USA > Tennessee > The civil and political history of the state of Tennessee from its earliest settlement up to the year 1796 : including the boundaries of the state > Part 2
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An anecdote has been given me by Mr. Joseph Ramsey, of Bedford Coun- ty, a gentleman of high character, and who remembers Judge Haywood well. Mr. Ramsey is ninety-two years old, but has all his faculties. The anecdote illustrates Judge Haywood's idea of the obligations of the lawyer. Mr. Ramsey says: "That one Sampson Williams and one Hopkins had a
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land lawsuit. Judge Haywood was Williams's lawyer, and introduced a witness to prove the boundary, and that he was a chain carrier in making the survey, all of which he did prove very fully. On cross-examination, counsel asked him if he saw the new corner made? The answer was ' No!' ' But,' said the lawyer, 'you were there when they ran all the lines were you not?' . The answer was: 'Yes!' 'And you didn't see the new corner made, and the old one destroyed?' 'No, I did not,' said the witness. 'Well now,' said the lawyer, 'can you explain how it is that you did not see the new corner made?' Hesitating, the witness said: 'They told me to turn my back when they made the new corner.' Judge Haywood immediately got up, put on his hat, and walked out of the court-house, after saying: 'Mr. Williams, I was employed by you to sce that you got your rights, and not to aid you as a land pirate.'"
One item of Judge Haywood's "History of Tennessee " impressed me as to his painstaking habits, and as to his inclination and powers of research.
After I was retained in the case of the State of Virginia vs. Tennessee, in the Supreme Court of the United States, failing after much labor, to get the early history of the dispute from other sources, I found in "Haywood's His- tory of Tennessee " a full and complete statement of the question from the time the dispute arose, in the year 1700, between the colonies, tracing with great particularity every step and every attempt at a settlement until the com- promise in 1802. It is a remarkable, concise, and no doubt truthful history of one of the most troublesome controversies that ever arose between the two governments, and at the end of nearly two hundred years we are indebted alone to Judge Haywood for preserving for us an accurate history of the long contest.
Judge Haywood wrote about 122 years after the controversy commenced, and hence it was no doubt a matter of great labor to collect all the facts. In a conversation with Judge N. Baxter, Sr., he gave me the following interest- ing sketch of Judge Haywood's appearance as he sat on the bench, and also his idea, most graphically and accurately stated, of the relative merits of Hay- wood and Felix Grundy: "He was the first judge I ever saw, and held the first court I ever saw in session. This was at Charlotte, Dickson County, about 1822 or 1823. I was much impressed with his personal appearance, and the picture photographed on my memory, as I now see it through the vista of more than sixty years as he sat on an ordinary split-bottom chair, is that he was a very large man and very corpulent. His arms, his legs, and his neck were all thick and short, his abdomen came down on his lap and nearly covered it to his knees. His head, which rested nearly on his shoulders, was unusually large and peculiarly formed. His under jaw and lower face looked large and strong, and his head above his ears ran up high and somewhat conical, and viewed horizontally it was rather square than round. His mouth was large, expressive, and rather handsome. You say of him 'that as an advocate true history will place him as the only peer of Felix Grundy.' From all I know of Judge Haywood as a practitioner of the law, gathered from every source, from tradition and inferred from his judi- cial opinions, I had not supposed that the analogy between the two was very striking. Haywood was, doubtless, a very successful practitioner, but won
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his success with the court by his astute and superior knowledge of the law and with the jury by his great ability to estimate the value of his facts and present them in such array as made his argument intelligible and unanswer- able, and thus enforced the accord of the jury nolens rolers. His arguments were addressed rather to the intelligence and judgment of the jury than to their passions or to any mere sentiment or prejudice. On the other hand, Judge Grundy, while no such astute and profound lawyer as Haywood was, and could not argue dry facts to that logical conclusion that Haywood could, yet he greatly surpassed Haywood in his knowledge of men. He may not have known as well as Haywood what he was talking about, but he knew infinitely better who he was talking to. And though his arguments were not logically conclusive, they were overpoweringly persuasive and winning. Haywood forced courts and juries to decide cases for him because they did not see any way out of it. Grundy let them decide cases for him because they wanted to and regarded the privilege as a boon. Grundy knew every man on the jury, not by name, perhaps, but he knew the man and the stuff he was made of; he could penetrate to his heart and to his brain; he knew what would move him and how to apply it, and when he was done with him the juror was ready to decide for him, facts or no facts, law or no law. The one practiced from the books and the testimony, the other practiced upon the men who were to decide the case."
