Shenandoah Valley Pioneers and Their Descendants: A History of Frederick County, Virginia., Part 23

Author: Cartmell, T. K. (Thomas Kemp), 1838-1920
Publication date: 1909
Publisher: [Winchester, Va.] : [Printed by the Eddy Press Corp.]
Number of Pages: 607

USA > Virginia > Frederick County > Frederick County > Shenandoah Valley Pioneers and Their Descendants: A History of Frederick County, Virginia. > Part 23

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The first minute of this First Term, noted the filing by the Judge his commission, and the fact of his having taken and subscribed the oaths of office; and that T. K. Cartmell, ex-officio-clerk of the Circuit Court, announced that he had as- sumed charge of the Clerk's Office of said Court, and appointed Phil. H. Gold deputy.

The Court appointed Wm. M. Atkinson, Jno. M. Steck, Robt. M. Ward, R. E. Byrd, H. S. Larrick commissioners in chancery-all members of the bar, and also D. S. Glaize and Robert Worsley-the two last not attorneys.

R. E. Byrd was appointed Examiner of Rec- ords for this 17th Judicial Circuit.

At this term Briscoe C. S. Shull and Julian W. Baker were appointed to re-assess lands and lots for Frederick County.

The County Clerk was clothed with new pow- ers by the new constitution, being given concur- rent jurisdiction with the Judge in fiduciary mat- ters. Provision made for probate of wills by the Clerk in his office; to appoint and qualify executors, administrators, etc.,-was required to keep what is known as "The Clerk's Fiduciary Order Book," wherein he should record all such proceedings. The first entry made in this book was the proof and orders pertaining to probate of the will of Mr. Henry Stephenson, Feby. 22, 1904.

By the Constitution, the Board of Supervisors was constituted a court to try all road cases. This applied to new roads or alterations, with power to award damages. This being a new feature with the Board, the Clerk was expected to give it the benefit of his experience. All road cases had been tried in the old County Court.

Thus it will be seen the Clerk virtually held four offices: County Clerk (who is custodian of all County records) ; by virtue of this office he is Clerk of the Circuit Court, Probate Judge, and also Clerk to the Board of Supervisors. All these duties imposed upon one man great re- sponsibility, and onerous mechanical work. The proper care of Court papers ever ready for pro- duction of the proper file, is perplexing; the minutiae of all the departments requires patience, skill and ability; the nervous strain becomes dan- gerous. Despite all this, the writer, in a re- trospect of the many years service rendered in all these departments, takes rapturous delight in his recall of pleasant intercourse with the splendid people of old Frederick.

It will be seen elsewhere in this work, that the Board of Supervisors have entire control of the Northwestern Turnpike and North Frederick Turnpike to the Hampshire line. This branch of their service requires much time and thorough knowledge of the needs of such useful thorough- fares. This chapter must close without fuller notice of proceedings of the Court and Board of Supervisors.

CHAPTER XXVII

City of Winchester, 1743-1850

Winchester. may well be called the historic City of the Shenandoah Valley-made so by incidents full of interest to the actors in the great drama, through all the stages of her pro- longed life. She has always been the county seat of Frederick County since its "erection." Be- ginning with the first court in 1743, her life has been interspersed with many changes that sound strangely in our ears of to-day. During her infancy, the name of "Fredericktown" and "Opeckon" frequently appear in the minutes of the first courts, to designate the place for hold- ing court. James Wood, the first clerk of this court, saw the necessity for organizing a town where the court was being held; and asked per- mission of the court on the 9th day of March, 1744, (new style) to allow him to dedicate a number of lots of land, to be taken from his home farm for the use of the County; but at the same time informed the court that his title to the tract where he resided, was not completed, as some question had already arisen that the grant he had obtained from the Governor and Council of Virginia, might conflict with the old grants to the Fairfax family. The Justices of the Court were cautious enough to take from their clerk a bond for one thousand pounds to indemnify them against damage or loss. This bond was executed with due formalities, and is here given: "Know all men by these presents that I, James Wood, of Frederick County, am held and firmly bound unto Morgan Morgan, Thomas Chester, David Vance, Andrew Camp- bell, Marquis Calmes, Thomas Rutherford, Lewis Neill, William McMachen, Meredith Helm, George Hoge, John White and Thomas Little, gents, Justices of the said County and their suc- cessors, To the which payment well and truly to be made, I bind myself, my heirs, executors and administrators firmly by these presents, seal- ed with my seal, and dated this 9th day of March 1743. (old style).

