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Peytons of VA II
HISTORY OF AUGUSTA COUNTY
John Howe Peyton

The second who came to the county was John Howe Peyton, of Montgomery Hall, who settled in Staunton in 1809, on receiving the appointment of Attorney for the Commonwealth. He was the son of John R. Peyton, of Stony Hill, Stafford, who was known and acknowledged in his day as a man of gifted intellect and penetrating good sense. He lived in the seclusion of the country, devoted to rural pursuits and the cultivation of social happiness. He died in 1798, in his 45th year, and now sleeps under the solemn trees of Stony Hill Cemetery side by side with his father. “He was one of many thousand such that die betimes, whose story is a fragment, known to few.” His father, John Peyton, was a man who combined within himself every noble and generous quality, of whom one of his contemporaries said: “It would require no common pencil to depict the undeviating rectitude of his conduct, the unshaken constancy of his friendship, the unwearied activity of his benevolence and invariable warmth of his affections, the untarnished purity of his habits, and the unabated fervor of his piety.” John H. Peyton inherited in a remarkable manner these moral qualities, and was, says Mr. Bezer Blundell, F. S. A.: “A wise and good man, eminent alike for his learning and ability as a jurist, and the purity of his private morals. Trained in the best principles, and early imbued with a veneration for the noblest characters of antiquity, Mr. Jno. H. Peyton did not seek public favor by courting the populace, or his reputation might have been more extended. His virtue was of another complexion. Content with his profession, and with his own consciousness of rectitude, he always sought to be in reality what he appeared, and might have changed his family motto, ‘Patior-Potior,’ for that of the late Lord Somers: ‘Esse quam videri.’ He was noticeable, also, as a fine specimen, doubtless much over the average, of the upper class of our Colonial gentry, at a period when Virginia flourished first under the influence of monarchy, and subsequently as a republic, but a republic whose institutions were tempered, and so to speak, toned down by traditionary influences, which still refined, though they no longer controlled them.” John H. Peyton m first Susan Madison, d of Wm. Strother Madison, a relative of Bishop Madison, by whom he left issue, one son, the late Col. Wm. M. Peyton, of Roanoke, who m Sally, a d of Judge Allen Taylor, by whom he left issue a large family, of whom there are now living: Mrs. Walter Preston, of Abington, whose eldest daughter m Judge Geo. W. Ward; 2. Capt. Wm. M. Peyton, of Kanawha, W. Va., who m Miss Mann, of Gloucester co., Va., and has a large family. 3. Sally, who m T. C. Reed, and left one child, Betty, who m Dr. Wm. Berkeley, of Roanoke, a relative of Lord Botetourt, once Gov. of the colony; 4. Bernadine, who m _____ Lewellyn, Esq., of Albemarle, who has a large family. Col. Wm. M. Peyton died in 1868 deeply regretted by a numerous circle of friends throughout the State and country. He was a man of ability and learning, a ripe scholar, possessing all the essentials of a great writer. His mind was broad, his power of dramatic description remarkable, and in his analysis of character, elaborate and distinct. With his clear, vivid and eloquent style, and love of literature, he would doubtless have risen to the first distinction, as a writer, but for a physical malady (vertigo), causing partial paralysis, which early interfered with his labors, and finally put an end to his life. He served at different times in the General Assembly and in other public positions, and was universally respected for the purity of his life, the activity of his benevolence, and the rectitude of his conduct. John H. Peyton m secondly Ann Montgomery, d of Maj. John Lewis, of the Sweet Springs, by whom he left issue at his death at Montgomery Hall in 1847.

I. John Lewis Peyton, who m Henrietta E. C., d of Col. J. C. Washington, of N. C., by whom he has issue: one son, Lawrence W. H.

II. Yelverton, unm, a resident of Texas.

III. Susan Madison m Col J. B. Baldwin; no issue.

IV. Ann Montgomery, d unm.

V. Mary Preston m Robt. Gray, and has issue: 1. Robert; 2. Peyton; 3. Preston; 4. Susan; 5. Isabella.

VI. Lucy Garnett m Judge Jno. N. Hendren, and has issue: one son, Samuel, and two daughters, Annie M. and Lucy Peyton.

VII. Elizabeth, m Wm. Boys Telfair, of Ohio, and they have issue: 1. William; 2. John; 3. Susan.

VIII. Margaret Lynn m Capt. Geo M. Cochran, of Staunton, and they have issue: 1. Susan; 2. Maria; 3. George; 4. Ann; 5. John; 6. Margaret; 7. Peyton.

