USA > North Carolina > History of North Carolina: The Federal Period 1783-1860, Volume II > Part 21
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The final investment by the trustees of the Literary Fund was in swamp lands. According to the act of 1836, $200,000 of the $500,000 of the surplus revenue apportioned to the Lit- erary Fund was to be used in the improvement of the swamp lands. Such an undertaking had been suggested as early as 1819 by Archibald DeBow Murphey in his "Memoir on In- ternal Improvements," and in 1822 the Board of Internal Im- provement ordered surveys of the lands in question, reports being made in 1823 and 1827. The Board suggested in the latter year and also in 1833 that Mattamuskeet Lake be se- lected for experimentation in drainage, but no action was taken. In the meantime the swamp lands were vested in the
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Literary Fund in 1825, and the distribution of the surplus revenue in 1836 made possible drainage work.
Three distinct operations were begun. First was the drain- age of Mattamuskeet Lake in Hyde County. By a special act $8,000 was appropriated to this enterprise, and approximately 8,000 acres were reclaimed by 1842. The second and also the largest project of this kind was the drainage of Pungo and Alligator lakes by connecting them with Pungo River. By 1842 this work was completed at an expenditure of $175,- 553.34, and approximately 60,000 acres had been reclaimed. The third area drained consisted of "open prairie" lands in Cartaret County, on which $5,000 were expended. In addition to the expenditures for drainage were those for the construc- tion of roads These cost over $10,000. Other expenses brought the total expenditure for the swamp territory by 1860 to $200,608.48.
The returns on this large expenditure were meagre, amount- ing to $22,294.69. For this there were several reasons. One was that the drainage made was not extensive enough to be profitable; main ditches only were constructed and the pur- chaser of lands had to dig new trenches to connect with them. Also the nature of the lands in many places was not realized; thus in the Mattamuskeet region after drainage was effected only sand beaches were disclosed. To these causes must be added the matter of titles. In earlier days much of the swamp lands had been entered; although no settlements had been made, the state found that counter claims made impossible the sale of the lands.
From the management of the Literary Fund as outlined above certain conclusions are evident. First of these is that the trustees as well as the legislature believed that the princi- pal and the unexpended balances should be used to support such enterprises of general economic and social interest as railways, roads, banks, swamp lands, drainage and private schools. Even the needs of the state treasury were tempora- rily supplied by the Fund. It is also evident that some of the investments were not successful, notably those in the swamp lands. The war opened before the plank roads, chartered in the 'fifties, whose endorsed bonds were held by the Fund, could
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be completed, and no dividends were reported from the roads in the mountain section. However no great calamity overtook the Literary Fund, and no complaint was ever made that the cause of the common schools was actually retarded by the investments of the legislature and the trustees.
Contemporary with the agitation for common schools was. the movement for the proper care of physical and mental de- fectives. Murphey, in his plan of a comprehensive school sys- tem submitted in 1817, had included an asylum for the deaf and dumb. Ten years later the North Carolina Institution for the Instruction of the Deaf and Dumb was chartered. Estimat- ing that the number of deaf and dumb in the state was ap- proximately 400, the incorporators in January, 1828, peti- tioned the Federal Government through Senator Nathaniel Macon and Congressman John H. Bryan for a donation of public lands as an endowment for "the accomplishment of the object in view." The petition was fruitless, and with it appar- ently ended the activity of the institution. A new and more successful agitation began in 1842. Governor Morehead in his first message to the legislature recommended the estab- lishment of asylums for the deaf, dumb, and blind, and for the protection of unfortunate lunatics. The recommendation was fruitless. The following year William D. Cooke, principal of the Deaf and Dumb Institution at Staunton, Virginia, wrote Governor Morehead concerning the feasibility of founding a private school for the deaf and dumb in North Carolina. Many applicants for entrance to the Virginia asylum were turned away for lack of accommodations; these, with the 280 mutes reported to be in North Carolina by the census of 1840, would form a clientele for the proposed institution, which in turn might expand into a state institution. Governor Morehead, anxious for moral support of the cause, conveyed his corres- pondence with Cooke to Reverend James Phillips, presiding officer of the Presbyterian Synod of North Carolina, which convened at Raleigh in March, 1844. The Synod adopted reso- lutions cominending Governor Morehead's interest in the deaf and dumb, approved the idea of an institution under the superintendency of Cooke, and requested members of the Sy- nod to furnish the governor any facts that might be of service.