"The condition of the above obligation is such that whereas the above bound James Wood having laid off from the tract of land on which he now dwells at Opeckon, in the County afore- said, twenty-six lots of land containing half an acre each, together with two streets running

through said lots of the breadth of thirty-three feet, as will more plainly appear by a plan there- of in the possession of the said Morgan Morgan, Marquis Calmes and William McMachen, and whereas the said James Wood, for divers good causes and consideration of the sum of five shill- ings current money to him in hand paid, the re- ceipt whereof he doth hereby acknowledge, Hath bargained and sold, on the conditions hereafter mentioned, all his right, title, interest, property and claim, to twenty-two of the said lots to the aforesaid Morgan Morgan, etc., His Majesties Justices of the said County, for the time being and their successors, to be disposed of by them for the use of the said County as they shall judge most proper, the said lots being numbered in the before mentioned plan as follows: Nos. 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 20, 22, 23, 24, 25, and 26, on the following conditions, viz. : that they the justices or their assigns, shall, within two years from the day of the sale of the said lots, build or cause to be built on each lot one house either framed work or squared logs, dovetailed, at least of the dimensions of 20 feet by 16, and in case any person in possession of a lot or lots fail to build within the time limited, the property of the said lot or lots to return to the said James Wood, his heirs or assigns. Now if the said James Wood, his heirs, executors and administrators, shall from time to time at all times hereafter maintain, protect and defend the said Justices, their successors and assigns, in the peaceable and quiet posses- sion of the before mentioned lots of land from all persons whatsoever, Thomas Lord Fairfax, his heirs, or any other person claiming under him only excepted, And further if the said James Wood, his heirs, etc. shall hereafter ob- tain either from His Majesty by patent or from the said Thomas Lord Fairfax or his heirs, etc., shall within one year, if required, make such other title for the said lots to the said Justices or their successors, as their counsel learned in the law shall advise so far forth as his own title shall extend. Now if the said James Wood, his heirs, executors, and administrators, shall well and truly perform all and singular the above conditions then this obligation to be void, other-

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CITY OF WINCHESTER, 1743-1850

wise to be and remain in full force and virtue. Sealed and delivered in the J. WOOD.

presence of : WM. JOLLIFFE, JNO. NEWPORT, THOS. POSTAGE.

At a court continued and held for Frederick County, on Saturday the 10th day of March, 1743 (old style) (new style 1744), James Wood, gent, in open court, acknowledged this his bond to his Majesties Justices which is ordered to be recorded. TEST : J. WOOD, Cl. Ct."

The reader will observe that the Justices in accepting the offer made by James Wood, were fully aware of the difficulty that might arise concerning the title to the land; and while they required Wood to indemnify them, they made an exception to the Fairfax claim. It must be remembered that our Thomas Lord Fairfax had not arrived in America, but was represented here by his agents and attorneys; and they doubtless were well informed of the regular demands made by these agents of the Fairfax family, upon those who had settled upon lands granted them by the Governor and Council of the Colony of Virginia. All of which being within the do- main of Fairfax, must some day result in liti- gation. And the Justices were not willing to ignore the Fairfax claim. No doubt they felt that if Mr. Wood could make good his gener- ous offer, that Lord Fairfax might either con- firm the Wood transaction, or himself would be pleased to set off a portion of his land for pub- lic uses. As will be seen later on, Fairfax not only recognized the James Wood dedication, but added to it in a substantial way.

Mr. Wood was hindered in securing his title for several years, owing to contentions raised between the Lord Proprietor's agents and all the settlers of that period. The settlers in many cases-Wood being one-yielded to these de- mands for yearly rents-some stoutly held out and refused to recognize any claim as better than what was known as the Minor Grants (already explained in the first chapters of this work). And this explains in part the delay in securing a charter for the town of Winchester until 1752 -eight years after the lots had been surveyed and offered by Mr. Wood. As stated previously, Lord Fairfax arrived in America in 1749; and very soon appeared in the vicinity of the county seat with the youthful Washington, to make surveys, etc. Mr. Wood being an English gen- tleman of prominence in the new County that was to become the future home of his Lordship, it was natural that some social relations existed between these gentlemen relative to the de-

