LEGAL LEGACY OF THE LOWER CAPE FEAR AND THE DEVELOPMENT OF THE NORTH CAROLINA COURTS FROM THE REVOLUTIONARY PERIOD

A revision of articles by this author first appearing as Wilmington’s Legal Legacy and Legal Legacy of the Lower Cape Fear Distributed to The New Hanover County Bar Association between 2002 and the present time.

By John W. Smith Superior Court Judge Wilmington, N.C.

Excerpt: Samuel Ashe And the Birth of a Free State First State Senator, First Speaker, First Superior Court Judge After Independence, Governor

John W. Smith is a graduate of Davidson College and Wake Forest Law School. He was elected as a District Court Judge for the Fifth Judicial District in 1988, and served as Chief District Judge from 1996 through 2001. In 2005, he was appointed as a Special Superior Court Judge. He and his wife Harriet lived in Wilmington, N.C., until 2008, when he was appointed Director of the North Carolina Administrative Office of the Courts by Chief Justice Sarah Parker. Since his retirement in 2015, he has served as an Emergency Superior Court Judge. They now make their home in Raleigh.

Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 1 Preface to Legal History of the Lower Cape Fear: a revision of articles titled “Wilmington’s Legal Legacy” first appearing in the New Hanover County Bar Association newsletter, BarBriefs.

This series of articles was inspired by two events. The first was when the new courtrooms were about to be dedicated and Superior Court Judge Ernest Fullwood asked if we had a list of judges who had served the district. He had a plan to hang portraits of as many judges as could be identified. When I checked, there was no list. Not only was there no list, but a list could be developed only with great effort. And the list, as I began to assemble it, contained names totally unfamiliar to everybody in the court system. The second event occurred when a newly arrived attorney, who had taught legal history in a northern law school and whose wife was herself a historian, asked if I could recommend a book which gave the legal history of this area. While I knew of several great histories of our area, including the ones by Lawrence Lee, Alan D. Watson, and others, none of them really addressed the history of our courts, the judges who presided over them, or the development of our local legal institutions through the centuries. From these two events emerged a driving curiosity, and the more I looked, the more I became convinced that these were stories that needed to be collected and told. One fascinating personality led to the next. One history-making event interlocked with another. And so the process held me like a prisoner until the next captive who had been forgotten by time could be liberated. I am not a historian, nor do I pretend to that credentialed office occupied by academics I greatly respect and on whom I have relied. Nor am I a genealogist, although my family arrived and settled during the Scots migrations at the earliest time before the Revolution. But I have become an amateur on this subject in the best sense of the word. A love of the law, a love of the courts, and a love for the people on whose shoulders we stand all feed a desire that those who are curious might know the stories and have available the sources to follow them. This desire has driven this endeavor. And because it is the effort of the amateur, I am certain that those who have earned the right to be called historians are likely to find errors. I have used (some would say over-used) footnotes and references to make the information transparent as to the sources and to show how local events often blend with regional or national events. Because I have worked alone, and each of these articles build on to the next, and each taught me something new, there will be an unevenness to them when they are rearranged in chronological order, as I have done. For example, a footnote in the article on Daniel Russell, one of the first in the series, became an article in itself when I got to the article on his contemporary George Rountree, one of the last. While I chose each succeeding subject depending on what I learned from the previous articles, placing them in the proper order achieves the purpose I intended: to provide a comprehendible legal history of the Lower Cape Fear. And as I worked, it became apparent that these stories preserve more than a local history. Because of the ancient origins and position of Wilmington and New Hanover County, this history is both reflective of and influential in a larger context. As counties were borne from New Hanover, as new counties to the west were named for our local judges, as our local judges presided across the state and became state and national public figures, the events recorded in these accounts reverberate and often become a part of state and national events. Space constraints in the original articles compelled relegation to footnotes tidbits of this type which could better have been incorporated into the text had there been space available to develop them more thoroughly. These threads which are often mentioned, deserve more attention than the scope of this endeavor permitted. I want to thank my wife Harriet who, as an English Major from Wake Forest, suffered hours-on- end of proof reading; and sympathize with her despair over what must have been my frustrating insistence

Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 2 on questions of “style” and inconsistent shorthand referencing. Any polish deserves her credit, and any blemish is stubbornly my own. I also want to thank Beverly Tetterton, Joe Shepard, and Eli Naher for their assistance. The North Carolina Room in the public library and the Latimer House archives are gems in the crown of Wilmington. Mining them with their help has, I hope, produced a work worthy of the title I have given it. I also need to thank the board of directors of the Bar Association for encouraging this project; and John Burns, the editor of BarBriefs who extended his deadlines and found space to present them. As the current president of the New Hanover County Bar Association, an organization which has roots back to pre-revolutionary war days, I recognize the importance of accurately preserving this research for those who are caught by a curiosity to know from whence we came. As any amateur must, I relish the advice of those more knowledgeable about any facts. Corrections, whether minor or major, are always appreciated. I hope that in the future if anyone asks the simple question of who are the judges who have served this district, that this may be a source for the answer. And as the lives of these who temporarily occupied the stage are read together, the fascinating story of how we came to be who we are as a society begins to shine through. While the picture which emerges is not always as pretty as we would like, it shows the struggle by which we arrived. And in the lessons of this history, may we avoid repeating that which we regret and aspire to that which we admire. But more than that, may we know from whence we came. It is with humility and a sense of having tackled a task greater than that for which I have time or talents that I give this research as a gift to the New Hanover County Bar Association, the people of the Lower Cape Fear, and my home state of North Carolina.

John W. Smith District Court Judge Wilmington, December, 2004

Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 3 Legal Legacy of the Lower Cape Fear by John W. Smith Listing of Articles in the order in which they were originally published in the New Hanover County Bar Association newsletter, BarBriefs (Years given are dates of service as Superior Court Judge. Dates in brackets are dates of publication for original article.):

I. 2002, Mar. Daniel Lindsay Russell: 1868-1874 [3/2002] Enigma Extraordinaire  2002, Oct. Special Edition: [10/2002] Dedication of the W. Allen Cobb Judicial Building, October, 2002 II. 2003, Apr. The Wilmington Law School [4/2003] III. 2003, Jun. Walter Parker Stacy: 1915-1920 [6/2003] Lawyer, Judge, and Chief Justice IV. 2003, Sep. New Hanover Superior Court Judges 1868-1913 [9/2003] Almand Alexander McKoy, Edward T. Boykin, Oliver H. Allen (Special Judges: Oliver Pendleton Meares, Egbert Kedar Bryan) V. 2003, Nov. Chief Justice Charles Berry: 1759-1765 [11/2003] A Tragedy in Colonial Wilmington: Death and Revolution VI. 2004, Mar. Samuel Ashe and the Birth of a Free State: 1777-1795 [3/2004] First State Senator, First Speaker, First Superior Court Judge After Independence, Governor VII. 2004, May Joshua Grainger Wright: 1808-1811 [5/2004] VIII. 2004, Sep. George Rountree: 1913-1916 [9/2004] IX. 2004, Nov.. The Moore Family: Part 1 Maurice Moore [11/04] X. 2005, Jan. The Moore Family: Part 2 Alfred Moore [1/05] XI 2005, Apr James Hasell and the Propagation of the Gospel [4/05] XII 2005, Sep. John Jay Burney [9/05] XIV 2006, Jan. Eleazer Allen of Lilliput [1/06] XV 2006, Oct. Edward Henry Cranmer, The Bishop from Southport, Prohibition Judge [10/06] Un. Unpublished Three Before the War: 1811-1864 Owen Holmes, Samuel Jones Person, and Robert Strange French Fin. Unpublished The Last Detail Reflections and The List (Draft copy)

Re-listing of Articles in general chronological order as arranged in this reprint. Some contemporaries overlap, and this arrangement roughly coincides with overall historical events important in their lives.

1. V. Chief Justice Charles Berry: 1759-1765 Page 5 2. XIII Eleazer Allen of Lilliput (Draft Copy) 20 3. XI James Hasell and the Propagation of the Gospel 32 4. IX The Moore Family: Part 1: Maurice Moore: 1763-1772 37 5. X. The Moore Family: Part 2: Alfred Moore: 1798-1799 46 6. VI. Samuel Ashe and the Birth of a Free State: 1777-1795 53 7. VII. Joshua Grainger Wright: 1808-1811 74 8. Unp. Three Before the War: 1811-1864 (Draft) 77 9. I. Daniel Lindsay Russell: 1868-1874 80 10. IV. New Hanover Superior Court Judges 1868-1913 85 11. II. The Wilmington Law School 89 12. VIII. George Rountree: 1913-1916 94 13. III. Walter Parker Stacy: 1915-1920 109 14. XV Edward Henry Cranmer: 1920-1939 115 15. S.E. The Courthouse, Solicitors, and W. Allen Cobb 125 16. XII John Jay Burney:1939-1953 130 17. Fin. The Last Detail: Reflections and The List (Draft copy) 137 18. Appendix: various charts, images, maps, chronologies. 141

Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 4 Samuel Ashe

Wilmington’s Legal Legacy, VI

Samuel Ashe And the Birth of a Free State First State Senator, First Speaker, First Superior Court Judge After Independence, Governor By John W. Smith

