Chapter VI: Part 6

For an assault with intent to kill, by a slave upon a white person, where express malice was clearly proven, the punishment was death. If, however, only implied malice were shown the slave was to receive any number of lashes,--not exceeding one hundred on each day, for three days in succession. For all such offenses it must be borne in mind, the law guaranteed to the slave the right to a fair and impartial trial by a jury. The sheriff was required to summon "twenty-four good and lawful men of the vicinage," of whom at least twelve should be slave holders in their own right, from which number a jury of twelve was selected and duly sworn for the trial of the case. On such juries neither the master of the offending slave nor any person related to him, nor any one related to the prosecutor could sit. No previous indictment was essential, but in all other respects the trial was conducted just as in the case of a white person. It was obligatory upon the part of the court, where the owner failed to provide proper counsel for his slave, to appoint counsel to defend him, charging the fee for such service to the master. The regular right of a challenge of jurors for cause was given the slave, and in capital cases six peremptory challenges were also allowed him, as was also the usual right of appeal.

On a trial for a capital crime it was permissible for the jury to convict of a crime under that degree, if the evidence justified such a verdict--the punishment then being "by burning in the hand, or by stripes," according to the magnitude of the offense,--"burning in the hand" being prescribed for nearly all felonies not punishable with death.

The maiming or manslaughter of a white person, rape and arson were all capital offenses,--as was also the "consulting, advising or conspiring to make insurrection or rebellion;" while for any free persons to be guilty of the latter offense with a slave the death penalty was also provided. Whenever sentence of death was finally passed upon a slave, he was always to be allowed at least twenty days before its execution, except in case of insurrection or conspiracy.

At a much later date than that which we are considering an act was passed providing for the payment to the owner of a condemned slave, out of the state treasury, of an amount equal to one-half his assessed value, to be paid as soon as he was executed.

Wherever it was found necessary to examine a free negro or slave, as a witness in any trial, no oath whatever was administered. He was charged by the court to declare the truth in the following words: "You are brought here as a witness, and, by direction of the law, I am to tell you, before you give your evidence, that you must tell the truth, the whole truth and nothing but the truth; and if it be found hereafter that you tell a lie, and give false testimony in this matter, you must, for so doing, have both your ears nailed to the pillory, and cut off, and receive thirty-nine lashes on your bare back, well laid on, at the common whipping post."

It did not conclude "So help you God."

The crime of perjury has always been regarded as peculiarly heinous, and we find it punishable here more severely than any other non-capital offense. The penalty was as indicated in the charge, to "have one ear nailed to the pillory, and there to stand for the space of one hour, and then the said ear to be cut off, and thereafter the other ear nailed in like manner, and cut off at the expiration of one other hour," in addition to the thirty-nine lashes prescribed. However, notwithstanding the mandatory language of the statute and of the charge, this punishment would seem to have been discretionary, for the act concludes, "or such other punishment as the court shall think proper, not extending to life or limb." Be that as it may, it is safe to conclude that no such punishment was ever inflicted, and we can find nothing in any of the books tending to show that it was ever resorted to.

It was only permissible for an owner to emancipate a slave by and with the consent of the Legislature, and then only by proving that such slave had "performed some meritorious act for the benefit of the owner or some distinguished service for the state."

The courts were always open to a negro held as a slave who claimed to be entitled to his freedom,--though no person being a member of any emancipation society could sit as a juror in the trial of such causes.

While one of the earliest slave laws of which we have any record was that prohibiting the importing of slaves for sale, it was also made unlawful for a free negro to come into the state to live; and in 1831 an act was passed requiring every free negro between the ages of sixteen and fifty to remove from the state forever. But this was not followed by a general exodus, for the act contained a clause which allowed the negro to obtain from the Probate Court permission to remain in the state, upon a showing made of "good character and honest deportment,"--though it was always exacted that every free negro should be duly registered in the county of his residence.

In connection with these acts it would be interesting to review the earlier decisions of our Supreme Court,--as showing the spirit which actuated our judges when called upon to adjudicate in matters wherein the slave was involved, and the fairness and liberality displayed in the construction and application of the laws concerning him. But it is impossible in this brief paper to do more than glance at one or two. Among the very first decisions is one rendered in 1818, in which the learned judge held, in passing on an appeal for freedom from a number of negroes, claiming to be unlawfully detained as slaves, that the slaves in the Northwest Territory became free men by virtue of the ordinance of 1787, to which we have referred, and, with true justice, declared that, as such, they could "assert their freedom in the courts of this state and be protected therein." In the same opinion he observed that "slavery is condemned by reason and the laws of nature, and can only exist through municipal regulation; therefore in a matter of doubt, as between depriving an owner of a vested right, arising from law, and depriving a human being of his liberty, a natural right, the court would lean 'in favorem vitae et libertatis,'" and the petitioners were declared to be free.

In another very old case we find it early judicially determined that, in this state, the unjustifiable killing of a slave was murder.

This opinion, delivered in 1821, in the first years of our statehood, so clearly enunciates the humane principles which then actuated our courts, and to this good day continue to move them, in all their dealings with the inferior race, that it is peculiarly worthy of a place in the record of a society devoted to preserving the earlier history of our state and its people, and we may be pardoned for quoting its language at length.

