so clearly enunciates the humane principles which then actuated our
courts, and to this good day continue to move them, in all their
dealings with the inferior race, that it is peculiarly worthy of a
place in the record of a society devoted to preserving the earlier
history of our state and its people, and we may be pardoned for quoting
its language at length.
It was by Justice Clarke, in reviewing an appeal by a white man who had
killed a slave in Adams county and been sentenced to hang therefor. He
said in part, "In some respects slaves may be considered as chattels,
but in others they are regarded as men. The law views them as capable
of committing crimes. This can only be upon the principle that they
are men and rational beings. The Roman law has been much relied on by
counsel for the defendant. That law was confined to the Roman Empire,
giving the power of life and death over captives in war, as slaves,
but it no more extended here than did the similar power given to
parents over the lives of their children.... At a very early period in
Virginia the power of life over slaves was given by statute, but ... as
soon as these statutes were repealed it was at once considered by their
courts that the killing of a slave might be murder.... In this state
the Legislature have considered slaves as reasonable and accountable
beings, and it would be a stigma upon the character of the state, and
a reproach to the administration of justice if the life of a slave
could be taken with impunity,--if he could be murdered in cold blood,
without subjecting the offender to the highest penalty known to the
criminal jurisprudence of the county. Has the slave no rights because
he is deprived of his freedom? He is still a human being, and possesses
all those rights of which he is not deprived by the positive provisions
of the law,--but in vain shall we look for any law passed by the
enlightened and philanthropic legislature of this state giving to the
master power over the life of the slave. Such a statute would be worthy
the age of Wraco or Caligula, and would be condemned by the unanimous
voice of the people of this state, where cruelty, even, to slaves, much
less the taking away of life, meets with universal reprobation....
Because slaves can be bought and sold it does not follow that they can
be deprived of life.... The right of the master exists not by force of
the law of nature or of nations, but by virtue only of the positive
law of the state,--and, although that gives to the master the right to
command the services of the slave, requiring the master to feed and
clothe the slave from infancy till death, yet it gives the master no
right to take the life of the slave, and if the offense be not murder
it is not a crime, and subjects the offender to no punishment.... A
distinction once existed in England between the killing of a Dane and
a Saxon, but even in Coke's time the killing of any rational being
was murder.... At one period of the Roman history, a history written
in the blood of vanquished nations, slaves were regarded as captives,
whose lives had been spared in battle, and the savage conqueror might
take away the life of the captive, and therefore he might take away the
life of the slave. But the civil law of Rome extirpated this barbarous
privilege, and rendered the killing of a slave a capital offense. When
the Northern barbarians overran Southern Europe, they had no laws but
those of conquerors and conquered, victors and captives, yet even by
this savage people no distinction was recognized between the killing
in cold blood of a slave or a freeman. And shall this court, in the
nineteenth century establish a principle too sanguinary for the code
even of the Goths and Vandals, and extend to the whole community the
right to murder slaves with impunity?
The motion to arrest the judgment must be overruled."
The defendant was sentenced to hang on July 27th, 1821.
I have endeavored as well as possible in the brief time allotted me,
to refer to the most important features of our early slave laws. It
has not been my purpose to attempt an exhausted research into such
legislation,--the object sought being merely to show, as a matter of
some historical interest, from an impartial mention of the early acts
concerning slavery, that the position of the slave in Mississippi
was not as it has sometimes been depicted; that so far from being a
creature with no legal status, subject to the whims and caprices of his
master,--a mere chattel, over which even the power of life and death
might be exercised at will,--he was surrounded by all the protection
which just laws, humanely administered, could afford,--that the courts
were ever open to him and that he could, and did appeal to them, and
not in vain.
If any unknown or forgotten facts of historical importance to us have
been brought to light, my purpose has been accomplished.
We have only touched upon the legislative enactments concerning
slavery,--and for us, who know that it existed, it is unnecessary to
revert to that higher law which controlled the relations between master
and slave, and compelled such conduct toward the latter as made of him
in countless instances the devoted friend.
Only an affection born of long years of treatment in the main
considerate and kind, could have furnished history with the spectacle
of the espousal by the slave of his master's cause, in a conflict the
end of which meant so much of difference to the two.
The four years of faithful devotion to which the women of the South
bear willing witness could never have been exhibited by an enslaved
people between whom and their masters the relations had been other than
those we know to have existed.
The society which made possible those relations was unique in the
history of civilization,--and in the annals of all the peoples who have
passed through bondage the conduct of the negro slave stands without a
parallel.
