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Judge William Brockenbrough.

An Address delivered by Prof. Benjamin Blake Minor, Ll. D., on the occasion of the Presentation of a portrait of Judge Brockenbrough to the circuit Court of Essex county, July 17, 1899.

There would be a great deficiency in any gallery of portraits appropriate for the circuit court room of Essex county, if it did not embrace one of such a man as Judge William Brockenbrough. The promoters of the collection have felt the truth of this, and have tried to obtain a portrait of so distinguished a son of old Essex. But, for various reasons, their efforts were fruitless. A: length a few of those who cordially approved of getting together such galleries and of placing a likeness of Judge Brockenbrough where it so justly belonged, determined that this too long deferred honor should be paid him, even in a modified form. They have the pleasure of presenting to the circuit court of Essex an enlarged photograph of him, taken from an oil portrait belonging to the Supreme Court of Appeals of Virginia, which was presented to them by Mrs. John P. McGuire, a daughter of the eminent judge. The present Court of Appeals is entitled to special thanks, not only for permitting the picture to be photographed, but for contributing to the expense of procuring the portrait which is now presented.1

The records of Richmond county show that the Brockenbroughs were there, from England, prior to 1701; and some of them were in Essex also at a Very early date. Dr. John Brockenbrough, of Tappahannock, a surgeon in the Virginia navy during the Revolution, and long a justice of Essex, and Sarah Roane, his wife, were the [351] parents of William, who was born July 10, 1778. His father gave him good scholastic opportunities, which he very creditably improved, and then adopted the profession of law. At the early age of twenty-four (1802-3) he represented Essex in the legislature, and in May, 1803, was appointed a member of the State Council. About this time he gave to the public, under the signature of ‘Aristogiton,’ some essays on constitutional law, ‘which were greatly admired at the time, for the depth and originality of their views.’ His employing such a signature is significant, as showing something of the character of his reading and his sympathy with the patriotism and love of liberty which inspired Harmodious and Aristogiton in their resistance to the tyrants over their beloved Athens.

For about six years, besides his services in the council, he continued successfully the practice of law.

In 1809, the legislature had abolished the old district courts and established circuit superior courts, for which the State was divided into fourteen circuits. So that some new judges had to be elected, which was then done by joint vote of both houses of the legislature, for life, or during good behavior. Then the judges, thus elected, were commissioned by the governor. The election took place February 7, 1809. Messrs. Baker and Daniel nominated William Brockenbrough in the lower house; Messrs. Strother and Pope nominated Hugh Nelson; others were also nominated. On the second ballot Hugh Nelson was elected. There were three more ballotings, and Brockenbrough, advancing from 53 to 85, was elected by a joint vote of 97. The others voted for were Daniel Sheffey, who came next to Brockenbrough, James Semple, James Allen, Wm. W. Hening, and Alex. Stuart, all worthy competitors.

Judge Brockenbrough was assigned to a western circuit (the Thirteenth), which, in 1811, embraced the counties of Tazewell, Russell, Lee, Washington, Wythe, Grayson, and Montgomery. He was afterwards, in 1812, brough to the more important one, embracing the city of Richmond and counties of Henrico, Essex, etc. Besides discharging faithfully and efficiently all his judicial functions, he undertook the publication of a volume entitled ‘Virginia Cases: A collection of Cases decided by the General Court of Virginia, chiefly relating to the penal laws of the Commonwealth, commencing in the year 1798 and ending in 1814. Copied from the Records of said Court, with explanatory notes by Judges Brockenbrough and Holmes. 1815.’

This work shows his disposition towards his profession and its [352] members and the public. In it he was assisted by Judge Hugh Holmes, and it contained only 336 pages. But about ten years later, in 1826, he rendered a larger and greater service to the State by the publication of a second volume, of 680 pages, with an index to both volumes. About 1819, the general court came to a resolution that its decisions should be preserved in a manuscript volume, and should show the grounds on which they were made. The preparation of this volume devolved upon Judge Brockenbrough, as he resided in Richmond, where the records of the court were kept, and out of these facts grew his second printed volume of reports, in 1826. The wonder is how such an important matter was so long neglected. The general court was truly an imposing and august tribunal. It had supreme appellate jurisdiction in criminal cases, and surely the profession and the public were entitled to reports of its decisions. It was composed of all the judges of the circuit courts, but only a quorum need attend its sessions. When the number of circuits was considerably increased, there was an understanding between the judges that one-half should attend one session and the other half another, so as to make sure of a quorum; but any judge could, if he chose, attend a session held by the half to which he did not belong. The number holding a court, therefore, varied very much, both according to the number of circuits in the State and the number of the judges who elected to be present. There were two sessions each year. I remember this court very well, and have seen it in session with fifteen or more members, some of whom would have honored and graced the bench of our Supreme Court, to which they were, like Brockenbrough, sometimes elevated. The senior judge present at any session presided. I once knew nearly, if not quite, all of its members. The accomplished James Lyons honored me with invitations to the elegant dinners which he used to give them. I was in their court-room the afternoon when the eminent Benjamin Watkins Leigh obtained from them the bailing of the unfortunate young Simms, who so unnecessarily shot and killed Prof. John A. G. Davis, chairman of the Faculty of the University of Virginia. I have always thought that the manner of that great advocate towards the court on that occasion was rather imperious. The court occupied that room in the Capitol whose floor gave way with such tragic consequences on the 28th of April, 1870. It was the decisions of the court above referred to which Judge Brockenbrough reported, commencing with the June term, 1815, and ending with the June term, 1826. [353]