It was by Justice Clarke, in reviewing an appeal by a white man who had killed a slave in Adams county and been sentenced to hang therefor. He said in part, "In some respects slaves may be considered as chattels, but in others they are regarded as men. The law views them as capable of committing crimes. This can only be upon the principle that they are men and rational beings. The Roman law has been much relied on by counsel for the defendant. That law was confined to the Roman Empire, giving the power of life and death over captives in war, as slaves, but it no more extended here than did the similar power given to parents over the lives of their children.... At a very early period in Virginia the power of life over slaves was given by statute, but ... as soon as these statutes were repealed it was at once considered by their courts that the killing of a slave might be murder.... In this state the Legislature have considered slaves as reasonable and accountable beings, and it would be a stigma upon the character of the state, and a reproach to the administration of justice if the life of a slave could be taken with impunity,--if he could be murdered in cold blood, without subjecting the offender to the highest penalty known to the criminal jurisprudence of the county. Has the slave no rights because he is deprived of his freedom? He is still a human being, and possesses all those rights of which he is not deprived by the positive provisions of the law,--but in vain shall we look for any law passed by the enlightened and philanthropic legislature of this state giving to the master power over the life of the slave. Such a statute would be worthy the age of Wraco or Caligula, and would be condemned by the unanimous voice of the people of this state, where cruelty, even, to slaves, much less the taking away of life, meets with universal reprobation.... Because slaves can be bought and sold it does not follow that they can be deprived of life.... The right of the master exists not by force of the law of nature or of nations, but by virtue only of the positive law of the state,--and, although that gives to the master the right to command the services of the slave, requiring the master to feed and clothe the slave from infancy till death, yet it gives the master no right to take the life of the slave, and if the offense be not murder it is not a crime, and subjects the offender to no punishment.... A distinction once existed in England between the killing of a Dane and a Saxon, but even in Coke's time the killing of any rational being was murder.... At one period of the Roman history, a history written in the blood of vanquished nations, slaves were regarded as captives, whose lives had been spared in battle, and the savage conqueror might take away the life of the captive, and therefore he might take away the life of the slave. But the civil law of Rome extirpated this barbarous privilege, and rendered the killing of a slave a capital offense. When the Northern barbarians overran Southern Europe, they had no laws but those of conquerors and conquered, victors and captives, yet even by this savage people no distinction was recognized between the killing in cold blood of a slave or a freeman. And shall this court, in the nineteenth century establish a principle too sanguinary for the code even of the Goths and Vandals, and extend to the whole community the right to murder slaves with impunity?

The motion to arrest the judgment must be overruled."

The defendant was sentenced to hang on July 27th, 1821.

I have endeavored as well as possible in the brief time allotted me, to refer to the most important features of our early slave laws. It has not been my purpose to attempt an exhausted research into such legislation,--the object sought being merely to show, as a matter of some historical interest, from an impartial mention of the early acts concerning slavery, that the position of the slave in Mississippi was not as it has sometimes been depicted; that so far from being a creature with no legal status, subject to the whims and caprices of his master,--a mere chattel, over which even the power of life and death might be exercised at will,--he was surrounded by all the protection which just laws, humanely administered, could afford,--that the courts were ever open to him and that he could, and did appeal to them, and not in vain.

If any unknown or forgotten facts of historical importance to us have been brought to light, my purpose has been accomplished.

We have only touched upon the legislative enactments concerning slavery,--and for us, who know that it existed, it is unnecessary to revert to that higher law which controlled the relations between master and slave, and compelled such conduct toward the latter as made of him in countless instances the devoted friend.

Only an affection born of long years of treatment in the main considerate and kind, could have furnished history with the spectacle of the espousal by the slave of his master's cause, in a conflict the end of which meant so much of difference to the two.

The four years of faithful devotion to which the women of the South bear willing witness could never have been exhibited by an enslaved people between whom and their masters the relations had been other than those we know to have existed.

The society which made possible those relations was unique in the history of civilization,--and in the annals of all the peoples who have passed through bondage the conduct of the negro slave stands without a parallel.

FEDERAL COURTS, JUDGES, ATTORNEYS, AND MARSHALS IN MISSISSIPPI, 1798-1898.[96]

BY THOMAS McADORY OWEN.

The Mississippi Territory was created by Act approved April 7, 1798.[97] This Act, limited in its provisions, authorized the President "to establish therein a government in all respects similar to that now exercised in the territory northwest of the river Ohio," excepting expressly the prohibitive provision respecting slavery.

TERRITORIAL COURTS.

The Ordinance of July 13, 1787, regulating the government of the Northwest Territory, authorized the appointment by the President of "a court to consist of three judges," "who shall have a common law jurisdiction," their commission to continue in force during good behavior. The governor and the judges were given a limited law making power. On May 7, 1798, just one month after the act of formation, the President commissioned the Governor and Secretary, and two judges--Daniel Tilton and Peter Bryan Bruin. On June 28, 1798, the third, Wm. McGuire, was commissioned as Chief Justice. Their law making labors ended disastrously, the enactments being generally condemned by the people as "repugnant to the established principles of jurisprudence derived from the common law of England." So great was the clamor against them that Congress advanced the Territory into the second grade of government, May 10, 1800. These obnoxious laws were in a few years repealed.[98]

The settled portions of the Eastern section of the Territory (now Alabama) were so remote from the Mississippi settlements proper as to make the duty of holding courts there very burdensome, and often courts were not held at all. Superior Courts were held in the District of Washington (now Washington County, Ala.,) on the 4th Monday in Sept., 1802, by Seth Lewis, Chief Justice, and on the first Monday in May, 1804, by Judge David Ker, making two only in four years. Congress, therefore, on March 27, 1804, passed a law providing an additional judge for the Territory, to have jurisdiction in Washington District, and to this position Harry Toulmin was appointed.

The "Great Bend of the Tennessee" having been thickly settled, and formed into Madison County (now in North Alabama,) Congress provided, March 2, 1810, a judge to have jurisdiction therein, and to this position Obadiah Jones was appointed. Both Toulmin and Jones served during existence of the territory.[99]

During the whole territorial period, 1798-1817 the _nisi prius_ courts, and the appellate courts were held by these judges, three in what is now Mississippi, and two in what is now Alabama.[100]

For the three groups of judges in the Mississippi section, the following is the _probable_ order of succession:

1. McGuire, Lewis, Rodney, Martin, Campbell, Poindexter.
2. Tilton, Ker, Jones, Mathews, Leake.
3. Bruin, Fitts, Simpson, Archer.

