Cornwall locates in Harlan
With the exception of a few counties
in western Kentucky, no official survey was ever made
of the state. In the unsurveyed portion grants
for land issued by the Commonwealth varied in size
from a few acres to as many as two hundred thousand;
and called for natural objects as beginning and boundary
corners.
The result of such a lax system was
that often the same boundary was covered by several
grants; and the senior grant held the land.
Many grants were so indefinite of
description, the beginning corner calling for certain
timber or a large stone in a heavily timbered and,
in sections, rocky country, as to be impossible of
identification or location. Other grants were
so poorly surveyed as to be void for uncertainty and
yet other boundaries were claimed by squatters who
held by adverse possession against any paper title.
A person owning the paper title to
a thousand acre boundary traceable to the Commonwealth
without break or flaw, might not be the owner in fact
of a single acre of land; as the whole boundary might
be covered by senior grants or the natural objects
called for, impossible to find.
The only way to be assured of a good
title was to make a careful abstract, following that
up by an actual survey and obtaining from any person
in possession a written declaration that their possession
and claim was not adverse to the title and claim of
your vendor.
The public records were imperfectly
kept and indexed; which made Cornwall’s work
for the company a series of petty and tiresome annoyances.
Two weeks after his arrival the Harlan
Circuit Court convened. He was immediately put
into harness and called upon to assist in the trial
of several important ejectment suits.
The first week of the term was taken
up with criminal business. There were three murder
cases, two of which were tried. The other cases
were petty in nature, the defendants being charged
with carrying concealed weapons, shooting on the highway
and boot-legging.
During the second week he assisted
in the trial of two ejectment cases, one of which
was lost. The third and most important case was
set for the fourteenth day of the term. It involved
five hundred acres of coal land worth more than twenty-five
thousand dollars; and though Judge Finch, local counsel
for the company assured him it would go over, he had
the company’s witnesses on hand and carried
to the court house the file, which included the title
papers and an abstract; but he had never examined
them.
When the case was called the other
side announced ready and they, not being able to show
cause for a continuance, were forced into trial.
While the jury was being empaneled
Judge Finch leaned over and whispered: “Go
ahead and help select the jury, the panel looks pretty
good. I have to leave.” He picked up
his hat and hastened from the court room, giving Cornwall
no time to object. In about twenty minutes the
jury was selected; Cornwall being assisted by one of
the company’s witnesses.
Then the court called upon him to
state his case to the jury.
“Judge I know nothing of the
case, Judge Finch was here a few minutes ago and was
to try it.”
“The case must go on; do the
best you can. The court will take a recess of
fifteen minutes to give counsel an opportunity to examine
the papers and familiarize himself with the case.
Mr. Sheriff, call Judge Finch.”
The case proceeded in the absence
of Judge Finch and the next day in the mid-afternoon
was completed; the jury returning a verdict in favor
of the company.
Cornwall ordered a horse and inquiring
the road to Judge Finch’s house, who lived on
Wallins Creek, rode out to see him. There he sat
on his porch, coatless, in carpet slippers, playing
cinch with three farm hands.
“Hello John, have a cheer, do you play cinch?”
“No, sir.”
(One of the hands) “Jedge, your
corn is mighty weedy, you better let us go back to
our hoeing.”
“By gosh! You are working
for me aint you; and if I want you to play cards instead
of hoe, that’s my business.”
“John, how did you come out with the Asher case?”
“The jury returned a verdict
for the company. Judge you certainly left me
in a hole running off like you did.”
“By gosh! the family was out’er
meal and I just had to go to mill for a turn.”
When one of the witnesses in the Asher
case told Mr. Rogers of the desertion of Cornwall
and the case by Judge Finch he said; “I suppose
we must depend upon Cornwall alone or get Mr. Low
or Judge Hall to help him. This company is through
with Finch. I certainly would have trembled in
my shoes, had I known Cornwall was handling it alone.
