Biography of Andrew Scott, Arkansas

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BIOGRAPHICAL AND PICTORIAL HISTORY OF ARKANSAS.
BY JOHN HALLUM.
VOL. I.
ALBANY: WEED, PARSON'S AND COMPANY, PRINTERS.
1887.

Entered according to act of Congress in the year eighteen hundred and eighty-seven,
BY JOHN HALLUM, 
In the office of the Librarian of Congress at Washington.

NOTE.

  [The following sketches of Robert Crittenden, Samuel Hall, John Taylor, the superior
court, including judges Benjamin Johnson and Thomas J. Lacy, Edward Cross, David Walker,
William Cummins, James W. Bates, Archibald Yell, Terrence Farrelly and Francis Hubbard,
in the order named, were written by General Albert Pike, at the request of the author,
for this work. Such an accomplished author needs no introduction to the American reader.]

PREFATORY.

  What one may now be able to say with knowledge of the men who lived fifty years ago in
Arkansas cannot be expected to be of interest to most of those who live in Arkansas
to-day. The new Arkansas is not the same Arkansas as the old one, but another. There has
been a conquest of the State, peaceful, indeed, by detachments of a great invading army
of men from other States and lands - peaceful, but none the less as much a conquest as
those of England by the Saxons and the Danes were, which almost obliterated from the
memories of the Britons the names of their old heroes.

  It is for this that I have been reluctant to write down what I remember of those men
whom I knew fifty-five years ago, or soon after, and whom I then esteemed worthy, or came
to esteem so afterward, when the animosities and dislikes engendered by political
differences had died out. There are so few now of the descendants of these men left, to
whom such reminiscences can be grateful! There are so few now to whom it is of any
importance or interest that the men of that remote day lived at all!

  One with difficulty brings himself to write of any thing, knowing that what he writes
will be read with indifference or impatience, and, to the larger part of those now living
in Arkansas, the names that I should have to mention will be as strange and unregarded as
those upon the monuments of Assyria and Chaldaea. "The life of the dead," said Cicero,
"is in the memory of the living;" and, if this be true, it is not in my power to bring to
that life again those whom I knew in the early days.

  Neither is there in this any thing to be with reason complained of. For, also, to those
of us who went to Arkansas no earlier than 1832 or 1836, the men who had lived and died
there before us were but the mere shadows of names, in the history of whose lives we felt
no interest. We put ourselves to no trouble to have the names kept in remembrance, but
unconcernedly permitted them to glide away from us into oblivion, no record of their
words or deeds remaining; and with what right can we complain, if we, too, the dead and
living alike, are to the men of to-day only as those are who lived and died in other
lands, when the world was not by a thousand years so old as it is now.

  Moreover, there is not much of adventure or action to be told of these men, that can
make what may be written of them otherwise than wearisome to read. The things that
chiefly interest us in our daily lives are of no interest afterward to any one, and if
recited they seem tame and trivial. When one has but little to tell and that little is in
regard to those for whom most of the living care nothing, it would be wiser to be silent;
yet if what lie may write will give pleasure to one or two, here or there, to whom the
holy Dead are of consequence, he ought not to let the general indifference prevent his
writing.

  WASHINGTON, May 25, 1887.                            ALBERT PIKE.


THE SUPERIOR COURT.
BY GENERAL ALBERT PIKE.

  The judges of the superior court of the territory of Arkansas in 1831 were Benjamin
Johnson, of Kentucky, and Eskridge and Clayton, of Mississippi. I never saw either of the
two last. In 1834, when I first saw the court in session in a room of the brick hotel on
the bank of the river, which Charles L. Jeffries kept, the judges were Benjamin Johnson,
Edward Cross, I think, and Thomas J. Lacy. When the State government commenced its action
Judge Johnson was appointed by the president judge of the district court of Arkansas, and
Judge Lacy was elected judge, with Daniel Bingo chief justice, and Townsend Dickinson, of
Batesville, also judge of the supreme court of the State.

