Bench and Bar
FIRST JUDICIARY ACT. In 1777 (Ch. 115, p. 281) the State was divided into six districts, viz. Wilmington, New Bern, Halifax, Hilisborough and Salisbury, in each of which places a Superior court for the trial of civil and criminal causes should be held, to consist of three judges who were to hold office during good behavior, The jurisdiction and terms being prescribed. It is sometimes thought that the Superior court was not established till 1806; but that is a mistake; the act of 1806 having simply prescribed two terms in each county after having changed the districts into so many circuits (Ch. 693, Laws 1806, p.1050) but with the same jurisdiction.
COUNTY COURTS OF PLEAS AND QUARTER SESSIONS These courts were provided for in the same chapter their jurisdiction and terms prescribed. (P.297, et #eq.)
APPEALS. Provision was made in the act of 1771 (Ch. 15) for appeals from the County coulits of Pleas and Quarter Sessions to the Superior courts, but none from the decisions of the Superior courts, till 1799. In that year was established (Ch. 520).
A CONFERENCE COURT, consisting of all the Superior court judges, who were to meet at Raleigh on the 10th day of June and December of each year, appoint a clerk and decide all questions of law and equity which had arisen upon the circuit before any of the judges of the Superior courts, which the judge sitting may be unwilling to determine, and shall be desirous of further consideration thereon, … [by] a conference with the other judges; or where any questions of law or equity have already arisen on the circuit, and have remained undecided by reason of a disagreement of the judges on the circuit." (See 2nd Murphy's Reports.)
NAME CHANGED TO SUPREME COURT. In 1805 (Ch. 674, p. 1039) "the name and style of the court of conference shall hereafter be that of the Supreme court of North Carolina," and it was made the duty of the sheriff of Wake county to attend its sessions. It was not, however, till 1818 (Ch. 962) that the Supreme court, composed of judges elected for the purpose of hearing appeals, etc., alone, was provided for. The court was to consist of three judges to be elected by the legislature and to hold office during good behavior. Terms were to be held in Raleigh May and November 20th of each year.
TENNESSEE SUPERIOR COURT. "The act of the general assembly of North Carolina, providing for or establishing a Superior court of Law and Equity for the counties of Davidson, Sumner and Tennessee, was not passed till November, 1778…. The first volume of the original record of the minutes of the Superior Court … for the District of Washington-then the 'Western District'-at Jonesboro, shows that David Campbell alone held that court from the February term, 1788 (which was the first term), until the February term, 1789, at which latter term the record shows that Judge McNairy appeared and sat with Judge Campbell."
JUDGE SPRUCE MCCAY. This judge held the second term of the Superior court of Ashe county, in September, 1807. He had married a daughter of Gen. Griffith Rutherford, and lived at Salisbury. It was he who had held the August, 1782, term of the "Court of Oyer and Terminer & Gaol Delivery, " in Jonesborough, in what was then Washington District, now in Tennessee. "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 th effect that the Jury who passed upon the Tryal of Vann beg Leave to Recommend him to the Court for Mercy; but no mercy was shown him by the Honl. Spruce McCay…. 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 MeCay disposed 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 author, John Allison, now a chancellor of Tennessee, says "It is not probable that a parallel proceeding can be found in judicial history." He adds that "tradition in that country gave Judge McCay the character of a heartless tyrant." But the juries of that day and section of North Carolina seem to have been equal to the occasion; for at the same term of court the following incident is mentioned "The juries 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 thst term of court. In a case styled'State v. Taylor,' the record shows that the jury was sworn and the defendant put on 'Tryal.' Nothing more appears except the following significant entry :'State V. Taylor. The jury having failed to come back into court, it is therefore a mistrial.' "
"LEWIS AND ELIAS PYBOURN." At the May Term, 1783, at Jonesborough, an order was iiiade allowing these men "who is at this time Lying out" to- return home upon giving bond for good behavior, which, probably was done. But whether it was done or not, seven years later, at the August term of the same court, 1790, Elias Pybourn was convicted of horse-stealing, and was sentenced to "the public pillory one hour. That he have both his ears nailed from his head; that he receive at the public 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…"
JOSEPH CULTON'S RIGHT EAR. At the November Term, 1788, at Jonesborough, Joseph Culton proved by the oath of Alexander Moffit that he had lost his left ear in a fight with a certain Charles Young, and prayed that the same be entered on record, and it was so ordered.
WITHOUT PASS OR RECOMMENDATION. When a stranger came into the Watauga settlement he was asked to account for his being there, and if his explanation proved to be unsatisfactory, he was required to give bond for his good behavior or to leave. Wm. Clatry was a "trancient person" and was required to give security for his behavior, and return to his family "within five months," he having confessed that he had left home and taken up with another woman.
However, it is not to Judge Spruce McCay to whom we are indebted for the following.
A GRUESOME RECORD. At the March Term, 1809, of the Superior court of Ashe, Judge Francis Locke presiding, case of the State v. Carter Whittington, indicted for perjury was tried, the following names appearing as those of the jurors James Dixon, Charles Sherrer, Daniel Moxley, Josiah Connolly, Young Edwards, Alex. Latham, Wm. Powers, Andrew Sherrer, Chris Crider, Thomas Tirey (Tire?), Charles Francis, Jesse Reeves. The jury found the defendant Carter Whittington "guilty in manner and form as charged in the bill of indictment." David and Elijah Estep, sureties, thereupon delivered up Carter Whittington, and he was ordered into the custody of the sheriff. "Reasons in arrest of judgement in the case of Carter Whittington were filed by Mr. McGimsey, his attorney-after solemn argument, the reasons are overruled by the court."
JUDGMENT. "Fined £10, and the said Carter Whittington stand in the pillory for one hour, at the expiration of which time, both his ears to be cut off and entirely severed from his head, and that his ears so cut off he nailed to the pillory by the officers and there remain till the setting of the sun, and that the sheriff of this county carry this judgment immediately into execution, and that the said Carter Whittington be confined until the fine and fees are paid ….Solicitor's fees of Ï1-6-8 paid by deft."
THE UNWRITTEN LAW IN 1811. At the March term, 1811, of the Superior court of Ashe, Samuel Lowery, judge presiding, an order was made for the removal to Wilkes court, to be held on the third Monday of March, of the case of the State V. William Tolliver, indicted for the murder of a man named Reeves; and the sheriff of Ashe was required to "procure a sufficient guard of eight men from the proper officers of the militia to convey safely the said William Tolliver to the Superior court of Wilkes county," thus indicating either that there was danger of a lynching or a rescue. Tradition says that Tolliver was acquitted at Wilkesboro on the ground that Reeves had attempted liberties with Tolliver's wife. Robert Henry of Buncombe defended him.
HANGING OF DAVID MASON. When Dr. W. A. Askew was about fifteen years old he stayed all night with the late James Gudger, the ancestor of most of the Gudgers of this section, in what is now Madison county. Young Askew was then on his way from his home on Spring creek to see the "hanging" of a man nanied David Mason who had been convicted of the murder of his wife by cutting her throat in Haywood county. Askew rode to "town" (Asheville) with Dr. Montraville W. Gudger, a son of "Old Jimmie." The evidence upon which Morgan had been convicted indicated that he had slipped up on his wife while she was carding in her cabin home and killed her. Pierce Roberts was the sheriff of Buncombe then, and the execution took place in the woods below and behind Col. Lusk's residence on College Street, or where J. D. Henderson's residence now stands-there being two accounts as to its location. This must have been between 1847 and 1850. When asked on the gallows if he had anything to say Morgan called up Aaron Fullbright and another man whose name Dr. Askew has forgotten and pointing his finger at them said "You have sworn my life away."
Twenty-five years ago (1887), according to Dr. Askew, a woman in Sevier county, Tennessee, confessed on her death-bed that she had killed David Mason's wife.