Our previous article introduced Wilmington’s John Baptista Ashe who was speaker of the Colonial Chief Justice Charles Berry. Now we Colonial Assembly and an early ally of Royal will move forward to the heart of the Governor George Burrington. John Baptista Revolution and examine the life of Samuel Ashe moved to the Cape Fear region from Bath Ashe. Through him our new Constitution took around 1731 to help Burrington develop the area form, and his judicial decisions comprise the and was appointed treasurer of the New Hanover first set of cases in volume one of the North Precinct, but later had a serious dispute with Carolina Supreme Court Reports. Because he Burrington which resulted in Ashe being jailed.3 acted during a time of unrivaled governmental Samuel Ashe’s mother was Elizabeth Lillington complexity as we went from a royal province to Swann who was connected with many of the a free state, this article will be somewhat long; leading families of the day. Both parents died by but your Board thought the story worth telling the time Samuel was ten, and he was raised by in full. his maternal uncle Samuel Swann on a plantation near Rocky Point in what later Samuel Ashe was reportedly born near became Pender County.4 His brother John held a Bath in the Beaufort Precinct in 1725.1 He came from a distinguished family.2 His father was full (though imprecise) genealogy and biography of 1 Powell, I, 54. The birth dates and places are the entire Ashe family. See also Powell, I, 54, variously reported. In Powell, Samuel’s birth date is Wheeler, History. Dr. Chalmers Davidson, history given as 1725 and his brother John’s as March 24, professor at Davidson College, says: “But enough 1725; with John being born after the move to Cape has been said to present the claim (which all Ashes, Fear and Samuel being born before, an unlikely living and dead, would undoubtedly deny) that here combination. A letter from his son to historian is – in loyalty and performance – the first family of Seawell Jones states that Samuel was the younger North Carolina.” The State (Magazine), January brother, which would make the dates possible. 20, 1962, p.36. Kemp Battle, Jas. Sprunt Hist. Monograph #4 3 The split with Burrington apparently arose over land (1904) 119. Politicalgraveyard.com gives Samuel’s grants. Burrington, along with about 20 men known birth as March 24, 1725, but cites no source. as “The Family” (which included Ashe, Swann, and Samuel A. Ashe’s Biographical History of NC, the Moores) were by far the largest landowners in VIII, 35 gives Samuels’s date as 1725 and John’s as the area, and disputes over grants and lappages 1720. John H. Wheeler in his History of North arose. When Burrington went to England, he left Carolina (1851) Vol.2, 279, lists John’s as 1721 his holdings under the control of Ashe, who was and Samuel’s as 1725. Mattie Bloodworth in her related to the surveyor general. When he returned, History of Pender County (1947) mentions only his holdings had diminished to Swann’s and Ashe’s Samuel and his sister as going to live with Swann benefit. Burrington reported that Ashe had grown in Rocky Point from Brunswick after his parents “from poor to rich” at his expense. Burrington’s died. He is associated with “The Neck” and “Sloop complaint was that this “family” was acquiring and Point.” hoarding the land and preventing development. 2 The family crest bore the motto in Latin: “Not for Saunders, III; Lee, 103; and Wheeler, ourselves, but for all.” His ancestors served in Reminiscences, 299f. There is an ancestral story Parliament. See family records on file at Latimer that the dispute was more personal and political. House. Wheeler, Reminiscences 299, quotes The elder Ashe was jailed for libel. Records can be Historian J. Seawell Jones as saying “The Ashe found in Saunders and in Latimer House files. family contributed more to the success of the 4 Pender County was formed after the Civil War. Revolution than any other in the State.” He gives a During the Revolution, Pender was part of New Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 53 Samuel Ashe commission in the royal militia and rose to the Active Citizen of the Lower Cape Fear rank of brigadier general after resigning his In 1754, at age twenty-nine, Samuel 5 royal commission to join the colonists. Ashe was named as a trustee to establish a town Samuel’s father was one of the assemblymen known as New Exeter. It was to be developed instrumental in funding the construction of St. about 25 miles north of Wilmington on the east 6 James Church on Market Street. bank of the Northeast Cape Fear River near Samuel was reportedly educated at Holly Shelter Creek on a 40 acre tract known as 7 Harvard. He received his legal training from his “Sand Hill Plantation” owned by Henry uncle, Samuel Swann, a New Hanover attorney Skibbow. The town was laid out, and although who had served fifteen years as speaker of the some lots were traded between the date of 8 Colonial Assembly. After studying law with incorporation and 1764, it had ceased to be a Swann, Ashe acted as an assistant attorney for recognized town by 1770.10 the Crown. He appeared in the courts in On the eve of the Revolution, Ashe had Wilmington a number of times between 1760 the confidence of the royal government.11 In and 1767, and his signature appears on court 1764, he had signed a letter with other citizens 9 papers under Governor Tryon. of the county to Royal Governor Arthur Dobbs, informing him that the oversight of road- Hanover. See previous article on Daniel Russell for building by the local courts was inadequate and formation history. begging that relief be given so that good roads 5 Ashe, II, 430; Powell, I, 51. could be built as contemplated in earlier 6 Saunders, VI, 103; He presented a bill to fund legislation. In 1773, after the death of Dobbs and construction by a lottery, which was passed. Clark, departure of William Tryon, he was appointed XXIII, 535. The bill contained a “calculation of by an act of the Assembly under Josiah Martin chances” on the lottery tickets, and provided for as one of four “Commissioner of the Roads” sale of seized items from a Spanish Privateer. 7 under a new plan for the “Rocky Point Bloodworth, op.cit., 40. Several reporters say he District.”12 attended Harvard but Harvard has no such record. The author has copies of records that his brother 13 John attended but did not graduate from Harvard, Early Revolutionary with written reprimands for misbehavior. His father’s will made provisions for the education of Historians Hugh Talmage Lefler and all of his children. He specifically directed that his Albert Newsome record that “when daughter be educated and that “she not be kept [Royal]Governor [William] Tryon asked ignorant.” His father wanted the boys educated out- Speaker Samuel Ashe what North Carolina’s of-state, in Virginia. Beth Crabtree, N.C. Governors (1958), 55, says he was educated in “northern reaction to the [Stamp Act] law would be, Ashe schools.” See also See Lee, 194; and North Carolina Historical Review, 1928, p.111, note 21 which erroneously(?) preserves a tradition he was can be found in William S. Powell’s born “on the Cape Fear River.” Powell says he was Correspondence of William Tryon (Raleigh, Div. born before the move from Bath. See also Latimer Of Archives & History, 1980), 49f and see 230. See House files for will. also. Saunders, VII, 159. 8 Hewlett, 4, 5, 150. 10 Clark, XXV, 268. See Lee, 143, for a full 9 See McEachern; and Alexander M.Walker, New description of the project. Hanover Lower Court Minutes. On March 12, 11 Dictionary of American Biography, I, 386. 1774, he appeared before the Colonial Council in 12 Saunders, V, 164; Clark, XXIII, 910 (1773 Laws, New Bern to prove a will (Cain, Colonial Records c. xii). See also Walker, New Hanover County 2nd Series, IX, 299) Ashe signed the True Bill of Court Minutes, Sept. 7, 1764; Mar. & Sept. 1766; Indictment against Alexander Simpson for the Dec. 1767; Oct. 1769; Oct. 1772; Jun. 1800; & alleged murder of Thomas Whitehurst in the 1765 “Ashe” in the index. Ashe had a great interest in duel discussed in a previous article and which set in getting a good road to a grist mill he had built. motion the demise of Chief Justice Charles Berry 13 Caution must be exercised in distinguishing among who presided over the trial in Wilmington: the Ashes. There were several Samuels and Johns. December 2003 issue of Bar Briefs. The indictment See next note. Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 54 Samuel Ashe replied that the colony would ‘fight it to the Samuel Ashe was associated with the death,’” a prediction which proved accurate.14 “Sons of Liberty” and represented New Hanover County in the early meetings to resist the British, 14 Lefler, 194. This is almost certainly a according to contemporary newspaper reports.15 misattribution, but is quoted because it surely On July 21, 1774, “At a General reflects Samuel’s sentiments. Samuel Ashe would Meeting of the Inhabitants of the district of not have been speaker under Tryon. Samuel’s Wilmington in the Province of North Carolina brother, John Ashe, was speaker from 1762-65. His held at the town of Wilmington,” with William father had died in 1734, well before Tryon arrived. Hooper acting as chairman, a resolution was Samuel Swann would have been speaker while Tryon served. Samuel Ashe was speaker in 1777. A adopted appointing Samuel Ashe to a committee reference in Saunders, VII, iii-v attributes a similar to draft a circular letter to all counties of the statement to “Speaker Ashe.” Alfred M. Waddell province “expressive of the sense of the attributes this quote to his brother John Ashe: A Inhabitants… with respect to the several acts of Colonial Officer and His Times, (Raleigh, Parliament lately made for the oppression of our Edw.&Brou., 1890), 82. Samuel would have been Sister Colony of the Massachusetts Bay for present when many conversations with Gov. Tryon having exerted itself in defense of the occurred. See S.A. Ashe, N.C. Booklet, 1914, XII, constitutional rights of America.” At this same 157. That both brothers participated, see Jas. meeting, a resolution was adopted calling for Sprunt, Chronicles of the Cape Fear, index delegates to assemble for a “First Provincial references. The biographies of the Ashes sometimes get Congress” to be held at the Johnston County confused. Even the histories by the Ashe Court House on August 20, 1774. The resolution descendents seem inconsistent. It is difficult to further stated: “Resolved, That it is the opinion avoid confusion. The index to History of North of this meeting that Philadelphia will be the Carolina written by his nephew and namesake most proper place for holding the American Samuel A’Court Ashe in 1925, (Vol. 2, Index to Congress and the 20th of September the most Vol. 1 prepared by Chas. L. VanNoppen) attributes suitable time.” The letter was sent, and the call the leading of armed resistance at Brunswick in for an independent North Carolina legislative 1775 to Samuel, when it is much more likely that assembly was sent out from Wilmington.16 the reference is to his brother John: See Saunders, Ashe’s involvement at this early stage set in X 109; Cf.: Wilmington Home Magazine, June 1974. However, both Ashes’ names appear in the motion the series of Provincial Assemblies meetings of the Safety Committee at the time, and which would meet in preparation for both could have participated. Saunders, X, 112f. independence. While he would not attend the Dict.Am.Bio. I, 386 says he served in the Light first two Assemblies, his brother would, and he Horse, but that is more likely his son. There is a would be elected to the Third Provincial note by Hewlett that Ashe served in the House of Congress in 1775 at the age of fifty. Commons between 1793-96; but this may have been the nephew Samuel who was the son of our Samuel’s brother John, who served between 1796 legislature. See Hewlett-McEachern, Attorneys of and 1817. The legislature met in January and July. NHC, 5; and Eure/Cheney N.C.Govt. 235, cf. note Ashe was holding court in Hillsborough, Halifax, 255. and Morganton in 1793; Halifax in 1794; and 15 A.M. Waddell, History of New Hanover County, Hillsborough, Fayetteville, Halifax in April 1795. A 34: quoting from the South Carolina Gazette of note in 2 NC 94 at the April Halifax terms says 6/5/1770 and 8/9/1770. Ashe is specifically “Ashe, J. had retired from the bench before mentioned as attending the meetings. arguments were closed,” but this just meant he 16 Saunders, IX, 1016f. The final resolution declared “hath just left.” He was presiding in Morganton and that supplies were being sent to Boston “to express Salisbury in September; and Hillsborough in Oct. our sympathy in their Distress and as an earnest of Clearly, Ashe was still hearing cases after the our sincere Intentions to contribute by every means March 1795 Morganton term (2 NC 142). And the in our power to alleviate their distress and to first reported case for David Stone, who replaced enduce them to maintain, with Prudence and Ashe when he became governor, is at the Sept. firmness the glorious cause in which they at present 1795 New Bern term (Nash, 2 NC 228) Article 29 suffer.” The first meeting site was changed to New of the NC Const. forbade judges from serving in the Bern. Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 55 Samuel Ashe

