“How Often Must Justice Be Crucified

THIS IS A DRAFT SEMINAR PAPER – PLEASE DO NOT REPRODUCE OR CITE WITHOUT THE PERMISSION OF THE AUTHOR

“Upon What Principles is this Contest to be Conducted?: Law as a Mechanism of Power on Tennessee’s Frontier

Middle Tennessee State University

S.A. Martin

Legal dialect carries meaning that often reflects its cultural context. Colonists transplanted English Common Law to the new world and modified it over time to fit their needs. In Northampton County on Virginia’s eastern shore in the late seventeenth-century, colonists pushed the law in new directions to reflect their collective values and the realities of a colonial economy. From a single act of fornication between two members of opposing social classes, a series of lawsuits ensued that ultimately revealed how Virginia law evolved and its participants reworked the system for their own purposes. Magistrates manipulated law to maintain order, protect and enhance property, and safeguard reputations. They had constructed a legal system reflective of the tobacco economy and labor market upon which it was based.[1] A century later, colonists moved westward into present day Tennessee. They brought with them the diverse values and attitudes that had been the ingredients for creolizing the mother tongue in places like Virginia a hundred years earlier. The emergence of legal systems on Tennessee’s frontier, however, fell within a peculiar middle period in American history, after the Revolution and before the Jacksonian era. In colonial Virginia, the modified version of law not only reflected the culture but also allowed colonists to defer to the king while governing in their own interest. On the frontier, settlers did not defer to a king, but a nascent elite used the legal system as a mechanism to consolidate and maintain social, economic, and political power. Since Tennessee’s main attraction was land, men such as Judge John Overton primarily dealt with conflicts associated with land issues. Underlying their principles, however, lay social, political, and economic forces that ultimately shaped law on the frontier. In response to their attempts toward consolidation and secular authority, some settlers responded by disputing ambiguous land titles while others formed autonomous bodies of law within church communities, both challenging social and secular order.

Law was present on the frontier in the first wave of migration. With the Cumberland Compact, white settlers established a court system to handle their immediate needs.[2] As the population grew and land disputes increased, North Carolina established a more effective court system in its trans-Appalachian territory. North Carolina drew its power and authority vested in the county courts from England’s quarter sessions court in which Justices of the peace, appointed as individual magistrates by the governor, assumed responsibility in the county courts.[3] As North Carolina’s population moved across the Appalachians, the parent state instituted local courts in newly created and organized counties. When Davidson County was established in 1783, North Carolina legislators acknowledged that “a considerable Number of Inhabitants have settled on the Lands of the Cumberland River in this State…and it is represented that erecting a County to include the said Inhabitants, and appointing Courts to be held among them, would be very beneficial and advantageous.”^{^[4]} North Carolina ceded its territory, present day Tennessee, to the United States in 1789.^{^[5]} In May 1790, Congress organized the Territory of the United States South of the River Ohio and established that the territory’s government should be similar to that established under the Northwest Ordinance of 1787. In response to a geographic chasm that inconvenienced parties and witnesses who attended North Carolina’s Superior Court, lawmakers extended the court’s reach. As a result, the territory maintained its own Superior Courts in various districts established by the parent state. Nashville served as a legal hub for middle Tennessee, but satellite counties faced isolation from the appeals process established in the Superior Court in Davidson County.

In 1808, Tennesseans engaged in a tempestuous debate concerning the condition and future of the state’s judiciary. The tension erupted in a heated contest for and against the judicial change. As the conflict progressed, cultural and social variations involved in the debate pervaded the process. Moreover, diverse cultural influences complicate the discourse of judicial reform, particularly when common Tennesseans were the target of such propaganda. A host of actors from a variety of communities engaged in the conflict, acting out the cultural variations present on the frontier through the most effective media at the time, newspapers.[6] The characters of the debates assumed identities tied directly to Shakespearean drama, classical antiquity, and socio-economic personalities to present their views. These personalities carried meaning, often literary, but the substance of the writings reveals realities Tennesseans faced on the frontier. The characters of the debate employed creative techniques to demonstrate their views and situations to the public as effectively as possible. In the process, they exposed the influence of diverse cultures on their own identities in the debate over the judiciary. They articulated real problems, however, and represented not only a broad range of ordinary Tennesseans, but numerous lawyers and judges on the frontier. This atmosphere was a product of the diversity of frontier legal culture and underlined the discourse of reformation.

