CORNWALL LOCATES IN HARLAN.
With the exception of a few counties in western Kentucky, no official
survey was ever made of the state. In the unsurveyed portion grants for
land issued by the Commonwealth varied in size from a few acres to as
many as two hundred thousand; and called for natural objects as
beginning and boundary corners.
The result of such a lax system was that often the same boundary was
covered by several grants; and the senior grant held the land.
Many grants were so indefinite of description, the beginning corner
calling for certain timber or a large stone in a heavily timbered and,
in sections, rocky country, as to be impossible of identification or
location. Other grants were so poorly surveyed as to be void for
uncertainty and yet other boundaries were claimed by squatters who held
by adverse possession against any paper title.
A person owning the paper title to a thousand acre boundary traceable to
the Commonwealth without break or flaw, might not be the owner in fact
of a single acre of land; as the whole boundary might be covered by
senior grants or the natural objects called for, impossible to find.
The only way to be assured of a good title was to make a careful
abstract, following that up by an actual survey and obtaining from any
person in possession a written declaration that their possession and
claim was not adverse to the title and claim of your vendor.
The public records were imperfectly kept and indexed; which made
Cornwall's work for the company a series of petty and tiresome
annoyances.
Two weeks after his arrival the Harlan Circuit Court convened. He was
immediately put into harness and called upon to assist in the trial of
several important ejectment suits.
The first week of the term was taken up with criminal business. There
were three murder cases, two of which were tried. The other cases were
petty in nature, the defendants being charged with carrying concealed
weapons, shooting on the highway and boot-legging.
During the second week he assisted in the trial of two ejectment cases,
one of which was lost. The third and most important case was set for the
fourteenth day of the term. It involved five hundred acres of coal land
worth more than twenty-five thousand dollars; and though Judge Finch,
local counsel for the company assured him it would go over, he had the
company's witnesses on hand and carried to the court house the file,
which included the title papers and an abstract; but he had never
examined them.
When the case was called the other side announced ready and they, not
being able to show cause for a continuance, were forced into trial.
While the jury was being empaneled Judge Finch leaned over and
whispered:--"Go ahead and help select the jury, the panel looks pretty
good. I have to leave." He picked up his hat and hastened from the court
room, giving Cornwall no time to object. In about twenty minutes the
jury was selected; Cornwall being assisted by one of the company's
witnesses.
Then the court called upon him to state his case to the jury.
"Judge I know nothing of the case, Judge Finch was here a few minutes
ago and was to try it."
"The case must go on; do the best you can. The court will take a recess
of fifteen minutes to give counsel an opportunity to examine the papers
and familiarize himself with the case. Mr. Sheriff, call Judge Finch."
The case proceeded in the absence of Judge Finch and the next day in the
mid-afternoon was completed; the jury returning a verdict in favor of
the company.
Cornwall ordered a horse and inquiring the road to Judge Finch's house,
who lived on Wallins Creek, rode out to see him. There he sat on his
porch, coatless, in carpet slippers, playing cinch with three farm
hands.
"Hello John, have a cheer, do you play cinch?"
"No, sir."
(One of the hands) "Jedge, your corn is mighty weedy, you better let us
go back to our hoeing."
"By gosh! You are working for me aint you; and if I want you to play
cards instead of hoe, that's my business."
"John, how did you come out with the Asher case?"
"The jury returned a verdict for the company. Judge you certainly left
me in a hole running off like you did."
"By gosh! the family was out'er meal and I just had to go to mill for a
turn."
* * * * *
When one of the witnesses in the Asher case told Mr. Rogers of the
desertion of Cornwall and the case by Judge Finch he said; "I suppose we
must depend upon Cornwall alone or get Mr. Low or Judge Hall to help
him. This company is through with Finch. I certainly would have trembled
in my shoes, had I known Cornwall was handling it alone. He's a good
boy. I hope the verdict won't make a fool of him. I think not, since he
never mentioned Finch's desertion."
Two days later court adjourned and the following Monday the Bell Circuit
Court convened. The first case of importance on the docket was that of
the Commonwealth against Saylor for the murder of Caleb Spencer.
Saturday afternoon, before Mr. Rogers left for Hagan, Virginia on his
way to Pittsburgh, he said:
"Mr. Cornwall, go to Pineville Monday and begin the abstracts of the
Brock and Helton titles to the land the company bought on Straight
Creek."
Cornwall, a poor horseman, not yet hardened to such exercise, broke the
ride by traveling down the river, Sunday afternoon and over Salt Trace
to the Saylor home; not wholly unmindful that Mary was a good looking
girl and agreeable company.
When he rode up, the house had a deserted appearance. Mrs. Saylor and
Susie were in the barn milking. All the rest of the family had gone to
Pineville to be present at the trial, and Susie and her mother were
leaving the next day.
He lay awake half the night thinking of Mary and his mother and
listening to the penetrating tones of a hoot owl far up the mountain
side. The house did not seem the same as the one at which he had stopped
less than a month before. He was homesick and felt inclined to return to
Louisville.
When he rode into Pineville at noon the next day he found the hotel
crowded with visiting lawyers and litigants. The Commonwealth's
attorney told him that the Saylor case was set for hearing the following
morning and that the prosecution was ready for trial. He also learned
that Saylor was treating the case as a joke and had employed Squire
Putman to represent him for twenty-five dollars; which he said was a big
price for the services he would or could render. "I can always depend
upon the Squire to help convict his client. It is a mystery to the bar
how he ever obtained license to practice law."
In the evening Cornwall visited the other hotel and a large boarding
house in search of the Saylors but was unable to find any of them.
When the court house bell rang in the morning he went over, and up the
stairway, into the court room, just as the judge called for motions.