The judiciary during this period was in houses in Wilmington which were at risk of turmoil. A serious dispute between the last royal destruction in the coming conflict.21 governor, Josiah Martin, and the Colonial In June of 1775, the Wilmington-New Assembly had resulted in Martin dissolving the Hanover Committee called a convention of the Assembly without renewing the Courts Act, Safety Committees from Brunswick, Bladen, which was expiring. He allowed the and Duplin Counties. Ashe was appointed to a commissions of the judges to expire. committee of three to draft a response to actions Technically, the province was without legitimate by Royal Governor Martin and Parliament. The higher courts after March, 1773.17 The need to document which was unanimously adopted by devise institutions to maintain order was the convention traced the history of grievances answered by the creation of the Committees of and stated: Safety.18 “Whereas his Excellency Josiah Martin Esq. On the New Hanover Safety Committee hath by Proclamation,…endeavored to The Safety Committees essentially acted persuade, seduce & intimidate the good as a governing body during the hiatus between people of this Province from taking measures British rule and the establishment of a new to preserve those Rights and that government. Meetings of the committees were Liberty….and whereas many unconstitutional secret, and the oath forbade disclosure of matters & oppressive Acts of Parliament invasive of the committees deemed secure. Beginning with every Right & Privilege, & dangerous to the his election to the New Hanover County Safety freedom of America….Resolved unanimously Committee on January 4, 1775, at age forty- That the Resolution …introduced by Lord nine, Ashe was present at about a dozen of the North into the …Parliament which his monthly meetings until his election to the State excellency alludes to is such a glaring Council of Safety in June of 1776.19 He Affront to the common sense of the subscribed an oath of secrecy on June 12, Americans that it added insult to the Injury it 1775.20 The Wilmington Committee voted to intended them….Resolved that his was a low, have Ashe and nine others value all of the base, flagitiously wicked attempt to entrap America into Slavery… and is a poor artifice to seduce, mislead and betray the Ignorant …and also indisputably proves, that his Excellency is ready to become an 17 Battle, 847. Also F.X.Martin, History of N.C. (New instrument… to rivet those chains so Orleans, 1829) Vol.2, ch. 10. wickedly forged for America….Resolved 18 Willis Whichard, Justice James Iredell (Durham, unanimously That at this alarming crisis, … 2000), 28, contends: “Controversy over the court this Committee therefore earnestly system agitated North Carolinians and thereby recommend to the Other Committees of this promoted the colony’s revolutionary fervor more Province…and all fellow Subjects thereof, than any dispute except parliamentary taxation.” cautiously to guard against all those 19 The New Hanover Committee, scheduled to meet endeavors which have been made or shall be monthly, initially met with the Wilmington Committee. The city members met much more made to deceive them, and to treat such frequently, and Ashe was not usually present other attempts as wicked efforts of the Tools of than at the monthly general meetings. See Government calculated to throw this country McEachern. into confusion, and by dividing to enslave 20 Saunders, X, 15 (Wilmington Safety Committee, it.”22 Aug. 1775), X, 618d (North Carolina Council of Safety, June 1776). Ashe’s oath read: “I do voluntarily and solemnly swear, upon the Holy 21 November 24, 1775. McEachern, 65. Apparently, Evangelists of Almighty God, that I will not reveal Ashe (not a city resident) did not participate in the or make known to any person… any Intelligence work of the subcommittee. Ashe was not included circumstance, matter or thing, which the majority in some follow-up instructions in January 1776. Id. of the Committee present shall think necessary to 271. conceal…” 22 McEachern 33f. Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 56 Samuel Ashe

One of the problems Ashe and his denied justice to all, who should dare to committeemen would face at the August 1775 commence an action at law, without their Provincial Congress in Hillsboro was the especial permission. These high powers, integration of these Committees of Safety into a some of which, such as the latter, were coherent plan of government. One historian actually entrusted to them by the observed: Congress…”24 “It is difficult to give a succinct account of On August 8, 1775, the Safety the complicated scheme of government, Committee reported that Ashe was elected a which this committee [to plan a new representative to the Third Provincial Congress government] recommended and this to be held in Hillsboro on August 20th.25 Congress [August 1775] adopted. The county In the Provincial Congress: Constitution committees, which had been in existence not Committees quite a year, had grown too powerful to be Ashe represented New Hanover County quietly abrogated…. The violence, at the Third Provincial Congress held in imprudence, and sometimes the inhumanity Hillsboro on August 20, 1775. He was elected of some of these county committees, had by the Congress as a member of the Provincial disgusted many of the Whig leaders, who Council which met October 18, 1775, in were really disposed to use gentler Johnston County.26 He was on the committee arguments than tar and feathers, in appointed to form a new government and draft a endeavouring to convert the loyalists; and new state constitution and bill of rights.27 When accordingly we find, in the new scheme of it appeared that the recommendations of his government, all their decisions are submitted committee would not pass without prolonged to the adjudication of two superior departments….23 Before these petty parliaments, were brought by force all Tories 24 Jones 204f. Although Ashe did not participate, the and suspected persons; and although Wilmington Committee jailed a Dr. Fallon, an Ashe congress had especially forbidden the family acquaintance, after a document signed by infliction of corporal punishment, the “an attorney” critical of the Safety Committee was posted at the Wilmington courthouse. The common remedy of the whipping-post was committee found Fallon was critical of an official esteemed, in many instances, justifiable and of high office, “inflamed” and destroyed “that highly indispensable. They exercised, rigidly, unanimity essential to our mutual defense.” Min., a political censorship, and did not hesitate to 1/15-20/1776. subject to the penance of a dungeon, all 25 McEachern, 50. persons convicted of disrespectful language 26 See Wheeler, History, I,72ff. The Council was the towards the American cause… The county governing body of the state when the unicameral committee held four regular sessions during Congress was not in session. It had broad powers and evolved from the old Colonial Council. the year; but from the great facility of 27 collecting together, and the general Saunders, Colonial Records X, xxii. Hooper and Penn were added to the original committee, which disposition for consultation for the general included Ashe. This addition is important because good, during times of danger and distress one of the sources used by the committee was a they were in the habit of meeting at short draft known as Thoughts on Government (Koch & notices…. They exercised a judicial Williams, Selected Writings, Knopf, 1946, 50) authority, in the arrest of debtors,…and which John Adams wrote and gave to William Hooper. Penn also requested a copy. See David McCullough’s John Adams (Sim.&Shust., 2001), 23 Jones, 199f. Omitted: “There were now a 101; and Robert Gaynard’s Emergence of N.C.’s Provincial Council of thirteen, six Committees of Revolutionary State Govt.(NCDCR, 1978). The Safety of thirteen each, thirty-six county committees influence is apparent when compared to the final of twenty one each, three town committees of fifteen document. Adams had recommended lifetime each, and six borough committees of seven , making appointments for judges. See Jones, 272; and an aggregate of nine hundred and thirty four civil R.D.W. Connor’s History of NC (Lewis, 1919), officers.” 415-419. Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 57 Samuel Ashe debate, he was again appointed to another of the power of [Royal Governor] Josiah committee to establish a plan for government Martin.”29 until the next Congress, at which time the new The N.C. Provincial Council as a Quasi- constitution would be adopted.28 North Carolina Judiciary Body historian J. Seawell Jones, in his typical zeal, The judicial powers were widely called this committee on which Ashe served the distributed among the agencies on which Ashe “most important committee ever yet appointed sat. For example at a meeting of the Provincial by popular authority, and achieved one of the Council, the sheriff of Halifax sought most difficult and trying ends of the revolution. punishment for two alleged Tories. The It substituted a regular government resting committee discharged one of the accused upon entirely on popular authority, for that of the his submission to a loyalty oath which the royal government and annihilated every vestige committee administered, and the second was ordered held in custody to be tried by the County Committee of Safety for sedition.30 28 See Saunders, X, xxii, 552. Records of April 30 Ashe was considered by his peers to be and May 1, 1776, contain the following resolution: a person of influence. The N.C. Provincial “Resolved, that Mr. Burke, Mr. Samuel Ashe, , Mr. Caswell, Mr. Hooper, Mr. Penn, Mr. Nash, Mr. Council at its meeting on October 22, 1775, Kitchen, Mr. Thomas Jones, and Mr. Coor, be a recorded the following in the minutes: “The committee to form a temporary form of government Council being informed that discontents had until the end of the next Congress.” Wheeler in his taken place among the people in the County of Reminiscences of North Carolina (Ohio, 1884), p. New Hanover, arising perhaps from mistakes 41f. says: “It has been the subject of frequent and misrepresentation, and that in consequence remark and admiration, that North Carolina should thereof they had publicly protested against the have formed, under such circumstances, so perfect proceedings of the late Congress, Resolved, That a Constitution that it carried the State through the this Council do highly disapprove of such long and bloody revolution in safety, and for nearly Conduct as tending to create divisions which sixty years, in honor and happiness. For any people, long inured to aristocratic forms and may prove prejudicial to the cause of Liberty, monarchial rule, should, bursting from the gloom of and they do therefore recommend to Mr. monarchy into the light of liberty, to have created President Samuel Ashe and John Ashe Esquires so perfect a form of Government, was indeed a to explain the proceedings of the congress to the subject full of wonder. It has been amended several people above mentioned and endeavour by times; but to the minds of many it has not been argument and persuasion to promote that improved. It was the work of men who knew the great principles of liberty, truth and justice, and many of them afterwards fought and died to secure them. It was adopted on the 18th December 1776, as reported by a committee, among whom were W. Avery, John and Samuel Ashe, Thomas Burke, 29 Jones, 199. Historians use the constitutional debate Rich'd Caswell, Cornelius Harnett, Joseph Hews, to show the emergence of the division of the Whig Robert Howe, Willie Jones, Thomas Jones, and party into Federalists and Anti-Federalists in N.C., others. It is recorded that it was chiefly the and the bitter campaign that developed between the production of Caswell, Burke and Thomas Jones. Third and Fourth Congress. Ashe was liked by the But whoever they were, they proved themselves Anti-Federalists but had been considered somewhat master workmen in their craft.” North Carolina was conservative. He fought against ratification of the the seventh state to adopt a state constitution in Federal Constitution. (See Latimer House family response to a resolution of the Continental notes of Sallie Sewall Comey.) N.C. did not ratify Congress adopted November 3, 1775. The Bill of the U.S. Constitution until it had been ratified by all Rights to the N.C. Constitution consisted of 25 other states save one. The campaign involving Articles. It is interesting to note that despite popular Ashe, Cornelius Harnett, and Hooper is worth an opinion, this constitution was never submitted to article. See R.D.W. Connor’s History of North the people for a popular vote and lasted 79 years Carolina, 411f; and Robert Ganyard, Emergence of with almost no substantial amendments. NC’s Rev. State Govt. (1978) Cheney/Eure, N.C. Govt. (’81) 809f. 30 Jones, 233. Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 58 Samuel Ashe harmony which is so essential for the increasing in number and power.36 This Council preservation of the rights of America.”31 first met in Wilmington, and Cornelius Harnett Working with the Military was elected president.37 The Council adjourned Ashe served as Paymaster for the to meet August 21, 1776, at Joel Lane’s house in Troops and the “Minute Men” for the Wake County and chose Samuel Ashe Wilmington district32 and for the First N.C. unanimously as its new president to replace 38 Continental Battalion.33 Harnett. As president, he met with the Council On December 21,1775, he was at various locations and took depositions of appointed as one of five Commissioners for Port those accused of disloyalty or “Toryism” and 39 Brunswick34 and given the charge to treason. By October 8, 1776, he had returned “immediately purchase, arm, man and victual in to the Cape Fear area and wrote back to the a sufficient manner…one good and substantial Council of Safety: “Te Deum Laudamus: We Vessel, and to recommend proper officers to this here at present joyfully chant forth. The Vessels council and to station them at such place or of War lately here, I am Just now informed, took places as they may think proper, prudent and their departure a few days since, first burning necessary in order to protect trade…”35 two of their Tenders. We have now an open On the New State Council of Safety Port, tho’ I fear it will not long be one, unless ye honble Board will hurry down some Balls.”40 On June 5, 1776, the Council of Safety of North Carolina was created to supplant the The Council of Safety as a Quasi-Judiciary Provincial Council and give more coherence to Body the Committees of Safety, which had been The Council of Safety made many decisions on important issues, including defense