The protagonist of the debate, Sir John Oldcastle, attacked the existing system’s efficiency, arguing that it was oppressive and denied the poorer, common man his basic liberties. Sir John was actually the legislative hopeful Thomas Hart Benton who was seeking election for the following year. Therefore, many of his articles were polemical political writings about specific flaws in the judicial system and how they affected Tennesseans in order to move readers to action. Within the artistry, however, lay a historical figure, measures, and ideas that formed the content of his writing. The identity of the real Sir John Oldcastle embodied both historical significance and literary qualities, which Benton used to propagate his ideas.[7] Following closely to the style of England’s Sir John Oldcastle, Benton created satiric portraits of the existing system and juxtaposed them with objective flaws he perceived of the judiciary. In rhetorical eloquence, Benton argued that the system was incapable of administering efficient justice in the most democratic way but told the people it was up to them to change their plight. In a fashion similar to Sir John Oldcastle himself, Benton related Tennesseans to “ the slaves of a king, who are always grumbling about their master’s tyranny, but have not courage to cut off his head.”[8] Benton, therefore, incorporated English culture, history, and literature in a way that revealed his personal values and assumptions of law. Although his elevated cultural qualities escaped most Tennesseans, many of his ideas mirrored those of a broad frontier constituency. Oldcastle characterized this system as oppressive for the common Tennessean and claimed to represent the state’s socioeconomic groups, stating “I hear the farmer, the merchant, the mechanic, and even the lawyer himself, complaining of the delays, the expences, and the uncertainties of our legal proceedings,” and “ I take down notes on what they say, write a commentary on their complaints when I return to my room, and then send it to the press for publication.” [9] Seemingly echoing the voices of the frontier, Benton further contended that the district courts also failed the common man,

Justice should be brought home to the door of every man; and the centre of his own county is the place where he has a right to demand it; if he is dragged out of his own county, he is oppressed, and has a right to complain. Rich folks may not feel this oppression, but to farming men it is a serious calamity. Besides the loss of time, it takes money out of their pockets for their personal experiences, which they can but illy spare.[10]

According to the author, the existing system “affords a great advantage to a rich man over a poor one; as his heavy purse will enable him to exhaust the pocket of his poor opponent, and break down his spirit by carrying him perpetually from one jurisdiction to another.”[11] In fact, he argues, “a variety of courts are to a rich litigious scoundrel, what a variety of redoubts and entrenchments are to a besieged garrison; as one is taken, he retreats to another, and there sets up a new defence; and so keeps on till his adversary is worn out, and unable to pursue him any farther.”[12]

Benton proposed specific changes in 1808, of which the legislature eventually adopted, largely because of his direct contribution to the committee designated to reform the judiciary. Although Benton had worked as a lawyer, he unaligned himself with judges who opposed change. He claimed to respect those who administered justice but argued that the system was inherently flawed. Asserting that in the state’s county court system, citizens of the community held positions, appointed without any qualifications as to legal knowledge, and then were sworn to decide according to the law. In one article he expressed his discontent with the system while exposing a real problem of frontier legal organization,

A court constituted in this way is evidently fit for nothing else but to arrange the county affairs; and yet the legislature has given them jurisdiction over almost every action at common law; what is worse, a crowd of attornies are admitted to plead before them. How awkward must a court feel itself under such circumstances; a knotty case before them which the oldest Judge would be puzzled to decide, beset by a host of attornies paid to lead them wrong, and unable to rely on its counsellors or on its own understanding. One lawyer reading latin; another Norman – French; a third making commentary upon an old British statute that has been obsolete 500 years. In such a congregation how often must Justice be crucified?[13]

Benton proposed a system to accommodate the ordinary citizen.

In June 1808, Benton briefly outlined the system he had adamantly promoted in his previous writings. The first change addressed the absurdities of appointing men to administer the laws who did not know what the laws were. Secondly, he maintained that it was oppressive on the people to remove their law suits from the county in which they originate to be tried in some distant county. His third point addressed the problem of suits being abated and kicked out of court for mistakes in the pleader. Fifth, Benton claimed that the welfare of the citizens of the state of Tennessee required a reformation in the judicial system, so as to give a superior court of law and equity jurisdiction to each county of the state. The final proposal inferred a liberally constructed statute to authorize amendments in every stage of judicial proceedings where errors have been committed.[14] He contended that Tennessee law was defective because every rank of the profession quoted the authority of British law without considering the difference between governments and without regarding the fact that the opinions of British judges was framed upon the view of hundreds of different statutes.[15]

Benton’s most notable opponent in the debate, an anonymous author who called himself Junius, argued against change. The name refers to the English political author known only as Junius who wrote numerous letters to the London Public Advertiser from January 1769 to January 1772, attacking George III and his ministers. Employing literary techniques such as scandal and invective as his major tools of attack, Junius avoided argumentative writing styles. The identity of Junius has never been established, but the political beliefs, handwriting, and life of Sir Philip Francis parallel the beliefs of the anonymous English author.[16] The anonymous Tennessean who adopted the Junius legacy creatively borrowed talents from the British author and claimed a popular position associated with the original Junius, one that condemned George III. By placing Benton alongside the former English monarch, Junius attacked Benton’s vision on the grounds of oppression, tyranny, and elitism. The grand irony of Junius’ claim, however, is that he adopted an English identity, albeit a rebellious one, for the purpose of shaping pubic opinion on Tennessee’s frontier, a region that had largely adopted Jeffersonian principles. Junius wanted to maintain the existing system and noted on April 5, 1808, as to the adoption of North Carolina’s system, “I shall not be governed by either her wisdom or policy in this case because I believe there was no circumstance to warrant such a change.”[17] Junius also uplifted English legal culture as sufficient precedent for Tennessee, a direct challenge to the views of Benton. Responding to Benton’s attacks on the use of English law, Junius states, “as to the exclusion of British books from our county courts, I believe this will not be done until we have accumulated at least as much learning and common reason in the science of law, as that nation is so justly celebrated for.”[18]