IX. Virginia, m Col. Jos. F. Kent, of Wythe, and they have issue: 1. Joseph F.; 2. Susan; 3. Mary.

X. Cornelia m first Dr. Thos Brown, and at his death he left issue: two sons, 1. Baldwin; and 2. Peyton. Mrs. Brown m secondly Wm. H. Greene, of Augusta, but they have no living issue.
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Bio
HON JOHN HOWE PEYTON,
was born in Stafford county, Virginia, April 3d, 1778, of colonial descendants of the ancient English Peytons of Isleham. After completing his preliminary studies at Fredericksburg, he proceeded, in 1794, to the University of New Jersey (Princeton), where he graduated M. A. in 1797 with distinguished honors, taking the lead in all his classes.—returning to Virginia, he studied law under Judge Bushrod Washington, one of the Justices of the Supreme Court of the United States, and was admitted to the Bar in 1799. He immediately obtained a considerable practice, to which he devoted himself with laborious assiduity. In 1806, he was elected the representative for Stafford to the House of Delegates of Virginia, and was regarded from the first as a brilliant debater, and at the end of the session it was conceded that he had no superior in the Commonwealth as a parliamentary orator. Popular in the House, he was more so in society, from his agreeable and instructive conversation and many accomplishments.
During the years he continued a member of the General Assembly, he was a leading spirit, and his labor were crowned with uniform success. He was the author of the celebrated report and resolutions on the subject of a tribunal for settling disputes between the State and Federal judiciary, adopted by the Senate and House, January 26th 1810. This report and resolutions terminated the matter of a proposal from the State of Pennsylvania to amend the Constitution of the United States. In this document it was declared that “a tribunal is already provided by the Constitution of the United States—viz.: the Supreme Court—more eminently qualified, from their habits and duties, from the mode of their selection, and from the tenure of their offices to decide the disputes aforesaid in an enlightened manner than any other tribunal which could be created” * * * and that “the creation of a tribunal such as is proposed by Pennsylvania, so far as we are able to form an idea of it, from the description given in the resolutions of the Legislature of the State, would, in the opinion of the committee, tend rather to invite than prevent collisions between the Federal and State courts.”

In 1808-’9, so widespread was his legal reputation, he was appointed public prosecutor for the Augusta district, and removed to Staunton. He now gave his entire energies to the law, and the distinguishing peculiarities of his intellect made themselves more manifest. It was observed that in all of his investigations his philosophical mind rose above the technicalities of the common law to the consideration of general principles, and he was never more eloquent than when expatiating upon those principles which lie at the foundation of all duty and are equally applicable to all its forms. He was not unmindful of other duties which devolve upon the citizen, and in 1812, when war was declared against Great Britain by the United States, was commissioned a major of volunteers and marched with the Augusta troops to Camp Holly, and served until the end of the war, in 1815, when he resumed the practice, and was elected mayor of the city of Staunton. He was at the same time appointed Deputy United States, or Federal, Attorney for the Western District of Virginia. His success at the Bar, and he was now considered one of the most learned and ablest Virginia lawyers, and the ablest criminal lawyer and public prosecutor Virginia had ever known, did not engross his intellectual activity. He contributed to the reviews papers rich in lessons of truth, wisdom and faith; on literary, social and political subjects, and maintained a correspondence with President Jefferson, Gov. Randolph, Chief Justice Marshall, James Monroe, James Madison, John Tyler, and other eminent men of the time.

In 1824, when he had attained the height of his fame, his friends urged him to accept a position on the General Court of Virginia, but as this would have required his removal to another district, he peremptorily declined.

In 1836, he was elected Senator for the Augusta and Rockbridge district, and in 1840 was reëlected. In the Senate, he occupied a commanding position of influence, and gave a general support to the Whig party. He opposed the annexation of Texas, a revenue tariff, and a war with England on the question of the Oregon boundary line. In the course of an exhaustive speech on the subject, he said: “In regard to Oregon, while our title to the whole of that vast region, extending westward from the Rocky Mountains to the Pacific Ocean and from the 42° of north latitude to 54° 40', was certainly as good as that of any other nation, and probably better, we had ourselves, on repeated occasions, virtually admitted that it was not so complete and unqualified as to preclude all other claims to any portion of it; and that, therefore, a war for Oregon, unless an attempt be made to wrest it forcibly from our possession, would be not only a blunder but a crime. ”

