USA > Virginia > Augusta County > Augusta County > History of Augusta County, Virginia > Part 8
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The stocks was a simple arrangement for exposing a culprit on a bench, confined by having his ankles made fast in holes under a movable board. Sometimes the stocks and whipping-post were connected together. The posts which supported the stocks, being made sufficiently high, were fur- nished near the top with iron clasps to fasten round the wrists of the offender and hold him securely during the infliction of the punishment. Sometimes a single post was made to serve both purposes, clasps being provided near the top for the wrists when used as a whipping-post, and similar clasps below for the ankles, when used as stocks, in which case the culprit sat on a bench behind the post, so that his legs, when fastened to the post, were in a horizontal position.
Women were punished in the ducking-stools. They fasten an armed chair to the end of two strong beams, twelve or fifteen feet long, and par- allel to each other. The chair hangs upon a sort of axle, on which it plays freely, so as always to remain in the horizontal position. The scold, being well fastened in her chair, the two beams are then placed as near to the centre as possible, across a post on the water-side, aud being lifted up be- hind, the chair, of course, drops into the cold element. The ducking is
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repeated, according to the degree of shrewishness possessed by the pa- tient, and has generally the effect of cooling her immoderate heat, at least for a time.
John Preston, at the May term, 1746, came into court and prayed leave to prove his importation, which was granted him, and thereupon he made oath that at his own charge he had imported himself, Elizabeth, his wife, William, his son, and Lettice and Ann, his daughters, immediately from Ireland into this colony, and that this is the first time of procuring his said right, in order to partake of his Majesty's bounty in taking up land, which is ordered to be certified.
The first court-house of Augusta was no doubt like those common on the frontiers, a log cabin covered, but without daubing, sash or doors. In this hall of justice, a carpenter's bench, with a half-dozen chairs upon it, served as the judgment seat, and though the house was barely sufficient to contain the bench, bar, jurors, and constables, the occasion of the first court must have brought the whole population to the town. The follow- ing description of a scene in one of these frontier court-houses will no doubt hold true as to many in that of Augusta. But few spectators could be accommodated on the lower floor, the only one laid ; many, therefore, clambered up the walls, and placing their hands and feet in the open in- terstices between the logs, hung there, suspended like enormous Mada- gascar bats. Some had taken possession of the joists, and big Jno. Mc- Junkin (who, until now, had ruled at all public gatherings,) had placed a foot on one joist and a foot on another, directly over the heads of their Honors, standing, with outstretched legs, like the Colossus of Rhodes. The Judge's sense of propriety was shocked at this exhibition. The sheriff, John McCandless, was called, and ordered to clear the walls and joists. He went to work with his assistants, and soon pulled down by the legs those who were in no very great haste to obey. Mc'Junkin was the last, and began to growl as he prepared to descend. "What do you say, sir ?" said the Judge. "I say I pay my taxes, and has as good a reete here as iny mon." " Sheriff!" Sheriff!" said the Judge, "Bring him before the court !" McJunkin's ire was now up, and as he reached the floor, began to strike his breast, exclaiming, " My name is John Mc- Junkin, d'ye see; here's the brist that niver flinched, if so be it was in a good caase ; I'll stan' iny mon in Butler county, if so be he'll clear me o' the la'." " Bring him before the court," said the Judge. He was accord- ingly pinioned, and if not gagged, at least forced to be silent while his case was under consideration. Some of the lawyers volunteered as amici curice ; some ventured a word of apology for McJunkin. The Judge pro- nounced sentence of imprisonment for two hours in the jail of the county, and ordered the Sheriff to take him into custody. The Sheriff, with much simplicity, observed : " May it please the court, there is no jail at all to put him in." Here the Judge took a learned distinction, upon which he expatiated for some length for the benefit of the bar. He said "there were two kinds of custody ; first, safe custody ; second, close custody. The first is, where the body must be forthcoming to answer a demand or an accusation, and in this case, the body may be delivered, for the time being, out of the hands of the law, on bail or mainprize ; but where the imprison- ment forms a part of the satisfaction or punishment, there can be no bail
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or mainprize. This is the reason of the common law, in relation to escapes under capias ad satisfaciendum, and also why a second ca. sa. cannot issue after the defendant has been once arrested and then discharged by the plaintiff. In like manner, a man cannot be twice imprisoned for the same offence, even if he be released before the expiration of the term of impris- onment. This is clearly a case of close custody-areta custodia-and the prisoner must be confined, body and limb, without bail or mainprize, in some place of close incarceration." Here he is interrupted by the Sheriff, who seemed to have hit upon a lucky thought : "May it please the court, I am just thinking I can take him to Bowyer's pig-pen ; the pigs are killed for the court, and the pen's empty." "You have heard the opinion of the court," said the Judge, " Proceed, Sheriff, and do your duty." The Sheriff accordingly retired with the prisoner, and drew after him three-fourths of the spectators and suitors, while the Judge, thus relieved, proceeded to organize the court. But this was not the end of the affair. Peace and order had scarcely been restored, when the Sheriff came rushing into court with a crowd at his heels, crying out, "Mr. Judge! Mr. Judge! May it please the court !" " What is the matter, Sheriff?" "Mr. Judge! Mr. Judge ! John McJunkin's got off, d'ye mind." "What ! escaped ! Sheriff, summon the posse comitatus." "The posse, the posse, what's that, may it please your Honor? Now, I will just tell you how it happened. He was going along quietly enough till we got to the hazle patch, and all at once he pitched off into the bushes, and I after him, but a limb of a tree kitched me first, and I fell back three rods." The Judge could not restrain his gravity ; the bar raised a laugh, and there the matter ended, after which the business proceeded quietly enough
Nov. 27, 1751 .- The Grand Jury presented Owen Crawford for drink- ing a health to King James, and refusing to drink a health to King George.