TERRITORIAL ATTORNEYS AND MARSHALS.

Until the Act of Congress, Feb. 27, 1813, providing for territorial attorneys and marshals, all persons holding these positions in Mississippi did so under local regulations. Following the passage of the law, appointees were named who seem to have held office during the remaining years of the territory.[101]

FEDERAL DISTRICT COURT.

The Act of April 3, 1818 marks the establishment in the State of the Federal Judiciary proper.[102] A judge, attorney and marshal were authorized. The judge was given authority to appoint a clerk. During its whole existence the number of judges has never been increased.

Natchez was appointed as the place for the sitting of the Court, twice annually, and so continued until March 3, 1835, when there was a change to Jackson, where sessions have since been held.[103]

From April 3, 1818, to June 18, 1838, the whole State constituted one District. On the latter date it was divided into the Northern, with the place of holding court fixed at Pontotoc, and the Southern District, with Jackson as the place for holding the sessions.[104]

On May 16, the place of holding courts in the Northern District was changed from Pontotoc to Oxford, where courts are now held.[105]

The subsequent changes, resulting in the present arrangement is as follows:[106]

By Act June 15, 1882, the Eastern Division of the Northern District was created, with Aberdeen as the place for holding courts.

Feb. 28, 1887, the Western Division of the Southern District was created, with Vicksburg as the place for holding courts.

April 4, 1888, Southern Division, Southern District, was created, with Mississippi City as the place for holding courts.

July 18, 1894, Eastern Division Southern District, was created, with Meridian as the place for holding courts.

On the secession of Mississippi in 1861, Judge Samuel J. Gholson resigned. Mr. Lynch makes this observation on the court during the civil war period:[107]

"When the Confederate Government was inaugurated Judge Clayton was appointed to the bench of the Confederate District Court for Mississippi, and held that position until the close of the war. There was during this period, of course, but little civil business before his court, and only one point of a general interest in the laws of war was decided by him, which was, that when the Government was powerless to protect, it had no power to punish."

JUDGES.

_Territorial._

Daniel Tilton, of New Hampshire, commissioned, May 7, 1798.[4]

Peter Bryan Bruin, of Mississippi, May 7, 1798.[108]

William McGuire, Chief Justice, of Virginia, June 28, 1798.[109]

Seth Lewis, of Tennessee, Chief Justice, May 13, 1800.[110]

David Ker, of Mississippi, temporary commission, Nov. 2, 1802, permanent commission Jan. 25, 1803.[111]

Thomas Rodney, of Delaware, temporary commission, July 12, 1803, permanent commission, Nov. 18, 1803.[112]

Ephriam Kirby, of Connecticut, temporary commission, April 6, 1804.[113]

Harry Toulmin, of Kentucky, Nov. 22, 1804.[114]

Obadiah Jones, of Georgia, Mar. 3, 1805.[115]

George Matthews, Jr., of Georgia, temporary commission, July 1, 1805.[116]

Walter Leake, of Virginia, Mar. 2, 1807.[117]

Francis Xavier Martin, of North Carolina, Mar. 7, 1809.[118]

Obadiah Jones, of Georgia, Mar. 6, 1810.[119]

Oliver Fitts, of North Carolina, Apr. 18, 1810.[120]

David Campbell, of Tennessee, Mar. 3, 1811.[121]

Josiah Simpson, of New Jersey, Feb. 18, 1812; also Feb. 9, 1816.[122]

George Poindexter, of Mississippi, Mar. 3, 1813.[123]

Stevenson Archer, of Maryland, Mar. 6, 1817.[124]

_Federal District._

William Bayard Shields, of Mississippi, April 20, 1818.[125]

Peter Randolph, of Miss., temporary commission, June 25, 1823, permanent commission, Dec. 9, 1823.[126]

Powhatan Ellis, of Miss., July 14, 1832.[127]

George Adams, of Miss., Jan. 20, 1836.[128]

Samuel J. Gholson, of Miss., Feb. 13, 1839.[129]

_Confederate District._

Alexander M. Clayton, ----, ---- 1861.[130]

_Federal District._

Robert Andrew Hill, of Oxford, Miss., May 1, 1866, resigned Aug. 1, 1891.[131]

Henry C. Niles, of Kosciusko, Miss., temporary commission, Aug. 11, 1891, permanent commission, Feb. 15, 1892, oath taken, Feb. 15, 1892.[132]

ATTORNEYS.[133]

Thomas D. Anderson, July 29, 1813.

William Crawford, Dec. 10, 1814.[134]

Bela Metcalfe, Apr. 20, 1818.[135]

William B. Griffith, March 13, 1822, and also Dec. 22, 1825.[136]

Felix Houston, Jan 9, 1828.[137]

George Adams, March 3, 1830, and also May 12, 1834.[138]

Richard M. Gaines, Jan. 20, 1836.

_Northern District._

Samuel F. Butterworth, June 25, 1838.

Oscar F. Bledsoe, Jan. 13, 1841, and also Feb. 8, 1845.

Andrew K. Blythe, Dec. 18, 1848.

Woodson L. Ligon, Aug. 27, 1850.

Nathaniel S. Price, April 1, 1853.

Jehu A. Orr, May 31, 1854.

Flavius J. Lovejoy, March 12, 1857.

_Southern District._

Richard M. Gaines, July 9, 1840, March 13, 1844, and also March 22, 1848.

Horatio J. Harris, Aug. 10, 1850; Aug. 4, 1854, and also March 7, 1859.

Carnot Posey, temporary commission, Nov. 4, 1859, permanent commission, Jan. 30, 1860.

MARSHALS.[139]

John Hanes, of Mississippi, July 29, 1813.[140]

Henry G. Johnson, of Mississippi, April 20, 1818.[141]

Walter M. Leake, March 1, 1820.

Charles M. Norton, temporary commission, Nov. 22, 1823, permanent commission, Dec. 9, 1823.