31 Saunders, X, 293. See E.W. Caruthers, Revolutionary Incidents (Guilford Genealogical 36 Because there were no legitimate courts, Society, 1985) 30, says that the task was Committees of Safety became de facto courts. successfully performed. Wheeler, History, 73: “With the latter (committees 32 Saunders, X, 288, October 20, 1775. An entry for of the counties), the real executive power of the the following day states: “Resolved that the State rested in these troublesome times; promptly paymasters now appointed are not to be considered and summarily did they exercise their powers. They as Military Officers under the Order direction or held a strict police and rigid censorship over their control of the Commanding Officers of the two respective counties, and did not hesitate to put in Battalions of the American Army…and that their jail, or to the whipping post , all persons convicted said appointment does not in the Opinion of this of disrespectful language towards the cause of Council disqualify them from sitting at the Board, American liberty. They issued orders to ravage the and ought not to disqualify them from sitting in the estates of violent Tories, and appropriate the Provincial Congress” See Lee, 260, for the proceeds to the common treasury. They executed all organization of the military in the Cape Fear. Clark, orders of the Continental Congress, the Provincial XIII, 795, is cited as source that he commanded Council, and the District Committees of Safety.” Wilmington’s “Light Horse.” His son, as well as a 37 Saunders, 618d. The minutes of that meeting state: son of his brother, both named Samuel, are also “The Provincial Congress having by Resolve reported to have been a Lt. with the Light Horse, so Nominated the following persons to be a Council of there is a possibility of confusion of records by Safety... For the District of Wilmington – Cornelius some reporters. Harnett, Samuel Ashe… subscribed the test and 33 Clark, XIII, 475. His dates of service were took their Seats in Council.” Samuel’s brother John 9/1/1775 until 4/16/1776. presented a report the following day. 34 Brunswick Town below Wilmington was still a 38 Saunders, X, 701. viable port, but rapidly diminishing in significance. 39 Saunders, X, 796ff.; Jones, 209ff The British would burn the former home of Tryon 40 Saunders, X, 840. The Council records reflect that and Dobbs, and the people would abandon the town he was granted a leave of absence and Willie Jones following the war. was elected to succeed him. Id. 873. Ashe 35 Saunders, X, 352. He was also given funds to continued to serve and was regularly appointed to purchase “drums and colors” for troops in Committees of Inquiry, which investigated Wilmington District. allegations of treachery. Id. 918ff. Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 59 Samuel Ashe and revenue. But they acted on a wide range of constitution] may do as well as that adopted by issues. Among other actions of the Council of any other colony. … There is one thing in it Safety while Ashe was present or presiding which I cannot bear, and yet I am inclined to were: securing supplies of salt; banishing think it will stand. The Inhabitants are prisoners accused of being disloyal to the West impowered to elect the Justices in their Indies; extinguishing debts of individual debtors respective counties, who are to be the Judges of whose creditors refused to accept the state the County Courts. Numberless inconveniences currency in “dollar bills,” and commitment to must arise from so absurd an institution.” His jail of a person found “accused on Oath” to have concerns were unwarranted, for in the end, all committed larceny of “one horse, one watch, judges were appointed for life conditioned on nine dollars, one gold ring, one trunk, one Dutch good behavior.43 The same writer says that the Blanket, one tobacco box and one Tickler.”41 members were undecided as to whether to fill all Committee Work to Restore Law and Order of the offices, including the judiciary, before Ashe played an active role in trying to adjourning. The decision was to elect the establish an effective new and independent members of the “Council of State” but not select 44 transitional government. The Assembly restored the higher court judges during the session. the previously expired statutes of March 1774, Richard Caswell was elected acting governor which had been entitled “an Act for establishing until the Assembly could meet, and he Inferior Courts of Pleas and Quarter Sessions in temporarily appointed some judges to begin this Province, and for regulating the Proceedings holding courts until elections could be held for therein.” Immediately thereafter, the minutes the next assembly. One of these was Samuel state: “Mr. Samuel Ashe, from the committee, Ashe, who had served on the constitution laid before the House an Ordinance to establish committee from the beginning, and he held court and inforce the Statute Laws, and such parts of with Samuel Swann in Wilmington under one of the common Law of Great Britain, heretofore in the first commissions issued as a free state on use here; also to inforce such resolves of the February 21, 1777. Ashe sent Caswell a continental Congress, and the Congress of this resignation of his commission in March because State, which have not had their effect, which was he was going to seek election to the next read.”42 Assembly, which would be the first to meet 45 In the discussions over the constitution, under the new constitution. He was successful the issue of the judiciary was a matter of great debate. In the political struggle, Governor 43 Quoted in Jones, 287. The provision which finally Samuel Johnston, who had leaned towards made it in read: “That the Justices of the Peace, preserving the British model of government, was within their respective counties in this State, shall defeated. He had wanted judges to serve life in future be recommended to the Governor for the terms during good behavior. Before he could time being, by the Representatives in General Assembly; and the Governor shall commission them study the final version which was passed, he accordingly: and the Justices, when so wrote: “As well as I can judge, it [the new commissioned, shall hold their offices during good behaviour, and shall not be removed from office by 41 Saunders, X, 700f. and minutes of the Safety the General Assembly, unless for misbehaviour, Council in the index to the set. absence, or inability.” This is indicative of the 42 Saunders, X, 982f. A similar bill was passed by the compromising process between the factions which 1777 General Assembly with Ashe as Speaker of produced the final constitution. Judges retained the NC Senate. See Clark, XII, 112; and XIII, 987. lifetime tenure until after the Civil War. The ordinance (1777, Dec. 21) charged the 44 Jones, 288. James Glasgow was elected Secretary committee to consider the laws which existed at the of State. Ashe would confront him twenty years time and “prepare such Bills to be passed into laws later as governor. See infra. as may be consistent with the Genius of a Free 45 Clark, XI, 403, letter of resignation. The final People, that form of government which we have paragraph of the new constitution read: “This adopted, and our local situation and lay the same Constitution is not intended to preclude the present before the next General Assembly for their Congress from making a temporary provision, for approbation.” the well ordering of this State, until the General Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 60 Samuel Ashe and was elected as New Hanover County’s first Rules were adopted,49 the minutes reflect that state senator. the legislature began the business of governing. First General Assembly: Speaker of the N.C. By April 12, Ashe and Nash joined in passing a Senate bill ordering the disbursement of Ten Thousand The First General Assembly convened pounds from the Continental Treasury to pay 50 in New Bern on April 7, 1777, under the new arrears due to the army. By May 9, they had constitution.46 Samuel Ashe, now fifty-two years enacted a detailed law respecting a loyalty oath 51 old, was immediately elected the first Speaker of and the consequences of treasonous activities. the Senate. Abner Nash was elected Speaker of During the session, they passed a bill for levying the House of Commons, and Richard Caswell a tax, a number of military bills, a bill “to was elected governor.47 The uncertain beginning prevent hunting with a gun by firelight in the as the two houses jockeyed for position was a night,” and “a bill for establishing a town on the 52 matter of some note,48 but after the first Senate lands of John Smith.” The session also adopted a bill establishing lower county criminal courts and “Sessions of the peace” and appointed judges for them.53 And they went about the Assembly shall establish government, agreeable to business of electing public officials.54 The the mode herein before described.” The Council of State on Jan. 16, 1777, recommended that the governor appoint Ashe and Swann “Judges of the 49 See Clark, XII, 6. The “Rules and Decorum to be Courts and Sessions of the Peace Oyer and Observed in the Senate” make interesting reading. Terminer and General Gaol Delivery” for the Rule 1: “When the Speaker [Ashe] is in the Chair “Wilmington District.” The governor appointed two every member may sit in his place with his head judges for each of the six districts. Clark, XXII, Covered.” Rule 9: “No Member Speaking to be 907. John Penn, a signer of the Declaration of Disturbed by Coughing, Spitting, Conversation or Independence, was also appointed, but declined to otherwise; And whoever by Speaking, hissing… he serve because he questioned the legality of the shall answer it at the bar, and be liable to be appointments. Ashe, Biographical History, VIII, Censured by the Speaker [again, Ashe].” 414; 1928 NC Hist. Rev. 111. 50 Clark, XII, 8. 46 Clark, XI,. xix. 51 See Clark, XI, 771. One of the many oaths which 47 In his role as speaker, he was following both his were required to avoid expulsion read: “I will bear father and his maternal uncle Samuel Swann, both faithful and true allegiance to the State of North of whom had served as Speakers of the Assembly. Carolina and will to the utmost of my powers Under the system in place, the governor was always support maintain and defend the Independent elected by the Assembly. Popular election of the Government thereof against George the third King governor was not permitted until the amendments of Great Britain…and that I will disclose and make of 1835. known to the Governor, some member of the 48 See for example letters from Gov. Caswell Council of State or some justice of the Peace all 4/20/1777: “General Moore is dead…Mr. Maurice Treasons conspiracies and Attempts committed or Moore is also dead…we shall be involved in an intended against the state which shall come to my Indian War…Our Assembly has been sitting for knowledge.” There was a modified oath for more than a fortnight, and done little more than Quakers. Some were more “confessional.”. settle the decorum to be observed between each 52 Clark, XII, 111. “Punishment” for Firelighting was House and the method of doing business…. service of 3 years in the Continental Army. The Recruiting service goes slowly, owing in a great Assembly also passed a law punishing forgery of measure to the negligence , want of abilities, or lottery tickets issued by the Continental Congress to want of influence in the officers.” Clark, XI, 456; finance the war. Clark, XXIV, 33. and from Samuel Johnston: “The Senate have 53 Clark, XII, 109. A joint resolution elected “Samuel chosen Samuel Ashe, and the Commons A. Nash as Spencer and __ Jones” as Judges of “Oyer & Presidents. Some disputes I am told have arisen Terminer” for the Wilmington District. between the two Houses about precedency and that 54 Very few officials were popularly elected. Only the business stands still, until that punctilio is male property owners could vote for settled, a circumstance, I am afraid, which will be representatives, who then elected or appointed other attended with difficulty, for want of an Umpire.” Id. officials. This remained so as to the judiciary until XI, 454. the State Constitution of 1868. Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 61 Samuel Ashe