COL. DAVIDSON'S RECOLLECTIONS OF "BAR. The late Col. Allen T. Davidson, in the Lyceum for May, 1891, says:
"I entered the profession of the law January 1, 1845, with Gen R. M. Henry and J. A. B. Fitzgerald as my classmates. We were students of Michael Francis of Waynesville…. "The gentlemen then in full practice were Joshua Roberts, Geo. W. Candler, Felix Axley, John Rolen, Michael Francis, N. W. Woodfin, John Baxter, George Baxter, Col. B. S. Caither, Wm. Shipp, Gen. R. M. Henry and J. A. B. Fitzgerald. These constituted the bar and rode the circuit, as we did then, until about 1855, when Judge A. S. Merrimon, Senator Z. B. Vance, Maj. Marcus Erwin, Gen. B. M. Edney, P. W. Roberts, and Col. David Coleman were added to the list…. Several distinguished lawyers left the profession just as I entered, Gen. John G. Bynum and Gen.T. L. Clingman, who, added to the list, made an array of talent and sound ability rarely met with…. The court usually began in Cherokee (where I then lived) in March and September, and we all joined and. made the circuit from thence eastward to Asheville, where I usually stopped. We traveled together on horseback, stopped at the same hotels in the towns, and at the same wayside inns in the country; and it was not unusual to have ten or fifteen of us together at these country stopping places, where the wit and humor of the profession broke loose in all its force, and good humor ruled the house. It is a fact that nearly all of those mentioned were gentlemen of fine humor, and but few given to strong drink, so that the jest and humor were of the best character, without boistering or noise. Mr. N. W. Woodfin was remarkable for his humor, clear-cut and original. Mr. Candler excelled in his country stories… and when he took the floor he usually held it in silence till the climax, when there were uprorious bursts of applause. Mr. J. W. Woodfin was the sunshine of the circle, was always in a good humor, and told a story well…. I recall many of the stopping places, the first going from Asheville being James Patton's beyond the Pigeon. Here we would meet a good~humored fine old gentleman as landlord, with his big country fireplaces, and roaring hickory wood fires, a table groaning with all that was desirable to eat, good beds and plenty of cheer, supper, lodging and breakfast, horse well fed and groomed, brn fifty cents, and this was uniform for twenty years. So at Daniel Bryson's on Scott's creek, same fare and same bill. At Wm. Walker's at Valleytown, one of the best houses in Western North Carolina, the bill for man and horse was fifty cents. A great staying place was N. S. Jarrett's on the Nantahala, at a place called Aquone. Here we met, here we chased the deer, here we beguiled the trout in that crystal stream with the fly, here we whiled away many a pleasant summer noon in these attractive sports. Good, dear old friends! I can see you all now in fancy; but this vanishes and I remember that you are more…. I must be allowed to close with a general resume Intended to embrace the years between 1845 and 1861 : the profession was able, studious, painstaking and thorough. I have been an honest and careful observer of many deliberative assemblies; have watched with much care and interest the application and power of the human mind so as to learn from careful observation how great men, so-called, look at subjects and reach conclusions . . but after all I am bound to say that the trial of cases in the mountain circuit has impressed me more than the proceedings of any other body of men I have ever met for its sincerity, force and logic. Here we were, in a large and extensive district of country, the courts distantly situated, without books, at each town finding only the Revised Statutes and perhaps a digest; yet with these we tried our cases ably and well, and our contentions have been well sustained by adjudged cases. In court the common law pleading prevailed, beginning with the writ, thus bringing the defendant into court. Upon the appearance of the defendant the issues were joined and the case was ready for trial without circumlocution or clerical talent. The fight was an old-field, drawn out set-to. As Judge Read says "We drew the sword and threw away the scabbard; or, in less classical words, "The Devil take the hindmost." It is a fact, however, that with all the spirit with which the case was tried, often with the manifestation of temper, no unkind or angry feeling ever went outside the court house, and we all closed the circuit to enter our homes as friends."
JUDGE V. JUDGE. When the county seat was at Jewel Hill Dr. J. S. T. Baird was clerk. A church was used for this purpose and having a window the sash of which was made to open by sliding along horizontally instead of being raised, as is usual, the presiding judge, needing air, tried to raise this sash, and failing kicked a hole in the glass. For this the late Col. John A. Fagg, then Chairman of the County Court of Pleas and Quarter Sessions of Madison county, fined his Honor, the presiding Judge, ten dollars and his Honor paid it!
CERTIFICATE AS TO WHY RIGHT EAR WAS MISSING. From the minutes of the County court of Buncombe, October, 1793, it appears that it was "Ordered by court that Thomas Hopper, upon his own motion, have a certificate from the clerk, certifying that his right ear was bit off by Philip Williams in a fight between said Hopper and Williams. Certificate issued." This was necessary in order that the loss of a part of his ear might not cause those ignorant of the facts to conclude that the missing part had been removed as a punishment for perjury or forgery.
WHERE THE SOS-SKIN LAY As far back as 1840, probably, James Gwynn of Wilkes county was solicitor of this circuit, which embraced all the mountain counties except Ashe. James Gwynn of the East Fork of Pigeon river, Haywood county, is a near relative and bears his honored name. He married a Miss Lenoir of Fort Defiance, and was a man of very decided ability, though of little education. His spelling was execrable, but his power over a jury was great. Judge J. L. Bailey and Gen. Clingman knew and appreciated his ability, and through them two anecdotes survive. When Nathan asked David for an opinion of the man who took the ewe-lamb of another, and David had expressed himself thereon, then "Nathan said unto David, Thou art the man." When attempting to quote this to a jury Mr. Gwynn got the names of the principal actors confounded with two other Biblical characters, and after detailing the circumstances of a hog-stealing case, pointed with his finger at the defendant and exclaimed: "As Abraham said unto Isaac, Thou art the man." The other story was also of a hog stealing case; but had reference specifically to a sow. The sow had been stolen and her flesh eaten. But the sow's skin had been discovered, was upon it and the place of its concealment near-the defendant's home, that the solicitor relied for a conviction. "Where gentlemen of the jury," he asked impressively, "was the sow skin?" He raised himself on his toes and shouted the answer: "Far up under the shadder of the Big Yaller, where the rocks are rough, and the waters run deep, and the laurels wave high (crescendo) the sow skin lay!"
SAD ENDING OF A PRISON SENTENCE. About the year 1856 or 1857 a talented and highly respected physician of Hendersonville by the name of Edward R. Jones took umbrage at something a tailor by the name of A. J. Fain had said or done, both being politicians to some extent. Jones probably considered Fain his social inferior. At any rate, instead of appealing to the code of honor, as was the custom of that day, Dr. Jones entered Fain's tailor shop and literally carved him to death. He was indicted and the case removed to Rutherfordton, where the late Colonels N. W. and John W. Woodfin defended, while the late John Baxter prosecuted. Jones was convicted of manslaughter and sentenced to a term of imprisonment in the Rutherford jail. While serving that sentence he, in a fit of despondency, cut his throat and died.
ASHEVILLE'S FIRST ATTORNEYS. "At its first session in April, 1792, the county court elected Reuben Wood, Esq; 'attorney for the state.' He is the first lawyer who appears as practicing in Buncombe county. Waightstill Avery, the first attorney general of North Carolina, attended the at the next session of the court and made therein his first was motion, which "was overruled by the court." At this term Wallace Alexander also became a member of the Buncombe bar. Joseph McDowell appeared at October term, 1793, presented his license, took "the oath of an attorney, and was admitted to the bar in said county." On the next day James Holland "came into court, made it appear (by) Mr. Avery and Mr. Wood, that he has a license to practice as an attorney-but had forgot them." He too was admitted as an attorney of the court. At January court, 1794, Joseph Spencer proved to the court that he had license to practice, and was likewise admitted as an attorney of the court, and at April term, 1795, upon the resignation of Reuben Wood, he was elected solicitor of the county. The next attorney admitted was Bennett Smith. Upon motion of Wallace Alexander in April, 1802, Robert Williamson was admitted to the practice.
ROBERT HENRY. "Then, in July, 1802, on motion of Joseph Spencer, and the production of his county court license, Robert Henry, Esq., became an attorney of the court. This singular, versatile and able man has left his impression upon Buncombe county and Western North Carolina. Born in Tryon (afterward Lincoln) county, North Carolina, on February 10, 1765, in a rail pen, he was the son of Thomas Henry, an emigrant from the north of Ireland. When Robert was a schoolboy he fought on the American side of Kings Mountain, and was badly wounded in the hand by a bayonet thrust. Later he was in the heat of the fight at Cowan's Ford, and was very near Gen. William Davidson when the latter was killed. After the war he removed to Buncombe county and on the Swannanoa taught the first school ever held in that county. He then became a surveyor, and after a long and extensive experience, in which he surveyed many of the large grants in all the counties of western North Carolina and even in middle Tennessee, and participated in 1799, as such, in locating and marking the line between the State of North Carolina and the State of Tennessee, he turned his attention to the study of law. In January, 1806, he was made solicitor of Buncombe county. He it was who opened up and for years conducted as a public res6rt the Sulphur Springs near Asheville, later known as Deaver's Springs and still more recently as Carrier's Springs. On January 6, 1863, he died in Clay county, N. C..; at the age of 98 years and was 'undoubtedly the last of the heroes of Kings Moutain….' To him we are indebted for the preservation and, in part, authorship of the most graphic accounts of the fights at Kings Mountain and Cowan's ford which now exist. He was the first resident lawyer of Buncombe county."
