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Part 5

WV Frederick Co History of the lower Shenandoah Valley part 5

Transcribed by Rhonda Hill

Frederick County

tion, but in 1743 settlements had so rapidly increased that the petitions of the leading men were granted.  October 2, 1743, "His Excellency, William Gooch, Esq., Lieutenant-Governor and Commander-in-Chief of the forces of the Colony and Province of Virginia, by the grace of His Most Gracious Majesty, Our Sovereign Lord, George II., King, Defender of the Faith, &c.," issued commissions as justices of the peace to "our trusty and well-beloved" Morgan Morgan, Benjamin Borden, Thomas Chester, David Vance, Andrew Campbell, Marquis Calmes, Thomas Rutherford, Lewis Neil, William McMachen, Meredith Helms, George Hoge, John White, and Thomas Little, gentlemen, accompanied by a dedimus for the administering of the oath of office to the appointees.  On November 11, 1743, the gentlemen named having been notified of their appointment met for the purpose of organizing a court, but just where they met is not now definitely known, but it is supposed that it was at the house of James Wood, just west of the western limits of the now central portion of Winchester, for Wood's land at that time took in a portion of the spot whereon now stands the town named, running, in fact, to the west line of Cameron Street.  Having met, Morgan Morgan and David Vance administered the oath to the others named in the commission, who having taken their seats as justices for Frederick  County, appointed James Wood clerk of the court and Thomas Rutherford high sheriff George Home was appointed surveyor.  At this first court appeared James Porteus, John Steerman, George Johnston and John Newport, who desired the privilege of being booked as attorneys, and who upon taking the oath as such, were granted the use of the court house to attend to the legal wants of prospective clients. 

The next business of the court was to admit to probate the will of Bryant McNamee, deceased.  Letters of administration were granted to Elizabeth Seamon, on the estate of her husband, Jonathan Seamon, deceased; Morgan Morgan, gent., John Smith, John Hampton and Robert Worthington were appointed to appraise the money value of Seamon's estate.  The clerk was ordered to provide record books and be paid at the laying of the next levy.  Also, that the clerk agree with some person to fetch the law books from the house of Mr. Parks, for the use of the justices; and that the constables and overseers then serving as officers of Orange County within the limits of Frederick County, be retained until the next court. 

It was "ordered that the Sheriff build a twelve foot square log house, logg'd above and below, to secure his prisoners, he agreeing to be satisfied with what shall be allowed him for such building by two of the court, and he not to be responsible for escapes."

At the next court held December 9, same year, present Morgan Morgan, David Vance, William McMachen, and George Hoge, a petition for a road was made by John Wilcox and others, to run "from John Funk's mill to Chester's ferry and from thence to where the road takes out of Chester's road to Manases' Run."  Ordered that Thomas Chester, gent., John Wilcox and Jacob Funk, view, mark and lay off the said road, and make return of their proceedings at next court.
James Porteus was empowered to act as King's attorney until the pleasure of the governor could be known.  Marquis Calmes and William McMachen were ordered to agree with workmen for erecting a pillory, stocks and whipping-post, and make a return of their proceedings at the next court.  John Kersey was permitted to open a ferry at his place on the Sherrandoe River.  Thomas Chester having been appointed coroner by Gov. Gooch, took the oath of office.  A road was ordered to be laid out from John Frost's mill to several plantations.

The first mention of a tavern in this section occurs at this second court, when Patrick Ryley petitions for a license to keep an "ordinary," which was granted to that evidently Hibernian gentleman, after payment of the governor's fees and obtaining John Smith as his bondsman, presumably for the good conduct of the proprietor of the hostelry.  Several others obtained licenses for "ordinaries" at the same time, among whom were Thomas Hart and Lewis Neill.  And even Capt. Andrew Campbell and Morgan Morgan, gent., did not disdain to endeavor to turn an honest penny by affording accommodations to the traveling public, and in dispensing liquid aliment to their thirsty neighbors and the tired wayfarer, as those two primitive worthies also obtained licenses from themselves and associates to keep ordinaries.  At that early day when there were in this valley, at least, literally no towns nor even villages, it was necessary for almost every householder to keep some sort of accommodations for the public, and as it would have been a burden upon many of the settlers to have kept a traveler without cost, he would have to charge, but he could not do that without making himself amenable to the law; so, many of them took out licenses which permitted them to sell liquors as well as to provide food and lodging. 

John Upton was sworn in as a constable, and Robert Worthington and George Thurston were continued in office, they having been constables under the Orange County organization.  Stephen Hotsenbell was appointed constable for Capt. John Hite's precinct; Thomas Gray for Capt. Denton's; Thomas Babb between Capt. Hite's and Capt. Lewis', and George Bounds for Capt. Chester's.  William Flintham was sworn in as a deputy sheriff.  The first man arrested and held in durance vile, after the organization, was James Brumindgeham, charged with stealing two bells from George Wright, but upon examination the prisoner was found not guilty and released. 