FEDERAL COURTS, JUDGES, ATTORNEYS, AND MARSHALS IN MISSISSIPPI,
1798-1898.[96]
BY THOMAS McADORY OWEN.
The Mississippi Territory was created by Act approved April 7,
1798.[97] This Act, limited in its provisions, authorized the President
"to establish therein a government in all respects similar to that now
exercised in the territory northwest of the river Ohio," excepting
expressly the prohibitive provision respecting slavery.
TERRITORIAL COURTS.
The Ordinance of July 13, 1787, regulating the government of the
Northwest Territory, authorized the appointment by the President of
"a court to consist of three judges," "who shall have a common law
jurisdiction," their commission to continue in force during good
behavior. The governor and the judges were given a limited law making
power. On May 7, 1798, just one month after the act of formation,
the President commissioned the Governor and Secretary, and two
judges--Daniel Tilton and Peter Bryan Bruin. On June 28, 1798, the
third, Wm. McGuire, was commissioned as Chief Justice. Their law making
labors ended disastrously, the enactments being generally condemned by
the people as "repugnant to the established principles of jurisprudence
derived from the common law of England." So great was the clamor
against them that Congress advanced the Territory into the second grade
of government, May 10, 1800. These obnoxious laws were in a few years
repealed.[98]
The settled portions of the Eastern section of the Territory (now
Alabama) were so remote from the Mississippi settlements proper as to
make the duty of holding courts there very burdensome, and often courts
were not held at all. Superior Courts were held in the District of
Washington (now Washington County, Ala.,) on the 4th Monday in Sept.,
1802, by Seth Lewis, Chief Justice, and on the first Monday in May,
1804, by Judge David Ker, making two only in four years. Congress,
therefore, on March 27, 1804, passed a law providing an additional
judge for the Territory, to have jurisdiction in Washington District,
and to this position Harry Toulmin was appointed.
The "Great Bend of the Tennessee" having been thickly settled, and
formed into Madison County (now in North Alabama,) Congress provided,
March 2, 1810, a judge to have jurisdiction therein, and to this
position Obadiah Jones was appointed. Both Toulmin and Jones served
during existence of the territory.[99]
During the whole territorial period, 1798-1817 the _nisi prius_ courts,
and the appellate courts were held by these judges, three in what is
now Mississippi, and two in what is now Alabama.[100]
For the three groups of judges in the Mississippi section, the
following is the _probable_ order of succession:
1. McGuire, Lewis, Rodney, Martin, Campbell, Poindexter.
2. Tilton, Ker, Jones, Mathews, Leake.
3. Bruin, Fitts, Simpson, Archer.
TERRITORIAL ATTORNEYS AND MARSHALS.
Until the Act of Congress, Feb. 27, 1813, providing for territorial
attorneys and marshals, all persons holding these positions in
Mississippi did so under local regulations. Following the passage of
the law, appointees were named who seem to have held office during the
remaining years of the territory.[101]
FEDERAL DISTRICT COURT.
The Act of April 3, 1818 marks the establishment in the State of the
Federal Judiciary proper.[102] A judge, attorney and marshal were
authorized. The judge was given authority to appoint a clerk. During
its whole existence the number of judges has never been increased.
Natchez was appointed as the place for the sitting of the Court, twice
annually, and so continued until March 3, 1835, when there was a change
to Jackson, where sessions have since been held.[103]
From April 3, 1818, to June 18, 1838, the whole State constituted one
District. On the latter date it was divided into the Northern, with the
place of holding court fixed at Pontotoc, and the Southern District,
with Jackson as the place for holding the sessions.[104]
On May 16, the place of holding courts in the Northern District was
changed from Pontotoc to Oxford, where courts are now held.[105]
The subsequent changes, resulting in the present arrangement is as
follows:[106]
By Act June 15, 1882, the Eastern Division of the Northern District was
created, with Aberdeen as the place for holding courts.
Feb. 28, 1887, the Western Division of the Southern District was
created, with Vicksburg as the place for holding courts.
April 4, 1888, Southern Division, Southern District, was created, with
Mississippi City as the place for holding courts.
July 18, 1894, Eastern Division Southern District, was created, with
Meridian as the place for holding courts.
On the secession of Mississippi in 1861, Judge Samuel J. Gholson
resigned. Mr. Lynch makes this observation on the court during the
civil war period:[107]
"When the Confederate Government was inaugurated Judge Clayton
was appointed to the bench of the Confederate District Court for
Mississippi, and held that position until the close of the war. There
was during this period, of course, but little civil business before his
court, and only one point of a general interest in the laws of war was
decided by him, which was, that when the Government was powerless to
protect, it had no power to punish."