COLONEL DAVIDSON'S RECOLLECTIONS OF ROBERT HENRY.
"I must not omit … to mention Robert Henry, who lived, owned and settled the Sulphur Springs. He was an old man when I first knew 'him, say fifty years ago [that was in 1891]; he had then retired from the profession of the law which he had practiced many years. This was before I knew him well. He was tedious and slow in conversation, but always interesting to the student. He had been a fine lawyer, and remarkable in criminal cases. He could recite his experiences of cases in most minute detail. He insisted that, underlying all there was invariably a principle which settled every rule of evidence and point of law. I chanced to get some of his old criminal law books such as Foster's Crown Law, Hale's Pleas of the Crown, etc., and I found them well annotated with accurate marginal notes, showing great industry and thought in their perusal. He had a grand history in our struggle for independence; was at Charlotte when the Declaration of Independence was made; but, being a boy at this time he did not understand the character of the resolutions; but said he heard the crowd shout and declared themselves freed from the British: government. He afterwards fought at the battle of Kings Mountain and was severely wounded in the hand and thigh, by a bayonet in the charge of Ferguson's men."
MICHAEL FRANCIS. Col. Allen T. Davidson, in the same paper, has left this record concerning this man, once known as "the Great Westerner."
"Michael Francis was a Scotchman, educated in Edinburgh, a thorough scholar, was one of those warm hearted, florid Scotchmen so characteristic of Bonnie Scotland. He weighed three hundred and thirty pounds, was one of the most forcible and clear logicians at the bar, was remarkable for his study and observation of the human mind. He was always a complete master of the facts of his cases, and was able to deduce from them the true intent of the mind of the witness, and had a happy and forcible way of illustrating the methods by which the ordinary intellect reaches conclusions. He had studied human nature so closely that he could divine the secret intents of the heart. As a consequence, he was a power invincible before a jury. Added to this, he was a thorough lawyer, able to cope with the best, and remarkable for his power of condensation and forcible expression. He was a pioneer in the settlement of many new points of law in this circuit, as many cases argued by him before the Supreme court will attest…. He was a great platform speaker and a leader in the formation of political sentiment. He was a member of the house and senate and discharged every public duty with honor and credit…. He was my good preceptor whom I have closely studied and tried to follow."
ISRAEL PICKENS AND OTHERS. The next lawyers admitted in that county were, in the order in which their names are given: Thomas Barren, Israel Pickens, Joseph Wilson, Joseph Carson, Robert H. Burton, Henry Harrison, Saunders Donoho, John C. Elliott, Henry Y. Webb, Tench Cox, Jr., A. R. Ruffin, and John Paxton. These were admitted between January, 1804, and October, 1812, from time to time. Probably the most distinguished of them were Israel Pickens, representative of the Buncombe District in the lower house of the Congress of the United States from 1811 to 1817, inclusive and afterwards governor of Alabama and United States senator from that State; Joseph Wilson, afterwards famous as a solicitor in convicting Abe Collins, Sr. and the other counterfeiters who carried on in Rutherford county in the first quarter of this century extensive operations in the manufacture and circulation of counterfeit money; and Pobert H. Burton and John Paxton, who became judges of the Superior courts of North Carolina in 1818.
DAVID L. SWAIN. The first lawyer of Buncombe county who was a native thereof was the late Gov. D. L. Swain. Born, as has been already stated, at the head of Beaverdam, on January 4, 1801, he was educated under the Rev. George Newton and the Rev. Mr. Porter at Newton Academy, where he had for classmates B. F. Perry, afterward governor of South Carolina, Waddy Thompson, of South Carolina, distinguished as congressman and minister to Mexico, and M. Patton, R. B. Vance and James W. Patton of Buncombe county. In 1821 he was for a short while at the University of North Carolina. In December, 1822, he was of the Edenton Circuit, and in 1832 became, and for five years continued to be, a representative of Buncombe county in the House of Commons of the State, in 1829 was elected solicitor, admitted to practice law in 1824, became governor of the State. After the expiration of three successive terms as governor, he became president of the University of North Carolina in 1835, and continued in that place until August 27, 1868, the time of his death. He was largely instrumental in securing the passage of the act incorporating the Buncombe Turnpike Company, and to him more than to any other man North Carolina is indebted for the preservation of her history and the defence of her fame. His early practice as a lawyer was begun in Asheville. For further details than are given here in regard to the life of this truly great man, the reader is referred to Wheeler's History of North Carolina, and his Reminiscences, and to the more accurate lecture of the late Governor Z. B. Vance on the Life and Character of Hon. David L. Swain.
"OLD WARPING BARS." Governor Swain was tall and ungainly in figure and awkward in manner. When he was elected judge the candidate of the opposing party was Judge Seawell, a very popular man, whom up to that time, his opponents, after repeated efforts with different aspirants, had found it impossible to defeat. "Then," said a member of the legislature from Iredell county, "we took up Old Warping Bars from Buncombe and warped him out." From this remark Mr. Swain acquired the nickname of "Old Warping Bars," a not inapt appellation, which stuck to him until he became president of the University when the students stowed upon him the name of "Old Bunk." continued to be Old Bunk all the rest of his life. While he was practicing at the bar the lawyers rode the circuits. Beginning at the first term of the court in which they practiced, they followed the courts through all the counties of that circuit. Among Swain's fellow lawyers on the Western Circuit were James R. Dodge (afterwards clerk of the Supreme court of the State and a nephew of Washington Irving), Samuel Hillman and Thomas Dews.
DODGE, HILLMAN, SWAIN AND DEWS. On one occasion these were all present at a court in one of the western counties and Dodge was making a speech to the jury. Swain had somewhere seen a punning epitaph on a man whose name was Dodge. This he wrote off on a piece of paper and passed it around among the lawyers, creating much merriment at Dodge's expense. After the latter took his seat some one handed it to him. It read:
"EPITAPH ON JAMES H. DODGE, ATTORNEY AT LAW.
"Here lies a Dodge, who dodged all good,
And dodged a lot of evil;
But, after dodging all he could
He could not dodge the devil."
"Mr Dodge perceived immediately that it was Swain's writing, and supposed that Hillman and Dews had had something to do with it. He at once wrote this impromptu reply:
"ANOTHER EPITAPH ON THREE ATTORNEYS.
"Here lles a Hillman and a Swain-
Their lot let no man choose.
They lived in sin and died in pain,
And the devil got his Dews…"
THEIR LIVES A PART OF THE STATE's HISTORY. "Of the late Thomas L. Clingman, who was for many years a member of the Asheville bar, the late Gov. Z. B. Vance, who was born in Buncombe county, and began life as a lawyer in Asheville and to whose memory a granite monument upon her public square is now in process of erection, and the late A. S. Merrimon, chief justice of North Carolina, who studied law at Asheville and continued his practice here jill about 1867, it is unnecessary to speak here. Their careers have recently closed and are known to all who care for Asheville or her affairs."
COL. NICHOLAS W. WOODFIN. "Soon after Gov. Swain began the practice, Nicholas W. Woodfin became a lawyer, and served as the connecting link between the old times and the modern bar for many years. He was born in Buncombe county on the upper French Broad river, and began life under the most unfavorable circumstances, and for awhile labored under the greatest disadvantages. He became, however, one of North Carolina's most famous and astute lawyers. But few men have ever met with such distinguished success at the bar as he. He was Buncombe's representative in the State senate in 1844, 1846, 1848, 1850, 1852. In the course of his career he acquired a large fortune, and owned great quantities of land in Asheville and its neighborhood. With the practice of law he carried on an extensive business as a farmer, in which he was famous for the introduction of many useful improvements in agriculture. He it was who first introduced orchard grass in Buncombe eounty, and turned the attention of her farmers to the raising of cattle on a large scale and the cultivation of sorghum."
He was born in old Buncombe, now Henderson county January 29, 1810', and was married to Miss Eliza Grace McDowell at. Quaker Meadows, near Morganton, the 16th of June, 1840, afterwards residing on North Main street, Ashe ville, N. C., now a girls' school, till his death, May 23, 1875 she surviving him less than one year. He was always identified with any movement for the uplift and progress of his State, and especially of Buncombe county. Much has been written of his success as a lawyer, his humanitarianism, his devotion to his family and his care of his aged parents.