Senate adjourned with the adoption of the The court’s jurisdiction was not detailed following resolution: “Resolved that the thanks in the constitution. The “Courts Act” of 1777 of this House be given to the Hon. Sam’l Ashe, was almost a rewrite of parts of the old 1767 Esq., for his diligent and able discharge of the law. At that time, the three superior court judges many and important services attending his (of the “Supreme Court of Justice”) often sat appointment as Speaker thereof.” The journal of together, although, as we shall see, one judge the Senate for 1777 closes with a certification could hear some issues and render a decision, signed by Samuel Ashe.55 which the two others could overrule. The First Three Superior Ct. Judges Under the concurrence of a majority (two) judges was Constitution required to finally decide most legal issues, so The December 26, 1777, Carolina they rode the circuit together. There was no 59 Gazette reported: ‘On Wednesday last the higher court to which appeals could be made. General Assembly of this State finished the Among his early sessions one scheduled Business of the Session; having passed 48 Bills, for New Bern had to be cancelled because of the many of them of great Consequence, particularly smallpox in the city. In November, 1779, Ashe a Bill for establishing courts of Law,… After presided over a horse stealing case in New Bern which the two houses adjourned til the first Monday in April next… the Honourable Samuel nerveless confederacy succeeding, when the Ashe, Samuel Spencer, and James Iredell, Esqrs. exhausted people, staggering under broken fortunes are appointed Judges of the superior and a worthless currency, were bringing into order Courts….”56 the state whose liberties they had won, during the There had been some “Messages” storm discussions preceding the adoption of the exchanged between the two houses over the Constitution, which many thought would bring back judges and the judiciary in general. The Senate the galling tyranny of Tryon and Martin – during (which was composed of one senator from each all these times of despondency and poverty, of county, Ashe being from New Hanover) dissension and furious party spirit, these three were the entire judiciary – Judges at nisi prius and nominated Samuel Ashe, Samuel Spencer, and Judges in bank, Judges of law and Judges of equity, James Iredell. The House of Commons (which Judges of the superior and Judges of the supreme was made up of two representatives from each Court.” Battle, 849. Iredell was later Attorney county and one from each of six towns, General and was appointed to the US Supreme including Wilmington) nominated Samuel Ashe, Court by President Washington. Walter Clark in his John Williams, Samuel Spencer, and Jasper introduction to Vol. XII says Iredell resigned Charleston for the three seats. In a joint balloting because of inadequate compensation, but Griffith held at 4:00 P.M. on Saturday, December 20, McRee (Life if Iredell, I, 369) quotes a letters (one 1777, the Senate reported “the following persons from Wm. Hooper) implying that Iredell intended were elected by a majority of both houses, to only one term when he accepted. When Iredell resigned, Wilmington lawyer Archibald Maclaine wit: Samuel Ashe, Esq., Samuel Spencer, Esq., was elected to his seat, but he declined to serve. James Iredell, Esq.” The House minutes reported McRee, I, 371; II, 55. the joint election, but says the judges were 58 McRee, I, 375. They also appointed clerks, one of “appointed.”57 They were sworn in at New Bern whom was George Hooper (Wm. Hooper’s brother) on January 13,, 1778.58 for Wilmington. Two of the three judges had to concur. Iredell’s letters describe what the circuit was like, the fees earned, and the effect of the tide 55 Clark, XII, 264. of war on the courts. In June of 1780, the judges 56 Clark, XI, 825. The Courts bill passed Dec. 20: Id. came to Wilmington but cancelled court because of 233. McRee, I:367, and note on Wm. Hooper’s the expected British invasion. McRee, I, 454. This participation in the process. was the month following the capture and 57 Clark, XII, 232-233, 413 416. Iredell resigned imprisonment of Ashe’s son by the British. August 1778 and was replaced by John Williams in Wheeler. 1779. “For thirteen years, at a most critical period 59 Technically, the court consisted of the three judges of our history, during the throes of the and the Attorney General who traveled as a group revolutionary War, during the chaotic days of the through the six-court circuit twice a year. Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 62 Samuel Ashe with Judges Spencer and John Williams, who on bail a Wilmington merchant, John Bradley, had replaced Iredell. The jury convicted, and who had killed Ashe’s kinsman Samuel Swann Ashe’s judgment was that the defendant “be in a duel. Bradley was charged with murder, as taken from court and thence to the Gaol from was customary in a homicide resulting from whence he came, and on the 3rd day of duels. Historian Griffith McRee observed: “That December next be carried to the place of Ashe admitted Bradley to bail is conclusive execution, where between the hours of 10 & 2, proof that he was actuated by no undue bias.64 he is to be hanged by the neck until he is dead.” Charge to the Grand Jury in the Midst of Apparently, during that term he handed down Revolution 60 three other similar sentences. As a judge, Ashe acquitted himself very Although he handed down some well indeed. On June 12, 1778, he gave a charge breathtaking judgments, he also intervened to to the grand jury in Wilmington which was so seek mercy for those who had been convicted of inspiring at the time that it was published in the high crimes in his court and sentenced to die. In North Carolina Gazette of August 14, 1778. one of his letters to the governor seeking mercy While it is quite lengthy, portions of it deserve for a man convicted of murder, he showed he extended quotation. The Battle of Moore’s was unafraid to recommend mercy despite Creek Bridge had been waged and won on Feb 61 public outrage at the offender. And he wrote 27, 1776. Washington had just endured his the relative of one condemned man saying he winter at Valley Forge with over a thousand would do what he could, but implied that his North Carolina troops.65 Cornwallis would not efforts would probably not prevail because it occupy Wilmington until April of 1781. Within 62 involved treason. this context, Samuel Ashe, at the New Hanover In January 1779, he wrote a lengthy and County Courthouse, said: eloquent letter from his home in Rocky Point to Gentlemen of the Grand Jury:… In every the speakers of the houses of the General civilized State, to establish the peace of Assembly, urging them to increase the society, to preserve decorum among the compensation of judges, arguing that due to people at large and to protect individuals in depreciation, the salary was not sufficient to their several rights…. Sensible of the defray even the costs of the circuit; and arguing advantages resulting from this invaluable that the quality of persons willing to accept right of a trial by jury…we have so service to the public was in dire jeopardy. In the interwoven in our present happy and equal letter, he recounts the sacrifices he and others system of Government, that no citizen can be had been willing to make, sacrificing a denied nor be deprived of it, but with the promising judicial future under the King to gain constitution. But this inestimable privilege, a free country, and that the quality of the state’s with others equally so, the iron hand of government was being put at risk by inadequate unfeeling British tyranny, upon iniquitous 63 support of its public servants. and ill founded pretensions, would tear from While his contemporaries often us…[T]his short contrast of the two excoriated the judges for bias, Ashe generally measures must at once fill our minds with comes out well. An example of his desire to appear fair involves his 1788 decision to release 64 McRee, II, 241, letter from Maclaine in Wilmington to Iredell. The duel behind St. James in 60 Clark, XIV, 302f. Wilmington and the events leading up to it are 61 Clark, XX, 251. The defendant had murdered a subjects of local folklore. Swann was allegedly woman. defending the honor of a visiting Englishman 62 Clark, XX, 786. See XIV, 826, where he offers to accused by Bradley of stealing rings from his store have an offender paroled to one of his own in 1787. The duelers had been friends. Bradley was plantations. pardoned. Louis Moore, Stories Old and New, 90. 63 Clark, XIV, 248. “A judges annual salary of Clark, XX, 327. £.20,000 in paper currency amounted to only £.25 65 Lefler, 242. In fact, his son, John Baptist Ashe, in specie.” Lefler, History of N.C. (NY, 1956) I, may have been with Washington at Valley Forge. 236. See Powell, I, 52. Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 63 Samuel Ashe

