Western North Carolina; a history, 1730-1913, Part 3

Author: Arthur, John Preston
Publication date: 1973
Publisher: Spartanburg, S.C., Reprint Co
Number of Pages: 744

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INCHOATE RIGHTS ONLY UNDER COLONIAL CHARTERS. "In settling the claims to the western territory, much stress was laid on the old colonial charters; but underneath all the verbiage it was practically admitted that these charters con- ferred merely inchoate rights, which became complete only after conquest and settlement. The States themselves had

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already by their actions shown that they admitted this to be the case. Thus, North Carolina, when by the creation of Washington county-now the State of Tennessee,-she rounded out her boundaries, specified them as running to the Mis- sissippi. As a matter of fact the royal grant, under which alone she could claim the land in question, extended to the Pacific; and the only difference between her rights to the regions east and west of the river was that her people were settling in one, and could not settle in the other." (Roosevelt, Vol. iii, p. 285.)

WESTERN LANDS AN OBSTACLE. One of the chief objec- tions to the adoption of the Articles of Confederation, which Congress formulated and submitted to the States November 15, 1777, by some of the States was that each State had con- sidered that upon the Declaration of Independence it was pos- sessed of all the British lands which at any time had been in- cluded within its boundary; and Virginia, having in 1778, cap- tured a few British forts northwest of the Ohio, created out of that territory the "County of Illinois," and treated it as her property. Other States, having small claims to western ter- ritory, insisted that, as the western territory had been secured by a war in which all the States had joined, all those lands should be reserved to reward the soldiers of the Continental army and to secure the debt of the United States. Maryland, whose boundaries could not be construed to include much of the western land, refused to ratify the articles unless the claim of Virginia should be disallowed. It was proposed by Vir- ginia and Connecticut to close the union or confederacy with- out Maryland, and Virginia even opened a land office for the sale of her western lands; but without effect on Maryland. At this juncture, New York, which had less to gain from western territory than the other claimants, ceded her claims to the United States; and Virginia on January 2, 1781, agreed to do likewise. Thereupon Maryland ratified the articles, and on March 1, 1781, the Articles of Confederation were duly put into force. From that date Congress was acting under a written charter or constitution. (Hart, Sec. 45.)

CESSION OF WESTERN TERRITORY. When, at the close of the Revolution, it became necessary that Congress take steps to carry out the pledge it had given (October 10, 1780) to see that such western lands should be disposed of for the common

HISTORY OF WESTERN NORTH CAROLINA

benefit, and formed into distinct republican States under the Union, it urged the States to cede their western territory to it to be devoted to the payment of the soldiers and the payment of the national debt. The northern tier of States soon after- wards ceded their territory, with certain reservations; but the process of cession went on more slowly and less satisfac- torily in the southern States. Virginia retained both juris- diction and land in Kentucky, while North Carolina, in 1790, granted "jurisdiction over what is now Tennessee, " but every acre of land had already been granted by the State. (Hart, Sec. 52). This, however, is not strictly true, much Tennessee land not having been granted then.

THE CAROLINAS AGREE TO EXTEND "THE LINE OF 1772." In 1803 the Legislature of North Carolina passed an act (Rev. Stat. 1837, Vol. II, p. 82) for the appointment of three com- missioners to meet other commissioners from South Carolina, to fix and establish permanently the boundary line between these two States "as far as the eastern boundary of the terri- tory ceded by the State of North Carolina to the United States. This act was amended in 1804, giving "the governor for the time being and his successor full power and authoriy to enter into any compact or agreement that he may deem most advisable" with the South Carolina and Georgia authori- ties for the settlement of the "boundary lines between these States and North Carolina." But this act seems only to have caused confusion and necessitated the passage of another act in 1806 declaring that the act of 1804 should "not be con- strued to extend or have any relation to the State of Georgia." (Rev. Stat. 1837, p. 84.)

COMMISSIONERS MEET IN COLUMBIA IN 1808. 30 Commis- sioners of the States of North and South Carolina, however, met in Columbia, S. C., on the 11th of July, 1808, and among other things agreed to extend the line between the two States from the end of the line which had been run in 1772 "a direct course to that point in the ridge of mountains which divides the eastern from the western waters where the 35° of North latitude shall be found to strike it nearest the termination of said line of 1772, thence along the top of said ridge to the western extremity of the State of South Carolina. It being understood that the said State of South Carolina does not mean by this arrangement to interfere with claims which the

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United States, or those holding under the act of cession to the United States, may have to lands which may lie, if any there be, between the top of the said ridge and the said 35° of north latitude."