Picking up here and there a scrap as to the inner and social life of Judge Haywood, then turning to his books, his " Civil and Political History of Ten- nessee," in which is preserved for future generations a diary of our ancestors of deepest interest which would have been lost if he had not lived, and then reading his curious researches into the mysteries of the " Natural and Aborig- inal History" of the land we occupy before our ancestors came; and then his still more curious book, the "Christian Advocate," and then turning to the legal store-house in which, as Judge of the Supreme Court of two States, he laid the foundation of a judicial system broad and deep, tempering as only a great and good man could the stern mandates of the common law with equity and mercy, the reader of biography, ancient and modern, will ejaculate: "Where is his monument?" The echo must be: "The fitful fever of life being over, he sleeps well," but there is not a stone to mark the place. Some- where about the home he loved so well, somewhere on the farm, and, per- haps, near the spot where he wrote books and where he so beautifully tem- pered the law with mercy in preparing his judgments, and where he pointed the young lawyer the way to fame with uprightness in his profession-some- where here, but nobody knows just where, his remains repose. The de- scendants of a race of men whose deeds of valor and intellectual prowess put them at the very front, we must be painfully conscious of our indifference to their memories. Jackson's tomb is in decay; a few noble women are trying to rescue it-working with but little support to preserve and perpetuate the reputation of the living-for Jackson himself is immortal. While Pakenham, the vanquished, whose lifeless body Jackson sent back to Westminster Abbey, is made the subject of England's great appreciation of public service by a work of art for all England to see, Jackson, the victor, who with raw troops freed his country from an invading army, afterward under Wellington, at Water-
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HAYWOOD'S HISTORY OF TENNESSEE.
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loo, is, by the government for which he did so much, left, so far as it is con- cerned, without a stone to mark his resting-place; and his own State, whose very name he immortalized, niggardly commits his memory to a few loving women, who, like the women after the crucifixion, in sadness and sorrow looked after the body, are doing what they can to rescue the tomb of Ten- nessee's immortal hero. And it was only through the Tennessee Historical Society, after the State's neglect for more than seventy years, that the remains of John Sevier, the immortal hero of King's Mountain, and who for twenty years stood on the frontier and protected the women and chil- dren from the Indians' tomahawks, were rescued from a forgotten grave in a distant State. And the very founder of our judicial system is so far forgot- ten that not a finger can point to the spot where his bones lie. Tennessee is badly in need of a revival in the religion which intensifies love of country and binds us to our dead heroes. A. S. COLYAR.
Nashville, Tenn., December 8, 1890.
HISTORY OF TENNESSEE.
CHAPTER I.
Boundaries of Virginia, 1606; of Carolina, 1662; Northern Boundary, 1665- North Carolina: Commissioners to Run the Northern Boundary-Convention of the Governors upon This Subject-Line Run in Part in 1728-The Middle of the Mississippi the Boundary to the West-Boundaries of the State De- clared by the Constitution-The Declaration of Virginia-Extension of the Line, 1779; 1780-Dispute with Virginia Settled-Dispute with Kentucky Settled-Indian Cessions and Boundaries from Time to Time.
T HE knowledge of societies existing in particular States, and of what they have done in those situations, is of great use, as it enables him who possesses it to anticipate, upon the recurrence of like circumstances, the results to be produced by them, and to adopt a suitable course both for himself and for those who are under his care. In that point of view, the history of Tennessee is worthy to be preserved. In it there is a peculiarity not likely often to recur. This pattern of humanity ought to be preserved while we yet have it in our power, otherwise a lapse of ages may intervene before the opportunity may be again presented of tak- ing it with any exactitude. In viewing the first settlements of Tennessee, and those who were the principal actors in the estab- lishment of them; in contemplating the obstacles opposed to their efforts, and the difficulties which were encountered in sur- mounting them; in noticing the expedients resorted to for the accomplishment of their purposes, will be also evinced an im- portant truth that men, educated in poverty and almost in ignorance of literature of any sort, are yet capable of great achievements and of actions the most highly conducive to the prosperity and character of the nation to which they belong. Hence those in the higher ranks of life may learn a lesson very fit to be known by honest politicians, which is that all ranks in society, like the larger and smaller wheels in a time-piece, are necessary to the production of beneficial results, and are all per- haps equally worthy of the provident care of a wise legislator.