horror of the one, and our breast with the not… Prudence also directs us to this. To be glow of zeal for the other; and determine us prepared and determined to repel, is almost to try every effort, to perpetuate the first and effecting the repulse…..But though they reject the latter… augment their Troops, though they again A few matters only I will mention to you, sweep Germany for recruits, if we are not and these are misprision of treasons against wanting to ourselves, if we desert not our the state, and offenses affecting your public own cause, we need not be discouraged; bills of credit…. These bills are our money, America united, active and determined, will they have enabled us hitherto to support our prevail. For God’s sake then let us rouse Government, maintain our armies and defend from our supineness; let that spirit which at ourselves for three years past against one of first animated us revive, …Heaven smiles on the first powers of Europe. To counterfeit our cause, and most of the powers of Europe them is to depreciate them…and with them favor it. The King of France, with true perhaps our political existence. Our enemies, greatness of soul, with the magnanimity sensible of this, and unable to prevail by becoming a great Prince, taking no arms to subdue us, have stooped from the advantage of the necessity of our affairs, or bravery of the soldier to the base frauds of requiring any unfavourable or dishonourable common cheats…Should your inquiries terms from us, has generously taken us by the discover the avaricious villain, or the secret hand, and pledged us his protection….I and dangerous emissary, I am sure you will doubt not if in this conjuncture we oppose cheerfully render your country the essential him [the king] with vigor and alacrity, and service of dragging them into the light… every where show a determined temper, it Gentlemen, give me leave now, before will after a few efforts, close the scene with you retire to business, to address a few words regard to us. They must turn their arms from to you in another character: As citizens of a conquest to defense. free, but young State, struggling in defense of Gentlemen, you will, I hope, excuse my her liberties against powerful invaders. In traveling out of the line of Business for which such a conflict she necessarily requires the you have been summoned here at this time. I aid of all…When the hive is attacked, the will not detain you longer….” 66 drone alone remains inactive in his Establishing the Role of the Judiciary cell….The learned Montesque observes that, While serving as one of the judges of ‘Republican government must be preserved the superior court, Ashe, along with Justices by the virtue of the citizens, and defines that Spencer and Williams, handed down a seminal virtue to be love of the laws and of our decision which presaged Marbury v. Madison. country …. that government is like everything The case was that of Bayard v. Singleton, 1 N.C. else; to preserve it, we must love it…’ When 5, decided at the November 1787 term. The case the accursed plan to enslave us was first had to do with an ejectment suit brought by a formed, and ready to be enforced against us, former loyalist, whose land had been a noble spirit animated us…all seemed confiscated, against the current owner. An act of determined to venture every thing; no danger the legislature sought to forbid the bringing of was thought too hazardous, no difficulty was such suits.67 Ashe, now sixty-one, held that the too great….But alas! How are we changed of late; that noble spirit no longer inspires us, the Celestial fire is extinguished, the flame 66 Clark, XIII, 438-444. Judge Iredell had a similar ceases, it glows no more…. charge published, Clark, XII, 431. Our fate is inseparably linked with our 67 The best of the bar appeared in the case: Iredell, sister states. If they fall we perish. America Johnston, and Davie for the plaintiffs; Moore and united, must stand or fall together. We have Nash for defendant. Iredell would later go to the U.S. Supreme Court where he would uphold the reason to believe the enemy are collecting principle. See McRee, I, 411 about Iredell’s legal their full force, that they will shortly make representation of suspected Tories. Willis their last grand effort, but where we know Whichard, Justice James Iredell (C.A.P. 2002) Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 64 Samuel Ashe act of the legislature was contrary to the the great reluctance they might feel against constitution, and was therefore void as being involving themselves in a dispute with the “unconstitutional” because it denied the right to Legislature of the State, yet no object of a jury trial. Prefacing the decision of the three concern or respect could come in judge panel, the reporter says the first arguments competition or authorize them to dispense were heard in May 1786,68 and reported by with the duty they owed the public, in Francis Xavier Martin69 as follows: consequence of the trust they were invested ASHE, J[udge], observed, that at the time with under the solemnity of their oaths. of our separation from Great Britain, we That by the constitution every citizen were thrown into a similar situation with a had undoubtedly a right to a decision of his set of people ship wrecked and cast on a property by a trial by jury. For that if the maroon'd island--without laws, without Legislature could take away this right, and magistrates, without government, or any require him to stand condemned in his legal authority--that being thus property without a trial, it might with as circumstanced, the people of this country, much authority require his life to be taken with a general union of sentiment, by their away without a trial by jury, and that he delegates, met in Congress, and formed that should stand condemned to die, without the system or those fundamental principles formality of any trial at all: that if the comprised in the constitution, dividing the members of the General Assembly could do powers of government into separate and this, they might with equal authority, not only distinct branches, to wit: the legislative, the render themselves the Legislators of the State judicial and executive, and assigning to each, for life, without any further election of the several and distinct powers, and prescribing people, from thence transmit the dignity and their several limits and boundaries: this he authority of legislation down to their heirs said without disclosing a single sentiment male forever. upon the cause of the proceeding, or the law But that it was clear, that no act they introduced in support of it. could pass, could by any means repeal or [The case was then taken under alter the constitution, because if they could advisement, and Martin resumes his report in do this, they would at the same instant of May, 1787:]… that the obligation of their time, destroy their own existence as a [the judges’] oaths, and the duty of their Legislature, and dissolve the government office required them in that situation, to give thereby established. Consequently the their opinion on that important and constitution (which the judicial power was momentous subject; and that notwithstanding bound to take notice of as much as of any other law whatever,) standing in full force as the fundamental law of the land, Chapter 2, discusses Iredell’s conflicted role in the notwithstanding the act on which the present case. Blackwell Robinson, William R. Davie (UNC, motion was grounded, the same act must of 1959) 166. course, in that instance, stand as abrogated 68 Cites in various editions are 1 NC 5 {15} {42}; 3 NC 42; 1 Martin 5; & 1 Martin 48. It appears that and without any effect…. the initial ruling drew the ire of attorneys and The jury found a verdict for the defendant. required Ashe to defend himself before the On the decision of this cause, twenty-seven legislature. After the legislature found no wrong- others depending in the same Court, and doing (see infra.), Ashe and the other judges subsisting upon similar, or less substantial returned to hear further arguments and decide the grounds, were all swept off the docket, by rest of the case. Cf. 1 NC 5 with Clark, XVIII, 136- nonsuits voluntarily suffered. 142; 194-217.; 425. 69 The result was that the plaintiff-loyalist This Francis (Francois) X. Martin was the historian lost, but he got his jury trial.70 whose early N.C. & La. histories are often cited. He was also for a time the Reporter of the N.C. Supreme Court Reports, and became a judge in the 70 Ashe’s position in this case is significant. One of La. Territory. the few criticisms implied about him is that he Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 65 Samuel Ashe

This was one of the first decision to hold course the rights of possession which such an act of the legislature unconstitutional under a persons had: The Judges declared the act state constitution.71 At the time of the invalid, and in 1786 the Assembly altered it. On Constitutional Convention of 1787, only North that occasion the Legislature concurred at last Carolina, New Jersey, Rhode Island, and with the judiciary in the position, that the Virginia had ruled acts of the legislature Legislature could not deprive any man of his voidable. Attempts at the Constitutional right to property, or of his right to sue for it. Convention to explicitly provide that power to One of the Judges illustrated his opinion in this the Federal Courts failed.72 While Chief Justice manner: ‘As God said to the waters, so far shall Marshall is credited with the principle of judicial ye go and no further, so said the people to their supremacy in reviewing acts of the legislature, Legislature.’ Judge Ashe deserves for this the Ashe predated his famous 1803 decision by 16 veneration of his country and of posterity.”74 years. The Judiciary Under Fire: Victory of Sorts Even more importantly, the legislature Numerous sources record that the three was fully aware that not only Ashe, but the other judges often engaged in rancorous arguments two judges held this view. In the findings of a among themselves and with the attorneys who legislative committee which investigated practiced before them. Each had a strong whether the judges had overstepped their personality, and sources speak of the high- bounds, the committee found as a fact that the tempers of several of the leading litigators of the judges had indeed challenged the authority of day.75 the legislature. The report said: “All of the In December of 1786, a group of judges…did declare that the General Assembly attorneys sought legislative relief against the had no power to remit or suspend the payment of three sitting judges, Ashe, Spencer, and fines until they should be paid into the treasury,” a clear declaration of judicial supremacy under the separation of powers clause of our state 74 Moore v Bradley, 3 NC 313 (1801) [2 Haywood 142]. constitution. This was at the December 1785 75 term of the Wilmington Court.73 See McRee, Vol. II: Letter from William Hooper to Iredell, 141; Maclaine to Iredell, 143; where Ashe The Supreme Court Reports honor Ashe appears to be a calming influence during heated for his decision years later: “In the year 1785, confrontations in the Wilmington courts. Clark, the Assembly passed an act taking from all XVI 990. Hooper’s version reads: “Perhaps you persons the right of suing for property sold by have not heard of the adventure in court at commissioners of confiscated estates, and of Wilmington, the last hour of the last term. Williams expressing his opinion upon the treaty of peace to exhibited extreme zeal against Tories (loyalists). Hay [Fayetteville attorney], and craving his Here, however, he ruled against Whig legislation attention to him. ‘So, this is your opinion, Judge passed by his friends which was punitive towards Williams—your servant sir— I wish you good those who had sided with England. The plaintiff night;’ and, waving his hands and hat, dodging his was a Tory by reputation, and Ashe would have elegant bow, he marched out of the court house. been fully aware of that fact. See Battle, 851. See Williams, highly incensed, in strong terms also NCHR xii 261ff. proclaimed the insult to the Bench, and himself 71 Lefler, 258. It appears that Ashe and a panel of personally. He proposed that Hay should be struck judges had declared acts unconstitutional as early as off the role of attorneys. Ashe acquiesced. Spencer May, 1783, Oct. 1785 (in Hillsborough), and Dec. sat silent. Huske [the court clerk] was ordered to 1785 (in Wilmington). Clark, XVII, 215, 479; make the entry. It was partly finished. Ashe desired Kemp Battle History, 1 NC 851f. For context, see tome to cool; stopped Huske’s hands….This was Blackwell Robinson, Wm. R. Davie (UNC, 1957) part only of the disgraceful business of the day. 166 ff. From the beginning to the close of it, Spencer and 72 See Aubrey Brooks and Hugh Talmage Lefler, The Williams were engaged in the most bitter Papers of Walter Clark (U.N.C., 1950) V.2, 563f; altercation – nothing wanting but blows to and Federalist No. 81 by Hamilton. complete the farce…. This becoming quarrel took 73 Clark, XVIII, 215; Wm. K. Boyd, History of N.C. place upon the question of Mallett’s suits being (Lewis, 1919) II, 10. suspended. Mallett prevailed.” Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 66 Samuel Ashe

