Category Archives: 19th Century NC lawyers

Landmark court opinion defining rights of enslaved people arose in Edgecombe County

In 1834, on a plantation in Edgecombe County, a slave named Will refused to share a hoe he had made with his own hands, an act of defiance that got him shot in the back by his white overseer. As he lay wounded, Will reached up and fatally slashed his attacker on the hip and the arm, earning himself a trip to the gallows.

Josh Shaffer, The News & Observer, June 8, 2017

The upshot was a landmark decision of the North Carolina Supreme Court that was a major step forward in the ongoing definition of the status and rights of enslaved people.

Will was sentenced to death in the Edgecombe County Superior Court, Judge Donnell presiding, but plantation owner James S. Battle became convinced that Will had acted in self-defense and so he hired Bartholomew F. Moore to represent Will on appeal. In an opinion written by Justice William Gaston, the Supreme Court reversed Will’s conviction — holding that, if a free man was entitled to the defense of self-defense or to a lesser charge of manslaughter, then the same analysis should apply to an enslaved person. This was a step forward. It moved away from Justice Thomas Ruffin‘s earlier opinion in State v. Mann, in which Ruffin seated his reasoning on the nature of slavery, while Justice Gaston, four years later, focused on Will’s humanity, not his legal status as property.

Will’s case is recognized as a landmark. And so, on June 10, 2017, a historical marker is erected where his case began, at 275 New Hope Church Road in Battleboro, North Carolina.

Guilford College president makes brave decision, teams undefeated after

guilford_college_fernandes_college_boardGuilford College President Jane Fernandes recently posted on her blog a dynamite note titled “Moving from Safe to Brave.” It mirrored her remarks as a featured speaker at the 2017 Higher Ed Colloquium in Florida, a national program of the College Board.

That post puts me in mind of an earlier Guilford leader who chose “brave” over “safe.”

In the period immediately after Lincoln called for troops, “trouble and perplexity were in the air” at Guilford College and in North Carolina. War was coming. Many Quakers and others who opposed secession were leaving. At that point, New Garden Boarding School (later Guilford College) was full. Nereus Mendenhall was its Superintendant and the principal teacher. But Mendenhall owned property in Minneapolis and his brother-in-law urged going there. For Mendenhall, this promised “worldly advancement and the accumulation of wealth.” And, as a pacifist and abolitionist, he had concerns about raising his family in slave territory.

So, he and his wife, Orianna, packed their bags for Minnesota.

On the day before they were to depart, they went over to the school to close up. But when it came to closing the school and leaving the students, Nereus could not do it. Their daughter Mary later recalled both her parents standing at the library, weeping. Nereus said, “Orianna, if I feel that the Lord requires me to stay, is thee willing to give up going and stay here?” Orianna said, “Certainly, if that is thy feeling, I am satisfied to stay.”

So Nereus and Orianna made the brave choice, certainly not the safe one. They stayed.

Opposed to secession, opposed to slavery, and opposed to war, Mendenhall kept New Garden/Guilford open throughout the war. During that time, people associated with the College often gave food and shelter (refuge) to deserters, bushwhackers and escaped slaves.

Guilford was “the only school in the South that was not closed during the war or during reconstruction.”

From this evidence, it may be deduced that Guilford’s athletic teams must have gone undefeated during that period.

Brave. Undefeated.

The Mendenhall home, The Oaks, is for sale now by Preservation North Carolina and likely to be demolished.

Guilford College president meets with Congress, President

nc-capitol

NC Capitol

War came and North Carolina Quakers were in a bad spot. They were abolitionists and unionists and pacifists to boot.

A bill was introduced in the North Carolina legislature to require that every free male over sixteen years old must publicly renounce allegiance to the government of the United States and agree to defend the Confederacy. The penalty for noncompliance was banishment.

It was a bridge too far. Former governor William Graham, who Bishop Cheshire said was one of the greatest men North Carolina ever produced and who represented North Carolina’s traditions of progress and moderation, spoke against the bill. He said it would be “a decree of wholesale expatriation of the Quakers.” “The whole civilized world would cry ‘shame,’” he said.