As the debate evolved, the views presented by these representatives manifested in a swarm of petitions to the state legislature for change. The Grand Jury of Smith County, in response to public grievances, called for reform and published its petition in the Impartial Review.[19] Other counties such as Bedford and Rutherford followed, all agreeing that the existing system was a hardship on citizens of the state.[20] In November 1809, the legislature, led by the influence of Thomas Hart Benton, changed the system and abolished the Superior Court structure. They divided the state into five circuits and authorized a single judge to hold court twice a year in each county within the circuit.[21] Benton’s campaign for judicial change not only resulted in his election to the state legislature but also safeguarded his reputation as a man of the people. By drawing from popular democratic rhetoric, he appealed to those Tennesseans who did not have access to quick and speedy justice.

The debate embodied the realities of legal pluralism, multiple ideologies, and dialects, which pervaded the state’s formative legal period. As ways of thinking collided, the state sought to consolidate its power into a tightly knit legal machine of frontier elites. John Overton served as one of the most notable figures of this movement. Overton had moved to the Southwest Territory to practice law in 1791. Allying himself with Andrew Jackson, he maintained a political prestige that secured his role as a prominent attorney and later judge. Overton followed the long-standing tradition of reporting his opinions on the procedures and decisions of frontier legal disputes. Reaching back to 1791, he formally established legal precedents and thoughts by interpreting eastern models. These texts provided judges with a vehicle for setting precedents, interpreting laws, and promoting ideas. Through official reports, judges related their thoughts and perceptions of aspects of the diverse legal systems present on the frontier. He continued this tradition during Tennessee’s formative period but only included those opinions he deemed important and necessary. His opinions usually resulted from procedural discrepancies that required interpretations or modifications of eastern legal standards.

Tennessee’s earliest bound judicial opinions were products of the diversity of eastern legal cultures on the state’s frontier. Judge John Overton’s Tennesssee Reports, or Cases Ruled and Adjudged in the Superior Courts of Law and Equity, and Federal Courts for the State of Tennessee provided the legal community with the first published volumes of any legal opinions exclusive to the state’s frontier legal system. Although these texts were nothing new to the legal world, they exposed the values and attitudes that underpinned the authors of Tennessee’s legal dialect. There was obviously a demand for an organized compilation of the state’s historical legal opinions by his peers. In an advertisement, found in the beginning of Overton’s Tennessee Reports, the editor, Thomas Emmerson, proclaimed, “in compliance with the earnest and repeated solicitations of many gentlemen both of the bench and bar, [the Editor] now submits a portion of them to the public.”[22] However, as a part of the state’s formative legal system, this method did not only apply to the lawyers and judges. Emmerson’s advertisement insinuated the importance of these opinions within society,

In truth, after all that has been said in writings respecting the security of rights from constitutions, and laws made in pursuance of them; experience proves, that in free governments, one of the best preservatives of the rights of the people, is the publication of the decisions of the supreme judicial tribunals of the country. It serves as a check and guide, both to the judge and the citizen.[23]

These opinions served both pragmatic and socio-cultural purposes. Beyond practicality, one must question the reasons his colleagues demanded this formal medium. In essence, Overton’s position as author substantiated his power within the legal world.

Land entanglements exhausted the legal system and plagued the frontier courts. Therefore, a look at how the participants handled these pluralistic legal ideas on the frontier is critical to understand the mentalities of Tennessee’s frontier legal actors. The judges relied upon eastern precedents and laws to solve these problems. Land was a driving force for people settling into the region past the Appalachians.[24] Therefore, the legal system was forced to deal with inconsistencies, problems, and challenges of defining land laws. As a result, the judges struggled to interpret past precedents from Virginia, Kentucky, North Carolina, and England and apply them to their own legal system. The subsequent intermingling of ideas shaped Tennessee’s frontier legal culture into a distinct product that derived from aspects of the several models available. As judges attempted to discern what should and should not apply to their needs on the frontier, they participated in defining aspects of the legal system. These judges, on a case-to-case basis, set precedents according to the people’s needs. Eastern precedents heavily influenced their actions and understanding of how the system should deal with land disputes.

