USA > North Carolina > Historical sketches of North Carolina : from 1584 to 1851, Vol. I > Part 10
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The next year taxes were imposed by both administrations, but the people most innocently pretended that they did not know to whom to pay ; so paid to neither. Thus deprived of one of the chief means of government, the affairs of Frankland was approach- ing to its end. . Tipton and Sevier were both residents of Wash- ington County. . Sevier was a brave soldier ; he had proved his valor on King's Mountain ; but he was seduced by the allurements of office and ambition-
"The sin whereby the angels fell."
He applied to Dr. Franklin for advice and support ; to the Governor (Matthews) of Georgia, and to Virginia ; from none did he receive any aid or advantage. He realized, with fearful truth, the fable of Gay-
" The child who many fathers share, : Hath rarely known a father's care ; And he who on many doth depend, Will rarely ever find a friend."
In Sept. 1787, the Legislature of Frankland met for the last time at Greenville. John Menifee was Speaker of the Senate, and Charles Robinson, Speaker of the House. They authorized the election of two. representatives to attend the Legislature of North Carolina ; and one of the judges of Frankland was elected (Dayid Campbell), and her treasurer (Landon Carter), the other.
The people also, in this year, elected members. Davidson, Greene, Washington, Hawkins, and Sullivan, sent members to the General Assembly of North Carolina, which met at Tarboro' on the 18th of November of that year. Thus acknowledging the authority of North Carolina.
Had this been done earlier, how much labor would have been
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saved, trouble, strife, and quarrels. Truly is the Divine injunction worthy of all acceptance :* "Agree with thine adversary quickly, while thou art in the way with him ; lest at any time the adversary deliver thee to the judge, and the judge deliver thee to the officer, and thou be cast into prison."
Had the party of Sevier accepted the liberal, fair, and just pro- position of Governor Caswell, in 1785, as stated previously, how much pain and trouble would have been spared to this country, and how much personal suffering to himself. With all his virtues, honesty, and former public service, he was, at this time, a doomed man.
On the return of the members from the Assembly at Tarboro', in February, 1788, it was soon understood that Frankland was no more.
An execution against the estate of General Sevier had been placed in the hands of the sheriff, and levied on his negroes on Nolichucky River. These were removed, for safe keeping, to the house of Colonel Tipton.
Brave in his character, obstinate and headstrong, Sevier raised one hundred and fifty men, and marched to Tipton's House, on Watauga River, eight miles east of Jonesboro'. Tipton had information of Sevier's design only time enough to obtain the aid of some fifteen friends, who were with him on Sevier's arrival.
Sevier, with his troops and a small cannon, demanded the uncon- ditional surrender of Tipton and all in the house. Tipton had bar- ricaded the house, and in reply to the unceremonious demand, sent him word "to fire and be d-d." He then sent a written sum- mons to surrender ; this letter Tipton forwarded forthwith to the Colonel of the County for aid ; this aid, through Robert and Thomas Love, was promptly afforded. The house was watched closely. A man by the name of Webb was killed, a woman wounded in the shoulder, and a Mr. Vann. While, from extreme cold, Sevier's guards were at the fire, a large reinforcement from Sullivan County, under Maxwell and Pemberton, passed the guard and joined the beleaguered household. The moment the junction was formed, they sallied out with shouts ; a tremor seized the troops of Sevier, who fled in all directions at the first fire of Tipton. Pugh, the High Sheriff of Washington, was mortally wounded and many taken prisoners. Sevier himself escaped ; his two sons, James and John, were prisoners.
The blood of Tipton was roused to such a heat that he was deter- mined forthwith to hang these young men. Nothing but the ' earnest supplications of his own men prevented the execution of this rash design. Had he at this time taken Sevier, no power of earth could have saved him.
Judge Spencer, one of the judges of the State of North Carolina, holding court at Jonesborough, issued a bench warrant against Governor Sevier for high treason (1788).
* 'Haywood's History of Tennessee, 177.
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HISTORY OF NORTH CAROLINA.
In October, Colonels Tipton, Love, and others apprehended Se- vier at the house of Mrs. Brown, near Jonesborough. Tipton was armed, and swore that he would kill Sevier; and Sevier really thought he would do so. Tipton was, however, with much exertion, . pacified. Handcuffs were placed upon Governor Sevier, and he was carried to Jonesborough. From thence he was carried, under strong guard, to Morganton, in Burke County, North Carolina, and " delivered to William Morrison, the sheriff of Burke.