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HAYWOOD'S HISTORY OF TENNESSEE.
There is also another object in view: it is to show to the rising generation and to posterity, should this volume ever meet the eyes of posterity, who were the benefactors, to whom and to whose children the gratitude of the obliged ought to be directed. And as human action, when represented in an isolated state, un- connected with the circumstances of time and place, can be at best but imperfectly understood, a just elucidation of the sub- ject requires an attention to the theater of action, as well as to the chronological order of every occurrence which took place. A part of this book, therefore, must be appropriated to the boundaries of the State, and to those boundaries within its lim- its which have at different periods of time been made between the Indians and white people.
Upon this subject we will first advert to the northern beunda- ry, and next to the southern.
On the 23d of May, 1609, James I. of England, by his letters patent, reciting former letters patent dated the 10th of April, in the sixth year of his reign, which was 1606, gave and granted to Robert, Earl of Salisbury, Thomas, Earl of Suffolk, and a great number of other persons, "all those countries, lying and being in that part of America called Virginia, from the point of land called Cape or Point Comfort, all along the sea-coast to the northward, two hundred miles; and from the said point of Cape Comfort, all along the sea-coast to the southward, two hundred miles; and all that space and circuit of land, lying from the coast of the precinct aforesaid, up into the land throughout, from sea to sea, west and north-west," etc.
On the 24th of March, 1662-63, in the fifteenth year of the reign of Charles II. of England, he granted to the proprietors of Car- olina, "all that province, etc., called Carolina, situate, lying and being in America, extending from the north end of an island called Luke Island, which lieth in the Southern Virginia seas, and within thirty-six degrees of north latitude, and to the west as far as to the South seas, and so respectively as far as the river Matthias, which bindeth upon the coast of Florida, and within thirty-one degrees of northern latitude, and so west, in a direct line, as far as the South seas aforesaid."
On the 30th of June, in the year of our Lord 1655, King Charles II. granted to the proprietors of Carolina "all that province, etc., in America, extending north and eastward as far as the
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HAYWOOD'S HISTORY OF TENNESSEE.
north end of Currituck River or Inlet, upon a straight westerly line to Wyonoak Creek, which lies within or about thirty-six de- grees and thirty minutes northern latitude, and so west in a di- rect line, as far as the South seas, and southward and westward as far as the degree of twenty-nine, inclusive, of northern lati- tude, and south-west, in a direct line. as far as the South seas."
The southern part of Carolina and the northern, though be- longing to the same proprietors, because of the remote distance of the settlements from each other, were placed under different Governors. There was at the time of the adoption of this meas- ure a space of three hundred miles, with numerous Indians, be- tween them. North Carolina was at first called our County of Albemarle, in Carolina. But about the beginning of 1700 it be- gan to be called the Colony of North Carolina .* As the settle- ments began to extend, this unlocated boundary became the subject of much altercation between Virginia and North Carolina.+
The Virginians, under titles from the crown, had taken up lands to the southward of the proper limits; and the Carolinians, under warrants from the proprietors, were charged with taking up lands that belonged to the crown. Before January, 1711, commissioners had been appointed to run the boundary line; proclamations were issued forbidding surveys and grants for lands within the disputed limits, until the line should be marked, but without effect .* In January, 1711, commissioners were again appointed by the Governors of Virginia and North Carolina, but for want of money they also failed to accomplish their intended object. The public inconvenience experienced from these fail- ures deeply affected the peace of society, and a remedy was sought for in the act of limitations. The preamble contains a brief but impressive enumeration of the prominent evils of the times, and of the causes which produced the act. "Whereas great suit, debate, and controversy hath heretofore been, and may hereafter arise, by means of ancient titles to lands derived from patents granted by the Governor of Virginia, the condition of which patents have not been performed, nor quit rents paid, or the lands have been deserted by the first patentees; or for, or by reason or means of, former entries or patents granted in this
# 1 Williamson, 162. + 2 Williamson, 16. # Ibid.
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HAYWOOD'S HISTORY OF TENNESSEE.