Quite possibly the most revealing account of the problems and challenges of legal pluralism and the realities of land entanglements, Philip’s Lessee v. Robertson (1815) provides an intimate look at the frontier system at work. But it also illuminates some of the consequences of westward movement. In Philip’s Lessee Overton did not simply re-examine a previous decision. He analyzed the court’s decision, and in twenty pages, Overton’s longest opinion, he traced the history of Tennessee land law and the dynamics of its evolution. This single case illustrates the socio-political dynamics of frontier land within the state’s legal system. Overton’s opinion was riddled with assumptions that not only reveal the dimensions of such a powerful legal mind but also foreshadowed the often inconsistent democratic impulses associated with the Jacksonian era. Overton allied himself with Andrew Jackson upon moving onto the frontier in the 1790s. Jackson later served as the contradictory figure for the “democratic’ surge beginning with, or just prior to, his ascendancy to the presidential post. Overton, also a member of the frontier elite, embodied similar characteristics that are evident in his writing. Tennessee Reports are, in essence, his “opinions” and precedents for future adjudication, so a deeper understanding of the assumptions on which he based them is relevant. When referring to “vacant lands,” he meant lands not inhabited by white settlers. The language he used further empowered an upper class that had settled the region without clear titles while simultaneously stripping their power based on prestige. His opinion also presupposed the existence of any legal alternative, but churches often handled disputes over land. Furthermore, his opinion assumed that ordinary settlers could leave their homes, farms, and families and travel to Nashville for the appeal process. As one of the most influential legal actors in the state, Overton modified English legal dialect to sustain a frontier landed aristocratic tradition, masked by “democratic” rhetoric, but he also codified the legitimacy of white settlement that later justified Native American displacement.

In 1815, John Overton found himself in the middle of a transition, one that was arguably a continuation of Jeffersonian political culture or the opposite, something different. Located between two traditional demarcations in American history, the Revolution and the Jacksonian era, historians have wrenched out the similarities and differences, but one constant seems consistent. Law was inevitably tied to politics, and opinions like Overton’s expressed the influences of Jeffersonian republicanism while anticipating the inconsistencies of Jacksonian democracy. His opinion on frontier land entanglements in Philip’s Lessee serves as a representation of such insecurities and struggles over power and principle. Therefore, such a narrow deconstruction of Tennessee law qualifies its importance in the sphere of legal culture.

The case Philip’s Lessee v Robertson concerned a curious situation in which a tenant, Robertson, disputed the title of his landlord, Philips. Philips sought redress from Overton in the Supreme Court of Errors and Appeals. The original case in the lower courts was an action of ejectment commenced by the plaintiff, Philips, against the defendant, Robertson. The plaintiff produced a grant founded on an entry by Redmond D. Barry for one thousand acres of land near Stones River in Rutherford County, Tennessee. The defendant produced a grant for two hundred and forty acres, part of the one thousand acre tract, older than plaintiff’s but younger than his entry. The issue thus far is the question of older versus younger entries, despite the time in which the individuals received their grants. Therefore, receiving a grant was not sufficient for obtaining clear title to the land, and a formal entry should have been made to secure the land. Overton further relates that it appeared that the tracts were surveyed soon after the entries were made, or before, and that the lines of those surveys were notorious in the neighborhood. In 1806, before the plaintiff obtained a grant, he settled Robertson on the one thousand acre tract, which he then claimed to own under a verbal agreement. According to their “agreement” Robertson would remain on the land for five years as his tenant, make improvements, and deliver the place to the plaintiff at the end of his term. Essentially, Philips claimed land based on a grant that he never entered and contracted Robertson to live on the land under a verbal agreement. After Robertson learned that Philips had never formally entered the land, he made his own entry of the property they had originally agreed upon for tenancy. The lower courts had rejected Philips’s verbal agreement and ruled in favor of Robertson’s claim. Philips, however, appealed to the Supreme Court, and the subsequent contest embodied the complex realities of land entanglements on the frontier.[25]

Overton’s legal dialect reveals currents in Tennessee legal culture that underlined his opinion in this case. The organization of his opinion proceeded with an historical evaluation of the evolution of land law and the meaning of past legal dialects. Terminology carries meaning, and Philips’ Lessee serves as an example in which a prominent legal actor applied words to accommodate social, political, economic, and cultural realities on the frontier. Ultimately, the issue in the case lay with the wording of the defendant’s and the plaintiff’s claims. Tennessee adopted many of its legal practices and general laws from North Carolina. In the practice of North Carolina, entries were considered special or vague but not as notorious. The difference, however, between specialty and notoriety is important. A special entry relies on the inclusion of, for example, a beech tree marked with certain letters on the waters of a certain body of water. A notorious entry rests with the knowledge of the people in the community or neighborhood. These statutes gained meaning as more prominent members in various communities claimed notoriety based upon personal prestige and social prominence. Overton further explained that in North Carolina, notorious and special became synonymous and convertible over time and transferred onto the Kentucky frontier. North Carolina followed a tradition closely tied to English Common Law but modified it to fit their own needs. England’s right of possession evolved into notoriety and special in North Carolina. The convergence evolved into tradition, but the influx of legal minds onto the frontier from diverse backgrounds complicated Tennessee’s experience. Overton expressed this problem in Tennessee Reports,

Many of our lawyers, and a great proportion of the citizens of this part of the state of North Carolina, emigrated from either Virginia, or Kentucky, particularly the latter state. They brought with them their habits of thinking, and modes of expression, in relation to the acquirement of vacant land, so interesting to early adventurers.[26]

