Dictionary of National Biography, 1885-1900/Benjamin, Judah Philip
BENJAMIN, JUDAH PHILIP (1811–1884), barrister, was born in 1811. His parents were Jews of English nationality, who, in 1811, sailed from England to make their home in New Orleans. Finding before arrival in the Gulf of Mexico that the mouths of the Mississippi were blockaded by the British fleet, the ship put into St. Croix, in the West Indies, an island then belonging to Great Britain. Here Benjamin was born and lived until 1815. He was thus by birth a British subject, as was recognised fifty-five years later, when he was called to the English bar, and as is attested by a statement in his own handwriting in the books of Lincoln's Inn. In 1815 his parents settled in Wilmington, North Carolina, and here his boyhood was passed. He was entered at Yale College at the age of fourteen, but quitted it three years later (1828) without taking any degree. In 1832 he went to New Orleans, entered an attorney's office, and was called to the bar on 16 Dec. 1832. For some time he was engaged in studying law, in taking pupils, and in compiling a digest of cases decided in the local court. This, the first of his works, was originally intended for his own private use, but after its utility had been proved among those to whom, with his accustomed generosity, be lent it, he extended its scope, and, alone with his friend Thomas Slidell, published it in 1834 under the title of 'A Digest of Reported Decisions of the Supreme Court of the late Territory of Orleans, and of the Supreme Court of Louisiana.' It was the first collection of the peculiarly complicated law of New Orleans, derived from Roman, Spanish, French, and English sources, and to his early study of this composite body of law Benjamin probably owed that knowledge of different juristic systems which afterwards distinguished him in England. In 1840 he was a member of the firm of Slidell, Benjamin & Conrad, and being in large practice left to Slidell the preparation of the second edition of the digest, called for that year. He did a leading business in planters and cotton merchants' cases. His arguments in the 'Creole' case (1841), on insurance claims arising from an insurrection of slaves on ship-board, excited much admiration, and wre printed. A United States commission having been appointed in 1847 to investigate the chaos of Spanish land titles under which the early speculators in California claimed, Benjamin was retained as counsel, receiving a fee of $25,000. He returned to New Orleans, and in December term 1848 was admitted counsellor of the supreme court. His practice, which from that time lay chiefly in Washington, though large, was by no means as lucrative as that he had in England, for he never made over 10,000/. a year there along with the other members of his firm, while at the English bar his income was for two or three successive years 15,000/.
During this time he took a keen interest in politics. For a time he had been a whig, and when that party broke up he joined the democrats. He was elected a senator for Louisiana to the United States senate in 1852 and again in 1857, having for his colleague John Slidell, afterwards, when a commissioner of the confederate states, seized by the federal warship San Jacinto, on board the British ship Trent, on her passage from Havannah to St. Thomas. In the senate Benjamin made a great impression. Charles Sumner, his constant opponent in politics, considered him to be the most eloquent speaker in the senate, and Sir George Cornewall Lewis, who was present and heard his address on 31 Dec. 1860, justifying the doctrine of state rights, and declaring his adhesion to the cause of secession, said of it, 'It is better than our Benjamin could have done.' His physical qualities suited him well for public speaking. His figure was short, square, and sturdy, his face firm and resolute, his eyes piercing, and his voice clear and silvery.
During his presidency, from 1853-1857, President Franklin Pierce offered Benjamin a judgeship in the Supreme court of the United States. High as such a dignity was, Benjamin preferred to remain at the bar. He was soon, however, to quit his legal practice for the career of a statesman. When South Carolina seceded he cast in his lot with the South. He made several brilliant speeches on constitutional questions, defending 'state rights' on legal grounds. On 4 Feb. 1861 he withdrew from the senate and hastily left Washington. When Jefferson Davis formed his provisional government of the Southern Confederacy in the same month, Benjamin was included in the cabinet as Attorney-general. 'Mr. Benjamin, of Louisiana,' said Davis, 'had a very high reputation as a lawyer, and my acquaintance with him in the senate had impressed me with the lucidity of his intellect, his systematic habit, and capacity for labour' (Rise and Fall of the Confederate Government, i. 242). In August he became acting secretary of war, and continued in this office until the reconstruction of the cabinet in February 1862, when he became secretary of state, an office which he retained until the final overthrow of the confederate forces. Benjamin's exertions in the discharge of his official duties were so great as almost to break down even his iron strength. He had the reputation of being 'the brains of the Confederacy;' and Mr. Davis fell into the habit of sending to him all work that did not obviously belong to the department of some other minister. Beginning work at his office at 8 a.m. he was often occupied until 1 or 2 o'clock next morning. The autocratic character of Davis's administration, and the secrecy often observed in the debates of the House of Representatives, render it doubtful how far Benjamin was responsible for the many arbitrary measures which marked the conduct, of the war by the confederates. Some of the orders he issued were, however, undoubtedly harsh. On 25 Nov. 1801, for example, he ordered that persons found burning bridges in Tennessee should be summarily tried by court-martial and executed, and that no one who had borne arms against the government should be liberated on parole. In spite of the high opinion Davis had of him, some of his measures were sharply opposed in congress, and the severe criticism evoked by his conscription law led to his resignation in August 1862. When, in 1864, he was secretary of state, General Johnston declared that the confederate cause could never succeed so long as he remained minister. He was generally blamed for the part he took in raising a loan from France, and in the construction of some 'rams' in that country, measures attributed to the fact that the daughter of Slidell, then envoy at Paris, had married a French banker (Draper, iii. 290). On the failure of the commissioners sent to Fortress Monroe to treat for peace, Benjamin made a spirited speech at a meeting held at Richmond, urging his hearers to liberate all slaves who would join the ranks of the army, and declaring that his own slaves had asked to be allowed to fight.
