USA > West Virginia > Randolph County > The history of Randolph County, West Virginia. From its earliest settlement to the present, embracing records of all the leading families, reminiscences and traditions > Part 10
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Excessive tillage of land exhausts it, because it takes out the organic matter and puts nothing back. It does not exhaust the disintegrated rock -the sand, the clay, the dust; but it takes out the vital part, the mold of vegetation. Fertilizers are used to restore the fertility of exhausted land. That process is misleading, in many cases. Too often the fertilizing mater- jal is a stimulant rather than a food to the land. It often adds no element of fertility, but, by a chemical process, compels the soil to give up all the remaining humus; and when the vegetable matter is all gone from the soil, all the fertilizers of that kind in the world would not cause the land to pro-
* Sce Maury's Physical Geography of the Soa.
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ducea crop. The intelligent farmer does not need be told this. His experience has taught him the truth of it. No land is so completely sterile as that which, through excessive use of fertilizers, has been compelled to part with its vegetable matter. Something cannot be created from nothing. If a soil has no plant food in it, and a fertilizer contains no plant food, the mixing of the two will not produce plant life.
A crop of clover, of buckwheat, of rye, or any other crop, plowed under, fertilizes land because it adds vegetable matter to the soil. Then if the soil is stubborn about yielding up its fertility, a treatment of the proper fertil- izing agent will compel it to do so. Bottom lands along the rivers and creeks are usually more fertile than lands on the hills because rains leach the uplands and wash the decaying leaves and the humus down upon the lowlands. The soil along the river bottoms is often many feet deep, and fertite all the way down. This is because the washings from the hills have been accumulating there for ages faster than the vegetation which annually drew from it could exhaust the supply. It sometimes happens that the surface of a deep soil is exhausted by long cultivation; and that a sub-soil plow, which goes deeper than usual, turns up a new fertile soil which had lain beyond the reach of plant roots for ages. Occasionally a flood which covers bottom lands leaves a deposit of mud which is full of humus. This enriches the land where it lodges, but the mountain districts from which it was carried were robbed of that much fertility.
Disintegrated rock of all kinds cannot be made fertile by the usual addition of vegetable humus. Certain chemical conditions must becomplied with. Limestone generally forms good soil because it contains elements which enter into plants. Strata of rock, as we now see them, were once beds of sand and sediment. They hardened and became stone. Sandstone is formed of accumulations of sand; shale is made from beds of clay or mud; limestone was once an aggregation of shells and skeletons of large and small living creatures. When these rocks are broken up, disintegrated and become soils, they return to that state in which they were before they became rock. The limestone becomes shells and bones, but of course pul- verized, mixed and changed; sandstone becomes sand again; shale becomes mud and clay as it originally was. This gives a key to the cause of some soils being better than others. A clay bank is not easily fertilized; but a bed of black mud usually possesses elements on which plants can feed. So, - if the disintegrating shale was originally sterile clay, it will make a poor soil; but if it was originally a fertile mud, the resulting soil will be good. If the disintegrating sandstone was once a pure quartz sand, the soils will likely be poor, but if it was something better, the soil will be better. The fertility of limestone soil is mainly due to the animal matter in the rock. It should always be borne in mind, however, that the difference of soils is dependent not so much upon their chemical composition as upon the physical arrangements of their particles.