The annexation of Texas he opposed on many grounds: 1. America was already, in 1840, too vast to be national and too rich to be democratic, and any extension of her borders would only increase the evils; 2. He objected to a clause in the Constitution of Texas which refused to the Legislature power to pass laws for the emancipation of slaves. No one had a deeper or more inextinguishable thirst to promote human liberty and happiness. All his ambition for personal, professional or literary success was controlled by this master passion of his nature; 3. He was opposed to the American government assuming the debt of Texas, and 4. Because he thought annexation would lead to useless wars as to boundary, &c. On the question of tariff, he held that direct protection was a legitimate object of legislation and he opposed any tariff which gave merely incidental protection. He derived his doctrine on the question both from the justice and necessity of the case, and from the explicit avowal of those who framed the Constitution, and of those who sat in the first Congress under it, that it was designed and desired to lay duties for the encouragement and protection of domestic manufactures, and he would allow no arguments of expediency to induce him to abandon his ground and to fall in with the friends of a tariff for revenue giving incidental protection. This phraseology he denounced as a device of demagogues who were willing to conceal or abandon their principles in order to secure success.

He expressed the opinion that the independence of the American continent from the control, political and physical, of European nations, was of paramount importance, and had any European government aided Spain in her efforts to subdue her revolted American colonies, seeking to secure their independence and establish republican government, he favored armed intervention by the United States. In other words, he was a supporter of the “Monroe Doctrine.” He opposed nullification and secession, favored a United States bank, believing that the success of the thirteen colonies was due largely to the financial facilities afforded by the “Bank of North America,” at Philadelphia, and that two banks, chartered by the United States Government—the first in 1791 and the second in 1816—enabled America to pay off the Revolutionary debt, and to pass through the war of 1812-1815, and to restore, in 1816, mercantile credit. He advocated popular education, by means of State aid, and a generous system of internal improvements. On all of these questions his speeches were able and eloquent, exhibiting a soundness of view, an extent of research, a manliness of principle, an accuracy of learning, and a vigor of style never surpassed in Virginia.

In 1840, he was appointed by President Harrison a visitor to the United States Military Academy at West Point, and wrote the interesting and instructive report of the Board of Visitors for that year. In 1844, owing to impaired health, arising from a fall from his horse while hunting on Isleham, one of his estates in Alleghany, he resigned his seat in the Senate, the office of Public Prosecutor, and all public employments.

In person, he was tall and handsome, with large piercing blue eyes, and a countenance of majestic benevolence. Very attentive to his attire, he dressed usually in blue broad cloth with gold buttons. He enjoyed among his contemporaries the reputation of being a metaphysician, a logician, and a political economist of the first order; a profound and comprehensive lawyer and general scholar; a man of massive intellect without affectation, and of genius without conceit. He kept up a large establishment at Montgomery Hall, and dispensed a generous hospitality, contributed liberally to all public works, was open as day to melting charity, and left at his death, April 3rd, 1847, the reputation of being a perfect gentleman and one of the best of men.

We follow this outline by interesting sketches, giving more in detail the leading characteristics of Mr. Peyton’s mind and heart. These sketches were written by surviving contemporaries, who, from intimacy in daily life, had the best opportunities to know him as a man, a lawyer, statesman and citizen. The first is by Prof. J. T. L. Preston, V. M. I.:

The late John H. Peyton, Esq., of Staunton, Va., was one of the finest specimens that we have ever known of the complete lawyer. During the prime of life he pursued his profession with a laborious assiduity rarely equalled, and though as age advanced upon him he remitted his efforts, he did not discontinue his practice until a short time before his death, which occurred April 3, 1847, in the 69th year of his age. None of his contemporaries secured a more ample reward in either reputation or pecuniary emolument.

