_A UNIQUE COURT._
There may be mistake, error, fraud and injustice in court proceedings
and judicial records; but when such records were made more than a
century ago, and contain some part of the history of the people
who made them, and have stood all these years unchallenged and
uncontradicted, such records may be safely accepted as truth. In
writing of a people more than a century after the period in which
they lived--a people who did not have a daily newspaper in their
midst to chronicle their deeds and views, and who were in a country
between which and other parts of the world there was but little if any
communication--it is easy indeed for a facile writer to ascribe to them
characters which they did not have, views which they did not entertain,
and accomplishments with which they were not entitled to be credited,
without taking much risk of being contradicted.
The early history of the colonies and “new settlements” in North
America is and has been for many years a fascinating field for
writers; and it must be confessed that too often a little incident or
tradition has been so magnified by a too vivid imagination that it has
appeared in print as a very readable but colossal falsehood. It is
also lamentable that the plain, unvarnished truth of history has, in
many instances, been so colored and distorted in the effort to make it
romantic, that many persons who could have contributed much valuable
information in the way of simple facts have not done so, because of
a lack of that faculty of imagination which some writers possess to
such a degree that they can inform you beforehand that they are going
to tell you a lie--in part, at least--and yet will tell it in such
beautiful language and in so smooth and plausible a way as to make you
believe the whole story.
The Tennessee pioneers did not have any one with them in their earliest
days to write an account of their experiences, or to portray their
lives and characters; nor did they have any newspapers to make a record
of their doings in the business concerns and affairs of life; and if
they wrote any letters on these matters, they have not been preserved.
They had, however, at Jonesboro, a “County Court of Pleas and Quarter
Sessions,” in which they made and left a record showing much that they
did, and from which, even at this late day, we can get a very clear
insight into their views as to the duties and responsibilities of
citizenship, the power and duty of courts, as well as their notions
concerning the business and social relations of life, and indeed on all
matters which, in their judgment, pertained in any way to the peace,
good fame and welfare of the community and of individuals. I shall,
therefore, quote literally much from these old original records kept in
Washington county--the quotations being taken from the records of that
county only, for the reason that it was the first county established
and organized in what is now Tennessee, and included for quite a time
all of the early settlements in what is commonly known as “upper East
Tennessee.” The same character of entries will no doubt be found in
the old records kept in Sullivan, Greene, Davidson, Hawkins, Sumner,
Tennessee and Knox counties, in all of which Jackson practised as an
attorney or presided as a judge. The proceedings in the courts of
the counties named, especially those that will be set out, will be
of interest not alone to Tennesseans, but also to the descendants,
scattered throughout the southwest and west, of the men who made these
records.
The first session of the court was held at the log-cabin of Charles
Roberson, near Jonesboro, February 23, 1778. It was composed of the
justices of the peace whose names have been given as subscribers to the
oath set out in a preceding chapter. After the court had been organized
by electing officers, its first act was to fine John Sevier, Jr., for
some minor matter which was gravely denominated “a contempt to the
court.” John Sevier, Sr., had just been elected clerk of the court, and
was undoubtedly the most influential man in the country, on account of
his meritorious character--but this did not shield the son. The fine
was not remitted; and there is no evidence that John Sevier the clerk
endeavored in any way to interpose.
On the second day, “William Cocke by his counsel Waightsell Avery moved
to be admitted to the office of Clerk of this County of Washington
which motion was rejected by the Court knowing that John Sevier
was entitled to the office.” This is absolutely the whole of the
record. It was the first contested election case that occurred west
of the Alleghany mountains, and was between two citizens who became
very distinguished--Cocke having been elected one of the first two
Senators from Tennessee, while Sevier, after holding all the other
offices within the gift of the people of that county, was elected a
representative in Congress and six times chosen Governor of Tennessee.
The worthy justices, “knowing,” as they said, that Sevier had been
elected, without hearing Mr. Cocke, his counsel or any evidence
whatsoever, swore in Sevier as clerk.
These entries follow:
Ordered that David Hinkley be fined 30 L. for insulting the Court.
Ordered that Hump Gibson be fined 10 L. for swearing in Court.
Then, after passing upon a motion or two--
Ordered that Ephriam Dunlap Atty. be fined 5 Dollars for insulting the
Court, especially Richard White.
