USA > North Carolina > History of North Carolina: The Federal Period 1783-1860, Volume II > Part 6
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Criticism and defense of the national administration also
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pervaded federal politics. Secret sessions and curtailment of debate in Congress in the early months of the war aroused protest by a number of members, among whom was Joseph Pearson. In 1812 a public meeting in Mecklenburg condemned his attitude, while another in Rowan approved it and also de- clared that the war was unwise and should be brought to an end. In the congressional elections of 1813 the issue of direct taxes or honorable peace was raised. Four federalist con- gressmen were elected, Joseph Pearson, John Culpepper, Wil- liam Gaston, and Richard Stanford. In Congress they joined with fellow partisans from New England and the middle states in opposing various war measures. Culpepper, Gaston, and Pearson voted against the salt taxes of 1813, Stanford joined them in opposing the tax on liquor dealers, Culpepper, Pearson, and Stanford fought the embargo of 1813, and Gaston joined them in a demand for non-interference with the coastwise trade and the successful movement for its repeal. Culpepper, Pearson, and Stanford voted against the mili- tary appropriation of March, 1814, and all four voted against the loan bill of that month authorizing the issue of $25,000,000 in bonds. The chief spokesman of the group was Gaston. Bitter in denouncing the American policy that had precipi- tated war, he opposed military operations in Canada while negotiations were pending with England, early in 1814, and held before Congress the spectre of a slave insurrection in the South in case of a British invasion. How strong was the spirit of partisanship is illustrated by an incident of January 21, 1814. Eppes, chairman of the Ways and Means Committee, read to the House the report of the Secretary of the Treasury, laying bare a condition of practical bankruptcy. He then turned to Gaston and asked :
"Well, sir! Will your party take the government if we will give it up to them ?"
"No, sir," replied Gaston. "No, sir! Not until you will give it to us as we gave it to you." 9
Criticism of war measures reached a climax in the discus -. sion of the record of David Stone. Elected to the United
9 Perry, Life of George Ticknor, I, 31.
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States Senate in 1812, he opposed the embargo of 1813, the appointment of Albert Gallatin as one of the commissioners to Europe in response to Russia's attempt at mediation, and the direct levies on sugar, liquor licenses, and auctioneers as a means of financing the war. A public meeting in Camden County censured Mr. Stone and demanded that he "retire into merited obscurity, vacate his seat in Congress, forbear to let the sound of his unhallowed voice pollute that patri- otic sanctuary." In the legislature of 1813 his record be- came the subject of debate. Resolutions of censure were in- definitely postponed in the House of Commons, but the ques- tion was reopened and similar resolutions were sent down for concurrence from the Senate. The report of a joint com- mittee was then adopted by both houses, which declared that Senator Stone had "disappointed the reasonable expecta- tions, and incurred the disapprobation of this General As- sembly." A protest, however, against the resolutions was filed by a minority. Senator Stone remained impervious to criticism until December, 1814, when he resigned, giving as his reason for such action the pressure of private business. As a parting shot he declared it unwise to continue the em- bargo, to use the militia in distant operations, to tolerate short terms of enlistment, and to send peace commissioners to Eu- rope.
Vol. 11-5
CHAPTER IV
COURTS, BOUNDARIES, LAND DISPUTES, INDIAN REMOVAL, LOCATING THE CAPITAL
For a generation after the election of 1800 interest in party history was eclipsed by social, economic, and institu- tional problems. Currency and finance, improvement of transportation, an increasing demand for public schools, agi- tation of constitutional reform, adjustment of land and bound- ary disputes, the removal of the Cherokee Indians, round- ing out the judicial system,-these questions marked the rise of new interests, and some of them proved to be the basis for a new epoch in party organization and development.