On Friday, January 13, the ensuing month, at a meeting of the court, five more lawyers placed themselves on the roll of attorneys for Frederick County, they being William Russell, John Quin, Gabriel Jones, William Jolliffe and Michael Ryan.  Benjamin and Robert Rutherford were sworn in as deputy sheriffs.  William Hoge obtained license to keep an ordinary.  John Doones took out a peddler's license, and it is supposed that he did a thriving trade, as there as yet no store or other places where goods could be bought in the entire valley of Virginia.  Most of the supplies of the settlers were obtained from Fredericksburg, Alexandria and Pennsylvania.  The county surveyor, G. Home or Hume, was ordered to run the dividing line between Frederick and Augusta.  A road was ordered to be laid out from Hampton's mill to the Great Cape Capon, and another from Howell's Ford to Ashby's Bent Gap.  John Julian, George Bounds, James Burne and Gershom Woodall, were made constables.  Among the proceedings of this third court, in a suit for debt against James Finla, occurs a name for the first time mentioned in the records of this section.  Thomas McGyer sues James Finla for a sum of money.  The old scribe or clerk first writes it as just given; he afterward spells it McGuier, and then McGuire, as at present.

The next court was held February 11, 1743-4.*  Gabriel Jones, one of the attorneys admitted at a previous session of the court, was recommended by the justices to the governor as a suitable person for King's attorney.  First case of assault and battery on record:  Doones vs. Samuel Isaacs.

* The Old Style, or Julian system, of chronology was still in use, although it was gradually dying out.  It was abolished by the King and Parliament in 1752.  The Old
Style counted the year up to March 21; hence writers of the time were in the habit of putting it as above: 1743-4 to prevent misunderstanding.

March 9, 1743-4.  Henry Munday was admitted to the practice of law, he making the tenth of that profession to be allowed the privilege at the bar of Frederick.  Two servants (white), one in the employ of Marquis Calmes, named Richard Mapper, and the other employed by Andrew Campbell, and named Thomas Drummond, absented themselves from their usual work for twenty-one days.  They were arrested, brought before the court and sentenced to serve nine months longer than the time for which they were indentured.  A road was laid off from John Shepard's to the head of the Bullskin, and another was laid out from Robinson's Gap to Vestal's Gap.

The first mention of a minister of religion in the records occurs at this court where two negroes, a boy named Jacob, and a girl named Micey, are adjudged to be fifteen years of age toward paying off the levy.  The negroes are stated to be the property of Rev. William Williams.  To what denomination this pioneer worker in the vineyard of the Lord belonged is not stated, and where his church, chapel or meeting house was located is also in the forgotten past.

As a matter of interest and for preservation, and as showing the manners and customs of our forefathers, the following schedule of prices is copied entire from the proceedings of the March court:

Prices for Ordinary-Keepers. --- Pursuant to law the following rates and prices are set and allowed by this court upon liquors, etc., that ordinary-keepers in this county shall entertain and sell at, to-wit:

Pound         s.           d. Pound s. d.
Barbadoes Rum, per gallon   6  
Rye Brandy   5  
Rum Punch or Fiz, the quart, with 3 gills and white sugar   1  
Rye Brandy Punch or Fiz, the quart, with 3 gills and brown sugar           9
Rum Punch or Fiz, the pint, with 1 gills and white sugar     6
Rye Brandy Punch or Fiz, the pint, with 1 gills and brown sugar     4 1/2
Beer, per quart     4
Cider, per quart     4
Madeira Wine, per quart   2  
Claret, per quart bottle   1  
French Brandy, per gallon   16  
French Brandy Punch, per quart   2  
Hot Diet     6
Cold Diet     4
Lodging, with clean sheets     3
Stableage, with fodder or hay per night     4
Pasturage     4
Indian Corn, per gallon     4
Oats     4

Ordered, that the several ordinary-keepers in this county sell and retail liquors at the above rates, and that they presume not to sell at any other rates, and that if any person do not pay immediately for what he has that he pay for the same at the fall in tobacco at 10 shillings per cwt.

At the session of the court next day, March 10, it was ordered that the clerk, Col. James Wood, write to Mr. Robert Jackson, merchant, Fredericksburg, to procure from England sets of standard weights and measures for the use of the colony.

April 14, 1744, a white servant named John Lightfoot, who absented himself from his master's service three months, was sentenced by the justices to serve four years and seven months additional after his indentured term should expire, and to pay all costs. 

Michael Ryan, one of the ten attorneys lately admitted to practice, was brought before the court and sentenced to two months silence at the bar of Frederick County for being drunk, which shows that intemperance, even among the dignified legal fraternity, is not such an excessively modern invention as might be supposed.  A "press" was ordered to be made to hold the records of the county.

