_JACKSON’S DUEL WITH AVERY._
Waightstill Avery was the most prominent man and the leading lawyer in
Western North Carolina when Andrew Jackson came to the bar. At that
time, and indeed from the time of the organization of the first court
west of the Blue Ridge, Avery had the most extensive practice of any
lawyer attending the courts east or west of the mountains. He began
his professional life west of the Alleghanies with the organization of
the first court in Washington county, and was therefore a well-known,
as he was a reputable and highly respected, lawyer before Jackson’s
appearance there. “He was born in Norwich, Connecticut, and was
educated at Princeton, from which he graduated in 1766. He was a
tutor in that college for a year, when he removed to Maryland, and
studied law under Littleton Dennis. He emigrated to North Carolina,
and was licensed to practise law in 1769. He encouraged education and
literature, and was a most devoted friend of liberty. He led the bold
spirits of his day in his patriotic county, and was a member of the
convention in 1775, at Mecklenburg, that declared for independence. The
minutes of the proceedings show his zeal in the cause of liberty, and
the confidence of his countrymen in his talents and integrity is proved
by the important duties he was engaged to perform. This called down
upon him the vengeance of the enemy; for, when Lord Cornwallis occupied
Charlotte, the law office of Col. Avery, with all his books and papers,
was burnt. In 1775, he was a delegate from Mecklenburg in the state
Congress at Hillsboro which placed the state in military organization.
In 1776, he was a delegate of the same to the same, which met at
Halifax and formed the state constitution. He was appointed one of the
signers to the proclamation bills. In 1777, he was sent by the council
(of state) with orders to Gen. Williamson, at Keowee, South Carolina.
He was appointed by Governor Alex. Martin (1777), with Brig.-Gen. John
McDowell and Col. John Sevier, to treat with the Cherokee Indians. He
was elected the first attorney general of North Carolina, in 1777,
which he resigned on account of his health, and removed to Burke county
in 1781, which he represented for many years, and where he, enjoying
peace and plenty and the love and regard of his neighbors, died in
1821. He was at the time of his death the ‘patriarch of the North
Carolina bar,’ and an exemplary Christian, a pure patriot and an honest
man.” Such is the brief account given by the North Carolina historian,
Wheeler,[M] of the man with whom Jackson fought the duel at Jonesboro,
which shows that Avery was no ordinary man.
Avery graduated from Princeton in 1766; Jackson was born March 15,
1767. Hence, Avery must have been at least twenty years older than
Jackson. The records at Jonesboro show that Avery attended the various
courts up to about the time Tennessee was admitted into the Union, and
that he was on one or the other side of nearly all the cases in the
courts held there.
More than one version of the duel, and the cause of it, have been
given. I have read and heard two of these.
Parton, in his life of Jackson,[N] gives an account of this duel, as
detailed by Col. Isaac T. Avery, son of Col. Waightstill Avery, and it
would seem that this version of the affair ought to be accepted. It
will be noticed, however, that Parton’s account omits to state any fact
or facts that caused or led up to the challenge--he merely states that
the two attorneys were on opposing sides in a case at Jonesboro; that
the cause was going rather against Jackson, that he became irritated,
and that Avery rather exultingly ridiculed some legal position taken
by Jackson, using language that was more sarcastic than was called for
(as he afterwards admitted), which stung Jackson, who snatched up a
pen, wrote a peremptory challenge on the blank leaf of a law book and
delivered it then and there to Avery, by whom it was promptly accepted.
In my search after the facts, made years ago, among the old men of
Washington and Sullivan counties, I ascertained that Jackson fought two
duels at Jonesboro. When I began my investigation, I had never heard
of any except that with Col. Avery, and therefore, when asking some
one about the matter, I would say something to this effect: “What do
you remember, or what have you heard, about Jackson’s duel fought at
Jonesboro?” The answer, four times out of five, would be: “Which one do
you mean--the one with Avery, or the one fought in the hollow?” They
nearly all remembered the fact that there were two duels, or said that
they did; they recollected all about the duel with Avery, and that it
was fought on the hill on the south side of the town (not on the north
side), and that the other one was fought in “the hollow” (as it was
then called) north of the town; but they could not recall the name of
the man with whom the latter duel was fought, nor the cause of it. I
suggested to some of them that probably there was no duel fought with
pistols in the meadow or hollow, but that it must have been a plain,
old-fashioned fight with fists, as I had heard that the hollow in
question was a favorite place for the fisticuff champions of the time
to retire to and “fight it out fair.” This suggestion was invariably
met with ridicule at the mere idea of Andrew Jackson fighting with
anything else than a pistol, a dirk or a sword; and I gave up the duel
in the hollow with much regret at not being able to learn anything at
all about it, beyond the fact that Jackson did fight one there, with
some one whose name they could not remember, and the cause of which
they had heard but could not recall.
