Part 28

This imperfect offering is a memoir, not a panegyric. It contains not history, but _particulas historae_--scraps of history, which it is hoped may not be without their use to the future student of our annals, for the character we contemplate is destined to be historical. His life was passed in public view, in the most important public functions, in contact with the most gifted and cultivated men of the State for half a century; it ran through two generations of lawyers. It was given to a profession in which were engaged many of the first minds of other States, and I can call to recollection no judge of any State of the Union who in that period has left behind him nobler or more numerous memorials of erudition, diligence, and ability in the departments of the law he was called to administer. The study of his performances will at least serve to correct the error of opinions prevailing with many at the North, that the intellectual activity of the South delights itself only in politics.

It has been remarked by one of the British essayists, as "a saying of dunces in all ages, that men of genius are unfit for business." It is perhaps a kindred fallacy, to which pedantry and sloth have given as much countenance on the one hand as blissful ignorance upon the other, that high culture and erudition, as in the case of the learned professions, are incompatible with success in practical affairs in other departments. We have before us the life of one who demonstrated in his own person that it is possible for a great and profound lawyer to take a leading part and become a shining light in practically promoting the first and greatest of the industrial arts, and although there be no natural connection between these occupations, that the same well directed industry, patience, and energy which had achieved success in the one, was equal to a like triumph in the other; whilst in high probity, in stainless morals, in social intercourse, in the amenities of life, and the domestic affections and duties, his example will be cherished in the recollection of his friends, and may well be commended to the imitation of our youth.

OPINION IN EX PARTE BRADLEY.

BY THOMAS RUFFIN.

This opinion of Judge Ruffin, taken at random to illustrate his style, is not above his average.

His great opinions are too long and technical to be of interest to the general reader. He thoroughly understood "the language of the law," and used it with the utmost precision.

His discussion of the question at issue throws a side-light on times fifty years agone, and will awaken memories in the old and inquiry in the young.

Badger and Iredell applied to the Chief Justice for a writ of _habeas corpus_ in behalf of William Bradley, who had been imprisoned for assault and battery.

OPINION.

_Ruffin, C. J._ At the last term of Anson Superior Court, William Bradley was convicted of an assault and battery, and was sentenced to pay a fine of one dollar, and "to be imprisoned in the public jail of Anson county for twelve months, and thereafter until the said fine and costs should be paid." He was committed to the custody of the sheriff of the county, and has been kept a close prisoner ever since, but has recently tendered to the sheriff a bond with sureties to keep within the rules of the prison (which have been laid off by the County Court, and contain six acres), and demanded of the sheriff to be let out of prison. This was refused by the sheriff, upon the ground that he was required by the sentence to keep this person within the public jail.

Upon an affidavit and petition of Bradley, stating those facts, he has applied for a _habeas corpus_, that he might be brought up and an order made for his enlargement, according to his application to the sheriff. His counsel, however, does not desire that he should be put to the expense and trouble of the writ, unless it should be thought that he is entitled to the liberty of the rules bounds. As I had an opportunity of consulting my brethren on the subject, I have availed myself of it, and I now give our unanimous opinion, that the sheriff is bound to keep the applicant a close prisoner. The application is founded on the Act of 1741, Rev. St., c. 90, s. 11. It enacts, that, "For the preservation of the health of such persons as shall be committed to the county prisons, the court shall have power to mark out such a parcel of land, as they shall think fit, not exceeding six acres, adjoining the prison, for the rules thereof; and every prisoner not committed for treason or felony shall have liberty to walk therein, out of prison, for the preservation of his or her health."

If there were no other objection to this application but its novelty, that would be sufficient. It is the first that has been made, as far as we have heard, since the act passed, which is now more than one hundred years. If this were an absolute right of all persons committed under sentence for misdemeanors, there can be no doubt that it would have been long before claimed and constantly exercised. But we think the construction of the act is plainly against it. It seems to have been made in reference to a known usage and regulation respecting prisons in the mother country. There, by "rules" of the several courts, debtors and prisoners for misdemeanors have the liberty of walking in the prison yards, or within such other limits as the courts prescribe for their respective prisoners, at such hours and on such days as "the rules" may designate. Those "grounds" came in time to be called the "rules of the prison" because they were laid off and the prisoners had liberty of exercise therein by rule of court for that prison. In the same manner and for the same purpose the grounds are to be laid out adjoining our prisons. The courts "shall have the power," that is to say, they may lay off ground, little or much, but not to exceed six acres, adjoining the prison, for the rules thereof. These last words, "for the rules thereof," show, that with each court it was left to make such rules respecting the prisoners committed by it as to the extent, periods and durations of enlargement out of close prison for exercise and health, as the situation of the prison, the season of the year, the danger of escape or the character of the prisoners, or the enormity or mildness of their offenses might suggest to the court, restraining them, indeed, from allowing more than six acres in space to any prisoner, and from extending the liberty to traitors and felons, or persons committed as such. Hence, also, the expression that the prisoner may have liberty "to walk therein for the preservation of his health," which shows that the courts had the power to allow the prisoners merely the "liberty of walking," at particular hours, and require them still to have their abode in the prison. Such, at first, was no doubt, the practice. But in laying out the bounds the rules of the court in modern days practically exempt persons committed in execution for debt from any imprisonment within the jail, by allowing them to walk, not for particular hours, but at all times of the day and night within the rules. As they are not required to eat or sleep within the prison, they are, in effect, allowed to live out of the walls, provided they do not go out of the rules.

