has applied for a _habeas corpus_, that he might be brought up and
an order made for his enlargement, according to his application to
the sheriff. His counsel, however, does not desire that he should
be put to the expense and trouble of the writ, unless it should be
thought that he is entitled to the liberty of the rules bounds. As
I had an opportunity of consulting my brethren on the subject, I
have availed myself of it, and I now give our unanimous opinion,
that the sheriff is bound to keep the applicant a close prisoner.
The application is founded on the Act of 1741, Rev. St., c. 90, s.
11. It enacts, that, "For the preservation of the health of such
persons as shall be committed to the county prisons, the court
shall have power to mark out such a parcel of land, as they shall
think fit, not exceeding six acres, adjoining the prison, for the
rules thereof; and every prisoner not committed for treason or
felony shall have liberty to walk therein, out of prison, for the
preservation of his or her health."
If there were no other objection to this application but its
novelty, that would be sufficient. It is the first that has been
made, as far as we have heard, since the act passed, which is now
more than one hundred years. If this were an absolute right of all
persons committed under sentence for misdemeanors, there can be no
doubt that it would have been long before claimed and constantly
exercised. But we think the construction of the act is plainly
against it. It seems to have been made in reference to a known
usage and regulation respecting prisons in the mother country.
There, by "rules" of the several courts, debtors and prisoners
for misdemeanors have the liberty of walking in the prison yards,
or within such other limits as the courts prescribe for their
respective prisoners, at such hours and on such days as "the rules"
may designate. Those "grounds" came in time to be called the "rules
of the prison" because they were laid off and the prisoners had
liberty of exercise therein by rule of court for that prison. In the
same manner and for the same purpose the grounds are to be laid out
adjoining our prisons. The courts "shall have the power," that is
to say, they may lay off ground, little or much, but not to exceed
six acres, adjoining the prison, for the rules thereof. These last
words, "for the rules thereof," show, that with each court it was
left to make such rules respecting the prisoners committed by it as
to the extent, periods and durations of enlargement out of close
prison for exercise and health, as the situation of the prison,
the season of the year, the danger of escape or the character of
the prisoners, or the enormity or mildness of their offenses might
suggest to the court, restraining them, indeed, from allowing more
than six acres in space to any prisoner, and from extending the
liberty to traitors and felons, or persons committed as such. Hence,
also, the expression that the prisoner may have liberty "to walk
therein for the preservation of his health," which shows that the
courts had the power to allow the prisoners merely the "liberty of
walking," at particular hours, and require them still to have their
abode in the prison. Such, at first, was no doubt, the practice.
But in laying out the bounds the rules of the court in modern days
practically exempt persons committed in execution for debt from any
imprisonment within the jail, by allowing them to walk, not for
particular hours, but at all times of the day and night within the
rules. As they are not required to eat or sleep within the prison,
they are, in effect, allowed to live out of the walls, provided they
do not go out of the rules.
But with regard to persons committed under sentence for crimes, no
rules have ever been passed. At least, we have known of none; and
the applicant does not state that there is any such rule for Anson
Superior Court. We do not say that it might not be proper, in some
cases, to grant to minor offenders the liberty of exercise and fresh
air at reasonable times and for a moderate period. But that is,
necessarily, as each court may order in regard to its own prisoners;
for as the imprisonment itself and its duration are within the
discretion of the court, so must the degree of its vigor be, at
least, as to the power of mitigating it within the extent allowed by
the statute. The reason why no _regula generalis_ has been adopted
by the court, doubtless has been, that our courts are not in the
habit of sentencing convicts to imprisonment, unless in those cases
in which the courts think that, for the purposes of correction
and example, there should be actual imprisonment during the whole
period. But if there be any general rule upon the subject in any
court it would be under the control of that court, whether each
prisoner should or should not be allowed the indulgence, and the
sentence on this person is, "that he _shall_ be imprisoned _in_ the
public jail of Anson for twelve months." Of course, this prisoner
cannot demand an enlargement out of prison, as a matter of right.