May 11, 1744, the first grand jury was impaneled, consisting of John Hardin, foreman, Robert Allan, George Hobson, James Vance, John Willcocks, Peter Woolf, Isaac Pennington, David Logan, Robert Worth, Joshua Hedges, Robert Willson, Samuel Morris, Hugh Parrell, James Hoge, Jacob Niswanger, Charles McDowell, Morgan Bryant and Colvert Anderson.

A number of presentments were made against various violators of the law, among which were bills against Robert Craft, James Findlay, Samuel Shinn and Cutbud Harrison, for selling liquor without a license, and one against John Graham, for perjury.  And even old Noah Hampton, who had a mill over toward the Blue Ridge, somewhere, was presented by one of his irate customers for taking a larger amount of toll from the grain intrusted to him for grinding, than the law allowed.  A man named James Burne, a constable, was presented for swearing and being a disturber of the peace, instead of being a conservator thereof, as he should have been, but the officers of the law seem to have been as frequent violators of it, as the common herd.

Jonathan Curtis was presented on information laid by Andrew Campbell, gent., one of his Majesty's justices of the peace, for breaking the Sabbath by plowing on Sunday, but Curtis got back on to the old informer by laying information against Campbell for getting drunk and swearing two oaths.  At a succeeding term of the court they mutually withdrew their charges, at least the cases were dismissed.

And now, most fearful and scandalous of all those old cases is one in which an afterward noted man was principal:  The dignified Col. James Wood, clerk of the court and founder of Winchester, was presented for getting drunk and swearing two oaths!

On May 12, same year as above, the following persons were appointed to take a list of the tithables:  Thomas Chester, David Vance, William McMachen, Andrew Campbell, Morgan Morgan, Lewis Neill, Marquis Calmes, Meredith Helms, John Lindsay and Jacob Hite.

June 8, Duncan Ogullion was granted a license to keep an ordinary.  Ogullion is thought to have lived either upon or near the spot whereon now stands Winchester, and if so he has the honor of having kept the first taven in that ancient town.  He also, was awarded the contract for building the gaol by Sheriff Rutherford, as will be seen.  Ogullion also, had the misfortune a year or two after building his primitive Bastile, of being himself incarcerated therein for debt.  A bridle road was ordered to be laid out " from Scott's mill on the Shanando River to the court house of this county."

The first mention of any religious edifice in Frederick County up to the session of the court June 8, 1744, occurred in reference to laying out a road, which stipulates that it be run " from the chapel to Jay's Ferry."  Where this chapel stood is not stated, but it was possibly on the spot where now stands the Mill Creek Episcopal Church, or it may have been the old Norborne Church, the picturesque ruins of which may be seen on the lands of Col. H. B. Davenport, near Charlestown.

The annexed case, copied from the minutes of the court held July 16, 1744, is given to show the extreme injustice of those ancient times.  A servant named Edmond Welsh having absented himself from the service of his master six days was brought before the court and sentenced to serve the same master seven months and twenty-three days additional to his term of indenture and pay all costs of the suit.  These indentured servants were white persons who, through debt, petty violations of the law, poverty and other misfortunes, placed themselves, or were placed by the courts, at the mercy of any one who would purchase their time.  Once indentured, however, it was extremely difficult for the unfortunates to gain release.  Petty charges were brought against them, by means of which, as in the above case, the merciless master was enabled to keep them for years in a state of absolute slavery, and not infrequently were they retained for the entire term of their natural lives.  Truly our old colonial ancestors were a set of unmitigated tyrants.  But the day of redemption was fast approaching, for there was a boy at that time twelve years old living upon a farm in Eastern Virginia who was to rise up and lead the armies of his countrymen to victory over kings and the ways of kings.

The first deed placed upon the records of Frederick County was one from Abraham Penington to Christopher Beeler, of 500 acres of land "on the west side of the Shenandoe River, a portion of a grant obtained by Penington in 1734."  Beeler paid 90 pounds current money of Virginia for his farm.

Benjamin Borden, Sr., sold to his son Benjamin a tract of land, a portion of a grant obtained in 1734 by Borden, Andrew Hampton and David Griffith.  The tract was called "Bullskin" and was located "on the west side of the Sheando River, commencing at a sycamore tree on the Bullskin Run."  Borden, Jr., paid for his land 50 pounds.

On January 7, 1743-4 (O.S.), Richard Beeson, Sr., transferred to Richard Beeson, Jr., for 20 pounds "one certain piece, parcel or tract of land on the west side of Opeckan Creek, and on a branch of the said creek called Tuscarora," being a portion of a tract obtained in 1735 by George Robinson and John Petite and sold to Richard Beeson, Sr., in 1737.  Beeson, Sr., also conveyed to his sons Benjamin and Edward tracts of land for 20 pounds each; also a tract to Mordecai Mendenhall, in the same locality, on the Tuscarora.  Jost Hite about this time sold a tract of 100 acres to Richard Stinson, being a portion of the grant Hite bought from Vanmeter. 