  I knew Judge Benjamin Johnson long and well. He was a man of excellent ability and of
much reading in the law, reading a new volume of reports with as great a zest as a
devourer of fiction reads the latest novel. I think that I gained his regard by
purchasing the late reports of several States and of the circuit courts of the United
States, and placing them at his disposition in the small brick office before then
occupied by Robert Crittenden, on the corner of the block on which his residence stood,
which Judge Johnson purchased after his death. At any rate, I became greatly attached to
him, always esteeming and honoring him until his death, and he was invariably kind and
indulgent to me. It was my great good fortune, indeed, while a whig, and the warm friend
of Robert Crittenden and Ben. Desha and William Cummins and others of the whig leaders,
to count also among my friends from the beginning, Judge Johnson, Ambrose H. Sevier, and
Wharton and Elias Rector. There never lived a more honest, upright, honorable or generous
man than Benjamin Johnson. He was petulant, sometimes, on the bench; and for personal
reasons, on account of an attempt in 1832 or 1S33 to impeach him, he was not kindly
disposed toward William Cummins and Absalom Fowler, but I always found him impartial and
earnestly desirous to decide in accordance with law and weigh impartially the facts. He
was a single-minded man, of great simplicity of character, which made him sometimes seem
eccentric; but he was not wanting in shrewd and sturdy common sense. Sometimes he would
explode in sudden anger, as when, in 1835, in the last room to the westward of Ashley's
brick row, where he was holding court, when Samuel Daviess Blackburn, summoned as a juror
and asked if he had formed or expressed an opinion in the case, said in a pompous way, "I
have formed and expressed a problematical opinion." "A what opinion?" sharply asked Judge
Johnson. "A problematical opinion, may it please your honor." "A problematical opinion!"
cried the judge. "Now, sir, do you get yourself problematically out of this court-house,"
and Daviess incontinently fled.

  Sometimes, as I said, he was nervously petulant. Something had one day made him so in
the same court-room, and looking round for something on which to expend his vexation, he
saw Colonel Ashley splitting off with his pocket knife a sliver from a post of the
railing which inclosed the bar. "Colonel Ashley," sharply cried the judge, "I wish you
would quit cutting the court-room to pieces." Ashley looked calmly up and said: "I don't
know, may it please your honor, who has a better right to cut this court-room to pieces
than I have; it's mine."

  When Judge Peter V. Daniel first came to Little Rock to sit in the circuit court Judge
Johnson was evidently possessed and subdued by a profound reverence for him as a judge of
the supreme court of the United States. But this in a day or two began to wear off, and
on the third or fourth day when an argument was concluded, he began at once to say in his
quick and off-hand fashion, what his opinion on the question was. But Judge Daniel
checked him, and with sententious dignity said: "Judge Johnson, the court will consult,
and then the justice of the supreme court will deliver the opinion of the court." Thus
reproved, Judge Johnson sank back in his seat with an air of pious resignation, gave a
low whistle, unconsciously, and patted the floor vigorously with one foot, which we could
see below the short curtain that hung in front of the judges' seats.

  A day or two afterward, another case was argued on demurrer, and when it was submitted,
Judge Daniel commenced giving his opinion. But Judge Johnson, laying his hand on his arm,
said loudly " the court will consult; - and, THEN, the justice of the supreme court can
deliver the opinion of the court." And then his foot patted the floor, and his eyes
twinkled with fun which the justice of the supreme court did not seem to share.

  There came on then, on the next day, a case in which I had brought suit on a bill of
exchange, made in Arkansas and indorsed there by the payee, and then indorsed in
succession by an individual and a bank in Mississippi, and then by a house in New
Orleans, where it was payable. The notary had given notice of protest to that house only,
and it had in turn given notice to the bank, and it to the individual in Mississippi, and
he to the indorser in Arkansas, and he to the maker there - each notice having been made
out by the notary, and all of them sent to the house in New Orleans. Fowler moved for a
nonsuit, and insisted that the law required the notary to send notice to each indorser
and maker direct within the legal time. I said that he was entirely mistaken, that the
notices were properly sent, and that each indorser had a day in which to send notice to
the last preceding indorser, and the first indorser a day to send to it the maker.

  Judge Daniel very positively said, "that is not the law, the law in Virginia is, and
always has been, as the counsel for the defense claims." Judge Johnson patted with his
foot and whistled to himself; and I said, "may it please your honor, I am quite sure that
the law is as I have stated it." "No, it is not," said Judge Daniel, "there never was any
such law, you are altogether mistaken." Then Judge Johnson leaned toward him and said, in
a half whisper, loud enough for every body to hear, "you had better not be too positive,
if he says the law is so, it's mighty apt to be so." And I said, "since your honor is so
very positive that I am mistaken, I say that I know the law to be as I have stated it;
and if the court will wait until I can send to my office and get a book on bills of
exchange, I will prove it." The court waited, and I did prove it, of course, and I took
my verdict.

  After the adjournment of the court for the day, I met Judge Johnson, who, putting his
hand on my shoulder, said, "these judges of the supreme court of the United States think
they know all the law, don't they? But if we don't know all the law, we know where to
look for it, don't we?" And with a hearty laugh he went home to dinner, having sent Judge
Daniel there in his carriage.

  Ashley, an old time New York lawyer, who had not studied the books for many years, had
for some years great influence with Judge Johnson, who had the highest opinion of his
ability and knowledge, and his entire accuracy in references to the books. But at length,
when I had been some years at the bar, the judge discovered that Ashley had misled him,
and he never trusted him afterward. "Colonel Ashley," he said to him, one day, "I don't
want to hear any more arguments, any ingenious man can make an argument, if you've got
any authorities on the pint, you had better bring them here, I would rather have one
authority than fifty arguments."

