USA > Tennessee > Old times in Tennessee, with historical, personal, and political scraps and sketches > Part 11
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had hoped we would fail. The jury were sworn and the pleadings read. Guild then introduced the plaintiff's proof; read the grant of the land from the State of North Carolina and the deeds drawn to the plaintiff, connected with the grant, showing that he had the legal title to the land. That much having been established, the next thing was the proof as to the damage he had sustained. Guild knew the dangerous point in the lawsuit was that the plain- tiff never had the actual possession, it being wild land, and kept dark on that point. He introduced only four witnesses to prove the cutting of the timber and the value thereof. The first was interrogated very closely as to the cutting of some rail-timber and its value ; the second, as to the cutting of five board trees and their value ; the third, as to the cutting of much fire wood and its value. Guild consumed considerable time in the examination of these witnesses. The Judge began to manifest impatience at this consumption of time, and at length he observed that there was a point in the case that I was overlooking, and that was the actual possession. I stated that I would make every thing satis- factory before I was through. "Well, sir," said he, "come to the important point in the case." "I presume," I replied, " the Judge will permit the jury to hear the proof, as they are to pass on it." " Well, sir, proceed," he said petulantly. I then went on with the examination of the third witness, interrogating him particularly about certain ash trees that had been cut down, and the value of the same. The Judge grew more restive, and I saw that his bristles were up. Striking the bench with his big stick, he said peremptorily, " Call your next witness, sir." The fourth witness took the stand, and I interrogated him as to the cutting down of a number of poplar trees for house-logs, and their being hauled away by the defendant, and their value. The Judge in- terrupted me by asking in a very emphatic tone, " Why do you not prove your possession, if you had any ?" and then added, "I will cut you off right here. The court is not going to be fooled with any longer. Why do you not go to the possession ?" I replied, because I did not care whether the plaintiff had actual possession or not ; he had a right to recover for the trespass upon his lands. I added that I would close the proof here, and pro- posed to argue the case before the jury. The Judge said his mind was made up on that point of the law. I replied that if the court
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would be governed by the authorities, the mind of the court would not be made up or announced, and I asked if the court would be controlled by the law. "Certainly, sir," responded the Judge; " but I do not think you can instruct me as to the law." I replied that perhaps the books could. "Certainly," replied the Judge. I then commenced to argue the case, and took up con- siderable time in referring the jury to the proof as to the cutting of the timber and its value, and the amount of damages they were compelled to award the plaintiff. As to the law, I observed that the Judge had been led astray by applying the English rule to the wild lands of America. In England, all the lands were in- closed either by hedges or ditches, so there were no wild lands ; and hence by the English rule, to maintain an action, the party must be in actual possession. I stated that it was a general prin- ciple of law that for all injuries to others, the law afforded a remedy ; that it was impracticable in America, where most of the lands were in the forest, to have them inclosed, and consequently the title vested in the holder or owner constructive possession, and for trespasses upon the same the action of quarie clausum frigit could be maintained, and quoted an early Kentucky decision, reported in Little's Reports, in support of this position. The Judge, looking at John H. Martin, who came from Kentucky to practice law in Tennessee, asked with a sneer, "What authority is that you read ?" I replied, "Little's Kentucky Reports." " No authority with this court, sir," said the Judge; and then he added sarcastically, " I will venture to say that Little's Reports were brought to Tennessee by some poor Kentucky lawyer, who brought the book in his saddle-bags. It is no authority with me, sir." I said it seems to have good, hard sense in it, which is the touchstone of the law; that all laws should be made to suit the condition of society and the country, and that sensible Judges should so hold. "Young man," broke in the Judge, "you are an impudent fellow, and if you do not mind I will cut you off!" " Well," I said, " I have another authority, but I do not know whether it will have any weight with the court, who appears to be unusually hard-headed." " What is it?" demanded the Judge. I replied, " It is Judge Haywood ; what say you to him ?" Judge Mitchell said he was good authority, and then passed a high eu- logy upon Judge Haywood; that he had appeared and argued
