USA > North Carolina > Western North Carolina; a history, 1730-1913 > Part 36
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SAD ENDING OF A PRISON SENTENCE. 11 About the year 1856 or 1857 a talented and highly respected physician of Hendersonville by the name of Edward R. Jones took umbrage
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at something a tailor by the name of A. J. Fain had said or done, both being politicians to some extent. Jones probably considered Fain his social inferior. At any rate, instead of appealing to the code of honor, as was the custom of that day, Dr. Jones entered Fain's tailor shop and literally carved him to death. He was indicted and the case removed to Ruther- fordton, where the late Colonels N. W. and John W. Wood- fin defended, while the late John Baxter prosecuted. Jones was convicted of manslaughter and sentenced to a term of imprisonment in the Rutherford jail. While serving that sentence he, in a fit of despondency, cut his throat and died.
ASHEVILLE'S FIRST ATTORNEYS. "At its first session in April, 1792, the county court elected Reuben Wood, Esq., 'attorney for the state.' He is the first lawyer who appears as practicing in Buncombe county. Waightstill Avery, the first attorney general of North Carolina, attended at the next session of the court and made therein his first motion, which "was overruled by the court." At this term Wallace Alexander also became a member of the Buncombe bar. Joseph McDowell appeared at October term, 1793, pre- sented his license, took "the oath of an attorney, and was ad- mitted to the bar in said county." On the next day James Holland "came into court, made it appear (by) Mr. Avery and Mr. Wood, that he has a license to practice as an attor- ney-but had forgot them." He too was admitted as an attorney of the court. At January court, 1794, Joseph Spen- cer proved to the court that he had license to practice, and was likewise admitted as an attorney of the court, and at April term, 1795, upon the resignation of Reuben Wood, he was elected solicitor of the county. The next attorney admit- ted was Bennett Smith. Upon motion of Wallace Alexander in April, 1802, Robert Williamson was admitted to the prac- tice.
ROBERT HENRY. 12 "Then, in July, 1802, on motion of Joseph Spencer, and the production of his county court license, Robert Henry, Esq., became an attorney of the court. This singular, versatile and able man has left his impress upon Buncombe county and Western North Carolina. Born in Tryon (afterward Lincoln) county, North Carolina, on February 10, 1765, in a rail pen, he was the son of Thomas Henry, an emigrant from the north of Ireland. 13 When Rob- ert was a schoolboy he fought on the American side of Kings
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Mountain, and was badly wounded in the hand by a bayo- net thrust. Later he was in the heat of the fight at Cowan's Ford, and was very near Gen. William Davidson when the latter was killed. After the war he removed to Buncombe county and on the Swannanoa taught the first school ever held in that county. He then became a surveyor, and after a long and extensive experience, in which he surveyed many of the large grants in all the counties of western North Caro- lina and even in middle Tennessee, and participated in 1799, as such, in locating and marking the line between the State of North Carolina and the State of Tennessee, he turned his attention to the study of law. In January, 1806, he was made solicitor of Buncombe county. He it was who opened up and for years conducted as a public resort the Sulphur Springs near Asheville, later known as Deaver's Springs and still more recently as Carrier's Springs. On January 6, 1863, he died in Clay county, N. C., at the age of 98 years, and was 'undoubtedly the last of the heroes of Kings Mountain. , To him we are indebted for the preservation and, in part, authorship of the most graphic and detailed accounts of the fights at Kings Mountain and Cowan's ford which now exist. He was the first resident lawyer of Buncombe county."
COLONEL DAVIDSON'S RECOLLECTIONS OF ROBERT HENRY.