velopment of the country. Mr. Wood was own- er of a grant from Lord Fairfax for land on the South side of Opecquon Creek, located near the point where Stephensburg was laid off by Lewis Stephens. For some reason, Lord Fair- fax desired to become owner of this tract of land. He and James Wood effected a settlement of these claims, and Wood sold his Opecquon tract to Fairfax, giving him a "quit rent title to any other land the said James Wood had had previously surveyed to him the said Wood." Fairfax took every occasion in all his convey- ances, quit rent deeds, or any other writing, to style himself "the Lord Proprietor;" and that he still held the fee in all the land, as the British Crown had transferred it to him; and that he must be consulted as to the propriety of making towns, etc. So we see him appear in the House of Burgesses, in sessions of 1751-2, to direct the provisions in the proposed charter. Strange as it may appear, it is nevertheless true, that although Fairfax had settled the claims be- `tween himself and James Wood-giving him a quit-rent title-he never granted his fee to Wood; and we find him with such influence-not only with Wood who virtually was the owner of the land-as to have him submit to the acknowl- edgment that the Lord Proprietor had the right to determine upon a plan for the town, but he also had the wording of the Act of the General Assembly made to satisfy him. The County Justices also were impressed with the importance of this right; and whenever they took action in regard to this new town, were careful to say "subject to the approval of his Lordship the Right Hon. Thomas, Lord Fairfax, etc." The charter, as has been stated, was granted in 1752; and because of its importance, and to take its place in this book of reference, and for the language used to define the Fairfax relation to the town,-we give an exact copy: "An Act for establishing the town of Winchester, and ap- pointing Fairs therein, February, 1752.

"I. Whereas it has been represented to this General Assembly that James Wood, gentleman, did survey and lay out a parcel of land, at the Court House in Frederick County, in twenty-six lots of half an acre each, with streets for a town, by the name of Winchester, and made sale of the said lots to divers persons, who have since settled and built, and continue building and settling thereon; but because the same was not laid off, and erected into a town, by Act of Assembly, the freeholders and inhabitants there- of will not be entitled to the like privileges, en- joyed by the freeholders and inhabitants of other towns in this Colony.

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"II. Be it enacted by the Lieutenant Governor, Council and Burgesses, of this present General Assembly, and it is hereby enacted, by the au- thority of the same, That the parcel of land late- ly claimed by the said James Wood, lying and being in the fifty-four other lots of half an acre each, twenty-four thereof to be laid off in one or two streets on the East side of the former lots, the street or streets to run parallel with the street already laid off, and the remaining thirty lots to be laid off at the North end of the aforesaid twenty-six, with a commodious street or streets, in such manner as the Proprietor thereof, the Right Honorable Thomas Lord Fairfax shall think fit be, And is hereby constituted, appoint- ed, erected, and established, a town, in the man- ner already laid out, to be called by and retain the name of Winchester, and that the freeholders of the said town, shall, for ever hereafter, en- joy the same privileges, which the freeholders of other towns, erected by Act of Assembly enjoy.

"III. And whereas allowing fairs to be kept, in the said town of Winchester, will be of great benefit to the inhabitants of the said parts, and greatly increase the trade of that town. Be it therefore enacted, by the Authority aforesaid, That for the future two fairs shall and may be annually kept, and held, in said town of Win- chester, on the third Wednesday in June, and the third Wednesday in October in every year, and to continue for the space of two days, for the sale and vending all manner of cattle, vic- tuals, provisions, goods, wares, and merchandizes, whatsoever; on which fair days, and two days next before, and two days next after, the said fairs, all persons coming to, being at, or going from same, together with their cattle, goods, wares and merchandizes, shall be exempted, and privileged, from all arrests, attachments, and exe- cutions, whatsoever, except for capital offences, breaches of the peace, or for any controversies, suits, or quarrels, that may arise and happen during the said time, in which case process may be immediately issued, and proceedings had, in the same manner as if this act had never been made, any thing herein before contained, or any law, custom, or usage, to the contrary thereof, in any wise, notwithstanding.

"IV. Provided always, That nothing herein contained, shall be construed, deemed, or taken, to derogate from, alter, or infringe, the royal power and prerogative of his Majesty, his heirs and successors, of granting to any person or per- sons, body politic and corporate, the privileges of holding fairs, or markets, in any such manner as he or they, by his or their royal letters patent,

or by his or their instructions, to the Governor, or Commander in Chief of this domain, for the time being, shall think fit."

