USA > Alabama > Madison County > Huntsville > Early history of Huntsville, Alabama 1804 to 1870 > Part 2
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2 Toulmin's Digest of Alabama Laws, page 85. Edition 1823.
3 Toulmin's Digest of Alabama Laws, pages 93 & 116. Edition 1823.
4 Toulmin's Digest of Alabama Laws, page 98. Edition 1823.
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cen per annum being charged on all deferred payments. Only farm lands were offered at the sales in 1809 ; the laying out and platting of the town site not being completed till 1810.
LAWS EXTENDED OVER MADISON COUNTY
The survival of a people as a nation depends wholly upon its ability to establish and maintain a stable government of laws- as distinguished from a government of men-aided and en- forced by a competent system of jurisprudence. And, in like manner the future stability of a pioneer settlement depends in a large measure upon the regard had for the speedy establish- ment of such a government. Any article dealing with the early history of a settlement, which did not give heed to these prin- ciples would be incomplete and improperly focused.
So it is that we are interested to learn, that, the Legislative Council and House of Representatives of the Mississippi Terri- tory, by section one of an act passed February 27, 1809, pro- vided, that, "The laws relating to the judiciary and militia of this territory be immediately extended to the county of Madi- son." Sections two and six further providing, "There shall be immediately organized in the county of Madison, circuit and county courts, etc." "All the laws of a general nature which now exist or may hereafter be passed by the government of this territory shall extend to and be binding on the inhabitants of the county of Madison."5
To meet the changed condition of things, brought about by the extension of laws to the settlement, on December 22, 1809, the Legislature passed an act, which, let us pause to remember was the first statute having to do with Hunt's Spring settle- ment, directly, providing for a commission to fix a plan for and establish the public buildings of the county, and to this end, to acquire not less than thirty nor more than one hundred acres, and lay out a town site thereon; the town so laid out to be known as Twickenham. This act is as follows:
"Section 1. Be it enacted by the Legislative Council and House of Representatives of the Mississippi Territory, in Gen- eral Assembly convened, that William Dickson, Edward Ward, Louis Winston, Alexander Gilbreath, and Peter Perkins, resid- ing in the county of Madison, be appointed commissioners for the purpose of fixing on the most convenient place for estab- lishing the public buildings in the said county ; and they, or a
5 Statutes of Mississippi Territory, page 177. Edition 1816.
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majority of them, shall have power and authority to procure by purchase or otherwise, not less than thirty or more than one hundred acres of land, at the most convenient and suitable place for the erection of the public buildings aforesaid, which tract of land, when obtained by purchase or otherwise, as aforesaid, shall be laid out into half acre lots by the commissioners afore- said (reserving three acres, upon which the public buildings shall be erected), and be sold at public auction on twelve months credit ; and the money arising therefrom (after paying for the land aforesaid, if the same shall be purchased), shall be applied by said commissioners toward defraying the ex- penses of erecting the public buildings of the said county.
Section 2. And be it further enacted, that the town so laid out shall be called and known by the name of Twickenham; and as soon as the public buildings are fitted for the reception of the courts of the said county, the said commissioners shall report the same to the county and circuit, or superior courts of said county, as the case may be, who shall thereupon adjourn their courts respectively to the court house so erected as afore- said."6
Before the laws were extended over the county, Judge Tay- lor, in his article tells us, there had been no organized law enforcement, but this settlement was not unlike other pioneer settlements of that day and this neighborhood, and had its band of men, known as "Captain Slick's Company ;" the origin of which name, neither Judge Taylor nor the author has been able to trace. A chronicle of the times gives it that this com- pany was very vigorous in the enforcement of its own laws, and at times inflicted punishment calculated to deter the culprit from the commission of a second offense, provided, of course, he lived through the first punishment. Justice was adminis- tered by this company in the following democratic fashion: An undesirable citizen, as thief, and such like, was warned, by an order signed "Captain Slick," to leave town in a given time. Failing to give heed to the order, the unfortunate one was severely thrashed, and in case the order for removal was not immediately complied with, he had both ears cropped and his cheeks branded.