Overton’s acknowledgements lay in part with cultural differences. Members representing various cultures expressed their realities or experiences differently. They modified the mother tongue to reflect cultural peculiarities. This conflict played out on the frontier with the intersection of differing values and assumptions. Such was the case until 1806 when Tennessee obtained the right to perfect titles, and Overton assumed responsibility for resolving the discrepancies.[27]

John Overton struggled with plural legal ideas represented on the frontier. Meaning ascribed to legal dialect created misunderstandings and misrepresentations within the legal community and general society. Whether vague, special, or notorious, Overton faced a greater problem, consolidating and meting out the principles underlying legal currents in Tennessee,

Upon what principles is this contest to be conducted; is the question? Shall we adhere to the spirit and meaning of the structures of North Carolina, as interpreted by contemporaneous usage, modified by the practice of our courts previously to the year 1806, or shall we strike out some other plan, adopt some new system, disregarding the ancient land marks of the law? Shall we adopt the systems of Virginia and Kentucky? That will not do, because, by the decisions of this court, following the steps of our predecessors in the late superior courts, we have already far departed from them…For myself, I can say, that a strict adherence to the decisions of our courts, previous to the year 1806, will be observed so far as the principles of those decisions go, and when they fail, the statutes of North Carolina, on which our own rest, with contemporaneous construction, will be the guide, not the fluctuating passions and interests of society, which change with times and circumstances.[28]

Notoriety, vague, and specialty as ways of legitimizing claims to land had converged in North Carolina to mean the same thing, but Overton diverged from this practice. Vague, he argued, was “entirely defective in its description of locality, as to furnish no rational ground of belief that one place, more than another.”[29] Special, however, possessed properties the reverse of those that were vague and provided a more accurate way of determining boundaries. Overton further implied that notoriety carried meaning associated with an upper class who equated it with prestige and deference, and such practice, he argued, did not adhere to the “spirit” of the land.[30]

But he dismissed notoriety as a means for legitimizing claims and titles for reasons other than “democratic” ones. The use of notoriety did, in fact, evolve to reflect social distinctions in North Carolina and other states that used the term, but Overton and the class to which he belonged were better served by dismissing this type of entry on Tennessee’s frontier. As in the case of Philips’ Lessee, tenants and those renting land from lessors began entering their own claims on the land they were renting. Tennessee’s frontier was notorious for overlapping boundaries, multiple claims, and vague titles, so tenants took advantage of the situation. Overton expressed his concern,

In this country, the holding an enterer to strictness in his entry, as to notoriety, would be manifestly repugnant to the spirit of our laws. Instead of encouraging second or subsequent enterers to dispute with older ones, by requiring of them notoriety of descriptions, the remedy provided is that the younger enterer may remove his claim to other vacant land; it is not a contest, as in Kentucky…or who should be subjected to a total loss, which by equitable construction might reasonably induce notoriety or notice of boundaries in prior entries, but a contest for the first choice, or preemption, which is expressly by statute, secured to the first enterer or purchaser.[31]

Indeed, tenants could challenge property titles of their lessors under the implied meaning of notoriety. If collective knowledge in a community sustained their claim, the legitimate owner could lose the land. Perhaps Overton consciously sympathized with landowners’ predicament, but it is impossible to know for sure. His actions, however, support this conjecture. A lower class was challenging the social order. But he simultaneously stripped away the traditional meaning associated with notoriety that frontier elite had relied upon for deferential treatment. In the process, he reinforced the socio-economic positions of frontier landowners, but at a price. The meanings underlying legal dialect such as notoriety had traditionally solidified their positions in society. Out of necessity, Overton dismissed a word that had catered to large frontier landowners’ social prominence in order to counter challenges from a lower social rank.

John Overton modified an already creolized legal dialect to protect the positions of frontier social elites. The problems that resulted from vague titles manifested in challenges from a lower class to large landowners’ entries. Tenants disputed the titles of the land they rented and pressured their lessors to appeal to the courts. Robertson won his case in the lower courts and, essentially, took 250 acres from his lessor, Philips. The judges in the lower courts ascribed new meaning to notoriety, one that dismissed social status as a sufficient requisite, allowing Robertson to legally challenge his lessor’s claim. Philips, however, appealed to the Supreme Court, and John Overton overturned the judgment based upon a variety of principles. The most important was the idea of notoriety. To better serve the state’s frontier aristocratic tradition, Overton completely discarded the term in favor of specialty, which had become interchangeable with notoriety in North Carolina. By doing so, he sustained the power of landowners and reinforced their positions in society, despite the questioned validity of their original claims to land. Conversely, he weakened social elites’ claims based upon status, deference, and collective knowledge. Specialty ensured not only their property but their positions in society as prominent landowners.

BIBLIOGRAPHY

Manuscripts

Boiling Fork Church Records, Lincoln County, 1808-1861, Tennessee State Library and Archives [Microfilm]

Barton-Taylor Family Papers, Tennessee State Library and Archives [Microfilm]

Ebenezer Church Records, Maury County, 1805-1921, Tennessee State Library and Archives [Microfilm]

First Presbyterian Church Records, 1812-1967, Tennessee State Library and Archives [Microfilm]

First United Methodist Church Records, 1812-1943, Tennessee State Library and Archives [Microfilm]

John Overton Papers, Tennessee State Library and Archives, Nashville, Tennessee

Legislative Petitions, Record Group 60, Tennessee State Library and Archives, Nashville,Tennessee.