And so the bill was defeated, although “not so the hostility” from which it came. “Hatred and malice … fell with much violence” upon North Carolina Quakers.

capitoleep357picf-auto

Virginia Capitol

Legislation was proposed at both the State and Confederacy levels to provide exemptions from military service for Quakers and other “peace churches.” North Carolina Quakers recruited a committee to go to Richmond and make their case to the Confederate government.

Among the five-person committee was Nereus Mendenhall, the leader of New Garden Boarding School (later Guilford College) in Guilford County. He was “well known as one of the most learned men in North Carolina and a prominent educator.”

At Richmond, they met with a committee of the Congress. It was summer and they met at night outside on the grounds of the Capitol. One of those present said later,

It was the feeling of the delegates that Nereus Mendenhall was preeminently the man to present our case. It seemed impossible, almost, to secure his consent, owing to his natural reserve. Finally, [the chairman] said: “Gentlemen, the Committee is ready. Please state your case.” A dead silence followed. In a few minutes, fearing the committee would not understand or appreciate our holding a silent Quaker meeting then and there, I reached over and gently touched Nereus. He arose slowly, and when fully aroused and warmed up to his subject I thought I never heard such an exposition of the doctrines of Friends on the subject of war.

Later, the group visited Jefferson Davis, President of the Confederacy. Davis received them courteously but remarked that he “regretted to learn” there was a group of people who were not willing to fight in defense of their country.

A statute was passed that exempted Quakers and members of other peace churches from military service upon either payment of money or rendering noncombatant services. A participant in the process said that

To Nereus Mendenhall’s argument, perhaps more than any other one thing, was due the passage of this law.

In later times, some Quakers refused to serve and refused to make payments or perform noncombatant services. Some of them were punished severely.

Mendenhall’s home, The Oaks, was located on what is now NC 68 between Greensboro and High Point in Guilford County. It is for sale by Preservation North Carolina and may be destroyed.

mendenhlll

Nereus Mendenhall

nereus_mendenhall_the_oaks-16

The Oaks

Guilford College president charged with possessing subversive literature, house for sale

nereus_mendenhall_the_oaks-16Circulating anti-slavery literature was a crime punishable by imprisonment and a whipping in North Carolina in the years just before the Civil War and The Impending Crisis by Hinton Rowan Helper was the very definition of such literature.

Nereus Mendenhall, the Superintendent (president) of New Garden Friends School (which became Guilford College) and himself an abolitionist, owned multiple copies of The Impending Crisis which he made freely available to others. So Greensboro authorities determined to seize his books and put him in jail. They sent out a posse for that purpose.

But Mendenhall’s brother Cyrus, a Greensboro lawyer, businessman and the Treasurer of the North Carolina Railroad, had learned of the plan and sent word to his brother. More to the point, he also sent word to his to his sister-in-law, Orianna Mendenhall. Upon receiving the news, Nereus sat stolidly in his chair and refused to take any action. He continued reading. No so, Orianna. When she saw what Nereus was doing, she gathered up the books and threw them into the fire. Arrest averted. (Go Orianna!)

nereus_mendenhall_the_oaks-21
nereus_mendenhall_the_oaks-19Mendenhall’s home and Orianna’s fire were on a farm known as The Oaks between Greensboro and High Point out on what is now NC Highway 68. The house where Mendenhall received his brother’s message and the room in which his books were burned are now for sale by Preservation North Carolina. The house was built in 1830 and is an architecturally significant example of a Quaker Plan house. If not sold, it will likely be destroyed.

Window into NC lawyers in the 19th Century, Kemp P. Battle’s memories

Kemp Plummer Battle

Kemp Plummer Battle

At the second-hand bookstore in the Raleigh-Durham airport the other day, I came across a copy of Memories of an Old-Time Tar Heel, the compendium of Kemp Plummer Battle’s memories and anecdotes. Himself a lawyer (also a railroad president, university president, Edgecombe County farmer, and more), so were his father, William Horn Battle, and others in his family.