He’s a good boy. I hope the verdict won’t
make a fool of him. I think not, since he never
mentioned Finch’s desertion.”
Two days later court adjourned and
the following Monday the Bell Circuit Court convened.
The first case of importance on the docket was that
of the Commonwealth against Saylor for the murder
of Caleb Spencer.
Saturday afternoon, before Mr. Rogers
left for Hagan, Virginia on his way to Pittsburgh,
he said:
“Mr. Cornwall, go to Pineville
Monday and begin the abstracts of the Brock and Helton
titles to the land the company bought on Straight
Creek.”
Cornwall, a poor horseman, not yet
hardened to such exercise, broke the ride by traveling
down the river, Sunday afternoon and over Salt Trace
to the Saylor home; not wholly unmindful that Mary
was a good looking girl and agreeable company.
When he rode up, the house had a deserted
appearance. Mrs. Saylor and Susie were in the
barn milking. All the rest of the family had gone
to Pineville to be present at the trial, and Susie
and her mother were leaving the next day.
He lay awake half the night thinking
of Mary and his mother and listening to the penetrating
tones of a hoot owl far up the mountain side.
The house did not seem the same as the one at which
he had stopped less than a month before. He was
homesick and felt inclined to return to Louisville.
When he rode into Pineville at noon
the next day he found the hotel crowded with visiting
lawyers and litigants. The Commonwealth’s
attorney told him that the Saylor case was set for
hearing the following morning and that the prosecution
was ready for trial. He also learned that Saylor
was treating the case as a joke and had employed Squire
Putman to represent him for twenty-five dollars; which
he said was a big price for the services he would
or could render. “I can always depend upon
the Squire to help convict his client. It is a
mystery to the bar how he ever obtained license to
practice law.”
In the evening Cornwall visited the
other hotel and a large boarding house in search of
the Saylors but was unable to find any of them.
When the court house bell rang in
the morning he went over, and up the stairway, into
the court room, just as the judge called for motions.
Introduced by the commonwealth’s attorney he
was sworn in as a practicing attorney of the Bell
Circuit Court.
He expected to see some of the Saylor
family seated beyond the railing, but again was disappointed;
nor did he find them after a search through the corridors
and public offices. He then went into the county
clerk’s office and began making an abstract
of the Brock title.
At noon when he returned to the court
room they were in the trial of the Saylor case.
On the right sat Squire Putman and his client and behind
them, Mrs. Saylor, Mary and Susie.
Saylor and his counsel had an air
of easy confidence; Mrs. Saylor the set face and look
of an unhappy fatalist; Mary’s expression was
one of worried interest and sadness; Susie suppressed
an occasional sob.
To Cornwall the jury seemed a rather
unsatisfactory one, they looked bored and unsympathetic.
The panel was made up of business men of Pineville
and Middlesboro, who resented being kept from their
occupations at a busy season. They were new citizens
who had moved into the mountains since the development
of the coal fields and had little use or sympathy
for pistol toters or feudists.
There was one exception, Elhannon
Howard, Saylor’s neighbor. He sat in a
listless and inattentive attitude, probably thinking
of his patch of hillside corn or the Southdown ram.
Summing up the situation, realizing
how kindly and informally he had been received into
and entertained in the Saylor home, Cornwall regretted
that when refusing the fee of $25.00 he had not volunteered
his services in the defense. He would have done
so at the time, but supposed that Mr. Saylor would
employ competent counsel to defend him.
The trial was a short one. The
Commonwealth, in addition to making out its technical
case, proved threats on the part of Saylor and that
Saylor admitted the killing.
Saylor on the stand told the same
story he had told Cornwall. The defense then
introduced two witnesses, who swore that the deceased
had threatened Saylor; Spencer sending word by them
to Saylor that he intended to kill him; the squire
attempted to show by the doctor that when Spencer
was told by him that he could live but an hour or two,
the dying man had said: “I am to blame
for the trouble,” but the court excluded the
declaration from the jury.
