Discourse of the Life and Character of the Hon. Littleton Waller Tazewell

by Hugh Blair Grigsby

But there was a young man, a member of the bar in 1802, whose elegant person, whose winning address, whose uncommon abilities, which were associated with industry and perseverance quite as uncommon, and whose glowing patriotism, would have made an impression in any country and in any age, and gained distinction in any sphere. Under such a portrait the name of one man only can be written—that of Robert Barraud Taylor. Young Taylor was eleven months older than Tazewell, was born in Smithfield, attended in Norfolk the school of that elegant scholar, the late Dr. Alexander Whitehead, became a student of William and Mary College, where he remained till his duel with John Randolph, in which he received a ball that he carried to his grave; studied law with Judge Marshall, and in 1796, at the age of twenty-two, engaged in the practice of the law in this city. His fine talents attracted universal attention, and business crowded upon him. His voice, action, eloquence, were all in fine harmony. As the district court system was then in operation, he had an opportunity of witnessing the displays of the leading counsel of the state in the neighboring town of Suffolk; and it was the dictate alike of interest and ambition to prepare himself for the conflict with his ablest contemporaries. Politics were the order of the day; and they soon engaged the attention of young Taylor. I heard many years ago, that when he came to the bar, and some time afterwards, he sided with his college mates Tazewell, Randolph, Cabell, Thompson, and James Barbour, and hailed with rapture the progress of the French revolution; but, shocked by the barbarities which disgraced the later stages of that moral and political maelstrom, and indignant at the unprecedented conduct of the diplomatic agents of France in our own country, he determined to separate from his early friends, and to uphold with all his influence the administration of Washington and that of his successor. It is said that he read with unmixed feelings of admiration and delight the Reflections of Burke on the French Revolution, which had appeared about six years before; and, if that work vanquished his early love of France, he may be said at least to have fallen by a noble hand. At such a crisis of foreign and domestic affairs, it was impossible that a young man with such powers of eloquence and such fearlessness of spirit should be allowed to remain at home, while all his old associates, and the oldest and ablest politicians of the state were about to assemble in Richmond, and to battle for the victory. He was accordingly returned, in 1799, by the Borough of Norfolk to the House of Delegates, on the floor of which the contest was to be decided. At the session of the previous year, the Assembly had passed the celebrated resolutions of John Taylor of Caroline, long since known to have been written by Mr. Madison, which had been sent to the several states. The leading object of the present session was to refer the answers of the states to a committee, and to report an argument in defence of the resolutions of the previous year. The report, since so well known as the Report of '99, or the Virginia Report, drawn by Madison, was the consequence. When it was presented to the House of Delegates, it was discussed by the prominent men of both parties with eminent ability. Young Taylor performed his part with his usual zeal and force, and, by the side of his illustrious namesake, George Keith Taylor, opposed the adoption of the Report, which prevailed, however, by a decided majority. He also sustained Mr. Adams for the presidency in preference to Mr. Jefferson; and, when Mr. Jefferson was elected, he opposed his administration up to 1802, when Tazewell came to reside in Norfolk. Though opposed then, and as long as he lived, to the party which, with few and short intermissions, has controlled, from 1789 to the present day, the political action of the state, his devotion to our blessed mother was as pure and as ardent as was ever felt by any son who drew nurture from her bosom; and he was as prompt to avenge her wrongs as to assert her rights—at once a D'Aguessau in the forum and a Bayard in the field. Nor was that affection unreturned. When the clouds of war were gathering round her, Virginia entrusted her safety and her honor to his sword; and when the returning light of peace shone upon her hills and valleys and over the green savannahs of the East, and he had withdrawn from the arena of his splendid fame, she invested him with her ermine, which he wore with becoming grace to his dying hour; and she stood in tears at his tomb.

In this young man, Tazewell was to find an intimate friend, a fit, an able, and a lifelong competitor. They were nearly of the same age: they had been classmates in College, and had been in the Assembly together; and while Tazewell was studying law in Mr. Wickham's office in Richmond, Taylor was following suit a few doors off in the office of Gen. Marshall. Even on the score of physical beauty they were not unmatched. Though belonging to different models, each in his sphere was, in youth, in middle life, and in old age, among the finest looking men of their generation. Sometimes the aspect of Taylor was magnificent. I saw him one afternoon thirty years ago as he was returning from the court in Portsmouth. He was passing from Toy and King's corner to Hall's. The waves of recent debate were sweltering in his breast. His person was erect; his gait was rapid; with one hand he held his cloak in a graceful fold, and with the other he grasped his ivory curule staff. I thought of Cicero hastening up the Capitoline hill to announce in the forum the death of Catiline on the Picenian plain and the slaughter of the traitor's band.

