States Circuit Court for a moment — only a moment — to hear a few words of Campbell’s argument and then form a hasty opinion of the gentleman. He did so —— moments passed, hours, and still he moved not until the close. He has since declared that he became unknowingly interested in the case as the gentleman progressed, until so infatuated was he with his elucidatory style, brilliant and comprehensive pleading, that he could not tear himself away.”

A stranger who was present wrote: “Among the arguments was one by a lawyer from Mobile, by the name of Campbell. He had made the most ample preparation, and in the most ingenious way threaded the Cretan labyrinth of facts and testimony, holding on, as he went, to the clue of justice. Upon his reappearance from the mazes and windings of his argument, we could not help, though a stranger, tendering him our congratulations. They were received with all that modesty which will ever characterize talents.”’

This cause célébre in American jurisprudence was argued before the Supreme Court of the United States by Reverdy Johnson and Campbell for Mrs. Gaines, and by Daniel Webster, Green, and Duncan for Relf and others.! The opinions of Justice Catron, writing for the majority against the claim of Mrs. Gaines, and of Justice Wayne for the dissenting minority, occupy forty-two pages of the volume. The latter concludes his opinion: “I think, then, that I run no risk in saying that there is nothing in the way of the law to be found interfering with the right of Myra Clark Gaines to the heirship of such portion of her father’s estate as the law of Louisiana gives to an only legitimate child. .. . Those of us who have borne our part in the case will pass away. - The case will live. Years hence, as well as now, the profession will look to it for what has been ruled upon its merits and also for the kind of testimony upon which these merits were decided. The majority of my brothers who give the judgment stand, as they may well do, upon their responsibility. I have placed myself alongside of them, humbly submitting to have any error into which I may have fallen, corrected by our contemporaries and by our professional posterity. The case itself presents thought for our philosophy in its contemplation of all the business and domestic relations of life.’

Judge Campbell’s argument won much applause for its display of learning, legal acumen, and all the higher and more ambitious qualities of his profession. The language of Justice Wayne was prophetic. Ten years later the controversy in another form, involving, however, the same questions that were presented and argued on the first hearing, found its way to the Court in Gaines vs. Hennin.! Justice Wayne, writing for the majority, reversed the conclusion reached in the former appeal and sustained the contention of Mrs. Gaines. He concludes his opinion: “Thus, after a litigation of thirty years, has this Court adjudicated the principles applicable to her rights in her father’s estate. They are now finally settled. When, hereafter, some distinguished American lawyer shall retire from his practice to write the history of his country’s jurisprudence, this case will be registered by him as the most remarkable in ‘the records of the courts.”

But the end was not yet. The litigation went on in varying and variant forms. Seven years later, in Gaines vs. New Orleans,? Justice Davis, Justice Wayne having passed away, wrote for the Court, expressing the hope that the litigation would be closed by the decision then made. He said: ‘It has been pursued by the complainant with a vigor and energy hardly ever surpassed, in defiance of obstacles which would have deterred persons of ordinary mind and character, and has enlisted, on both sides, at different periods, the ablest talent of the American bar... . Courts, in the administration of justice, have rarely had to deal with a case of greater hardship or more interesting character. .. . Can we not indulge the hope that the rights of Myra Clark Gaines in the estate of her father will now be recognized?”

Although Mrs. Gaines had, in many of the numerous trials, won victories, she was required to establish on each hearing the determinative facts upon which her right to her father’s estate depended. In the final opinion, the Court was required to reéxamine the testimony which Judge Campbell analyzed and discussed in 1851, and reached the final decision by the same processes of reasoning pursued by him before the Circuit Court in New Orleans. Judge Campbell’s last appearance in the Gaines case is reported in New Orleans vs. Gaines, Admr.? It is a source of regret that, in response to the suggestion of Justice Wayne, ‘“‘some distinguished American lawyer retired from practice,’ has not: written a history of this most interesting case, which not only bristles with incidents illustrative of the controlling passions and philosophy of all the business and domestic relations of human life, but also presents principles of civil, ecclesiastical, common - and statute law, both State and Federal, illuminated by citations from almost every source. —