It is not likely that any member of this court had ever held any office
prior to his appointment as a justice of the peace therein, and it is
not probable that many of them had ever been in a court of any kind
before they organized that which they constituted; and yet the record
shows that, from the first day of the first term, and on through all of
the many stormy sessions which they held thereafter, they guarded and
defended jealously the dignity of their court, and enforced obedience
to its mandates. It was a heinous offence indeed, and visited with
condign punishment, to “insult the Court.”
The aggregate fines imposed on Sam Tate, at one term, amounted to forty
thousand pounds;[C] and while fines were imposed on some one at every
term, there are but two entries to be found on the record, from the
February term, 1778, to and including the November term, 1790, showing
that such fines were remitted.
At the May term, 1778, a somewhat embarrassing question presented
itself. Some one of three persons, it would appear, had taken from
Samuel Sherrill,[D] without his consent, his bay gelding, and left
the country. They could not, therefore, get any one of the suspected
persons into court or in custody, and they must have been in doubt as
to which of the three did in fact ride the horse off; so they said:
On motion it appears that Joshua Williams Johnathan Helms and a
certain James Lindley did Feloniously Steal a certain Bay gelding
horse from Saml Sherill Senr. Ordered that if the said Saml Sherill
can find any property of the said Joshua Williams Johnathan Helms &
said Lindley that he take same into his possession.
So far as the record shows, they never caught any of the defendants,
but Sherrill must have got close on them at one time; for, at the
August term, the court “ordered that a saddle and coat the property
of Joshua Williams be sold and the money arising therefrom be left in
the possession of Saml Sherill.” They could not capture and punish
the thieves, but they could and did authorize Sherrill to seize the
property of the rascals wherever he could find it.
The first case of high treason tried by the court was at the August
term, 1778. This is the record:
STATE }
_v._ } _High Treason._
MOSES CRAWFORD. }
It is the Opinion of the Court that the defendant be imprisoned during
the present war with Great Britain, and the Sheriff take the whole of
his estate into custody which must be valued by a jury at the next
Court and that the one half of the said estate be kept by the said
Sheriff for the use of the State and the other half remitted to the
family of defendant.
I have not examined the statute under which this _county court_
tried, convicted and imprisoned defendants charged with treason, and
confiscated their property, to see whether or not they had a right to
remit one half of confiscated property to the family of the defendant,
for the reason that I do not wish to know how the fact was. I am
satisfied with the record as they made it, and leave others to look up
the statute.
Having disposed of Crawford--and his property too--they took up the
case of Isaac Buller, whom, as he had neither family nor property, and
the evidence, if any was heard (on motion), was a little vague, they
simply put him in prison until an opportunity should offer to make a
better use of him. This is the summary manner in which they disposed of
Isaac:
On motion of Ephriam Dunlap that Isaac Buller Should Be sent to the
Contl. Army, and there to Serve three Years or During the War On
Hearing the facts it is Ordered by the Court That the said Isaac
Buller Be Immediately Committed to Gaol and there Safely kept until
the said Isaac can be delivered unto A Continent’l Officer to be
Conveyed to Head Quarters.
At the February term, 1779, the court made and entered of record an
order prescribing the charges that tavern-keepers might exact from
guests as follows:
Diet 08s. 0: Lodging 1 night good bed and clean sheets 1s. 6d: Rum
Wine or Brandy 3L. 4s. 0: Toddy pr Quart, & sprts of Rum therein 8s.
0. and so in proportion. Corn or Oats per Gal 4s. 0: Stabledge with
hay or fodder 24 hrs 4s. 0: Pasturage 24 hrs. 2s: Cyder pr qrt 4s. 0:
Bear pr qrt 2s. 0: Whisky pr Gallon 2L. 0. 0:
After they had put the above on record, they entered upon the trial of
their second case of a very high crime, as the following entry shows:
STATE }
_vs._ } _For Treason Feby 1779_
GEORGE LEIVIS. }
On hearing the facts and considering the testimony of the Witnesses It
is the Opinion of the Court That the defendant be sent to the District
Gaol It Apg. To the Court that the said Leivis is a spie or An Officer
from Florida out of the English Army.
At this term, besides transacting routine business, they tried ten
persons on charges of treason, convicted five of them, ordered
their property confiscated, and sent them to the district jail at
Salisbury--and the entire record of the term is contained on twelve
pages!