Inasmuch as Judge Taylor does not vouch for the verity of those incidents of law enforcement brought down to us by this legend about Captain Slick, the author feels at liberty to inter-
6 Statutes of Mississippi Territory, page 98. Edition 1816.
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pret the same in the light of certain facts and information to which he has access, and, in a measure, to question its entire authenticity.
The punishment prescribed by the statutes of the territory, for certain offenses, as it seems to us now, was in most cases "cruel and unusual" in character, and in some instances wan- tonly vicious and inhuman. The statute law of those times recognized no distinction between male and female, in the character of punishment awarded, nor in the manner of its infliction. Men and women, were, alike, punished for the most trivial misdemeanors by a fine, and "moreover received thirty- nine lashes on his or her bare back, well laid on, at the public whipping-post," and were in addition thereto made to stand in the public pillory for days. The minimum amount of cor- poral punishment inflicted, in any case, seems to have been "thirty-nine lashes well laid on his or her bare back." Even this did not suffice in some instances for, "if any person do feloniously take or steal any horse, mare or gelding, foal or filly, ass or mule, the person so offending shall restore the property so stolen or pay the value thereof, which shall be adjudged by the jury trying such offender, to the owner or owners thereof, and be fined at the discretion of the jury in a sum not exceeding five hundred dollars, and shall moreover reecive thirty-nine lashes on his or her bare back, well laid on, and be branded on the face, or in the right hand, as the court shall think fit, with the letter "T," and be imprisoned for a term not exceeding twelve months."7 Anyone knowingly pur- chasing such stolen property was similarly punished.8 Just why the law prescribed thirty-nine lashes instead of forty or forty-one and so on, must needs remain unanswered. But, may we not pause to inquire, and with some pertinency-is it possible that experience had demonstrated that "thirty-nine lashes well laid on his or her bare back" was the limit of human endurance?
As we view it from these times, the inequalities in the laws of the territory, as regards punishment for different crimes of similar nature and equal injury to society, and as regards the amount of punishment meted out to whites and negroes, for the same offenses, are their most striking and noteworthy characteristics, reflecting as it would seem to us, a failure on the part of the law makers of that day to comprehend the true
7 and 8 Statutes of Mississippi Territory, page 214. Edition 1816.
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purpose back of punishment for crimes. For is it not the very essence of philosophy, that celerity and not severity of punish- ment deters from crime? The punishment in some instances seems to us greatly disproportionate to the injury done society, in the commission of the offense. One of these instances is found in the statute which prescribes the death penalty for the offense of forgery.9 This statute also strikingly illustrates the inequality in the punishment awarded for its violation and that awarded for the offense of stealing a horse, just quoted from above; both, crimes of kindred nature, equally hurtful to society.
No less remarkable is the dissimilarity in the punishment awarded whites and negroes ; for, upon an examination of the statutes prescribing punishment for perjury, we find that in the case of a white offender he was "fined not exceeding $300.00, and stood in the pillory two hours, and had thirty-nine lashes on the bare back;"10 whereas, "when any negro or mulatto shall be found, upon proof made to any county or corporation of this territory, to have given a false testimony, every such offender shall, without further trial, be ordered by said court to have one ear nailed to the pillory, and there stand for the space of one hour, and then the said ear to be cut off, and thereafter the other ear nailed in like manner and cut off at the expiration of the other hour, and moreover, to receive thirty-nine lashes on his or her bare back, well laid on, at the public whipping-post, or such other punishment as the court shall think proper not extending to life or limb."11 Surely such excessive punishment was ill timed and out of proportion, and the justice of this criticism is enforced by the realization, that, in the courts of the territory negroes had no standing as wit- nesses and their testimony was not evidence unless corrobo- rated by "pregnant circumstances ;" and then, only at the dis- cretion of the judge. Nevertheless, the confession of the ac- cused was good and could be used to convict him.12 Even greater and more pointed is the expression of this dissimilarity, found in that statute which provided that, "When any negro or mulatto whosoever shall be convicted of an offense not
9 Statutes of Mississippi Territory, page 216. Edition 1816.
10 Statutes of Mississippi Territory, page 217. Edition 1816.
11 Statutes of Mississippi Territory, page 223. Edition 1816. We marvel that even this saving limitation is placed upon the right of the judge to inflict corporal punishment upon a negro.