January 11, 1743-4, Morgan Bryan transferred 1,020 acres of land on the head of Tully's branch, near the mountains, to Joshua Hedges.  This is the original Hedges of the present county of Berkeley, and after whom the town of Hedgesville was named.  This deed was witnessed by Andrew Campbell, Job Curtis and Jonas Hedges.  January 31 John Littler, "of the Opeckon, sold body of land on Yorkshireman's branch " to Thomas Rees; Littler also sold body of land to Henry Bowen at the head of Yorkshireman's branch.  Morgan Bryan sold parcel of land to Roger Turner on Tully's branch.  On the 1st of March Charles Baker sold to Samuel Earle " 25 acres of land, more or less, on the Cruked run, being part of a grant to Jost Hite, who sold to John Branson, who sold to Baker."

March 9, 1743-4, Thomas Rutherford, high sheriff of Frederick County, who located in that portion of the territory now Jefferson County, W. Va., sold to Marquis Calmes, one of the justices, a large tract of land, upon a portion of which still reside some of the descendants of Calmes.  John Mills, of Prince Georges County, Md., sold several tracts of land on Mill branch of the Opequon.  They were transferred to his sons, and to Jonathan Harrold, William Chenoweth and John Beals.

Jost Hite sold in February 200 acres of land to Charles Barnes, and in March Hite sold 360 acres to Joseph Colvin.  John Frost sold 300 acres to John Millburn in September.

About this time, the spring of 1744, a number of settlers came in who purchased from Alexander Ross.  Among those coming in at this time were George Williams, John Perkins, Jacob Funk, William Tidwell, Charles Barnes, the Millses from Maryland, John Hays, George Hobson, of Hobson's Marsh, Thomas Colston.  Andrew Hampton, of Brunswick County, who had obtained a grant from Gov. Gooch, sold several tracts.  Also came David Chancey, James Porteus, Enoch Anderson, Patrick Gelaspie, G. Jones, G. Johnstone, Marmad Stanfield, John Richard, Benjamin Fry, Thomas and Robert Wilson, Samuel Fulton, James and Robert Davis, William Russell, Joseph Helms and others.

Richard Morgan who, as has been elsewhere stated, had obtained a large grant of land lying along and adjacent to the Potomac River, sold 210 acres for 110 pounds sterling to Van Swearengen, near where now stands Shepherdstown.  It was located along the afterward famous Morgan Spring branch, and the price paid per acre (about $2.50) was considered very large, when splendid land in some localities could be bought for twenty-five and fifty cents per acre.  Josiah Ballenger, James Wright, Robert Worth, J. Denton, Giles Chapman, Ulrich Ruble, Lewis Stephens, Hugh Neill, Charles Bucks, W. Cocks, Hugh Parker and William Trent acquired land at this time.  Dunken Ogullion and Patrick Dougherty, two thrifty and adventurous sons of the Emerald Isle, acquired land, and settled near where Winchester now stands, presumably upon a portion of the tract of James Wood, clerk of the court.

At this time, 1744, is to be found recorded in the first Deed Book, a contract that doubtless furnishes the first information in regard to the manufacture of iron in the State of Virginia.  The contract was entered into May 10, 1742, but was only recorded two years later.  It reads:  That Thomas Mayberry agreed to erect a "bloomery for making bar iron on the plantation of William Vestal, lying upon Shunandore" for William Vestal, John Fraden, Richard Stephenson and Daniel Burnett.  This old furnace was undoubtedly one of the first erected in the entire southern country.

In 1745 a number of new names appear in the old, but well-preserved Deed Book, among which are George Hollingsworth, David Black, John Quin, Francis Lilburn, John Hardin, Andrew Cook, Christopher Nation, William Grant, John Cheadle, David Gilkey, Jacob Niswanger, Evan Thomas, John Thomson and William Stroop.  These purchased from those who had grants:  William Hoge, Israel Friend, Jost Hite, Morgan Morgan and others.  Robert Worthington sold to William McKay 435 acres on the Bullskin, in November, 1746, and the same year Thomas and John Branson came into the possession of 600 acres of land by the death of their father, Thomas Branson, in West Jersey.  John Vestal bought of Jost Hite 120 acres of land on the Shenandoah River and Cat Tail Run, in 1747.  In this same year Nathaniel Cartmell bought of Nathaniel Thomas 200 acres of land at the head of the south branch of the Opequon.  Descendants of this old pioneer, Nathaniel Cartmell, are still well known throughout the valley, and one of them, T. K. Cartmell, Esq., has in his keeping the old records from which these facts are gleaned, he being at present (1889) clerk of the court.