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The following November Governor Morehead again recom- mended to the legislature that some provision be made by the state for the deaf and dumb, the blind, and the insane. In December two exhibitions by deaf, dumb, and blind students brought from Staunton, Virginia, were conducted by Mr. Cooke in the presence of the legislature. In the House of
WILLIAM D. COOKE
Commons Mr. Scales introduced a resolution that the Com- mittee on Education and the Literary Fund be instructed to inquire into the expediency of applying a portion of the Lit- erary Fund to the education of the deaf and dumb, and the blind. Governor Morehead in a special message of December 31, 1844, estimated the number of deaf and dumb in the state to be 283, the blind 223, and the insane 582, and suggested that $75,000 would cover the cost of buildings and equipment
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and recommended that the state's share in the fourth install- ment of the federal surplus ($478,000) be applied to con- struction and endowment. The legislature, however, was more conservative than the governor. It passed over the insane, and appropriated $5,000 from the Literary Fund for the in- struction of the deaf mutes and the blind, to be supplemented by local county taxes of $75 for each student. In pursuance of the law, the trustees of the Literary Fund contracted with Mr. Cooke for the instruction of the deaf and dumb at Ral- eigh, the work to begin in May, 1845. The age limits of stu- dents were fixed at eight and thirty years, and the rate for each student, including tuition, board, and clothing, was $150 per annum. Instruction of the blind was temporarily omitted on account of the lack of teachers and the few applicants. By 1846 the number of students was thirty-three and the curriculum included domestic and industrial arts. At first the institution was conducted in rented buildings. In 1847 an ap- propriation of $10,000 was made for permanent quarters, one- half of which came from the current income of the Literary Fund, the other from the unexpended balance of previous ap- propriations. Two buildings, one dormitory and administra- tive, the other a school, were erected on government property in Caswell Square at Raleigh. The cost, however, was $15,000, which was $5,000 more than the appropriation. This was also defrayed by using the unexpended annual appropriation.
At the opening of the seventh session in 1851 the instruc- tion of the blind was provided for, and in 1852 the institution was incorporated as the North Carolina Institution for the Education of the Deaf, Dumb, and Blind. The annual appro- priation was increased from $5,000 to $8,000, and to $10,000 in 1857. The institution also received a bequest of $6,000 in 1854 from the will of John Kelly.
Hardly was the institution for the deaf and dumb firmly established when scientific care for the insane was also pro- vided. For this much credit is due to Miss Dorothea Dix, America's apostle of humanitarianism. After spending three months visiting North Carolina jails and poor houses, which afforded the only public care of the insane, she prepared a memorial to the legislature of 1848, convincing in argu-
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ment and deeply touching in its appeal to sympathy. "I come not to urge personal claims, nor to seek individual benefits," she wrote. "I appear as the advocate of those who cannot plead their own cause; I come as the friend of those who are deserted, oppressed, and desolate. In the Providence of God, I am the voice of the maniac whose piercing cries from the dreary dungeons of your jails penetrate not your halls of legis- lature. I am the hope of the poor crazed beings who pine in the cells, and stalls, and cages of your poorhouses. I am the revelation of hundreds of wailing, suffering creatures, hidden in your private dwellings, and in pens and cabins-shut out, cut off from all healing influences, from all mind-restoring cures. " 7
The unsanitary conditions, the depressing influences on the insane of association with criminals, and the total lack of medical attention, were pointed out, with many concrete illus- trations. In contrast she emphasized the large percentage of recoveries together with the economy in those states that had established asylums, and pointed out that of the original thirteen states all except Delaware and North Carolina had established such institutions. Above all, moral duty to the demented was pressed home. "Talk not of expense-of the cost of supporting and ministering remedies for these afflicted ones. Who shall dare compute in dollars and cents the worth of one mind? Who will weigh gold against the priceless pos- session of a sound understanding? You turn not away from the beggar at your door, ready to perish. You open your hand, and he is warmed, fed, and clothed; will you refuse to the maniac the solace of a decent shelter, the protection of a fit asylum, the care that shall raise him from the condition of the brute, and the healing remedies that shall reillumine the tem- ple of reason ? Who amongst you is so strong that he may not become weak? Whose reason is so sound that madness may not overwhelm in an hour the noblest intellect ?"