McCrory’s Creek Baptist Church, Davidson County, 1811-1816, Tennessee State Library and Archives [Microfilm]

New Hope Baptist Church Records, 1809-1912, Tennessee State Library and Archives [Microfilm]

Rock Creek Primitive Baptist Church Records, Maury County, 1810-1851, Tennessee State Library and Archives [Microfilm]

Salem Baptist Church Records, 1807-1937, Tennessee State Library and Archives [Microfilm]

Wilson Creek Primitive Baptist Church Records, 1804-1945, Tennessee State Library and Archives [Microfilm]

Newspapers

The Carthage Gazette and Friend of the People

The Clarion

The Impartial Review and Cumberland Repository

The Knoxville Gazette

Published Primary Sources

Cooper, Kenneth S. The Mind of John Overton, with Passages from His Legal Opinions and Other Writings. Nashville, TN: Travellers' Rest Historic Museum House, 1987.

Historical Records Survey. History of Zion Church, 1806-1858. Knoxville: Works Progress Administration, 1938.

Jackson, Andrew. The Legal Papers of Andrew Jackson (Knoxville, 1987), James W. Ely Jr., and Theodore Brown, Jr., eds.

Meigs, Return J. Digest of All the Decisions of the Former Superior Courts of Law and Equity, and of the Present Supreme Court of Errors and Appeals, in the State of Tennessee. Vol 1. Nashville: W.F. Bang & Co., 1848.

Meigs, Return J. Digest of All the Decisions of the Former Superior Courts of Law and Equity, and of the Present Supreme Court of Errors and Appeals, in the State of Tennessee. Vol 2. Nashville: W.F. Bang & Co., 1850.

Overton, John. Tennesssee Reports, and Cases Ruled and Adjudged in the Superior Courts of Law and Equity, and Federal Courts for the State of Tennessee, Commencing in November Term, 1791, and ending in May, 1813. Vol. 1. Columbia, MO: E.W. Publishing Co.

____________. Tennesssee Reports, and Cases Ruled and Adjudged in the Superior Courts of Law and Equity, and Federal Courts for the State of Tennessee, Commencing in November, 1802, and ending in June, 1817. Vol. 2. Columbia, MO: E.W. Publishing Co.

Scott, Edward. Laws of the State of Tennessee. 2 Vols. Knoxville, 1812.

Secondary Sources

Appleby, Joyce. Capitalism and the New Social Order: The Republican Vision of the 1790s. New York: New York University Press, 1984.

_____________ Inheriting the Revolution: The First Generation of Americans. Cambridge, MA: Belknap Press of Harvard University, 2000.

_____________ Republicanism and Liberalism in the Historical Imagination. Cambridge, MA: Harvard University Press, 1992.

Abernethy, Thomas Perkins. From Frontier to Plantation in Tennessee: A Study in Frontier Democracy. Chapel Hill: University of North Carolina Press, 1932.

Aron, Stephen. How the West Was Lost: The Transformation of Kentucky from Daniel Boone to Henry Clay. Baltimore: Johns Hopkins University Press, 1996.

Bailyn, Bernard. The Ideological Origins of the American Revolution. Cambridge: Belknap Press of Harvard University, 1967.

Beeman, Richard R. The Evolution of the Southern Backcountry: A Case Study of Lunenburg County, Virginia, 1746-1832. Philadelphia: University of Pennsylvania Press, 1984.

Boles, John B. The Irony of Southern Religion, The Rockwell Lecture Series, Vol. 5. New York: Peter Lang, 1994.

Brown, Kathleen M. Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia. Chapel Hill: University of North Carolina Press, 1996.

Calhoon, Robert M. Evangelicals and Conservatives in the Early South, 1740-1861. Columbia: University of South Carolina Press, 1988.

Ely, James W., Jr. “The Legal Practice of Andrew Jackson.” Tennessee Historical Quarterly 38 (1979): 421-435.

Finger, John R. Tennessee Frontiers: Three Regions in Transition. Bloomington: Indiana University Press, 2001.

Fischer, David Hackett. Albion’s Seed: Four British Folkways in America. New York: Oxford University Press, 1989.

Friedman, Lawrence M. “The Law Between the States: Some Thoughts on Southern Legal History,” in David J. Bodenhamer and James W. Ely, Jr., eds. Ambivalent Legacy: A Legal History of the South. Jackson: University Press of Mississippi, 1984.

_____________________ The Legal System: A Social Science Perspective. New York: Russell Sage Foundation, 1975.

Geertz, Clifford. The Interpretation of Cultures: Selected Essays. New York: Basic Books, 1973.