John H. Norton, Jan. 3, 1825, and also Jan. 2, 1829.

Anthony Campbell, May 28, 1830.

Samuel W. Dickson, temporary commission, Jan. 18, 1832, permanent commission, Dec. 11, 1832.

William M. Gwin, temporary commission, Oct. 12, 1833, permanent commission, June 30, 1834, and also June 26, 1838.[142]

_Northern District._

Adolphus G. Weir, June 25, 1838.

Alexander K. McClung, temporary commission, April 15, 1841, permanent commission, Aug. 14, 1841.

Andrew A. Kincannon, March 12, 1845.

John Rayburn, Dec. 18, 1848.

William McQuiston, May 16, 1850.

Charles R. Jordan, April 6, 1853.

William H. H. Tison, temporary commission, April 21, 1857, permanent commission, May 17, 1858.

_Southern District._

Fidelis S. Hunt, Jan. 13, 1841.

Anderson Miller, temporary commission, April 15, 1841, permanent commission, July 22, 1841.

Thomas Fletcher, temporary commission, March 24, 1845, permanent commission, Feb. 24, 1846.

Fielding Davis, March 20, 1850.

Richard Griffith, April 4, 1853, and also temporary commission, April 21, 1857, permanent commission, May 15, 1858.

FOOTNOTES:

[96] The lists of Judges, Attorneys and Marshals presented below were compiled from the records of the State Department and the Department of Justice, Washington, D. C. In the multiplicity of Mississippi books, there is nothing of a special character relating to the above title, and so far as is known this particular data has never heretofore been published.

The principal repository for early Mississippi history, Claiborne's _Mississippi_ (1880), contains an account of the jurisprudence of the Territory and State, Chapter XXXII, pp. 467-482. In Goodspeed's _Memoirs of Miss._ (1891), Vol. I, p. 101, it is stated that Judge A. M. Clayton contributed this chapter.

In James D. Lynch's _Bench and Bar of Mississippi_ (1881), there is an imperfect account of the judicial establishment, with a large number of valuable biographical sketches, and portraits.

Goodspeed's _Memoirs of Miss._ (2 vols., 1891), has a Chapter on "The Legal and Judicial History" of the State, vol. I, pp. 100-131, with portraits.

The original materials are contained in the United States _Statutes_, the Mississippi Codes and the Session _Laws_, and the _Reports_ of the Supreme Court of the State.

[97] _U. S. Statutes at Large_, vol. i, pp. 549-550.

[98] U. S. _Statutes at Large_, vol. ii, p. 69. See Claiborne, for account of laws passed by Governor and judges, second grade of government, &c., pp. 209, 211, 212, 214, 217, 218, 223, 224, 530.

[99] U. S. _Statutes at Large_, vol. ii, pp. 301, 563.

[100] It is beyond the scope of this paper, which is almost purely statistical, to enter into a review of the various territorial courts, or "systems" of judicature projected, &c. For full discussion, see Claiborne and Goodspeed.

[101] _U. S. Statutes at Large_, vol ii, p. 806.

[102] _U. S. Statutes at Large_, vol. iii, p. 413.

[103] _Ibid._ vol. iv, p. 773.

[104] _Ibid._ vol. v, 247. _See also Revised Statutes_ of the United States (1878) Secs. 539, 552, and 572.

[105] _Ibid._ vol. xiv, p. 48.

[106] _Supplement Revised Statutes_, 1874-1891, pp. 344, 500, 547, 583, 584, 638, 639.

[107] _Lynch's Bench and Bar of Miss._, p. 506.

With the other Judges comprising the first court, he was quite unpopular, and in 1802 he abandoned his office.--Claiborne, pp. 209, 223, 231.

[108] Resigned in 1810. He had held judicial office under the Spanish government, and was an excellent man, but not a lawyer. Claiborne, p. 161., _note_, has a good sketch, with other references on pp. 152, 172, 209, 223, 283.

[109] He was the only lawyer on the first bench of Judges. He early resigned.--Claiborne, p. 209.

[110] His appointment changed public sentiment toward the Court which had hitherto been hostile. For sketches of, _see_ Claiborne, p. 108, note, also p. 223. Gov. W. C. C. Claiborne speaks of him as "a learned lawyer."

[111] He was highly esteemed and his appointment increased the respect of the people for the Court. Claiborne, pp. 231, note, and 141, 238. See Goodspeed, vol. i, p. 1073, for sketch. He died 1805, and not in 1810 as stated by Claiborne.

[112] Claiborne, pp. 242, 258, 283. He presided, with Judge Bruin, at the trial of Burr.

[113] He was probably appointed for the Washington District, but evidently never served. He was one of the Land Commissioners for the District East of Pearl river, appointed under Act of Congress, of March 3, 1803--Pickett's _Alabama_, vol. ii, p. 196.

[114] Judge for Washington District, now in Ala. Born in Taunton, England. He was the most prominent and the strongest of the early public men in Alabama, and died in 1824. An excellent account of his life is in Claiborne, p. 309, note. _See also_ Brewer's _Alabama_ (1872), p. 575; Lynch, p. 21-2; and Pickett's _Alabama_, vol. ii, pp. 204-5.

[115] Evidently never accepted appointment, as on Mar. 7, 1809, still a resident of Ga., he was appointed a Judge in Illinois. The latter place he also appears not to have accepted, as in 1810 he became Judge for Madison Co., M. T.

[116] Martin's _Louisiana_ (1882), p. xxiii. Never received a permanent commission, but on Jan. 19, 1806, became a Judge in Orleans Territory. Son of Gov. George Matthews, of Ga. _See also_ Gilmer's _Georgians_.

[117] Claiborne, p. 356; and Lynch, pp. 135-7.

[118] Resigned and became a Judge in Orleans Territory, March 21, 1810. For excellent memoir, by Judge W. W. Howse, _see_ Martin's _Louisiana_ (1882).