The account of the duel between Jackson and Avery, as given me and
as I heard it given to others, twenty, twenty-five and as far back
as thirty years ago, by very old native-born citizens, agrees in the
following particulars with that given by others: Jackson and Avery
were opposing counsel in a suit being tried in the afternoon; the case
was going apparently against Jackson’s view and client; Jackson was
exerting himself in an effort to escape from authorities relied on by
Avery; and the latter did ridicule severely some legal position taken
by his opponent. If, however, the account given me be a true one, as
I have every reason to believe that it is, there is much that must
be interlined in or added to the foregoing, although it can be done
briefly.
Avery’s favorite authority was “Bacon’s Abridgment.” This he carried
with him from court to court, and from the tavern to the court house
and back. It was always in his “green bag,” and the latter, when not
in his saddle-bags, was in his hand or swinging from his arm. The book
was carefully wrapped up in a piece of buckskin, to preserve it from
wear. Avery quoted from and referred to “Bacon’s Abridgment” in every
case and on all occasions, and of course had done so on the trial of
the case out of which grew the duel; and Jackson had ridiculed Avery’s
pet authority, but had not said anything derogatory to his opponent
as a lawyer or a gentleman. Avery, in his retort, grew sarcastic; he
not only criticised legal positions taken by Jackson, but intimated
pretty strongly that he did not know anything about the law of that
case or of any other, and that he had much to learn before he would be
justified in criticising a law book written by anyone. This was enough
to inflame Jackson, and it did. Jumping to his feet, he exclaimed: “I
may not know as much law as there is in Bacon’s Abridgment, but I know
enough not to take illegal fees!” Avery at once turned on Jackson,
and demanded fiercely to know whether he meant to charge him with
taking illegal fees. Jackson answered, “I do, sir,” and started to say
more; but Avery, pointing and shaking his finger at his adversary,
hissed through his teeth, “It’s as false as hell!” whereupon Jackson
immediately sat down, picked up a law book, tore a blank leaf from it,
wrote a challenge, delivered it to Avery, bowed to him ceremoniously,
and walked out of the court house. Avery seated himself, wrote an
acceptance of the challenge, walked out of the court house and, meeting
John Adair, requested him to act as his second, and to deliver his note
to Jackson. The latter, in the mean time, had met a friend, whom he
asked to act as his second, and to whom he said that he did not wish
to kill Avery; that Avery had interrupted him without hearing all that
he had intended to say, which was that he (Avery) had taken illegal
fees because of his ignorance of the latest law fixing a schedule of
fees,[O] and not that he had done so corruptly; but that Avery’s manner
and language were such as to prevent this intended explanation, which
he could not afford to make afterward without the probability of being
suspected of fearing Avery, and that he would rather be killed by his
antagonist than suspected of cowardice. Jackson’s second (whose name
I was never able to ascertain) unquestionably communicated to Adair,
during the subsequent negotiations between them as to weapons, etc.,
the substance of what Jackson had said; and the two seconds determined
that there should be no duel in earnest, or “shooting to kill,” as
one of my informants expressed it. This agreement must have been
communicated to both principals, before they left the town for the
“field of honor,” as subsequent events clearly indicate.
Difficulties that led to a challenge and its acceptance, in the olden
times, were rarely ever adjusted before the combatants arrived on
the field. The distinguished duellists followed the custom on this
occasion; and, with their seconds and others who knew of the affair,
went to the ground selected--the hill on the south side of Jonesboro,
and not “the hollow” north of town. The distance was measured off, the
principals stationed and the word given--and Jackson and Avery both
fired in the air, to the great gratification of their friends.
The two principals approached each other with extended hands. While
holding his recent antagonist by the hand, Jackson said: “Col. Avery, I
knew that, if I hit you and did not kill you immediately, the greatest
comfort you could have in your last moments would be to have ‘Bacon’s
Abridgment’ near you; and so I had my friend bring it to the ground.”
Thereupon, Jackson’s second unrolled the package in his hand, which was
about the size of a law book, and out fell a piece of old, well-cured
_bacon_!