COLONEL JOHN W. WOODFIN. He was born in what is now Henderson county in 1818, married Miss Maria [Myra] McDowell at Quaker Meadows, and lived in Asheville. He was a brilliant lawyer, a brave soldier, and formed one of the first companies in Buncombe county, saying he had enlisted for the war. He was killed by Kirk's men at Hot Springs in fall of 1863.
THE FIRST TRIAL. The first case tried in Buncombe county was that of theState v. Richard Yardly , in July, 1792. He was indicted for petit larceny, was convicted, and appealed to Morgan [Burke] Superior court. The first civil suit was that of W. Avery V. William Fletcher, which was tried by order of the court on the premises on the third Monday in April, 1795, by a jury summoned for that purpose. The first pauper provided for by the court was Susannah Baker with her child. The first processioning was in April, 1776, when William Whitson, the processioner thereof returned into court "the processioning of a tract of two hundred acres of land, on the east side, of French Broad river about one mile and a quarter from Morristown, the place whereon James Henderson now lives," dated April 20, 1796. This embraces the property lying on Park avenue and in that vicinity. Its eastern boundary line is formed in part by the Lining Branch, the small branch immediately eastward of, and for some distance parallel with, Depot street. The first will admitted to probate therein was that of Jonas Gooch in July, 1792. The first dower assigned was to Demey Gash, widow of Joseph Gash, April, 1805."
To SUPPRESS VICE AND IMMORALITY. Mr. Sondley mentions also that at the October term, 1800, the Rev. George Newton, the first Presbyterian preacher in Buncombe, presented to the court a petition from the Presbytery of Concord which "humbly sheweth" many gross immoralities as abounding among our citizens all of which were in violation of laws already enacted. Wherefore, they asked that those laws be "carried into vigorous execution." At the January term, 1801, the court resolved to exert itself to suppress "such enormous practices."
JUDICIAL SANCTION OF A LOTTERY. In January, 1810, the court ordered that the managers of the Newton Academy lottery "come into court and enter into bond for the discharge of office and took the oath of office." This lottery was probably for educational purposes.
"TWENTY-FIVE LASHES ON HIS BACK, WELL LAID ON." Such was the order of the court in 1799, when the jury had found Edward Williams guilty of petty larceny. This was to be inflicted at the public whipping post; but an appeal was "prayed," and it may be that Edward Williams got off.
ADJUDGED FIT "TO BE SET FREE." At this term the court adjudged that Jerry Smith, a slave belonging to Thomas Foster, was a fit person to be set' free and emancipated, and the clerk was ordered to issue a license or certificate to the said Jerry Smith for his freedom "during his, the said Jerry's, natural life."
BUNCOMBE' S FIRST FAIRS. At the July term, 1799, the court ordered two fairs to be established in Buncombe to commence the first Thursday and Friday in November following and the first Thursday and Friday in June following, and continue on said days annually, "without said court should find it more convenient to make other alterations."
FIRST CASE OF MOTHER-IN-LAW. At the July term, 1802, it was ordered that the deposition of Caty Troxell, to the effect that her daughter Judith had married John Morrice on the nineteenth and twentieth of May, 1796, and that for two years they had lived together "for the space of two years in all possible connuptial (sic) love and friendship," after which, "without cause assigned or any application for a divorce," he had "absconded and has never been heard of by his said wife or any other person." In the description which followed he is described s having been at that time "upwards of twenty large odd years of age… with his speech rather on the key."
POWER OF COUNTY COURTS. "All elections to county offices at this time from sheriff and clerk, registers of deeds, coroner, entry taker, surveyor and treasurer, down to treasurer of public buildings and standard keeper, were made by the county court.
SUPERIOR COURTS. "It will be remembered, too, that at the beginning the Superior courts were held at Morganton. In 1806, the legislature of the State, after reciting that 'the delays and expenses inseparable from the constitution of the courts of this State do often amount to a denial of justice, the ruin of suitors, and render a change in the same indispensably necessary,' enacted 'that a Superior court shall be held at the court house in each county in the State twice in every year,' and divided the State into six circuits, of which he last comprised the counties of Surry, Wilkes, Ashe, Buncombe, Rutherford, Burke, Lincoln, Iredell, Cabarrus and Mecklenburg, and directed the courts to be held in Buncombe the first Monday after the fourth Monday in March and September."
RANDALL DELK'S CONVICTION. "Thus in 1807 was held Buncombe's first Superior court, in the spring of that year. The first trial for a capital offence in Buncombe county was that of Randall Delk. This trial occurred in 1807 or 1808. Delk had fled after the commission of the offence to the Indian nation, but he was followed, brought back, tried, condemned and hung. This was the first execution in Buncombe county, and took place just south of Patton avenue opposite to the post office. It is said that soon after a negro was executed in the county, but the third capital execution in Buncombe is the most celebrated in her annals.
JUDICIAL MUEDER. "Subsequent to the execution of Delk and between the years 1832 and 1835, inclusive, Sneed and Henry, two Tennesseans, were charged with highway robbery committed upon one Holcombe at the Maple Spring, about one-half mile east of the [former] city water works, on the road until recently traveled up Swannanoa. This was then a capital offence. They strenuously insisted that they had won from Holcombe in gambling the horse and other articles of which he claimed that they had robbed him. They were convicted, however, and hanged in the immediate vicinity of the crossing of East and Seney streets. The field here was until recently known as the Gallows Field. The trial created intense public excitement, and it has always been the popular opinion that it was a judicial murder. It is said that after their conviction they sent for Holcombe, who shrank from facing them, and that the subsequent life of this man was one of continued misfortune and suffering."
COL. A. T. DAVIDSON'S RECOLLECTION OF THIS EXECUTION. "The first time I ever was in Asheville was in 1835…when I was sixteen years of age. It was on the occasion of the hanging of Sneed and Henry. The town was then small; to me, however, it seemed very distinctly Wiley Jones, sheriff, and Col. Enoch Cunningham, captain of the guard. The religious services at the scaffold were conducted by Thomas Stradley and Joseph Haskew. What a surging, rushing, mad, excited was my introduction to the county."
DR. J. S. T. BAIRD'S REMINISCENCES. About the year 1855 Know-Nothingism was rampant even in Buncombe, and Dr. J. S. T. Baird was temporarily won by its wiles; but he soon deserted. From 1853 to 1857 Dr. Baird temporarily was clerk of Buncombe county court, and was called to attend a term at Jewel Hill, Madison county. Neely Tweed was the clerk and Ransom P. Merrill sheriff; the latter was killed by the former at Marshall in a political quarrel after the Civil War. Sheriff Merrill made a return on a fi. fa. as follows "Trew Sarch made. No goods, chattles, lands or tenements to be found in my county. The defendant is dead and in hell, or in Texas, I don't know which." For this facetiousness Judge Caldwell summoned the sheriff to the bar and gave him a reprimand. Dr. Baird defeated Philetus W. Roberts, incumbent, in 1853, J. M. Israel in 1855, and Silas Dougherty for clerk of court in 1857.
The following recollections of incidents and members of the bar are taken from Dr. J. S. T. Baird's sparkling "Reminiscences" [about 1840] published in the Asheville Saturday Register in 1905.
COURT HOUSE. "The court house was a brick building two stories high and about thirty-six by twenty-four feet in dimensions. The upper room was used for court purposes and was reached by a flight of stone steps about eight feet wide, and on the front outside of the building, commencing at the corners at the ground and rising gradually till they formed a wide landing in front of and on a level with the door of the court room. The judge's bench or pulpit, as some called it, was a sort of box open at the top and one side, with plank in front for the judge to lay his "specks" on. He entered it from the open space in the rear and sat on an old stool-bottom chair, which raised his head barely above the board.' There was room enough in this little box for such slim men as Judge J. L. Bailey, David Caldwell, David Settle and others of their build, but when such men as Judge Romulus M. Saunders came along he filled it plumb 'up.' Most of the lower story was without floors or door shutters and furnished comfortable quarters for Mr. James M. Smith's hogs and occasionally a few straggling cattle that could not find shelter elsewhere.
IN TERROR OF THE WHIPPING-POST. "It will be remembered that in those days the great terror set up before rogties was the whipping-post where the fellow convicted of larceny got thirty-nine lashes well laid on his bare back with switches in the hands of the sheriff. This writer never had the heart to witness but one of these performances. A fellow by the name of Tom G. had been convicted of stealing a dozen bundles of oats and ordered by the court to be whipped. The sheriff, Pierce Roberts, took this writer and some other boys, and went to Battery Park hill, which was then a dense chinquapin thicket, and there cut eight of the nicest and keenest switches to be found and, returning, took Mr. G from the jail, placed his feet and hands in the stocks, and stripping him 'stark naked' from neck to hips, laid upon his bare back thirty-nine distinct stripes from some of which the blood oozed out and ran down his back. Five strokes were given with each switch save the last, and with it four. The sheriff was merciful and made his strokes as light as possible, yet he gave him a blooming back to carry out of the state with him, for he went instanter.