As I should be under the necessity of remanding the prisoner, if
brought up on _habeas corpus_, I decline issuing the writ at all,
according to the suggestion of his counsel.
[Illustration: THOMAS BRAGG.]
THOMAS BRAGG.
BY PULASKI COWPER.
Thomas Bragg was the son of Thomas and Margaret Crossland Bragg,
and was born in the town of Warrenton, in Warren county, on the 9th
day of November, 1810. His father was a carpenter and contractor,
a man of strong will, good judgment, and hard common sense, who
devoted the fruits of his labor to the education of a large family
of children. John, an older brother of Thomas, was a distinguished
judge of Alabama, and a member of Congress from the Mobile District,
in 1852, but declined a renomination. General Braxton Bragg, whose
military reputation is familiar to the country, was a younger
brother. Alexander J. was an architect of high standing in Alabama.
Dunbar was a leading merchant in Texas; and William, the youngest
brother, died near Chattanooga, July 25, 1863, from wounds received
in battle. Mrs. Mary L. Cuthbert, widow of the late James E.
Cuthbert, a sister, and the last of the children, died recently in
Petersburg, Va.
Thomas Bragg received his preliminary schooling at the Academy in
Warrenton and his education was completed at Captain Partridge's
Military School, in Middletown, Connecticut, where he remained
about two and a half years. Soon after returning from Middletown he
commenced the study of law under the late Judge Hall, of Warrenton,
one of the judges of the Supreme Court, and, on obtaining his
license to practice in the courts of the State, he started out,
with a horse and stick gig and fifty dollars, for Jackson, the
county-seat of Northampton county, N. C., which place he made his
home in the spring of 1833. This was all the assistance he had, but
his paying practice was immediate, and he never needed aid from any
other quarter.
Shortly after settling in Jackson, Benjamin B. Blume, who was County
Attorney, resigned the office and removed to Petersburg, Va.,
selling his library to the subject of our sketch, who was elected
County Attorney, beating his opponent, Colonel Samuel B. Spruill,
the office then being worth about five hundred dollars. He was a
strong and vigorous prosecuting officer, discharging the duties in
strict conformity to his oath, and showing neither favor to a friend
nor resentment to an enemy. His execution of the office was so rigid
that it affected his popularity; evidence of which was visible,
in some quarters, even up to the time he assumed the office of
Governor. Upon one occasion, after he had spoken in the prosecution
of a citizen of considerable prominence, Mr. B. F. Moore, who was
counsel for the defendant, made strictures upon his course, and
charged that his zeal was the result more of feeling and spite
than of his conceived duties under his oath. He was seen to bow
gracefully, but determinedly, to Mr. Moore, as he proceeded with his
speech. Immediately after the adjournment of court, a note was borne
from him to Mr. Moore by Colonel Spier Whitaker. It was with some
difficulty that the matter was settled, but friends interposed, and
it was satisfactorily adjusted to both parties; and these men were
not formal in their subsequent intercourse, but, on the contrary,
their relations were always cordial and friendly. Mr. Moore's strong
and feeling speech in the Supreme Court-room, the day after Governor
Bragg's funeral, clearly shows this.
It was not long after he had been at the bar when an important
case was begun in Hertford county, _Beale_ vs. _Askew_. It was a
suit for damages for libel. A. J. Askew was charged with sending
to the Norfolk (Va.) _Herald_, then edited by Thomas G. Broughton,
Esq., a notice of Beale's marriage to a woman in Winton of infamous
character. The case was moved to Chowan and tried in Edenton. Bragg
and William W. Cherry, then very young men, appeared for Askew,
and Judge Augustus Moore and Mr. Kinney, at that time the leading
Eastern lawyers, were the opposing counsel. Governor Bragg alluded
in his speech to his youth and to his being a stranger as working
to his disadvantage before the jury. Mr. Kinney, in his kindest
manner, complimented in his speech these young men for their able
conduct and management of their case, and predicted their future
usefulness and distinction. Mr. Cherry died when quite a young man.