Goodspeed, ______. The Goodspeed Histories of Maury, Williamson, Rutherford, Wilson, Bedford, and Marshall Counties of Tennessee. Columbia, TN: Woodward and Stinson Printing Co., 1971.

Goodstein, Anita. “Leadership on the Nashville Frontier, 1780-1800.” Tennessee Historical Quarterly 35 (1976): 175-198.

Greene, Jack P. “Independence, Improvement, and Authority: Toward a Framework for Understanding the Histories of the Southern Backcountry during the Era of the American Revolution,” in Ronald Hoffman, Thad W. Tate, and Peter J. Albert, An Uncivil War: The Southern Backcountry During the American Revolution. Charlottesville, 1985: 3-36.

Heyrman, Christine Leigh. Southern Cross: The Beginnings of the Bible Belt. New York: Alfred A. Knopf, 1997.

Huebner, Timothy S. The Southern Judicial Tradition: State Judges and Sectional Distinctiveness, 1790-1890. Athens: The University of Georgia Press, 1999.

Isaac, Rhys. The Transformation of Virginia: Community, Religion, and Authority: 1740-1790. Chapel Hill: University of North Carolina Press, 1982.

Miyakawa, T. Scott. Protestants and Pioneers: Individualism and Conformity on the American Frontier. Chicago and London: The University of Chicago Press, 1964.

Novick, Peter. That Noble Dream: The “Objectivity Question” and the American Historical Profession. Cambridge: Cambridge University Press, 1988.

Pagan, John Ruston. Anne Orthwood’s Bastard: Sex and Law in Early Virginia. New York: Oxford University Press, 2003.

Perkins, Elizabeth A. Border Life: Experience and Memory in the Revolutionary Ohio Valley. Chapel Hill: University of North Carolina Press, 1998.

Posey, Walter Brownlow. The Presbyterian Church in the Old Southwest, 1778-1838. Richmond: John Knox Press, 1952.

Ray, Kristofer. “Land Speculation, Popular Democracy and Political Transformation on the Tennessee Frontier, 1780-1800” Tennessee Historical Quarterly 61 (2002): 160-181.

Reid, John Phillip. A Better Kind of Hatchet: Law, Trade, and Diplomacy in the Cherokee Nation during the Early Years of European Contact. University Park: Pennsylvania State University Press, 1976.

_______________ A Law of Blood: The Primitive Law of the Cherokee Nation. New York: New York University Press, 1970.

Roeber, A.G. “Authority, Law, and Custom: The Rituals of Court Day in Tidewater Virginia, 1720 to 1750.” William and Mary Quarterly. 37 (1) (1980): 29-52.

_____________ Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680-1810. Chapel Hill: University of North Carolina Press, 1981.

Ross, Richard J. “The Legal Past of Early New England: Notes for the Study of Law, Legal Culture, and Intellectual History.” The William and Mary Quarterly. 50 (1) (1993): 28-41.

Salmon, Marylynn. Women and the Law of Property in Early America. Chapel Hill: The University of North Carolina Press, 1986.

Strickland, Rennard. Fire and Spirits: Cherokee Law from Clan to Court. Norman: Oklahoma University Press, 1975.

Sydnor, Charles S. Gentleman Freeholders: Political Practices in Washington’s Virginia. Chapel Hill: University of North Carolina Press, 1952.

_________________“The Southerner and the Laws.” Journal of Southern History 6 (1940): 3-23.

Taylor, Alan. Liberty Men and Great Proprietors: The Revolutionary Settlement on the Maine Frontier, 1760-1820. Chapel Hill: University of North Carolina Press, 1990.

____________ William Cooper’s Town: Power and Persuasion on the Frontier of the Early American Republic. New York: Vintage Books, 1995.

The Tennessee Historical Records Survey. Outline of Development of Methodism in Tennessee. Nashville: 1940.

Toomey, Michael. “Doing Justice to Suitors: The Role of the County Courts in the Southwest Territory.” The Journal of East Tennessee History 62 (1990): 33-53.

White, Richard. The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650-1815. Cambridge: Cambridge University Press, 1991.

Williams, Robert A., Jr. The American Indian in Western Legal Thought: The Discourses of Conquest. New York: Oxford University Press, 1990.

[1] See John Ruston Pagan, Anne Orthwood’s Bastard: Sex and Law in Early Virginia (New York: Oxford University Press, 2003.

[2] See John R. Finger, Tennessee Frontiers: Three Regions in Transition (Bloomington: Indiana University Press, 2001)

[3] Paul M. McCain, The County Court in North Carolina before 1750 (Durham: Duke University Press, 1954), 145; James W. Ely, Jr., and Theodore Brown, Jr., eds., Legal Papers of Andrew Jackson (Knoxville: The University of Tennessee Press, 1987), xx.

^{^[4]} Laws of North Carolina, Chapter 52, 1783, reprinted in Iredell, Laws of North Carolina 473, I Scott, Laws of Tennessee, 282.

^{^[5]} Laws of North Carolina, Chapter 3, 1789, reprinted in Iredell, Laws of North Carolina, 663, I Scott, Laws of Tennessee, 405.