[119] _See_ note _supra_. He accepted this appointment, and presided in the courts of Madison county, and later of other counties in the Northern part of Alabama territory until 1818.

[120] Grandfather of James Harris Fitts, Tuscaloosa, Ala.--_Memorial Record of Alabama_ (1893), vol ii, p. 1090. He has sometimes been confounded with Gideon Fitz, of Va., who was a brother-in-law of Gov. Robert Williams. Mrs. Sallie B. Morgan Green, so well known in Miss. as a writer, but now of Calusa, Cal., is a grand daughter of Gideon Fitz, _See_ Claiborne, pp. 161 _note_, 352; and Goodspeed, vol. i, p. 109.

[121] Goodspeed, vol ii, p. 109.

[122] Claiborne, p. 352.

[123] Claiborne, Chapter xxx, pp. 361-414, contains an elaborate biography. In a _note_, p. 414, is a brief account of his literary remains, now deposited with the Claiborne papers, in the University library, Oxford, Miss. _See also_ Lynch, pp. 27-73. His portrait is in Lowry and McCardle's _History of Miss. for Schools_, p. 101.

[124] Returned to Md. in 1819.--Goodspeed vol. i, pp 311-12.

[125] First Federal District Judge. Claiborne, p. 260, _note_.

[126] Goodspeed, vol. i, p. 130.

[127] Claiborne, pp. 358, _note_, and 470; Lynch, pp. 27-8. He is said to have descended from Pocahontas.

[128] Claiborne, pp. 388-9, _note_; and Goodspeed, vol. i pp. 114, 285. He was the father of Gens. Daniel and Wirt Adams, and father-in-law of Gen. John D. Freeman.

[129] Lynch, pp. 497-500. The author, p. 499, comments on the failure of President Davis to appoint him his own successor. _See also_ Goodspeed, vol. i, p. 787.

[130] Lynch, pp. 500-507; _steel portrait_.

[131] His sketch in Goodspeed, vol. i, pp. 922-929, contains an elaborate presentation of his judicial career, and discusses many of the questions which came before him when on the bench. Claiborne, p. 472, _note_, pays a splendid tribute to his character.

[132] Present incumbent.

[133] The list is not brought down later than 1860. Further detailed annotation as to both attorneys and marshals is expressly omitted except in a few instances.

[134] Appointed for and acted in Washington District. For sketch, _see_ Brewer's _Alabama_, p. 392.

[135] First Federal District Attorney in Miss. after formation of the State.

[136] Lynch, pp. 112-126.

[137] Claiborne, p. 431.

[138] Became Judge later; _see_ note _supra_.

[139] The list is not brought down later than 1860.

[140] Appointed for and acted in Washington District.

[141] First Federal Marshal in Miss. after the formation of the State.

[142] For elaborate memoir, and _portrait_, _see_ Claiborne, pp. 427-446.

RUNNING MISSISSIPPI'S SOUTH LINE

PETER J. HAMILTON, ESQ.

Within a month after the 1899 meeting of this association at Natchez, the Alabama Historical Society will be celebrating at St. Stephens on the Tombigbee River the centenary of the withdrawal of the Spaniards below the line of 31°, which once separated the United States from the Spanish possessions east of the Mississippi River. In connection with this and our own meeting place a short study of the origin and delimitation of this, Mississippi's original south boundary, will be of interest.

It is an interesting question why the parallel of 31° was ever selected as a boundary. It crosses rivers not far above their mouths and seems singularly unsuitable. It makes one State own the source and another the mouth of all streams. It was put in the treaty of 1782, whereby Great Britian acknowledged American independence, for policy, because it confined the Spaniards to the coast, which they could neither use nor defend. Historically it was so selected because Great Britian had made it by proclamation of October 7, 1763, the north line of West Florida, and West Florida was captured from her by Spain in 1780. But why had it ever been made the boundary of Florida? The only reason apparent is that Great Britain in 1763 wanted to get immediate control only of the harbors and did not care to have her colonial governments clash with the Indians. The territory above was by the same proclamation made crown lands and reserved for the use of the savages. This policy was reflected in the great Choctaw treaty at Mobile March 26, 1765, when a tract was ceded "the boundary be settled by a line extended from Grosse Point, in the Island of Mount Louis, by the course of the western coast of Mobile Bay, to the mouth of the eastern branch of the Tombigbee River, and north by the course of said river, to the confluence of Alibamont and Tombigbee Rivers, and afterwards along the western bank of Alibamont River to the mouth of Chickianoce River, and from the confluence of Chickianoce and Alibamont rivers, a straight line to the confluence of Bance and Tombigbee rivers; from thence, by a line along the western bank of Bance River, till its confluence with the Tallatukpe River; from thence, by a straight line to Tombigbee River, opposite to Atchalikpe (Hatchatigbee Bluff) and from Atchalikpe, by a straight line to the most northerly part of Buckatanne River, and down the course of Buckatanne River to its confluence with the river Pascagoula, and down by the course of the river Pascagoula, within twelve leagues of the seacoast; and thence, by a due west line, as far as the Choctaw nation have right to grant." The twelve leagues from the coast bring us to about this line of 31°, as closely as could be determined without a survey. It is true that on the Tombigbee land was ceded up to Hatchatigbee Bluff; but that was a reaching, in the only way possible, towards the new north boundary of West Florida as already fixed in 1764--an east and west line drawn through the mouth of the Yazoo River.[143]

But while it is true that by the treaty of 1782 Great Britain thus acknowledged the south boundary of her revolted colonies as the line of 31°, it is not less true that she did not then own so far south. Spain, who was in possession, recognized the boundary through the Yazoo mouth, and, in fact, Great Britain in this treaty proposed to do the same thing if she re-acquired West Florida. Walnut Hills and Natchez on the Mississippi, Fort Confederation and Fort St. Stephen on the Tombigbee were strong Spanish posts and all above 31°.