If this court could have been transferred to the more intelligent
states of Massachusetts or New Hampshire, and had held a few terms
therein, “Shays’s rebellion” would have been crushed out in a week,
or all the “gaols” would have been filled with the rebellious and
the public treasury with the proceeds of confiscated property. These
patriots were in earnest.
At the May term, 1779, two entries appear as having been made on the
same day, which show two sides of this remarkable court. The first
entry is as follows:
STATE }
_v._ } _For stealing a Ploughshear, hogs and some_
PAT MURPHEY } _other Things_
The Court are of Opinion that the defendant pay 33L. 6s. 8d. to Zachr.
Isbell for his Hog & 26L. 13s. 4 to Thos. Evans for his Hog and ten
pounds fine And also receive Twenty Lashes on his bare Back well laid
on by the Sheriff or Deputy.
The other entry was:
Ordered that John Murphey be fined the sum of Twenty pounds for Ill
Treatment to his reputed father Pat Murphey.
The court said that, in its opinion, Pat Murphey was a bad man--and he
was, as other cases in the records against him show; and they had him
whipped, fined him and, under the operation of the court’s adjustable
jurisdiction, rendered judgment against him in a criminal case for the
value of two hogs; but these “backwoods” justices of the peace said to
the reputed son of this old and hardened criminal that “Ill Treatment”
of a father, by even a reputed son, would not be tolerated in that
community.
At this May term, and following the entries just given, is another,
which, in a few words and (so far as the record shows) without any
previous notice, deprives a citizen of his liberty and of further
opportunity to do harm to “the common cause of liberty,” on the mere
motion of the state’s attorney. Here it is:
On motion of E. Dunlap State Attorney it is ordered that John Holly
for his Ill practices in Harboring and Abetting disorderly persons
who are prejudicial and Inimical to the Common Cause of Liberty and
Frequently Disturbing our public Tranquility in Genl. be Imprisoned
for the Term & Time of One Year.
Up to the date of the entry of this order imprisoning John Holly “for
the term and time of one year,” on the mere motion of the state’s
attorney, the record shows a little more formality in convictions for
treason and the confiscation of property, as it will appear from the
recitals that the court, “on considering the facts,” or “on hearing the
witnesses [or evidence],” “are of opinion,” etc.
It is very doubtful whether there can be found (outside of Tennessee)
another such judicial record as this one, made and entered on a mere
motion, without the accused having previous notice or (so far as the
record shows) being present in person or by attorney, and without any
evidence being heard to support the charge, embodied in the motion,
that Holly was an enemy to the public tranquillity generally and guilty
of other specified offences. It is safe to assume, however, that
the court “knew” he was guilty, as they “knew” that John Sevier was
entitled to the office of clerk when they dismissed Cocke’s contest
without hearing him at all.
At this term, the court “nominated and appointed John Sevier, Jesse
Walton and Zachr. Isbell to take into possession such property as
should be confiscated,” and they gave “bond as such commissioners in
the sum of Five Hundred and Fifty Thousand pounds.”
And they had the “tax-dodger” with them also, as early as August,
1779--the good citizen who always wants his full share of attention
and protection by the law, without paying his just proportion of the
taxes to support the government; but he could not escape this court’s
resourceful remedies for all exigencies. Here is given the disposition
of the case:
Ordered that the Sheriff Collect from Wm. More four fold: his Taxable
property being apraised by the Best Information that John Woods, Jacob
Brown & Johnathan Tipton Assessors could get--to the sum of Eight
thousand pounds.
Even the smart and rascally tax-dodger could not evade the law, with a
court like that one to take hold of him.
At the May term, 1780, it was “Ord. that a fine of One Hundred pounds
be imposed on John Chisholm Esqr for being Guilty of Striking and
Beating Abram Denton in the Court Yard also Disturbing the peace and
Decorum of the Court and that the Clerk issue an execution for the
same.” This fine is here set out for the reason that John Chisholm
was one of the first justices appointed for the county--he was at the
time a member of the court that imposed this fine--and, as the records
show, was wealthy and prominent in public affairs, being trusted with
various appointments by the court; and yet he did not escape the hand
of correction so often laid on offenders by the court in one or another
way. The offence for which he was fined was committed, not in the
presence of the court, but out in the court-yard. I very much doubt if
an instance prior to this one can be found, where the limits within
which it has been held that a contempt of court could be committed have
been so extended as to include the court-yard.