AGREEMENT OF SEPTEMBER, 1813.31 But, although the commissioners from the two States met at the designated point on the 20th of July, 1813, they found that they could not agree as to the "practicability of fixing a boundary line according to the agreement of 1808," and entered into an- other agreement "at Mckinney's, on Toxaway river, on the fourth day of September, 1813," by which they recommended that their respective States agree that the commissioners should start at the termination of the line of 1772 "and run a line due west to the ridge dividing the waters of the north fork of the Pacolet river from the waters of the north fork of Saluda river; thence along the said ridge to the ridge that divides the Saluda waters from those of Green river; thence along the said ridge to where the same joins the main ridge which divides the eastern from the western waters, and thence along the said ridge to that part of it which is intersected by the Cherokee boundary line run in the year 1797; from the center of the said ridge at the point of intersection the line shall extend in a direct course to the eastern bank of Chatooga river, where the 35° of north latitude has been found to strike it, and where a rock has been marked by the aforesaid com- missioners with the following inscription, viz .: lat. 35°, 1813. It being understood and agreed that the said lines shall be so run as to leave all the waters of Saluda river within the State of South Carolina; but shall in no part run north of a course due west from the termination of the line of 1772." The commissioners who made the foregoing agreement were, on the part of North Carolina, John Steele, Montfort Stokes, and Robert Burton, and on the part of South Carolina Joseph Blythe, Henry Middleton, and John Blasingame. Rev. Stat. 1837, Vol. ii, p. 86).

COMMISSIONERS APPOINTED IN 1814. Pursuant to the above provisional articles of agreement North Carolina in 1814 ap- pointed General Thomas Love, General Montfort Stokes and Col. John Patton commissioners to meet other commission- ers from South Carolina to run and mark the boundary line between the two States in accordance with the recommenda-

HISTORY OF WESTERN NORTH CAROLINA

tion of the commissioners who had met and agreed, "at Mc- Kinney's, on Toxaway river, on the 4th of September, 1813." (Rev. Stat. 1837, Vol. ii, p. 87).

AROUND HEAD SPRINGS OF SALUDA RIVER. 32 But these commissioners met and found, "by observations and actual experiments that a course due west from the termination of the line of 1772 would not strike the point of the ridge divid- ing the waters of the north fork of Pacolet river from the waters of the north fork of Saluda river in the manner con- templated, .. . and finding also that running a line on top of the said ridge so as to leave all the waters of Saluda river within the State of South Carolina would (in one place) run a little north of a course due west from the termination of the said line of 1772," agreed to run and mark a line "on the ridge around the head springs of the north fork of Saluda river," and recommended that such line be accepted by the two States.

TERMINATION OF 1772 LINE STARTING POINT OF 1815 LINE. Therefore the Legislature of North Carolina passed an act (Rev. Stat. 1837, Vol. ii, p. 89) fixing this line as "beginning on a stone set up at the termination of the line of 1772" and marked "N. C. and S. C. September fifteenth, eighteen hun- dred and fifteen," running thence west four miles and ninety poles to a stone marked N. C. and S. C., thence south 25° west 118 poles to the top of the ridge dividing the waters of the north fork of the Pacolet river from the north fork of the Saluda river . . . thence to the ridge that divides the Saluda waters from those of Green river and thence along that ridge to its junction with the Blue Ridge, and thence along the Blue Ridge to the line surveyed in 1797, where a stone is set up marked N. C. and S. C. 1813; and from this stone "a direct line south 6814° west 20 miles and 11 poles to the 35° of north latitude at the rock in the east bank of the Chatooga river, marked latitude 35 AD: 1813, in all a distance of 74 miles and 189 poles."