But with regard to persons committed under sentence for crimes, no rules have ever been passed. At least, we have known of none; and the applicant does not state that there is any such rule for Anson Superior Court. We do not say that it might not be proper, in some cases, to grant to minor offenders the liberty of exercise and fresh air at reasonable times and for a moderate period. But that is, necessarily, as each court may order in regard to its own prisoners; for as the imprisonment itself and its duration are within the discretion of the court, so must the degree of its vigor be, at least, as to the power of mitigating it within the extent allowed by the statute. The reason why no _regula generalis_ has been adopted by the court, doubtless has been, that our courts are not in the habit of sentencing convicts to imprisonment, unless in those cases in which the courts think that, for the purposes of correction and example, there should be actual imprisonment during the whole period. But if there be any general rule upon the subject in any court it would be under the control of that court, whether each prisoner should or should not be allowed the indulgence, and the sentence on this person is, "that he _shall_ be imprisoned _in_ the public jail of Anson for twelve months." Of course, this prisoner cannot demand an enlargement out of prison, as a matter of right.

As I should be under the necessity of remanding the prisoner, if brought up on _habeas corpus_, I decline issuing the writ at all, according to the suggestion of his counsel.

THOMAS BRAGG.

BY PULASKI COWPER.

Thomas Bragg was the son of Thomas and Margaret Crossland Bragg, and was born in the town of Warrenton, in Warren county, on the 9th day of November, 1810. His father was a carpenter and contractor, a man of strong will, good judgment, and hard common sense, who devoted the fruits of his labor to the education of a large family of children. John, an older brother of Thomas, was a distinguished judge of Alabama, and a member of Congress from the Mobile District, in 1852, but declined a renomination. General Braxton Bragg, whose military reputation is familiar to the country, was a younger brother. Alexander J. was an architect of high standing in Alabama. Dunbar was a leading merchant in Texas; and William, the youngest brother, died near Chattanooga, July 25, 1863, from wounds received in battle. Mrs. Mary L. Cuthbert, widow of the late James E. Cuthbert, a sister, and the last of the children, died recently in Petersburg, Va.

Thomas Bragg received his preliminary schooling at the Academy in Warrenton and his education was completed at Captain Partridge's Military School, in Middletown, Connecticut, where he remained about two and a half years. Soon after returning from Middletown he commenced the study of law under the late Judge Hall, of Warrenton, one of the judges of the Supreme Court, and, on obtaining his license to practice in the courts of the State, he started out, with a horse and stick gig and fifty dollars, for Jackson, the county-seat of Northampton county, N. C., which place he made his home in the spring of 1833. This was all the assistance he had, but his paying practice was immediate, and he never needed aid from any other quarter.

Shortly after settling in Jackson, Benjamin B. Blume, who was County Attorney, resigned the office and removed to Petersburg, Va., selling his library to the subject of our sketch, who was elected County Attorney, beating his opponent, Colonel Samuel B. Spruill, the office then being worth about five hundred dollars. He was a strong and vigorous prosecuting officer, discharging the duties in strict conformity to his oath, and showing neither favor to a friend nor resentment to an enemy. His execution of the office was so rigid that it affected his popularity; evidence of which was visible, in some quarters, even up to the time he assumed the office of Governor. Upon one occasion, after he had spoken in the prosecution of a citizen of considerable prominence, Mr. B. F. Moore, who was counsel for the defendant, made strictures upon his course, and charged that his zeal was the result more of feeling and spite than of his conceived duties under his oath. He was seen to bow gracefully, but determinedly, to Mr. Moore, as he proceeded with his speech. Immediately after the adjournment of court, a note was borne from him to Mr. Moore by Colonel Spier Whitaker. It was with some difficulty that the matter was settled, but friends interposed, and it was satisfactorily adjusted to both parties; and these men were not formal in their subsequent intercourse, but, on the contrary, their relations were always cordial and friendly. Mr. Moore's strong and feeling speech in the Supreme Court-room, the day after Governor Bragg's funeral, clearly shows this.