At the November term, 1780, the court formulated and entered the
following very remarkable order:
The Court appointed John Sevier, William Cobb, Thomas Houghton
and Andrew Greer Commissioners for the County to be Judges of the
Different kinds of paper Emissions in Circulation in this County or
may be hereafter, in order to prevent frauds and Impositions that
might be committed on said County, and for the purpose of Detecting
and Suppressing Coins of this kind, who shall be the Judges & Viewers
of all such Monies.
The record recites that these commissioners and judges “took the oath
and entered into bond for the performance of sd Trust.”
At the time these four gentlemen were appointed as a high commission
to be “judges and viewers” of the currency of the realm, and
“detectors and suppressers” of spurious or counterfeit “coins” and
“paper emissions in circulation,” all kinds of “such monies” seem to
have gotten into “the new world west of the Alleghanies,” for, at
the same term of the court making the order regulating the charges
of tavern-keepers, referred to above, two rates or schedules were
prescribed, one in “paper emissions,” the other in “coins.” The order
of the county court creating this commission and investing it with
power to “view” and “judge” of the genuineness of the circulating
medium, and to detect and suppress such of it as should be adjudged
fraudulent, does not point out the way, lay down any rules or provide
any method for the guidance and direction of the commission in the
exercise of the powers given or the discharge of the duties imposed. It
says simply what they shall do, or rather what they have been appointed
to do, and then leaves them to do it. That they found out an effective
way to exercise their powers there is not a doubt. They did not need
to be given “mandatory” power. “Counterfeiters” had been “dealt with,”
before this domestic monetary commission was created, by some of the
same men who constituted the commission.
One of the most delicate and difficult duties that devolved upon this
commission, under the terms of the order creating it--particularly
the words, “in order to prevent frauds and impositions that might be
committed,” etc.--was in cases where a question was raised as to the
genuineness of the money offered in payment by a citizen known to be
upright and free from any suspicion of handling spurious money, to
another equally honest, who refused it because he was doubtful as to
its being “good money.” The “judges and viewers” were called in to take
action, and had to decide in effect whether or not the money offered
was a “legal tender.” Their decision was accepted; and henceforth that
particular money circulated, if so ordered, without question, and
performed all the functions of money, whether it was in fact genuine
or spurious: if the decision was adverse, that money was thenceforth
worthless.
As an incident of the power and authority vested in these “judges and
viewers,” arose the question occasionally of guilt or innocence, when a
charge of counterfeiting or of wilfully and knowingly passing spurious
money was preferred. The person so charged was tried before the high
currency commission, and its finding or judgment not only settled
the question of the guilt or innocence of the accused, but made the
particular currency involved either “sound money” or counterfeit in
that entire country. John Sevier, according to tradition, was chairman
of the commission; if his name was written on the “paper emission,” it
passed current thereafter, and when offered in payment was a “legal
tender.”
The court also “Ordered that Capt. John Patterson deliver unto John
Halley a Certain Rifle Gun being the property of said John Halley.”
Some very serious difference or grave misunderstanding between the
court and Mr. James Gibson must have occurred at the November term,
1780, or at some time previous, if the record left in reference thereto
be correct--and who would doubt it? Whether or not the court intended
to suppress freedom of speech generally, it must be admitted that its
action toward Gibson would certainly tend toward suppressing the public
expression of a want of confidence in the integrity of that court, and
putting a stop to the practice of “throwing out speeches” against it.
The record relates that--
James Gibson being brought before the Court, for throughing Out
Speeches Against the Court, to-wit,--Saying that the Court was
purjured and would not do Justice, and Other Glareing Insults. The
Court On Considering the matter are of Opinion that the said James
Gibson is guilty of a flagrant Breach of The peace & for the same and
the glareing and Dareing insults offered to the Court do order that
the said James Gibson be fined the sum of fifteen thousand pounds &
that he be kept in custody until same is secured.
