BUNCOMBE'S FIRST COURT

THE first County Court of Buncombe County, which organized the County of Buncombe, was composed of seven justices of the peace appointed by the legislature which created the county and by that legislature directed to organize that county. They were "James Davidson, David Vance, William Whitson, William Davidson, James Alexander, James Brittain, Philip Hoodenpile." The first action was to swear in these justices of the peace. Then, "Silence being commanded and proclamation being made the court was opened in due and solemn form of law by John Patton specially appointed for that purpose." All this was on April 16, 1792. Then on the same day "Lambert Claytor & William Brittain being duly commissioned as Justices of said County appeared and were qualified as such, by taking the oaths for the qualification of public officers and the oath of Office as Justices of the peace for said county and took their seats." The court now having nine justices of the peace, next proceeded to the election of other county officers. Later on they came at the next term, in July, 1792, to the trial of the first cases tried in the new county.

The first case tried in Buncombe County was that of the State against Richard Yardly, in July, 1792. He was indicted for petit larceny, was convicted, and appealed to Morgan Superior Court. The first civil suit was that of W. Avery against 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 proceeding was in April, 1796, when William Whitson, the processioner thereof, returned into the 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 where 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 of the Lineing Branch, the small branch immediately eastward thereof, and for some distance

parallel with Depot Street. The first will admitted to probate therein was that of Jonas Gooch in July, 1792, but the first now on record is that of Colonel John Patton in 1831. The first dower assigned was to Demey Gash, widow of Joseph Gash, April, 1805. At the October Term of 1800 we meet with the following entry on the country court minutes:

"The following petition was presented and read in court by the Rev. George Newton, and ordered to be recorded at length on the Minute docket of said Court, to-wit:

"circular

"To the worshipful Court of Buncombe, the petition of the Pres-bytry of Concord humbly showeth that whereas many gross immoralities, daily abound among the citizens of our state, of which intemperance in the use of ardent spirits, profane swearing, breach of the holy sabbath are none of the least, as those crimes with many others strike against our political happiness, as well as incurs the displeasure of God.

"And as our legislature have been careful to enact a sufficient number of wholesome and salutary laws for the suppression of such crimes & have appointed you the executors of those and other Laws which are necessary for political existence as a civil government. We offer this our earnest and humble petition that those with other useful and necessary Laws be carried into vigorous execution: We are the more encouraged to offer this request, as we are ,well assured many within our bounds who hold commissions in the peace would be happy to see an effectual check given to the above enormities, and we natter ourselves that many of our private members will be cordial in strengthening the hands of the civil magistracy in supporting that good order, which is essential to the happiness both of civil and religious societies.

"On a due attention to the above, your humble petitioners as in duty bound, shall ever pray.

"Geo. Newton, Modr.

< tt •<. m, i, c- ^ oa 1C™ "Win. C. Davis, pro. Clk.

'Unity Church, Sept. 30, 1800.

"And signed by a number of church members."

At January Term, 1301:

"On motion of the Rev. George Newton, the Court took up the consideration of a petition from the Presbytry of Corncord & present and read last Court by said Newton, praying the executive officers to exert their lawful authority in suppressing vice and immorality, by carrying the law into vigorous execution.

"The court upon full consideration are fully persuaded that the suppression of drunkenness, profane swearing, sabbath breaking and vice of every kind will have great tendency to promote the happiness both of civil and religious society:

"Therefore unanimous resolved, that each of us in our public Capacity, as well as in private life, agreeably to the power and authority vested in us by the Laws of our Country, will exert ourselves in suppressing such enormous practices, and carrying the laws into vigorous execution, against every offender."

Per contra take the following entry in January, 1810:

"The managers of the Newton Academy lottery come into open court and enter into Bond for the discharge of office & took the oath of office."

At January Court, 1799, occurs the following entry:

"The jury find the defendant Edward Williams, guilty of the petit larceny, in manner and form as charged in bill of indictment.

"The Court adjudge that the prisoner receive 25 lashes on his bare back, well laid on, at the public whipping post and that the sheriff of the county carry the judgment into execution. Appeal prayed."

This is the first infliction of this barbarous punishment adjudged in the county. The last occurred in 1865.

The punishments of public whipping, branding, the stocks, and the pillory continued to be inflicted in North Carolina until 1868. Up to that time eighteen separate offences were punishable in that State with death, except as some of them relating to slavery had necessarily been done away with in the recent abolition of that institution. Under the new Constitution then adopted there are only five capital felonies in the State. That "cropping" once was a punishment known in Buncombe County is shown by the allowance of a certificate made to

Thomas Hopper by the County Court at its October Term, 1793, showing that Hopper had lost his right ear in a fight with Philip Williams, although it seems not a little strange for a court to be issuing certificates about what occurred in an unlawful breach of the peace. In July, 1838, Buncombe County Court provided for repairs to be made on its "jail, stocks and pillery."

Imprisonment for debt where there was no fraud had been abolished by North Carolina in her first Constitution adopted December 18, 1776; so that Buncombe never had a debtor's prison. But, in her early history a debtor was required to surrender all his property, except a few articles as the tools used in his trade and similar things, and was not permitted to enjoy exemptions from his debt in large amounts of land and personal property as now he can do under the Constitution of 1868, exemptions which, as to the land the Supreme Court of the United States once intimated, in a case from this State, were void as being excessive.