As he passed through Burke, Gen. Charles McDowell and Gen. Jos. McDowell (the latter who was with him in the battle at King's Mountain, and fought by his side) became his securities for a few days, until he could see some friends. He returned punctually, and upon his own responsibility the sheriff allowed him time to procure bail. His two sons, with friends, came to Morganton pri- vately, and under their escort he escaped.
Thus the career of the first and last Governor of Frankland ter- minated. But with all his defects, John Sevier had many virtues. He was fearless to a fault; kind to his friends, and hospitable to all. This gave him great weight among the people, and although in the General Assembly of North Carolina '(Fayetteville), in 1788, gen- eral oblivion and pardon were extended to all concerned in the late revolt, John Sevier was specially excepted in the act, and debarred from all offices of trust, honor, or profit.
The next year (1789), so great a favorite with the people was Sevier, that he was elected from Greene, to represent that county in the Senate of the General Assembly of North Carolina. He appeared at Fayetteville at the time appointed for the meeting of the Legislature (2d Monday of November).
Such was the sense of his worth, or his contrition for the past, that the Legislature passed early an act repealing the section dis- qualifying him from any office; and on his taking the oath of alle- giance, he was allowed his seat. Thus were the difficulties settled.
North Carolina had ever been willing to allow her daughter to set up for herself when of lawful age and under proper restrictions. Cherishing this feeling, she was never unjust towards her fair and lovely offspring: -
On the 25th of February, 1790, as authorized by a previous act of the General Assembly, passed in the year 1789, Samuel John- ston and Benjamin Hawkins, Senators in Congress, executed a deed to the United States in the words of the cession act; and on the 2d of April of that year, Congress accepted the deed, and TEN- NESSEE was born.
By proclamation, dated September 1, 1790, Governor Martin announced that the Secretary of State for the United States, had transmitted to him a copy of the act of Congress, accepting the cession of North Carolina for this district of the western territory, and the inhabitants of said district "would take due notice thereof, and govern themselves accordingly."
The parting of the mother and daughter, like that of all indulged 7
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and unruly daughters from a venerable mother, was joyful to both parties. Both were happier in the separation, and may both be equally prosperous !
CHAPTER IV.
Governors of North Carolina, from RICHARD CASWELL, 1776, to DAVID S. REID, 1851.
1779. ABNER NASH, of the County of Craven, succeeded Rich- ard Caswell as Governor of North Carolina, in December, '1779.
Under the head of the county of each, the reader will find some sketch of the life, character and services of each, as far. as the author has been enabled to procure information.
1781. THOMAS BURKE, of Orange County, was elected in July, 1781. 6
1782.
ALEXANDER MARTIN, of Guilford County.
1784.
RICHARD CASWELL, of Lenoir, again.
1787. SAMUEL JOHNSTON, of Chowan County.
1789. ALEXANDER MARTIN, of Guilford, again.
1792. 1795.
SAMUEL ASHE, of New Hanover.
1798.
WILLIAM R. DAVIE, of Halifax.
1799. BENJAMIN WILLIAMS, of Moore.
1802.
JAMES TURNER, of Warren.
1805.
NATHANIEL ALEXANDER, of Mecklenburg.
1807.
BENJAMIN. WILLIAMS, of Moore, again.
1808.
DAVID STONE, of Bertie.
1810. 1811.
BENJAMIN SMITH, of Brunswick.
1814.
WILLIAM MILLER, of Warren.
1817.
JOHN BRANCH, of Halifax.
1820.
JESSE FRANKLIN, of Surry.
1824.
JAMES IREDELL, of Chowan.
1828.
JOHN OWEN, of Bladen.
1830.
MONTFORT STOKES, of Wilkes.
1832. DAVID L. SWAIN, of Buncombe.
1835.
RICHARD DOBBS SPAIGHT, of Craven.
These were elected by the General Assembly. The convention of 1835, having amended the constitution, the election of the Gover- nor was transferred to the people, and, in. August, 1836, the first election was held, and EDWARD B. DUDLEY, of New Hanover, wa's elected. He was inaugurated on the 1st of January, 1837.
1821.
GABRIEL HOLMES, of Sampson.
HUTCHINGS G. BURTON, of Halifax.
1827.
WILLIAM HAWKINS, of Warren.
RICHARD DOBBS SPAIGHT, of Craven.
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1841. JOHN M. MOREHEAD, of Guilford.
1845. WM. A. GRAHAM, of Orange.
1849. CHARLES MANLY, of Wake ..
1851. . DAVID S. REID, of Rockingham.
CHAPTER V.