We have spoken of Mr. Peyton as a complete lawyer. Law, as the practical profession, has several departments, and it is not unusual to see a lawyer distinguished in some of them, with a compensating deficiency in others. Some practitioners are successful collectors; some are much esteemed as judicious advisers in matters not strictly legal; some are favorite advocates, with a subdivision into those who are influential with the court, and those who are persuasive before a jury; some are designated good judges of law, or, in other words, safe counsellors, and of some the forte is Common Law Practice, while others are distinguished in chancery lawyers. The organization of the courts in Virginia, and the nature of the business, at least in the interior, requires every lawyer to enter upon the whole of this miscellaneous practice; and it is not to be wondered at that some, even good lawyers, are not equally strong in every part. Mr. Peyton knew every part of his profession thoroughly. He had studied diligently as a student; he had known the expectant struggles of the young practitioner; he had practised under the old system before the reorganization of the judiciary, and afterwards under the new; he had met in contest the strongest men in each department of the profession, and he had made himself a champion in all. We may add that some lawyers who exhibit the highest skill in securing the rights of the clients, are foolishly ignorant of their own; in other words, they let slip the fair, well earned profits of their profession—not so with Mr. Peyton. He knew the value of his professional services; he gave them to the fullest extent to those who applied for them, and then he insisted upon just remuneration. We notice this point, not at random, but to present a feature belonging to the character of the complete lawyer.

The characteristic of Mr. Peyton’s life was efficiency. This efficiency had for its elements native vigor of intellect, great resoluteness of character and courageous self-confidence, ample and thorough acquirements and the quickness, precision and dexterity of action that belong only to those who have been taught by a varied experience to understand thoroughly human nature. In conversation Mr. Peyton was ready, entertaining and instructive. But conversation was not his forte, though he was fond of it. He was not fluent, his manner was sometimes too direct for the highest style of polished social intercourse of a general nature, and besides he had a remarkable way of indulging in a strain of covert satirical banter, when his words would be so much at variance with the expression of his countenance, and particularly with the expression of his mouth, that the hearer was often in an uncomfortable state of uncertainty how to take him. His person was large, and his bearing dignified but not graceful. His manner was unaffected, but not without formality, nor was it perfectly conciliatory. Some styled him aristocratic, while none could deny that his self respect and confident energy gave an imperious cast to his demeanor. We have oftener than once thought applicable to him, in a general way, those lines of Terence:

“Ellum, confidense, catus,
Cum faciem videas, videtur esse quantivis preti,
Tristis severitas inest in voltu, atque in verbis fides.”

His voice was true and clear, and capable of sufficient variety, but without a single musical intonation, and a little sharper than you would expect to hear from a man of his size and form. If it is asked what was the style of his speaking, it may be replied—just what might be expected to belong to such a man as he has been described, that is to say, never was the speaker a more complete reflection of the man than in his case. We cannot believe {typo corrected} that any one who knew him was ever surprised when they heard him speak; what he said was just what they would expect him to say. This is often the case with speakers and writers, but not always. Energy, reality and efficiency were his characteristics as a man, and equally so as a speaker. Distinctness of conception lay at the foundation of his excellence. Some great speakers, some even preëminently great speakers. not unfrequently hurl unforged thunderbolts. They feel the maddening impulse of the god, but give forth their utterance {typo corrected} before the true prophetic fury comes on.

Mr. Peyton’s mind was no sybil’s cave, whence came forth wind driven leaves inscribed with mighty thoughts disposed by chance, but a spacious castle, from whose wide open portal issued men at arms, orderly arrayed. He had hardly opened his case, when the hearer was aware that he had thought over the whole of it, had a given course to pursue, and would close when he came to the end of it. This distinctness of conception comprehended the subject as a whole, and shed its light upon each detail belonging to it. This ensured the most perfect method in all that he said.—Before he began to speak he had determined in his own mind, not only the order of the different parts of his discourse, but also their relative importance in producing the general impression. Hence he was never led away by the tempting character of any peculiar topic, to expatiate upon it unduly; he did not take up matter irrelevant to the case because it might touch himself personally; he never spoke for those behind the bar, nor did he neglect to secure the fruits of victory in order to pursue an adversary to utter discomfiture. He spoke as a lawyer, he spoke for the verdict, and expected to gain it by showing that he was entitled to it. Some speakers hope to accomplish their object by single, or at least, successive impulses—now a clinching argumentative question, now a burst of brilliant declamation, and now a piece of keen wit, or a rough personality. Such speakers forget, or do not know, that a jury may admire, may be diverted, and even moved, without being won. He that gains the verdict must mould, and saw, and lead, and this is to be effected by continued persistent pressure, rather than tours de force. This Mr. Peyton knew well, and observed it with perfect self-command. His hearers came away satisfied with the whole, rather than treasuring up remarkable points and passages. Let it not be supposed, however, that he was a cold speaker, who treated men as mere intellectual machines, to be set in motion by the pulleys, screws and levers of logic. Far from it; he understood human nature well, and knew the motive power of the feelings; but then he knew, too, that the way to excite the most effective sympathy is not to make a loud outcry, but to make a forcible exhibition of real suffering—that the best way to rouse our indignation against fraud, deceit, or oppression, in not to exhort us to hate it, but to show its hatefulness. One of his most distinguished cotemporaries upon the same circuit was celebrated for his powers as a criminal advocate; his manner was obviously upon the pathetic order, and perhaps a trifle too declamatory. We have seen then in the same cause, and have thought that if the eloquence of Gen. Briscoe G. Baldwin flushed the countenance quicker, the earnestness of Mr. Peyton stirred the heart deeper. Of the oratory of a class of speakers by no means rare (not, however, including in this class the distinguished jurist above alluded to,) it has been well said, “declamation roars while passion sleeps;” of speaking justly characterized by this line, Mr. Peyton’s was the precise reverse. With him thought became passionate before the expression became glowing, as the wave swells before it crests itself with foam.