There were, however, some differences between them, which, or some of which, observable at first, grew more distinct in the lapse of years, in their places of nativity, in their temperaments, in their intellectual traits, and in their politics. Both were partly of Gallic descent; but here they differed as in other things. Tazewell was French on the father's side; Taylor on the mother's. Tazewell's ancestors were from that city on the banks of the Seine in which the piratical Northmen had dwelt, which they had made the capital of a warlike empire extorted from one of the drivelling descendants of Charlemagne, and which they had called by the defiant title of Normandy. Taylor's ancestors belonged to that pious and not less heroic race, which, under the name of Huguenots, battled, not for rapine and conquest, but for the rights of conscience and for a large public liberty, and which, though defeated and driven from their ancestral land, the beautiful land of the fig, the olive, and the vine, to the chalky shores of old England, were more than triumphant in the virtue of their cause. The music familiar to the ears of Tazewell's ancestors was the wind from the boisterous North Sea and the turbulent Bay of Biscay; while Taylor's forefathers were refreshed by the gentle gales of Araby blown across the blue Mediterranean to the banks of the Rhone. The blood of both had been strongly mixed with the blood of that Anglo-Saxon race, which, crushed at times, and even for centuries, was apt to rise again, and build its fortresses to freedom out of the ruins of the very temples of its oppressors.

Tazewell was born on the north side of the James, Taylor on the south—a distinction of no little significance in Virginia politics to this very hour. Tazewell, insensibly imitating those grave old rovers of the sea whom he counted among his kin, was, even under great provocation, cool and wary, and only the more dangerous; Taylor, whose southern blood coursed in torrents of fire through his veins, though at times in the highest degree self-poised and calm, had less command of his temper, and showed more plainly the smart of the hostile shaft; and, though prompt as lightning to return it, did not always send it back to the enemy as steadily as he might have done with more deliberation. Their modes of reasoning differed as widely as their temperaments. Each was a supreme master of reasoning in his respective department; and, if we look along their entire course at the bar, it is hard to say which of the two won the most verdicts. Perhaps, though both of these able men wielded at times an almost omnipotent sway over juries and over the bench; yet it may be said that the style of Tazewell was more decisive with the court, and that of Taylor with the jury. Each seemed necessary to the greatness of the other; and it is probable that, if Tazewell had not been constantly pressed throughout his career by such a man as Taylor, he would never have made those wonderful displays before a jury and in popular assemblies which form no small part of his fame; and that Taylor, unless checked by the severe logic of Tazewell, would, indeed, have been, as he was, the great advocate of his time, but would have failed to acquire that reputation for profound ability and learning in the law, which no less a judge than Marshall acknowledged in terms of high commendation. In a strictly legal point of view, it would have been best that both these able men had been removed in early life from the deteriorating influence of inferior courts, and transferred to a higher sphere. Had they gone together to New York, and had been compelled to follow their cases through the highest courts as well as the lowest, or had confined themselves to appellate tribunals, they would in their daily efforts have reared a legal reputation coextensive with the Union, and, perhaps, more durable. It is only necessary to state that Taylor remained at the bar ten years after the retirement of Tazewell; that he was then called upon to preside in the courts in which he had reaped his brilliant fame; that, when a long and honored judicial career seemed to stretch before him, he was snatched away at the comparatively early age of sixty; and that Tazewell survived him more than a quarter of a century.[4]