12 Statutes of Mississippi Territory, page 223. Edition 1816.
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punishable with death by this act, judgment of death shall not be given against him or her, upon such conviction, but he or she shall be burnt in the hand by the sheriff, in open court, or suffer such other and corporal punishment as the court shall think fit to inflict, except where he or she once had the benefit of this act, and in those cases, such negro or mulatto shall suffer death."13
In taking a retrospective view of the criminal laws of the territory, one is impressed with the idea that punishment for crime had as its purpose one of two objectives, either to render assurance doubly sure that the culprit would not again offend against society by removing him (through the death route) from all such temptations ; or to so mark him, by burning him with the "brand of justice" and lashing her mandates through his bared back, as to make of him a continuing spectacle of horror. Be it remembered, however, in justice to the law- makers of our own, the Alabama Territory, all these statutes were passed during the year 1807, and were given to the new settlement as rules to live and be governed by at the time of the extension of the territorial laws over the county in 1809.
Viewing in the retrospective these laws, providing punish- ment for crime, bearing in mind the while, that the chief fea- tures of the punishment inflicted by Captain Slick and his band, are likewise the chief features of the punishment prescribed by law, we readily realize how a legend, such as that dealing with Captain Slick, could have found lodgment and credence in the mind of posterity. That there was foundation for thefundamen- tals of such a legend cannot be doubted, but that such punishment as there ascribed to Captain Slick and his band, should have been inflicted and administered by individuals as such, is ex- tremely doubtful. It is entirely possible, even probable, that this legend, firmly embedded in fact, as we have seen, was started upon its course through the annals of time, as a simple historic narrative of the punishment awarded in certain cases, under the old laws of the territory; and as years passed, it became a legend, by constant repetition, and the addition there- to of the name of Captain Slick, to give it the proper setting of the picturesque. No narration of facts or events in so un- worthy as to become a legend till it is attired in some pictures- que garb.
13 Statutes of Mississippi Territory, page 223. Edition 1816.
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The reader's pardon is asked for having digressed at such length from our consideration of courts and court systems for the county, to discuss with such seriousness the seeming trivial circumstances relating to Captain Slick. But as it is the obligation of a narrator of historical events to investigate and give record to every fact and incident, whether large or small, as well as circumstances which might have a tendency, even remotely to illumine the future study of the history of the people he seeks to commemorate, the author of these pages would have been recreant to a duty had he not given serious consideration to Captain Slick and his company.
COURTS
Along with the laws of the territory, which were extended over the county in February, 1809, came the courts of the terri- tory. For a time laws were enforced and justice administered in the county by the Supreme Court of the Mississippi Terri- tory. Later, and on December 22, 1809, this court was abol- ished, and in lieu thereof a county court, known as the "Supe- rior court of law and equity," was established.14 By the close of 1810 all courts had been established and completely organized, with a full force of officers, appointed by the governor of the Mississippi Territory.
Stephen Neal was the first sheriff of the county and held office from his appointment in 1809 to 1822.
If there was any one act of the Congress of the United States, which was more pregnant with interest to Madison county and more potent in establishing the settlement upon a firm basis, than any other, it was the act of March 2, 1810, which authorized the county to elect one representative to the territorial general assembly, and also to vote for one delegate from said territory to the Congress of the United States.15
The matter of establishing and arranging courts, seems to have been a perplexing problem even in those days. By this same act, just referred to, authority was vested in the terri- torial governor to appoint an additional judge "who shall reside in Madison county." The territorial Legislature was also invested with power to establish a superior court in each county of the territory; and it was further provided that all final