Among the first tasks after the Revolution was the adjust- ment of the court system. During the colonial period the control of the judiciary was the subject of controversy. be- tween the Crown and the Assembly. The Constitution of 1776 marked the victory of popular control, for it vested in the legislature the election of judges and their salaries, also their impeachment, and the erection of courts. In 1777 a court law was enacted. It divided the state into six districts, in each of which a court was to be held twice a year at six court towns,- Wilmington, Newbern, Edenton, Halifax, Hillsboro, and Sal- isbury. In 1782 sessions of court were also ordered for Mor- ganton, and in 1787 for Fayetteville. The number of judges was three, one of whom might hear all cases except demur- rers, cases agreed, special verdicts, bills of exception, and motions in arrest of judgment, which could be heard only by two or more judges. An attorney-general, like the judges elected by the legislature, represented the state in criminal matters. Below these circuit courts were courts of pleas and quarter sessions, held by the justices of the peace in each county, and also the court of one justice,-all inherited from
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the colonial period. In such a system, especially in the supe- rior courts, there were many defects. The limitation of ses- sions to the court towns worked a hardship on suitors and witnesses, who often had to travel long distances. The num- ber of judges was too small, resulting in conjested dockets. The judges were also dictatorial, often browbeating witnesses and judges. On the other hand, the judges were not protected from the enmity of the legislature, for although they could not be removed during good behavior, their salary might be reduced. Another defect was the absence of any system of appeals.
The movement for reform began in 1790 when an addi- tional judgeship was created; another was created in 1798, and in 1806 the number of judges was increased to six. For administrative purposes the circuits were grouped into two ridings in 1790, the eastern riding including the districts of Halifax, Edenton, Newbern, and Wilmington; the western including Morganton, Salisbury, Fayetteville, and Hillsboro. In each riding two judges were to hold court, but one in each riding was to exchange circuit with one of another riding after each session. In 1806 the number of ridings was in- creased to six. To expedite justice the office of solicitor-gen- eral was also created in 1790, whose powers were identical with those of the attorney-general. A more important change, one in keeping with the democratic spirit of the times, was made in 1806, by ordering a session of the superior court. for each county twice a year. Justice was thus brought closer to the people, the lawyers had to seek clients in each county instead of clients making long journeys to the old court towns. The fees of attorneys and court officers were also reduced to the level of those in the county courts. These re- forms were bitterly criticized by lawyers, court officials, and the interests identified with the old court towns. In Hills- boro the representatives of Orange County were dined and toasted as "a testimonial of the high approbation of the firm and patriotic opposition which they made to the adoption of the new judiciary system." Some lawyers and court of-
1 Hoyt, Papers of Archibald DeBow Murphey, I, p. 8, n.
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ficials, disgusted with the "apparent restless and destructive spirit of innovation," left the state. Among them was John Haywood, later known as one of the historians of Tennessee. In the meantime judges were forbidden to express an opinion as to facts presented in 1796, but not until 1835 was the reduc- tion of their salaries forbidden during continuance in office.
The greatest reform was the creation of a Supreme Court with the right to hear appeals from the superior courts. This came as a climax to attempts to relieve conjested dock- ets. The cause of the congestion was not entirely the small number of judges, but also differences of opinion among them. Illustrative was the case of Winstead vs. Winstead, the ques- tion being whether levy and sale on the land of the husband after death divested the widow of dower rights. One judge failed to file his opinion, and the case was thereupon argued before two other judges. One of these deferred his opinion. Later Judge Williams again sat on the case, but as he had changed his mind, there was another disagreement and the case was finally stricken from the docket without decision. Hence in 1799, on account of the inconveniences and delays "from the want of a speedy and uniform decision for all questions of law or equity arising in the circuit," due to dif- ferences of opinion among the judges or desire for further consideration, or lack of sufficient judges, the judges were ordered to meet twice a year at Raleigh in June and Decem- ber for a period of two years to decide cases disagreed on or those which one judge was unwilling to decide by himself. An interesting feature connected with the law was the trial of James Glasgow, Secretary of State since 1776. Tempta- tion proved too strong for him, and in 1797 it was disclosed that he had issued fraudulent warrants for land in Tennes- see and the mountain section of North Carolina. His trial was committed by the legislature to a special term of court at Raleigh, and he was convicted. Interesting incidents of the prosecution were that the defendant's counsel was John Haywood, author of the new court law, and an attempt to steal valuable documents in the comptroller's office by a faithful
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slave of Glasgow, who was killed while breaking into the building.
