Lives of Distinguished North Carolinians, with Illustrations and Speeches

by Unknown

On one occasion, in a case of indictment for blasphemy, the question had been raised whether the Christian religion was a part of the common law, with a suggestion that if it was, it might be altered by statute, Mr. Badger volunteered an argument for the cause of religion and sound morality. It so happened that, as he opened his case, a venerable citizen of the State, of great intelligence, entered the court-room to speak a word to the reporter, expecting immediately to retire. He was, however, so fascinated with the manner of the speaker, the splendor of his diction, the copiousness of his theological and legal learning, the force and clearness of his arguments and the precision with which they were stated, that he sat down and heard him to the close, observing, as he withdrew, "what folly ever to have made him a judge, he ought to have been a bishop."

Literature, whose office it is to preserve the results of learning, knowledge, and fancy, has made so little progress among us that there has not been much effort to save from oblivion the discussions at the bar or in the deliberative assemblies of the State—the chief theatres of public intellectual exertion besides the pulpit. Had Mr. Badger been studious of posthumous fame and bestowed half the time in reporting his speeches in the more important of his causes on the circuit, which Cicero recommended and practiced in the preparation of his orations, the result would have been a most interesting contribution to American rhetorical literature. There are occasions enough within the recollection of many, who were present, in Wake, Orange, Granville, Halifax, and elsewhere, when his utterances, even if printed as delivered, would have formed a volume of no less interest than the speeches of Wirt or Emmet, Erskine or Curran, as well as afforded insight into events, crimes, transactions of business, and the state of society of our times, such as the muse of history derives from the records of courts of justice.

Two causes in the Circuit Court of the United States, in the days of Chief Justice Marshall, are especially remembered as being the themes of his most admired arguments, and in which he overcame the preconceived opinions of the great Judge, though impressed and supported by the acknowledged abilities, learning and persuasiveness of Gaston. These were the cases of Whitaker vs. Freeman, an action for libel in twenty-five different counts, and Lattimer vs. Poteat, one of a series of cases in ejectment, to recover immense bodies of land in the western counties, claimed by the citizens of Northern States under purchases from speculators who, it was alleged, had made their entries and procured grants before the extinction of the title of the Cherokee Indians, in violation of law; the defendants claiming under grants from the State made after the admitted cession of the Indian title; and Mr. Badger was retained by the State to defend their interests. This latter case, involving the relations of North Carolina while a separate sovereignty, and afterwards of the United States with the Cherokee Indians, as regulated by sundry treaties, the location of several lines of partition between them and the whites, but removed further and further west as the population of the superior race increased and emigration advanced, surveys partially or wholly made to establish these lines through a mountainous, and in many parts, an impervious country, imputed frauds in transgressing those lines and entries without actual survey, was of exceeding volume and complication in its facts, and occupied a week in the trial. The argument, running through four days, was said to be the most elaborate on both sides ever made in the State in a jury trial. It resulted in a verdict and judgment for the defendants, which was afterwards affirmed by the Supreme Court of the United States. After the trial, Judge Marshall, in the simplicity and candor of his great character, observed to the then Governor of the State, "At the close of Mr. Gaston's opening argument, I thought he had as good a case as I ever saw put to a jury, but Mr. Badger had not spoken two hours before he satisfied me that no one of his [Gaston's] positions could be maintained."

To this instance of laudatus a laudato viro I deem it not improper to add a few others from sources only less eminent: Chief Justice Henderson declared in my presence that "To take up a string of cases, run through them, extract the principle contained in each, and discriminate the points in which they differed from each other, or from the case in hand, I have never seen a man equal to George Badger."

Judge Seawell remarked of him: "Badger is an elementary man," and, continuing in his peculiar and racy style, "he goes to first principles; he finds the corners of his survey and then runs out the boundaries, while others hunt along the lines. The difference between him and myself is, that when I take up a book I read slowly, pausing at the end of each sentence, and when I have reached the bottom of the page I must stop and go back to see whether I fully comprehend the author's meaning, while he reads it off like a novel, and by the time he gets to the bottom of the page or the end of the treatise he has in his mind not only all that the author has taught, but a great deal that the author never knew."