government;" for prevention whereof, and for quieting men's es- tates, and for avoiding suits in law, this act professes to be made. It proposes for its own achievement the most important end of legislation, the quieting of men's estates. In 1728 the at- tempt was again repeated and failed, after the commissioners of both colonies had met at Currituck. Their instructions were so framed as to frustrate the attempt: they were directed to begin at the north end of Currituck River or Inlet, thence to run west- wardly to the mouth of Wyonoak Creek, or Chowan River, whence it was to be continued a due west course. There was no Curri- tuck River, but only a bay of that name, the head of which is 10' or 15' to the northward of the inlet where the line should begin. They could not agree upon the place called Wyonoak, nor could they agree at what place to fix the latitude of 36º 30'. They broke up without doing any thing, and the Gov- ernors of North Carolina and Virginia were obliged to fix upon terms that were explicit. They made a convention upon the subject of a boundary between the two provinces, which they transmitted to England for the king's approbation; the king in council agreed to the convention, and so did the lord proprietors, and returned it to the Governors to be executed. The agreement was "that from the mouth of Currituck River, setting the compass on the north shore thereof, a due west line shall be run and fairly marked, and if it happen to cut Chowan River between the mouth of Nottoway River and Wiccacon Creek, then the same direct course shall be continued toward the mountains, and be ever deemed the dividing line between Vir- ginia and Carolina. But if the said west line cuts Chowan River to the southward of Wiccacon Creek, then from that point of in- tersection the bounds shall be allowed to continue up the mid- dle of Chowan River, to the middle of the entrance into said Wiccacon Creek; and from thence a due west line shall divide the two governments. That if said west line cuts Blackwater River to the northward of Nottoway River, then from the point of intersection, the bounds shall be allowed to be continued down the middle of said Blackwater, to the middle of the en- trance into said Nottoway River, and from thence a due west line shall divide the two governments.
"That if a due west line shall be found to pass through islands, or cut out small slips of land, which might much more conven-
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iently be included in the one province or other, by natural water bounds, in such case the persons appointed for running the line shall have power to settle natural bounds, provided the commis- sioners on both sides agree thereto; and that all variation from the west line be punctually noted on the premises or plats, which they shall return to be put upon the records of both gov- ernments." Commissioners were appointed to carry this agree- ment into effect, both on the part of Virginia and North Carolina.
On the 15th of December, 1727, an answer was written by the Governor of Virginia to the Governor of North Carolina on the subject; and on the 16th of December, 1727, the commissioners of Virginia wrote to the commissioners of North Carolina on the same subject. The commissioners met at Currituck Inlet in 1728. The variation of the compass was found to be 3º 1' 2"* W., nearly; and the latitude 36° 31'. The dividing line struck Blackwater one hundred and seventy-six poles above the mouth of Nottoway. The variation of the compass at the mouth of Not- toway was 2° 30'. The commissioners on the part of Virginia were: Col. Bird, Richard Fitzwilliam, and William Dandridge. On the part of North Carolina they were: John Lovick. Chris- topher Gale, Edward Mosely, and William Little. This line was afterward extended by Joshua Fry and Peter Jefferson, commissioners on the part of Virginia, together with Daniel Weldon and William Churton, from North Carolina.
When the revolution commenced, and North Carolina made a Constitution for herself, which was ratified on December 1S, 1776, the boundaries of the State "were declared to be as then recognized by Virginia and South Carolina, and which they have never since questioned: "Beginning on the sea-side, on a cedar stake, near the mouth of Little River, being the southern extremity of Brunswick County, which stands in 33º 56', to 35° N. latitude; and from thence a west course, so far as is men- tioned in the charter of King Charles II. to the late proprietors of Carolina. All the territories, seas, waters, and harbors, with their appurtenances, lying between this line and the southern line of the State of Virginia, which begins on the sea-shore, in 36° 30' N. latitude; and from thence west, agreeably to the said charter of King Charles, they declared to be the right and prop- erty of the people of North Carolina."