In 1801 the special sessions at Raleigh were continued for three years and were dignified with the title Court of Con- ference. Attorneys were also forbidden to appear before it. In 1804 the Court of Conference was made permanent, and the next year its name was changed to Supreme Court. In 1810 the judges were authorized to elect one of their number Chief Justice, and the scope of litigation was widened by al- lowing appeals, in which the attorney-general should repre- sent the state. There were still limitations and difficulties. The work of the judges on the circuits increased, making it difficult to have a full meeting of the Supreme Court. It also seemed unfair to require or allow a judge to be a member of a court which heard appeals from his own decisions while on the circuit. Moreover, suits themselves were never trans- ferred from the superior courts to the Supreme Court, but only questions of law arising from them; often after one of these had been raised and settled, new viewpoints were dis- covered, thus resulting in delay of justice. Also the salaries did not make judgeships attractive to the abler lawyers. There was, too, a need of a more specialized knowledge of the law, notably in the domain of equity. Concerning the latter defect, Governor Miller was especially emphatic. "The daily delay attendant on a suit of equity," he wrote, "is proverbial and amounts to an almost total denial of justice. The trial of such a suit approaches near to novelty in our judicial pro- ceedings, as every man who has been so unfortunate as to be engaged in a contest of this kind, or who has been in the least conversant with our courts, can very well attest." Reform in 1818 was sought by a reorganization of the Supreme Court. By a statute of that year the tribunal was to consist of three judges elected by the legislature who should give exclusive attention to the court, should hold two sessions a year at Raleigh, hear appeals only after decisions of the superior courts had been rendered, and review the entire case instead of questions of law. The judges should also hold court day after day until all appeals were decided. Equity proceedings were to be instituted directly before the Supreme Court, for
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which it was a distinct court of equity. Thus justice was made more swift and more efficient.
The reorganization of 1818 was not without opposition. The salary of the justices ($2,500) was higher than that of the circuit judges and even that of the governor. The tradi- tion of close contact between members of the Supreme Court and the people while the judges were on the circuit was vio- lated. Apparently the tribunal of last resort was in no way responsible to public opinion. Consequently for a number of years there were efforts to reduce the salaries of the judges and to restore the Supreme Court as it existed prior to 1818. An important influence in preventing a reversion to the old system was the election of William Gaston to the bench in 1833, when opposition to the court was strong and threatened a victory. Gaston was author of the law creating the court; he was also a Catholic, and as such was apparently debarred by the Constitution from holding office of trust; yet his char- acter and great services raised him above partisan prejudice, and after his election the opposition to the Court is lost sight of. In 1842 as a concession to the more distant western coun- ties a session of the Court was established at Morganton. The wisdom of the reorganization was soon manifest. The state was fortunate in the choice of judges. Their decisions not only refined justice in North Carolina, but brought re- spect and prestige throughout the land, and the Court prior to 1860 enjoyed unusual distinction.
Less vital than the court system, but likewise productive of controversy, was the completion of the state's boundaries. In 1803 commissioners were appointed by the legislature to continue the South Carolina line, on which no surveys had been made since 1772. The commissioners met similar offi- cials from South Carolina at Columbia and in 1808 recom- mended that the lines of 1735 and 1746 be accepted as far as the Salisbury and Charleston road, at which point a diver- gence be made to the southeast corner of the Catawba lands, which should be followed as far as the Catawba River, thence along the river to its forks, thence westward along the line of 1772, and from its terminus westward along the par- allel 35 degrees. This report was adopted, but in 1813 on ac-
Hon, John
Louis Taylor, Chief Justice of North Carolina. 1809 10:39%
.
SUPREME COURT, 1818 John Louis Taylor, Chief Justice
John IIall, Associate Justice
Leonard Henderson, Associate Justice ; Chief Justice, 1829
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count of difficulties in establishing an accurate survey, the boundary west of the line of 1772 was directed to run to a ridge dividing the north forks of the Saluda and Pacolet rivers, thence to another ridge dividing the Saluda and Green rivers, thence to the main ridge "dividing the eastern and western waters," following it to the Cherokee Boundary of 1797, thence to the east bank of the Chatooga River. The report of the commission establishing such a line, was con- firmed in 1815, with a few variations.