This may sound strange to some of our patriot- ic readers; but we must not forget that the Colo- nies were still wearing the yoke of their Royal Master without daring to murmur. Indeed, if one takes the trouble to study the phraseology of any Act of the Governor's, Councils, General Assembly, or courts-he will be impressed with feelings akin to disgust. Mark the abject humil- ity of a people who had sought the wilds of America, hunting some spot where they could cherish the idea of freedom! While they sub- mitted for the time and acknowledged the power of the Royal George II, the spark of freedom never entirely died out-as his successors grad- ually learned !

The custom of holding fairs in all the towns of the Colony, was one that followed the Eng- lish settler to America. He had enjoyed the privileges of fairs in his old country. We have record evidence, such as orders of court, sher- iff's returns, etc., to show that the fairs provided for in the charter, were regularly held for many years, conflicting often with the sessions of court -Litigants, officers and witnesses claiming the immunities saved to them by the law in relation to fairs. These fairs were a necessity in the early days of the country. The increasing pop- ulation required some scheme to enable them to dispose of their surplus, such as horses, cattle, etc .- the mechanic coming in for his share of benefits. People came from the surrounding country in such numbers, with their animals, products, wares, etc., that the Court-or Justices -were frequently called upon to give aid for the accommodation of those who came illy pro- vided. And often Deputy Sheriffs were appoint- ed to assist the Superintendents, to keep good order, etc. The increased sales of property, and exchanges of same between the people as they thus assembled twice yearly, brought about an intercourse with the outlying settlements that proved of great advantage. No telegraph; no regular mails in the border country. Letter writ- ing was rare; and letters generally sent by some friend or by some person "intending shortly to visit certain parts." These fairs contributed largely toward developing the new town of Win- chester. Her many vacant lots were rapidly purchased by visitors; and thus the town be- came the central market for the lower section of the Valley. The old deeds from Wood and Fairfax show that persons came from all the settlements to start some kind of business; and we find quite an increase of licenses for the "Ordinary Keeper"-and other enterprises. When

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CITY OF WINCHESTER, 1743-1850

Winchester was founded by Mr. Wood in 1744, we have no evidence that any foundation for a village had been laid. The whole country for miles around was in virgin forest. Indeed, early orders of Court make mention of the impene- trable forests, and make careful orders that cer- tain commissioners shall proceed to cut a roadway through the dense forests out to the grass land both to the North and the South from the coun- ty seat. But in many cases these continuous for- ests were of great advantage to those who were building the new village, furnishing the rude material for the log-cabins. The court had al- ready appointed persons to clear the ground for the courthouse-saving such logs as would be suitable for a substantial building. So we have it fully settled that the first courthouse was a log structure; and so also was the jail. In- structions given that the logs so used should be uniform in size and the building so constructed, the corners should have each and every log dove- tailed in to add strength to the same. The old deeds reveal to us some interesting features re- garding the young village. In most cases, the lots remote from the "marshy ground" were the first to be made habitable, with their log-cabins; but very few in the North and South ends of the survey were built on until about 1748, when orders of court extend to the houses at the South end of Loudoun Street "recently erected;" the owners thereof notified that they had not complied in building such chimneys as required of set- tlers who erect houses for dwellings on the town lots. Outlying lots excluded from this requirement. These outlying lots were a feature in the plan of the town, to provide every purchaser of a lot down town, with lots ranging from three to five acres on the South and North ends of the town; to furnish ground for gardens, pasturage for stock, etc., and these lots as they passed to the villager, were enclosed. A great many of the outlots remained open for a number of years, and were called the "common," where village cows were expected to roam at will; and the boys of that period had no limitations to their sports, when once on the "common." No fears of interference from the "cops" from down-town. For there were no such useful officers in the early life of Winchester. As the population in- creased, the boys waxed warm; and tradition furnishes glowing accounts of the battles royal, fought to a finish on the old Common. The Common on the South was for many years un- enclosed. Indeed, at least ten acres was not embraced in any grant or in the plan of the town, though within the boundaries; and because no owner appeared, it was known as the Common for more than one hundred and twenty years;

and was designated by the Courts as the place for public executions. It was the place for hold- ing general muster of the militia. The Common on the South was generally called Sheep Hill; and became so well known, that an order of court directs the sheriff to erect a "suitable build- ing on Sheep Hill Common to be used for the safe keep of persons sick with the smallpox."

This Hill or Common must not be confounded with that part of the town proper, which has had for many years its local distinction "Potato Hill." Many old citizens of to-day relate inci- dents told by the fathers of the origin of this name.