"M" FOR MANSLAUGHTER. "In that day the penalty for manslaughter was branding in the palm of the right hand with a red hot iron shaped to the letter M. I saw one fellow taken through this barbarous process and this was enough for me. He was convicted and ordered to be branded. The sheriff went to the tinner's shop and procured a little hand stove filled with good live coals and brought it into the court room and, putting his branding iron into it, soon had it to a white heat. In the meantime the prisoner's hand and arm were securely strapped to the railing of the bar, and then things were ready. During the branding the prisoner was repeat three times the words : 'God save the state,' and the duration the branding was limited by the time in which he could repeat words. In this case the prisoner's counsel, General B. M. Edney, who was a rapid talker, had gotten the consent of the judge, inasmuch as the prisoner was much agitated and slow spoken anyway, for him to repeat the words for his client. When the hot iron was applied, for some reason, the general got tangled and his mouth did not go off well, but the iron was doing its work and the fellow was writhing and groaning all the sanie. At this juncture the general sprang forward, and knocking the iron aside, said: 'Mr Sheriff, you have burnt him enough.' The judge then taking his hands from over his face, heaved a sigh of relief and ordered the prisoner turned loose. A story was told of a fellow who, a few years before this, was branded by the sheriff whose name was David Tate. The prisoner was a man of wondaful nerve. He felt very resentful toward the sheriff whom he considered responsible for all his suffering. When the iron was applied he repeated the required words three times in a firm voice. Saying : 'God save the State, God save the State, God save the State,' and then raising his voice to a high pitch he yelled out : ' ______ d-n old Dave Tate'! This last is tradition. I will not vouch for the truth of it. Yet grotesque scenes often characterized the courts of that day.
OLD LAWYERS. "The bar of Asheville in 1840 was not large in numbers but was exceedingly strong in all the qualities that go to make up a grand and noble profession. General Thomas L. Clingroan early turned aside from his profession and gave his life to politics, in which field he maintained through a long career and to the day of his death the purity of his escutcheon. Although not as magnetic in his personality as some men, yet a wiser statesman or braver soldier or truer, grander man and patriot North Carolina has never produced. The people especially of Western North Carolina owe to his memory a lasting monument.
"Ezekiel McClure, was a man of good attainments in the law, but being enamored of rural life, gave up his profession at an early day and spent his life quietly in the country.
NOT A "SKELPER." "Willlam Williams went from the mercantile counter to the bar but failed to reach 'the top.' I wrn not class him with the 'skelpers'; but then he was what Capt. Jim Gudger would term 'shifty.' The word 'skelper' in fox hunter's parlance when applied to a dog means one that for want of bottom, cannot come down to 'dead packing' and follow the game through all its windings and doubliugs, but short cuts and skims the high ridges and jumps high to see and catch the game unawares.
GEN. BAYLES M. EDNEY, WIT. "General Bayles M. Edney was a man Of fine physique, who always kept his whiskers trimmed 'a la modi He was of commanding appearance and possessed of sparkling wit and infinite and pleasing humor. He was a stormer before a jury."
THE NOMINAL FINE AND THE REAL COW One of his clients in Yancey county having been convicted was called up for sentence. Col. Edney urged in mitigation that he was a poor man and a good citizen, and the Court said he would impose a nominal fine of twenty dollars. Whereupon, Bayles retorted that it would take not a nominal but a real cow to pay that nominal fine.
JOSHUA ROBERTS, OLD-TIME GENTLEMAN. "Mr. Roberts about the time of which I [Dr. Baird] write (1840), established a most pleasant and delightful home on the French Broad, about where the Southern depot now stands, and there he spent his life and raised a large family. To bear testimony to the high character and noble, sterling qualities of such a man as Joshua Roberts is a privilege of which I am glad to avail myself. He was truly a model old-time gentleman; a lawyer by profession, though not engaging largely in practice at the bar. It was said of him, by those who were capable of judging, that he had no superior as far as knowledge of the law was concerned. He was especially held in high esteem by the boys and young men toward whom his manzsr was always kindly and gracious. He took great interest and pride in the institution of Free Masonry and was the first and for many years, the Worshipful Master of Mt. Herman Lodge. He loved to bring men into the order for he believed in and practiced its principles.
ANOTHER CHARMING FAMILY. "His family consisted of four sons and four daughters. The sons were Philetus W., John M., William and Martin; the daughters were Miss Aurelia, who married a Methodist minister, Rev. Mr. Wells; Miss Sarah, who married Mr. John H. Christie; Miss Harriett, who married Rev. William M. Kerr, well known to many citizens of Asheville and father of Mr. J. P. Kerr; Miss Jane, who married Dr. George W. Whitson, who is also well known to our people.
PHILETUS W. ROBERTS. "Philetus W. Roberts was an able young lawyer and was just entering upon a career which promised great usefulness and success when the Civil War came up, in which he sacrificed his life for his country. This writer succeeded him as clerk of the Superior court of Buncombe in 1853… and I have never known a more scrupulously honest and conscientious man in all my life."
OTIUM "CUM" DIGNITATE. General Robert M. Henry, who came to the bar some later, was a fine lawyer, but a great lover of "rest and ease." He loved to hear and tell good jokes and laugh in his deep sepulchral tones. From 1868 to 1876 he was solicitor of the Western circuit.
JUDGE RILEY H. CANNON. Riley H. Cannon, who came in about this time, was a modest and even-timed man. He was not prominent until after the war when he was made a judge of the Superior courts of the State.
COL. JOHN W. WOODFIN. Maj. John W. Woodfin came to the bar, I think, about 1845. He was a man of splendid qualities all round. He was a magnetic man, a genial, sunny man. While not possessing the "heft" of his brother Nicholas as a lawyer, he was nevertheless a fine lawyer and succeeded well in his profession. In his forensic efforts he often found occasion to deal in bitter sarcasm and keen and withering invective, which he could do td perfection for he was a master of both. He was a handsome, dashing and brave man, and gave his life for his country's cause.
"How sleep the brave who sink to rest
By all their country's wishes blast.
There honor comes a pilgrim gray,
To bless the turf that wraps their clay."
COL. N. W. WOODFIN'S CHARMING FAMILY. Mr. Woodfin married Miss Eliza McDowell, daughter of Col. Charles McDowell of Burke County. She Was a queenly woman and most gracious and lovable in her disposition. The family, consisting of three daughters, who are all now  living in Asheville, are as follows: Miss Anna, so well beloved by all the people of Asheville; Mrs. Lillie Jones, widow of Mr. Benson Jones, who died many years ago, and Mrs. Mira Holland.
GEORGE W. CANDLER. Almost the exact counterpart of Mr. N. W. Woodfln was George W. Candler. Here was a sturdy, stalwart, rugged man of the people, with brawn and brain to match, a powerful frame encasing a big, warm heart, and all presided over by a masterly intellect. When he began to plant himself for a legal battle on the "Serug" style, it was he a mighty giant placing his feet and clothing his neck and gathering his strength to upturn everything that came in his way, and he generally did so. He, too, was a close student of human nature and knew where to feel for a responsive chord. This and his exceeding plain manner made him a "power" before a jury. He generally won his cases. He was fond of rural life and loved much more to wade in the creeks ,and fish than to "bother with courts." We shall see few, if any, more like him. He was my valued friend and I cherish with affection his memory.
NON-RESIDENT LAWYERS. Those who attended the courts of Buncombe from other counties were: Col. John Gray Bynum, Col. Burgess S. Gaither, Col. Walghtstill W. Avery, Col. John Baxter, George Baxter, Esq., Samuel Fleming, Michael Francis and William Bryson, with occasionally some others. These were all exceedingly strong lawyers and when they were all present with our local bar and with such judges to preside as Romulus M. Saunders or David R. Caldwell or John L. Bailey or David Settle, John M. Dick or Mathias Manly, it was "court right and commanded universal respect."
STICKLERS FOR FASHION AS WELL AS FORM. The lawyers of that day almost universally dressed in regulation style and not as they do now. A coat of the finest French broad-cloth of swallow-tail or cutaway style with fine doe-skin cassimere pants, silk or satin vest, "nine biler" silk hat, ruffled and fluted bosom shirt and French calf-skin boots and a handsome necktie, made up the lawyer's suit.