It can never do any harm for a lawyer to use his pen in behalf of his profession outside of his own professional duties. Our modern Virginia bar has furnished some striking illustrations of this in Benjamin Watkins Leigh, and his son-in-law, Conway Robinson; Prof. John A. G. Davis, and his brother-in-law, John B. Minor, and the other distinguished Law Professors, John Tayloe Lomax and Henry St. George Tucker, and James M. Mathews, law writer and State Reporter, who is not only a worthy son of Essex, but of the efficient clerk, Wm. B. Matthews, of the court over which Judge Brockenbrough presided. There were still in Virginia district courts of chancery, besides the circuit courts.

The connection between the two volumes of the reports of the decisions of the general court of Virginia led to a rapid flight over nearly eleven years of Judge Brockenbrough's distinguished career. In the meantime occurred about the most important event in that career, which not only gave him a vacation from his judicial labors, but a pleasant visit to that delightful region which has always had such attractions for Virginians ever since the time of Spotswood and his Knights of the Golden Horseshoe. That visit was under the most flattering auspices conceivable.

On the 21st of February, 1818, the State legislature passed an act to take effect March 1st, ‘for appropriating a part of the Literary Fund, and for other purposes.’ The whole statute had reference to schools and education, but among its ‘other purposes’ was the establishing of the University. ‘In order to aid the legislature in ascertaining a permanent site for the University and in organizing it,’ the executive was required to appoint, without delay, twenty-four discreet and intelligent persons, one for each senatorial district, who were to meet the first of August next, at the tavern in Rockfish Gap, on the Blue Ridge. Three-fourths of this ‘Board of Commissioners for the University’ were necessary for the transaction of business. It was their high province to report to the next session of the legislature; 1st, A proper site for the University; 2d, A plan for the buildings thereof; 3d, The branches of learning to be taught therein; 4th, The number and description of professorships; and 5th, Such general provisions as might properly be enacted by the legislature for the better organizing and governing the University.

Governor James P. Preston duly made the appointment of such men as he and his advisers deemed well qualified for such a sacred and solemn trust, and this distinguished Board of Commissioners met on the first day of August, at the place designated, and that [354] humble mountain inn was honored with the presence of one of the grandest and most dignified conclaves that ever met anywhere. Prof. George Tucker says, in his Life of Jefferson, that President James Monroe was one of them. If he be mistaken in this, it is certain that two ex-Presidents of the United States, Thomas Jefferson and James Madison, were in it, with nineteen worthy associates, several of whom were fully the equals of President Monroe. Judge William Brockenbrough was one of these.

Mr. Jefferson was made President of the Board, who appointed a sub-committee of six to consider and report on all the duties assigned them, except that relating to the site of the University. They were engaged in their noble work until August 4th. Three sites were offered: at Lexington, at Staunton, and at Central College, where our renowned University, lately sprung up anew from her ashes, now rests, surrounded by such surpassing beauty.

The Board, having voted that it was not necessary to visit, as was proposed, the competing locations, proceeded on the third day to make the selection. Staunton obtained two votes, Lexington three, and Central College sixteen, one of which was Judge Brockenbrough's. Each site offered material inducements in its own favor, but the Board said to the legislature: ‘Although the act required them to receive any voluntary contributions which might be offered for the benefit of the University, yet they did not consider this as establishing an auction or as pledging the location to the highest bidder.’ Have there not been too many auctions in similar cases?