The outlook for a favorable action was not promising. The democrats, long out of power, had made great gains in the recent elections, securing a majority in the Commons, and the
" Memorial soliciting a state hospital for the insane.
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party was hostile to increasing any public expenditures. More- over, the question of a railroad for the western counties over- shadowed all other issues. But the soul of the reformer was undaunted. "They say," she wrote, "nothing can be done here. I reply, 'I know no such word in the vocabulary I adopt.' It is declared that no word will be uttered in opposition to my claims, but that the democrats, having banded as a party to vote for nothing that involves expenses, 'will unite and silently vote down the bill. A motion was made to order the lighting of the lamps in the portico of the capitol, and voted down by the democrats. 'Ye have darkness because your deeds are evil,' said a whig in great ire : and a voice from the gallery responded piously, 'For ye are of your father, the devil.' "' 8
Her method of procedure was bold and direct. "This morning after breakfast several gentlemen called, all whigs, talked of the hospital, and said the most discouraging things possible. I sent for the leading democrats, went to my room and brought my memorial, written under the exhaustion of ten weeks most fatiguing journeys and labors. 'Gentlemen,' I said, 'here is a document I have prepared for your assembly. I desire you, sir, to present it,' handing it to a democrat popu- lar with his party. 'And you, gentlemen,' I said, turning to the astonished delegation, 'you, I expect, will sustain the motion this gentleman will make to print the same.' "'
The democrat to whom the memorial was handed was John W. Ellis of Rowan, the champion of the Charlotte and Danville Railroad bill. The document was duly presented in both houses and referred to a joint committee, which reported a bill appropriating $100,000 for a state hospital for the insane. Such a sum seemed indeed fabulous, when the annual revenue exclusive of the Literary Fund was less than $200,000. Con- sequently, the section of the bill making the appropriation was struck out on December 19. Two days later Mr. Rayner, a whig, offered an amendment to levy a special tax of 21% cents on the $100 value of land and 71% cents on the poll, which was also defeated after an earnest and eloquent appeal by its
8 Connor, James C. Dobbin (Biog. Hist. of N. C., Vol. VI.).
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author. Apparently the cause was lost, but on December 22 a new advocate appeared, James C. Dobbin, democrat, who had been defeated for the speakership by two votes. He intro- duced an amendment calling for a tax of 13/4 cents on the $100 value of land and 51/4 cents on the poll for four years, and made an even more impressive plea than Mr. Rayner. His in- terest in the bill was due largely to a personal appeal. His wife, afflicted with an incurable malady, was visited and cheered by Miss Dix. When she expressed to the philanthro-
JAMES C. DOBBIN
pist her desire to show her appreciation, Miss Dix replied, "You can do something; ask your husband to speak in favor of the hospital bill." Mrs. Dobbin made the request and soon afterward died. Four days after her death Mr. Dobbin intro- duced his amendment and made an eloquent address that brought tears to many and swept away all opposition. Thus was the foundation of the asylum assured. Miss Dix wrote:
"Rejoice, rejoice with me. Through toil, anxiety and trib- ulation my bill has passed. I am not well, though perfectly happy. I leave North Carolina compensated a thousand-fold for all labors by this great success."
In memory of her services, the site on which the institu-
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tion was located near Raleigh was named Dix Hill. Toward its support the legislature proved liberal. In 1852 the tax of 1848 was continued for three years. Direct appropriation begun in 1856 amounted to $20,000 per annum, and this was in- creased to $25,000 in 1858. These appropriations were sup- plemented by local county taxes for the care of the indigent insane. The first director of the institution, Dr. E. C. Fisher, was from Staunton, Virginia.