YOUNG MEN OF ABILITY. "From about 1849 to 1852, there came to the bar of Asheville half a dozen young men who, for brilliancy and real ability, have never been equaled at any bar in the State, coming as they did so nearly at the same time. There were Philetus W. Roberts, Marcus Erwin, Newton Coleman, David Coleman, Zebulon B. Vance, James L. Henry, and Augustus S. Merrimon. All these were men of the first order of ability and those of them who lived to maturer manhood all made their mark, not only in their profession, but in the councils of the State and nation as well and some have left their names emblazoned high on the roll of fame, but of all of those of whom I have written, there is no one left to greet me today. They have all passed to the 'other shore' and are resting with the great silent host. May we see them all again in that 'great bright morning.'"
JOSEPH W. TODD, ESQ., was born in Jefferson September 3, 1834, was admitted to the bar after the Civil War, in which he had served gallantly. He is said to have been the only lawyer who ever told a joke (successfully) to the State Supreme court. He was never a very ardent student, but his wit, humor and resourcefulness, at the bar and on the hustings, were marked. He died June 28, 1909. His contest with the Rev. Christian Moretz for the legislature in the seventies is still remembered for the vigor and energy displayed by both candidates. He gave senate the name of "red-legged grass-hoppers" to the internal revenue agents, who, soon after the Civil War, were the first to wear leather leggins in their peregrinations through the mountains in search of blockade stills. Those who remember the famous joint canvass of Gov. Vance and Judge Thomas Settle m the summer of 1876 for the office of governor will recall that Vance made much capital of the red- legged grass-hoppers, a name he applied to all in the service of the general government until Settle showed that two of Vance's sous were in the service of the United States, one in the naval academy and the other at West Point. Mr. Todd's daughter still preserves a caricature of this canvass. He married Sallie Waugh of Shouns, Tenn
"TWENTY-DOLLAR LAWYERS." Under the act of 1868-69, (ch. 46) any male twenty-one years of age could, by proving a good character, and paying a license tax of twenty dollars--that was the main thing in the eyes of the carpet-bag legislators of that time-get a license to practice law in North Carolina without undergoing any examination as to academic or legal knowledge whatever. Under it several lawyers began practice of this "learned profession." This act, however, was repealed in 1872.
MARCUS ERWIN. He was the son of Leander Erwin and a grandson of Wm. Willoughby Erwin and a great grandson of Arthur Erwin. His father removed from Burke county to New Orleans, from which place Marcus was sent to P College in Kentucky, where he Was a college-mate of Gen. John C. Breckenridge. After graduation Marcus Erwin was studying law in New Orleans When the Mexican War began, in which he served six months. After this war he came to Asheville and became editor of the News, a Democratic paper, after having changed from Whig polities on account of the acquisition of new territory. His connection with this paper led to a duel with the late John Baxter. Later he became a prominent lawyer and Democratic leader, and was elected solicitor of the large district extending from Cleveland to Cherokee. He was a member of the legislature in 1850, 1856 and 1860. "He was a powerful prosecutor, and maintained as high a reputation as B.S. Gaither and Joseph Wilson had established." He was a Secessionist, and in the discussion between himself and Governor John M. Morehead in the State senate in 1860-61 made an especially powerful and memorable speech. He joined the Confederate Army and became a major in a battalion of which O. Jennings Wise, a son of Henry A. Wise of Virginia, was lieutenant-colonel. This battalion was captured in the fall of 1861 at Roanoke Island. Major Erwin "rendered volunteer service subsequently in the southwest. He ran as a candidate for the Confederate Congress, but was defeated. In 1868 he cast in his lot with the Republican party, and afterwards became assistant district attorney of the United States, where he displayed great ability." He was a man of varied attainments and versatile talents, and spoke a number of modern languages. He was familiar with the best literature and was one of the most effective and eloquent of political speakers. Governor Vance is said to have dreaded meeting Major Erwin on the stump more than any other. Their debates may be likened to the storied duel between the battle-ax of Richard and the cimeter of Saladin.
CALVIN MONROE McCLOUD. He was born at Franklin, Macon county, N. C., February 9, 1840, where he obtained only a common school education. He volunteered in the Confederate Army, where he served till the close of the War. In 1865-66 he studied law in Asheville under the late Judge J. L. Bailey. On the 5th of July, 1866, he married Miss Ella Pulliam, daughter of the late R. W. Pulliam. He formed a partnership with the late N. W. Woodfin for the practice of law. He died June 20, 1891. He was a public spirited citizen and did much to promote the welfare of Asheville and the community, having been among 'the first to agitate a street railway, gas, telegraph, and other enterprises.
JUDGE EDWARD J. ASTON. He was born in November, 1826, in Rogersville, Tenn. He married Miss Cordelia Gilliland in November, 1852, moving to Asheville in 1853, where he engaged in the drug, stationery and bookstore business. He was three times mayor of Asheville and a director of the first railroad. He was among the first to see Asheville's great future as a health and pleasure resort. He not only donated books but supplied the first room for the Asheville public library. In 1865 he added real estate to his business, and later on insurance, soon becoming head of the firm of Aston, Rawls & Co. He is credited with having originated the idea of making Asheville the sanatorium of the nation. He devoted much time and large means to the distribution of circulars and literature setting forth the advantages of this climate. In 1871 he interested the Gatchel brothers in establishing the first sanatorium at Forest Hill. Then he got Dr. Gleitzman of Germany to open another in Asheville. It was largely through his influence that the Rev. L. M. Pease established his school for girls here. He also had much to do with getting the late G. W. Pack to build a home in Asheville. Judge Aston was so called because he had studied law, but had abandoned the practice. He died in 1893.
POST-BELLUM LAWYERS. Space can be given to only a few of the more prominent attorneys who came to the bar after the Civil War and have passed beyond the nisiprius courts. William Henry Malone wrote several valuable law books, his "Real Property Trials" being indispensable; Melvin E. Carter for years was one of the most prominent and able of the Asheville bar, enjoying an extensive practice, and being a sound lawyer; T. H. Cobb was one of the clearest and most forceful of attorneys; Kope Elias of Franklin enjoyed an extensive practice in Cherokee, Macon, Clay, Graham and Jackson counties. For a sketch of Gen. James G. Martin, who came to the bar late in life, after the Civil War, see chapter 27. He was one of the commissioners in the investigation of the Swepson and Littlefield frauds.
JUDGE JOHN BAXTER. He was the son of William Baxter and Catherine Lee, and was born at Rutherfordton, N. C., March 19, 1819. He was admitted to the bar in 1840. He married Orra Alexander, daughter of James M. Alexander of Buncombe, June 26, 1842. He was a member of the legislature from Rutherford county in 1842. He lived for several years in Hendersonville, but afterwards removed to Asheville. About 1852 he fought a duel with the late Marcus Erwin, Esq., and was wounded in the hand. He moved to Knoxville, Tennessee, in May, 1857. He was a strong Union man during and before the Civil War, He was appointed United States Circuit Judge by President Hayes in December, 1877, for the sixth circuit - Tennessee, Kentucky, Ohio and Michigan. Some of his decisions are said to stand high with the English courts. He died at Hot Springs, Arkansas, April 2, 1886, and was buried in Gray cemetery, Knoxville, Tennessee.
JUDGE J. C. L. GUDGER. He was born in Buncombe county, July 4, 1837. His father was Samuel Bell Gudger and his mother Elizabeth Siler Lowery, a daughter of Lowery who held a captain's commission in the war of 1812. He was educated at Sand Hill academy and Reems Creek high school, now known as Weaverville college. He was admitted to the bar in August, 1860. He enlisted in the 25th N. C. Infantry July 22, 1861, and served till the close of the war. He moved to Waynesville December, 1865. He was married to Miss Mary Goodwin Willis of Buncombe county August 28, 1861. He was elected judge of the Superior court in August 1878, and served eight years. He held a position in the United States Treasury for years. He died January 29, 1913.
JUDGE WILLIAM L. NORWOOD. He was born in Franklin county, N. C., July 1, 1841. His father was James H. Norwood, a native of Hillsborough and a*graduate of the State University. In 1846 James H. Norwood moved With his family to Haywood county and engaged in the practice of the law, and for several years conducted a classical school. In 1852 he was murdered at Sergeants Bluff on the Missouri river, while serving as agent of the Sioux Indians. W. L. Norwood was graduated from Bingham's School in 1856, after which he attended the school of Leonidas F. Suer in Macon county. He taught school in Haywood county till 1861, when he enlisted in Arkansas and served throughout the war. He was admitted to the bar in 1866, and was elected judge of the Superior court in November, 1894, from which position he resigned in 1899. On March 4, 1872, Judge Norwood married Miss Anna Duckworth of Brevard. He died about 1909.