JUDGES.
_Territorial._
Daniel Tilton, of New Hampshire, commissioned, May 7, 1798.[4]
Peter Bryan Bruin, of Mississippi, May 7, 1798.[108]
William McGuire, Chief Justice, of Virginia, June 28, 1798.[109]
Seth Lewis, of Tennessee, Chief Justice, May 13, 1800.[110]
David Ker, of Mississippi, temporary commission, Nov. 2, 1802,
permanent commission Jan. 25, 1803.[111]
Thomas Rodney, of Delaware, temporary commission, July 12, 1803,
permanent commission, Nov. 18, 1803.[112]
Ephriam Kirby, of Connecticut, temporary commission, April 6, 1804.[113]
Harry Toulmin, of Kentucky, Nov. 22, 1804.[114]
Obadiah Jones, of Georgia, Mar. 3, 1805.[115]
George Matthews, Jr., of Georgia, temporary commission, July 1,
1805.[116]
Walter Leake, of Virginia, Mar. 2, 1807.[117]
Francis Xavier Martin, of North Carolina, Mar. 7, 1809.[118]
Obadiah Jones, of Georgia, Mar. 6, 1810.[119]
Oliver Fitts, of North Carolina, Apr. 18, 1810.[120]
David Campbell, of Tennessee, Mar. 3, 1811.[121]
Josiah Simpson, of New Jersey, Feb. 18, 1812; also Feb. 9, 1816.[122]
George Poindexter, of Mississippi, Mar. 3, 1813.[123]
Stevenson Archer, of Maryland, Mar. 6, 1817.[124]
_Federal District._
William Bayard Shields, of Mississippi, April 20, 1818.[125]
Peter Randolph, of Miss., temporary commission, June 25, 1823,
permanent commission, Dec. 9, 1823.[126]
Powhatan Ellis, of Miss., July 14, 1832.[127]
George Adams, of Miss., Jan. 20, 1836.[128]
Samuel J. Gholson, of Miss., Feb. 13, 1839.[129]
_Confederate District._
Alexander M. Clayton, ----, ---- 1861.[130]
_Federal District._
Robert Andrew Hill, of Oxford, Miss., May 1, 1866, resigned Aug. 1,
1891.[131]
Henry C. Niles, of Kosciusko, Miss., temporary commission, Aug. 11,
1891, permanent commission, Feb. 15, 1892, oath taken, Feb. 15,
1892.[132]
ATTORNEYS.[133]
Thomas D. Anderson, July 29, 1813.
William Crawford, Dec. 10, 1814.[134]
Bela Metcalfe, Apr. 20, 1818.[135]
William B. Griffith, March 13, 1822, and also Dec. 22, 1825.[136]
Felix Houston, Jan 9, 1828.[137]
George Adams, March 3, 1830, and also May 12, 1834.[138]
Richard M. Gaines, Jan. 20, 1836.
_Northern District._
Samuel F. Butterworth, June 25, 1838.
Oscar F. Bledsoe, Jan. 13, 1841, and also Feb. 8, 1845.
Andrew K. Blythe, Dec. 18, 1848.
Woodson L. Ligon, Aug. 27, 1850.
Nathaniel S. Price, April 1, 1853.
Jehu A. Orr, May 31, 1854.
Flavius J. Lovejoy, March 12, 1857.
_Southern District._
Richard M. Gaines, July 9, 1840, March 13, 1844, and also March 22,
1848.
Horatio J. Harris, Aug. 10, 1850; Aug. 4, 1854, and also March 7, 1859.
Carnot Posey, temporary commission, Nov. 4, 1859, permanent commission,
Jan. 30, 1860.
MARSHALS.[139]
John Hanes, of Mississippi, July 29, 1813.[140]
Henry G. Johnson, of Mississippi, April 20, 1818.[141]
Walter M. Leake, March 1, 1820.
Charles M. Norton, temporary commission, Nov. 22, 1823, permanent
commission, Dec. 9, 1823.
John H. Norton, Jan. 3, 1825, and also Jan. 2, 1829.
Anthony Campbell, May 28, 1830.
Samuel W. Dickson, temporary commission, Jan. 18, 1832, permanent
commission, Dec. 11, 1832.
William M. Gwin, temporary commission, Oct. 12, 1833, permanent
commission, June 30, 1834, and also June 26, 1838.[142]
_Northern District._
Adolphus G. Weir, June 25, 1838.