Feb. 19, 1751 .- John and Reuben Harrison presented a petition to the court praying to be rewarded for killing two persons, under the command of Ute Perkins, who were endeavoring to rob them.
Feb. 19, 1751 .- Catharine Cole being presented for having a bastard child, and refusing to pay her fine or give security for the same, according to law, it is ordered that she receive on her bare back, at the public whipping-post, twenty lashes, well laid on, in lieu of said fine, and that the lashing be done immediately.
May 18, 1749 .- Jane Scot, a servant woman, for having a bastard child : Ordered that after the expiration of her servitude by indenture, and serv- ing her master one year for the trouble of his house, the Church Wardens of Augusta Parish sell her for the said offence, according to law.
March 1, 1749 .- Robt. Armstrong, in open court, made oath that he saw the Indians kill one, and take away another mare, belonging to Peter Wright, of this county.
Nov. 28, 1750 .- The Grand Jury present Jacob Coger, for a breach of the peace, in driving hogs over the Blue Ridge on the Sabbath day ; and May 28, 1751, James Frame was presented for a breach of the Sabbath, in unnecessarily traveling ten miles.
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May 17, 1754 .- Ann, wife of James Brown, having come into court and abused William Wilson, Gent., one of the justices, by calling him a rogue, and that on his coming off the bench she would give it to him like the devil, ordered that she be taken into custody, &c.
August 24, 1754 .- Joseph Tees, having affronted this court by saying " he got nothing in this court but shuffling," it is ordered that he be fined twenty shillings, &c.
March 17, 1756 .- Francis Furgesson, being brought before this court, &c., for damning Robert Dinwiddie, esq., (Governor of the Colony,) " for a Scotch pedling son of a bitch," was. found guilty, but was excused on apologising and giving security to keep the peace.
May 21, 1756 .- On motion of Thomas Lewis, Gent., setting forth that his negro, Hampton, frequently absconds from his service, and that he has several times attempted to ravish Ann West and other white women, and praying, to prevent the like mischief, he may be dismembered ; it is or- dered that the said Lewis employ such skillful person, as he may think proper, to castrate the said slave.
Dec. 8, 1756 .- Charles Dever was tried for cursing God and our Sover- eign Lord George II, King, &c., but acquitted.
SERVING WRITS.
It was not the easiest thing in the world to bring malefactors to justice in those days, as the following returns, made to executions, will illustrate :
In the case of Johnson vs. Brown, (1751), "not executed by reason there is no road to the place where he (Brown) lives."
Again : "Not executed by reason of excess of weather."
Nov., 1752 .- " Not executed by reason of an axe " (the axe being in the hands of defendant, uplifted, no doubt, to cleave the officer's skull.)
" Not executed, because the defendant's horse was faster than mine."
" Not executed, by reason of a gun."
Emlen vs. Miller .- " Kept off from Miller with a club, &c .; Miller not found by Humphrey Marshall."
" Not executed, because the defendant got into deep water-out of my reach."
Nov., 1754 .- " Executed on the within, John Warwick, and he is not the man."
" Not executed, by reason of flux being in the house."
August, 1755 .- Forty-nine executions returned " not executed, by rea- son of the disturbance of the Indians."