The Board also adopted an elaborate report, drawn up by Mr. Jefferson, which was, with some amendments, signed by all the twenty-one members present and transmitted to the legislature. Mr. Jefferson's signature was the first; Judge Brockenbrough's was the fourth. Thus our now famous University may be regarded as having been launched by this august assemblage. Some years afterwards, one of Judge Brockenbrough's brothers (Arthur) was its Proctor. A son of the Proctor, Wm. H. Brockenbrough, studied law there under Prof. John A. G. Davis, and settled in Florida, of which he was appointed Territorial Governor, and where he became distinguished as a lawyer and a judge. He also represented Florida in Congress. Thus Virginia has produced three judges Brockenbrough; and Dr. Austin Brockenbrough was a valuable member of the county court of Essex, over which he frequently presided. A daughter of the Proctor married Senator Maxwell, Confederate States Senator from Florida, and their daughter, Lucy, married Rev. Everard [355] Meade, for eleven years beloved rector of St. John's church, Richmond.

It may be gratifying to the people of Essex to know that their section of the State was further ably represented in that memorable conclave at Rockfish Gap by Judge Spencer Roane, and that Judge Hugh Holmes, who assisted Judge William Brockenbrough in the preparation of the first volume of the Virginia Cases, was also a member of it. The Commissioners who signed the report to the legislature were: Th: Jefferson, Creed Taylor, Peter Randolph, Wm. Brockenbrough, Arch'd Rutherford, Arch'd Stuart, James Breckenridge, Henry E. Watkins, James Madison, Armistead T. Mason, Hugh Holmes, Phil. C. Pendleton, Spencer Roane, John M. C. Taylor, J. G. Jackson, Thos. Wilson, Phil. Slaughter, Wm. H. Cabell, Nathl. H. Claiborne, Wm. A. G. Dade, Wm. Jones.

From 1826 to 1834, Judge Brockenbrough kept on in the discharge of his arduous duties as circuit judge. When he was transferred to the Supreme Court of Appeals, in 1834, he was president of the general court and presiding over the Fourth district and the Seventh circuit, composed of Chesterfield, Powhatan, Goochland, Hanover and Henrico counties. There were then in the State ten districts and twenty circuits. He had for some years presided, when the arrangement was different, over the Fourth circuit, composed of Goochland, Henrico, Hanover, King and Queen, Essex, Caroline and Spotsylvania. When he had to give up Essex, it came under the jurisdiction, for one year, of Judge Brown, and then of Judge Semple. It had been in Judge Brown's district when he held his courts in Fredericksburg and Williamsburg. In 1832, the circuit courts were increased to twenty, and Judge Brown was placed over the Fourth circuit, embracing Essex.

When Judge John Williams Green, of the Court of Appeals, died, his place had to be filled. The election for his successor took place February 20, 1834. Mr. Booker, of Amelia, nominated Judge Brockenbrough; Mr. Botts, Robert Stanard, Esq.; and Mr. Watts, Judge Ro. B. Taylor. On the second ballot, Taylor was dropped. Then Judge Brockenbrough got seventy-two votes, and from both houses ninety-three to Stanard's sixty-four, and was promoted to the Supreme Court of Appeals. The cases in which he sat are reported in Leigh's Reports, Vols. V to IX, inclusive, and they contain a good many of his opinions. The Court of Appeals at that time consisted of President Henry St. George Tucker, and Judges Francis T. Brooke, Wm. H. Cabell, Dabney Carr, and Brockenbrough. [356] Hon. John Randolph Tucker, who became so highly distinguished, describes them as he, when a boy, saw them sitting, in 1835, in the Senate chamber of the Capitol. In his reminiscences of the Virginia Bench and Bar, given to the Bar Association of Richmond, he says: ‘And next to him I see the vigorous face, strongly marked with common sense and integrity, of William Brockenbrough, for many years an eminent judge on the circuit and of the general court, and then a judge of the Court of Appeals from 1834 until his death, in 1838.’

The Richmond Enquirer of December 1, 1838, made the following announcement: ‘Died in the city of Richmond, yesterday morning, 10th inst., after a painful and protracted illness, Judge Wm. Brockenbrough, of the Court of Appeals, in the 61st year of his age.’

The funeral took place on December 1, from the residence of his brother, Dr. John Brockenbrough, and the remains were taken for interment to White Plains, in King William county. The day of his decease, the judge of the circuit court of Richmond and Henrico entered upon the records of that court a strong and feeling tribute to his memory, and adjourned. The next day there was a meeting, in the capitol, of the surviving judges of the Court of Appeals, the judge of the circuit court of Richmond and Henrico, the officers of both courts, and members of the bar. On motion of Judge Henry St. George Tucker, Judge Francis T. Brooke was called to the chair, and Sidney S. Baxter, Attorney-General, appointed secretary. Mr. Leigh moved a preamble and resolutions of respect and condolence, which were unanimously adopted. Mr. Leigh's estimate of his character, ability and services was a very high one.