On the fall of the Confederacy Benjamin fled from Richmond. His adventures in his escape from Richmond to England were of a romantic kind. Mr. Davis left Richmond after the news of Lee's surrender at Appomattox court-house, accompanied by the members of his cabinet. On leaving Greensborough. North Carolina, on 12 April 1865, Benjamin, to whom corpulence had made riding difficult, insisted tnat an ambulance should be found for him, and in this he rode with his brother-in-law, M. Jules St. Martin, and General Cooper. The roads were in very bad condition, and the conveyance often stuck fast in mud holes, and fell behind the rest of the train. The roads getting worse he rode on a tall horse from Abbeville, in South Carolina, to the other side of the Savannah river, and then, unable to ride further, or scenting danger from so large a party, he, on 4 May 1865, made for the sea coast, intending, says Davis, 'to make his way by Cuba to Mexico, and thence to Texas, to join me, wherever, with such troops as might be assembled, I should be at the anticipated time; and still hopeful that it might be a more successful struggle in the future.' He carried with him an army certificate and free pass to all confederate officers certifying him a French subject, and it was agreed that if he fell in with any federal troops he was to keep up the deception by using French, which language he spoke like a native. 'So long as he remained with us,' says Harrison, 'his cheery good humour and readiness to adapt himself to the requirements of all emergencies made him a most agreeable comrade ' (B. N. Harrison, in Century Magazine November 1888, The Capture of Jeff. Davis ; Interview with Mr. Jefferson Davis in Manchester Guardian, 8 Aug. 1884). Ill luck pursued him. He escaped from the coast of Florida to the Bahamas in a leaky open boat ; 'Sailed thence in a vessel laden with sponges for Nassau, and after being wrecked on the way was picked up by a British man-of-war and carried into St. Thomas. The steamer in which he sailed thence for England caught fire and had to put back. By this time the final collapse of the Confederacy was known, and Benjamin went into exile as a deflated rebel.
He landed in Liverpool almost penniless. With the exception of a small sum of under 3,000/. remitted to England, all his fortune was lost or confiscated. A small portion of his real estate was indeed overlooked in the confiscations, but this was not sold till 1883. On the confiscation of his property his friends bought in his law library. He entered as a student at Lincoln's Inn on 13 Jan. 1866, and at once began the study of English law in the pupil-room of Mr. Charles Pollock, The interest of Lords Justices Gifiard and Turner, Vice-Chancellor Page Wood (afterwards Lord Hatherley) and Sir Fitzroy Kelly procured him a dispensation from the usual three years of studentship, and he was called to the English bar 6 June 1866 at the age of fifty-five. He at once joined the old Northern Circuit. Here he was befriended by Quain and Holker, then leaders of the circuit, but for some time got little practice, His first, and for some time his only clients, were Messrs. Stone, Fletcher, & Hull, of Liverpool, who through their London agents introduced him to London work. Mr. Brett was his first leader, and he was congratulated on his first brief on his first circuit by Lord Justice Lush. misfortune, however, seemed to attend him wherever he went. What little was saved from the wreck of his property in America he lost in Messrs. Overend & Gumey's failure in 1866, and he was compelled to resort to journalism for a livelihood.