It was not long after he had been at the bar when an important case was begun in Hertford county, _Beale_ vs. _Askew_. It was a suit for damages for libel. A. J. Askew was charged with sending to the Norfolk (Va.) _Herald_, then edited by Thomas G. Broughton, Esq., a notice of Beale's marriage to a woman in Winton of infamous character. The case was moved to Chowan and tried in Edenton. Bragg and William W. Cherry, then very young men, appeared for Askew, and Judge Augustus Moore and Mr. Kinney, at that time the leading Eastern lawyers, were the opposing counsel. Governor Bragg alluded in his speech to his youth and to his being a stranger as working to his disadvantage before the jury. Mr. Kinney, in his kindest manner, complimented in his speech these young men for their able conduct and management of their case, and predicted their future usefulness and distinction. Mr. Cherry died when quite a young man. He possessed a powerful intellect, and was unquestionably, the most brilliant speaker the East ever had.

On the 4th day of October, 1837, Bragg was united in marriage to Miss Isabella M. Cuthbert, of Petersburg, Va. He first met her in Jackson while on a visit to her sister, Mrs. Starke, whose husband was at that time engaged in business in Jackson. Their associated lives were long and happy, and marked by the most devoted attention on his part, and cemented by a mutual affection and tenderness. She only survived him a few years.

Bragg was a close and hard student. Except when called away on business, he was rarely out of his office; and he left his house at night only when urgent engagements compelled it, which was infrequent. So closely did he confine himself to study and to the full preparation of his cases, and so fully was his time occupied, that he seemed estranged from the community. These seclusive habits, together with strongly drawn party lines, destroyed to a degree that social interchange which a more general intercourse would naturally have engendered. He was not what might be considered a popular man of the town, but his high moral worth and his honorable and commendable course of life accorded him the highest consideration and respect.

His daily course was to smoke his pipe and read his newspapers for about half an hour after breakfast, then repair to his office, which was near to his house and on his lot, read law, and prepare his cases, smoking a good deal of the time, until dinner. After dinner he would devote another half-hour to newspaper-reading and his pipe, and then go to his office, resuming his law studies and duties until late in the evening, when he would either take a ride or a walk with his wife. After supper he would take his smoke and read newspapers, magazines or other literary works until about ten o'clock, his usual bedtime. He rarely read law at night, except sometimes shortly before attending the Supreme Court, when it might be necessary for him to do so to prepare cases for argument there. Such was his regular course of life at Jackson, and he was as regular in it as clockwork. He was not an early riser, usually rising just before breakfast, which was about nine o'clock in winter and about seven in summer. He never slept in the afternoons, and during the warm summer evenings he would occasionally lie down on a lounge, or sofa, which he kept in his office, and read his law books, but he would never take an evening nap. During his two terms as Governor he would, when he had taken his after-dinner smoke, go direct to the executive office, and remain there until late in the evening, and if alone, it was rare for one to enter and find him not engaged in either reading or writing. He was an inveterate smoker, and followed the habit so persistently that he could not relinquish it, and he carried his pipe to his courts as regularly as he did his law books. His constitution was, no doubt, though not perceptibly, affected by it, and the late gifted Dr. Charles E. Johnson, his family physician, was fully impressed that it shortened his life and precipitated the disease of which he died.

Bragg practiced law, regularly, in the Courts of Northampton, Halifax, Hertford, and Gates counties up to the time he became Governor. When employed in special cases, he would attend the courts of Chowan and Washington counties. He had a large and controlling practice, appearing in nearly every important case, yet but twice did his practice amount to four thousand dollars a year, and it was brought to that figure by these special courts, the highest fee being three hundred dollars, which was the largest single fee he ever received before the war. He was a diligent and faithful worker, and a moderate charger. One of his greatest efforts at the bar, before the war, probably, was made in the case of the _State_ vs. _Garrett_. Garrett was tried for murder in Northampton county, before Judge Bailey, about 1853. He was defended by Bragg and Mr. B. F. Moore, and the case occupied two days in taking the testimony. Both of these gentlemen made strong speeches, but Bragg's speech was particularly strong. He was deeply interested in the case and bestowed much labor upon it. He believed his client not guilty. The State was represented by M. W. Ransom, it being his first appearance as Attorney-General at Northampton court. He was a young man, and, having such able lawyers to confront, much sympathy was felt by the audience in the court room for him. He, however, did not need it. He saw the necessity for the full development of all the tact, brain power, and legal knowledge at his command. During the whole trial he took not a note, and he concluded the argument alike to the astonishment and admiration of the court, jury, and spectators, the very culmination, beyond doubt, of the greatest legal effort of his life. Garrett was convicted of murder, but before the day appointed for his execution he broke jail and was never afterwards captured or heard from.