Plants do not feed exclusively upon the soil. As a matter of fact, a large part of the material which enters into the construction of the stems and leaves of some plants is derived from the air. Some plants prosper without touching the soil. A species of Chinese lily flourishes in a bowl of water with a few small rocks in the bottom. On the other hand there are plants that will wither in a few minutes if taken from the ground. This shows that some plants extract more material from the soil than other. It is a common saying that buckwheat rapidly exhausts land. 6
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Some lands are more affected by drought than others, when both receive the same rainfall. This may be due to the character of the under- lying rocks, although usually due to a different cause. If the soil is shallow and the subjacent rocks lie oblique and on edge, they are liable to carry the water away rapidly by receiving it into their openings and crevi- ces, thus draining the soil. But if the subjacent rocks lie horizontally, water which sinks through the soil is prevented from escaping, and is held as in a tub, and is fed gradually upward through the soil by capilliary attraction. This land will remain moist a long time. But the more usual . reason that one soil dries more rapidly than another, is that one is loose and the other compact. The compact soil dries quickest. The smaller the interspaces between the ultimate particles which make up the soil, the more rapidly water raises from the wet subsoil by capilliary attraction, and the supply is soon exhausted. The more compact the soil the smaller the spaces between the particles. In loose ground the interspaces are larger, the water rises slowly or not at all, and the dampness remains longer beneath the surface. In the western countries where the summers are hot and rainless, the farmers irrigate their land, thoroughly soaking it from a neighboring canal. If they shut the water off and leave the land alone, in a few days it is baked, parched, hard and as dry as a bone. But the farmer does not do this. As soon as the water is turned off, he plows and harrows the land making the surface as loose as possible. The result is, the imme- diate top becomes dry, but a few inches below the surface the soil remains moist for weeks. The water cannot escape through the porous surface. The same rule applies everywhere. If two cornfields lie side by side, especially in a dry season, and one is carefully tilled and the surface kept loose, while the other is not, the difference in the crops will show that in one case the moisture in the soil was prevented from escaping and was fed to the corn roots, while in the other case it rose to the surface and was blown away by the wind, leaving the corn to die of thirst.
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CHAPTER IX,
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AMONG OLD LAWS,
"Yet I doubt not through the ages one increasing purpose runs, And the thoughts of men are widened with the process of the suns." -Tennyson.
The settlement of the territory now embraced in West Virginia com- menced about 1730, and before the close of the eighteenth century there were cabins or colonies in the valleys of all the principal rivers of the State. The first settlers were governed by the laws in force in Virginia from the earliest occupation of our territory until 1863. A proper consideration of the history of our State requires that mention be made of some of the old laws. They should be studied to show the progress of society during the past century. There are persons who speak of the "good old times" as though everything were better than now, and who speak of the people of a hundred years ago as if they were greater, purer, nobler than the men of today, and as if, when they died, wisdom died with them. The historian knows that this belief is erroneous. Not only are there men now living who are as upright, wise and patriotic as any who ever lived, but society, in all its branches and departments, has grown better. Only the pessimist refuses to see that the human race is climbing to a higher level, and not retrograding.
To bring this truth nearer home to the people, let a retrospective view of the customs and laws prevailing here a century ago be taken. That the people of Virginia tolerated barbarous laws long after the close of the Rev- olutionary War is proof that the laws were not obnoxious to a majority of the people, otherwise they would have changed them. Before proceeding to a statement of the Acts of the Virginia Legislature, let it be remembered that at that time Washington was President of the United States and the great men of Virginia, at the close of the last century and the beginning of this, were in their prime. They were responsible for the bad laws as well as for the good; if not directly, at least indirectly, for they were looked upon as leaders. Patrick Henry, who had exclaimed, "give me liberty or give me death," was yet living and practicing law; John Randolph, of Roan- oke, was entering his career of greatness; James Monroe, soon to be Presi- dent of the United States, was a leader in Virginia; George Mason, the author of the Bill of Rights, had not yet lost his influence; James Madison, also to be President of the United States, was a leader among the Virgin- ians; William Wirt, one of Virginia's greatest lawyers, was in his prime; Edmund Randolph, Governor of Virginia, was in politics; John Marshall, the famous Chief Justice, was practicing in the courts; Thomas Jefferson, the author of the Declaration of Independence, was in the height of power;
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and the list might be extended much further. Yet, with all of these truly great men in power in Virginia, the Legislature of that State passed such laws as will be found below:
On December 26, 1792, an Act was passed for the purpose of suppress- ing vice, and provided that for swearing, cursing or being drunk the fine should be eighty-three cents for each offense, and if not paid, the offender should have ten lashes on the bare back. For working on Sunday the fine was one dollar and sixty-seven cents. For stealing a hogshead or cask of tobacco found lying by the public highway, the punishment was death.