The spirit of reform was not confined to the foundation of a school system, internal improvements, and the care of the defective classes. It also pervaded the domain of law, both statutes and court decisions. Many rules of the English com- mon law, inherited from colonial days, were modified or abol- ished, and new principles of justice were formulated. Illus- trative was the matter of imprisonment for debt. According to the common law every debtor was subject to imprisonment at the will of the creditor until the debt was paid. However a colonial statute, whose principle was continued after state- hood was attained, allowed the honest debtor without property to be released after twenty days imprisonment if he swore before court "that he hath not the worth of ten dollars in any worldly substance, either in debts owing to him, or otherwise howsoever, over and above his wearing apparel, one bed and its necessary furniture, one wheel and cards, also one loom, working tools and arms for muster, one bible and testament, one hymn book, and all necessary school books," and that he had not since imprisonment disposed of any of his estate. Moreover the honest debtor with property must follow a sim- ilar procedure of imprisonment before making a settlement with his creditors. After twenty days imprisonment he filed petition with the court, setting forth the cause of imprisonment and the amount of property held; then, after formal court proceedings, the prisoner was released, his property was sold under execution, and his body was relieved from liability to im- prisonment for the debt so adjusted. Thus imprisonment was a part of the legal procedure for settling debts whether the debtor was guilty of fraud or was simply insolvent. A notable instance of the operation of the law was the case of Archibald DeBow Murphey. Unable to meet his obligations he sub- Vol. II-17
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mitted to the law, enduring imprisonment and settling with his creditors in formal court proceedings. A vivid account of his life in prison has been left by one who knew the facts.
I heard good old sheriff Doak say that no occurrence of his life, official or otherwise, was so painful to him as the execution of the ca sa upon the venerable judge, the meekness and dignity of whose bearing was so impressive, and his resignation to the inevitable so touching. When he was conducted to the prison and surveyed his surroundings, "in such cases made and provided by law" for the inexorable twenty days previous to the humiliating process of "swearing out," he re- marked that the room was not, and he supposed, considering the pur- pose, could not be, sufficiently lighted and ventilated. He, therefore, requested the sheriff to leave the door open! And the sheriff went off and left the door open! There are few instances, I suppose, where men have been shut up in jail with an open door; but no suspicion entered the sheriff's head that any advantage would be taken of the fact in this case.
Within a day or two a visit was made by Judge Cameron to the prisoner in his new quarters-a visit of friendship and also on busi- ness connected with his case. Coming away from the interview he met the sheriff, and remarked that it had occurred to him that he, the sheriff, might be running a risk by leaving the jail door unlocked. "A risk !" exclaimed the officer; "I would risk life and sacred honor with Judge Murphey. You don't think he would go away ?" "I do not mean that," replied Judge Cameron; "I mean that it might be considered in law an escape, and you might yourself become involved to your hurt. But," said he further, "Murphey knows the law; let us go back and consult him."
They went back to the jail and held a consultation, at the close of which Judge Murphey said, with a sad smile, "Mr. Sheriff, my friend, it will be safest for you to lock the door upon me."
The visitor and the sheriff retired; the key was turned in the door; and if there were two big tears seen to roll down the cheeks of the latter they did honor to the heart of old Jimmy Doak.
At the end of twenty days the prisoner took the oath that he was "not worth forty shillings in any earthly substance," and was turned loose upon a country to which he had rendered his best serv- ices, whose high places his occupancy had adorned, and whose inter- ests were cherished as his own .?
Against the severity of the debtor law there was a well defined reaction. In 1820 imprisonment for debt was abolished but the statute was repealed the following year; then in 1823 it was enacted that imprisonment for debts contracted prior
9 Lyndon Swaim, quoted from Hoyt, Murphey Papers, II, 431.
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to that date might be avoided until the meeting of court by the debtor giving bond for appearance, as a pledge to surrender his property or to make oath as to his insolvency. In 1844 further protection was given by prohibiting imprisonment ex- cept when the creditors made oath that the debtor had prop- erty which could not be reached by a facias faciendum. In 1848 debtors were still further protected by exempting from execution personal property to the value of fifty dollars.