14 Statutes of Mississippi Territory, page 178. Edition 1816.
15 Statutes of Mississippi Territory, page 48. Edition 1816.
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judgments and decrees rendered in the superior court of Madi- son were appealable to the superior court of Adams county.16
The terms of the superior court of Madison and the time for holding the same were fixed by an act of the territorial Legislature, of December 18, 1811, on the second Monday in May and November, to be held for twelve judicial days, at each term. By this same act it was provided that an intermediate court, for county purposes, be held for the county of Madison in May and November, for two days, at each term, which had exclusive jurisdiction of causes in which not more than $200 was involved.17
Later, it was determined that the business of Madison county required more time, so accordingly by act of December 1, 1814, the terms of court were increased to eighteen judicial days, each.18
We have noted that the superior court of Adams county served as a court of appeals for the review of judgments and decrees of the Madison superior court. By an act of the Legislature of January 20th, 1814, there was created, the su- preme court of errors and appeals, with judges to be appointed by the territorial governor, with terms to be held twice each year on the second Monday in June and December, which was in lieu of and had jurisdiction of all appeals to the exclusion of the superior court of Adams county.19 This same act conferred jurisdiction upon the superior court of Madison, of all actions and suits in which the amount involved exceeded $50.00.
Judge Taylor tells us, in his article, that, the first court ever held in the county was known as the inferior court, which was convened the first Monday in January, 1810. Five justices sat upon the bench, with one of their number as chief justice of the quorum. Leroy Pope was chief justice and E. Ward, William Dickson, J. Withers, and Thomas Bibb were associate justices of the court, while William Winston was clerk. In 1820 this court was abolished and in its stead there was created a court with jurisdiction co-extensive with our present probate court, and in addition thereto, jurisdiction over civil
16 It is the author's belief that Adam's county was in that portion of the territory which is now Mississippi; and had as its western boundary the Mississippi river, and extended approximately across the state. As to this, however, he cannot be certain, owing to a lack of data upon the subject.
17 Statutes of Mississippi Territory, page 189. Edition 1816.
18 Statutes of Mississippi Territory, page 205. Edition 1816.
19 Statutes of Mississippi Territory, page 200. Edition 1816.
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causes. Of this court Sam Chapman, brother of Reuben Chap- man, afterwards governor of the State, was the first judge, serving as such from 1820 to 1834. Edward Chambers Betts, grandfather of the author, was the last judge of this court, serving as such from 1849 to 1850, when it was abolished, and the present probate court created in lieu thereof with J. M. Otey as its first judge.
The superior court of the county, the establishment of which we have noted, was opened on October 1, 1810, with Obediah Jones as judge, and Peter Perkins as clerk. A chronicle of the times has it that this was an occasion of serious moment in the county's history. That it was so regarded by the court officials can be little doubted, when we learn that great pomp and ceremony attended this auspicious event. At this session of the court the hereafter named gentlemen presented their cre- dentials as attorneys at law, had their names enrolled, and were accordingly admitted to the practice as members of the Twickenham Bar: J. W. Walker, who served as attorney- general at the first term of the court; J. C. Hamilton, Geo. Cotter, James Rogers, Gabriel Moore, Marmaduke Williams, and Lewis Winston, afterwards attorney general of the terri- tory.
The first business session of this court was held on the first Monday in November, 1810.
PURCHASERS AT LAND SALES OF 1809
Great numbers of prospective purchasers poured into the settlement during the year 1809, eager to bid on the lands of- fered for sale by the Government. Many of these potential settlers were wealthy and owned large bodies of slaves.
Twickenham was reached by two principal lines of travel, both leading North for about ten miles to where they merged into what is now the New Market road, which proceeded thence northward to Nashville. To the north of New Market this route was tapped by a road leading eastward through Ten- nessee and crossing the Tennessee river about the northwest corner of the state of Georgia, proceeding thence into Georgia. It is along this latter route that the greater number of these potential settlers came in 1809. They followed the New Market road till Flint river, in this county, was reached, here they divided. Some of them coming to the settlement by the Deposit road to what is now Brownsboro, and thence into
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Early History of Huntsville, Ala.