Gibson, as the record shows, secured the fine. It is not to be supposed
that any of the “speeches” which he had been “throwing out” were made
in the court room or in hearing of the court, because the record states
that he was “brought before the court.” When and where he assailed
this august body does not appear. This did not matter to them: their
jurisdiction was as wide as the universe, and their power to punish him
unquestionable, as they believed. The fine imposed on John Chisholm,
a member of the court, for striking and beating Abram Denton out in
the court-yard; the fine imposed on John Murphey, for “ill treatment”
of his reputed father, no doubt at home; the order directing Capt.
Patterson to deliver “unto John Halley” a gun decided by the court to
be “the property of said John Halley”; the method employed to punish
Gibson; the creation of a commission to determine in effect what money
should or should not be a legal tender, as well as the other matters,
hereafter to be related, to which they gave attention, show that this
remarkable court had no idea of having its powers limited and defined
or its jurisdiction circumscribed.
Only two orders of the May term, 1781, will be noticed. The first is,
“Ord, that Saml Tate be fined the sum of ten thousand pounds[E] for a
contempt of Court and that the Clerk issue F. Facious vs his estate
for the same.” On a subsequent day of the term, the clerk acknowledges
the receipt of the fine imposed on Tate. The other order is: “Ordered
that Jesse Greer be fined the sum of One Hundred pounds for a Contempt
offered to the Court &c in refusing to deliver unto the Widow Dyckes
her property as Directed By Order of the Court.” Under _their_ rules of
practice, they did not require “the Widow Dyckes” to employ a lawyer
and bring an action of replevin against Greer; they had heard the case
at a former term “on motion,” without stating on the record who made
the motion, and had directed Greer to deliver the property in question
to the widow Dyckes, which he had refused to do. They did not require
her to employ counsel to sue Greer and recover a judgment for the value
of the property detained from her, issue execution, levy on and sell
the property to satisfy the judgment; they made use of a much more
direct method, by holding Mr. Greer liable for contempt, and resorting
to their favorite mode of administering justice without delay--to-wit,
“on motion” and “ordered.”
At the May term, 1782, nothing of any considerable consequence was
done. The court “nominated and appointed John Sevier William Cocke
and Valentine Sevier Commissioners of Confiscation for the year 1782,
whereupon sd. Comr’s entered into bond with security for the sum of
Fifteen Thousand pounds, Specie.”
The court, at this term, gave to a citizen who had evidently been
“hiding out” permission to return to the settlements, as the following
order shows:
On motion that Joshua Baulding should be admitted to come in and
Remain henceforth peaceably in this County. On proviso, that he comply
with the Laws provided for persons being inimical to the State and
have Rendered Service that will expiate any Crime that he has been
Guilty of inimical to this State or the United States. The Court on
considering the same Grant the sd Leave.
This order, and others similar to it, which are not given place in
this chapter, serve to establish beyond question the intense loyalty
of the members of the court to “the common cause of liberty” (as the
struggle of the Americans then going on against Great Britain was
always designated), and also the vigilance with which they must have
scrutinized the conduct of each individual. There can be no doubt that
Baulding had fled and was hiding in the hills or mountains, and that he
knew it would not be safe to return or “come in” without the permission
of the court.
The August term, 1782, was one of the most memorable in the history of
the court. It was a “Court of Oyer and Terminer & Genl. Gaol Delivery,”
as well as for other county purposes. At this term it was presided over
for the first time by a judge--“the Honl. Spruce McCay Esqr Present
and Presiding.” He had the court opened by proclamation, and with all
the formality and solemnity characterizing the opening of the English
courts.
On the first day of the term, John Vann was found guilty, by a jury,
of horse-stealing, the punishment for which at that time was death.
On the same day the record contains an entry to the effect that “the
Jury who passed upon the Tryal of John Vann beg Leave to Recommend
him to the Court for Mercy”; but no mercy was shown him by “the Honl.
Spruce McCay Esqr,” as the record discloses further along. During the
week, two more unfortunates--Isaac Chote and William White--were found
guilty of horse-stealing; and, on the last day of the term (August 20),
Judge McCay disposes of all three of these criminals in one order, as
follows: “Ord that John Vann Isaac Chote & Wm White now Under Sentence
of Death be executed on the tenth day of September next.” This is the
whole of the entry.