Mr. Peyton’s language was forcible, pure and idiomatic. It served well the vehicle of his thoughts, but contributed nothing to them. There is a real and legitimate advantage belonging to the masterly use of words, of which many great speakers know well how to avail themselves.

Mr. Peyton attempted nothing of the sort. His diction was thoroughly English, with a marked preference for the Anglo-Saxon branch of the language, and his sentences came out in the most natural order with unusual clearness and vigor, but not unfrequently with plainness that bordered upon homliness. His style, however, was always that of speaking as distinguished from mere conversation—a distinction which some of our modern speakers forget, when in order to appear at their ease, they treat with no little disregard not only the rules of rhetoric, but the rules of grammar as well, and use words and phrases which are (to take a word from the vocabulary we are condemning) nothing better than slang. On the contrary there was in Mr. Peyton’s style the fruit of early studies and high-bred association, a classical tinge, extremely pleasant to the scholar, though perhaps not appreciable by those for whom he generally spoke. It must not be supposed, from what has been said of his excellent method, that he resembled in this respect some of our able but greatly tedious lawyers, who take up in regular succession every possible point in the case, however minute, and worry us by officially offering help where none is needed—so far from it he showed his consummate skill as well in what he omitted as in what he handled, and, as a general thing, his speeches were shorter in duration, and yet fuller of matter than those of his opponent. His use of figurative language was easy and natural, and not stinted; but his figures were always introduced as illustrations and not as arguments. It is not unusual to meet with a speaker who is unable to enounce distinctly the general principle he wishes to use, throw out an illustration to enable himself to pick out the principles from it, or at least to give his hearers a chance to do it for themselves; not so with Mr. Peyton. He held up the torch of illustration, not to throw a light forward to guide himself in his own investigations, but to enable those following the more readily to tread the road along with him. He had a very noticeable fondness for recurring to the primary fundamental principles of morals, and doubtless he was restrained, by his practical judiciousness, from indulging this disposition to the full. One of his favorite books was Lord Bacon’s Essays, and under other circumstances he might himself have been a distinguished moral essayist.

As may well be supposed, his general strain was grave. The high idea he entertained of the dignity of his profession, and the earnestness with which he gave himself to it, alike precluded either levity or carelessness. However, he was fully able, quite ready upon occasion, to avail himself of a keen wit, that was all the more effective because it was dry and sarcastic. It occurs to us to mention an instance well known to his circuit, not illustrative of his severity but his pleasantry. In a criminal prosecution, he, as prosecuting attorney, was opposed by two gentlemen of ability, whose pathos had been so great as to draw abundant tears from their own eyes. One of them, a gentleman, who has since filled a distinguished national position (Hon. A. H. H. Stuart, Secretary of Interior of the United States, 1850-3), was noted for the facility with which he could cover over his brilliant eloquence with the liquid varnish of his tears. On this occasion he had been singularly lachrymose, and supported by his colleague in the same way, the sensation produced was very considerable. Mr. Peyton commenced his reply by regretting the disadvantage the commonwealth labored under in being represented by him who was a very poor hand at crying, and certainly was not able to cry against two at a time. The ludicrousness of the expression completely neutralized the pathos of his opponents. He was not averse either to a bit of farce now and then, as is shown by a story told of him. In a remote part of the circuit a lawyer wished to adorn a moving passage of a part of a speech he was just rising to make, with an apposite example, and applied to Mr. Peyton, setting beside of him, to help him to the name of the man in the Bible who would have his pound of flesh. With imperturbable gravity he answered Absalom! The effect of thus confounding Shakespeare and Scripture may be imagined.