CONFIRMATION OF BOUNDARY LINES. In 1807 the North Carolina Legislature passed an act (Rev. Stat. 1837, Vol. ii, p. 90) which "fully ratified and confirmed" these two agreements, and another act (Rev. Stat. Vol. ii, p. 92) reciting that these two sets of commissioners "in conformity with these articles of agreement" had "run and marked in part the boundary

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line between the said States." This act further recites that the North Carolina commissioners "have reported the run- ning and marking of said boundary line as follows:

"To commence at Ellicott's rock," and run due west on the 35° of north latitude, and marked as follows: The trees on each side of the line with three chops, the fore and aft trees with a blaze on the east and west side, the mile trees with the number of miles from Ellicott's rock, on the east side of the tree, and a cross on the east and west side; whereupon the line was commenced under the superintendance of the undersigned com- missioners jointly: Timothy Tyrrell, Esquire, surveyor on the part of the commissioners of the State of Georgia, and Robert Love, surveyor on the part of the commissioners of the State of North Carolina-upon which latitude the undersigned caused the line to be extended just thirty miles due west, marking and measuring as above described, in a conspic- uous manner throughout; in addition thereto they caused at the end of the first eleven miles after first crossing the Blue Ridge, a rock to be set up, descriptive of the line, engraved thereon upon the north side, Sep- tember 25, 1819, N. C., and upon the south side 35 degree N. L. G .; then after crossing the river Cowee or Tennessee, at the end of sixteen miles, near the road, running up and down the said river, a locust post marked thus, on the South side Ga. October 14, 1819; and on the north side, 35 degree N. L. N. C., and then at the end of twenty-one miles and three quarters, the second crossing of the Blue Ridge, a rock engraved on the North side 35 degree N. L. N. C., and on the south side Ga. 12th Oct., 1819; then on the rock at the end of the thirty miles, engraved thereon, upon the north side N. C. N. L. 35 degrees, which stands on the north side of a mountain, the waters of which fall into Shooting Creek, a branch of the Hiwassee, due north of the eastern point of the boundary line, between the States of Georgia and Tennessee, commonly called Montgomery's line, just six hundred and sixty-one yards."

The Legislature then enacted "That the said boundary line, as described in the said report, be, and the same is hereby fully established, ratified and confirmed forever, as the bound- ary line between the States of North Carolina and Georgia."

The last section of the act confirming the survey of the line from the Big Pigeon to the Georgia line, as run and marked by the commissioners of North Carolina and Tennessee in 1821, (Rev. Stat. 1837, Vol. ii, p. 97) provides "that a line run and known by the name of Montgomery's line, beginning six hundred and sixty-one yards due south of the termination of the line run by the commissioners on the part of this State and the State of Georgia, in the year one thousand eight hun- dred and nineteen, ending on a creek near the waters of Shoot- ing Creek, waters of Hiwassee, then along Montgomery's

HISTORY OF WESTERN NORTH CAROLINA

line till it strikes the line run by commissioners on the part of North Carolina and Tennessee in 1821, to a square post marked on the east side N. C. 1821, and on the west side Tenn. 1821, and on the south side G. should to be the divid- ing line between North Carolina and Georgia, so soon as the above line shall be ratified on the part of the State of Georgia."

ORIGIN OF THE WALTON WAR.

"North Carolina claimed for her southern boundary the 35th degree of north latitude. The line of this parallel, however, was at that time supposed to run about twelve miles north of what was subsequently ascertained to be its true location. Between this supposed line of 35° north latitude and the northernmost boundary of Georgia, as settled upon by a convention between that State and South Carolina in 1787, there intervened a tract of country of about twelve miles in width, from north to south, and extending from east to west, from the top of the main ridge of mountains which divides the eastern from the western waters to the Mississippi river. This tract remained, as was supposed, within the chartered limits of South Carolina, and in the year 1787 was ceded by that State to the United States, subject to the Indian right of occupancy. When the Indian title to the country therein described was ceded to the United States by the treaty of 1798 with the Cherokees, the eastern portion of this 12-mile tract fell within the limits of such cession. On its eastern extremity near the head-waters of the French Broad river, immediately at the foot of the main Blue Ridge Mountains, had been located, for a number of years prior to the treaty, a settlement of about fifty families of whites, who, by its ratification became occupants of the public domain of the United States, but who were outside of the territorial jurisdiction of any State. These settlers petitioned Congress to retrocede the tract of country upon which they resided to South Caro- lina, in order that they might be brought within the protection of the laws of that State. A resolution was reported in the House of Repre- sentatives from the committee to whom the subject had been referred, favoring such a course, but Congress took no effective action on the sub- ject, and when the State boundaries came finally to be adjusted in that region the tract in question was found to be within the limits of North Carolina." :4