[6] In the wake of the history profession’s “collapse of comity,” particularistic sentiment challenged traditional universalism in American history, see See Peter Novick, That Noble Dream: The “Objectivity Question” and the American Historical Profession (Cambridge: Cambridge University Press, 1988): One point of departure for historians is the work of Clifford Geertz, the leading American representative of the new anthropology sensibility, who extended the widespread skepticism of positivism and objectivity to include ethnography. Geertzian cultural anthropology materialized from a breakdown in historical convergence and has provided historians with a valuable tool for interpreting the past. His scholarship has underpinned the crucial role of expressive symbols and rituals in legal history. Rhys Isaac followed aspects of Roeber’s scholarship by embracing Geertzian cultural anthropology and historical ethnography. Isaac examined a period in Virginia legal history where traditional visions of legal legitimacy transformed as religious authority conflicted with contemporary legal establishments. This form of legal pluralism changed over time, largely because of a socio-cultural exchange as the state’s law and legal culture penetrated into geographical territories and social strata. To determine social and religious forces, Isaac introduced a dramaturgical concept to reveal patterns of action, processes of change, and systems of authority. According to Isaac, settings, costumes, and gestures carry meaning within these exchanges, and the subsequent power struggles to define the situation and translate a particular culture. He proposed a model for historians interested in cultural anthropology and historical ethnography, an especially helpful tool for analyzing aspects of Tennessee’s legal culture. See Rhys Isaac, The Transformation of Virginia: Community, Religion, and Authority: 1740-1790 ( Chapel Hill: University of North Carolina Press, 1982).

[7] Sir John Oldcastle, the historical character, was also known as Lord Cobham. He was executed as a heretic and traitor near St. Giles’s Fields in London, December 1417. He was instrumental in the failed Lollard uprising of January 1414, an attempt to overthrow the church and state, murder King Henry V, his brothers, the nobility, and the church hierarchy. On December 14, 1417, Oldcastle was arraigned before Parliament, which he declared which he declared as incompetent. Such a treasonous statement and a rebellious history led him to the gallows where he was hanged and burnt. The extent to which Oldcastle represented a popular movement against the monarchy is debatable, but he managed to escape his opponents for twenty years. Records show, however, that he maintained a close relationship with the King but continually fomented rebellion against the institution. William Shakespeare presented Oldcastle on stage in 1 & 2 Henry IV, and he was also the subject of the anonymous The Famous Victories of Henry V. Thomas Hart Benton’s reasoning follows logically with the identity of the real Sir John Oldcastle, albeit a different context. For more information about Sir John Oldcastle, the historical figure and literary character, see Peter Corbin and Douglas Sedge, eds., The Oldcastle Controversy: Sir John Oldcastle, Part I and the Famous Victories of Henry V (New York: Manchester University Press, 1991).

[8] The Impartial Review and Cumberland Repository, February 11, 1808.

[9] The Impartial Review and Cumberland Repository, May 12, 1808.

[10] The Impartial Review and Cumberland Repository, March 10, 1808.

[11]The Impartial Review and Cumberland Repository, May 26, 1808.

[13] The Impartial Review and Cumberland Repository, February 25, 1808.

[14] The Impartial Review and Cumberland Repository, June 30, 1808.

[16] For information on the identity of Junius see David McCracken, Junius and Philip Francis (Boston: Twayne Publishers, 1979)

[19] Impartial Review and Cumberland Repository, June 30, 1808.

[20] Impartial Review and Cumberland Repository, July 21, 1808.

[21] Ely and Brown, Legal Papers of Andrew Jackson, xxvii.

[22]John Overton, Tennesssee Reports, and Cases Ruled and Adjudged in the Superior Courts of Law and Equity, and Federal Courts for the State of Tennessee, Commencing in November Term, 1791, and ending in May, 1813, vol. 1 (Knoxville: G. Wilson, 1813), Advertisement. Hereinafter cited as Overton, Tennessee Reports I.

[24] For a general overview of land issues and Tennessee frontier in-migration, see e.g. John R. Finger, Tennessee Frontiers: Three Regions in Transition (Bloomington and Indianapolis: Indiana University Press, 2001); Thomas Perkins Abernethy, From Frontier to Plantation in Tennessee: A Study in Frontier Democracy (Chapel Hill: The University of North Carolina Press, 1932); Harriet Arnow Simpson, Flowering the Cumberland (New York: MacMillan, 1963); Simpson, Seedtime on the Cumberland (New York: MacMillan, 1960); J.G.M. Ramsey, Annals of Tennessee to the End of the Eighteenth Century (Charleston: Walker and James, 1853); Malcolm J. Rohrbough, The Trans-Appalachian Frontier: People, Societies, and Institutions, 1775-1850 (New York: Oxford University Press, 1978);

[25] John Overton, Tennesssee Reports, and Cases Ruled and Adjudged in the Superior Courts of Law and Equity, and Federal Courts for the State of Tennessee, Commencing in November, 1802, and ending in June, 1817, vol. 2 (Knoxville: T.G. Bradford, 1817), 399-403.