He possessed a powerful intellect, and was unquestionably, the most
brilliant speaker the East ever had.
On the 4th day of October, 1837, Bragg was united in marriage to
Miss Isabella M. Cuthbert, of Petersburg, Va. He first met her in
Jackson while on a visit to her sister, Mrs. Starke, whose husband
was at that time engaged in business in Jackson. Their associated
lives were long and happy, and marked by the most devoted attention
on his part, and cemented by a mutual affection and tenderness. She
only survived him a few years.
Bragg was a close and hard student. Except when called away on
business, he was rarely out of his office; and he left his house
at night only when urgent engagements compelled it, which was
infrequent. So closely did he confine himself to study and to the
full preparation of his cases, and so fully was his time occupied,
that he seemed estranged from the community. These seclusive habits,
together with strongly drawn party lines, destroyed to a degree that
social interchange which a more general intercourse would naturally
have engendered. He was not what might be considered a popular
man of the town, but his high moral worth and his honorable and
commendable course of life accorded him the highest consideration
and respect.
His daily course was to smoke his pipe and read his newspapers for
about half an hour after breakfast, then repair to his office, which
was near to his house and on his lot, read law, and prepare his
cases, smoking a good deal of the time, until dinner. After dinner
he would devote another half-hour to newspaper-reading and his pipe,
and then go to his office, resuming his law studies and duties until
late in the evening, when he would either take a ride or a walk with
his wife. After supper he would take his smoke and read newspapers,
magazines or other literary works until about ten o'clock, his usual
bedtime. He rarely read law at night, except sometimes shortly
before attending the Supreme Court, when it might be necessary for
him to do so to prepare cases for argument there. Such was his
regular course of life at Jackson, and he was as regular in it as
clockwork. He was not an early riser, usually rising just before
breakfast, which was about nine o'clock in winter and about seven in
summer. He never slept in the afternoons, and during the warm summer
evenings he would occasionally lie down on a lounge, or sofa, which
he kept in his office, and read his law books, but he would never
take an evening nap. During his two terms as Governor he would, when
he had taken his after-dinner smoke, go direct to the executive
office, and remain there until late in the evening, and if alone, it
was rare for one to enter and find him not engaged in either reading
or writing. He was an inveterate smoker, and followed the habit
so persistently that he could not relinquish it, and he carried
his pipe to his courts as regularly as he did his law books. His
constitution was, no doubt, though not perceptibly, affected by it,
and the late gifted Dr. Charles E. Johnson, his family physician,
was fully impressed that it shortened his life and precipitated the
disease of which he died.
Bragg practiced law, regularly, in the Courts of Northampton,
Halifax, Hertford, and Gates counties up to the time he became
Governor. When employed in special cases, he would attend the courts
of Chowan and Washington counties. He had a large and controlling
practice, appearing in nearly every important case, yet but twice
did his practice amount to four thousand dollars a year, and it
was brought to that figure by these special courts, the highest
fee being three hundred dollars, which was the largest single fee
he ever received before the war. He was a diligent and faithful
worker, and a moderate charger. One of his greatest efforts at the
bar, before the war, probably, was made in the case of the _State_
vs. _Garrett_. Garrett was tried for murder in Northampton county,
before Judge Bailey, about 1853. He was defended by Bragg and Mr. B.
F. Moore, and the case occupied two days in taking the testimony.
Both of these gentlemen made strong speeches, but Bragg's speech
was particularly strong. He was deeply interested in the case and
bestowed much labor upon it. He believed his client not guilty. The
State was represented by M. W. Ransom, it being his first appearance
as Attorney-General at Northampton court. He was a young man, and,
having such able lawyers to confront, much sympathy was felt by
the audience in the court room for him. He, however, did not need
it. He saw the necessity for the full development of all the tact,
brain power, and legal knowledge at his command. During the whole
trial he took not a note, and he concluded the argument alike to the
astonishment and admiration of the court, jury, and spectators, the
very culmination, beyond doubt, of the greatest legal effort of his
life. Garrett was convicted of murder, but before the day appointed
for his execution he broke jail and was never afterwards captured or
heard from.