Twickenham; others came along the road leading north from the settlement to Flint river, along which now passes the Three Forks of Flint road.
As many of the men, whose names are so indelibly stamped upon the pages of our State's, and in some instances our nation's, history, became purchasers at these sales, afterwards settling in the county, it will not be amiss to here record some of those names.
Large tracts of land along the road leading north from Twickenham to Flint river were bid in by William Moore, Na- than Strong, James Roper, Matthew Weaver, and John R. B. Eldridge. Closer into the settlement, but along that part of this same road, which is now known as Meridian Pike, purchases of land were made by R. Thompson, Thomas Bibb, J. Manning, B. S. Pope, J. Lowery, J. W. Watkins, J. Connally, P. Cox, J. W. Walker, Hugh McVay, and C. Cabaniss. Around Twicken- ham, and in different directions, large tracts of land were bought by Dr. David Moore, Archie McDonnell, and J. & S. Acklen, while out toward what is now known as Russell's Hill, just west of the settlement, purchases were made by E. Dil- worth, E. Ward, and J. Allison.
In due season, houses were built-in most instances of logs- upon these tracts. Great droves of slaves belonging to these settlers having been brought in, clearing of land commenced soon thereafter. Now, the business of transforming this fron- tier settlement into a permanent community and the famed metropolis of the Alabama Territory it was soon to be, was begun in earnest, and progressed with a gratifying and unprec- edented rapidity.
An examination of history's pages reveals that not only did Twickenham and Madison county contribute their share toward the political and economic development of the Mississippi Ter- ritory, but that the illustrious names, of those statesmen, which form the very pillars of history's ark and thatch its roof, are intimate to their history. For among those who purchased lands and settled in Twickenham during the years 1809 and 1810 were: Thomas Bibb, the first president of the Alabama Senate, who succeeded to the office of governor of the State upon the death of his brother, William Bibb, its first governor ; Gabriel Moore, and Clement Comer Clay, both of whom be- came governors of the State, and the latter of whom served Alabama as United States senator, shedding lustre upon her
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people, and by his marked abilities creating for Alabama, the new State, an enviable place in the counsels of the nation; Leroy Pope is affectionately referred to in the chronicle of the times as the "Father of Huntsville," he was called upon to serve his people in many and varied capacities, acting, as we have seen, as chief justice of the first court of the county ; J. W. Walker was the first lawyer admitted to practice in the courts of this county, serving as attorney-general at the first session of the court, and later became one of the first United States senators from Alabama. At the beginning of his term Alabama was represented in the nation's Congress by two senators and one representative. In addition to these, there were many more whose names adorn the pages of Madison's history, such as : Peyton Cox, J. Manning, and Robert Thomp- son. All these parties came to the new settlement from Peters- burg, Elbert county, Georgia, and it would seem, in coming, stripped that town of its vital forces, rendering it stagnant, for it has ceased to exist for a number of years.
ESTABLISHMENT AND FOUNDING OF TWICKENHAM
As we have observed, on the 22nd day of December, 1809, the Territorial Legislature created a commission to lay out the town, and when so laid out it was to be "called and known by the name of Twickenham." At this time the settlement had between two hundred and three hundred inhabitants. Just why the name of Twickenham was chosen is not a matter of con- jecture. The moving spirit and the dominant influence of nearly all positive action in the life of the settlement was Leroy Pope, a wealthy man, public spirited and liberal. He was a great admirer of the poet Alexander Pope, though no relation, so far as the author has been able to ascertain. The poet's English home was named Twickenham. Through the influence of Leroy Pope this was the name given the settlement upon its establishment.
Pursuant to the legislative enactment the commission early in 1810, laid out the town, including in its limits, about sixty acres. The town site, including the "Big Spring," had been previously purchased, in 1808, by Martin Beaty from the "Ten- nessee Land Company," for the sum of $1.00 per acre. One thousand acres was included in the purchase, to which he after- wards released his claim, upon effecting a settlement with the United States Government. Before the town site was laid.
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