The squire in making his argument
for the defense grew quite stentorian of voice and
excited in manner. He had a way of half stooping
until the long coat tails of his black frock coat
touched the floor, when he would suddenly spring upright
and exclaim: “Now, gentlemen of the jury,
wouldn’t you be danged fools if putting yourselves
in Saylor’s place you had not done as he did.”
In one of these paroxysms his coat
tail flapped to one side and hung pendant on the handle
of a six-shooter protruding from his hip pocket.
This explained to the jury why in midsummer he wore
a frock coat. They considered the pistol a silent
witness and protest against Saylor’s acquittal
and a clarion call to do their duty in upholding law
and order.
Shortly before six the jury retired.
They were out fifteen minutes and brought in the following
verdict: “We, the jury, agree and find the
defendant guilty and fix his punishment at three years
in the State penitentiary. Elhannon Howard, Foreman.”
When the verdict was read, the face
of the squire turned red with surprise. Saylor’s
face for the first time assumed a serious expression;
Mrs. Saylor burst into tears; Susie cried aloud and
hung to her father’s arm; Mary grew as pale
as death and her body shook as from intense cold.
Cornwall, who had come into the court
room during the squire’s argument and who, after
bowing to Mary and Mrs. Saylor, had taken a seat behind
them, came forward.
“Never mind, Mary, we shall
find a way to get him off. Let me go with you
and your mother to where you are stopping. I tried
to find you last night.”
The sheriff came forward and, taking
Saylor by the arm, said: “Come on, Mr.
Saylor.”
The woman kissed the condemned man
a hasty farewell. He and the sheriff went out
one door toward the jail; the Saylor family and Cornwall
another, walking up the street to old Pineville, to
the home of Mary’s aunt.
In the morning Mary and her mother
came by the court house and asked Cornwall to go with
them to the jail, as that afternoon they had to return
home.
It was a sad group that gathered in
the little jail parlor, while the jailer stood at
the door.
“Well, young man, I guess you
know more law than me or old Putman. I seem to
be in bad because I did not take your view and advice,
instead of hiring that cheap lawyer. We had only
Mary’s money; I did not want to sell or mortgage
our home, and if I had not killed Simpson, he would
have got me shore.”
“You may have a chance, Mr.
Saylor, with the Court of Appeals. I do not think
the court should have excluded Simpson’s dying
declaration; it seemed relevant.”
“I shorely hope so on account
of the old woman and the kids. Mary will lose
her school on my account; she can’t keep those
big boys quiet now. You look after my case for
me and write Mr. Rogers that I will sell his company
the home place.”
“Do not sell your place to pay
a fee to me. You can pay that after you are out.
Mary and I will attend to the costs of the appeal,
which will not be much, as the record is small.”
Saylor’s wife and daughter bid
him a rather stoical farewell, so far as tears and
talk were concerned, though their pallid faces indicated
the pain of separation was heartfelt. Mountain
women have not a fluent line of chit-chat, nor are
they demonstrative in their griefs.
They walked with Cornwall back to
the court house, where, after thanking him for what
he had done and expressing a wish to see him soon,
they left, returning home in the afternoon.
Cornwall sent Mr. Rogers the following
telegram: “Saylor convicted, three years
penitentiary. Offers Straight Creek land for thirty
thousand. Hope company can afford to pay thirty-five.
John Cornwall.”
He received this answer: “Land
worth thirty-five thousand, company will pay that
amount if title and survey hold three hundred acres.
H. M. Rogers.”
For the next ten days Cornwall was
very busy at Pineville. He found the paper titles
to the Brock and Saylor surveys perfect. The Helton
boundary necessitated a suit to clear the title to
about one-half of the survey. He filed a motion
for a new trial in the Saylor case, which the court
promptly overruled; then asked and was granted an appeal
to the Court of Appeals. The court stenographer
made a transcript of the testimony; a bill of exceptions
was filed and approved and within ten days after Saylor’s
trial and conviction; his appeal was formally filed
at Frankfort.