November 3, 1747, Maj. Lawrence Washington bought of Samuel Walker "100 acres of land on the west side of Shunnundore River, being a portion of the original grant obtained by Jost Hite."  The following year Washington bought 700 acres of Robert Worthington, 320 from Andrew Pitts, and 311 from Jost Hite.  These tracts were the foundation of the Washington estate in this valley, some of the original being still in the possession of the descendants of the early owners.  The country by this time had begun to assume a thrifty appearance.  Extensive farms were being filled in every direction, mills were being erected, and improvements of all kinds could be noticed going on.  For this early period, 1750, the foregoing names will have to suffice, as it would be almost impossible to give the names of all the settlers who then came in.  Those given embrace all the very early noted families, and many of their descendants are yet living on the old homesteads.

The son of Erin, Duncan Ogullion, having finished the jail for the sheriff, Thomas Rutherford, he was paid by order of the justices the sum of 80 pounds for the job, September 8, 1748.  The committee to examine the structure and decide upon the price to be paid were James Wood, George Johnston, Lewis Neill and William McMachen. 

The first levy for Frederick County was 75,697 pounds of tobacco, payable in that commodity or the current market price thereof in money.

November 13, 1751, George Ross transferred about ten acres of land to Isaac Hollingsworth, Evan Thomas, Jr., and Evan Rogers, for building a Quaker meeting-house.

As heretofore stated Thomas Rutherford was the first sheriff of the county; his bondsmen in the sum of 1,000 pounds were Meredith Helms, John Hardin, Thomas Ashby, Sr., James Seeburn, Robert Ashby, Thomas Ashby, Jr., Peter Woolf and Robert Worthington.  The second sheriff was Thomas Chester, 1745; third, Andrew Campbell, 1747; fourth, Jacob Hite, 1749; fifth, Lewis Neill, 1751; sixth, Meredith Helms, 1753.  Col. James Wood continued to be clerk for many years.

Before leaving the subject of the old justices' courts a return to the records of 1744 may not be uninteresting, as showing still further the manners, customs and ideas of justice entertained by those old pioneers of our civilization.  It must be remembered that these occurrences were at a time when man had not yet grasped the eternal truths, to any appreciable extent, afterward enunciated in the declaration of our revolutionary sires, that all men are created equal.  These old expounders of the primitive laws never dreamed of any injustice in their sentences; they simply carried out the enactments of the General Assembly, a body of law-makers which could pass an act so late as 1748, making it "felony without benefit of clergy" for being convicted of hog-stealing the third time.  It was not enough to hang the poor culprit, but they must send him straight to hades.

To take the more noted incidents chronologically, the following county levy, laid October 12, 1744, is here given:

    Pound       s.       d. Tobacco lbs.
To James Wood, clerk for extra services       1,248
To James Wood, as per account       2,015
To James Wood, for four record books 5 4 0 or     1,664
To James Wood, for bringing up two record books and one law book from Williamsburg 0 8 0 or       128
To James Wood, for six Webbs Justices for the use of the county 3 5 0 or    1,040
To Mr. Secretary Nelson       670
To James Wood, for use of court house 4 0 0 or    1,280
To Thomas Rutherford, for extra services       1,248
To Thomas Rutherford, as per account 65 7     8 or  20,923
To Isaac Perkins, for 526 feet of plank for use of court house 0 19     8 or       315
To Gabriel Jones, as kings attorney       2,000
To William McMachen, for sundry services 1 0 0 or       320
To John Bruce, for building the stocks, pillory, etc. 5 15 0 or    1,840
To John Harrow, for iron work for the stocks, pillory, etc. 1 0 0 or       320
To James Porteus, for public services       1,000
To Andrew Campbell, gent., for payment of three men for going to South Branch concerning Indians 3 0 0 or       960
To Isaac Perkins, as per account 2 2 5 or    678  
To James ONeal 3 15 0 or     1,200
To John Jones, constable       211
To James Wood, for standard weights and measures 25 0 0 or     5,440
To G. Home, for running dividing line 66 18 6 or   24,416
To deposition left in sheriffs hands 9 4    1       or     2,496
        --------------
             71,412  
To sheriff, for collecting at 6 per cent       4,285
        --------------
        75,697
By 1,283 tithables at 59 lbs. tobacco per poll       75,697

On May 7, 1745, the grand jury made the following presentments:  Against Jonathan Curtis for "writing and publishing several things against the church of England."  The information was laid by Andrew Campbell, the same who had previously informed upon Curtis for Sabbath breaking, and who had evidently retaliated upon Campbell by having him (Campbell) presented for being drunk and swearing.  Campbell is now returning the retaliation. 

Rev. William Williams was fined 4 pounds and costs for "joyning in the holy bonds of matrimony several persons, he being no orthodox minister."  He was also fined twenty-six shillings for, as the record states, "behaving indeciently before the court."  To what denomination the reverend gentleman belonged is not stated, but he was, possibly, a Presbyterian and preached at the Opequon church, where many Scotch-Irish settlers had located.  It is altogether probable that when the court informed him of their verdict, Mr. Williams became justly outraged at the injustice of the decision and gave them a piece of his mind in primitive English, for which the justices muleted him for an additional sum.