Introduced by the commonwealth's attorney he was sworn in as a
practicing attorney of the Bell Circuit Court.
He expected to see some of the Saylor family seated beyond the railing,
but again was disappointed; nor did he find them after a search through
the corridors and public offices. He then went into the county clerk's
office and began making an abstract of the Brock title.
At noon when he returned to the court room they were in the trial of the
Saylor case. On the right sat Squire Putman and his client and behind
them, Mrs. Saylor, Mary and Susie.
Saylor and his counsel had an air of easy confidence; Mrs. Saylor the
set face and look of an unhappy fatalist; Mary's expression was one of
worried interest and sadness; Susie suppressed an occasional sob.
To Cornwall the jury seemed a rather unsatisfactory one, they looked
bored and unsympathetic. The panel was made up of business men of
Pineville and Middlesboro, who resented being kept from their
occupations at a busy season. They were new citizens who had moved into
the mountains since the development of the coal fields and had little
use or sympathy for pistol toters or feudists.
There was one exception, Elhannon Howard, Saylor's neighbor. He sat in a
listless and inattentive attitude, probably thinking of his patch of
hillside corn or the Southdown ram.
Summing up the situation, realizing how kindly and informally he had
been received into and entertained in the Saylor home, Cornwall
regretted that when refusing the fee of $25.00 he had not volunteered
his services in the defense. He would have done so at the time, but
supposed that Mr. Saylor would employ competent counsel to defend him.
The trial was a short one. The Commonwealth, in addition to making out
its technical case, proved threats on the part of Saylor and that Saylor
admitted the killing.
Saylor on the stand told the same story he had told Cornwall. The
defense then introduced two witnesses, who swore that the deceased had
threatened Saylor; Spencer sending word by them to Saylor that he
intended to kill him; the squire attempted to show by the doctor that
when Spencer was told by him that he could live but an hour or two, the
dying man had said: "I am to blame for the trouble," but the court
excluded the declaration from the jury.
The squire in making his argument for the defense grew quite stentorian
of voice and excited in manner. He had a way of half stooping until the
long coat tails of his black frock coat touched the floor, when he would
suddenly spring upright and exclaim: "Now, gentlemen of the jury,
wouldn't you be danged fools if putting yourselves in Saylor's place you
had not done as he did."
In one of these paroxysms his coat tail flapped to one side and hung
pendant on the handle of a six-shooter protruding from his hip pocket.
This explained to the jury why in midsummer he wore a frock coat. They
considered the pistol a silent witness and protest against Saylor's
acquittal and a clarion call to do their duty in upholding law and
order.
Shortly before six the jury retired. They were out fifteen minutes and
brought in the following verdict: "We, the jury, agree and find the
defendant guilty and fix his punishment at three years in the State
penitentiary. Elhannon Howard, Foreman."
When the verdict was read, the face of the squire turned red with
surprise. Saylor's face for the first time assumed a serious expression;
Mrs. Saylor burst into tears; Susie cried aloud and hung to her father's
arm; Mary grew as pale as death and her body shook as from intense cold.
Cornwall, who had come into the court room during the squire's argument
and who, after bowing to Mary and Mrs. Saylor, had taken a seat behind
them, came forward.
"Never mind, Mary, we shall find a way to get him off. Let me go with
you and your mother to where you are stopping. I tried to find you last
night."
The sheriff came forward and, taking Saylor by the arm, said: "Come on,
Mr. Saylor."
The woman kissed the condemned man a hasty farewell. He and the sheriff
went out one door toward the jail; the Saylor family and Cornwall
another, walking up the street to old Pineville, to the home of Mary's
aunt.
In the morning Mary and her mother came by the court house and asked
Cornwall to go with them to the jail, as that afternoon they had to
return home.
It was a sad group that gathered in the little jail parlor, while the
jailer stood at the door.
"Well, young man, I guess you know more law than me or old Putman. I
seem to be in bad because I did not take your view and advice, instead
of hiring that cheap lawyer. We had only Mary's money; I did not want to
sell or mortgage our home, and if I had not killed Simpson, he would
have got me shore."
"You may have a chance, Mr. Saylor, with the Court of Appeals. I do not
think the court should have excluded Simpson's dying declaration; it
seemed relevant."
"I shorely hope so on account of the old woman and the kids. Mary will
lose her school on my account; she can't keep those big boys quiet now.
You look after my case for me and write Mr. Rogers that I will sell his
company the home place."
"Do not sell your place to pay a fee to me. You can pay that after you
are out. Mary and I will attend to the costs of the appeal, which will
not be much, as the record is small."
Saylor's wife and daughter bid him a rather stoical farewell, so far as
tears and talk were concerned, though their pallid faces indicated the
pain of separation was heartfelt. Mountain women have not a fluent line
of chit-chat, nor are they demonstrative in their griefs.
They walked with Cornwall back to the court house, where, after thanking
him for what he had done and expressing a wish to see him soon, they
left, returning home in the afternoon.
Cornwall sent Mr. Rogers the following telegram: "Saylor convicted,
three years penitentiary. Offers Straight Creek land for thirty
thousand. Hope company can afford to pay thirty-five. John Cornwall."
He received this answer: "Land worth thirty-five thousand, company will
pay that amount if title and survey hold three hundred acres. H. M.
Rogers."
For the next ten days Cornwall was very busy at Pineville. He found the
paper titles to the Brock and Saylor surveys perfect. The Helton
boundary necessitated a suit to clear the title to about one-half of the
survey. He filed a motion for a new trial in the Saylor case, which the
court promptly overruled; then asked and was granted an appeal to the
Court of Appeals. The court stenographer made a transcript of the
testimony; a bill of exceptions was filed and approved and within ten
days after Saylor's trial and conviction; his appeal was formally filed
at Frankfort.