It is by some supposed, and has been by some remarked, that Bragg
developed as a lawyer after the war, and that up to that time he
was merely a fair lawyer, with a good local reputation. This is a
very great mistake. Though he may not have achieved an extended
State reputation, yet he was recognized by the bar of the State as a
strong lawyer, and he was accepted before the war by the people of
the East as one of the leading, if not the leading, lawyer of that
section.
In 1842 he was elected to the Legislature--House of
Commons--defeating Thomas J. Gatling, a brother of the inventor
of the Gatling gun. In 1844 he was defeated for the Legislature
by Judge David A. Barnes, who had just before this come to the
Northampton bar and had settled in Jackson. After this he sought no
office, but was an active worker in the county political campaigns.
In 1844 he was Presidential Elector on the Polk and Dallas ticket
for the First District, his opponent being William W. Cherry,
Esq., of Bertie county. In 1848 he was again elector for the First
District on the Cass and Butler ticket, his opponent being the Hon.
Kenneth Rayner, of Hertford county, one of the strongest political
speakers of his day, and a man much to be dreaded in debate. At this
time Bragg was not widely known in politics, and it was considered
by the Whigs that Mr. Rayner would have a "walk-over." Their first
meeting was at Rich Square, in Northampton, twelve miles from
Jackson. Mr. Rayner's friends in Jackson (and the town was about all
Whig) said they were "going out to see Rayner eat Bragg up," but the
"eating up" was not done at that time, and they came back not so
exhilarated as they went. Mr. Rayner had met his match, and Bragg
had fully satisfied his Democratic hearers on that occasion. This
campaign was exciting and ably conducted; and after it was ended Mr.
Rayner was frequently heard to say that Thomas Bragg was the ablest
debater and the strongest opponent he had ever met on the stump.
In 1852 he was again Elector for the Ninth District on the Pierce
and King Presidential ticket, his opponent being Hon. David A.
Barnes, of Northampton county. Judge Barnes was a ready and
effective speaker. They had often crossed political swords. This
campaign was marked by courtesy and ability.
In 1854 the Whig party nominated for Governor General Alfred
Dockery, of Richmond county, and at that time Governor Bragg's name
was prominently mentioned as the Democratic candidate. General
Dockery opened his campaign at Gatesville, in Gates county. Bragg
was there attending court, and he was called on to reply, which he
did very successfully. It is said that he made a speech that much
gratified and pleased his party friends. The week following the
General spoke at Edenton, during court, and Bragg again replied with
equal effect. Soon thereafter the Democratic convention assembled
in Raleigh, and Bragg was unanimously nominated for Governor.
He accepted this nomination with reluctance, and for a little
while considered it. He had a good practice, amounting to about
thirty-five hundred dollars a year. His home was comfortable and
attractive, and his manner of life was quiet and contented. It was
natural that a man thus situated and surrounded, and not beset by
the disquietude of political strife and commotion should hesitate
before disrupting such congenial associations. Upon reflection,
however, he accepted, and when his courts were ended, joined General
Dockery, and entered upon one of the most remarkable campaigns
ever had in the State. General Dockery had been canvassing without
any regular opponent, but the training incident to his having been
pitted against some of the best Democratic talent in the State, as
he went along, had developed him into a dangerous antagonist even
for Bragg. The campaign waxed hotter and hotter, up to the day of
the election, and, in all probability, had the election been a month
later, Dockery would have been victorious.
An incident of the campaign may afford passing amusement. Dockery,
in one of his speeches, had characterized his opponent as the
aristocratic candidate, and said that he drove a fine horse, rode
in a high sulky, and wore kid gloves. Bragg, in his rejoinder,
stated that he was not at all an aristocrat, but only a hard-toiling
lawyer, and the son of a plain carpenter, who had exhausted his
means in educating his children. "But, fellow-citizens," said he,
"General Dockery himself is in fact the aristocratic candidate, for
he lives in the only brick house in the whole county of Richmond."