"I must not omit to mention Robert Henry, who lived, owned and settled the Sulphur Springs. He was an old man when I first knew him, say fifty years ago [that was in 1891]; he had then re- tired from the profession of the law which he had practiced many years. This was before I knew him well. He was tedious and slow in conver- sation, but always interesting to the student. He had been a fine law- yer, and remarkable in criminal cases.14 He could recite his experi- ences of cases in most minute detail. He insisted that, underlying all, there was invariably a principle which settled every rule of evidence and point of law. I chanced to get some of his old criminal law books, such as Foster's Crown Law, Hale's Pleas of the Crown, etc., and I found them well annotated with accurate marginal notes, showing great industry and thought in their perusal. He had a grand history in our struggle for independence; was at Charlotte when the Declaration of Independence was made;13 but, being a boy at this time, he did not understand the character of the resolutions; but said he heard the crowd shout and declared themselves freed from the British government. He afterwards fought at the battle of Kings Mountain and was severely wounded in the hand and thigh, by a bayonet in the charge of Fergu- son's men. "16
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MICHAEL FRANCIS. Col. Allen T. Davidson, in the same paper, has left this record concerning this man, once known as "the Great Westerner":
"Michael Francis was a Scotchman, educated in Edinburgh, a thor- ough scholar, was one of those warm hearted, florid Scotchmen so char- acteristic of Bonnie Scotland. He weighed three hundred and thirty pounds, was one of the most forcible and clear logicians at the bar, was remarkable for his study and observation of the human mind. He was always a complete master of the facts of his cases, and was able to de- duce from them the true intent of the mind of the witness, and had a happy and forcible way of illustrating the methods by which the ordi- nary intellect reaches conclusions. He had studied human nature so closely that he could divine the secret intents of the heart. As a conse- quence, he was a power invincible before a jury. Added to this, he was a thorough lawyer, able to cope with the best, and remarkable for his power of condensation and forcible expression. He was a pioneer in the settlement of many new points of law in this circuit, as many cases ar- gued by him before the Supreme court will attest. He was a great platform speaker and a leader in the formation of political senti- ment. He was a member of the house and senate and discharged every public duty with honor and credit. He was my good pre- ceptor whom I have closely studied and tried to follow."
ISRAEL PICKENS AND OTHERS. 17 The next lawyers admitted in that county were, in the order in which their names are given: Thomas Barren, Israel Pickens, Joseph Wilson, Joseph Car- son, Robert H. Burton, Henry Harrison, Saunders Donoho, John C. Elliott, Henry Y. Webb, Tench Cox, Jr., A. R. Ruf- fin, and John Paxton. These were admitted between Janu- ary, 1804, and October, 1812, from time to time. Probably the most distinguished of them were Israel Pickens, repre- sentative of the Buncombe District in the lower house of the Congress of the United States from 1811 to 1817, inclusive, and afterwards governor of Alabama and United States senator from that State; Joseph Wilson, afterwards famous as a solic- itor in convicting Abe Collins, Sr., and the other counter- feiters who carried on in Rutherford county in the first quar- ter of this century extensive operations in the manufacture and circulation of counterfeit money; and Robert H. Burton and John Paxton, who became judges of the Superior courts of North Carolina in 1818.
DAVID L. SWAIN. 17 The first lawyer of Buncombe county who was a native thereof was the late Gov. D. L. Swain. Born, as has been already stated, at the head of Beaverdam,
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on January 4, 1801, he was educated under the Rev. George Newton and the Rev. Mr. Porter at Newton Academy, where he had for classmates B. F. Perry, afterward governor of South Carolina, Waddy Thompson, of South Carolina, dis- tinguished as congressman and minister to Mexico, and M. Patton, R. B. Vance and James W. Patton of Buncombe county. In 1821 he was for a short while at the University of North Carolina. In December, 1822, he was of the Eden- ton Circuit, and in 1832 became, and for five years continued to be, a representative of Buncombe county in the House of Commons of the State, in 1829 was elected solicitor, admitted to practice law in 1824, became governor of the State. After the expiration of three successive terms as governor, he be- came president of the University of North Carolina in 1835, and continued in that place until August 27, 1868, the time of his death. He was largely instrumental in securing the passage of the act incorporating the Buncombe Turnpike Company, and to him more than to any other man North Carolina is indebted for the preservation of her history and the defence of her fame. His early practice as a lawyer was begun in Asheville. For further details than are given here in regard to the life of this truly great man, the reader is referred to Wheeler's History of North Carolina, and his Reminiscences, and to the more accurate lecture of the late Governor Z. B. Vance on the Life and Character of Hon. David L. Swain.