Chief Justice Ruffin, yet surviving in honorable retirement from the labors of the profession, whose early appreciation of the faculties of Mr. Badger we have already noticed, and before whom as a Judge of the Supreme Court, he was in full practice for twenty-three years, affirmed to me, since the death of Mr. Badger, that in dialectic skill and argument he excelled any individual with whom he had ever been acquainted, not even excepting Chief Justice Marshall himself, for that he possessed the faculty of imagination and the capacity for illustration which Judge Marshall had not.

To his hospitality and kind intercourse with gentlemen of the profession, his liberality and assistance to its junior members (whom his gracious demeanor and familiar manners won, no less than his spirited and intelligent conversation entertained and improved), to his unselfish and genial nature, and an integrity on which no temptation ever brought a stain, the occasion permits time only to allude before closing our view of his professional life. Had he been called to the office of Attorney-General of the United States by General Jackson at the period of his first election (of which Mr. Badger had been an ardent and efficient advocate), as many of his friends entertained expectation, and had continued from that time his practice in the Supreme Court of the United States, it is hazarding but little to say that his fame would have equaled that of any advocate in the history of American jurisprudence.

Of Mr. Badger's brief service at the head of the Navy Department—excepting his recommendation of the establishment of a home squadron to patrol the Gulf of Mexico and West Indian seas, as a protection against piracy or any sudden hostile demonstration on our coasts (a measure since adopted)—there is no circumstance demanding especial notice. He had accepted the appointment at the request of President Harrison with reluctance, retained it by the expressed desire of his successor, and resigned it as soon as the breach between Mr. Tyler and the party that elected him was found to be irreparable.

Equally unsought and unexpected was his election to the Senate of the United States when absent from the seat of government on a professional errand beyond the sphere of his usual practice. He entered the Senate in the first year of the war with Mexico and held his seat throughout the struggle which ensued over the introduction of slavery into the Territories acquired by the treaty of peace, a struggle which was then threatening the dissolution of the Union; he held his seat during the compromise measures of 1850, under the leadership of Clay; the election of General Taylor; the succession of Fillmore; the election of Pierce and the first half of his term, including the organization of territorial government in Kansas and Nebraska, a period of more fierce, convulsive and (as the sequel has proved) fatal party agitation than any in American history except the years that have succeeded it. Even now, after the dreadful chastening that all have received from recent calamity, it is difficult to recur to it without reviving passions inconsistent with the solemnities of the hour and the charities inspired by common suffering.

In this struggle it was maintained on the one hand that inasmuch as these acquisitions of territory had been made by the common contribution of men and means from all the States, the citizens of any State were at liberty to emigrate and settle upon them, and to carry any property they might possess, including slaves; that this was the case by virtue of the operation of the Constitution over the new territory proprio vigore. It was further declared that Congress had no authority to legislate in contravention of this right; and, in the progress of the dispute, this latter position, was extended into the assumption that it was the duty of Congress to enact laws to ensure it, and that a failure in this was a breach of Constitutional duty so gross as to justify the injured States in withdrawing from the Union, a power which, it was declared, every State held in reservation, and might exercise at pleasure, the Constitution being but a compact having no sanctions for its perpetuation. On the other hand, there had been for years at the North a party organization, not numerous at first, but which at this period had swollen into a formidable power, whose avowed object was the extinction of slavery; which had denounced the Constitution, so far as it upheld or tolerated it, as a covenant with the infernal powers; had absolved themselves from its maintenance in this particular, and avowed their preference for a disruption of the Union unless slavery should be abolished in the Territories and States as well. More moderate men in that section, while not agreeing with these extremists, denied emphatically either that the Constitution gave to slavery a footing in the Territories or bound Congress to maintain, or not interfere with, its existence there; and that in the exercise of a legislative discretion they might encourage, tolerate or forbid it; the great majority favoring its prohibition in the Territories, while they held themselves bound to non-interference in the States.