On December 19, 1792, an Act was passed by the Virginia Legislature providing that any person found guilty of forgery must be put to death; and the same punishment was provided for those who erased, defaced or changed the inspector's stamp on four or hemp. No less severe was the punish- ment for those who stole land warrants. But for the man who made, passed or had in his possession counterfeit money, knowing it to be such, the pen- alty of death was not enough. He was not only to be put to death, but was forbidden the attendance of a minister, and must go to execution "in the blossom of his sin." The design of the law-makers evidently was to add to his punishment not only in this life, but, if possible, send him to eternal punishment after death. It is not in the province or power of the writers of history to ascertain whether the Virginia Assembly ever succeeded in killing a man and sending him to eternal torment in the lake of fire and brimstone because he had a counterfeit dime in his pocket, but the proba- bility is that the powers of the law-makers ceased when they had hanged their man, and a more just and righteous tribunal then took charge of his case.
It is evident that the early Virginia law-makers laid great stress on the idea of clergy to attend the condemned man. If they wished to inflict extreme punishment they put on the finishing touches by denying the priv- ilege of clergy. On November 27, 1789, an Act was passed by the Legisla- ture segregating crimes into two classes, one of which was designated as "clergyable," and the other as "unclergyable." It was provided that the unclergyable crimes were murder in the first degree, burglary, arson, the burning of a Court-House or prison, the burning of a clerk's office, felone- ously stealing from the church or meeting-house, robbing a house in pres- ence of its occupants, breaking into and robbing a dwelling house by day, after having put its owner in fear. For all these offences the penalty was death. A provision was made in some cases for clergy; but, lest the con- victed man's punishment might not thereby be too much lightened, it was stipulated that he must have his hand burned before he was hanged. The same law further provided that, although a man's crime might not be unclergyable, yet if he received the benefit of clergy, and it was subse- quently ascertained that he had formerly committed an unclergyable offense, he must then be put to death without further benefit of clergy. In this law it was expressly provided that there should be no mitigation of punishment in case of women.
By an Act of December 26, 1792, it was provided that the man who apprehended a runaway servant and put him in jail was to receive one dollar and forty-seven cents, and mileage, to be paid by the owner. This law was, no doubt, intended to apply chiefly to slaves rather than to white servants. If the runaway remained two months in jail unclaimed, the sheriff must advertise him in the Virginia Gazette, and after putting an iron
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collar on his neck, marked with the letter "F," hire him out, and from his wages pay the costs. After one year, if still unclaimed, he was to be sold. The money, after the charges were paid, was to be given to the former owner if he ever proved his claim, and if he did not do so, it belonged to the State.
The law-makers believed in discouraging gossip and tattling. A law passed by the Virginia Legislature, December 27, 1792, was in the follow- ing. language: "Whereas, many idle and busy-headed people do forge and divulge false rumors and reports, be it resolved by the General Assembly, that what person or persons soever shall forge or divulge any such false report, tending to the trouble of the country, he shall be by the next Jus- tice of the Peace sent for and bound over to the next County Court, where, if he produce not his author, he shall be fined forty dollars or less if the court sees fit to lessen it, and besides give bond for his good behavior, if it appear to the court that he did maliciously publish or invent it."
There was a studied effort on the part of the Legislators to discourage hog-stealing. It is not apparent why it should be a worse crime to steal a hog than to steal a cow; or why the purloining of a pig should outrank in criminality the taking of a calf; or why it should be a greater offense to appropriate a neighbor's shoat than his sheep. But the early law-makers in Virginia seem to have so considered it and they provided a law for the special benefit of the hog thief. This law, passed by the Legislature December 8, 1792, declared that "any person, not a slave, who shall steal a hog, shoat or pig," should receive thirty-five lashes on the bare back; or if he preferred to do so, he might escape the lashing by paying a fine of thirty dollars; but whether he paid the fine or submitted to the stripes, he still must pay eight dollars to the owner for each hog stolen by him. This much of the law is comparatively mild, but it was for the first offense only. As the thief advanced in crime the law's severity increased. For the second offense in hog-stealing the law provided that the person convicted, if not a slave, should stand two hours in a pillory, on a public court day, at the Court-House, and have both ears nailed to the pillory, and at the end of two hours. should have his ears cut loose from the nails. It was expressly pro- vided that no exception should be made in the case of women. If the hog thief still persisted in his unlawful business and transgressed the law a third time, he was effectually cured of his desire for other people's hogs by being put to death.