We have said that Mr. Peyton was thoroughly furnished in every part of his profession; in one department his qualifications were peculiar and unsurpassed. Without disparagement to others, it may be said, we think, that he was the best commonwealth’s attorney in the State of Virginia. He was a lawyer of the commonwealth, and he treated the commonwealth as a client, and labored for her with the same industry, zeal, and fidelity that he manifested in behalf of any other client. The oft-quoted merciful maxim of the common law, “better that ninety and nine guilty men should escape than one innocent man suffer,” he interpreted as a caution to respect the rights of the innocent, and not as an injunction to clear the guilty, and he labored to reduce the percentage of rogues unwhipt of justice as low as possible. With a clearness and force rarely equaled would he point out the necessity of punishing the guilty in order that the innocent might be safe, thus exhibiting the absolute consistency of strict justice with true mercy. So simply and earnestly would he do this, that he not only bound the consciences of the jury, but also made them feel that they were individually interested in the faithful execution of the laws. Here his clear perception of the moral principles upon which rests the penal code, and his fondness for recurring to general principles, stood him in great stead. It was delightful to hear him expatiate upon this theme, for upon no other was he more truly eloquent.

Mr. Peyton served at different times in both branches of the legislature, but we speak not of him as a politician. Our purpose has been solely to exhibit some of the qualities which made him an eminent member and ornament of the legal profession.

The following interesting sketch is from the pen of :William Frazier, Esq., who was for ten years intimately associated in business intercourse with Mr. Peyton. It was originally published in the “Valley Virginian,” and was thus introduced by the editor:

“Our readers will find Mr. Frazier’s recollections of John Howe Peyton, on our first page, a most interesting article. All will derive pleasure from its perusal, but more especially the few surviving cotemporaries in our midst of that great lawyer. To the young, the article possesses a peculiar value. The distinguished men who have passed from the stage of life, and whose names are as “familiar as household words” to the old, or even middle aged, are to the young only historical personages; they require to be informed of what their fathers remember. Other sketches or recollections of Mr. Peyton are being prepared by a few of his professional brethren who survive, and who remember him when in the vigor of his intellect and the fullness of his fame. These, in all probability, will be included in a volume of memoirs, where it is proposed to preserve in a permanent form the story of his useful and honorable life,

“We have heard that Miss Sarah L. Randolph, author of the life of Stonewall Jackson, contemplates a work embracing the lives of many, if not all, eminent Virginia lawyers. It is a much needed work, and we wish her every success in her praiseworthy undertaking.”

“My personal acquaintance with Mr. Peyton,” says Mr. Frazier, “commenced in October, 1834, when I entered upon the practice of my profession at the Staunton Bar.

He was then, as I learn from his biography, in his fifty-seventh year, and from that circumstance only it might be inferred he had passed his climatric. Certainly nothing in his physical appearance or his forensic display betokened a decay of power, bodily or mental.

Yet having amassed a handsome fortune, he established himself in a beautiful home, and surrounded by a large and interesting family, he felt himself entitled to some relaxation from the arduous demands of his profession—or, at least, from its drudgery. He accordingly relegated to younger members of the bar all minor causes, and to his junior associates the preparation in pays of his chancery causes, in the matter of taking depositions and the like vacation duties.

But for ten years following the date of my introduction to him, there was hardly an important or celebrated cause tried at the Staunton Bar, whether in the State Courts or the United States Court, without the aid and illumination of his splendid intellect; whilst also in Albemarle, Rockbridge and Bath counties he largely participated in the like weighty causes.

In the Supreme Court of Appeals of Virginia his reputation throughout the State enlarge the theatre of his professional service much beyond that of his local circuit.

I wish it were in my power to give a just and discriminating analysis of his processes in the investigation and conduct of a great cause, or even a fair description of his style of forensic argument.

This much may be safely said: that he seized, by apparent intuition, upon the strong and dominating points in a case, not infrequently finding these, or some of them, buried out of sight from a scrutiny less searching than his, beneath a mass of irrelevant or conflicting testimony.

Having thus entrenched himself in one or a few strong positions, his array of the facts was so masterly, his presentation of them so luminous, and his arguments from them so logical, that he rarely failed to carry the tribunal with him safely and irresistibly to his conclusions.

