REPORTS OF CASES ARGUED AND ADJUDGED IN THE SUPREME COURT ог THE UNITED STATES. JANUARY TERM, 1839. BY RICHARD PETERS, COUNSELLOR AT LAW, AND REPORTER OF THE BECISIONS, OF THE SUPREME COURT VOL. XIII. Philadelphia: THOMAS, COWPERTHWAIT & CO. No. 253 MARKET STREET. Entered according to the Act of Congress, in the year 1839, by RICHARD PETERS, in the Clerk's Office of the District Court of the United States, of the Eastern District of Pennsylvania. REPRINTED FROM THE ORIGINAL EDITION BY WILLIAM S. HEIN & CO., INC. AND CLARK BOARDMAN CO., LTD. NEW YORK, N. Y. Brown, Bicking & Guilbert, Printers. 1968 REPRINTED IN TAIWAN LL98763/repl THE HON. THOMAS TODD, FORMERLY CHIEF JUSTICE OF THE STATE OF KENTUCKY, AND LATE ONE OF THE ASSOCIATE A BIOGRAPHICAL notice of the late Mr. Justice TODD has been procured for the Reporter, by the kindness of an eminent and much valued judicial friend.. It has long been desired to insert in the Reports of the Decisions of the Supreme Court, a memoir of the life of one known and esteemed for every private virtue, and by every judicial qualification and attainment. This was due to the State of his birth, the State in which he lived, distinguished and honoured; and where he died, deeply lamented by all. Such a memoir is now presented. Part of it was originally inserted in "The Western Monthly Magazine;" and part of it has been written by the judicial associate and friend of Mr. Justice Todd; who shared in his high official labours, and who holds his memory in sacred regard. OBITUARY. THOMAS TODD, youngest son of Richard Todd, was born on the 23d of January, 1765, in the county of King and Queen, on York river, in the state of Virginia. His father was descended from one of the most respectable families in the colony; his ancestors being among the early emigrants from England. His mother was Elizabeth Richards. At the age of eighteen months his father died, leaving a considerable estate; which by the laws of primogeniture of that day descended to the eldest son, William, afterwards high sheriff of Pittsylvania county in that state. This event rendered it necessary that his mother should exert herself to provide for the support and education of her orphan son. She repaired, for this purpose, to Manchester, opposite to Richmond; and by the proceeds, of a boarding house under her care and management, she was enabled to give, at her death in 1776, a handsome patrimony to her son, in the care of his guardian and her executor Dr. McKenzie, of that place. By the aid of his friend, Thomas Todd received a good English education, and advanced considerably in a knowledge of the Latin language, when his prospects were clouded by the unexpected embarrassment of his guardian, which termmated in the loss of the patrimony bequeathed him by his mother. At a tender and unprotected age, he was again thrown upon the. world to depend for his support, education, and character, upon his own efforts. To these contingencies, which seemed at the time to be remediless misfortunes, may be traced that energy and enterprise which afterwards signalized his character. During the latter period of the revolutionary war, he served a tour of duty for six months as a substitute; and often in after life referred to the incident as being the first money he had ever earned. He was afterwards a member of the Manchester troop of cavalry, during the invasion of Virginia by Arnold and Philips. He was shortly afterwards invited by his relation, the late Henry Innes of Kentucky, who was a cousin of his mother, to reside in his family then in Bedford county. By his friendship at that interesting period-a friendship cemented by forty years of affectionate intercourse through life-he obtained a knowledge of surveying and of the duties of a clerk. In 1785, Judge Innes visited Kentucky; and having resolved to remove his family the following year, committed them to the care of his young friend, who arrived at Danville in the spring of 1786. Mr. Todd's pecuniary means were so limited, that whilst residing in the family of Judge Innes at Danville, he was engaged during the day in teaching the daughters of his friend, and at night prosecuting the study of the law by fire-light. This was an interesting period in the history of Kentucky; the people were actively engaged in measures to procure a separation from the parent state; and such was the opinion entertained of his capacity for business, that he was chosen clerk of all the conventions held from that period until 1792, for the purpose of erecting the former into an independent member of the Union. He commenced the practice of law