Per contra again:

"On motion of Joseph Spencer on the petition of Thomas Foster, to this court, to have his negro man slave Jerry Smith emancipated and set free, for his meritorious services: The Court proceeded to take the petition under consideration and do adjudge and decree, that the said Jerry Smith, is a fit person to be set free, and emancipated: Therefore ordered by the court, that the said Jerry Smith be emancipated and set free, for his meritorious services, with all the advantages and emoluments which it is in the power of this Court to grant, during his the said Jerry's natural life; and that the Clerk of this Court do issue a license or Certificate to the said Jerry Smith for his freedom accordingly."

At July Term, 1799, it was

"Ordered by court that two fairs be established in the county of Buncombe in Asheville, to-wit, to commence the first Thursday & Friday in June following, and to continue on said days annually, without said court should find it more convenient to make other alterations."

At July Term, 1802, it was

"Ordered by Court that the following instrument of writing be recorded at length as follows to-wit:

"The deposition of Caty Troxell, being of lawful age and first sworn on the Holy Evangelists, deposeth and saith that on the nineteenth and twentieth day of May one thousand seven hundred and ninety six, a certain John Morrice legally intermarried with her daughter Judith Troxell, & continued to live with said wife for the space of two years in all possible connuptial Love and friendship, that without any cause assigned or any application for a divorce, said John Morrice, has absconded and has never been heard of by said wife or and other person to the said deponent's knowledge:—and for a description of the said John Morrice this deponant saith as follow to-wit. He appeared to be upwards of twenty large odd years of age, appeared to be about five feet eight inches high, with dark Brown hair, with blue eyes his speech rather on the shrill key. And further this deponant saith not.

"Caty Troxell.

"Subscribed and sworn to by the said deponant this 23d day of July, 1800, in the County of Pulaski, and State of Kentucky.

"Sworn to before us Samuel Gilmore and Robert Modrell, Justices of the peace for said county.

"As witness our hands and seals the above date said.

"Samuel Gilmore (seal). "Robt. Modrell (seal)."

The first suit tried in Asheville (then Morristown) was at July Court, 1793, before Esquires "Will Willson, Lambert Clayton, Win. Brittain" and a jury, and was a "Caveat" in regard to an entry of land. It was the case of "Waightstill Avery vs. William Fletcher." Fletcher won; Avery gave notice "that he will move for a Certiorari to bring the proceedings of this court Supr. Court, September Term, on the first five days of the Term."

This Waightstill Avery was the gentleman who was North Carolina's first Attorney General.

All the elections to county offices at this time from sheriff to clerk, register of deeds, coroner, entry taker, surveyor and treasurer,

down to treasurer of public buildings and standard keeper, were made by the County Court.

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 present 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 indespensibly necessary," enacted "that a Superior Court shall be held at the court house in each county in the State twice every year," and divided the State into six circuits, of which the 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.

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 Randal 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 named Christopher was for barn burning executed in the county, but the third capital execution in Buncombe is the most celebrated in her annals. Subsequent to the execution of Delk and between the years 1832 and 1835, inclusive, Sneed and Henry, two Tennes-seeans, were charged with highway robbery committed upon one Holcombe.

The alleged robbery is said to have taken place on the old Buncombe Turnpike Road about a mile south of Swannanoa River and between the Old Patton Ford and the present road from Asheville to Hendersonville. Highway robbery 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.

A Yankee negro garrison was placed in Asheville in 1865 and kept there for a short while. Within this time and in that year some of the members of that garrison committed a most serious outrage in the northern part of the county, for which they were tried by a court martial and eight or ten of them condemned to be shot. This sentence was promptly executed in the same year at the place on North Main Street where East Street joins that street and Chestnut Street. The negroes were buried where they were shot. Thirty-five or more years later when East Street work was in progress the workmen dug into the graves of these negroes.

One of the entries at April Term, 1796, of the County Court is as follows: "On motion of Reuben Wood, Esq., Ordered by Court that wherever the parties lived out of the State, a notice on the adverse parties council shall be considered sufficient notice." From this it would seem that the County Court in its early career some times assumed legislative functions. •

Another attempt of the same sort of more immediate interest to the people of Asheville is the following order made at July court, 1799, by that body, namely:

"The Court further appoint the following commissioners to make such laws and regulations as will be found necessary for the advantage and order of said Town (Asheville), to-wit: Zebulon Baird, Daniel Jarrett, William Brittain, Sam'l Chunn, William Welshe, George Swain and John Patton."

It would be a matter of no small interest if we were allowed to examine a copy of these ordinances.

The lottery mentioned above as "the Newton Academy lottery" was advertised but enough tickets were not sold to warrant the drawing and the money already collected was returned to those who had subscribed and paid.

The "processioning" spoken of was a simple method of deciding disputes as to the dividing line between adjoining tracts of land. It grew out of a custom in England of walking annually around the bounds of the parish in procession so that the young people might learn from the older ones where the bounds were. This "processioning," based on such a custom, became a law under certain regulations at an early day in the English settlements of eastern North Carolina. Long ago the law fell into disuse. It had some grave disadvantages.

The next capital execution after that of Sneed and Henry was of a man named Mason, who was charged with having murdered his wife, and was convicted and hung where now College Street turns to the southeast and begins to ascend the mountain to Beaucatcher Gap.