THE WALTON WAR. That there should have been great confusion and uncertainty as to the exact boundary lines between the States in their earlier history is but natural, especially in the case where the corners of three States come together, and still more especially when they come together in an inaccessible mountainous region, such as characterized the cornerstone between Georgia, South and North Caro-

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lina. And that renegades and other lawless adventurers should take advantage of such a condition is still more natural. It is, therefore, not surprising to read in "The Heart of the Alleghanies," (p. 224-5) that: "In early times, criminals and refugees from justice made the fastnesses of the wilderness hiding places. Their stay, in most cases, was short, seclusion furnishing their profession a barren field for operation. A few, however, remained, either adopting the wild, free life of the chase, or preying upon the property of the community."

WALTON COUNTY. Such a community existed at the com- mencement of the last century on the head waters of the French Broad river in what are now Jackson and Transyl- vania counties. Some even claimed that this territory be- longed to South Carolina. But Georgia, about December, 1803, created a county within this territory and called it Walton county. Georgia naturally attempted to exercise jurisdiction over what it really believed was its own territory, and North Carolina as naturally resisted such attempts. Consequently, there were "great dissentions, . . . the said dissentions having produced many riots, affrays, assaults, batteries, woundings and imprisonments."

THE NORTH CAROLINA AND GEORGIA LINE. On January 13, 1806, Georgia presented a memorial to the House of Rep- resentatives of Congress, complaining that North Carolina was claiming lands lying within the State of Georgia, and asking that Congress interpose and cause the 35th degree of north latitude to be ascertained and the line between the two States plainly marked.

THE TWELVE MILES "ORPHAN" STRIP. This was referred to a committee which, on February 12th, reported that "be- tween the latitude of 35° north, which is the southern boundary claimed by North Carolina, and the northern boundary of Georgia, as settled by a convention between that State and South Carolina, intervenes a tract of country supposed to be about twelve miles wide, from north to south, and extending in length from the western boundary of Georgia, at Nicajack, on the Tennessee, to his northeastern limits at Tugalo, and was consequently within the limits of South Carolina, and in the year 1887 it was ceded to the United States, who [sic] accepted the cession." This territory remained in the posses- sion of the United States until 1802, when it was ceded to the W. N. C .- 3

HISTORY OF WESTERN NORTH CAROLINA

State of Georgia, when the estimated number of settlers on it was 800. It was not known where these settlers came from; but the land had belonged to the Cherokees until 1798 when a part of it was purchased by the whites by treaty held at Tellico. 3 5

WALTON COUNTY, GEORGIA. At the earnest entreaty of these inhabitants Georgia in 1803 formed the inhabited part of this territory into Walton county and appointed commis- sioners to meet corresponding commissioners to be appointed by North Carolina to ascertain and mark the line. But Congress took no definite action on this report.

A SURVEY AGREED UPON. The two States, in 1807, came to an agreement as to the basis of a survey. In a letter dated at Louisville, Ga., December 10, 1806, Gov. Jared Irwin to Gov. Nathaniel Alexander of North Carolina, enclosed sun- dry resolutions adopted by the legislature of Georgia, and announced that that body had appointed Thomas P. Carnes, Thomas Flournoy and William Barnett as commissioners to ascertain the 35th° of north latitude "and plainly mark the dividing line between the States of North Carolina and Geor- gia." On January 1, 1807, Gov. Alexander enclosed to Gov. Irwin a copy of an act of the legislature passed at the preced- ing session assenting to the proposition of Georgia and ap- pointing John Steele, John Moore and James Welbourne commissioners on the part of North Carolina. It was sub- sequently agreed that the commissioners from both States should meet at Asheville June 15, 1807; Rev. Joseph Caldwell, president of the North Carolina University, was the scientist for North Carolina, while Mr. J. Meigs represented Georgia in that capacity.