"OLD WARPING BARS. " 18 Governor Swain was tall and ungainly in figure and awkward in manner. When he was elected judge the candidate of the opposing party was Judge Seawell, a very popular man, whom up to that time, his opponents, after repeated efforts with different aspirants, had found it impossible to defeat. "Then," said a member of the legislature from Iredell county, "we took up Old Warping Bars from Buncombe and warped him out." From this re- mark Mr. Swain acquired the nickname of "Old Warping Bars," a not inapt appellation, which stuck to him until he became president of the University when the students be- stowed upon him the name of "Old Bunk." He continued to be Old Bunk all the rest of his life. While he was prac- ticing at the bar the lawyers rode the circuits. Beginning at the first term of the court in which they practiced, they fol-
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lowed the courts through all the counties of that circuit. Among Swain's fellow lawyers on the Western Circuit were James R. Dodge (afterwards clerk of the Supreme court of the State and a nephew of Washington Irving), Samuel Hill- man and Thomas Dews.
DODGE, HILLMAN, SWAIN AND DEWS. 19 On one occasion these were all present at a court in one of the western coun- ties and Dodge was making a speech to the jury. Swain had somewhere seen a punning epitaph on a man whose name was Dodge. This he wrote off on a piece of paper and passed it around among the lawyers, creating much merriment at Dodge's expense. After the latter took his seat some one handed it to him. It read :
"EPITAPH ON JAMES R. DODGE, ATTORNEY AT LAW.
"Here lies a Dodge, who dodged all good, And dodged a lot of evil; But, after dodging all he could He could not dodge the devil."
"Mr Dodge perceived immediately that it was Swain's writing, and supposed that Hillman and Dews had had some- thing to do with it. He at once wrote this impromptu reply:
"ANOTHER EPITAPH ON THREE ATTORNEYS.
" Here lies a Hillman and a Swain- Their lot let no man choose. They lived in sin and died in pain, And the devil got his Dews." 20
THEIR LIVES A PART OF THE STATE'S HISTORY. "Of the late Thomas L. Clingman, who was for many years a member of the Asheville bar, the late Gov. Z. B. Vance, who was born in Buncombe county, and began life as a lawyer in Asheville, and to whose memory a granite monument upon her public square is now in process of erection, 21 and the late A. S. Merrimon, chief justice of North Carolina, who studied law at Asheville and continued his practice here till about 1867, it is unnecessary to speak here. Their careers have recently closed and are known to all who care for Asheville or her affairs." 2 2
COL. NICHOLAS W. WOODFIN. "Soon after Gov. Swain be- gan the practice, Nicholas W. Woodfin became a lawyer, and served as the connecting link between the old times and the
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modern bar for many years. He was born in Buncombe county on the upper French Broad river, and began life under the most unfavorable circumstances, and for awhile labored under the greatest disadvantages. He became, however, one of North Carolina's most famous and astute lawyers. But few men have ever met with such distinguished success at the bar as he. He was Buncombe's representative in the State senate in 1844, 1846, 1848, 1850, 1852. In the course of his career he acquired a large fortune, and owned great quanti- ties of land in Asheville and its neighborhood. With the practice of law he carried on an extensive business as a farmer, in which he was famous for the introduction of many useful improvements in agriculture. He it was who first introduced orchard grass in Buncombe county, and turned the attention of her farmers to the raising of cattle on a large scale and the cultivation of sorghum. " 2 3
He was born in old Buncombe, now Henderson, county, January 29, 1810, and was married to Miss Eliza Grace McDowell at Quaker Meadows, near Morganton, the 16th of June, 1840, afterwards residing on North Main street, Ashe- ville, N. C., now a girls' school, till his death, May 23, 1875, she surviving him less than one year. He was always identi- fied with any movement for the uplift and progress of his State, and especially of Buncombe county. Much has been written of his success as a lawyer, his humanitarianism, his devotion to his family and his care of his aged parents.