While negotiations with South Carolina were in course, a controversy arose over the Georgia boundary. Its immedi- ate cause was the disposition of a strip of land approxi- mately twelve miles wide and two hundred long, just south of the parallel 35 degrees, which is also the boundary between North Carolina, South Carolina, and Georgia. Originally a part of South Carolina, the territory in question was ceded to Congress, but in 1802 the United States ceded to Georgia that part along the Georgia frontier. In the newly acquired district Georgia organized the County of Walton; but the northern boundary, the line 35 degrees, had never been sur- veyed. Consequently North Carolina and Georgia issued conflicting land grants, resulting in much disorder and vio- lence. In 1806 Georgia appealed to Congress to establish the line between North Carolina and Georgia. As the North Carolina congressmen opposed the request, no action was taken. The next year both states agreed to a survey and ap- pointed a joint boundary commission. The surveyors em- ployed were Dr. Joseph Caldwell for North Carolina and Joseph Meigs for Georgia. They found that the supposed location of the line 35° as claimed by Georgia was in reality 35°22'32", or twenty-two miles within North Carolina terri- tory. Observations were made to find the correct latitude, the most successful experiment being on Caesar's Head Moun- tain. The commissioners reached an agreement. Their re- port was accepted by North Carolina, but Georgia rejected it and again appealed to Congress. An examination of the controversy was made by a congressional committee. The trend of opinion was so strongly favorable to North Carolina
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that Georgia yielded to public opinion and dropped the con- test.
Another boundary productive of dispute was that between North Carolina and Tennessee. According to the act of cession, enacted in 1789, the line was to follow the high moun- tain ranges between Stone Mountain on the Virginia border and the Georgia boundary. In 1795 a joint commission es- tablished the line from the Virginia border to a point on the Catalouchee turnpike as it crossed the Great Iron or Smoky Mountain, a distance of 151 miles, the survey being halted at that point on account of uncertainties regarding the Chero- kee lands. In 1819 another joint commission undertook the completion of the line. The act of cession directed the boun- dary beyond the Iron or Smoky Mountain as follows : "Hence along highest ridge of said mountain to the place where it is called Great Iron or Smoky Mountain, thence along the extreme height of said mountain to the place where it is called Unicoe or Unake Mountain, between the towns of Cowee and Old Chatta; thence along the main ridge of said mountain to the southern boundary of this state." The commission sur- veyed and marked the line in accordance with this instruc- tion, and its report was ratified by the legislatures of Ten- nessee and North Carolina. However no settlements were made until the removal of the Cherokee Indians in 1836. Then Tennessee organized the Ocee District and issued land grants, and North Carolina also began to issue grants after 1852. When the policy of issuing grants was adopted, the markings on Smoky Mountain had become well-nigh obliter- ated. Southwest of the Tennessee River the mountain for a distance of eight miles breaks into a number of ridges, the chief of which are Hangover on the east and Big Fodder Stack on the west. Then the ridges unite, but at County Corner, a few miles further south, a similar division occurs between State Ridge on the west and McDaniel Bald on the east. Both Tennessee and North Carolina issued conflicting grants for land between these ridges. Private suits resulted in decisions by the Federal District Court in 1900 and 1902 favorable to North Carolina grants. To obviate future diffi- culties, the State of North Carolina brought suit against the
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State of Tennessee in the Supreme Court of the United States and the decision, which was rendered in 1914, upheld the claim of North Carolina to the disputed territory.