* Williamson, 22.
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By the treaty of peace signed at Paris in 1763, between the kings of Great Britain and France, it was agreed for the future that the confines between the dominions of the two crowns in America should be irrevocably fixed by a line drawn along the middle of the river Mississippi, from its source, as far as the river Iberville; and from thence, by a line drawn along the middle of this river and the lakes Maurepas and Pontchartrain. All the country between the Mississippi and the South Sea was abandoned by the British government in this treaty; yet the convention of North Carolina seemed to be stubbornly unwill- ing to recognize that relinquishment in 1776; when, at the same time, they looked forward to France and Spain as the most faithful friends they had in the existing contest with Great Britain.
Virginia, in a general convention of delegates and represent- atives from the several counties and corporations of Virginia, held at the capitol in the city of Williamsburg, on Monday, the 5th of May, 1776, made a declaration of rights, and agreed upon a Constitution or form of government. Amongst other things contained therein, it is ordained as follows: "Section 21. The territories contained within the charters erecting the colonies of Maryland, Pennsylvania, North and South Carolina, are hereby conceded and forever confirmed to the people of these colonies respectively," etc. Here was magnanimously cut off and sur- rendered all the territories which had been taken from Virgin- ia by royal patents to satisfy the grants to the lord proprietors. The Mississippi and the latitude 36° 30' were now firmly settled as the boundaries of North Carolina, and it was cheerfully hoped that no further difficulties would ever arise on the subject. Full of this expectation, the assemblies of Virginia and North Car- olina, in 1779, appointed commissioners to extend the boundary line between them, as the extension of the western settlements then made it a necessary measure. They were to begin the ex- tension of the line where Fry and Jefferson, and Weldon and Churton ended their work; and if that be found to be truly in latitude 36° 30' N., then to run from thence due west to the Ten- nessee or the Ohio River; or, if it be found not truly in said lat- itude, then to run from the said place due north or due south into the said latitude, and thence due west to the said Tennes- see or Ohio River, correcting the said course at due intervals
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by astronomical observations. Col. Henderson and William B. Smith, on the part of North Carolina; and Daniel Smith and Doctor Walker, on the part of Virginia, met to extend the line in the year 1780. They ran it together about forty miles, when some difference took place, and the commissioners on the part of North Carolina ran a parallel line two miles north of the oth- er line for about half the distance, and extended the line no farther. Mr. Walker and the other commissioner from Virginia extended the line to the Tennessee River, and marked its termina- tion on the Mississippi by observations, leaving the line from the Tennessee to that place unsurveyed. The Virginia commission- ers made a report to their constituents, which may be seen in the appendix to this volume.
As was to be anticipated, much disorder ensued from the run- ning of these two lines; between them the authority of either State was not established; the validity of process from either State was not acknowledged; entries for the interstitial lands were made in the land offices of both States, and grants issued from both States. Crimes committed between the two lines could not be punished by either State, because in every indictment the place there was a material averment, as also it was to set forth the county and State in which it lay. Such a state of society could not long be endured, and the State of Virginia applied to North Carolina in 1789 to remedy these evils by the establishment of Walker's line. The assembly of North Carolina which began its session at Fayetteville on the 2d of November, 1789, and rose on the 22d of December, referred to a committee the letter of the Governor of Virginia on this subject. They reported "that it was proposed on the part of Virginia that the line common- ly called Walker's line be established as the boundary between the two States. Should this proposal not be acceptable to North Carolina, they then will appoint commissioners to meet any per- sons who may be appointed on the part of North Carolina, em- powered to confer on the propriety of establishing Walker's or Henderson's line, and to report their proceedings to the Legisla- tures of their respective States." They then state the facts rela- tive to the running of the two lines, and of Walker's line to the Tennessee, and of marking its termination on the Mississippi, and proceed: "As the difference between said lines could be only two miles. running most of the distance through a mountainous,
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