JUDGE EUGENE DOUGLAS CARTER. He was the eldest son of Thomas D. and Sarah A. E. Carter, and was born May 18, 1856, in North Cove, McDowell county, was educated at Col. Lee's school in Chunn's cove, at Wafford College, at Weaverville College, and at the University of North Carolina. He married Miss Sallie M. Crisp in June, 1877, at Fayetteville, and began the practice of law at that place, but soon removed to Asheville, where he was several times elected solicitor of the Criminal court of Buncombe county, making an excellent prosecutor. He was appointed by Gov. Russell in the summer of 1898 to fill the vacancy caused by the supposed resignation of Judge W. L. Norwood as judge of the Superior court. But Judge Norwood denied that he had legally resigned, and began quo warranto proceedings to cover the office, which abated by Judge Carter's death, October 10, 1898. Judge Carter evinced throughout his life a high order of literary and oratorical talent. As an advocate he had no superior at this bar.
JUDGE JOHN LANCASTER BAILEY. He was born August 13, 1795, in eastern North Carolina; was married June 21, 1821, to Miss Priscilla E. Brownrigg; was admitted to the bar at some date prior to 1821; was representative from Pasquotank County in House of Commons in 1824 and a senator in 1828 and 1832; was a delegate to the State Convention of 1835; was elected judge of the Superior court January 11, 1837, and resigned there-from November 29, 1863, after a service of over twenty-six years; practiced law at Elizabeth City, and also taught law there, probably up to the time of his election as judge. It was about the time of his election as judge or a few years afterward that he removed to Hillsboro, and with Judge Nash taught school there. In 1859 he moved to Black Mountain, near what is now the intake of the Asheville water system and Mrs. J. K. Connally's summer home, where he taught a law school from 1859 to 1801. He movcd to Asheville in 1865 and taught a law school there until about 1876. He also practiced law in Asheville in co-partnership with the late Gen. J. G. Martin. He died June 20, 1877. Judge Bailey was loved and honored by all as an able and upright lawyer and a worthy and useful citizen. (For fuller sketch see "Biographical History of North Carolina, VoL IV, p.52, and Vol.VI, p.6.)
JUDGE FRED MOORE was born in Buncombe county on the l0th day September, 1869. He was the son of Daniel K. Moore, and the grandson of Charles Moore and the great-grandson of William Moore, one of the pioneers who helped to drive back the Indians and establish peace in this section. He attended school at Sand Hill near his home, and was admitted to the bar at the September term, 1892, of the Supreme court. He spent part of his youth in Macon and Clay counties, and began the practice of the law at Webster, Jackson county as a partner of his cousin, Hon. Walter E. Moore. In 1898 he removed to Asheville and formed a co-partnership with another cousin, Hon. Charles A. Moore. In 1898 he was elected judge of this judicial district. He died in August, 1908. Judge Moore's mother was a Miss Dickey of Cherokee, and his wife a Miss Enloe of Webster. He tried many important cases, and his rulings and decisions were fair and sound. His life was as nearly blameless as it is possible for human lives to be. When first made a judge he was probably the youngest who ever served on the Superior court.
JUDGE GEORGE A. JONES. He was born in Buncombe county February 15, 1849, a son of Andrew and Margaret Jones. He attended Sandhill Academy on Hominy creek while it was open during the Civil War, and early in the seventies removed to Franklin, Macon county, where he became an assistant in the high school and later principal. He was admitted to the bar in 1878, having married in December, 1875, Miss Lily Lyle, daughter of Dr. J. M. Lyle and Mrs. Laura Siler Lyle, his wife. There were six children by the union, and after the death of his first wife, he married, January 31, 1895, Miss Hattie B. Sloan, by whom he had four children. She was a daughter of Mr. and Mrs. W. M. Sloan. In 1889 Judge Jones represented Macon county in the legislature. In 1891 he was elected solicitor of the twelfth judicial district, and was reelected in 1895, serving two fuil terms. In 1901 he was appointed by Gov. Aycock judge of Superior court of the newly created sixteenth judicial district and served about two years, when he resumed the practice of law at Franklin, where he died August 13, 1906.
JUDGE ROBERT P. DICK. Judge Dick was for many years U. S. district judge for the district of western North Carolina, having been appointed soon after the close of the Civil War, and serving continuously till July, 1898, when President McKinley appointed Hamilton G. Ewart of Hendersonville to that position; but as the senate failed to act upon this appointment the President sent his name to three successive sessions of the senate. But as that body persisted in its refusal either to reject or confirm this appointment, Judge Ewart's name was withdrawn and that of Hon. James E. Boyd sent in instead. This appointment was confirmed in 1900, Judge Ewart having served since July 13, 1898. Judge Dick had a great deal to do with the trial and sentencing of those who had violated the internal revenue laws, and was always considerate and merciful in imposing punishment on the poor people who were found guilty in this court, "thirty days in jail and a hundred dollars fine" being the almost universal sentence.
JUDGE LEONIDAS L. GREENE. He was born in Watauga county, in November, 1845, and was elected Superior Court Judge in 1896, and served as such till his death, November 2, 1898.
HON. CHARLES H. SIMONTON. Judge Simonton of Charleston, N. C., was Circuit judge of the United States for a number of years, succeeding the late Judge Hugh Bond of Baltimore of Ku Klux fame. Upon his death in May, 1904, President Roosevelt appointed Hon. Jeter C. Pritchard judge of this circuit, and he was confirmed by the senate without reference to the judiciary committee. He qualified June 1st, 1904, having remained in Washington as judge of the District court there to try an important case by special request of President Roosevelt.
COLONEL ALLEN TURNER DAVIDSON. He was born on Jonathan's creek, Haywood county, May 9, 1819. His father was William Mitchell Davidson and his mother Elizabeth Vance of Burke county, a daughter of Captain David Vance of Revolutionary fame. William Davidson, first senator from Buncombe county and a soldier of the Revolutionary War, was the father of William Mitchell Davidson, and a cousin of Gen. William Davidson who was killed at Cowan's Ford. Col. Allen T. Davidson attended the country schools of his day, and at twenty years of age he was employed in his father's store at Waynesville, and in 1842 married Miss Elizabeth A. Howell. He began the study of law, and in 1843 became clerk and master in equity of Haywood county, being admitted to the bar in 1845. In 1846 he removed to Murphy, Cherokee county, then a remote backwoods place. He at once took a leading place at the bar of the western circuit, and during his sixteen years residence there served as solicitor of Cherokee county, and became one of the leading lawyers of this section. In April, 1860, he became president of the Merchants and Miners Bank. The secession convention of him one of the delegates from Macon county to congress of the Southern Confederacy. He served out the provisional term and was elected in 1862 a member of the permanent congress, serving till the spring of 1864, being succeeded the late Judge G. W. Logan of Rutherford county. In 1864-65 he served as a member of the council of Governor Vance, and at the same time acted as agent of the commissary department of the State in supplying the families of Confederate soldiers in this section. In the fall of 1865 he settled in Franklin, Macon county, and in 1869 he came to Asheville to live, buying and occupying the Morrison house, which stood where the present county court house stands. He soon became leader of the Asheville bar, and continued in active practice till 1885, when he retired. He died at Asheville, January 24, 1905.
Following is an editorial which appeared in the Asheville Gazelte-News on that date:
"The last survivor of the Confederate Congress is no more. After a long and eventful life he has now been introduced to the mystery of the Infinite. He has read the riddle of life in the darkness of death He knows it all now. The veil has been lifted and the contracted vision of earth has been expanded into the measureless profundity of eternity. Born, lived and died-behold the great epitome of man.
"The announcement of the passing of this historic figure from the familiar scenes of life will awaken sorrow in many hearts from the Blue Ridge to the Unakas and the Great Smokies, for it was upon this elevated stage that his active life was spent. It was here that he began, a strong-limbed herder of cattle upon the verdant slopes and ghostly balds of the Cataloochee mountains, that career of activity that led him by successive stages to the bar, to the Confederate Congress, to the chancel-rail of the church, and to a warm place in the hearts of many of the best people of the State.