June 7, 1745, James Porteus, the first attorney sworn in at the first court, and John Quin, another attorney, seem to have gotten into a wrangle over some knotty law point and lost their tempers; so the court fined them each five shillings for "indeciently behaving and swearing before the court."  Jacob Christman, son-in-law of Jost Hite, from whom came the name of Christman's spring, south of Stephens City, was fined 2,000 pounds of tobacco for keeping a tippling house and retailing liquors without a license. 

The first application for naturalization papers was made by Peter Mauk, a native of Germany, who came into court and took the oaths appointed by acts of Parliament to be taken instead of the oaths of allegiance and supremacy and the abjuration oath and subscribed the test, and received his papers.  This old patriot was the progenitor of the Mauks of Page County, many of whose descendants are still in the section where he settled.  Not long after this first application a number of German Protestants from across the Blue Ridge came in and made settlements, among were John Frederick Vanpage Helm, John George Dellenor, Philip Glass, Jacob Peck, Augustine and Valentine Windle, Christopher Windle, Nathaniel Hunter, John Harman, Henry Miller, George Lough Miller and Philip and Michael Boucher.

The first charge of murder was brought against Sarah Medcalf, in September, 1745.  Poison was alleged to have been used by the woman against her husband, but after an examination she was discharged, there not being sufficient evidence to indict her.  December 6, 1745, Martha Grayham was arrested, brought before the justices, and charged with setting fire to the house of Andrew Campbell, but upon examination she was found not guilty, yet the learned judges, on general principles, it is presumable, ordered that the sheriff take her and at the common whipping-post administer to her "twenty-five lashes on her bare back well laid on."  Ann Cunningham has the honor of making the first application for divorce, or rather, "separate maintenance and alimony" from her husband, James Cunningham, for cruel treatment, and she gained her suit, too.

In May, 1747, John Hite's servant man, Henry Highland, absented himself about one month, for which offense he was sentenced by the court to serve his master three years, one month and fourteen days.  He was also sentenced to serve two months more for abusing a horse.  And here is a queer piece of colonial justice:  April 8, 1748, a servant of Thomas Rutherford, who had been the first sheriff in 1743, was brought before the justices for striking his overseer, whereupon the man was sentenced to serve his master one year longer than the time for which he was indentured.  Another servant, Aaron Price, for assaulting Andrew Vance, was fined 200 pounds ($1,000), and remain in custody, that is, be hired out, till the fine was paid.  Bathany Haines was fined the same sum for being a person of ill-fame.  These two persons probably remained in servitude the balance of their lives, for $1,000 at that day was an enormous sum to a poor man.

No feeling of humanity seems to have had a place in the hearts of those old colonial justices, for a poor girl who would slip from the path of virtue, led off by some rascally libertine, and bring forth the fruit of her sin, would be sentenced to receive "twenty-five lashes on the bare back well laid on at the common whipping-post," condemned to serve some master two years, and her child bound for life to whosoever would take it.  It seems almost impossible that such things could be, only about a century ago. 

Our old Hibernian friend, Duncan Oguillion, the first jail builder, seems to have been a famous roysterer, for he and Neill Ogullion, Samuel Merryfield and Edward Nowland had a high time on the night of May 6, 1747, in Frederick Town, as it was called, and as will be shown further along.  Andrew Campbell, who appears to have been the primitive Hawkshaw, for his name figures in a number of cases wherein he laid the information, had the above quartet arrested for "raising a riot," and the conservators of the peace bound them over for a year and a day.  The first case of vagrancy is recorded about this time.  Richard Ellwood was brought before the court on August 4, charged with being a "vagrant, dissolute, idle fellow," and was sentenced to receive twenty-five lashes on his bare back, after which he was handed over to a constable, who passed him to another, and so on till they run him out of the county.

An important arrival is recorded in the minutes of a court held in 1749, one that had a marked influence on public affairs, and is as follows:

"November 17, 1749.---The Right Honorable Thomas Lord Fairfax, Baron of Cameron in that part of Great Britain called Scotland, and proprietor of the Northern Neck, produced a special commission to be one of his Majesty's Justices of the Peace for the county from under the hand of the Honorable Thomas Lee, Esquire, President and Commander in Chief of the Colony and Dominion of Virginia, and the seal of this colony, took the oaths appointed by act of Parliament to be taken instead of the oaths of allegiance and supremacy and the oath of abjuration, and having subscribed the test, was sworn a Justice of the Peace and of the county court in chancery.

"Lord Fairfax, producing a commission, was sworn County Lieutenant. 

"George William Fairfax, Esquire, at the same time was sworn to his commission of colonel of the militia of the county."