So Battle’s memories include many a lawyer story. Those stories are windows into the North Carolina Bar in the mid-nineteenth century. Below is a good one that shows lawyers and also Battle’s densely-packed style.

Judge Thomas Ruffin, the younger, had probably the ability of his father. In his younger days, he was not a hard student of legal principles, although he gave his whole mind to the trial of his cases. Indeed, so eager was he for victory that there were accusations of sharp practice. But I personally had no evidence of this. On the contrary, when thrown intimately with him for a day or two once, I was struck by his high-toned principles. I remarked to one of the best of men, his law partner Judge Dillard, “Ruffin is a lawyer who can be relied on for utter fairness.” Dillard smilingly said, “He is a rascal like the rest of us.” He meant only that in the hot excitement of trials he might take positions which non-lawyers might think not strictly fair. But it should be remembered that lawyers giving their minds to the cause of their clients, studying mainly the arguments for their side, necessarily become biased. It is impossible for them to act as impartial judges. This is illustrated by what Judge James C. MacRae told me about a trial over which he presided. A certain lawyer made a speech advocating a construction of the law which did not meet the judge’s approval and he said, “Surely you do not claim that to the be the law?” “Well, Judge, I can’t say that I do, but I did not know how it would strike your Honor.”

Come to think of it, this practice may have survived the 19th Century.

Organizations, including law firms — the new “defining archetype”

Knowledge project height_250_width_250_tkp

“The defining archetype of the new world of organizations is no longer the middle manager but in fact the free agent.

Venkatesh Rao said this in the Podcast, “Venkatesh Rao on the Three Types of Decision Makers, Mental Models, and How to Process Information,” at The Knowledge Project.

Law firms planing for the #Social Era should start from this insight, which, as MidLaw has been saying, throws back to 19th Century models.

The ascendancy of free agents goes to the core of why the mid size is the right size for law firms. Rightly ordered mid size firms have no middles, and they are best suited to foster autonomous professionals.

New members of law firms, be wary of settling into roles that are too narrowly focused on your firm’s internal hierarchies or structures. Focus on external networks.

 

 

Strange karma down on the Edgecombe County line

KerouacWhat is it about the Nash-Edgecombe County line?

There is a strange energy there.

The line was put where it is to gerrymander. The legislature moved it east, probably to dilute the percentage of African-American voters in majority-black Edgecombe.

They moved the line over to follow the tracks of the Wilmington and Weldon Railroad. Those tracks had been put where they are after the Wilmington railroad organizers couldn’t find enough investors in Raleigh to run the tracks to Raleigh, so they turned instead to Tarboro investors and an Edgecombe County route toward the Roanoke River.

A remarkable group of lawyers have lived up and down that line: the first African-American lawyer in North Carolina; the second African-American congressman; the founder of the UNC Law School; three chief justices of the North Carolina Supreme Court. They lived in Enfield, Whitakers, Battleboro and Rocky Mount.

Later, one of the most eminent musicians of the Twentieth Century, and also an icon of the beat generation came off the same line in Rocky Mount.  Both started on the Edgecombe side. Thelonius Monk and Jack Kerouac, a couple of Edgecombe County dudes.

Something strange in the neighborhood.

Kerouac’s story may tell a broader tale.

When he lived on Tarboro Street, Jack Kerouac had a dog. His biographer says that dog was “Jack’s only companion in Rocky Mount to whom he could relate”. The dog was kept in the yard yoked to a chain and he cried all day. Kerouac asked his brother-in-law, “How would you like to be tied to a chain and cry all day like a dog?” Kerouac wrote in one of his books, “If you don’t heed the cries of a dog on a chain, how do you expect God to heed your cries?”

With that, Kerouac decamped from Edgecombe and took his dog to live on the Nash County side of the line.

Strange karma down that line.

 

 

 

The professions, including the legal profession — the future of them?

SusskindThe professions are not immutable. They are an artefact that we have built to meet a particular set of needs in a print-based industrial society.

The Future of the Professions, How Technology Will Transform the Work of Human Experts, Richard Susskind & Daniel Susskind, page 3.

And so, where should we professionals pitch our tent for the future?