Judiciary of North Carolina-Its history-Lives and characters of Martin Howard, Chief Justice; Maurice Moore; and Richard Henderson, Associate Judges, under the royal government-The Judges of North Carolina, from 1776 to 1851-The Attorney-Generals, the Secretaries of State, the Trea- surers of State, and the Comptrollers, from 1776 to 1851-These statistics are relieved by a specimen of legal wit worthy of preservation.
No less important than military affairs is the judicial history of any country. Valor may vindicate rights and redress wrongs ; but unless these are guarded by faithful and competent civil officers, the welfare of the community suffers.
A history of the bench and bar of North Carolina, the charac- ter and services of the profession, would be most interesting. Of itself, it would fill volumes. No class of our community, during our revolutionary struggles, entered into the dubious and danger- ous contest more fearlessly than did the lawyers of that day. The declaration of our independence was written by a lawyer ; our ap- peals to the justice of the English nation were written by members of this profession ; a majority of the first Congress were the same ; twenty one of the fifty-six signers to the Declaration of Independ- ence were lawyers; the whole committee to whom the subject of independence was referred were lawyers, except one. 'In our own State, the early and angry discussions between the Colonial Judges and Governor Tryon, the exertions of Hooper and others in coun- cil, and Caswell, Davie, and others, in the field, prove the devo- tion, sincerity, and patriotism of the profession of the law.
The colonial history of the judiciary under the proprietary and regal governors of North Carolina did not allow the profession that weight in the community that its importance merited. With des- potic governors, and among a vagarious and restless population, rules of action declaring rights and prohibiting wrongs, were but little regarded.
By the fundamental Constitutions of Carolina (1669), drawn up by John Locke, it was declared "to be a base and vile thing to plead for money or reward" in any of the courts of law.
One of the complaints of the Assembly against Gov. Dobbs, in 1760, was that he had "for the fee of four pistoles, granted licenses to plead law, to ignorant persons."
Williamson informs us that to 1708, there had been but two exe-
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cutions for capital offences in the State, and not until 1722 were there any court-houses in North Carolina.
Such was the state of anarchy just before our Revolution (1773), that Mr. Quincy, of Boston, who was traveling through the State, says "that there were no courts in being. No one can recover a debt except before a magistrate."* -
This was owing to the conflict of opinion between Martin and the Assembly, as regards the power of the Governor to appoint judges, and the rights of the people under the attachment laws.
Our previous pages have shown that under the proprietary go- vernment, in 1716, the judicial power was vested in
I. Precinct Courts ;
II. General Courts ;
III. Courts of Chancery.
The first was held in each precinct by four justices, appointed and commissioned by the Governor ; the second, by the Chief Justice and seven assistants ; and the third, by the Governor and the deputies of the Lords Proprietors ..
In 1746, under the royal government, the judiciary was remodeled, and "the General Court" was held twice a year by the Chief Jus- tice and three associates, at Newbern.
: The Chief Justice was appointed and commissioned by the Crown, and the Associate Judges by the Governor and Council.
In 1767, the Province was divided into six Judicial Districts : Wilmington, Newbern, Edenton, Halifax, Hillsboro, and Salisbury ; Courts were held twice a year in each place by the Chief Justice and two Associate Justices.
County Courts were established in each and every county at the same time.
The first edition of the laws was by Swann, published in 1752, called "yellow jacket;" the second, by Davis, in 1765; the third, by same, in 1773; the fourth, by Judge Iredell, in 1790; the fifth, by Martin, in 1803; the sixth, by Potter, Taylor and Yancy, in 1821 ; the seventh, by Battle, Iredell and Nash, in 1836; the eighth, now being done under care of Hon. R. M. Saunders, Hon. Asa Biggs and B. F. Moore, Esq. (late Attorney-General of the State), 1851.
MARTIN HOWARD was appointed by the crown to succeed George Berry, whose melancholy fate we have recorded during the admin- istration of Governor Tryon, as Chief Justice, and Maurice Moore and Richard Henderson, Associate Justices, under the act of 1767; these held their offices until 1773, when the law expired. From the altercations between the Governor and Assembly, and the troubled times in political matters, the courts were closed.
: " Inter arma leges silent."t
The character of MARTIN HOWARD, as it appears on the record, is that of a tyrant. Forced by popular indignation to fly from Rhode
* Memoirs of Josiah Quincy, Jr., p. 123.
+ Among arms, laws are silent.
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HISTORY OF NORTH CAROLINA.
Island, where he was one of the royal judges, he sought quiet in the retirement of North Carolina.