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great cases with him at the bar, and argued cases before him while he was on the Supreme Bench. I said, " I am glad to hear that you appreciate Judge Haywood so highly, for he is very distinct on this point of law." " Well read it, sir," said the Judge. I then read from 2 Haywood's North Carolina Reports, where Judge Hall had decided that the action could only be maintained when the plaintiff had actual possession, but in a note Judge Haywood maintained that the English rule should not apply to the wild lands of America. That note was put in the form of a quarie. But I did not read the Latin word. The Judge asked, "Is there not something at the head of that note ?" I replied that I was only an English scholar; that I did not understand the Latin, Greek, or Indian language ; and that there was some- thing at the head of the note which was " a sealed book " to me. "Spell it, sir," roared the Judge. I did so. "Why you dirty fellow," shouted the Judge, that is quarie, expressive of doubt as to the rule. Now, sir, you want to impose upon this court. I have a great notion to send you to jail, and put you where the dogs can't bite you!" I replied that before that was done, I wished, in justice to my client, to proceed with my argument. " Well, sir," said the Judge curtly, "be brief, or I will cut you off at the ankles ; I will cut you off at the knees, and if necessary, I will cut you off higher up!" I replied that the constitution provided that a man should be heard by himself or counsel in all suits involving his rights, and I wished to know if he intended to trample upon the constitution and violate that cherished prin- ciple. "Proceed, sir," said the Judge, " but none of your brass impudence before me." I told him I did not know what brass impudence were, and that I had always been regarded as a very modest young man. " Well, sir," demanded the Judge, " what further have you to say?" I inquired whether a plain act of Assembly upon this contested point would have any weight with the court. The Judge said, "Certainly, sir. If you have such an act read it." I then read very slowly and solemnly, the act of Assembly providing that in all cases before Justices, where the damage does not exceed fifty dollars, the case should be tried upon principles of equity, and justice be done. The Judge fairly boiled over with wrath, and striking the bench with a big stick demanded, " Do you read that act of Assembly as applicable to
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this case?" I replied, "Certainly I do, sir. I claim only forty- five dollars damages, and the case must be tried upon principles of equity and justice, if you regard the law." The Judge was in a towering rage of passion, and remarked with much vehemence, " Well, sir, I have a strong notion to order you to be taken to yon horse-rack and there receive thirty-nine lashes upon your bare back, well laid on !" I retorted, "You will find no one so degraded as to attempt to carry such an order into execution ; and as for yourself, you dare not attempt it." " Well, sir," asked the Judge, " do you challenge me to combat ?" I replied that I did not challenge him to fight, but that if he was aggrieved, I would accept his call and give him persenal satisfaction. The Judge then blazed away at the jury, denouncing the case as a trial strain as to the title, that the plaintiff had shown no actual pos- session, and ordered a verdict for the defendant. It was the most disgraceful conduct I ever witnessed on the part of a Judge, and I venture the assertion that such a scene was never witnessed iu any other court in Tennessee.
The conduct of Judge Mitchell had been so outrageous and tyrannical that the bar determined to put a stop to it at all haz- ards. The Judge and the lawyers from other portions of the cir- cuit boarded at Hallum's tavern. It was agreed among the law- yers that they would hold a mock court that night in a room ad- joining that occupied by Judge Mitchell, and have all the scenes of the day re-enacted so that he might appreciate how supremely ridiculous, not to say offensive, he had made himself by his over- bearing manner. James Rucks was chosen the Judge to repre- sent Mitchell, and took his position at a table with a big stick, surrounded by the officers of the court and citizens of the town. All the scenes of the day were gone over, with Martin, and For- ester, and Marchbanks, and Caruthers, and Guild, performing their respective parts. Judge Rucks represented Mitchell to the life; his manner and voice and rap on the table being those of the Judge. The jury and witnesses, and parties from a distance attending court, besides a number of invited guests, were pres- ent, and greatly enjoyed the performance. The "take off" was so good and so true to the life, that it was greeted with rounds of applause. The next morning the Judge breakfasted quite early, and the landlady informed us that he was in a terrible bad
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humor, and raged like a caged lion. He declared that upon the opening of the court he would five all engaged in the burlesque of the night previous, and send the leaders to jail. The news spread, and the court-house was filled with spectators. It was agreed that all the lawyers should take seats within the bar, but should make no motions touching the cases in which they were employed as counsel on the calling of the docket. Martin and Guild were to take seats on the Judge's bench, one on either side of him, and if he should fine any of those engaged in the pro- ceedings of the night previous, that should be the signal for Martin and Guild to seize and carry him to the river, about a hundred yards distant, and give him a good ducking, the lawyers attending in a body to see it well done. The Judge saw from the countenances of the lawyers and the positions they had taken in the court-house, that he had stirred up a hornet's nest, and having had some intimation of our purpose, made no allusion to what had occurred the night previous. During the remainder of the court his bearing was most courteous, bordering upon subserviency. This little episode cured the Judge of his over- bearing disposition, as he afterward behaved himself well upon the bench, and ultimately became a preacher of the gospel.
