History of Western North Carolina - Chapter 15



CHAPTER XV
BENCH AND BAR(1)

FIRST JUDICIARY ACT.(2) 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 cfrcuits (Ch. 693, Laws 1806, p.1050) but with the
same jurisdiction.

COUNTY COURTS OF PLEAS AND QUARTER SESSIONS.(3) These courts were provided
for in the same chapter their jurisdiction and terms prescribed. (p.297,
et seq)

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)(4).

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.(3)

TENNESSEE SUPERIOR COURT.(4) "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.(5) 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."(6) 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 sigallicant entry: "State V. Taylor. The jury having failed to
come back into court, it is therefore a mistrial."(7)

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, probabably 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,(8) his attorney-after solemn argument, the reasons
are overruled by the court."

"JUDGMENT.
"Fined L10, 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 L1-6-8 paid by deft."

THE UNWRITTEN LAW IN 1811.(9) 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
fir~places, 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(10) 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 dellberative 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 iasues 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 SOW-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."(11) 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.(11) 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.(12) "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.(13) 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 llved, 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.(14) 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;(15) 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."(16)

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 Seotchmen 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.(17) 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, repesentative 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.(17) 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 incorporting 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."(18) 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 memeber 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.(19) 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..."(20)

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,(21) 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."(22)

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."(23)

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, Asheville, 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.(24) The first case tried in Buncombe county was that of
the State 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.(25) The first dower assigned was to
Demey Gash, widow of Joseph Gash, April, 1805."

TO SUPPRESS VICE AND IMMORALITY.(26) 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.(27) 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."(27) 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."(27) 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.(27) 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.(27) 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 twentienth 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... withhis speech
rather on the key."

POWER OF COUNTY COURTS.(27) "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.(27) "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
indispensibly 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 whicht 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.(27) "Thus in 1807 was held Buncombe's first
Superior court, in the sping 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 postoffice. 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.(27) "Subsequent to the execution of Delk and between the
years 1832 and 1835, inclusive, Sneed and Henry, two Tennessecans, 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
theToad 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
vicintiy 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.(28) "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
politicad 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 wondedul 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 tfrough 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.(29) 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.(30) "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.(30) "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.(30) "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.(30) 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.(30) 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.(30) 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 thefr clay."

COL. N. W. WOODFIN's CHARMING FAMILY.(30) 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 [1905] 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.(30) 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 planth imself for a legal battle on the "Serug" style, it was hke 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.(30) 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.(30) 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 cassimer 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.(30) "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 thesummer 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
NorthCarolina 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
Center 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 laywer 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 maintianed as
high a reputation as B.S. Gaither and Joseph Wilson had established."[31]
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 beyoad the nisi prius courts. William Henry Malone wrote several
valuable law books, his "Real Property Trials" being ifldii~pensable;
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
Sargents 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 procedings 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 copartnership 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 copartnership 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 filil
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 (Lnfayette 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.[32] 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.(33)

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
begiuning 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 aon 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.

[Notes for this chapter currently not available]