The obituary notice in the Richmond Enquirer says that ‘his whole life was employed in acts of private virtue and public usefulness,’ and that ‘it could not do justice to the memory of one of the best men that ever lived; yet his constancy and firmness in bearing his last afflicting trial ought not to be omitted, for constancy and firmness were striking traits in his character.’ That friendly but discriminating notice also asserts: ‘As a tender husband, an affectionate father, a faithful friend, a true and virtuous citizen, he can never be forgotten. His heart was the seat of every kind, generous and benevolent emotion. No one could know him without being struck with the simplicity of his manners, the kindness and warmth of his feelings, and the strength and purity of his principles. * * The sympathy and sorrow so extensively evinced by “high and low, [357] rich and poor,” bear witness that he was not only respected, but beloved by his family, by his friends, by the bar over which he so long presided, and by the surviving members of the bench of which he was an ornament.’

I have some faint recollection of Judge Brockenbrough. I saw him in Tappahannock when I was a boy. He was a tall, dignified and commanding person, but not particularly handsome. He had something of a cross in his eyes, which gave them a peculiar expression. This may have had something to do with an anecdote which is related of him whilst he was holding a court at Tappahannock. A man, too much under the influence of liquor, annoyed and disturbed the judge, who kept his eyes upon him, hoping thereby to stop him. At length he rebuked him and told him to behave himself. He, too, had been watching the judge, and found that he could not escape his look. So he mounted a chair and exclaimed:

The ancients did old Argus prize,
Because he had a hundred eyes;
But much more praise to him is due
Who looks a hundred ways with two.

The judge was so nonplussed and surprised by the offender's smartness, as well as audacity, that he let him off without fining him. He was the renowned, but unfortunate, Billy Pope, orator, poet and wit.

I have, too, some recollection of the members of the bar of that period. Thomas Gresham and Wm. A. Wright lived in Tappahannock; John Gaines, two Upshaws (Horace and Edwin), and Muscoe Garnett, came from the country; Phil. Branham and Chinn came across the Rappahannock; Richard Baylor from the upper part of the county, and John L. Marye and Carter L. Stevenson from Fredericksburg. Mr. Marye had lived in Tappahannock, where he served in the store of Mr. Robert Weir. Whilst I was at school in Fredericksburg, I became well acquainted with him and Mr. Stevenson, and intimate with their sons. My last Essex county teacher, James M. Garnett, was a member of its bar.

Judge Brockenbrough married Judith White, daughter of John and Judith White. One of their sons, John White Brockenbrough, married Miss Mary C. Bowyer, and became distinguished as judge of the United States Court for the Western district of Virginia; as founder and head of his own law school at Lexington, and afterwards [358] as Professor in the Law School of Washington and Lee University. He followed the example of his father by publishing a volume of Federal Decisions. He was also a member of the Confederate Congress.2

One of their daughters, Mary, married Hon. Willoughby Newton, and was mother of Bishop John Brockenbrough Newton. Another, Judith White, married the Rev. John P. McGuire, so long and so favorably known as an Episcopal clergyman, so highly esteemed for his faitful ministrations, and so beloved by the people of Essex. She was a noble woman, and wrote that admirable book about the Confederate war times, ‘The Diary of a Southern Refugee.’ It was she who presented to our Supreme Court of Appeals that portrait of her beloved and honored father which they have materially aided in having copied for the people of Essex. How appropriate and becoming it is, then, for her to be remembered on this interesting occasion, when you are paying due honor to your military heroes and civic worthies. She has been laid to rest here in venerable Tappahannock. But there are those of the blood of both the Judges Brockenbrough who still survive, and an effectionate appeal is made to them, by the hereditary as well as general interest which they might take in such a behalf, to supplant, at no distant day, our humble offering with the best presentment of their illustrious ancestor which their liberality and painter's art and skill can possibly secure.

1 Those, besides the Judges of the Court of Appeals, who presented the portrait, were Prof. John P. McGuire, stepson of Mrs. Judith (Brockenbrough) McGuire, daughter of the Judge; Miss Mary M. P. Newton, great-granddaughter of the Judge; Austin and Benjamin B. Brockenbrough and Thomas C. Gordon, grandsons of Dr. Austin Brockenbrough and Frances Blake, his wife, and grandnephews of the Judge; B. Blake Minor, Jr., M. D., and Benjamin Blake Minor, Sr., a native of Tappahannock.

The galleries of the portraits of worthies of Essex and some other counties are mainly due to the efforts of Judge T. R. B. Wright.

2 A sketch (with portrait) of Judge John W. Brockenbrough, by Professor Charles A. Graves, will be found in 2 Virginia Law Register, 157.

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