Since the election of Judges by the people under the constitu- tion of 1834, we have had no such tyrants on the bench; on the contrary, we have had courteous and good Judges, which shows the wisdom of giving the election of judicial officers to the peo- ple. They have exhibited a capability for selecting good officers which could not be excelled by the Legislature. 9
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VIII.
THE FLORIDA WAR-SCENE OF THE DADE MASSACRE -- LU- DICROUS EPISODE AT FORT DRANE-INCIDENTS OF THE " WILD HUNT" FOR INDIANS.
DURING the administration of Gen. Jackson the Secretary of War called for a brigade of volunteers from Tennessee to fight the Seminole Indians in Florida, who had made war upon the inhabitants of that State and Georgia. Wm. Trousdale, Jo. C. Guild, and John H. Henry, each raised a company in Sumner county ; Wm. B. Campbell, one in Smith county; Jesse Finley, now in Congress, one in Wilson county; James Grundy, Capt. Chandler, and Gen. Joel A. Battle, one each in Davidson county ; Capt. Lemuel Henry, one in Robertson, and Capt. Tatum, one in Dickson, which constituted the second regiment of one thousand men. There were also raised two companies in Maury county, two in Giles, and one each in Rutherford, Williamson, Franklin, Lincoln, Madison, and Gibson, which constituted the first regi- ment of one thousand men. These volunteers rendezvoused at Fayetteville in June, 1836, and then completed their organiza- tion. Wm. Trousdale was elected Colonel, Jo. C. Guild, Lieu- tenant-Colonel, Capt. Joseph Meadows, first Major, and William Washington, second Major, of the second regiment. J. B. Brad- ford was elected Colonel, Terry H. Cahal, Lieutenant-Colonel, Capt. Powhattan Gordon, first Major, and Capt. Goff, second Major of the first regiment. Gen. Robert Armstrong, who had distinguished himself in Gen. Jackson's campaign, was appointed by the President General of the Brigade. Gen. Hickman was appointed Quarter Master General, and Capt. Willie B. Gordon and Maj. Upshaw Regimental Quarter Masters.
Having completed our organization and made every prepara- tion to move, we marched, on the 4th of July, directly for Co- lumbus, Georgia, which had been threatened by the Indians, who had committed many murders and depredations upon the citizens
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of that section. We were detained several weeks upon the Tal- lapoosa, where there was a large encampment of Creek Indians, including men, women, and children, who, under the treaty with that tribe, had agreed to go to the homes assigned them West of the Mississippi. Trouble with them was anticipated, but the presence of the Tennessee troops caused them reluctantly to move to the reservation set apart for them. It was almost im- possible for an army to live, much less to carry on war amidst the hammocks, lakes, and swamps of the Peninsula during the sum- mer, which was now upon us in the full blaze of its great heat, in consequence of the delay incurred in the removal of the Creeks. Gen. Jackson ordered, through the Secretary of War, that the brigade should not move in Florida until the month of September. The cause of troops being sent to Florida was the cruel massacres and aggressions of the Seminoles upon the whites. Through their chiefs they made a treaty with the United States to remove West of the Mississippi, and to be received back by the Creeks, provided that tribe would receive them, and they should be pleased with their new home. That assent was ob- tained, and the chiefs sent on to examine the country, reported that they were well pleased. Hence, by the treaty of Payne's Landing, it became obligatory upon the Seminoles to remove. By the terms of that treaty, one-third were to remove each year until all had gone. Every preparation was made for their re- moval, but under one pretext or another, they failed to comply with their plighted faith, and no portion of them removed to the reservation West of the Mississippi. The removal was to com- mence in 1833, and continue until 1835, when all should go to their new home. As the year 1835 was drawing to a close, and while the Government was urging a compliance with their treaty obligations, the people along the frontier were startled by a re- port of a rising among the Indians. On the 28th of December, 1835, a young, dashing chief, a half-breed, powerful, athletic, and of remarkable address, appeared upon the scene. This young chief was Osceola, and he headed the revolt. He and a number of his tribe had been visiting the forts and towns of Florida, and had purchased large supplies of arms and ammunition under the pretense of using the same in killing game in the West, but really for the purpose of plunder and murder. He so artfully