Chapter II Associate Justice Of The Supreme Court Of The United States

CAMPBELL’S reputation as a lawyer had extended beyond the limits of the State. He held a high position in the estimation of the Justices of the Supreme Court of the United States, and it was inevitable that sooner or later he would be called into the judicial service of the State or Nation. In 1835, while he was serving a term in the General Assembly, he received from Governor Clement C. Clay the offer of an appointment to the Supreme Court of Alabama. This offer he felt it his duty to decline. Later a similar offer was made by Governor Henry W. Collier, which he declined. On January 19, 1852, Justice McKinley, of the Supreme Court of the United States, died. President Fillmore nominated to the vacancy George E. Badger, Senator from North Carolina. There was no question regarding Mr. Badger’s learning, ability, and fitness for the position, but his attitude in the Senate on the slavery question during the sessions of 1850 and 1852 prevented his confirmation by the Senate. Accordingly, the vacancy had not been filled when Franklin Pierce was inaugurated President, March 4, 1853.2

1 For an interesting account of Mr. Badger’s nomination see Papers of Thomas Ruffin, u, 365, 382, 389. Mr. Venable, a member of Congress from North Carolina, says Mr. Badger’s nomination failed because he did not live in the district from which Justice McKinley came, and for that cause alone.

Upon the request of the members of the Supreme Court of the United States, President Pierce nominated Campbell, who, on March 22, 1853, was unanimously confirmed to fill the vacancy. In a memorial address delivered before the Bar of the Supreme Court, October 13, 1874, Judge Campbell said: ‘‘The death of Judge McKinley made a vacancy and that vacancy was supplied by one recommended by the Justices — Judges Catron and Curtis bearing their letters of recommendation to the President.” !

Mr. Carson, referring to the appointment, says: ‘‘He was a profound and philosophic jurist, who gave vigor and breadth to his intellect by constantly resorting to the great sources of the Roman law. From 1837 to 1853 the story of his life was the routine of an industrious, painstaking, earnest lawyer, exploring every domain of knowledge to make it tributary to his profession, overpowering his competitors at the bar by his great researches into the history of the law and his familiarity with principles and cases.” ?

The ‘‘New York Times,” commending the appointment, said: ‘His professional learning is said to be vast and his industry very great. Outside his profession he is most liberally cultivated and, in this respect, ranks beside Story. . .. His mind is singularly analytical. Added to all, and crowning all, his perfect character is of the best stamp, modest, amiable, gentle, strictly temperate, and inflexibly just.”

1 20 Wallace, ix. 2 Carson, H. L.: The Supreme Court of the United States, 350.

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The appointment met with the general approval of the public and the profession.

Mr. Badger, in the Senate (1854), advocating a bill increasing the compensation of the Justices, thus refers to Judge Curtis and Judge Campbell: ‘“‘The two Juniors of the Court, from the extreme points of the Union, North and South, men of the highest

character for learning, for integrity, for talent, for - judicial propriety and decorum; men who have been placed upon the Bench with the prospect of having a long career of usefulness to their country and of honor for themselves, men led by a natural and honorable ambition, by a just professional pride, elevating them above sordid considerations, to accept a position, the compensation of which does not exceed the fourth of what their profession would have produced and would have continued for many years to have produced for them.”

In his eulogy of Justice Curtis, pronounced before the Bar of the Supreme Court in 1875, Judge Campbell gives his estimate of the personnel of the Court at the time of his appointment. Referring to the _ manner in which Judge Curtis was called to the Bench, he said: ‘‘ The appointment came to him. He was not required to pursue or to beseech it. It came to him by a divine right — as the fittest. The Court was presided over by Chief Justice Taney, who had established, to the acknowledgment of all, that his commission was held by the same title. He was then seventy-three years of age, bowed by years and infirmity of constitution. In the administration of the order and procedure of the Court, there was dignity, firmness, stability, exactitude, and, with these, benignity, gentleness, grace, and right coming. The casual visitor acknowledged that it was the most majestic tribunal of the Union, and that the Chief Justice was the fittest to pronounce in it the oracles of justice. All of the Justices had passed the meridian of ordinary life before their Junior Associate had come to the Bar. There was much stateliness in their appearance, and, with diversities of character, education, discipline, attainments, and experience, all of them had passed through a career of honorable service, were men of large grasp of mind and honorable purpose. . . . Their deliberations were usually frank and candid. It was a rare incident ... when the slightest disturbance, from irritation, excitement, passion, or impatience, occurred. There was habitual good-breeding, self-control, mutual deference, in Judge Curtis, invariably so. There was nothing of cabal, combination, or excitement, or exorbitant desire to carry questions or cases. Their aims were honorable, and all the arts employed to attain them were manly arts.” !