The Susskinds take aim not just at lawyers, but also at doctors, professors, architects, accountants, business consultants, appraisers, preachers. The future of the professions, they say, is not in giving clients access to knowledge — not even in giving advice and judgment — respecting data, information, tradition, precedents. All of that has its roots in the once-but-not-future print-based society.

Professionals: middlemen between clients and knowledge? In greatest demand when information is hard to get at.

As technology advances, professionals are coming in line (like other middlemen before them) for fundamental changes in their roles. The information technologies are, if nothing else, making knowledge and advice more and more easily accessible. Eliminating the middleman.

New professionals, be wary of settling into career niches that are too narrowly focused on purveying knowledge.

Henry Frye’s portrait at Supreme Court alongside Thomas Ruffin’s

HenryFrye

Brooks Pierce photograph of Henry Frye

Henry Frye’s portrait was unveiled at the North Carolina Supreme Court last Tuesday afternoon. It will be hung in the courtroom, as portraits of every other North Carolina Chief Justice have been since Chief Justice Ruffin’s was put up in 1858.

Chief Justice Thomas Ruffin was among the most distinguished North Carolinians of his day. He was a jurist of the first rank. Authorities such as Chief Justice William Howard Taft and Justice Felix Frankfurter ranked him as a pioneer in adapting the English common law to the quasi-frontier conditions in the United States.His decisions were followed more than any others by the southern and western courts. Roscoe Pound rated him one of the ten foremost jurists in the United States.

Mathew Brady photograph of Thomas Ruffin

Mathew Brady photograph of Thomas Ruffin

Today though, Justice Ruffin is most often remembered for his opinion in State v. Mann (1829), on the incidents of slavery. In short, he concluded that a slaveholder was not liable for abusing an enslaved person and was within his rights to beat a slave savagely without cause. Contemporary scholars have concluded that Ruffin, himself a slaveholder and at one time a slave trader, was actively seeking to protect the institution of slavery in State v. Mann and other opinions, and was, in his personal life, a cruel slave master.

Justice Ruffin’s is the earliest portrait in the courtroom. Justice Frye’s will become the latest.

Speakers last Tuesday (Chief Justice Martin, Governor Hunt, US Court of Appeals Judge Wynn, and Brooks Pierce partner, Jim Williams), celebrated Chief Justice Frye as one of the most distinguished North Carolinians of his day, and also a first rank jurist.

Henry Frye is North Carolina’s first African American Chief Justice. He was the first African American member elected to the North Carolina General Assembly in the 20th Century. He is a champion of voting rights for African Americans and disenfranchised people; and Tuesday’s speakers universally affirmed that, in his person, Henry Frye is a gentle man.

Esse quam videri. Ruffin and Frye.

 

Supreme Court of North Carolina

DSC_0587

Meacham flubbed opportunity — Andrew Jackson practiced law in Greensboro before he moved to Tennessee

JacksonSpeaking at the Guilford College Bryan Series in Greensboro this week, Jon Meacham commented on Andrew Jackson, about whom Meacham has written a Pulitzer-Prize-winning biography. “Sorry,” he said to the Greensboro crowd, but “Jackson was a South Carolina native who settled in Tennessee.”

Boy, did Meacham miss an opportunity. For two years before he left for Tennessee, Andrew Jackson lived and practiced law virtually on the spot where Meacham was standing as he spoke those words.

Jackson got his legal education clerking in Salisbury then moved to Martinsville, a now-extinct town in Guilford County (essentially, Greensboro), where he was first licensed to practice law. Later, he moved from Guilford County to Tennessee with Judge John McNairy of Horsepen Creek (now also part of Greensboro). McNairy was the first native-born lawyer licensed in Guilford County, and McNairy descendants still practice law in Greensboro, including one at Brooks Pierce McLendon Humphrey & Leonard. Both McNairy, a federal judge, and Jackson became leading figures in Tennessee.

Meacham, himself a Tennessee native and resident, missed a golden opportunity to pander to his Greensboro audience in the course of an otherwise excellent presentation focused mostly on his new biography of George H.W. Bush.