Before we leave the Court-room of 1802, glancing, as we pass, at the face of young Maxwell, then just returned from Yale, who four years later was to make a name for himself, and of Arthur and Richard Henry Lee, brothers, whose sparkling eloquence ruled the fierce democracy of the day, and bespoke its ancestral source, and of others who were about to step on the threshold of professional life, the young man, sitting at the clerk's table, and intent upon his work, raising now and then his dark chestnut eyes to the Counsel or to the Court, his jet black hair curling about his tall forehead, his erect port telling of the military exercises in which he so much delighted and excelled, seems, in vision, to rise before me. Born in Henrico, within a stone's throw of the birthplace of Henry Clay, who was his intimate personal friend and colleague in the clerk's office under Peter Tinsley,—the county-man and colleague also of our late esteemed fellow-citizen, Thomas Williamson, another pupil of Tinsley,—he had performed such faithful service in the General Court, that at the age of twenty-four, he was chosen, in May of the preceding year, the clerk of the Norfolk Courts. His skill in his business, the industry and integrity that shone in all his paths, his cordial and polished manners, his martial spirit, which approached something too near "an appetite for danger," but which was finely tempered to the social sphere, conciliated the public esteem; and, while he acquired the reputation of the readiest and the ablest clerk of his day, he became, during the excited period from 1802 to 1815, when war with Spain, with France, with England, was the order and the trouble of the day, one of the most complete soldiers of our citizen corps. Leaning to the federal side in politics, he, like the gallant Taylor, knew no party when the sword was to be drawn. At the early age of twenty-five he was made Colonel of the Ninth Regiment, was in active service during the Douglas war, as the affair that grew out of the affair with the Chesapeake was called, and, during the late war with Great Britain, commanded in the field the Second and Ninth Regiments, establishing an exactness of discipline and an esprit du corps which was a favorite topic of remark in the army. He was the soul of honor. His name was an authority, his word was a witness, wherever the one was known or the other uttered; and there were those who predicted for him, whether he should engage in the field or at the bar, a brilliant fame. Between him and Tazewell, who were nearly of the same age, the most affectionate friendship existed—a friendship which, founded on mutual esteem, and cemented by mutual kindness, has descended already to the third generation. In 1823, at the age of forty-seven, this excellent man passed away. I only knew him in his latter years and in my boyish days. I see him as, when our waters were filled with hostile fleets, he marched at the head of his regiment, on a horse richly caparisoned, shining with silver and steel. I see him as he walked along the street, a tall slim man, quick in his movements, and inspiring, by his air and gait and benignant eye, respect and even affection. He was early bald on the upper part of his head; but, by way of atonement, wore to the last, sometime after it was dropped by others, a long queue, that attracted the passing glance of the boys. He was, I think, except Seth Foster and Moses Myers, the last of the queues. He came of an old Anglo-Saxon stock. His name for centuries in Scotland and in England had been borne by archbishops and illustrious laymen; and in our own times, in the earlier part of this century, it was the synonym of British philanthropy. But neither early nor late, in the Old World or in the New, was it ever borne by a nobler or a purer man—a man over whose grave more gentle and more precious memories should hover—than William Sharp.

When, in 1802, Tazewell appeared at the Norfolk bar, party politics were in a state of active fermentation. The passions of men became involved in the contests of the day to an extent which has not been reached since, and entered into the private relations of life. Men of business who had important cases for trial, and who were, for the most part, attached to the federal party, called in the aid of the federal members of the bar; but it was soon seen that the young republican lawyer, who had voted for the resolutions of '98-'99, and for the report of '99-1800, and who had helped by his vote in the House of Representatives to elect Mr. Jefferson president, had introduced a new practice into the courts, and began to win verdicts in the greatest cases from all his federal opponents. The result was, as it always will be, that ability and learning prevailed over prejudice, and Tazewell was soon employed on the one or the other side of every great question. As an illustration of the strength of the political prejudices which prevailed, and which entered into domestic affairs, when Tazewell became a member of the Norfolk bar, I may mention an incident I heard many years ago. When it was rumored that Tazewell was paying his addresses to the eldest daughter of Col. Nivison, who belonged to the federal party, an old and active federalist observed that the Colonel would never allow a daughter of his to marry a democrat; and, as an illustration of the bigotry of the opposite party, I may mention that I have heard old republicans say that Tazewell's democracy was tainted by marrying into a federal family; and that his marriage was the true explanation of the change of his relations with the administration of Jefferson, of which I shall treat in another place. And here it may be proper to state that, in 1802, Mr. Tazewell led to the altar Anne Stratton, the eldest daughter of Colonel John Nivison; a lady with whom he lived most happily for fifty-four years, and whom, after an interval of eighteen months, he followed to the grave.