The slave had a still more severe punishment for stealing hogs. For the first offense he received "thirty-nine lashes on the bare back, well laid on, at the public whipping-post." For the second offense he was nailed by the ears to a post, and after two hours of torture, had his ears cut off. For the third offense he was put to death. The law provided that if a negro or Indian were put on the stand as a witness against a person accused of steal- ing hogs, and did not tell the truth, he should be whipped, nailed to a post, his ears cut, and if he still testified falsely, he paid the penalty with his life. It is not provided how the court shall be led to the knowledge whether or not the witness had told the truth. It appears that the judge was presumed to be infallible in separating false from true testimony in trials for hog-stealing. After a hog had been stolen and killed, the relent- less law still followed it to try to discover if some one else might not be punished. If a person bought, or received into his possession, a hog from which the ears had been removed, he was adjudged guilty of hog-stealing,
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unless he could prove that the hog was his own property. There was also a law forbidding any one from purchasing pork of Indians unless the ears went with the pork. There would be some inconvenience in retailing pork under this restriction, as it would require a skillful butcher to so cut up a hog that each ham, shoulder, side and the sausage should retain the ears.
If stealing hogs was a crime almost too heinous to be adequately pun- ished in this world, horse-stealing was so much worse that the law-makers of Virginia would not undertake to provide a law to reach the case. They, therefore, enacted a law, December 10, 1792, that the convicted horse-thief must be put to death; and, in order that he should certainly reach eternal punishment beyond death, he was forbidden to have spiritual advice. The language of the law is that the horse thief shall be "utterly excluded."
An Act of unnecessary severity was passed December 22, 1792, against negroes who should undertake to cure the sick. It is reasonable and right that the law should carefully guard the people against harm from those who ignorantly practice medicine; but to us of the present day it appears that a less savage law would have answered the purpose. It was provided that any negro who prepared, exhibited, or administered medicine should be put to death without benefit of clergy. It was provided, however, that a negro might, with the knowledge and consent of his master, have medi- cine in his possession.
The law of Virginia required every county to provide a Court-House, Jail, Pillory, Whipping Post, Stocks and a Ducking Stool. But the Duck- ing Stool might be dispensed with if the County Court saw fit to do so. The Whipping Post was the last of these relics of barbarism to be removed. So far as can be ascertained the last public and legalized burning of a convicted man in West Virginia occurred in July, 1828, in the old Court-House in Hampshire County. A negro slave, named Simon, the property of David Collins, was tried on a charge of. assault. The record does not show that he had a jury. The court found him guilty and ordered the Sheriff to burn him on the hand and give him one hundred lashes, chain him, and keep him on "coarse and low diet." The minutes of the court state that the Sheriff "immediately burned him in the hand in the presence of the court," and gave him then and there twenty-five lashes. The remaining seventy- five were reserved for future days.
It is but justice to the law-makers of Virginia, and the people at that time, to state that nearly all of those severe laws came from England, or were enacted in the colony of Virginia many years before the Revolutionary War. Some of them date back to the time of Cromwell, or even earlier. Although the people of Virginia took the lead in the movement for greater liberty, both mental and physical, they could not all at once cut loose from the wrecks of past tyranny. They advanced rapidly along some hnes, but slowly along others. They found those old laws on the statute books, and re-enacted them, and suffered them to exist for a generation or more. But we should not believe that such men as Patrick Henry, Edmund Randolph, Thomas Jefferson, George Washington and the other statesmen and patriots of that time believed that a man should be nailed to a post for stealing a pig, or that the crime of stealing a hymn book from a church should be pun- ished with death without benefit of clergy.