Parton, in a note appended to his account of the duel, says that
there was a comic incident connected with it, which Jackson would not
tell and Adair did not. The version here given was told me by three
different old men, in Washington county, years ago. They were Abram
Gregg, Micajah (or Michael) Hodges and John Fullmer, each of whom had
been a soldier in the war of 1812, Gregg having been, I believe, a
captain. The last time that I talked with Fullmer and Hodges on this
subject was in 1879, and they were both clear in their recollection,
without any consultation with each other, residing in different parts
of the county, Fullmer on the Watauga river and Hodges on the Holston,
eight miles distant.[P]
The foregoing version of this duel is supported by the old court
records at Jonesboro. Years ago I read and copied therefrom the
following entry: “Waightsell Avery having for want of Acts of Assembly
Crept into an Error in Taking Two pounds instead of One pound Six
Shillings and Eight pence Was by the Court freely Pardoned at his Own
Request.” It is also borne out by the fact that, when Jackson was
President, this duel was mentioned to him by Samuel P. Carron, then a
member of Congress from the district in North Carolina in which Col.
Avery died, whereupon the President, according to Parton, asked Carron,
“Who told you about it?” “Gen. Adair,” was the answer. “Did he tell
you what happened on the ground?” “No.” “Well, then, I sha’n’t,” said
Jackson, laughing. This would indicate that the duel had had some comic
ending, and not a comical beginning.
The other version of the duel, which I never heard in upper East
Tennessee, agrees with the one before given, except in the following
particulars. It was said that, in the course of the trial, Jackson
was rather getting the best of Avery, and as it was near adjourning
time, and Col. Avery, strange to say, had forgotten his green bag with
“Bacon’s Abridgment” in it, when returning from dinner, he said to
the court that he would produce next morning the authority in support
of his position; that Bacon’s Abridgment would show how little the
opposing counsel knew about the law in the case, etc. Next morning,
Jackson went into Avery’s room during the latter’s absence, took the
“Abridgment” out of the green bag, and substituted a piece of bacon
about the size of the book, wrapped first in paper and then in the
buckskin which Avery used as a wrapper for his precious volume. When
Avery came into court with his green bag, and proceeded to produce
his authority, out tumbled the piece of bacon, in the presence of the
court and the lawyers, as well as the spectators who had been invited
to witness the fun. This practical joke so incensed Avery that he
challenged Jackson on the spot; the challenge was accepted, and the
combatants immediately proceeded to the duelling ground, fired at
each other, both missing, whereupon each expressed himself satisfied,
and the affair ended. This latter version does not accord with what
Jackson said to Carron about the comic incident, when he asked if Adair
had told him what happened _on the ground_--not at the court house or
before the duel.
I gathered from the old men alluded to above that public sentiment, as
they understood, was rather with Avery at the time of the duel, as the
people had more confidence in his law knowledge than that of “young
Jackson;” but they all believed both of them to be brave and honest,
although Jackson was “a little too fractious.”
Did Jackson fight another duel at Jonesboro? I do not know; but it is
certain that the three old gentlemen whom I have named, as well as
others, asserted most positively that he did. When asked whom the duel
was fought with, when it occurred, what caused it, etc., they could not
remember; but they all agreed that the affair took place in the “long
meadow,” as it was then called (formerly the “hollow”), on the north
side of town, and they all asserted that the duel with Avery was fought
on the hill on the south side. Capt. Abram Gregg was of the opinion
that the duel occurred in the year after Jackson came to Jonesboro,
which would fix it in 1789. He said that Jackson hit his man, but he
was not seriously wounded, and soon recovered and left the community;
that Jackson was not touched. It can be seen from this statement how
the facts of the duel might have been forgotten, if it took place, as
the other party to it left the country soon afterward, whereas Col.
Avery continued to attend the courts of the county for years after his
duel with Jackson. This would naturally keep the matter fresh in the
minds of the people, although Jackson left the county permanently about
October or November, 1790.
FOOTNOTES:
[M] History of North Carolina, part ii, page 56.
[N] Parton’s Life of Jackson, I, 162.
[O] Attorneys’ fees were then fixed by statute, in both civil
and criminal cases.
[P] Hodges died in June, 1881, at the age of eighty-six.
Fullmer died in November, 1883, ninety years old. Gregg was much older
than either of the others, and died early in the seventies, a very old
man. There were living in the Boon’s creek civil district of Washington
county, after the close of the late war, as many as seven old gentlemen
who had been soldiers in the war of 1812, besides others then living in
different parts of the county.