In the fall of 1803, William Wirt, whose brilliant genius has reflected so much credit on his adopted Commonwealth, came to reside in Norfolk. Like all his legal compatriots, he had been an active politician, and had been clerk of the House of Delegates for three sessions, during the last of which, the session of 1799, the Virginia report was adopted, and was a warm personal and political friend of Mr. Jefferson. It is from his pen that the beautiful resolutions of the Virginia Assembly, approving the administration of Jefferson at its close, proceeded; but then he was not known even as the author of the Letters of the British Spy which, though they had been printed in the Richmond Argus in the early fall, had not been collected into a volume. He was welcomed most cordially by Mr. Tazewell, by whose persuasion he had come to Norfolk, and whose business was now so overflowing that he offered, as we are told by Wirt, to withdraw from several courts purely for his benefit. The success of Wirt was flattering, but, overcome by the fear of the yellow fever, and seduced by family attachments, in the early summer of 1806, he removed to Richmond. While he resided in Norfolk, he was engaged with Mr. Tazewell in the case of Shannon (1804), which was tried in Williamsburg, and which excited the most intense interest in Eastern Virginia. Of Mr. Tazewell's speech on the trial Mr. Wirt always spoke in terms of enthusiastic admiration, which was not the less glowing as until that time he had looked upon Mr. Tazewell only as a severe logician, and incapable of the loftier flights of eloquence. The buoyancy of Wirt's spirits is exhibited in his admirable letters published in the memoir of Mr. Kennedy; and his gentle courtesy and generous nature are yet freshly remembered in our city. As a proof of his playfulness, I have heard Mrs. Tazewell say that when Wirt would call at her house, on his way to court, he would beg her for a bundle of newspapers to stuff in his green bag, to make a show of business as he passed into the court-house. When the Old Bachelor appeared, a series of essays in imitation of the Spectator, which Wirt published after leaving Norfolk, he delineated at full length the character of Tazewell, under the name of Sidney, and of General Taylor under that of Herbert; and I refer to the number as a gratifying evidence of the estimate which he placed upon the genius and acquirements of those eminent men. And now that the grave has closed above Wirt and Tazewell, it is refreshing to contemplate the cordiality of their friendship, and the substantial welcome which Tazewell extended to Wirt; and it is proper to say that, but for the revelations of Mr. Wirt himself contained in his published letters, and in the statements of his nearest friends, the recollection of the generous kindness of Mr. Tazewell to Wirt, as may be said of many other cases, would have remained unknown to his surviving friends.

In tracing the career of a great lawyer, we should follow him through the courts in which his life was spent; but here, unfortunately, no records appear which can throw any light upon the subject. The grandest efforts of counsel are made in the presence of the court and of the jury, and of those spectators who may happen to be in the court-room at the time, and are soon forgotten. Many heroes, the poet tells us, lived before Agamemnon, but are forgotten, because they had no poet to record their praise; and, before the days of the stenographer, the most brilliant harangues in our inferior courts perished with the breath of them who uttered, and of those who heard them. Such has been the fate of Mr. Tazewell. Of all the speeches which he addressed to the courts and juries of Norfolk, from 1802 to 1821, not a vestige remains; and all that we know is, that he was employed on one side or other of all the important cases of that interval; and that he exhibited abilities which easily placed him at the head of the bar of the Commonwealth, and attracted the attention of all who, whether in foreign countries or our own, held any connexion with our city. I shall pass over his criminal cases altogether, though they abound in striking passages; and of his civil cases in the courts of the State during his practice, I shall select two only, and rather by way of allusion than in full detail, one of which was tried at the beginning of this period, and the other in 1821 near its close.

About the year 1798, an eccentric individual named John Taylor, but better known as Solomon John, to distinguish him from two other persons of the same name living in Norfolk at the same time, a man of wealth and position, but believed to be slightly deranged in some respects, was returning from a hunting excursion, and, stopping at Burk's Gardens, which have long since given way to the houses now composing Hartshorne's Court, deliberately discharged his piece, which was loaded with small shot, at a crowd of people, and wounded a man named Rainbow in the leg, which was at length amputated. Rainbow instituted a suit, an action of trespass on the case, in the Borough Court, and filed a declaration in that form. Tazewell, as Taylor's attorney, offered to demur to the declaration, a mode of pleading which, though old as the English law itself, was a novelty in the borough; and the Court refused to receive it. Mr. Tazewell took a bill of exceptions to the District Court at Suffolk. The point of the demurrer was that the action should have been trespass vi et armis. The District Court affirmed the decision of the Borough Court; and an appeal was taken to the Court of Appeals, which reversed the decision of the inferior courts. Until this time the distinction, which is merely technical, had been hardly perceptible to the courts of England and of this country, and was by no means settled law; but thereafter the points of difference were regarded as clearly defined; and both in England and in the courts of the United States, the case of Taylor vs. Rainbow has always been cited as conclusive of the question.

The other case, which was one of the last in which he appeared at the Virginia bar, was Long vs. Colston, and was argued in 1820, in the Court of Appeals. His associate in the case was Mr. Wickham, and the opposing counsel were Gen. Walter Jones and Mr. Stanard; and it was decided by Judges Roane, Cabell, and Coalter. The arguments of Tazewell are not stated; but Mr. Gilmer, who reports the decision, laments that no official reporter was present "to give to the profession even a sketch of the profound and comprehensive views of the counsel." The question was on the doctrine of Covenant; and I am told by learned counsel who have examined Mr. Tazewell's notes in the case, that this was, in their opinion, the greatest forensic display ever made in this country.