COLONEL JOHN W. WOODFIN. He was born in what is now Henderson county in 1818, married Miss Maria McDowell at Quaker Meadows, and lived in Asheville. He was a bril- liant lawyer, a brave soldier, and formed one of the first com- panies in Buncombe county, saying he had enlisted for the war. He was killed by Kirk's men at Hot Springs in the fall of 1863.
THE FIRST TRIAL. 24 The first case tried in Buncombe county was that of the State v. Richard Yardly, in July, 1792. He was indicted for petit larceny, was convicted, and appealed to Morgan [Burke] Superior court. The first civil suit was that of W. Avery v. William Fletcher, which was tried by order of the court on the premises on the third Monday in April, 1795, by a jury summoned for that purpose. The first pauper pro- vided for by the court was Susannah Baker with her child.
W. N. C .- 25
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The first processioning was in April, 1776, when William Whitson the processioner thereof returned into court "the processioning of a tract of two hundred acres of land, on the east side of French Broad river about one mile and a quarter from Morristown, the place whereon James Henderson now lives," dated April 20, 1796. This embraces the property lying on Park avenue and in that vicinity. Its eastern boun- dary line is formed in part by the Lining Branch, the small branch immediately eastward of, and for some distance par- allel with, Depot street. The first will admitted to probate therein was that of Jonas Gooch in July, 1792. 25 The first dower assigned was to Demey Gash, widow of Joseph Gash, April, 1805."
To SUPPRESS VICE AND IMMORALITY. 26 Mr. Sondley men- tions also that at the October term, 1800, the Rev. George Newton, the first Presbyterian preacher in Buncombe, pre- sented to the court a petition from the Presbytery of Con- cord which "humbly sheweth" many gross immoralities as abounding among our citizens all of which were in violation of laws already enacted. Wherefore, they asked that those laws be "carried into vigorous execution." At the January term, 1801, the court resolved to exert itself to suppress "such enormous practices."
JUDICIAL SANCTION OF A LOTTERY. 27 In January, 1810, the court ordered that the managers of the Newton Academy lottery "come into court and enter into bond for the discharge of office and took the oath of office." This lottery was prob- ably for educational purposes.
"TWENTY-FIVE LASHES ON HIS BARE BACK, WELL LAID ON." 27 Such was the order of the court in 1799, when the jury had found Edward Williams guilty of petty larceny. This was to be inflicted at the public whipping post; but an appeal was "prayed, " and it may be that Edward Williams got off.
ADJUDGED FIT "TO BE SET FREE. " 27 At this term the court adjudged that Jerry Smith, a slave belonging to Thomas Foster, was a fit person to be set free and emancipated, and the clerk was ordered to issue a license or certificate to the said Jerry Smith for his freedom "during his, the said Jerry's, natural life."
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BUNCOMBE'S FIRST FAIRS. 27 At the July term, 1799, the court ordered two fairs to be established in Buncombe to commence the first Thursday and Friday in November fol- lowing and the first Thursday and Friday in June following, and continue on said days annually, "without said court should find it more convenient to make other alterations."
FIRST CASE OF MOTHER-IN-LAW. 27 At the July term, 1802, it was ordered that the deposition of Caty Troxell, to the effect that her daughter Judith had married John Morrice on the nineteenth and twentienth of May, 1796, and that for two years they had lived together "for the space of two years in all possible connuptial (sic) love and friendship," after which, "without cause assigned or any application for a divorce," he had "absconded and has never been heard of by his said wife or any other person." In the description which followed he is described as having been at that time "upwards of twenty large odd years of age . with his speech rather on the shrill key."