A law passed near the close of the last century, and still in force in 1819, provided Sheriff's fees on a number of items, among which were the following: For making an arrest, sixty-three cents; for pillorying a crimi-
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nal, fifty-two cents; for putting a criminal in the stocks, twenty-one cents; for ducking a criminal in pursuance of an order of court, forty-two cents; for putting a criminal in prison, forty-two cents; for hanging a criminal, five dollars and twenty-five cents; for whipping a servant, by order of court, to be paid by the master and repaid to him by the servant, forty-two cents; for whipping a free person, by order of court, to be paid by the per- son who received the whipping, forty-two cents; for whipping a slave, by order of court, to be paid by the county, forty-two cents; for selling a ser- vant at public outcry, forty-two cents; for keeping and providing for a debtor in jail, each day, twenty-one cents.
It was more expensive to be whipped or pilloried by the Sheriff than by a Constable, although there is no evidence that the Sheriff did the work any more effectively. Since the person who received the punishment usu- ally paid the fees of the officer who performed the service, it is probable that such person preferred being whipped or nailed to a post by a Consta- ble, because it was less expensive. Some of the Constable's fees are shown below: For putting a condemned man in the stocks, twenty-one cents; for whipping a servant, twenty-one cents; for whipping a slave, to be paid by the master, twenty-one cents; for removing a person likely to become a charge on the county, per mile, four cents.
Within the past century several important changes have taken place in the laws under which West Virginia has been governed. An Act of As- sembly, passed November 29, 1792, provided that in cases where a person is suspected of having committed a murder, and the Coroner's jury recom- mend that he be held for trial, and he eludes arrest, the Coroner must seize his house and property and hold them until he surrenders himself or is arrested. Where a defendant was found guilty the costs of the prosecution was collected by sale of his property, if he had any property; but he might pay cost and thus save his property. No Constable, miller, surveyor of roads or hotel-keeper was eligible to serve on a grand jury. A law passed January 16, 1801, provided a fine of five dollars as a penalty for killing deer between January 1 and August 1 of each year. A law enacted January 26, 1814, provided that sheep-killing dogs should be killed. If the owner pre- vented the execution of the law upon the dog he was subject to a fine of two dollars for each day in which he saved the life of the dog. The bounty on wolves was made six dollars for each scalp, by a law passed February 9, 1819. But the bounty was not always the same, nor was it uniform through- out the counties of Virginia. Each county could fix the bounty within its jurisdiction. A law of January 16, 1802, provided a fine of thirty dollars for setting the woods on fire; and a law of January 4, 1805, punished by a fine of ten dollars the catching of fish in a seine between May 15 and August 15.
There was a severe law passed by the Virginia Legislature February 22, 1819, for the benefit of tavern-keepers. It provided a fine of thirty dol- lars for each offense, to be levied against any person not a licensed tavern- keeper, who should take pay from a traveler for entertaiment given. Not only was this law in force in and near towns, but also within eight hundred yards of any public road. There was a law enacted by the Assembly of Virginia December 24, 1796, which was intended to favor the poor people. It is in marked contrast with many of the laws of that time, for they were generally not made to benefit the poor. The law had for its object the aid- ing of persons of small means in reaching justice through the courts. A
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man who had no money had it in his power to prosecute a suit against a rich man. He could select the court in which to have his case tried; the court furnished him an attorney free; he was charged nothing for his sub- ponas and other writs; and he was not charged with costs in case he lost his suit. A law similar to that is still in force in West Virginia.
In 1792 an Act was passed by the Virginia Legislature establishing fer- ries across the principal streams of the State, and fixing the rate of toll. The State was in the ferry business strictly for the money in it. The law provided that no person should operate a private ferry for profit where he would take patronage from a public ferry. The penalty for so doing seems unnecessarily severe. The person who undertook to turn a few dimes into his own pocket by carrying travelers across a river, where those travelers might go by public ferry, was fined twenty dollars for each offense, half of it to go to the nearest public ferryman and the other half to the person who gave the information; and in case the public ferryman gave the informa- tion, the entire fine went into his pocket. It will readily be surmised that the public ferryman maintained a sharp lookout for private boats which should be so presumptuous as to dare enter into competition for a portion of the carrying trade, and it is equally probable that competition with pub- lic service soon became unpopular, when a man might receive five cents for carrying a traveler across a river and to be fined twenty dollars for it.
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