The judge was mistaken in saying that the three persons named in the
order were “under sentence of death.” No such sentence is to be found
of record--all that appears is an entry of the style of the case, as
“State vs” etc., in each case, and the entry opposite the case, that
“the jury sworn to pass upon the Tryal do find the defendant guilty in
manner and form as charged in the indictment”; but there is no formal
sentence of death entered of record in either of the three cases. It
is not probable that a parallel proceeding can be found in judicial
history. Judge McCay utterly ignored the unanimous action of the jury
who recommended John Vann to the mercy of the court. Can a case be
found where a judge, in the United States, ever refused mercy to a
criminal who was commended to him for mercy by the jury that found him
guilty? Can another case be found where a judge caused three persons
to be “executed” by one order, consisting of five lines and seventeen
words, exclusive of the names of the criminals?
Judge McCay omits entirely to direct the method of executing the
three criminals--he does not say whether they shall be hanged, shot,
burned or drowned--but they were executed, either with rope, rifle or
tomahawk, according to the good taste of the sheriff or the wishes of
the defendants.
Tradition in that country gave Judge McCay the character of a heartless
tyrant. He was said, while judge, to have always been on one side or
the other of suits tried before him; and he never failed to let it be
known which side he was on. He frequently indulged in lecturing, not
to say abusing, juries publicly, when they returned verdicts contrary
to his wishes and instructions. But “the Honl. Spruce McCay Esqr”
found his match in the juries. They could not be driven or intimidated
into giving verdicts contrary to their convictions; and whenever they
differed with the judge--and they always knew his views--in a case of
weight or serious results, they would deliberately disperse, go to
their homes, and not return any more during that term of court. In
a case styled “State vs. Taylor,” the record shows that the jury was
sworn and the defendant put on “Tryal.” Nothing more appears except the
following significant entry: “State vs. Taylor. The jury having failed
to come back into court, it is therefore a mistrial.”
Judge McCay may only have been, as has been said of him, “a man of
strong character, determined and fearless in discharging his duty”--but
so were the juries in that county, as the records show.
At the May term, 1783, there was made an entry, which, when taken in
connection with one which will be given immediately after it, will show
how wisely these pioneers judged of men, and how necessary, sometimes,
it was for them to take measures which at the time appeared harsh and
cruel. The first entry is as follows:
On petition of Lewis & Elias Pybourn that they who is at this time
Lying out and keep themselves Secreted from Justice that the Court
would permit them to Return to their Respective Houses and places
of abode and Them the said Lewis & Elias Pybourn to give bond
and sufficient Security for their Good behavior &c. The Court on
consideration of the matter do Grant and Give Leave unto said Elias &
Lewis Pybourn to Return accordingly on their giving bond & approved
security to Capt. John Newman for their Good behavior &c.
A final entry, made in the “Superior Court of Law and Equity” at
Jonesboro, seven years later--at the August term, 1790--in the case of
the “State of North Carolina Against Elias Pybourn for Horse Stealing,”
justifies the members of the Court of Pleas and Quarter Sessions in
having required Elias Pybourn to give security for his future good
behavior. The full entry is as follows:
The defendant being called to the Bar and asked if he had anything
to say why sentence should not be passed upon him Saith Nothing. It
is therefore Ordered that the said Elias Pybourn be confined in the
publick Pillory one Hour. That he have both his ears nailed to the
Pillory and severed from his Head; That he receive at the publick
Whipping post thirty nine lashes well laid On; and be branded on the
Right cheek with the letter H, and on his left cheek with the letter
T. and that the Sheriff of Washington County put this sentence in
execution between the hours of Twelve and Two this day.
Horrible, awful punishment! Marked for life; a description of his crime
burned on and into his face with a hot iron--“Horse Thief”; both of
his ears cut off close up to his head. What a hideous spectacle! Was
the mark placed upon Cain by the Almighty such that when people met
him they said, “Let him alone; keep your hands off him; he has been
punished sufficiently already”? Would not people say the same of poor,
debased, degraded Pybourn?