It is by some supposed, and has been by some remarked, that Bragg developed as a lawyer after the war, and that up to that time he was merely a fair lawyer, with a good local reputation. This is a very great mistake. Though he may not have achieved an extended State reputation, yet he was recognized by the bar of the State as a strong lawyer, and he was accepted before the war by the people of the East as one of the leading, if not the leading, lawyer of that section.

In 1842 he was elected to the Legislature--House of Commons--defeating Thomas J. Gatling, a brother of the inventor of the Gatling gun. In 1844 he was defeated for the Legislature by Judge David A. Barnes, who had just before this come to the Northampton bar and had settled in Jackson. After this he sought no office, but was an active worker in the county political campaigns. In 1844 he was Presidential Elector on the Polk and Dallas ticket for the First District, his opponent being William W. Cherry, Esq., of Bertie county. In 1848 he was again elector for the First District on the Cass and Butler ticket, his opponent being the Hon. Kenneth Rayner, of Hertford county, one of the strongest political speakers of his day, and a man much to be dreaded in debate. At this time Bragg was not widely known in politics, and it was considered by the Whigs that Mr. Rayner would have a "walk-over." Their first meeting was at Rich Square, in Northampton, twelve miles from Jackson. Mr. Rayner's friends in Jackson (and the town was about all Whig) said they were "going out to see Rayner eat Bragg up," but the "eating up" was not done at that time, and they came back not so exhilarated as they went. Mr. Rayner had met his match, and Bragg had fully satisfied his Democratic hearers on that occasion. This campaign was exciting and ably conducted; and after it was ended Mr. Rayner was frequently heard to say that Thomas Bragg was the ablest debater and the strongest opponent he had ever met on the stump.

In 1852 he was again Elector for the Ninth District on the Pierce and King Presidential ticket, his opponent being Hon. David A. Barnes, of Northampton county. Judge Barnes was a ready and effective speaker. They had often crossed political swords. This campaign was marked by courtesy and ability.

In 1854 the Whig party nominated for Governor General Alfred Dockery, of Richmond county, and at that time Governor Bragg's name was prominently mentioned as the Democratic candidate. General Dockery opened his campaign at Gatesville, in Gates county. Bragg was there attending court, and he was called on to reply, which he did very successfully. It is said that he made a speech that much gratified and pleased his party friends. The week following the General spoke at Edenton, during court, and Bragg again replied with equal effect. Soon thereafter the Democratic convention assembled in Raleigh, and Bragg was unanimously nominated for Governor. He accepted this nomination with reluctance, and for a little while considered it. He had a good practice, amounting to about thirty-five hundred dollars a year. His home was comfortable and attractive, and his manner of life was quiet and contented. It was natural that a man thus situated and surrounded, and not beset by the disquietude of political strife and commotion should hesitate before disrupting such congenial associations. Upon reflection, however, he accepted, and when his courts were ended, joined General Dockery, and entered upon one of the most remarkable campaigns ever had in the State. General Dockery had been canvassing without any regular opponent, but the training incident to his having been pitted against some of the best Democratic talent in the State, as he went along, had developed him into a dangerous antagonist even for Bragg. The campaign waxed hotter and hotter, up to the day of the election, and, in all probability, had the election been a month later, Dockery would have been victorious.

An incident of the campaign may afford passing amusement. Dockery, in one of his speeches, had characterized his opponent as the aristocratic candidate, and said that he drove a fine horse, rode in a high sulky, and wore kid gloves. Bragg, in his rejoinder, stated that he was not at all an aristocrat, but only a hard-toiling lawyer, and the son of a plain carpenter, who had exhausted his means in educating his children. "But, fellow-citizens," said he, "General Dockery himself is in fact the aristocratic candidate, for he lives in the only brick house in the whole county of Richmond." At this juncture the General rose right up behind him, and, raising up his hands before the crowd, exclaiming in a loud voice: "Yes, and these old yaller hands made all the bricks that went into it, and toted them up thar, too." The effect was crushing, the crowd yelled, and Bragg was afterwards heard to say he wished he had left the old brick house alone. He defeated Dockery by a majority of two thousand and eighty-five votes, and was inaugurated Governor of North Carolina on the first day of January, 1855.