One of the early vices of the frontier was insobriety among the lower classes, and our ancestors made strenuous efforts, as the records show, to stamp it out. They believed, probably like the ancients, that it was a dis- ease. Five centuries before the Christian era, Herodotus said that " Drunk- enness showed that both body and soul were sick." Diogenes and Plutarch assert that " Drink madness is an affection of the body which hath de- stroyed many kings and noble people." Laws were passed forbidding
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women to use wine and restricting boys. In the first and second centuries the early Christians urged temperance, and from that time to this it has engaged the attention of the good and wise. Temperance societies have done much to rescue mankind from the horrors of intemperance, and in the early days of Augusta, the County Court was, so to speak, a kind of temperance society. The justices were men of sobriety ; the court did not s it idle and see the mighty evil entail untold ruin upon man. They sought, by rigid execution of the laws, to extirpate the evil and to encourage vir- tuous habits. Thus we see that on Feb. 10th, 1746, the court ordered the sheriff to take William Linwell into custody, and that he be fined five shillings for being drunk. Many similar orders might be cited.
CHAPTER V.
The early settlers were naturally anxious on entering territory which had been held for time immemorial by native inhabitants, to conciliate their good will, and, if possible, to live on friendly terms with them! Policy, no less than humanity and justice, dictated this course. The pioneers had witnessed the good effects of Penn's kind treatment of the simple-hearted children of the forest, and were determined to follow his example. The colonists on Lewis creek did not require advice on this point, but six years after they planted themselves in Augusta, shortly after some acts of injus- tice had been perpetrated by reckless whites in the Valley, the people were strongly advised to pursue a policy of justice and humanity towards the natives by a venerable and respected member of the Society of Friends, Thomas Chalkley. In a letter dated May 21st, 1738, and ad- dressed to the Friends at Opequon, near Winchester, he urged them " to keep a friendly correspondence with the natives ; to recognize their right to the country, and not settle on their lands without their consent or until purchased ; to therefore select the most reputable whites to treat with the Indians as to the acquisition, by purchase, of such lands as the whites might wish to possess." He informed them that an opposite course would expose themselves and families to murder by a cruel and merciless enemy. He begged them to consider " that you are in the province of Virginia, holding what rights you have under that government, and the Virginians have made an agreement with the natives to go as far as the mountains and no further, &c .; and you are over and beyond the mountains, there-
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fore out of that agreement, by which you lie open to the insults and incur- sions of the Southern Indians, who have already destroyed many of the inhabitants of Carolina and Virginia." " The English having gone beyond the bounds of their agreement," says he, " eleven of them were killed by the Indians while we were travelling in Virginia." He informed them that in Pennsylvania no new settlements were made without an agreement with the natives, as was the case in Lancaster, a county far within Penn's grant, and warned them of the danger they would incur from both the Northern and Southern Indians by presuming to squat upon their lands. And, lastly, he assured them that he was moved to give them this advice solely by his love of God and man, and a sincere desire that they might live in peace and happiness.
Lewis and the early settlers recognized, to the fullest extent, the right of the Indians to the country of their nativity. As America, up to the dis- covery by Columbus, had been unknown to the rest of the world, how could it belong to any foreign prince or State? The native tribes, who possessed it, were free and independent communities, and as such capable of acquiring territorial property. Among the various principles on which a right to the soil has been founded, there is none superior to immemorial occupancy. In this case, no European power could derive a title to the soil from discovery ; because, that can give a right only to lands or things which have neither been owned nor possessed, or which, after having been owned or possessed, have been voluntarily deserted. The right of the Indian nations to the soil in their possession was, therefore, founded in nature. It was the free and liberal gift of Heaven to them, and such as no foreigner could rightfully annul. The blinded superstition of the times, however, regarded the Deity as the partial God of Christians, and not as the common father of saints and savages. The pervading influence of philosophy, reason and truth has, since that period, given us better notions of the rights of mankind, and of the obligations of morality. These, unquestionably, are not confined to particular modes of faith, but extend universally to Jews and Gentiles, to Christians and infidels. Unfounded, however, as the claims of European Sovereigns to American territory were, they severally proceeded to act upon them. By tacit consent they adopted, as a new law of nations, that the countries which each explored should be the absolute property of its discoverer. While thus sporting with the rights of unoffending nations, they could not agree in their respective shares of the common spoil, and hence the long and bloody wars between the English, French and Spaniards.