The all-conquering Galvez was governor-general for a year after that treaty and would certainly have maintained the Spanish rights by force of arms if necessary. But his successor, the politic Miro, lived to see a rapid American growth west of the mountains, and the death of the active King Charles III. and the French Revolution wrought a change in Europe. The weak Charles IV. let his wife and her notorious paramour, Godoy, rule Spain.[144] It so happened that French successes led to peace, but Godoy thought that Spain would soon be at war with England and that therefore peace with the United States was important for Spanish-America. At all events he suddenly assented to the demands of Thomas Pinckney, the American envoy, and on October 27, 1795, signed a treaty whose second article declared 31° as the boundary from the Mississippi to the Chattahoochee, and thence east by a line from the junction of the Flint and Chattahoochee to the head of the St. Mary's River.

The colonial authorities could never believe this agreement _bona fide_ and sought by delay to give the court a chance to undo the treaty. In 1797 the Spanish minister declared the United States guilty of bad faith in making friends with England by Jay's treaty. A commissioner to run the line had to be as much of a diplomat as of a surveyor.

Such, at least, was the opinion of Andrew Ellicott, whom President Washington in the last part of 1796 sent by way of the Ohio and Mississippi to act for the United States. Baron de Carondelet, the governor general, was to represent Spain. Ellicott arrived at Natchez on February 24, 1797, and until he left on April 9, 1798,[145] his time was taken up in negotiations with commandant Gayoso de Lemos or encouraging the dissatisfied citizens there to claim the rights of Americans.[146] Among the prominent men there named by Ellicott were those on the revolutionary committees,--Anthony Hutchins, Bernard Lintot, Cato West, Isaac Gaillard, William Ratliff, Joseph Bernard, Gabriel Benoist, Peter B. Bruin, Daniel Clark, Philander Smith and Roger Dixon.

The permanent committee was composed of the last eight and Frederick Kimball, who lived below the line. These were really the government until the organization of the Territory. Gayoso admitted the neutrality of the district even before the Spaniards evacuated the town on March 30, 1798. Hutchins was a disturbing factor for a time, organizing a counter committee of safety and correspondence. Among his friends were Thomas Green, James Stuart, Ashly, (a Baptist minister,) Messrs. Shaw, (an attorney,) Davis, Justice King, Abner Green, Hocket, and Mr. Hunter, afterwards member of Congress from the Territory. Ellicott says that Gayoso declined to let Hutchins move below the line and that he therefore remained, to be prominent in Mississippi.[147] Of the 299 pages of Ellicott's printed Journal, the first 176 are taken up with events before beginning the survey. General Wilkinson accuses him of officiousness with the Spaniards and of gross immorality on board his boat on the river. It may be true, but Wilkinson is no reliable authority, although he ought to have been a good judge of rascality.

Ellicott had been in public life before. He was a Quaker of Pennsylvania, and about 1789 ran the western line of New York, and afterwards the lines of the District of Columbia and the streets of Washington. In 1791 he was commissioner to run the line between Georgia and the Creeks.[148]

On the present occasion he had with the party an escort of soldiers, at least part of the time under the gallant Captain John Boyer. The plans annexed as an appendix to the Journal must largely be those of David Gillespie, who did the actual surveying, and his report or journal would have been of greater value than Ellicott's. Ellicott acted as astronomer, but generally was the outside man. He was in New Orleans, Mobile, Pensacola, St. Marks and circumnavigating Florida, while Gillespie was quietly plodding the forests, running a guide line and by offsets establishing the true latitude of 31°. But nothing from Gillespie can now be found at Washington and even Ellicott's original report seems to have shared the fate of so much else in the vandal destruction of the capital by the enemy in 1814. For the Spaniards Captain Minor acted as surveyor, with Patrick Taggert as assistant, and Mr. Dunbar, (later of Mississippi Territory,) as astronomer.

The American side was better provided with instruments than the Spanish, having fourteen kinds in all.[149] They consisted of two zenith sectors (the larger one having nearly six feet radius), "both principally executed by ____ Rittenhouse," a large achromatic telescope made by Dolland of London, with terrestrial and celestial magnifying pieces, besides two small telescopes for taking signals, a transit and equal altitude instrument made by Ellicott and used in the New York and Washington surveys, a regulator made by Ellicott, an instrument of eight inches radius for taking horizontal angles, constructed by George Adams of London, three brass sextants, one by Ramsden being of "superior style," a surveying compass made by Benjamin Rittenhouse "upon the newest and most approved style," two "excellent" stop watches, two "excellent" cases of drawing and plotting instruments, two four-sided copper lanterns for tracing the meridians and directions during celestial observations, an apparatus to protect the water in using an artificial horizon, consisting of covered cup, &c., and two two-pole chains of common construction. On the Spanish side were only an "excellent" sextant, graduated by the vernier to 10 seconds, an astronomical circle executed by Traughton of London, itself "a portable observatory," "executed in a masterly manner," and an old surveying compass of poor construction. The sextant and circle had been the property of Dunbar, and were acquired from him by Governor Gayoso.

Ellicott and party sailed from Natchez down the river and at Clarksville began work. On April 11th, he says, they "set up the clock, a small zenith sector, and proceeded to take the zenith distance of pollux, for five evenings successively, the first three, with the plane of the sector to the east and the others with the plane west. From the result of those observations, it appeared that we were three miles and two hundred and ninety perches too far north. This distance my assistants, Messrs. Gillespie, Ellicott, Jr., and Walker, traversed with a common surveying compass and chain, to the south, in order to discover (nearly) a proper place to encamp, and set up the large sector, to determine the first point in the line with accuracy. When this traverse was completed it was found to be impracticable to convey our instruments, baggage and stores directly from Clarksville to the most eligible place, owing to the extreme unevenness of the country on the one hand, and the banks of the Mississippi not being sufficiently inundated on the other, to give us a passage by water through the swamps and small lakes; it was therefore determined to descend the Mississippi to the Bayou Tunica (or Willing's Bayou); from whence I understood we could convey our instruments, stores and baggage, either by land or water, almost to the place of beginning; though not without some difficulty. The distance from Clarksville to the Bayou Tunica by land is but eight and a half miles, but by the Mississippi more than fifty.