Considerable interest having for many years been manifested as to the exact location of the first court house and prison of Frederick County, the writer has made thorough researches of the ancient records, and is gratified to state that he has traced the matter to a conclusion that admits of no doubt.  The minutes of the first justices' meeting record the fact that "they met," ---but where?  Now, Col. James Wood, a prominent gentleman, a man of large landed interests, was appointed clerk of the court.  He, presumably, had one of the most commodious residences in all these parts, although there were a number of other wealthy persons located throughout the county.  Is it not natural and altogether in accordance with the course of matters that the justices should meet in his house, there being no court house then built in the county?  Col. Wood's house was just beyond the western limits of the present Winchester, which fact is well known.  And to confirm the idea that the courts were held at his house an item appears in the first county levy, where he is awarded the sum of "four pounds for the use of the court house."  The justices continued to meet at the same place for some time, and it is supposed from certain proceedings that about 1745 they rented a building temporarily till a court house could be built, at or near where the present court house stands.  Some time during the year 1745 a contract was entered into with John Hardin for building a court house, for at the levy laid on December 3, of that year, appears this item:

To John Hardin, for building the court house and to lay in the sheriff's hands till the work is completed                
Tobacco    11,920 lbs.

Then follow these:

    Pound       s.      d.
     November 4, 1746. -- To Thomas Fossett, for furnishing one dozen  chairs         1 7 0
     To Marquis Calmes, for iron nails 1 3 3
     December 2, 1746. -- To be lodged in the collectors hands for    3 0 0
     procuring irons, plates and dogs for the chimney in the court house
     November 4, 1747. -- To Andrew Campbell for table  3 0 0
     To be appropriated for flooring the court house and making a sherriff's box 8 0 0

John Hardin, the contractor, March 3, 1748, acknowledged the receipt of 100 pounds in satisfaction for the joiners and carpenters work on the court house.  The work must have progressed slowly, for in the spring of 1749 there appears an order of the justices for laying a floor in the court house; and one ordering the contractor to finish his work without delay.  In August, 1750, however, the building was so far completed that the justices ordered that Jacob Hite and John Hardin agree with James Dunbar or any other workman, to fix benches round the court house and in the jury rooms; also to make two tables for the jury rooms, and to fix steps at the court house door, and to make report of the proceedings to next court.  Yet there must have been a still further delay, for the next year, August 21, 1751, appears an order in the proceedings of the justices as follows:  "John Hardin is ordered to finish the court house by next court."  This last shot at the contractor no doubt had the desired effect, for nothing more appears in regard to the matter.  That old temple of justice, built of stone, with one large chimney, stood for many years, fronting south, upon the spot where now stands the present edifice.  Fronting as that building did upon the thoroughfare now known as Water Street, so called from the fact that it was nearest the town run, shows that Water Street was the principal street at that time. 

The first prison erected, the one ordered to be built by Thomas Rutherford, who sublet his contract to Duncan Oguillion, must have been a very temporary affair, for December 5, 1745, the justices ordered " William McMachen and Lewis Neill to agree with workmen to build a square log house for a prison for this county."  And in the same month 25,600 pounds of tobacco was appropriated for the purpose.  An order was given for the prison to be plastered and white-washed. 

The work on the prison must have been in the hands of more prompt mechanics than those on the court house, for the next year, August 7, 1746, Morgan Morgan and others were ordered to view the work on the prison, yet that may have been for the purpose of ascertaining the progress made by the contractor, for as late as 1750 an order was passed to procure locks for the building.  The first old log prison, however, was offered for sale October 4, 1748.

As showing that there was a change in the location of the first seat of justice and the implements for executing the law, Daniel Craig was ordered to clear lots for the new buildings in 1745, and October 7, 1746, James Dunbar was paid 2 pounds 17:6 shillings for removing the pillory and stocks.  December 2, 1746, Marquis Calmes, gent., was paid 5:5 pounds for erecting a "ducking stool according to the model of that of Fredericksburg."  At the same time William McMachen, gent., was paid 2:10 pounds for "digging a pit seven feet deep and six feet square in the clear, and walling the same with stone, for a ducking stool."  This instrument was used more particularly for women whom the justices would condemn as "common scolds," and was supposed to have a particularly soothing, cooling effect upon the hot temper and strained nerves of the irate housewife. 

The "Ducking Stool" was founded upon, and made obligatory by, the following act:

"At a Grand Assembly held at James City the 23d of December, 1662, and in the 14th year of our Sovereign Lord King Charles II.

" An Act for the Punishment of Scandalous Persons.

"Whereas, Many Babbling Women Slander and Scandalize their Neighbors, for which their poor Husbands are often involved in chargeable and vexatious Suits, and cast in great Damages:  Be it, therefore Enacted by the Authority aforesaid, That in Actions of slander, occasioned by the Wife, after judgment passed for the damages, the Woman shall be punished by Ducking; and if the Slander be so enormous as to be adjudged at greater Damages than Five Hundred pounds of Tobacco, then the Woman to suffer a Ducking for each Five Hundred pounds of Tobacco adjudged against the Husband, if he refuse to pay the Tobacco."