  One day my partner, David J. Baldwin, was arguing some question in a bankruptcy case
before Judge Johnson, who, becoming impatient, asked him if he had any authority on the
point. "Lots, sir," said Baldwin, "lots." "Bring them here to-morrow, then," said the
judge, and in a great fume adjourned the hearing, and went home, where he met his son
Robert, and exploded. "What do you think, Robert," he cried, "that man Baldwin said to me
to-day, when I asked him if he had any authorities on a pint? 'Lots, sir, lots!' 'Lots!
To me, a judge of the district court of the United States, LOTS!"

  At another time, when he was holding court in the room over the old market-house, in
the course of a discussion in some case, William C. Scott, who was district attorney,
told Frederick W. Trapnall that he lied; upon which Fred, knocked him down. He had no
sooner picked himself up, than Judge Johnson fined him $25, informing him that when one
gentleman told another that he lied, he ought to expect to be knocked down.

  In one case before him, on an indictment of an Indian for murder, the jury, there being
really no evidence on which to convict, came into court after a brief deliberation, and
being asked if they had found a verdict, the foreman answered, "we have," and handed it
to the clerk who read it out: " We, the jury, find the prisoner guilty of murder, as
charged in the indictment." "And I grant a new trial," said the judge. "Enter the
verdict, Mr. Clerk, and that the jury is discharged, and the court grants a new trial on
its own motion."

  In another case in which I defended an Indian, on an indictment for murder, the case
was given to the jury about noon, and I went away for an hour or so. When I returned,
Scott, the district attorney, informed me that while I was gone the jury had sent word to
the judge that they wished for some instruction, and had been brought into court in the
absence of the prisoner who had been sent back to jail; and that the judge had then
instructed the jury on some question of law, of no great importance. I said: "You had
that done, did you? Well, you and the judge have played the devil then," and he went away
in a huff. By and by the jury marched in, and the prisoner being brought from the jail,
they rendered a verdict of guilty. The next day the judge was restless and uneasy, and
Scott came to me and said; "The judge has found out that he did wrong in having the jury
brought in and instructing them in your absence and that of the prisoner, and if you will
move for a new trial he will grant it." I said: "I supposed that you and the judge would
find that out, and now you can go on and hang the man. I shall not help you out of the
scrape you have got into."

  He came again and again, and said that the judge was very much troubled, and wished me
to ask for a new trial, but I refused, and finally it was ordered without a motion.

  In the winter of 1835-6 I went from Little Rock with Judge Johnson, Colonel Fowler and
Judge Hall, to Crawford Old Court-House, on the Arkansas river, some twenty-five miles
below Fort Smith, where Judge Johnson, then of the superior court of the territory, was
to hold the circuit court. It was a terribly cold journey, so cold that when we left
Fletcher's, on Point Remove creek, where there was a bridge then, after staying there all
night, we were compelled to forego traveling, after getting through the bottom, and to
remain at the first house until the next day. We crossed the river at the court-house on
foot upon the ice, leaving our horses, getting over safely, though with difficulty, the
ice consisting of rough fragments packed and frozen together. Archibald Yell, who crossed
the same day with other lawyers from Fayetteville, broke through, and but for a pole
which he carried would have been drowned.

  Nineteen of us, the judge being one, slept in one room over the improvised court-room,
during the term. Here I saw Jesse Turner for the first time, who was then living and had
an office there. "While we were there the landlord, Hungerford (I think), became demented
through jealousy, it was said, Judge Johnson, good, innocent man, being the object of his
suspicions without knowing it.

  On our way home we came, late in the evening of a very cold day, to Old Dwight in Pope
county, and stopped there for the night. "We gathered round the fire in the big
fireplace, and were sitting there talking, when a citizen "mul-fathered" with whisky came
in, got a chair, and sitting near the fire soon seemed to be dozing. But after a little,
some one speaking to Judge Hall, who sat near the fellow, called him "judge," and the man
opened his eyes and said to the judge: "You're the judge, are you. Then it's you that
Hungerford went crazy about, 'cause you was too fond of his wife." "Sir," said Judge
Hall, "I don't know what you mean. My name is Samuel S. Hall, sir." "Oh," said the man,
"'t'aint you then. "When I hearn it canvassed about they said 'twas Judge Johnson." "Get
out of here!" roared Judge Johnson, "get out of here! I'll bet that story has got to
Little Rock, and Matilda has heard it before now. Get out of here quick if you don't want
to get killed!" The chap "lit out" in a hurry; but the judge was evidently disturbed all
the way home, fearing that the report had preceded him.

  Judge Johnson was a good and safe judge, few of whose decisions, I think, have been
overruled. He died after a long life of usefulness, without an enemy in the world, and
his name ought never to be forgotten in Arkansas.