"On the 24th we left Clarksville, and arrived at the Bayou Tunica on the 26th, being detained one day by head winds.

"On the 27th my assistants were sent to carry a line east from the termination of the traverse already made, into the high land, and on the 28th I went and examined the country over which the guide line passed, and fixed upon a very elevated situation, about one thousand four hundred feet south of it, for our first position; but the difficulty of getting our instruments, baggage and stores to it, appeared much greater than I first expected. A party of our men were directed to open a road from the height already pitched upon, to Alston's Lake; the distance was about one mile. The road was completed on the 30th, and on the first day of May we moved and encamped on the top of the hill. Our instruments, baggage, &c., were first carted from the Bayou Tunica to Alston's Lake, into which I had previously taken through the swamp two light skiffs: the articles were then taken by water, up the lake to the point where our road from the hill struck it, and from thence packed on horses to our encampment. The country was so broken, and covered from the tops to the bottoms of the hills, with such high, strong cane, (arundo gigantea,) and a variety of lofty timber, that a road from the Bayou Tunica, to our camp, could not be made by our number of hands, in less than a month passable for pack-horses.

"Our observatory tent being worn out by the military, who had no tents when they arrived at Natchez, I was now under the necessity of erecting a wooden building for that purpose; which I began on the 2d of May, and with the aid of four men finished on the 4th, and set up the clock, and large zenith sector; but the weather being unfavorable, the course of observations was not began till the 6th, and was completed on the 16th."

On the 21st he was joined by Captain Minor and on the 26th by Dunbar. June 1st Gayoso, who succeeded on the death of Carondelet, came with his suite and examined the line as determined; but he then returned to New Orleans, leaving Minor to represent him.

Ellicott in the 5th volume of the American Philosophical Society Transactions (reprinted as an appendix to his Journal) quotes from Dunbar the following account of the establishment of the point on the Mississippi River:--

"On the 28th of July, the line then approaching the 10th mile, and learning that the waters of the inundation were retired within the banks of the Mississippi, so that the lands were become sufficiently dry to give firm footing to the labourers, the astronomer for his Catholic Majesty taking upon himself the extending of the line through the river low ground to the eastern margin of the Mississippi. The party allotted for this service did accordingly encamp at the point D, pushing the line forward. Judging the present a convenient position for verifying the direction of the line, the astronomer for His Catholic Majesty established his observatory near the point D, and made ____observations with the circular instrument placed in the direction of the tangent____.

"The line being extended to the margin of the Mississippi on the 17th of August, the measurement from the point D, was found to be 2 miles and 180 perches English measure, (or 2111.42 French toises.) At the distance of 1 and 2 miles at the points X and Y, were erected square posts surrounded by mounds of earth, and at a distance of 88 French feet from the margin of the river, and in the parallel of latitude was erected a square post 10 feet high surrounded by a mound of eight feet in height. On this post is inscribed on the south side a crown with the letter R underneath; on the north U. S., and the west fronting on the river, Agosto 18th, 1798. Lat. 31° N. In erecting the mile post, due regard was paid to the quantity of the offsets."

Their second camp was at Little Bayou Sara. Thence on their progress at first was slow on account of the cane, twenty to thirty-five feet high, matted with vines, and the many short, steep hills, besides the rainy weather. They hardly averaged a quarter of a mile per day. The Choctaw Indians, through whose country they passed, never disturbed the party, however, therein contrasting with the Creeks beyond Mobile River the next year.

While on Little Bayou Sara they learned of the formation of Mississippi Territory and the appointment of Winthrop Sargent as governor.[150] The new governor arrived in Natchez August 6th, and General Wilkinson on the 26th, but Sargent's health did not permit him to organize the government until the next month.

But Ellicott was now outside civil complications. He made new encampments on the line at Big Bayou Sara (whence Dunbar returned to his home near Natchez,) Thompson's Creek, Darling's Creek and Pearl or Half Way River. At Thompson's the observations covered the satellites of Jupiter by night, and the sun by day. After leaving Thompson's Creek they had much trouble crossing swamps and rafting over deep streams. Those named on his map are Comite, Beaver Creek, Amite, Ticfaw, Tanchipahoe, and Boguechitoe, all easily recognized. The soil generally was poor, covered with pines on the sandy uplands. He naively tells us that while at Darling's a confidential letter from the Spanish governor-general to a Spanish officer "fell into my hands for a few hours." What right he had to open and read official correspondence between officials of a power with whom his country was at peace does not appear, but espionage went so far at this period that an American commandant at Natchez had tried to intercept Ellicott's own letters. Evidently Ellicott thought the end justified his own means. For he discovered that improper correspondence had been carried on between Spanish officials and "some gentlemen in the western part of the Union," and that nearly $20,000 had been shipped from New Orleans in that connection. Ellicott copied the "interesting parts" and dispatched them to the Department of State. This may account for Wilkinson's hostility.

November 17-19 was occupied cutting a road through the cane brake, building rafts and ferrying across Pearl River. Here they had trouble getting provisions. Supplies and the large sector had arrived by water at a bluff at the mouth of the river, but the boat could not pass two natural rafts that blocked up the stream, as they often did. Gillespie succeeded in cutting through, but provisions meantime ran out except beef. Fortunately a small supply was secured by pack-horse from Thompson's Creek, and after two weeks Gillespie came back from New Orleans, bringing a few barrels of flour. After arranging for Gillespie to correct back to Thompson's Creek, and Daniel Burnet to carry the guide line on to the Mobile, Ellicott himself went down the river, and thence through the Rigolets to New Orleans, where he arrived January 4, 1799. There he obtained supplies, conferred with Gayoso, and took observations with his six feet sector.