The tendency to ameliorate the law was also reflected in the legislation regarding the position of woman. The right of the husband over the person of his wife to the extent of im- prisonment or other correction was not restricted at the com- mon law. Indeed the penalty of death at the stake for slaying her husband who was exercising his right of correction was imposed on a woman of Iredell County in 1787. Six years later, in 1793, the penalty was abolished by statute. In 1823 women were also exempted from imprisonment for debt and the Code Commission of 1855 relieved them from the penalty of branding or corporal punishment, substituting therefor im- prisonment. Their property rights were also enlarged. In 1844 woman's right to act as executor without bond given by her husband was recognized, and in 1848 the husband was de- nied the right to dispose of the wife's real estate without her consent. The right of the divorced wife to property and money acquired after divorce was also granted in 1819 and women were likewise admitted to benefit of clergy until that custom was abolished by the Code Commission of 1855.
The spirit of humanity and reform also pervaded the de- cisions of the Supreme Court. Illustrative were the opinions concerning the negro written by Associate Justice Gaston. In the case of State vs. Will, decided in 1835, the right of the slave to resist inhumanity on the part of the master, his agent, or temporary owner was distinctly recognized.
In the absence then of all precedents directly in point, or strik- ingly analogous, the question recurs, if the passion of the slave be excited unto unlawful violence by the inhumanity of the master, or temporary owner, or one clothed with the master's authority, is it a conclusion of law that such passion must spring from diabolical malice ? Unless I see my way clear as a sunbeam, I cannot believe that this is the law of a civilized people and of a Christian land.
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* * If the Legislature should ever prescribe such a law, a sup- position which can scarcely be made without disrespect, it will be for those who then sit in judgment to administer it. But the appeal here is to the common law, which declares passion, not transcending all reasonable limits, to be distinct from malice. The prisoner is a human being, degraded indeed by slavery, but yet having "organs, dimen- sions, senses, affections, passions, like our own." *
* * Express malice is not found by the jury. From the facts, I am satisfied as a man that in truth malice did not in fact exist, and I can see no law which compels me, as a judge, to infer malice contrary to the truth.
Thus a tenderness and a more humane attitude were intro- duced into the judicial decisions relating to the slave. A more liberal attitude was also manifested toward the free negro in the case of State vs. Manuel, the opinion, rendered in 1838, also being handed down by Gaston. The legislature of 1831 had declared that a free negro, convicted and fined, if he were un- able to pay the fine, should be hired out to "any person who will pay the fine for his services for the shortest time pos- sible." On the other hand the state constitution prohibited imprisonment of the debtor after ascertained insolvency and the legislature of 1836 allowed any person duly convicted and imprisoned for costs and fine to take advantage of the insol- vent debtor law. In defense of the statute of 1831 the attorney general contended that free negroes were not citizens and therefore did not enjoy the guarantees of the constitution or the benefits of the remedial statute. Gaston's decision set aside this contention and allowed the free negro the benefit of the insolvent debtor law by showing that he was a citizen.
Upon the Revolution no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on a European King to a free and sovereign state. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the state, con- tinued aliens. Slaves manumitted became freemen, and therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the state are born citizens of the state.
Undoubtedly it was in the domain of civil law that the North Carolina court achieved its greatest distinction. Pre- eminent were the decisions of Justice Ruffin, associate justice from 1829 to 1833, chief justice from the latter date to 1852, and again associate justice in 1858 and 1859. Three notable
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departures from English common law doctrine were made un- der his leadership. First, in the construction of the Statute of Frauds the court rejected the English doctrine of part per- formance and held that specific performance of an oral con- tract to convey land would not be decreed. The second de- parture was discarding the doctrine that a vendor who had
JUSTICE THOMAS RUFFIN
security for payment, so rejecting "the vendor's lien." Third, sold land and parted with the title had a lien on the land for was the repudiation of the English doctrine of a married woman's equitable right to settlement for maintenance before the husband invoked the power of the courts to reduce her estate to possession. Other decisions no less notable were in defense of the right of eminent domain, the denial of the right of the legislature to divest one of property, including even a
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