In 1868 appeared his work on the contract of sale, the classic upon this subject in Engish law, a book at once more scientific in its treatment and more clear and useful for the purposes of a practitioner than almost any other. Its success was immediate and complete both in England and America, Baron Martin constantly quoted it with approval. A second edition appeared in 1873, and a third, the revision of a portion of which was Benjamin's last task before his health gave way, was brought out in 1883. His practice now grew rapidly. He was already a 'Palatine silk' for the county of Lancaster, and although he met a slight check by the 'refusal of his application for the rank of queen's counsel, when, in January 1872, a large number of juniors received 'silk,' it was soon retrieved. A few months later, in arguing Potter v. Rankin in the House of Lords, he so impressed Lord Hatherley that he shortly afterwards received a patent of precedence. It is said that owing to a scruple connected with his past career he refused to be sworn as a queen's counsel. His patent, however, carried with it by courtesy the privileges of that rank. After a time he ceased to practise at nisi prius, where, though his addresses to juries were very able, he failed in cross-examination and the general conduct and strategy of a case. His forte lay in argument, especially on colonial appeals before the privy council, where his great knowledge of systems of law other than the English gave him an advantage over purely English lawyers. Henceforward he appeared often before the courts sitting in banc or in equity cases, and at length only took briefs below the Privy Council and House of Lords on a special fee of 100 guineas. He had a great faculty for argumentative statement, and would put his case at once fairly and yet so that it seemed to admit of no reply. Naturally he objected to being interrupted by the court. Once in the House of Lords, so he told the story, he heard a noble lord—it is believed to have been Lord Cairns—on some proposition of his ejaculate 'Nonsense!' Benjamin stopped, tied up his brief, bowed, and retired; but the lords sent him a public conciliatory message, and his junior was allowed to finish the argument. His power of stating his own case probably was the cause of the very sanguine character of the opinions he gave on cases laid before him. Among his best known arguments were those in Debenham v. Mellon, United States of America v. Wagner, and Ditto v. Rae, the Franconia case—one of his rare appearances in a criminal court—and the Tichborne appeal to the House of Lords.
Latterly he suffered from diabetes and weakness of the heart. He had built himself a house in the Avenue de Jéna, at Paris, where his wife, who was a Frenchwoman, and daughter lived, and he constantly went there, living only a bachelor life in London, and frequenting the dining and billiard rooms of the Junior Athenæum Club. In 1880 he received an injury through a fall from a tram-car in Paris, and, on going there as usual at Christmas 1882, was forbidden to return to work. So unexpected was this by him that he had to return many briefs.
His retirement caused deep regret. He was entertained at a farewell banquet in the hall of the Inner Temple, 30 June 1883. He said on this occasion that in giving up his work he gave up the best part of his life, and that at the English bar he had never felt that any one looked on him as an intruder.
From this time his health fast failed, and on 8 May 1884 he died. In his habits of life there was a good deal of the southern temperament. He was skilful at games, and used to say of himself that he loved to bask in the sun like a lizard. Though on compulsion he would work into the small hours, he preferred to put off his dinner until late in order to complete his work before it, and he owned that to rise and work early in the morning was impossible to him. To the last he retained his loyalty to the lost cause of the Southern Confederacy, and was always bountiful to those who had suffered for it.
By his will, made 30 April 1883, and proved 30 June 1884 by the executors, his friends Messrs. De Witt and Aspland, of the common law bar, he left of his total personalty of 60,000l. legacies to his sisters in New Orleans, his brother Joseph, of Puerto Cortez in Spanish Honduras, his nephew and five nieces, his wife Nathalie, and his daughter Ninette, wife of Captain Henri de Bousignac of the 117th regiment of the French line, and to avoid questions of domicile he declared his intention to reside till his death in Paris. To commemorate the banquet given to him on his retirement, an engraving was published by W. Rofle, after a portrait by Piercy. He left no memoirs, his habit being to destroy private documents. His works are: 1. 'Digest of Decisions of Supreme Court of New Orleans,' 1834. 2. 'Brief: Lockett v. Merchants' Insurance Co.,' Bruslé, New Orleans, 1841. 3. 'United States v. Castillero,' San Francisco, 1860. 4. 'Address to Free Schools,' New Orleans, 1845. 5. 'Changes in Practical Operation of the Constitution,' San Francisco, 1860. 6. 'Defence of National Democracy' (speech in United States Senate 22 May 1860), Washington, 1860. 7. 'Relations of States' (speech in senate 8 May 1860), Baltimore, 1860. 8. 'Speech on the Kansas Bill: Slavery protected by the Common Law of the World; 11 March 1858,' Washington, 1858. 9. 'Speech on the Kansas Question, Reasons for joining the Democrats; United States Senate 2 May 1856,' Washington, 1856. 10. 'On the acquisition of Cuba,' 1859. 11. 'On the right of Secession' (speech 3 Dec), 1860. 12. 'On Sales,' first edition, London, 1868; second, 1873; third, 1883.