very soon after he came to the state, and made his first effort at Madison old court house. His horse, saddle and bridle, and 37 cer in money, constituted his whole means at the commencement or the court: at the close of the term, he had made enough to meet his current expenses, and returned to Danville with the bonds for two cows and calves, the ordinary fees of that day. The high judicial stations he afterwards occupied with such reputation to himself, and such benefit to the country, are a proud commentary on the spirit of our institutions; and form the noblest incentives to industry and perseverance in the prosecution of a profession. Mr. Todd was appointed clerk of the Federal Court for the District of Kentucky, the duties of which he performed until the separation from Virginia; when he was appointed clerk of the Court of Appeals, under the new Constitution. He held this office until December, 1801, when he was appointed by Governor Garrard fourth Judge of the Court of Appeals; an office created, it is believed, with the special object of adding some younger man to the bench, already filled by judges far advanced in life. In this station he continued until the resignation of Judge Muter, in 1806, when he was appointed, during the administration of Governor Greenup, to be Chief Justice. During the session of Congress of 1806-7, the increase of business and of population in the western states, and the necessity of bring ing into the Supreme Court some individual versed in the peculiar land law of those states, induced Congress to extend the judiciary system, by constituting Kentucky, Tennessee, and Ohio, as the seventh circuit, and adding another member to the Supreme Court. In filling this new office, Mr. Jefferson adopted a mode somewhat different from that pursued in latter times. He requested each delegate from the states composing the circuit to communicate to him a nomination of their first and second choice. Judge Todd was the first or second upon the nomination of every delegate, although to some of them he was personally unknown. His appointment was the first intimation. to him that he had been thought of for the office. In this high and arduoùs station he continued until his death, February 7th, 1826. In 1791, before the separation, he was commissioned by Governor Randolph, of Virginia, to be captain of a company of cavalry in Lincoln county; and in May of that year he was appointed a lieutenant of a troop of cavalry, of which Major Thomas Allen, late clerk of Mercer county, was captain, and the Hon. James Brown, late minister to France was a lieutenant upon the campaign led against the Wea towns, on the Wabash, by General, afterwards Governor Scott. In June, 1792, soon after the organization of the state, he was commissioned by Governor Shelby to be lieutenant-colonel of the militia of Lincoln county; and he was elected without opposition to the office of clerk of the House of Representatives of the General Assembly, for the first fifteen years of the state government. These various offices, civil and military, were indications of the estimation in which his character was held by his cotemporaries; and are the more decided, as it is known that he never solicited any of them. It was a maxim with him so to act that office should seek him-not that he should seek office. In 1788 he married Elizabeth Harris, a niece of William Stewart, from Pennsylvania, an early adventurer to Kentucky, who fell in the battle of the Blue Licks. Five of their offspring, three sons and two daughters, arrived to maturity; only two survived him, the youngest daughter and the second son, Col. C. S. Todd, advantageously known as an officer of the late war, and as the first public agent of the United States in Colombia, South America. In 1811 Mrs. Todd died, and in 1812 Judge Todd married the widow of Major George Washington, a nephew of General Washington, and the youngest sister of Mrs. Madison, wife of the late President. He left one daughter and two sons by this marriage. Mr. Todd possessed in an eminent degree the respect and esteem of his friends. His stability and dignity of character, united with manners peculiarly amiable, left a deep impression on all with whom he had intercourse. His deportment on the bench as well as in the social circle, secured him universal veneration. The benevolence of his character was manifested in the patronage and support he extended to many indigent young friends and near relations, whole families of whom he advanced in life by his friendly influ ence and means. There is one incident of this sort, which, being VOL. XIII.—α |