Here he was appointed one of Governor Tryon's counsellors, and on the death of Judge Berry, Chief Justice of the colony, by the recommendation of Tryon. He was the willing tool to " The Bloody Wolf of Carolina." His oppressive conduct in the trial of the Regulators at Hillsboro', and ferocious temper, associate him in history with Jeffreys, and other judicial despots.
From Sabine's "American Loyalists,"* I learn that, in 1774, " Howard's judicial functions ceased, in consequence of the tumults of the times: The suspension from office of one who was notoriously destitute of not only the virtues of humanity, but of all sympathy with the community in which he lived, was a matter of much joy. In 1775 he was present in council, and expressed the highest detest- ation of unlawful meetings, and advised Governor Martin to forbid the assembling of the convention in Newbern."
In July 1777 he left North Carolina for the north .. He died in exile during the Revolution. -
MAURICE MOORE'S character presented' a favorable contrast. Deeply imbued with the true spirit of liberty, although his duty might cause him to sit in judgment upon the Regulators, yet his feelings deeply sympathized with their oppressed condition. The following letter (extracted from Herman Husband's book) will show that he was strongly suspected of countenancing the condition of the Regulators. Of one thing we are assured, that the Judge and the Governor entertained the most bitter, animosity towards each other.
SPRINGFIELD, August 12th, 1768.
To Colonel Edmund Fanning :
DEAR SIR-As much as I hate writing, I am determined to scratch this side down with a bad pen and worse ink, on the subject of the insurrection in your county, which I am sorry to hear has grown formidable; and much more so, that it is ascribed to me as its author and encourager.
I have been caluminated before, but never so capitally as in this case.
I assure you it gives me much concern, in spite of the consola- tion which a clear conscience affords me. I never knew, or even, as I know of, ever saw any man or men engaged in this unlucky affair, except Hunter and Howell, and I made you fully acquainted with the advice I gave them ; but I shall say no more on this head. I have blackened my page, and must conclude my letter with assur- ing you I esteem you, and am your most obedient, &c .;
M. MOORE.
Judge Moore addressed to Governor Tryon a letter of great length, signed Atticus, f which, while it shows the true character of
* Lorenzo Sabine's American Loyalists, 369. Boston, Little & Brown, 1847. + See Jones's Defence of North Carolina, p. 57.
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HISTORY OF NORTH CAROLINA.
Tryon, in its real and odious colors, proves that he wielded the pen of a Junius in invective and severe sarcasm.
Judge Moore was a true friend to his country. He was, after Independence was declared, in the General Assembly, and asso- ciated on important committees. He was a member of the Pro- vincial Congress which met at Hillsboro', in August 1775. He, with William Hooper, Richard Caswell, Robert Howe, and Joseph Hewes, were a committee to address the citizens of the British. empire on the wrongs of America and the oppressions of England.
The importance of the subject, the illustrious names associated with Judge Moore, proves- the high appreciation of his talents, patriotism, and virtues by his associates. He was the father of the late Judge, Alfred Moore, who was distinguished as, a soldier and a statesman, and for whose biography the reader is referred to Brunswick County. He died in 1777; at the same time his brother, Colonel James Moore, died, on his way to join the army of the north, under General Washington. (See Brunswick County, vol. xi. chap. viii.)
RICHARD HENDERSON, the remaining Colonial Judge, was the son of Samuel Henderson. He was born in Hanover County, Vir- ginia, on the 20th of April, 1735. His ancestors by his father's side were from Scotland, and his mother's side (Williams) from Wales.
His father came to Granville County about 1745; and subse- quently was appointed the sheriff of that county. The duties in which his son was employed afforded that practical knowledge of men and things, for which Judge Henderson was distinguished in after life. His early education was as good as the state of the country afforded.
He read law with his cousin, the late Judge Williams, for twelve months. When he applied for license to the Chief Justice of the colony, whose duty it was to examine applicants, and on his cer- tificate a license to practice was issued by the Governor, he was asked how long he had read, and what books? When the limited time was stated, and the number of books that he had read, the Judge remarked that it was useless to go into any examination, as no living man could have read and digested the works he had named, in so short a time. With great promptness and firmness, young Henderson replied, that it was his privilege to apply for a license, and the Judge's duty to examine him; and, if he was not qualified, to reject him; if qualified, to grant the certificate. The Judge, struck with his sensible and spirited reply, proceeded to a most scorching examination. So well did the young man sustain himself, that the certificate was granted, with encomiums upon his industry, acquirements, and talents.
He soon rose to the highest ranks of his profession; and honors and wealth followed.