Was the punishment inflicted on Pybourn barbarous? Yes; but the court
had warned him of the wrath to come, and had first made him flee to
the forest for safety--better had he gone to the Indians--and had then
given him permission to return to his home, on condition that he would
reform and behave himself. The only entry found in the whole of the
records to soften in the slightest degree the harsh and (it may be
said) inhuman punishment meted out to Pybourn, is one that suggests the
horror that came over one Joseph Culton, when he discovered, after he
had emerged from a single combat with Charles Young, that the latter
had bitten off one of his ears. Culton of course regretted the loss of
his ear, and was still more annoyed to be thus disfigured for life; but
these were the least of his troubles--somebody thereafter might think
that he had been “cropped” for crime. What was he to do? He appeared at
the November term, 1788, of the Court of Pleas and Quarter Sessions,
whose jurisdiction knew no limits as to venue, time when or subject
matter, and the following entry was made for his relief and protection
from suspicion:
Joseph Culton comes into Court and Proved by Oath of Alexander Moffit
that he lost a part of his left Ear in a fight with a certain Charles
Young and prays the same to be entered of record. Ordered therefore
that the same be Admitted Accordingly.
It is not probable that any one ever examined this entry, and demanded
to see the page whereon the lost ear had been formally entered
of record; but it is certain that Joseph Culton carried with him
constantly a certified copy of the entry which attested that he had
been maimed in honorable combat, and not as a punishment for violation
of law.
This wonderful county court, before and since which there has been none
like it, adapted or adjusted its jurisdictional powers and methods to
all matters, questions and conditions that could be brought in any
way to its notice. When a stranger came into the community, it did
not content itself with letting him alone, no matter how quietly and
orderly he might conduct himself; it had him interviewed, as the entry
here quoted will prove:
The Court Order that Wm Clary a trancient person give security for his
behavior, and return to his family within five months, as the said
Clary is without any pass or recommendation and confesses he left his
family and have taken up with another woman.
The most that the average detective could have gotten out of Clary
would have been that he came from--where he started, and was
going--where he went; but the court found out more than this about
him, and they must have got it from his own mouth, as the order, after
reciting facts that they could have gotten from him only, concludes by
setting forth a very damaging confession which he had made, and which,
all will agree, justified the court in requiring security of him for
his behavior while he might remain in their midst, and peremptorily
ordering him to return to his family within a stated time.
By the time of the meeting of the August term, 1784, the court
had pretty well purged the country of traitors, horse thieves,
“trancients,” etc. At this term the court seems to have turned its
attention to the ugly habits of some of the very respectable; for, on
the first day of the term, as the record shows, fines were imposed
and paid as follows: “Eml. Carter three prophane oaths 8s. 10d. pd:
Pharoh Cobb four prophane oaths 10s. 8d. pd: Buckner Nantz One prophane
swearing Oath prays mercy Granted: Valentine Sevier for prophanely
swearing 4 Oaths fined 10s. 8d. pd: Mark Mitchell for swearing One
prophane Oath fined 2s. 8d. Patrick Murphey One Oath, Michael Tylloy
Two Oaths.” This treatment seems to have been effective; for, no fines
being recorded after the first day, it is reasonably sure that no
“prophane oaths” were indulged in, during the remainder of the term--at
least in hearing of the court.
As a result of the many battles with the Indians, and the numerous
Indian massacres which had occurred, numbers of children were left
without fathers or mothers. They had no orphan asylum, but the
records of the court show that homes were provided for these wards,
nevertheless, by the Watauga and King’s Mountain heroes. They had no
county asylum for the poor; but the county court, whose jurisdiction
could be extended to meet all emergencies, “ordered” some citizen
by name to “take and keep” the person named therein for the time
specified. These orders contained no recital that they were made by the
consent of anyone--they emanated from the inherent power and duty of
the court, as it believed, to provide for the poor.
The entries and orders selected from these old records are given, in
order that those who wish to know something of the views, characters
and abilities of the very earliest pioneers of Tennessee, may read
for themselves the views and opinions which they placed in solemn form
on court records, in reference to the various matters, questions and
conditions on which, as they thought, the vicissitudes of the times
made it necessary for them to take action. I wish to give, at this
place, two more orders of the court, before closing this chapter. At
the November term, 1784, the following was entered on the record:
The Court recommend that there be a Court House built in the following
manner, to wit: 24 feet square diamond corners and hewed down after
the same is built up, 9 feet high between the two floors, and the
body of the house 4 feet high above the upper floor, each floor to be
neatly laid with plank. The roof to be of joint shingles neatly hung
on with pegs, a Justices bench, A lawyers and a Clerks bar, also a
Sheriffs box to sit in.
[Illustration: FIRST COURT HOUSE BUILT IN THE “NEW WORLD WEST OF THE
ALLEGHANIES.”