Discarding thus the minor points and less material phases of the cause from his examination and discussion, or dismissing them in a few rapid, searching sentences, his debate was conspicuous for its compactness and logical order. Accordingly, his speeches ordinarily did not exceed one hour, and even in the most complex and voluminous causes they rarely went beyond two hours. I can recall but one occasion in which he consumed nearly three hours.

His style was fluent, but not of that fluency which comes of redundant words and phrases, for I have never listened to one so terse and vigorous. I think it can be said there was hardly a superfluous word—and every sentence bore upon the conclusion aimed at. It was, therefore, never a weariness to hear this great advocate, and the promiscuous audience followed his argument, his sarcasm or his invective, with as much apparent interest as did court and jury.

It has been written of him that he was equally versed and at home in every department of the profession (unless admiralty and maritime law be excepted), but I think it was as a common lawyer that he excelled, and that it was in the common law he found his chief delight. He was perfectly conversant with the principles of the Feudal law and immemorial usages of England as expounded by Littleton, Coke, Bacon, and all the fathers and great interpreters of English jurisprudence. Having come to the Bar while special pleading was yet a legal science and carefully practised system, and before popular and not too well informed legislatures sought to “simplify” the practice of the law by Statutes of Jeofails, he was, without doubt, one of the most practised and expert special pleaders of his time. His naturally astute and logical mind, finding its expression through the channels of a terse and luminous style, caused his pleadings in all their stages to be master-pieces of art.

His fame as a prosecutor of the pleas of the Commonwealth has never been surpassed, if equalled, in Virginia. On this field he achieved triumphs of the most brilliant kind. His pride in his profession, and the great principles of right and justice, underlying it, no less than his inborn contempt for chicanery and fraud, not to speak of crime in its grosser forms, combined to make him a ‘terror to evil-doers.’ Some critics, even among the profession, sometimes were disposed to censure him as too harsh and unrelenting towards the prisoner at the bar. But if every circuit throughout our land possessed at this day so able, fearless and conscientious a prosecutor as did the Augusta and the surrounding circuit at that happier day in our history, perhaps we might find less cause to deplore the depreciation of the public morals, which so painfully invest the present era.

It would be a halting and very defective sketch of this eminent jurist which failed to speak of his striking originality. Negatively speaking, there was little or no common-place and hum-drum in his forensic arguments, his debates in the Senate or his addresses from the hustings to his constituents. In a positive sense his speeches, at least on great occasions and when his powers were thoroughly roused, rarely failed to be marked by some flash of genius. I recall a conversation just after the close of a protracted and laborious June term of the Augusta Circuit Court, in which the late Judge Lucas P. Thompson and Gen. Briscoe G. Baldwin bore the leading parts. The last-named was paying generous tribute to Mr. Peyton’s force and originality. Judge Thompson remarked, in substance, that he had never seen Mr. Peyton go through a cause deeply interesting and moving him in which he did not utter some view or sentiment illuminated by genius, or, at the least, some illustration marked by a bold originality; and he instanced two causes, tried at the late term—one a civil suit and a very heavy will case, in which he made a novel and scorching application of a familiar fable of Æsop. I forbear to give its details, because both the critic and his subject have passed from earth.

In the same cause three signatures were to be identified and proved—that of the testator and also of the two attesting witnesses—all three having died since their attestation. Many witnesses were called to prove the genuineness of the three names. Opposing counsel sought to badger the witnesses by urging them to specify what peculiar marks there were in the handwriting and signatures, whereby they could speak so positively as to their identity and genuineness. This of course, for the most part, they could not do, and in the argument of the cause before the jury the same counsel strove to throw discredit and contempt upon those witnesses (all men of good character) for their failure and inability so to describe the quality and peculiar marks in the calligraphy of the signers as to show they were familiar with their handwriting. In his reply to those sallies of his opponent, Mr. Peyton swept away the whole airy fabric by a single happy illustration:

“Gentlemen,” he said, “you have often been assembled in crowds upon some public or festive occasion. Your hats have been thrown pell-mell in a mass with perhaps a hundred other hats, all having a general resemblance. Suppose you had attempted to describe your hat to a friend or servant, so that he might go and pick it out for you. It has as many points for accurate description as a written signature—its color, height of crown, width of brim, its hand, lining &c. Do you think that friend or servant could by any possibility have picked out your hat for you? And yet when you went yourself, the moment your eye would light upon it you instantly recognized it amongst a hundred or five hundred others hats. Familiarity with it has stamped its picture on your mind, and the moment you see it, the hat fills and fits the picture on your mind as perfectly as the same fat fits your head.”