Meantime the guide line was plodding eastwardly through the forests. At 117 miles from the Mississippi the party passed the Hatcha-Lucha (Black Creek) and about 168 miles they crossed the Pascagoula (now Chickasawhay) a little above where the Slapacha (Leaf River) falls in. This last is called Estopacha in other documents of the time. Thence on nothing special occurred until they reached the Mobile River, where the guide line had diverged 517.44 perches too far north.

The observatory had been erected before Ellicott's arrival from New Orleans in his schooner by way of Mobile. Observations (solar and lunar, of Castor and Pollux, &c.) were made from March 18 to April 9, 1799. Here the large sector was used, and the transit and equal altitude instrument also. Finally a boundary stone was set up, marked (according to the Journal) on the north "U. S. Lat. 31° 1799," and on the south "Dominos de S. M. C. Carolus IV. Lat 31° 1799." This piece of brown sand-stone, about three feet high is still in place near the Southern Railway and is the basis of all surveys in south-west Alabama.[151] During this time Gillespie went up the river to St. Stephens. With a Haddley's sextant he determined the latitude of that place, and he also made a sketch of the river. Ellicott himself determined the latitude of Mobile and the point at the mouth of the Bay.

Among the most serious problems of the survey was carrying the line across the Mobile River and adjacent swamps. The only feasible way was found to be for parties on each side to make fire and smoke signals at certain intervals on the high lands to the east and west.

While Ellicott was at Pensacola, with Colonel Hawkins, trying to arrange with the Spanish commandant to secure the neutrality of the Creeks, his party pushed the line forward from the Mobile to the Escambia and Coenecuh Rivers above their junction. The matter of the Indians was never satisfactorily arranged, but the survey proceeded. On the Coenecuh, however, he notes that the more pressing enemies were flies and "musquitoes," which made every observation a matter of great pain. Among these was the transit of Mercury in May, 1799. Thereafter they crossed the White Cedar Creek, Yellow Waters, and between the 321st and 334th miles crossed and re-crossed the larger Choctaw River, now the Choctawhatchee, and its branch, the Pea River. Between that and the Chattahoochee were a number of streams and lakes, but he names only the Waters of Chapully (Chipola River.) In fact, little or no account is given of this part of the survey, as Ellicott was not in the party. He sailed from Pensacola and finally met the others on the Chattahoochee.

There he was surrounded by hostile Indians and had difficulty establishing in September 1799 the mound at the junction of the Flint. He then left the party and went by sea around Florida to the St. Mary's, while Gillespie apparently worked overland to the sources of that river. There, as at the beginning of the Mississippi, Ellicott built a terminal mound.

But at the Chattahoochee, 381 miles from the Father of Waters, ended Mississippi Territory. And there we must bid adieu to Ellicott and the south line alike of Mississippi and of Alabama. Spain retired below that line in 1798-9, and before 1820 the United States had acquired the territory south of it even to the Gulf. As a boundary between countries the parallel of 31° has become obsolete; but the Quaker's work in running out the old British line still remains important, for it separates much of Mississippi from Louisiana and much of Alabama from Florida. The stone on Mobile River is only a point of departure in surveying; but the mounds on the Mississippi, the Chattahoochee and St. Mary's bound civilized States instead of savage hunting grounds, as when they were made, and one at least still bears Ellicott's name.

FOOTNOTES:

[143] Colonial Mobile, pp. 185, 294; 7 Statutes at Large, p. 55.

[144] 4, Am. Hist. Rev. p. 62, &c.; 7 Stat. at Large, p. 140.

[145] Ellicott's Journal, pp. 40, 177.

[146] But at least he did not turn cannon on Gayoso and compel him to evacuate, as stated (p. 45) in Jones' Introduction of Protestantism.

[147] Ellicott's Journal, pp. 141, 282.

[148] Winsor's Westward Movement, p. 266; Ellicott's Journal, App. p. 45.

[149] Ellicott's Journal, App., p. 44, &c.

[150] Colonial Mobile, p. 342; Ellicott's Journal, p. 182.

[151] Picture in Colonial Mobile, p. 295, shows Ellicott to be inaccurate as to lettering.

ELIZABETH FEMALE ACADEMY--THE MOTHER OF FEMALE COLLEGES

BY BISHOP CHAS. B. GALLOWAY, D. D.

I believe that Mississippi can justly lay claim to the honor of having established the first chartered institution for the higher education of young women in the South, if not in the United States. Though called an Academy, it did full collegiate work, had a high standard of scholarship, and conferred degrees. The institution was located at Washington, six miles east of Natchez. Washington had been the brilliant and busy little Territorial Capital, and was then the center of social and political influence.

A recent visit to the site of that venerable school enabled me to gather much valuable information about its work, and heightened my appreciation of its vast educative and spiritual influence upon the history and destiny of the Southwest. The walls of the spacious building still stand, but the merry voices that rang through its halls only live in the sweet echoes of a distant past. Borrowing a style of architecture from the Spanish of Colonial times, the structure was two and a half stories high, the first of brick, the others in frame. A fire consumed it twenty years ago, leaving only the solid masonry as a memorial of the educational ambition and spiritual consecration of Early Mississippi Methodism. Some of the grandest women of the Southwest received their well-earned diplomas within those now charred walls, and went out to preside over their own model and magnificent homes. The early catalogues contain the names of fair daughters who afterward became the accomplished matrons of historic families. For many years the Elizabeth Female Academy was the one institution of high grade in the entire South for the education of young women. All others have been followers and beneficiaries of this brave heroine of Mississippi.

The grounds and buildings were donated to the Mississippi Conference by Mrs. Elizabeth Roach in 1818, and in her honor the institution was called the Elizabeth Female Academy. The year following a charter was granted by the Legislature, of which this is a copy:

"_An Act.
To Incorporate the Elizabeth Female Academy._