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.