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carried out his plans, that he deceived the United States Agent, Gen. Thompson, and Lieut. Smith at Fort King. He partook of the General's hospitality, was interrogated as to the rumor of a hostile feeling on the part of his tribe, and Osceola assured him that the rumor was unfounded. So thoroughly was the Gen- eral satisfied of the sincerity of Osceola, that he presented him a fine rifle and ammunition to be used when he should arrive in the far West in the chase or in hunting for small game. Ascer- taining that Maj. Dade, with his command of one hundred and twelve men, had been ordered up from Tampa Bay, and was then on the trail to Fort King, Osceola took leave of Gen. Thompson on the morning of the 28th of December, 1835, and he and his followers left the fort on their ponies. Knowing that Gen. Thompson was in the habit of taking a morning walk, they lay in ambush in sight of the fort until the General, accompa- nied by Lieut. Smith, came out for a walk, and as they passed along, treacherously shot and killed them. They then returned to the fort and massacred five soldiers and two express riders, and then posted off to meet Maj. Dade. Meantime the chiefs of the Seminoles had been apprised of what had been done, and the situation of affairs. Osceola was soon joined by Billy Bow Legs, Tiger Tail, and Mad Anthony, with nearly one thousand war- riors, who lay in ambush for Maj. Dade. I have been upon the ground where they met Maj. Dade, and where one of the most heartless massacres occurred. The trail or road passed through a beautiful grove of tall pine trees. The soil was covered with a long tough grass, as high as one's head, of the color and tex- ture of the hedge grass, but much more luxuriant. The Indians were concealed in this grass, on both sides of the road. Maj. Dade had divided his force, and was himself leading the van guard of forty men, which was about fifty yards in advance of the rear guard. The Indians waited in breathless silence until their two lines embraced the van guard, when, with death-deal- ing aim, they poured a murderous fire into the ranks of the un- suspecting party. Maj. Dade and nearly all who composed the van guard were killed by the first volley. Immediately a galling fire was opened upon the rear guard. The oxen attached to the artillery were killed, and in the confusion the cannon could not be immediately brought to bear upon the attacking party. Those
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who survived this terrible onset returned the fire with telling effect, while the cannon was got in position and a raking fire opened upon the murderous savages. An Indian can stand the rattle of musketry, but nothing alarms him like the roar of can- non or a charge with fixed bayonets. The Americans were too weak to make a charge upon the lines of the enemy, but the hail of grape and balls, accompanied by the booming of cannon, sent the Indians on a wild scamper. I noticed that the pine trees were cut by cannon balls and grape shot in every direction for a mile. This pause in the bloody battle gave the Americans time to cut down some pine trees that fell upon one another so as to form a triangle, which served as a temporary breastwork. In this fortification the cannon were placed in position, and prepar- ations made to give the Indians a warm reception by the few men who were able to do effective fighting. After the lapse of about an hour, the Indians returned and made a desperate charge upon the position held by the Americans, but were repulsed with great loss. The Americans had fired upward of one hundred rounds, and their ammunition began to grow short, and the loss of life in the fort was so great that the fire slackened, when a desperate charge was made by the Indians, which the fire of the Americans checked until the last ball was sent on its death-deal- ing mission, and all the ammunition for the musketry was ex- hausted. The Indians discovering this from the firing having entirely ceased, made another charge upon the fort, in which they came like an avalanche with nothing to resist its force. Of course this onset was successful; they carried the fort, and all who sur- vived were inhumanly butchered, except four, and they would have shared the fate of their comrades, but they had the presence of mind, at this critical moment, after having exhibited a cour- age and daring unsurpassed in the annals of the world, to con- ceal themselves under the dead bodies of their comrades and feign death. The savages and the negroes with them stabbed or cut the throats of all who moved a muscle or showed the least sign of life. Fortunately, these four lay at the bottom of piles of the dead, and three of them made their escape and arrived at Fort King to tell the sad tale of the massacre of their comrades. I saw one of the survivors while in Florida, from whom I ob- tained these details. After the work of cutting the throats of
