Biography of Andrew Scott, Arkansas *********************************************************** Submitted by: Joy Fisher < > Date: 16 Dec 2007 Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm *********************************************************** 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.