The leaders of the infantile colony in Augusta, not holding the views of their Sovereigns, but the juster sentiments to which allusion has been made, on arriving near Bellefont, sought to acquire lands, by purchase from the aborigines. They soon ascertained that no tribe residing in the
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Valley claimed exclusive ownership in the soil, or set up a right to dispose of it by sale. The whites were, therefore, compelled either to withdraw or settle upon the lands and wait for the issue of events. The latter course was adopted. That they afterwards found savages claiming authority to dispose of the country, may be taken for granted from a remark of Jeffer- son in his "Notes on Virginia ": "That the lands of this country were taken from the Indians by conquest, is not so generally a truth as is sup- posed. I find, in our historians and records, repeated proofs of purchase, which cover a considerable part of the lower country, and many more would be doubtless found on further search. The upper country (i. e., the Valley,) we know has been acquired altogether by purchase, in the most unexceptionable form." That Lewis and the first settlers of the " Upper Country," did acquire, very soon after their arrival, some such title, may be inferred from the friendly relations which existed between them and the Indians for many years. And from the proofs which are still extant of such purchases in the District of West Augusta-such as the deed quoted in full in the sequel of this chapter, from certain Indian chiefs to George Croghan. A deed acknowledged, by the way, in that N. W. portion of Augusta in which, as will appear later on, justices' courts were frequently held anterior to the Revolution. It is well known that the two races, the whites and Indians, lived in the Valley for above twenty years, from 1732 to 1753, on amicable terms. This could not have been the case had the policy of the whites been one of injustice and inhumanity, and unappre- ciated by the wild men. For as early as 1712, the Tuscarora Indians, in North Carolina, had massacred one hundred and thirty-seven of the whites in a systematic effort to rid their country of the new-comers. Had the wise course of Penn and of the Augusta settlers been generally followed, there is reason to believe that the continent would have passed into the hands of the superior race without loss of blood or treasure.
In 1732, when Lewis and his associates, if others were associated with him in his adventurous enterprise, entered the present County of Augusta, they had not taken the precaution to secure titles from the Colonial Gov- ernment to any lands they might wish to locate-a singular omission, if they came from Williamsburg, as has been stated. It was the custom of the times to issue such grants, and in the year 1733, the Governor issued one for 5,000 acres to a German, by the name of Stover, "on the south fork of the Gerando (now Shenandoah) river, on what was called Mesi- netto creek," and it is certain that the colonial authorities of Virginia regarded the Valley and country west of the mountains as belonging to the British crown-ignoring, as absurd, any claim to it of natives. This has been the traditional course of Great Britain, and continues her present policy. Hence within the last decade, 1872-'82, she has waged wars with the Zulus in Africa, with the native tribes of India, and other quarters of
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the globe, for the possession of their lands, which she had neither pur- chased nor conquered, but to which she calmly set up a claim.
Having settled in Augusta, without any other title to their lands than they may have subsequently acquired from the aborigines, it does not appear that the whites applied to the colonial authorities for patents. It is probable, having bought of the red men, they did not consider this course necessary. If they had given the Indians a satisfactory considera- tion for the soil they occupied, they no doubt considered an application to Gov. Gooch unnecessary. The Governor, however, took the European view of the situation, and commenced sporting with the rights of the In- dians in the " Upper Country" by issuing patents for large tracts to his favorites. Thus we find him issuing a patent to the Augusta section of the Valley, on the 12th day of August, 1736, to William Beverley and his associates for 118,491 acres, being a tract known as Beverley Manor. Up to this date the colonists had, as we have seen, lived upon the demesne without law, or the authority of English law, and governed by such cus- toms as had grown up among themselves for regulating their intercourse. Among these were what were termed "corn rights," tomahawk rights, and cabin rights. The corn right was a title derived from having enclosed and cultivated a plot of ground. Whoever cultivated one acre in corn acquired a title to one hundred acres of land. The tomahawk right consisted of nothing more than the deadening of a few trees, generally round a spring, and blazing a few trees on the lines of a claim. The cabin right was derived from building a log hut upon a certain tract of land. Every escaped trial under the ancient laws of Virginia is, in view of all the facts, builder of a hut acquired a title to forty acres. The patent to Beverley, the original of which is in the Circuit Clerk's office, Staunton, is as follows :
PATENT FOR BEVERLEY MANOR.