Erected at Jonesboro, Washington county, Tennessee, in the year 1784.]
At the November term, 1785, the following was entered:
The Court Ordered that Col’o Charles Roberson be allowed fifty pounds
Current money for the building of the Court House in the Town of Jones
Borough.
As this was the first court house erected in what is now Tennessee, and
the one in which Andrew Jackson, John McNairy, Archibald Roane, William
Cocke, David Campbell and others began their professional careers; and
in and about which John Sevier, though not a lawyer, rendered so much
and such invaluable service in laying the foundations of our state, and
its civil as well as military institutions, I have had it reproduced,
and present a picture of it in this little volume. From what has been
said, and from the records which have been quoted, the imagination
can picture the scenes and proceedings occurring in this “temple of
justice”--for such it was, although made of logs “hewed down” and
covering “hung on with pegs.”
These early records challenge comparison, in spirit, form and
substance, with any others made during the same period in any
community, country or state in the United States. No patriotic,
intelligent people can read them without being filled with admiration
and inspired with respect and reverence for the men who made them.
They said, on the first day of the first term of the court, the court
must be respected; to the cruel son, you shall not ill-treat your
father, though he be a criminal; to the vagrant without a “pass or
recommendation,” you must give security for your behavior or leave the
community; to the man who had abandoned his wife, you must return to
your family; to the strong and influential, you must render unto the
widow her own, or we will force you to do so by fines that will make
you glad to obey; to the tax-dodger, you shall pay your proportion of
the taxes; to a member of the court, no matter what your position is,
if you cruelly beat your neighbor, we will take from you a large part
of your wealth and turn it into the public treasury; to the man who
was “throwing out speeches” calculated to destroy the influence of
the court for good, you must not malign the court, no matter when nor
where--if you do, we will lay the heavy hand of summary punishment upon
you; to such as were stirring up sedition and opposition to “the common
cause of liberty,” you shall not remain openly and peaceably in the
community without giving security for your good conduct; to thieves, we
will fine, whip, brand and hang you; to tories, we will confiscate your
property and imprison you; to the British, we will meet and fight you,
on every field from the mountains to the sea; to the Indians, we will
fight you too, from the mountains to the lakes and the gulf. And they
did it all. Who could have done more? They were heroes, one and all,
but history, it seems, has long since given them over to oblivion.
Although, in 1788, they had passed through a “general insurrection of
the times,” as chronicled by the clerk of the court under the state of
Franklin, and had no doubt come out somewhat demoralized, still the
habit of doing what they believed to be right was so strongly imbedded
in their natures that, at a term of court (February, 1788) held after
its reorganization following the Franklin collapse, they imposed upon
and collected from one of the most prominent citizens of the county a
fine for swearing in the court-yard. The record recites that “Leroy
Taylor came into Court and pays into the Office the fine prescribed by
Acts of Assembly for one profane Oath which was accepted of. Ordered
therefore that he be discharged. 21s.” Leroy Taylor was elected from
Washington county as a delegate to the constitutional convention of
1796, and was kept in the General Assembly almost continuously for
eight or ten sessions after Tennessee was admitted into the Union; he
was the author and introducer of the first resolution offered in the
General Assembly (in 1801), raising a committee to prepare a design for
the great seal of the state of Tennessee--but, with all his prominence,
he could not with impunity make use of even “one profane oath” in
hearing of the county court of Washington county.
The achievements of these old pioneers will run, however, “like
the covenants of warranty with the land” they loved so well. A few
glimmering memories, a few dim traditions, some scattered fragments
of stories--these are all that is left (outside the old court records
alluded to) of many of these men, every one of whom was a giant in
morals and a colossus in intellect, as compared with many modern
pigmies whose little deeds have been magnified into great achievements.
If the structures of state, county and municipal institutions in
Tennessee, and the social fabric as well, had been kept in harmony
with the pure, simple, steadfast and enduring foundations laid by John
Sevier and his contemporaries, what models we would have today for the
world to imitate. Are we wiser or better than they? Read and study
these old records: then answer.
FOOTNOTES:
[C] Continental currency.
[D] This was the father of Catherine Sherrill, the “Bonnie
Kate” of John Sevier.
[E] It must constantly be kept in mind that these apparently
enormous sums were in Continental currency.