"Twelve years ago (1893) he stood on the Bunk mountain in Haywood county with a boyhood companion (Lafayette Palmer) and pointed out the place of the lick4ogs where he had been wont to repair at intervals to tend the cattle pastured there; and, looking fondly around at the once familiar scene, said, as great tears streamed down the age-furrowed face, 'Good-bye, world'.' That was his last visit to that sacred spot, and he said then that he would never look upon that scene again. Probably there was no tie that he had to break as age grew upon him that caused him a sharper pang than the parting from his beloved mountains. Certainly no man will be more missed by the people who live in these mountains than this man who bade them farewell so many years ago.
"Col. Davidson was a strong and rugged character. He had strong passions, strong muscles, strong intellect. He wore his heart upon his sleeve. He was open and above-board in his likes and dislikes. He was a true and faithful friend and a bold and unconcealed enemy. Meeting in mid-life the stormy discords of civil strife in a community rent asunder over the question of union or disunion, it was inevitable that he should have awakened animosities.
"But no man had any reason to doubt where Allen Davidson stood on personal, public or other questions. He spoke his mind freely and fearlessly. He hated shams and pretenses with holy hatred.
"From 1865 until 1885 he was admittedly the leader of the bar of what was then known as the Western Circuit, extending to Cherokee in the west and to Yancey and Mitchell in the north. There was no large case tried in this section between the years named in which he did-not take a conspicuous and important part. Bold, aggressive and persistent, he stormed the defences of his opponents with all the dash and elan of a Prentiss or a Pinckney.
"Like a true poet he was dowered with the hate of hate, the scorn of scorn, the love of love.' His sense of humor was acute and never failing. No adversity could quench it. Some of his remarks will live as long as the traditions of the old bar survive. He knew the life and habits of the mountain people better, perhaps, than any other man at the bar, and his speeches always pointed a moral and adorned a tale. Juries and judges were swayed by his intense earnestness, for he always made his client's cause his own.
"Even in his old age he was yet in love with life and raptured with the world.' He rejoiced in his youth ah, with halting foot-step he went downward to the grave; but for him the evil days came not nor did the years draw nigh in which he said: 'I have no pleasure in them.' Strong, vigorous and healthy in mind and body, he enjoyed to the utmost the enjoyed to the utmost the good things of life and made no hypocritical pretense of despising them. With splendid physical development he towered among his fellows like a giant, and to him fear was an alien and a stranger.
"He was a kind-hearted and charitable man, loving to give of what ever he had of worldly goods, sympathy or kindly deeds. He was a faithful and affectionate husband, father, friend. A commanding and picturesque figure has passed from our midst."
His widow still survives him, and of his children the following still emulate his name and example most worthily: Hon. Theo. F. Davidson, late attorney general of the State; Mrs. Theodore S. Morrison, Mrs. W. B. Williamson, Mrs. William S. Child, Robert Vance Davidson, for several terms attorney general of Texas, Wilber S. Davidson, president of the First National Bank of Beaumont, Texas.
JUDGE JAMES L. HENRY. He was born in Buncombe county, in 1838, and received only such education as the schools of the county afforded. He was a son of Robert Henry and Dorcas Bell Love, his wife. He was elected Superior court judge of the eighth judicial district in 1868, and served till 1878, having previously acted as solicitor for that district. He was editor at the age of nineteen of the Asheville served in the Civil War as adjutant of the 1st North Carolina Cavalry, and on Hampton's and Stewart's staffs, and as colonel of a cavalry battalion stationed at Asheville. He died in 1885.
COL. DAVID COLEMAN. He was born in Buncombe county February 5, 1824, and died at Asheville March 5, 1883. His father was William Coleman and his mother Miss Cynthia Swain, a sister of Governor D. L. Swain. He attended Newton Academy and entered the State University, and just prior to graduation entered the Naval Academy at Annapolis, graduated, and served in the navy till he resigned in 1850, returning to Asheville and entering upon the practice of law. In he was the Democratic candidate for State senator, defeating Col. N. W. Woodfin, and was reelected in 1856, Zebulon Baird Vance, the only defeat by the people Vance ever sustained. In 1858 Coleman and Vance were rivals for Congress, but Vance won. Coleman was one of the few men of this section who were secessionists, and was was appointed to the command of a ship, but the delays in its fitting out tried his spirit beyond endurance and he entered the army, and was assigned to a battalion which afterwards became the 39th North Carolina regiment, of which he was colonel. He resumed the practice of the law after the War, and was eminent as a lawyer. He was solicitor for a time and represented Buncombe county with Gen. Clingman in the State convention of 1875. He was a highly cultivated gentleman, a brave soldier and a lawyer above all chicanery. He never married. Gov. Swain was the first boy to enter the State University from the west, David Coleman was the second, and James Alfred Patton, a son of James W. Patton, the third.
JUDGE RILEY H. CANNON. The following extract is taken from his obituary, written by the Hon. Robert D. Gilmer, late attorney general of North Carolina: "He was born in Buncombe county March 26, 1822, went to school at Sandhill Academy, was graduated from Emory and Henry College, Virginia; married Ann Sorrels October 18, 1850, to whom four children were born, namely, George W., once postmaster at Asheyille, Eva, Lula A., and Laura. He was admitted to the bar in 1851, was appointed judge of the Superior court in 1868, and wore the judicial ermine during a troubled period in our State history. It was said, even by his political opponents, that he never allowed it to trail in the dust of party rancor or become soiled by the stains of partial rulings. He was a member of the Methodist Church for thirty years. He died in that faith February 15, 1886. He was an honest man."
JACOB W. BOWMAN was born in what is now Mitchell county July 31, 1831, and died at Bakersville, June 9, 1905. He married Miss Mary Garland in 1850. He was admitted to the bar before the Qivil War, and was appointed United States assessor of internal revenue by Gen. Grant April, 1869. Governor Russell appointed him Superior court judge in November, 1898, to fill an unexpired term. He received the nomination of the Republicans for the full term, but was defeated by Judge Councill, Democrat.
JUDGE GEOEGE W. LOGAN. He was born in Rutherford county. He lived near the Pools at Hickory Nut Falls, where he kept a tavern. He was elected to the Confederate Congress and qualified in May, 1864. He was a Superior Court judge from 1868 till his death in 1874.
JUDGE JOSEPH SHEPARD ADAMS. He was born at Strawberry Plains, Tennessee, October 12, 1850, and died at Warrenton, N. C., April 2, 1911. His father was Rev. Stephen B. Adams and his mother Miss Cordelia Shepard. His father established a school at Burnsville, Yancey county, before the Civil War, which was known as Burnsville Academy. Joseph Adams was a pupil at this academy, and afterwards attended the school of Col. Stephen Lee in Chunn's Cove. He was graduated with honor from Emory and Henry College, Virginia, in 1872. He studied law at Asheville under the late Judge J. L. Bailey, and was soon afterwards admitted to practice, opening an office at Bakersville. He was elected solicitor of the Eighth district soon after beginning practice and served in that capacity eight years. In 1877 he married Miss Sallie Sneed Green of Greensboro, N. C. She died November. 16, 1901, leaving six children sur'viving. In 1885 he moved from Statesville to Asheville and began the practice of law, which he continued till his election to fill out the unexpired term of the late Judge Fred Moore in 1908. He was elected for a full term in 1910.
ALFONZO CALHOUN AVERY. He was the son of Isaac T. and the grandson of Waightstill Avery, and was born at Ponds near Morganton, Burke county, September 11, 1835. He died at Morganton, June 13, 1913. He attended Bingham School in Orange county and graduated from the State University as A. B. in 1857, first in his class. He was admitted to practice before the county courts in June, 1860, and before the Superior courts in 1866. He was an officer in the Sixth North Carolina regiment, and later became major and adjutant general of Gen. D. H. Hill's division. Later he was on the staffs of Generals Breckenridge, Hood and Hindman. In 1864 he was made colonel of a battalion in western North Carolina, was captured near Salisbury by Stoneman's army, and confined at Camp Chase till August, 1865. In 1861 he married at Charlotte Miss Susan W. Morrison, a sister of Mrs. "Stonewall" Jackson, and after her death he married Miss Sarah Love Thomas in 1889. She was a daughter of the late Col. W. H. Thomas of Jackson county. In 1866 he was elected State senator from the Burke district, and aided in building the Western North Carolina Railroad to Asheville and in locating the State hospital for the insane at Morganton. He was presidential elector in 1876, and in 1878 he was elected judge of the Superior court. In 1889 he was elected associate justice of the Supreme court and resumed the practice of his profession in 1897, at Morganton, and was active till his death. In 1889 the State University conferred upon him the degree of doctor of laws, and for more than twenty-five years he was a ruling elder of the Morganton Presbyterian church.