THE RECORD. In the minute docket of the county court of Buncombe, pp. 104 and 363, the proceedings of these com- missioners are set forth in full, showing that Thomas Flour- noy, one of the Georgia commissioners, did not attend but that on the 18th of June, 1807, the others met at Bun- combe court house and agreed on a basis of procedure, the most important point being that the 35th parallel was to be first ascertained, after which it was to be marked and agreed on as the line. This they proceeded to do, with the result that on the 27th of June, at Douthard's gap on the summit of the

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Blue Ridge, they signed a supplemental agreement to the effect that they had discovered by repeated astronomical ob- servations that the 35th degree of north latitude is not to be found on any part of said ridge east of the line established by the general government as the temporary boundary between the white people and the Indians, and having no authority to proceed over that boundary "in order to ascertain and mark that degree," they agreed that Georgia had no right to claim any part of the territory north or west of the Blue Ridge and east or south of the present temporary line between the whites and Indians; and would recommend to the Georgia Legislature that it repeal the act which had established the county of Walton on North Carolina soil. Both sets of commissioners then agreed to recommend amnesty for all who had been guilty of violating the laws of either State under the assumption that it had no jurisdiction over that territory.

Following is the story as to how they had reached this agree- ment :

THE "ASTONISHMENT" OF THE GEORGIANS. 36 These scien- tists made their first observations at the house of Mr. Amos Justice, which they supposed to be on or near the dividing line of 35° north latitude, but discovered that it was "22 miles with- in old Buncombe," which astonished them; for Mr. Sturges, the Surveyor General of Georgia, had previously ascertained this meridian to be at the junction of Davidson's and Little rivers. But, said the Georgia commissioners in their report to their governor, they were "accompanied by an artist [sic] appointed by the government [of the United States] whose talents and integrity we have no reason to doubt," whose observations accorded very nearly with their own; they "were under the necessity of suspending our astonishment and pro- ceeding on the duty assigned us."

SUPPLEMENTARY AGREEMENT AT CAESAR'S HEAD. When they got to the junction of Davidson and Little rivers and found that they were still 17 minutes north of the 35th meridian, they "proceeded to Caesar's Head, a place on the Blue Ridge about 12 horizontal miles directly south and in the vicinity of Douthet's Gap, which was from 2' 57" to 4' 54" north of the 35th parallel. They then signed the supplementary agreement of June 27.

HISTORY OF WESTERN NORTH CAROLINA

GEORGIA'S SPORTING BLOOD. On December 28, 1808, Gov. Irwin of Georgia wrote to Governor Stone of North Carolina, asking for the appointment of a new commission on the part of North Carolina to meet one already appointed by the leg- islature of Georgia; but Gov. Stone declined in a communi- cation of March 21, 1809, in which he states that it "does not readily occur to us on what basis the adjustment is to rest, if not upon that where it now stands-the plighted faith of two States to abide by the determination of commissioners mutu- ally chosen for the purpose of making the adjustment those commissioners actually made". On December 7, 1807, North. Carolina had adopted and ratified the joint report of the com- missioners of the two States and on December 18 "passed an act of amnesty for offenders within the disputed territory." 37

GEORGIA IS SNUBBED. 37 But Georgia sent still another petition to Congress by way of appeal, and its legislature on December 5, 1807, "put forth an earnest protest against the decision arrived at by their own commissioners." But al- though on April 26, 1810, Mr. Bibb of Georgia, asked the United States to appoint some person to run the dividing line, and it was referred to a select committee on the 27th of the following December, that committee never reported. Georgia must have become reconciled, however, for in 1819 its legislature refused relief to certain citizens who had claimed land in this disputed territory.

CONTOUR MAP AND 35TH PARALLEL. The late Captain W. A. Curtis, for a long time editor of the Franklin Press, said, in "A Brief History of Macon County," (1905) p. 23, 38 that "it has long been accepted as a fact that the southern bound- ary of Macon and Clay counties, constituting the State line between North Carolina and Georgia, is located on the 35th parallel of north latitude. This is either a mistake or else the latest topographical charts are incorrect. According to the charts a straight line starts from the top of Indian Camp mountain on the southern boundary of Translyvania county, 6$4 miles north of the 35th parallel, and dips somewhat south of west until it reaches the Endicott (Ellicut) Rock at the corner of South Carolina exactly on the 35th parallel, and, instead of turning due west at this place, it continues on a straight line for about twenty miles, or to 831/2 degrees west longitude, which is near the top of the Ridge Pole, close by

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Western North Carolina; a history, 1730-1913, Part 3

Author: Arthur, John Preston Publication date: 1973 Publisher: Spartanburg, S.C., Reprint Co Number of Pages: 744

Author: Arthur, John Preston
Publication date: 1973
Publisher: Spartanburg, S.C., Reprint Co
Number of Pages: 744