Alexander K. McClung, temporary commission, April 15, 1841, permanent
commission, Aug. 14, 1841.
Andrew A. Kincannon, March 12, 1845.
John Rayburn, Dec. 18, 1848.
William McQuiston, May 16, 1850.
Charles R. Jordan, April 6, 1853.
William H. H. Tison, temporary commission, April 21, 1857, permanent
commission, May 17, 1858.
_Southern District._
Fidelis S. Hunt, Jan. 13, 1841.
Anderson Miller, temporary commission, April 15, 1841, permanent
commission, July 22, 1841.
Thomas Fletcher, temporary commission, March 24, 1845, permanent
commission, Feb. 24, 1846.
Fielding Davis, March 20, 1850.
Richard Griffith, April 4, 1853, and also temporary commission, April
21, 1857, permanent commission, May 15, 1858.
FOOTNOTES:
[96] The lists of Judges, Attorneys and Marshals presented below were
compiled from the records of the State Department and the Department of
Justice, Washington, D. C. In the multiplicity of Mississippi books,
there is nothing of a special character relating to the above title,
and so far as is known this particular data has never heretofore been
published.
The principal repository for early Mississippi history, Claiborne's
_Mississippi_ (1880), contains an account of the jurisprudence of
the Territory and State, Chapter XXXII, pp. 467-482. In Goodspeed's
_Memoirs of Miss._ (1891), Vol. I, p. 101, it is stated that Judge A.
M. Clayton contributed this chapter.
In James D. Lynch's _Bench and Bar of Mississippi_ (1881), there is an
imperfect account of the judicial establishment, with a large number of
valuable biographical sketches, and portraits.
Goodspeed's _Memoirs of Miss._ (2 vols., 1891), has a Chapter on "The
Legal and Judicial History" of the State, vol. I, pp. 100-131, with
portraits.
The original materials are contained in the United States _Statutes_,
the Mississippi Codes and the Session _Laws_, and the _Reports_ of the
Supreme Court of the State.
[97] _U. S. Statutes at Large_, vol. i, pp. 549-550.
[98] U. S. _Statutes at Large_, vol. ii, p. 69. See Claiborne, for
account of laws passed by Governor and judges, second grade of
government, &c., pp. 209, 211, 212, 214, 217, 218, 223, 224, 530.
[99] U. S. _Statutes at Large_, vol. ii, pp. 301, 563.
[100] It is beyond the scope of this paper, which is almost purely
statistical, to enter into a review of the various territorial courts,
or "systems" of judicature projected, &c. For full discussion, see
Claiborne and Goodspeed.
[101] _U. S. Statutes at Large_, vol ii, p. 806.
[102] _U. S. Statutes at Large_, vol. iii, p. 413.
[103] _Ibid._ vol. iv, p. 773.
[104] _Ibid._ vol. v, 247. _See also Revised Statutes_ of the United
States (1878) Secs. 539, 552, and 572.
[105] _Ibid._ vol. xiv, p. 48.
[106] _Supplement Revised Statutes_, 1874-1891, pp. 344, 500, 547, 583,
584, 638, 639.
[107] _Lynch's Bench and Bar of Miss._, p. 506.
With the other Judges comprising the first court, he was quite
unpopular, and in 1802 he abandoned his office.--Claiborne, pp. 209,
223, 231.
[108] Resigned in 1810. He had held judicial office under the Spanish
government, and was an excellent man, but not a lawyer. Claiborne, p.
161., _note_, has a good sketch, with other references on pp. 152, 172,
209, 223, 283.
[109] He was the only lawyer on the first bench of Judges. He early
resigned.--Claiborne, p. 209.
[110] His appointment changed public sentiment toward the Court which
had hitherto been hostile. For sketches of, _see_ Claiborne, p. 108,
note, also p. 223. Gov. W. C. C. Claiborne speaks of him as "a learned
lawyer."
[111] He was highly esteemed and his appointment increased the respect
of the people for the Court. Claiborne, pp. 231, note, and 141, 238.
See Goodspeed, vol. i, p. 1073, for sketch. He died 1805, and not in
1810 as stated by Claiborne.
[112] Claiborne, pp. 242, 258, 283. He presided, with Judge Bruin, at
the trial of Burr.
[113] He was probably appointed for the Washington District, but
evidently never served. He was one of the Land Commissioners for the
District East of Pearl river, appointed under Act of Congress, of March
3, 1803--Pickett's _Alabama_, vol. ii, p. 196.