At this juncture the General rose right up behind him, and, raising
up his hands before the crowd, exclaiming in a loud voice: "Yes,
and these old yaller hands made all the bricks that went into it,
and toted them up thar, too." The effect was crushing, the crowd
yelled, and Bragg was afterwards heard to say he wished he had left
the old brick house alone. He defeated Dockery by a majority of two
thousand and eighty-five votes, and was inaugurated Governor of
North Carolina on the first day of January, 1855.
In 1856 he was again nominated for the second term, his opponent
this time being Hon. John A. Gilmer, of Guilford county. Mr. Gilmer
had a high reputation both as lawyer and politician. He was looked
upon as the strongest man of his party, but Governor Bragg made it
at once manifest that he was his equal in this admirably conducted
campaign. Being desirous at their first joint discussion to have
their positions clearly and correctly put before the people of the
State, Governor Bragg carefully prepared a full account of their
first meeting, which took place at Murphy, in Cherokee county, and
sent it to a friend to be published in the Raleigh _Standard_. It
was known only to his friend and the editor, and so impartially was
it done that no one suspected its authorship.
In this campaign with Mr. Gilmer, Governor Bragg, though he confined
himself to the record, was quite severe on the course of Mr. Rayner,
who had espoused the "Know-Nothing" cause. The published accounts
of these references so irritated Mr. Rayner that for a long time
bitterness existed, and their intercourse became entirely estranged.
During the State Fair of 1858, Mr. Rayner met an intimate friend
of the Governor at the corner of Fayetteville street, where stood
the old North Carolina Book Store, and said to him: "I have a high
regard for Bragg; our estrangement is not well founded, and I
desire to renew our former relations." This was told the Governor
a few moments afterwards in the executive office, who simply bowed
his head, making no reply. That day, seeing Mr. Rayner on the fair
grounds, he went straight to him and offered his hand. These men
were good friends afterwards.
Governor Bragg defeated Mr. Gilmer by a majority of twelve thousand
six hundred and twenty-eight votes, and was the second time
inaugurated Governor of North Carolina on the first day of January,
1857.
In his judicial appointments he exercised sound judgment. He was
impressed with the belief that young men of promise and of good and
studious habits would make the best judges, as they would subject
themselves to greater application. Under this view he appointed
Jesse G. Shepherd, of Cumberland, and Samuel J. Person, of New
Hanover, Judges of the Superior Courts, and they adorned the bench
and were among our most efficient judges. In this connection, in
1855, he conferred the appointment of Attorney-General upon Hon.
Joseph B. Batchelor, then a young man, and now one of the leading
lawyers of the State.
In the fall of 1856, and about the time of the State Fair, the
Governors of the Southern States were called to meet in Raleigh
to consider such action as might become necessary in the event
of Frémont's election to the Presidency of the United States in
November following. Governor Wise, of Virginia, Governor Adams, of
South Carolina, and Governor Bragg, of North Carolina, were the only
Governors present. An informal meeting was held in the parlors at
the executive mansion. Among others present were General L. O'B.
Branch, Governor Holden, Wesley Jones, A. M. Lewis, M. A. Bledsoe,
Joseph A. Engelhard, and Pulaski Cowper. The _Raleigh Register_,
then edited by Major Seaton Gales, a vigorous and ready writer,
charged that this meeting of Governors was a step to break up the
Union, and was quite severe in its criticisms. Governor Wise was
warm and determined in his views, and favored immediate resistance,
by fighting in the Union, in the event of Frémont's election, and
that his election should be accepted as the overt act. Governor
Bragg's position was quite conservative, his views being calmly
stated. His sound reason, prudence, and wise counsel produced a
deep impression, and was the subject of much favorable comment the
next day. Owing to the small number of Governors present, nothing
definite was outlined, but this may be characterized as the first
secession meeting ever held in the South.
In the Legislature of 1858 Governor Bragg was elected United States
Senator. He took a high stand in the Senate, and made a noted speech
on the bill providing for the Florida Claims. He also took an active
part in the discussion of other important measures of that time.