George II, by the grace of God, of Great Britain, France and Ireland, King, Defender of the Faith, &c .: To all to whom these presents shall come, greeting : Know, that for diverse good causes and considerations, but more especially, for the consideration in an order of our Lieutenant- Governor, in Council, bearing date 12th of August, 1736, we have given, granted and confirmed, and by these presents for us, our heirs and suc- cessors, do give, grant, and confirm unto William Beverley, of the Co. of Essex, Gentleman, Sir John Randolph, of the City of Williamsburg, Knight, Richard Randolph, of the Co. of Henrico. Gentleman, and John Robinson, of the Co. of King and Queen, Gentleman, one certain tract or parcel of land, called the Manor of Beverley, containing 118,491 acres, lying and being in the county of Orange, beyond the great mountains, on the river Sherando, and bounded as follows, to wit: Beginning at five white oaks, on a narrow point, between a large run, called Thirsty Creek, and a small run, called Gearer Run, about thirty poles on the east side through middle (of the) river Sherando, and running thence N. 70°, W. 364 poles, by four linds, with the same river : thence N. 15°, W. 145 poles, crossing the said river the whole course, being 443 poles, by a large white
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oak and two small ones; thence N. 75°, E. 297 poles to four linns and a red oak on a ridge ; thence N. 15°, E. 44 poles to a double walnut and gum on this ridge of the said Middle River ; thence down the same 102 poles to a red oak and hickory by the river side, then from the first men- tioned five white oaks S. 364 poles, crossing Gearer Run twice, just below three small Spanish oaks under a steep hill; thence S. 83º. E. 270, by five linds ; thence S. S. E. 330 poles to three white oaks by the side of a meadow; thence E. by South 738 poles, across Sherando River, to a forked white walnut, a black one, a hickory and an ash by the river side ; thence down the same 74 poles to two water oaks, two hickories, a whortle- berry tree and a walnut; thence E. by South 60 poles to four linds on the foot of the Blue Ridge, in stony ground; thence South by East 88 poles, between a white and red oak; thence S. E. 103 poles by four linds and white oak; thence S. S. W. 492 to three linds; thence South 450 poles by a red oak, white oak and two linns ; thence S. W. 456 poles to five linns ; thence S. 5º, W. 88 poles to a white oak and linn saplins on the river bank ; thence S. S. E. 38 poles by four linns ; thence S. W. by West 286 poles to two linns near the river ; thence S. 26°, E. 90 poles to three white oaks; thence S. and by West 134 poles, nigh two red oaks, by a boiling spring, almost as big as the river in flat grounds ; thence S. 60°, W. 176 poles to three linns nigh the river ; thence W. 232 poles by two red and two white oaks on the river side; thence through several thickets of the same 1,300 poles, by two Spanish oaks, two red oaks and a white oak just below three springs, called the Great Springs ; thence S. 30 poles by two linns and a hickory ; thence S. W. and by W. 178 poles to three linds ; thence S. 33°, W. 238 poles by four pines ; thence West by South 274 poles by two pines and a red oak bush; thence West Northwest 114 poles by three pines ; thence North 85°, West 546 poles by four pines ; thence W. 506 poles by a chesnut oak, red oak and pine on the brow of a hill; thence N. 50°, W. 244 poles to three pines; thence N. 396 poles to three hickories and a pine by a red oak ; thence S. 70°, W. 630 poles by four hickories near a valley ; thence S. 20°, W. 544 poles to three red oaks on the west side of Hamerk's branch ; thence S. W. by West 94 poles by two white oaks and a red oak ; thence S W. by South 652 poles by four red oaks and three hickories just above the head of some of the Sherando waters ; thence N. W. and by West 232 poles to a red oak and white oak and hickory by the head of a draft that runs into James River ; thence S. W. by West 300 poles, crossing two springs of the James River ; thence N. W. by West 600 poles, crossing the head spring of Sherando to two hickories, two chesnuts and white oak, with a spring of James River ; thence N. 2,016 poles, crossing four springs of James river to a white oak by a path ; thence N. 75°, W. 106 poles on the side of a very high hill, (from the foot of which issues a spring about fifty feet broad called the Black Spring) to a white oak and hickory; thence S. 60°, W. 120 poles to a Spanish oak, hickory and walnut ; thence S. 40°, W. 100 poles by a hickory and white oak; thence N. 50°, W. 92 poles, crossing the middle river of Sherando, on which we first began to survey the whole Louisa county, 160 poles, between two white oaks and a hickory at the foot of a ridge of mountains that lies between this and the north branch of the same river ; thence N. 40°, E. 160 poles by a white oak and hickory ; thence N. 20°, E. 34 poles between two white oak saplings; thence N. 40°, E. 183 poles to a white oak; thence N. by East 47 poles to two Spanish oaks by a deep valley ; thence N. 36°, E. 350 poles along the foot
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