[114] Judge for Washington District, now in Ala. Born in Taunton,
England. He was the most prominent and the strongest of the early
public men in Alabama, and died in 1824. An excellent account of his
life is in Claiborne, p. 309, note. _See also_ Brewer's _Alabama_
(1872), p. 575; Lynch, p. 21-2; and Pickett's _Alabama_, vol. ii, pp.
204-5.
[115] Evidently never accepted appointment, as on Mar. 7, 1809, still a
resident of Ga., he was appointed a Judge in Illinois. The latter place
he also appears not to have accepted, as in 1810 he became Judge for
Madison Co., M. T.
[116] Martin's _Louisiana_ (1882), p. xxiii. Never received a permanent
commission, but on Jan. 19, 1806, became a Judge in Orleans Territory.
Son of Gov. George Matthews, of Ga. _See also_ Gilmer's _Georgians_.
[117] Claiborne, p. 356; and Lynch, pp. 135-7.
[118] Resigned and became a Judge in Orleans Territory, March 21, 1810.
For excellent memoir, by Judge W. W. Howse, _see_ Martin's _Louisiana_
(1882).
[119] _See_ note _supra_. He accepted this appointment, and presided
in the courts of Madison county, and later of other counties in the
Northern part of Alabama territory until 1818.
[120] Grandfather of James Harris Fitts, Tuscaloosa, Ala.--_Memorial
Record of Alabama_ (1893), vol ii, p. 1090. He has sometimes been
confounded with Gideon Fitz, of Va., who was a brother-in-law of Gov.
Robert Williams. Mrs. Sallie B. Morgan Green, so well known in Miss. as
a writer, but now of Calusa, Cal., is a grand daughter of Gideon Fitz,
_See_ Claiborne, pp. 161 _note_, 352; and Goodspeed, vol. i, p. 109.
[121] Goodspeed, vol ii, p. 109.
[122] Claiborne, p. 352.
[123] Claiborne, Chapter xxx, pp. 361-414, contains an elaborate
biography. In a _note_, p. 414, is a brief account of his literary
remains, now deposited with the Claiborne papers, in the University
library, Oxford, Miss. _See also_ Lynch, pp. 27-73. His portrait is in
Lowry and McCardle's _History of Miss. for Schools_, p. 101.
[124] Returned to Md. in 1819.--Goodspeed vol. i, pp 311-12.
[125] First Federal District Judge. Claiborne, p. 260, _note_.
[126] Goodspeed, vol. i, p. 130.
[127] Claiborne, pp. 358, _note_, and 470; Lynch, pp. 27-8. He is said
to have descended from Pocahontas.
[128] Claiborne, pp. 388-9, _note_; and Goodspeed, vol. i pp. 114, 285.
He was the father of Gens. Daniel and Wirt Adams, and father-in-law of
Gen. John D. Freeman.
[129] Lynch, pp. 497-500. The author, p. 499, comments on the failure
of President Davis to appoint him his own successor. _See also_
Goodspeed, vol. i, p. 787.
[130] Lynch, pp. 500-507; _steel portrait_.
[131] His sketch in Goodspeed, vol. i, pp. 922-929, contains an
elaborate presentation of his judicial career, and discusses many of
the questions which came before him when on the bench. Claiborne, p.
472, _note_, pays a splendid tribute to his character.
[132] Present incumbent.
[133] The list is not brought down later than 1860. Further detailed
annotation as to both attorneys and marshals is expressly omitted
except in a few instances.
[134] Appointed for and acted in Washington District. For sketch, _see_
Brewer's _Alabama_, p. 392.
[135] First Federal District Attorney in Miss. after formation of the
State.
[136] Lynch, pp. 112-126.
[137] Claiborne, p. 431.
[138] Became Judge later; _see_ note _supra_.
[139] The list is not brought down later than 1860.
[140] Appointed for and acted in Washington District.
[141] First Federal Marshal in Miss. after the formation of the State.
[142] For elaborate memoir, and _portrait_, _see_ Claiborne, pp.
427-446.
RUNNING MISSISSIPPI'S SOUTH LINE
PETER J. HAMILTON, ESQ.
Within a month after the 1899 meeting of this association at Natchez,
the Alabama Historical Society will be celebrating at St. Stephens on
the Tombigbee River the centenary of the withdrawal of the Spaniards
below the line of 31°, which once separated the United States from
the Spanish possessions east of the Mississippi River. In connection
with this and our own meeting place a short study of the origin and
delimitation of this, Mississippi's original south boundary, will be of
interest.