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the living, the dying, and the dead was completed, Osceola mounted upon the logs of the fort and made a most vehement speech, as was evident from his manner and gesticulations. Not understanding the Seminole language, my informant did not. know what Osceola said. But, without stopping to rob the dead of rings, watches, or any thing else, the Indians immediately re- tired toward the Wahoo Swamp, which was about two miles West of the scene of this massacre. The four soldiers concealed be- neath their dead comrades, now raised up their heads simultane- ously, and looking about, saw no Indians. Silence reigned over the field of carnage, interrupted by no living creature save theni- selves. About one hour before sunset the four survivors took their departure, two going in the direction of Tampa Bay and. the other two making for Fort King, each being about forty miles distant. One of the divisions was seen by an Indian war- rior, who was mounted and armed, and who pursued them. In. their effort to escape they become separated, and one was over- taken and killed by the Indian. The other concealed himself in the grass, and thus eluded the Indian, who searched for him thoroughly, several times passing very near to his place of con- cealment. Finally, the Indian abandoned the search, and gal- loped off toward the Wahoo Swamp. Night coming on, the wounded soldier left his hiding place and hobbled along as best he could that night. Lying concealed during the day and trav- eling only at night, he arrived at Fort King on the fourth day, bleeding, hungry, and exhausted.
The same chiefs, hearing of the advance of Gen. Clinch, at- tacked him at the crossing of the Withlacooche at three o'clock in the afternoon of the next day, having traveled fifty miles dur- ing the night and morning. Gen. Clinch had crossed the river with about half of his command when the Indians made a furi- ous assault upon him, and a fierce battle ensued. Gen. Lee Reed, born in Tennessee, the son of Capt. Billy Reed, an old pioneer and Indian fighter, who was badly wounded in the bat- tle of Defeated Creek, in Smith county, Tennessee, in 1788, had settled in Florida, and was in command of the Florida volun- teers who were with Gen. Clinch. Gen. Reed hurried across the river with the remainder of the forces, and gave timely and effective aid to Gen. Clinch, who was in most imminent danger.
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Gen. Reed, with his fresh troops, charged the Indians in gallant style, driving them from their position. Thus defeated, they were forced to retire from the contest. Gen. Reed was severely wounded, having been shot through the breast.
Gen. Scott was ordered to Florida in the winter of 1835, with a large command from the regular army, consisting wholly of infantry. He marched across the peninsula, establishing forts at various points, and looking for and expecting to meet the enemy in battle. The Indians barrassed his army on the march, and especially at night, but were sharp enough to avoid a battle on all occasions.
This was one of the most difficult, perplexing wars in which the United States had ever been engaged. It continued for many years, at great cost of life and treasure. The Seminoles were an offshoot of the Creeks, the most treacherous and fero- cious of all the tribes, who emigrated to Florida after what is known in our history as the Creek war, which resulted so disas- trously to them. The Seminoles occupied the peninsula, which is a level, miasmatic country, covered with hammocks that one could scarcely penetrate with an Arkansas tooth-pick, interspersed with stretches of pine woods, lakes, swamps, and lagoons, ex- tending for three hundred miles to the Keys of Florida. The theatre of this war is of great extent, all in the sultry region, below thirty-one degrees of North latitude. The soldier stands at midday without casting a shadow in any direction. The coun- try is infested with insects, alligators, and venomous reptiles. Military operations are impracticable for eight months in the year. The Seminoles knew all the by-paths, as well as the deep recesses of the swamps, in which they found hiding places, so they avoided an open fight, and when caught out of these swamps, having the bottom and speed of the race-horse, they made their escape. It was utterly impossible for a General to make a bril- liant campaign or even sustain his former reputation in Florida. Gen. Scott found it so, and left the country in disgust, without being able to bring on one engagement. "He took with him nearly his whole army, leaving only forty men to garrison a fort erected on the Withlacooche. They were surrounded by hostile Indians, and were thus cut off from all communication with their friends; their provisions were nearly exhausted, and they had
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