POWER OF COUNTY COURTS. 27 " All the elections to county offices at this time from sheriff and clerk, register of deeds, cor- oner, entry taker, surveyor and treasurer, down to treasurer of public buildings and standard keeper, were made by the county court.
SUPERIOR COURTS. 27 "It will be remembered, too, that at the beginning the Superior courts were held at Morganton. In 1806, the legislature of the State, after reciting that 'the delays and expenses inseparable from the constitution of the courts of this State do often amount to a denial of justice, the ruin of suitors, and render a change in the same indispen- sibly necessary,' enacted 'that a Superior court shall be held at the court house in each county in the State twice in every year,' and divided the State into six circuits, of whicht he last comprised the counties of Surry, Wilkes, Ashe, Buncombe, Rutherford, Burke, Lincoln, Iredell, Cabarrus and Mecklen- burg, and directed the courts to be held in Buncombe the first Monday after the fourth Monday in March and Sep- tember."
RANDALL DELK'S CONVICTION. 27 "Thus in 1807 was held Buncombe's first Superior court, in the spring of that year. The first trial for a capital offence in Buncombe county was that of Randall Delk. This trial occurred in 1807 or 1808.
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Delk had fled after the commission of the offence to the In- dian nation, but he was followed, brought back, tried, con- demned and hung. This was the first execution in Buncombe county, and took place just south of Patton avenue opposite to the postoffice. It is said that soon after a negro was exe- cuted in the county, but the third capital execution in Bun- combe is the most celebrated in her annals.
JUDICIAL MURDER. 27 "Subsequent to the execution of Delk and between the years 1832 and 1835, inclusive, Sneed and Henry, two Tennesseeans, were charged with highway robbery committed upon one Holcombe at the Maple Spring, about one-half mile east of the [former] city water works, on the road until recently traveled up Swannanoa. This was then a capital offence. They strenuously insisted that they had won from Holcombe in gambling the horse and other articles of which he claimed that they had robbed him. They were convicted, however, and hanged in the immediate vicintiy of the crossing of East and Seney streets. The field here was until recently known as the Gallows Field. The trial created intense public excitement, and it has always been the pop- ular opinion that it was a judicial murder. It is said that after their conviction they sent for Holcombe, who shrank from fac- ing them, and that the subsequent life of this man was one of continued misfortune and suffering."
COL. A. T. DAVIDSON'S RECOLLECTION OF THIS EXECU- TION. 28 "The first time I ever was in Asheville was in 1835 when I was sixteen years of age. It was on the occasion of the hanging of Sneed and Henry. The town was then small; to me, however, it seemed very large. I remember distinctly Wiley Jones, sheriff, and Col. Enoch Cunningham, captain of the guard. The religious services at the scaffold were conducted by Thomas Stradley and Joseph Haskew. What a surging, rushing, mad, excited crowd! This was my introduction to the county."
DR. J. S. T. BAIRD'S REMINISCENCES. About the year 1855 Know-Nothingism was rampant even in Buncombe, and Dr. J. S. T. Baird was temporarily won by its wiles; but he soon deserted. From 1853 to 1857 Dr. Baird was clerk of Buncombe county court, and was called to attend a term at Jewel Hill, Madison county. Neely Tweed was the clerk and Ransom P. Merrill sheriff; the latter was killed by the
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former at Marshall in a political quarrel after the Civil War. Sheriff Merrill made a return on a fi. fa. as follows : "Trew Sarch made. No goods, chattles, lands or tenements to be found in my county. The defendant is dead and in hell, or in Texas, I don't know which." For this facetiousness Judge Caldwell summoned the sheriff to the bar and gave him a reprimand. Dr. Baird defeated Philetus W. Roberts, incum- bent, in 1853, J. M. Israel in 1855, and Silas Dougherty for clerk of court in 1857.