Williams. While the latter two appeared before disputes between judge Spencer and Judge the joint session of the legislature (apparently Williams78… many Suiters have lost all hopes of sitting as a board of impeachment), Ashe said ever seeing them determined… All the appearing would be imprudent and degrading Circumstances with respect to the Neglect and and chose to submit a written response.76 delay of the Judges being a Matter of public Reading the complaint which began the Notoriety, Your Committee have not thought it hearings, one cannot but feel that the more necessary to produce any proof thereof.”79 things change, the more they remain the same. The complaint appears to have been The matter came to a head around the time Ashe provoked in part by the outcome of the initial was forging the power of the courts to serve as a rulings in the Bayard case and perhaps others, check and balance against the legislature, and and was, as Ashe argued, an attempt by one of parts of his written response to criticism is in the lawyers in the case to obtain new judges.80 In fact identical to language he used in his Bayard Ashe’s written response to all of the allegations, opinion.77 he turned the table on the complainants. He The allegations were referred to a admitted he had been ill and left New Bern committee. The committee reviewed the early, but cited other reasons as well. For complaints and considered documents and example he did not have a copy of the legislation affidavits. The matter was debated at length. The at issue. But the most devastating part of his chair of the committee considering Ashe’s counterattack included the following response: conduct was Richard Dobbs Speight, who was a The allegations of delay, “I candidly admit to be future governor. Also on the committee were in part true; for tho’ the delay has arisen from W.R. Davie, also a future governor; John Stokes the bar, the bench are blamable; they have been (for whom Stokes County was named), who to blame in not constraining the bar to a more would hold one of the first sessions of Federal punctual and close attention to the business of Court in New Bern after his appointment by the Court; for often while the Court have been George Washington as a U.S. Judge; and waiting they have been scouring and hunting William Hooper from Wilmington. The after fees; the bench have been to blame also, committee found most of the allegations to be true, but referred the ultimate question about 78 Higginbothem, Papers & Letters of Jas. Iredell, II, wrongdoing to the legislature. In the committee 361 confirms that Ashe was pivotal. At the time, report, the committee observed: “Judges Ashe the judges usually sat as a panel on issues, and it and Williams, have never attended the Superior took two of them to finally determine an issue. In a court of Morgan District, by reason of which rough count (the reports often being unclear as to matters of Law in that Court remain who heard what), Ashe heard more cases with undecided…Judge Ashe frequently arrived at Williams, agreeing with him about 21 times and Salisbury when the term of the court was far disagreeing about 7 times. Ashe dissented from the advanced, and almost constantly left New Bern majority or produced an even split in 10 cases. three or four days before the term ended. Overall, he was in the majority in 39 out of about 50 of his cases reported in Vols. 1 & 2 of the N.C. …delay was greatly increased by tedious Reports. 79 Clark, XVIII, 216. McRee, I:368, gives a very 76 He said appearing “would be lessening myself and disparaging sketch of Spencer, who folklore degrading…I can not stoop to it, the measure itself claimed died in 1794 after being attacked by a would indicate guilt. In my Judicial Character I am turkey as he dozed in his yard. righteous and therefore bold. Malice may accuse 80 Ashe later wrote that nothing he said was intended and calumny blast for awhile…but upon Impartial against Iredell, Moore, or Johnston. As to Penn he and strict inquiry and fair researches, truth will be said “I would plainly tell him that, though there developed and shine forth like the morning light.” were several gentlemen of the bar, in whose Clark, XVIII, 137. friendship I had been happy, yet, if they thought 77 It may be that Ashe had part of his letter to the proper to withdraw themselves, I should have no legislature read into the record when he returned in objection, for that I was independent in principle, May of the following year to finish the Bayard in person, and in purse, and should neither court case. their love , nor fear their enmity.” McRee, II, 601. Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 67 Samuel Ashe for indulging the bar in unnecessary long and designated only as State vs. Anonymous, page 40 rambling harangues, calculated to amuse the of Haywood’s Reports: client and pay him in empty words for the “Judge WILLIAMS still adhered to his extravagance of the fee. But sirs… I had (and opinion of yesterday, giving nearly the same believe my brothers in office also) laudable reasons he then gave. At Halifax Court a few motives. I wished to convince the people at large days after, the Attorney General again moved (for the minds of many, though they acquiesced the Court, consisting of Judge ASHE and under, were not reconciled to, our Government) Judge MACAY, and stated to them the that the suitors would receive as much Justice arguments which had been used at from the Courts of the present as those in the Hillsborough; after hearing him the Court former – that the present Judges were as easy of took time to advise for a few days: when the access as patient in hearing and as desirous of matter being moved again, Judge ASHE gave redressing wrongs and doing equal justice as the opinion of the Court, saying he and Judge those of the Crown. These motives (with me) MACAY had conferred together--that for first gave rise to those indulgencies which the himself he had had very considerable doubts, lawyers (an encroaching tribe) have carried into but that Judge MACAY was very clear in his mischief.”81 opinion that the judgments might be taken, His written response to overstepping the and had given such strong reasons, that his bounds of the constitution was succinct: “If my (Judge ASHE'S) objections were vanquished, opinion of our Constitution is an error, I fear it and therefore that the Attorney-General is an incurable one, for I had the honor to assist might proceed--but that yet he [Ashe] did not in the forming it and confess I so designed it…”, very well like it.--So the judgments were The legislature in joint session considered the taken.”83 committee’s report and heard testimony and Ashe also was one of the three judges found the judges innocent of any wrongdoing. sitting as the jurisdictional boundaries between They acquitted the judges of all misconduct, and the United States Courts and his court were in fact passed joint complementary resolutions defined. The state judges refused to of appreciation for their “long and faithful acknowledge the authority of the federal judge service.”82 John Sitgreaves to issue a writ of certiorari in a Years later, Ashe was not present when case from Edenton. The legislature applauded a case which was similar to, but apparently the action and the House of Commons even distinguishable from, Bayard was argued in refused to take the oath to uphold the U.S. Hillsboro. A statue was ruled unconstitutional in Constitution until the issue was satisfactorily a lengthy and well-reasoned opinion by Judge resolved.84 Williams sitting alone. Williams dismissed the One other duty performed by Superior claim by the Attorney General. Ashe and a third Court Judges was the licensing of attorneys. On judge heard arguments for the case a few days September 26, 1787, future president Andrew later in Halifax, with all three judges present. A Jackson, twenty years of age, appeared before flavor of the “review or appeal” process and the Samuel Ashe for his examination for admission way cases were reported at the time, as well as to the North Carolina Bar in Rowan County. something of the temperament of Ashe, can be Judges Ashe and Williams found him to be a gleaned by quoting from the case, which is man “of unblemished moral character,” and admitted him to practice in the “Courts of Pleas and Quarter Sessions.”85 81 Clark, XVIII, 137-142. 82 Clark, XVIII, vi, 139, 461, 476. See pp. 477-9 for the protest of the members of Speight’s committee 83 State v ______, 2 NC 28 {50] at 40 {59} (17940. who become identified with the Federalist side of 84 Crockette Hewlett, The U.S. Judges of N.C. the Whigs. Ashe was Anti-federalist or “states (Hist.Soc.Eastern NC, 1978), 19-23. Clark, XXI, rights.” Wm. Hooper especially disagreed with the 1097. McRee, ii, 303, 333, 338. judges’ decrees of banishment. Blackwell 85 Robert Remini, The Life of Andrew Jackson Robinson, Wm. R.Davie, 175 (Easton Press, 1997), 12; Clark, XXIV, 50 (1777 Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 68 Samuel Ashe

His Involvement in Education report that “was remarkable as being far ahead In 1783, Ashe was listed as the first of of the times.” He was elected president of the 88 nine original trustees appointed by an act of the University Board of Trustees in 1795. legislature to establish “Innes Academy” in the Governor Wilmington district.86 Although the trustees had In 1795, after serving for 18 years on the broad powers to carry out the legislative purpose bench, Ashe was elected by the legislature as using a bequest from James Innes of his Governor of the State of North Carolina at the plantation, “Point Pleasant,” on the Northeast age of seventy. He served three one-year Cape Fear River, no other funding was provided terms.89 and the school was not opened until 1800. The On one of his circuits, he had visited bottom floor of the original building, a brick Salem, N.C., and worshiped with the Moravians. structure which was replaced by the current Upon his election as governor, the brethren sent Thalian Hall, was leased to the newly-formed him a warmly complimentary letter. In his reply, Wilmington “Thalian Association” as a theater.87 he said “That my conduct in life has met their Samuel Ashe’s commitment to [the United brethren’s] approbation … affords education came naturally. His father expressed me peculiar felicity, And I flatter myself, with the his commitment directly in his will. And his good continuance of their good opinion through interest in education must have been well the short remainder of my life now left me, by an known, because in 1789 he was appointed by an adherence to that line of rectitude which in act of the General Assembly to the first Board of every situation or department in life, I have Trustees for what became the University of always endeavored to pursue.”90 North Carolina. During his tenure he served on At that time, the term for a governor was the “Curriculum Committee” which produced a one year. The governor was required to reside for at least six months of his term in Wake County. Because he could only serve at most Laws of NC c. 2, sec vi.). According to this three years, the costs of relocating and reference this qualified him to practice in the lower courts, but not the Superior Court,. He had a wild reputation in Rowan, and got his license “by hook 88 Kemp Battle’s History of the University, I, 49, 826- or crook.” Jos. Caldwell, Andrew Jackson, (Hist. 8, 831; II, 259; Powell, 1, 54. Clark, XXV, 21f. Commission Pub., 1907) I, 311. (Laws 1789, cxx.) He served as trustee 1789-1798 86 Clark, XXIV, 511: Preamble: “Whereas, the good and president from 1795-1799. He was present at education of youth has the most direct tendency to the 1792 meeting at which the general location was promote the virtue, encrease the wealth, and extend determined and was among the 1793-4 subscribers the fame of any people, and it is the indispensable for the costs of construction of Old East, Steward, duty of every Legislature to consult the happiness Person, and South Halls. Kemp Battle’s history is of a rising generation, and endeavor to fit them for reprinted in Wheeler’s Reminiscences, 337. an honorurable discharge of the social duties of 89 The governor was elected by the legislature for one life; and whereas it is represented that a public year terms, and could be reelected for no more than seminary of learning is much desired in the district three terms in a six year period. Ashe served the of Wilmington…” full span allowed by Article 15 of the new 87 See also Lee, 196 and references cited therein. But constitution. Iredell had mentioned Ashe’s interest see Wheeler, Reminiscences, 308: “James Innes of as early as 1783. Higginbotham, Papers of Iredell, Wilmington. … Before the Academy building was II, 388. completed a theatrical corps had been organized in 90 Fries, ed., Records of the Moravians, Vol. 6, 2543, Wilmington, and an arrangement was made 2943-4. The congratulatory letter was dated Dec. 3, between them and the trustees, that the lower part 1795; Ashe’s reply is dated Dec. 8 from Raleigh. of the building should be fitted up and used The minutes state: “Mr. Ashe has known us and has exclusively as a Theatre. This arrangement was been our friend for a long time.” This is significant carried out, by a perpetual lease made to the because the Moravians, along with the Quakers, ‘Thalian Association.’" See also Louis T. Moore, were suspected of giving aid and comfort to the Stories Old and New (Wil. 1968), 129; Eliz. British during the war. See Jeffrey Crow, Chronicle McKoy, Wilmington Block by Block. 109; 1951 of North Carolina (Dept. Arch. & Hist., Raleigh, N.C.Hist.Rev., 119f. 1975), 37. Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 69 Samuel Ashe purchasing a home in Wake County was stored after the evidence became persuasive. A impractical. Ashe persuaded the legislature to plot was discovered that conspirators with James provide a residence for our governors at public Glasgow, who had served as Secretary of State expense. While our first constitution severely for twenty years and was one of the most curtailed the power of the executive, a number respected officials in the state, planned to steal of significant bills were passed under his the records being held as evidence and burn the administration. Male preferences in the descent state house. Ashe conveyed this information to a of lands and inheritances were abolished, so stunned legislature, and they shared his written sisters would now be treated the same as their sentiment that “the scheme was concerted in the brothers. Judges were forbidden to express house of a person who seems to be in the opinions to the juries, which was a change from character of a fallen angel.” Governor Ashe the English tradition which had been followed was credited with preserving the records and until then. Two preemptory challenges were saving the state house from the planned arson. provided to each side in jury selection. 91 He also Glasgow was later tried and convicted of began the process of defining the boundary line malfeasance.94 with Tennessee. Finally, as governor, he called Conclusion out the militia under the command of William Although no portrait is known to exist, Davie in response to the 1797 federal James Sprunt preserves a description given by congressional order for troops to meet the threat G. J. McRee: “Of Stalwart frame, endowed with 92 of war. practical good sense, a profound knowledge of His Response to Scandal human nature, and an energy that eventually During the second year of Ashe’s terms, raised him to the bench and the post of Andrew Jackson, now a rising star in Tennessee, governor. Asheville, Asheboro, and Ashe County informed Ashe of allegations of land fraud on were all named for him.”95 the part of officials in the office of the Secretary of State.93 Records had been sequestered and Lives of Distinguished North Carolinians (Raleigh, 1898) 266ff. 94 His trial is reported as State v Glasgow, 1 NC 264 91 Ashe, History of N.C., ii, 149. On the darker side, a {225} (1800). See also Kemp Battle’s article on the bill was reenacted which forbade manumission trial and how it prompted the creation of the without the consent of the court, and the act Supreme Court in The N.C. Booklet, III, 5, (May, required meritorious service for a justification. This 1903). the Supreme Court as we know it did not may have been in response to the prevailing evolve until later. See Battle, History of the perception that the British had encouraged the Supreme Court, 103 N.C., 467-476 slaves in the Cape Fear area to revolt as had 95 Powell, 54; Arthur Fletcher, Ashe County, A occurred in Virginia. As governor, Ashe ordered History (1963), 34. Seawell Jones, 209ff., gives this strict enforcement of an act forbidding the further description: “The character of Samuel Ashe importation of additional slaves. See Jeffrey Crow, differed from that of his brother [John], more in the The Black Experience in Revolutionary N.C. absence of a violent enthusiasm than in any other (Raleigh, 1996) 55ff, 83, 86; Lee, 263, 265; notes quality. He is not found so often in the heat and of the Wilm. Safety Committee, Saunders, X, 112. management of the battle, as in the council 92 Blackwell Robinson, William. Davie, various cites chamber, and excelled his brother, in the public in his index. estimation, as a politician. Though not so much of a 93 Marquis James, The Life of Andrew Jackson warrior, yet he was the better statesman; and, in (Bobbs-Merrill, 1938), 90 (Source?); Ashe, ii, 152- the various civil stations which he filled during his 3; H.G. Jones For History’s Sake, 79f.. Jackson had life, he acquired the high reputation which he left been Atty. Gen. in Tn. The alleged frauds involved behind him….He was not, however, entirely without Tn. land grants before Tn. became a separate state distinction in the military operations of the State. In and was still associated with NC. See also the apprehension of Tories, one of the most Blackwell Robinson, William Davie, 307; Wm hazardous species of warfare, he acquired great Masterson, The John Gray Blount Papers (NC, reputation….In the course of his eventful life, 1965) III, 591ff. & refs.; M.D Haywood, Builders Samuel Ashe filled the highest office of the State… of the Old North State (1968) 105f.; W.J. Peele and died in the full enjoyment of the confidence and Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 70 Samuel Ashe