Up to the date of the establishment by law of the town of Winchester, which will be shown in the next chapter, settlements had increased and the population had spread so rapidly over the large section of country comprised in Frederick County that many roads were laid out, the most important of which will be found in the following list, gleaned from the records in the clerk's office:

From court house to Morgan Morgan's.
From meeting house at the gap of the mountain above Hugh Paul's to Warm Springs.
From court house to Littler's old place.
From Smith's to John Littler's.
From Perkins' mill to Jones' plantation.
From Sturman's Run to Johnson's mill.
From John Milton's to John Sturman's.
From Cunningham's chapel to the river.
From Hite's mill to Chrisman's Spring.
From county road to the chapel to McCoy's Spring.
From Opequon to the court house.
From Cedar Creek to McCoy's Run.
From Spout Run to John Sturman's.
From Opequon to Sherrando.
From Gaddis' plantation to Littler's mill.
From Hite's mill to Nation's Run.
From Mill Creek to Littler's old place.
From Ferry to the county road.
From Stephen's mill to McCoy's chapel.
From William Hugh's plantation to Jeremiah Smith's.
From Simon Linders' to old Lloyd's.
From Branson's mill to Gregory's Ford.
From Cunningham's to Borden's Spring.
From Capt. Rutherford's to Potomac.
From Capt. Rutherford's to John McCormack's.
From Howell's Ford to the top of the Ridge.
From David Lloyd's to top of Blue Ridge at Vestal's Gap.
From lower part of Patterson's Creek to the wagon road.
From mouth of Patterson's Creek to Job Pearsall's.
From Watkin's Ferry to Falling Waters.
From Hite's Spring to middle of swamp in Smith's Marsh.
From Gap on Little Mountain to Kersey's Ferry.
From Littler's old place to Opequon.
From Stony Bridge to Parker's on North River of Cape Capon.
From Richard Sturman's to Cunningham's chapel.
From court house to Ballinger's plantation.
From Funk's mill to Cedar Creek.
From Funk's mill to Augusta line.
From the town to Dr. Briscoe's.
From bridge near Lindsey's to Cunningham's chapel.
From Stover's mill to Gabriel Jones' plantation.
From Frederick Town to mouth of the South Branch.
From Long Marsh to Vestal's Iron Works.
From William Frost's to John Frost's mill.
From Hoop Petticoat Gap to Hite's mill.
From Branson's mill to Hite's mill.
From Ross' fence by the great road to Opequon.
From Johnson's house to road to Fairfax County.
From Caton's house to Jacob Hite's.
From Watkin's Ferry to Vestal's Gap.
From John Ratchlies' to John Fossett's.
Fromn Stephens' mill to Mary Littler's.
From Chester's to Branson's mill.
From North River to Great Cape Capon.
From Cunningham's chapel to Neill's Ford.
From Cedar Creek to cross-roads at John Duckworth's.
From John McCormack's to main road to town.
On the river side from Long Marsh to Vestal's.
From Sleepy Creek to Widow Paul's.
From Morgan's chapel to Opequon.
From Lloyd's crossing river to top of ridge.
From Burwell's mill to Fox Trap Point.
From Kersey's to ferry road of Shenando.
From river at Edge's Ford to Francis Carney's.
From head of the Pond in Shenando to Wormley's quarter.
From bridge to head of Great Pond on Shenando.
From Sturman's bridge to Burwell's mill.
From Nation's Run to Capt. Hite's.
From town to the Opequon.
From the run by Nation's to Kersey's Ferry.
From head of spring at Stribling's to Cunninham's chapel.
From Mark Harman's mill to Isaac Hollingsworth's.


CHAPTER VI.

WINCHESTER AND WASHINGTON'S EARLY OPERATIONS.

LAYING OFF FREDERICK TOWN---FIRST STREET----PRISON BOUNDS-ESTABLISHMENT OF WINCHESTER----ORIGIN OF THE NAME---WASHINGTON'S MISSION---HIS ANCESTRY-FRENCH ENCROACHMENTS----BATTLE OF GREAT MEADOWS---FORT NECESSITY---WASHINGTON'S RETURN TO WINCHESTER---POPULATION OF THE LOWER VALLEY---INDIAN ATROCITIES----JOHN HARROW VS. G. WASHINGTON-BRADDOCK'S DEFEAT-WASHINGTON'S SPLENDID LETTER----WINCHESTER IN 1756----BUILDING OF FORT LOUDON-HISTORY REPEATED-CAPT. BULLITT'S EXPLOIT-CAPTURE OF FORT DUQUESNE---WASHINGTON AS REPRESENTATIVE FROM THE LOWER VALLEY---A COUPLE OF RELICS-THE SMALL-POX---DEATH OF CLERK WOOD.

FROM the fact that Winchester was established by law in 1752, it is generally supposed that the now prosperous town of that name took its rise at that date; that there were no buildings here to speak of and, consequently, no population; that the town was only laid off---surveyed---at the time indicated; and that the court met elsewhere, even after the act of the General Assembly creating the

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