The jury was evidently won, and gave full credence to the ridiculed witnesses.

The other instance during the same term (cited by Judge Thompson,) occurred in the celebrated prosecution of Naaman Roberts for forgery—in forging the name of Col. Adam Dickinson to a bond for six hundred dollars.

The body of the bond was confessedly the handwriting of the prisoner at the bar. This was admitted. The signature was a tolerably successful attempt at imitating the peculiar handwriting of Adam Dickinson. But no expert could look at the whole paper and fail to see a general resemblance between the body of the instrument and the signature, raising a strong conviction in the mind that both proceeded from the same hand.

The defense strongly insisted upon excluding the body of the instrument from the view of the witness, by covering it with paper or turning it down, and so confining the view to the signature only—upon the familiar doctrine of the law of evidence forbidding a comparison of various handwritings of the party as a ground for an opinion upon the identity or genuineness of the disputed writing. And this point was ably and elaborately argued by the prisoner’s counsel.

The learned prosecutor met it thus:

“Gentlemen, this is one entire instrument, not two or more brought into comparison. Let me ask each of you, when you meet your friend, or when you meet a stranger, in seeking to identify him, what do you look at? Not his nose, though that is the most prominent feature of the human face; not at his mouth, his chin, his cheek; no, you look him in the eye, but at the same time you see his whole face. Now, put a mask on that face, leaving only the eyes visible, as the learned counsel would have you mask the face of this bond, leaving to your view only the fatal signature.
“If that human face, so masked, was the face of your bosom friend, could you for a moment identify him, even though permitted to look in at those windows of his soul? No; he would be as strange to you as this accursed bond has ever been strange to that worthy gentleman, Colonel Adam Dickinson, but a glance at whose face traces the guilty authorship direct to the prisoner at the bar.”

The most striking illustration seemed to thrill the whole audience, as it virtually carried the jury.

Mr. Peyton never was a politician. His taste and predilection lay not in that direction. But no man was better informed of the course of public affairs or had a keener insight into the character or motive of public men. Once, and so far as I knew, once only, did he participate in the debates of a Presidential canvass. It was the memorable one of 1840, and the speech was delivered from the Albemarle hustings. His analysis of the political character of Martin Van Buren, and his delineation of his public career from his desertion of De Witt Clinton down to his obsequious ingratiation with Andrew Jackson, was incisive and masterly, and all the more powerful and impressive because pronounced in a judicial rather than a partisan temper. Competent judges, long familiar with the very able harangues and debates on that rostrum, declared it one of the ablest that had been listened to by any Albemarle audience.

Of his services in the Virginia Senate, I need only say, what every one would naturally expect, they were most valuable from that enlightened conservatism in the prevention of crude and vicious legislation. In the last session of his first term in the Senate, a vigorous effort was made for the passage of a stay-law rather than an increase of taxation.

It hardly needs to be said that he opposed the former and sustained the latter measure with all the vigor of his honest and manly nature. Nor could he ever have looked with any patience upon that brood of enactments since his day—the stay of executions, homestead exemptions, limitations upon sales of property, et id omne genus professedly passed in the interest of the poor and the laboring man, yet in fact more detrimental to that class than to any other, and most damaging to the credit of the state abroad.

Let me say, in conclusion, that the person and figure of Mr. Peyton were fine and commanding. His carriage was always erect, his head well poised on his shoulders, while his ample chest gave token of great vitality. On rising to address court or jury, there was something more than commonly impressive in his personal presence, and whether clad in “Virginia home-spun” or English blue broadcloth with gold buttons (and I have often seen him in both), whenever you saw him button his coat across his breast and slowly raise his spectacles to rest them on the lofty crown, you might confidently expect an intellectual treat of no mean order.

There never was a broader contract presented in the same person than between Howe Peyton the lawyer, the public prosecutor, or even the senatorial candidate amongst the people, and the same individual in his own home. Here, in the midst of hiw family, or surrounded by friends, all the rigor of his manner relaxed, and he was the model of an affectionate husband and father, and the most genial of companions. He was “given to hospitality,” and there was perhaps no mansion in all this favored region where it was more generously and elegantly dispensed, through many years, than at “Montgomery Hall.”