Griffith J. McRee, who was the the U.S. Constitution by North Carolina. biographer of James Iredell, gives this most Although generally moderate in his attitude, his expansive description of Ashe: political allies had exhibited great zeal in Samuel Ashe was a member of one of the defeating ratification at a convention held in most ancient an distinguished families of Hillsborough in 1788. The politics was as rough the State….He had read law with his uncle, and tumble as at any time in our history and Col. Sam. Swann; but his early education spilled over into the personal confrontations in had been imperfect, and his professional the courtroom, especially between Iredell and studies, interrupted by the agitations of the Judge Spencer, an outspoken Anti-federalist. Revolution….He had much rugged energy Iredell had been a strong Federalist, and worked of language, and was a man of strong will hard for ratification, speaking and writing for and violent prejudices. He was moderate in passage. When Washington appointed Iredell as nothing; he loved ardently; he hated associate justice of the U.S. Supreme court for intensely. His friends regarded him as what many considered a reward for his labors in eminently practical, and solid; his that effort, Ashe wrote the following letter from opponents denounced him as “stupid,” Hillsborough to his old political adversary on obstinate, and impracticable. His April 10, 1790: patriotism was conceded…. In knowledge Dear Sir,…[concerning your appointment] I of human nature, and that rare talent that am at once affected with different sensations qualifies its possessor for the control of upon the occasion: in the same instant I men, he had scarcely a rival. In after years, rejoice , and am sad: in the moment that I though many efforts were made to drive regret your leaving us, and am sensible of the him from the bench, they were unsuccessful loss we shall sustain, I am pleased that you the stability of his seat could not be shaken. are appointed to an office of such dignity and So great was his popularity, that when his importance, which I am sure you will fill with proud nature bent to the clamor of his reputation to yourself and the fullest enemies, and he proposed to abandon his satisfaction to the public. While you sit every office, the assembly would not receive his jealousy and fear will subside; and every resignation and he retained his place until apprehension of encroachment from the elevated, in 1795, to the higher post of newly erected jurisdiction will cease. From governor. He had wealth. In politics he was Mr. Blair, I understand that you set off a leader of the radicals.96 immediately upon your Southern Circuit, and Much can be inferred about Ashe’s that, at your return you mean to embark with character from his response to the appointment Mrs. Iredell and family for New York – there of James Iredell to the United States Supreme to reside. In that case I despair of the Court. Ashe had aligned himself with the Anti- pleasure of seeing you again, for my glass is federalists, and had opposed the ratification of nearly run out, and before your second circuit this way, probably, will be entirely

exhausted; but however that may be, be love of the people, whom he had so long and so faithfully served.” See 103 NC 472 (Davidson Ed. assured, my dear sir, that while I have the appendix, History of The Supreme Court). power, I shall not cease to put up my fervent H.G. Connor quotes the following description of and best wishes for you. Adieu, my dear sir, I Ashe by George Davis: “North Carolina never had almost said for ever. May God have you bred a finer gentleman, nor one who more in his favor, and protection, and every felicity completely commanded the love and reverence of attend you, is the sincere wish of, Your all who knew him. Frank and loyal in all things, he obedient humble servant, Sam. Ashe.97 was singular in his love of truth, and in his lofty scorn of everything dishonorable or mean.” George Davis (Memorial address, U.D.C.) by H.G. Connor, 97 McRee, 287. He also wrote a congratulatory letter Wilmington, 1911, p. 7. in 1796 to Pres. Washington upon Washington’s 96 Griffith J. McRee, Life and Correspondence of retirement, NCHR xii 169. See also Willis James Iredell (N.Y. 1857) I, 367f. Whichard, Justice James Iredell (C.A.P. 2000) 65, Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 71 Samuel Ashe

Ashe married a cousin, Mary Porter,98 and they had three sons. One son, John Baptista Ashe, was elected governor in 1802, but died before his inauguration. When Mary died, Ashe Chronology of the Life of Samuel Ashe married Elizabeth Jones Merrick,99 and they had (Age may be one year less, depending on birth date) one son who survived to maturity. His grandson, Thomas Samuel Ashe would become one of the Age Year Event first three judges of the Supreme Court under 00 1725 Samuel Ashe born in Bath, NC our state constitution of 1876.100 Both Samuel 09 1734 Father John Baptista Ashe dies; goes to and his brother were members of St. James Swann in Rocky Pt. Parish. Samuel Ashe died on February 3, 1813, 21 1746 Marries Mary Porter 101 29 1754 Appointed Trustee for New Exiter at the age of eighty-seven. He is buried at a 35 1760 First recorded appearance in local court family cemetery on his Rocky Point plantation, 48 1773 Appointed Roads Commissioner for which was known as “The Neck.” A historical Rocky Point marker on Highway 117 commemorates the site. 49 1774 On revolutionary committee to support Samuel Ashe lived a long life filled with Boston one contribution after another critical to the 49 1774 [1st Continental Congress and 1st formation of the government of our county and Provincial Congress held] our state. He lived in a turbulent time when to 50 1775 Elected to New Hanover Committee of step forward was to place one’s very life at risk. Safety He broke new ground as the role of the judiciary 50 1775 Mecklenburg Declaration of Independence (Date and content was defined, and to him we owe the tradition of controversial) judicial independence and oversight. His 50 1775 Wilmington patriots burn Fort Johnston dedication earned him the love of the people he 50 1775 Elected to 3rd Provincial Congress at served, and every historian who speaks of him Hillsboro does so with praise. His memory endures in the 50 1775 On committee to prepare plan for very names of our counties and towns. We can government be proud that such a crucial chapter in our 50 1775 Paymaster for 1st NC Battalion history was written by this lawyer, senator, 50 1775 Elected to Provincial Council speaker, judge, and governor from what was 50 1775 Paymaster for troops and Minute Men of then New Hanover County. His legal legacy to Wilmington 50 1775 Appointed to quell dissent in the the Lower Cape Fear deserves to be Wilmington area remembered. 50 1775 Appointed to arm ship at Brunswick to protect commerce 92; and Alan Watson, Wilmington, NC, to 1861 51 1776 [Battle of Moore’s Creek Bridge] (McFarland, 2003) chapter 11 for the shifting 51 1776 Appointed to committee to draft NC political climate. Iredell the Federalist became a Constitution staunch States-Rights ally. 51 1776 Appointed paymaster of 1st Regiment 98 Wheeler in his Reminiscences, p 301, states Mary 51 1776 Elected to State Council of Safety, was the “daughter of John Porter who was one of President the incorporators of the town of Wilmington.” 51 1776 [Adoption of NC Constitution and Bill 99 Both wives were apparently descendants of Col. of Rights] Maurice Moore; and Ashe’s sister Mary married 52 1777 Temporary appointment as Judge for Roger Moore’s son. See Latimer House Wilmington District genealogical files. 52 1777 Resigns judgeship, elected to First 100 Samuel A Ashe, Biographical History of North General Assembly Carolina, (Greensboro, 1917) VIII, 37ff.; Battle, 52 1777 Elected as first Speaker of the Senate History of the University, II, 200. 52 1777 Elected 1 of 3 Judges of "Supreme Court 101 A copy of his New Hanover County will is on file of Law & Equity" in the Southern Historical Collection at UNC-CH, 52 1777 [Geo. Washington at Valley Forge] along with a letter mourning the death of his son 53 1778 Charge to Wilmington Grand Jury John. His death notice is in the Raleigh Register, 55 1780 Son Samuel held prisoner by British Feb. 5, 1813. Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 72 Samuel Ashe

56 1781 [Battle of Guilford Courthouse] Crow, Jeffrey, The Black Experience in 56 1781 [Cornwallis surrenders at Yorktown] Revolutionary North Carolina (N.C. Div. Of 61 1786 Legislature exonerates Judges of Archives and History, 1997), Crow. allegations of misconduct Hewlett, Crockette & Leora McEachern, 61 1786 Bayard v Singleton Attorneys of New Hanover (1979), Hewlett. 62 1787 Ashe (& Williams) admit young Andrew Jackson to practice law Jones, J. Seawell, Defense of the Revolution in 64 1789 Appointed to Board of Trustees, UNC; North Carolina (1834): Cited as Jones. became president Lee, Lawrence, The Lower Cape Fear in 65 1790 [US Constitution ratified by N.C.] Colonial Days (UNC, 1965): Lee. 70 1795 Elected Governor Lefler, Hugh Talmadge & Albert Newsome, 75 1800 [Thomas Jefferson elected president] North Carolina, a History of a Southern State, 87 1813 Samuel Ashe dies, is interred at” The 3rd Edition (UNC, 1973): Lefler. Neck” in Rocky Pont McEachern, Leora & Isabel Williams, Wilmington-New Hanover Safety Committee Minutes, Intro. by L. Lee (Wilm. 1974) Cited Bibliography (Main sources only, others cited as McEachern. in notes): McRee, Griffith J., Life and Correspondence of Ashe, Samuel A’Court, LL.D., History of North James Iredell (NY,1857): McRee. Carolina, 2 Vols. (Edwards & Broughton, Powell, Wm. S., Dictionary of North Carolina 1925), Cited as Ashe. Biography (Chapel Hill, 1979): Powell. Battle, Kemp, History of the Supreme Court, in Saunders, Wm. L., Ed., Colonial Records 10 th the appendix to Clark’s 4 Annotated Edition Vols.: Cited as Saunders. of Volume 1 (and 103) of the North Carolina Waddell, Alfred Moore, A Colonial Officer and Reports: Battle. His Times (Raleigh, 1890). Bloodworth, Mattie, History of Pender County Wheeler, John H., History of North Carolina (1947), Bloodworth. (Philadelphia, 1851) Cited as History; and Clark, Walter, Ed., State Records, 16 Vols., Reminiscences and Memoirs (Ohio, 1884) Cited as Clark. Cited as Reminiscences.

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