The North Common was distinguished as Fort Hill,-by reason of the erection of Fort Loudoun there in 1756-7. The North end of the town was not laid off into streets at that time. No street North of Piccadilly, or rather Fairfax Lane. James Wood conveyed parcels of land, ranging from five to twenty acres, to be taken from his tract where it adjoins Rutherford's grant. One such five acres was conveyed to Robert Craik. The survey fixes this as adjoining the lots laid off for town lots, and adjoins the town lots pre- viously conveyed to said Craik and Enoch Pear- son. (Town lots not be confounded with "Pub- lic Lots.")

This survey was once part of the stockade of the Fort. Being all of Loudoun Street at that point, and extending eastward toward present tracks of the W. & P. R. R. When Col. Wash- ington surveyed and laid out the plan of the Fort, he evidently had an informal grant from James Wood, and the consent of the Lord Proprietor Fairfax, to erect a fort on the site he had select- ed. For be it remembered that while James Wood's grant embraced the land where Winches- ter now stands, Fairfax always claimed his year- ly rents, and the right to locate sites for towns within his dominion. He doubtless exercised the same right in relation to the erection of forts. Be that as it may, Washington was not embar- rassed by any claimant; the welfare of the pub- lic demanded this protection; and doubtless, the entire population endorsed his adoption of what was known as the North Common for the site of his fortification. He was fully empowered by an Act of Assembly March 17, 1756. In Henning's Statutes, Vol. 7, p. 34, we find this clause of the law: "And whereas it is now judged necessary that a fort should be immediately erected in the town of Winchester, County of Frederick, for the protection of the adjacent inhabitants against the barbarities daily committed by the French and their Indian allies; be it therefore enacted, that the Governor or Commander-in-Chief of the Colony for the time being, is hereby empowered,

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and desired to order a fort to be built with all possible dispatch, in the aforesaid town of Win- chester; and that his honor give such orders and instructions for the immediate effecting and gar- risoning the same, as he shall think necessary for the purpose aforesaid." The Act appropriates £1,000. ($5,000) for carrying the provisions into effect. This fort was called Fort Loudoun, in honor of Lord Loudoun who had been appointed Commander in Chief of the British armies, then in America. The Virginia Historical and Philo- sophical Society, many years ago, had an engrav- ing made of the old fort, which shows it in a good state of preservation, showing it to have been a field work, or redoubt, having four bas- tions, whose flanks and faces were each 25 feet, with curtains 96 feet. When Loudoun Street was extended beyond Piccadilly, going North, it was necessary to cut through the South and North walls, leaving the larger part containing the old well, on the West side. A small part of the two walls, with the two eastern bastions and end wall, was left on the East side of the street. We have reliable tradition that Col. Washington had his own Regiment, then stationed at Win- chester, to throw up the earthworks and sink the well, through a solid rock to the depth of 103 feet, which afforded an ample supply of good water. (The well at this writing is in a good state). The fort embraced a half acre; many of its embankments and mounds are to be seen, and have been carefully preserved. Howe says: "The fort contained a strong garrison; and, as was stated by one of the oldest inhabitants of Winchester in 1843, that he had been informed by Washington's officers, that Washington mark- ed out the site of this fort, and superintended its erection; that he bought a lot in Winchester ; and had a blacksmith shop erected on it, and brought his own blacksmith from Mt. Vernon to make the necessary iron work; and when the work was completed, Washington had it mount- ed with six 18-pounders, six 12-pounders, six 6-pounders, four swivels and two howitzers." This fort doubtless, was much needed to afford protection to the inhabitants of outlying dis- tricts. The French and Indians had combined to destroy the settlers in those districts; and they were compelled to flee for safety. So Winches- ter at that early period became a great rallying point. The Blue Ridge at that time was con- sidered the frontier line; and settlers to the West of that line stood in great danger from the fre- quent incursions from the French forts along the Ohio, etc. So we can readily see that a well- equipped fort, with Col. Washington on the ground, was the initial step toward the making of the western empire. Ever after this event, the

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Shenandoah Valley Pioneers and Their Descendants: A History of Frederick County, Virginia., Part 23

Author: Cartmell, T. K. (Thomas Kemp), 1838-1920 Publication date: 1909 Publisher: [Winchester, Va.] : [Printed by the Eddy Press Corp.] Number of Pages: 607

Author: Cartmell, T. K. (Thomas Kemp), 1838-1920
Publication date: 1909
Publisher: [Winchester, Va.] : [Printed by the Eddy Press Corp.]
Number of Pages: 607