A controversy with Tennessee involving far greater stakes than the adjustment of the boundary line arose over the valid- ity of land warrants. The background of the dispute was the land policy of North Carolina. In 1780 and 1783 a large tract known as the Military Reservation was set aside to meet the bounties offered the North Carolina soldiers in the Continental Line. Its boundary began at the intersection of Cumberland River and the Virginia line, ran south fifty-five miles, thence west to the Tennessee River, along that stream to the Virginia line, thence east to the point of departure. In 1783 a land office was opened in Nashville to consider the claims of soldiers. When the territory west of the mountains was ceded in 1789, the land claims of the soldiers were dis- tinctly protected; the act of cession provided that "lands laid off or directed to be laid off" should enure to the use and benefit of the claimant, and in case the Military Reser- vation was not large enough to satisfy all claims, warrants should be issued for other unappropriated lands in the ter- ritory ceded, and the governor of North Carolina should have the right to perfect titles claimed under entries not previously perfected by grant or otherwise. The time set by North Caro- lina for completing surveys and securing grants was 1792; but the date was extended, although the right of extension was not mentioned in the act of cession. Tennessee naturally became restive, since sovereignty over lands within her boun- daries was a matter of economic and political importance. In 1799 the Tennessee legislature declared the State of Ten- nessee sovereign over all ungranted land on the ground that title was transferred to Tennessee on admission to the Union. This act was immediately superseded, but in 1801 a state land office was opened; prior entries, grants, and warrants of North Carolina origin were validated, but every act toward surveying or marking land under title from North Carolina was subjected to a penalty of $5,000, and all grants of such origin were excluded from the Tennessee courts. Soon after a commission was appointed to confer with the North Caro-
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lina authorities, and in 1803 an agreement was reached by which Tennessee was to perfect titles to claims which were passed upon by North Carolina, provided the consent of Congress could be secured, which was essential on account of the vast amount of public land in Tennessee.
In 1806 came the reply of Congress. It was the cession to Tennessee of all public lands east and north of a line ex- tending from the intersection of Elk River with the Tennes- see-Alabama line, thence north to the main branch of Duck River, down that stream along the North Carolina Military Reservation to the Tennessee River, and along that stream to the Virginia line. This boundary was known as the Con- gressional Reservation Line. East of it lay the North Caro- lina Military Reservation, but restrictions in the North Caro- lina act of cession as to land grants were specifically guar- anteed, for the act of Congress stated that entries, rights of location, and warrants of North Carolina origin not located west of the Congressional Line on February 1, 1790, should be located east of it on Tennessee lands. Within a few years, when all the lands in the Military Reservation had been en- tered, North Carolina began to satisfy remaining claimants by grants south and west of the Congressional Line. Ap- parently this was a violation of the agreement of 1803, but North Carolina claimed it was not in force, as it was not confirmed by the Congressional Act of 1806 except with con- ditions which were destructive of the rights of the state. Tennessee retaliated by imposing fines on any attempt to carry out the North Carolina policy. In 1815 North Caro- lina memorialized Congress, and in 1818 Congress authorized Tennessee to issue grants and perfect titles east or west of the Congressional Line. In the same year the Chickasaw Indians who lived west of the line were removed, and Con- gress authorized Tennessee to satisfy North Carolina claim- ants in the Chickasaw District. The following year a com- mission was appointed to examine and pass on all North Caro- lina claims. A host of claims were filed; it was estimated that 4,000,000 acres had been granted before the act of cession, and by 1838 more than 8,000,000 more had been granted to North Carolina soldiers. This was more than one-half the total
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area of Tennessee. Alarmed at the number of unrecompensed military heroes, Tennessee fixed October, 1822, as the final date to file claims, but the time was extended until 1838, at which date it was estimated that the remaining unsatisfied claims amounted to 60,000 acres.
The principal beneficiary of these transactions was the University of North Carolina. By gifts of Benjamin Smith and Charles Gerrard, it received warrants for 33,920 acres; by a resolution of the legislature in 1821, 14,724 acres were also received, and likewise by right of escheat the right to warrants of all soldiers dying intestate. Soon after the com- promise of 1819 the institution decided to press its claims. An agent was employed to search out escheated warrants on a 50 per cent commission and Archibald DeBow Murphey and James H. Bryan were appointed commissioners to repre- sent the University in Tennessee. The Tennessee legislature, alarmed at the probable magnitude of the escheated claims, in 1821 stayed the issue of grants. A compromise was reached by Felix Grundy on behalf of Tennessee and the University's rep- resentatives, by which the University was to cede to East Ten- nessee College (later the University of Tennessee) 20,000 acres and to West Tennessee College (later the University of Nashville) 40,000 acres. The total amount realized by the University after the cost of controversy and litigation was 100,973 acres, the sale of which realized approximately $200,000.
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