The following recollections of incidents and members of the bar are taken from Dr. J. S. T. Baird's sparkling "Reminis- cences" [about 1840] published in the Asheville Saturday Register in 1905.
COURT HOUSE.
"The court house was a brick building two stories high and about thirty-six by twenty-four feet in dimensions. The upper room was used for court purposes and was reached by a flight of stone steps about eight feet wide, and on the front outside of the building, commencing at the corners at the ground and rising gradually till they formed a wide land- ing in front of and on a level with the door of the court room. The judge's bench or pulpit, as some called it, was a sort of box open at the top and one side, with plank in front for the judge to lay his 'specks' on. He entered it from the open space in the rear and sat on an old stool-bottom chair, which raised his head parely above the ‘spectacle board.' There was room enough in this little box for such slim men as Judge J. L. Bailey, David Caldwell, David Settle and others of their build, but when such men as Judge Romulus M. Saunders came along he filled it plumb 'up.' Most of the lower story was without floors or door shutters and furnished comfortable quarters for Mr. James M. Smith's hogs and occasionally a few straggling cattle that could not find shelter elsewhere.
IN TERROR OF THE WHIPPING-POST.
"It will be remembered that in those days the great terror set up before rogues was the whipping-post where the fellow convicted of lar- ceny got thirty-nine lashes well laid on his bare back with long keen switches in the hands of the sheriff. This writer never had the heart to witness but one of these performances. A fellow by the name of Tom G. had been convicted of stealing a dozen bundles of oats and ordered by the court to be whipped. The sheriff, Pierce Roberts, took this writer and some other boys, and went to Battery Park hill, which was then a dense chinquapin thicket, and there cut eight of the nicest and keenest switches to be found and, returning, took Mr. G. from the jail, placed his feet and hands in the stocks, and stripping him 'stark naked' from neck to hips, laid upon his bare back thirty-nine distinct stripes from some of which the blood oozed out and ran down his back. Five
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strokes were given with each switch save the last, and with it four. The sheriff was merciful and made his strokes as light as possible, yet he gave him a blooming back to carry out of the state with him, for he went in- stanter.
"M" FOR MANSLAUGHTER.
"In that day the penalty for manslaughter was branding in the palm of the right hand with a red hot iron shaped to the letter M. I saw one fellow taken through this barbarous process and this was enough for me. He was convicted and ordered to be branded. The sheriff went to the tinner's shop and procured a little hand stove filled with good live coals and brought it into the court room and, putting his branding iron into it, soon had it to a white heat. In the meantime the prisoner's hand and arm were securely strapped to the railing of the bar, and then all things were ready. During the branding the prisoner was required to repeat three times the words : 'God save the state,' and the duration of the branding was limited by the time in which he could repeat those words. In this case the prisoner's counsel, General B. M. Edney, who was a rapid talker, had gotten the consent of the judge, inasmuch as the prisoner was much agitated and slow spoken anyway, for him to repeat the words for his client. When the hot iron was applied, for some reason, the general got tangled and his mouth did not go off well, but the iron was doing its work and the fellow was writhing and groaning all the same. At this juncture the general sprang forward, and knocking the iron aside, said : 'Mr Sheriff, you have burnt him enough.' The judge then taking his hands from over his face, heaved a sigh of relief and ordered the prisoner turned loose. A story was told of a fellow who, a few years before this, was branded by the sheriff whose name was David Tate. The prisoner was a man of wonderful nerve. He felt very resentful toward the sheriff whom he considered responsible for all his suffering. When the iron was applied he repeated the required words three times in a firm voice. Saying : 'God save the State, God save the State, God save the State,' and then raising his voice to a high pitch he yelled out : d-n old Dave Tate'! This last is tradition. I will not vouch for the truth of it. Yet grotesque scenes often charac- terized the courts of that day.
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