A vacancy occurring on the bench, he was appointed by the Governor a Judge of the Superior Court. , He sustained this digni- fied position with fidelity and credit, during an excited and interest-
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HISTORY OF NORTH CAROLINA.
ing period. He was forced on one occasion to leave Hillsboro' by the disturbances of the Regulators .*
· The troubled times shut up the courts of justice.
In 1774 the Cherokee Indians offered for sale their lands. He formed a company with John Williams and Leonard Hendly Bullock, of Granville; William Johnston, James Hogg, Thomas Hart, John Lutterell, Nathaniel Hart and David Hart, of Orange County, and made a treaty on the banks of the Watauga River. He purchased from the Indians, for a fair consideration, all their lands south of the Kentucky River, beginning at the mouth or junction of said river with the Ohio to its source, thence south into Tennessee, until a westwardly line should cross the Cumberland Mountain so as to strike the ridge which divides the waters of the Tennessee River from those of the Cumberland, and with that ridge to the Ohio River, and with' that river to the mouth of the Kentucky River aforesaid; in- eluding a large portion of the States of Tennessee and Kentucky.
The company took possession of the lands on the 20th of April, 1775; the Indians appointing an agent, John Farrar, to make a delivery according to law.
The Governor of North Carolina, Martin, issued his proclama- tion in 1775 declaring this purchase illegal. The State subse- quently granted 200,000 acres to the company in lieu of this.
The State of Virginia declared the same, but granted the com- pany a remuneration of, two hundred thousand acres, bounded by the Ohio and Green River's.
The State of Tennessee claimed the 'lands, but made a similar grant to the company in Powell's Valley.
In 1779 Judge Henderson was appointed a commissioner to extend the line between Virginia and North Carolina into Powell's Valley. His associates on this commission, were Oroondates Davis, John Williams of Caswell, James Kerr, and William Bailey Smith. A difficulty arose as to the true latitude of 36° 30", and the commis- sion was closed.
This same year, Judge Henderson opened a land office, at the French Lick, now Nashville, Tennessee, for the sale of the com- pany's lands.
In the summer following he returned home, where in the bosom of his friends and family, he enjoyed the evening of life in peace and plenty. On the 30th of January, 1785, he died at his seat in Granville, loved and esteemed by all who knew him.
He left (by his marriage with Elizabeth Keeling, a stepdaughter of the late Judge Williams) six children, Fanny, born 1764, who married Judge McCay, of Salisbury; Richard, born July 1766; Archibald, born August 1768; Elizabeth, who married Alexander, born 1770; Leonard, born 1772; and John Lawson, Henderson, born 1778.
* See deposition of Ralph McNair, and letter of Judge Henderson, and de- position of Waighstill Avery (procured from State Paper Offices in London), now for the first time printed. (Chap. on Alamance, vol. ii. chap. i.)
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HISTORY OF NORTH CAROLINA.
All four sons studied the same profession for which their father had been so distinguished; and their reputation did not disgrace their ancestor. Richard died at the early age of 30, but gave every promise of distinction, had his life been spared ;* Archibald was the head of his profession, in Western Carolina, a distinguished member of Congress, and the legislature (see Rowan County). ; Leonard was one of the first lawyers of his day, and attained the eminence of Chief Justice of the Supreme Court of North Carolina; and John, the youngest son, was blessed with a clear mind, and was distinguished for his learning; but, from a diffidence of manner, never exerted himself to use those means to attain the eminence of his illustrious brothers. He was a member of the legislature from Salisbury, Comptroller of the State in 1825, and died at Raleigh in 1843, while attending to his duties as Clerk of the Supreme Court.
The JUDICIARY early received from the State Congress that atten- tion its importance deserved.
The first General Assembly that met under the State Constitu- tion, at Newbern, in April, 1777, revised. the whole statute law; and superior courts were held semi-annually at Wilmington, New- bern, Edenton, Halifax, Hillsboro', and Salisbury. Three Judges were elected (John Williams, of Granville, Samuel Ashe, of New Hanover, and Samuel Spencer, of Anson).
Morganton was established as a Judicial District, in 1782; and Fayetteville, in 1787.
Equity jurisdiction was given by act of 1782.
In 1790 a fourth Judge was added; the State divided into two ridings, and a Solicitor-General was appointed.
In 1806, Superior Courts were established in each county, and two additional Judges and four Solicitors were appointed; another Judge has been added since, and this system continues to this day. One of the Judges of the Superior Court semi-annually holds a court in each county in the State, and a Solicitor to prose- cute in behalf of the State. The Judges cannot twice ride the same circuit in succession. They are elected by the legislature during good behavior ; and each receives a salary of one thousand nine hundred and fifty dollars a year, which cannot be diminished during their continuance in office.
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