The Early Days of Ohio County Magistrate Court
by Joe Roxby

On May 15th, 1776, the Revolutionary Government of Virginia declared independence from the mother country. Among the first orders of business was the creation of new county governments. On January 6th 1777 a group of landholders were summonsed to Black’s Tavern (present day West Liberty ) by three men appointed by the Virginia legislature to form the basis of government of Ohio County. The first two offices to be created and filled by that body were the Sheriff’s office and Magistrate court.

Legend has it that once appointed the first sheriff immediately left town on a fast horse to attend an out of town law enforcement convention at county expense. Not to be outdone, the magistrates cancelled court for the remainder of the day so they could attend a steak fry for a bit of politicking at Van Meter’s fort. Humor aside, the offices would share a close history through the early days. By 1800 the custom had developed that, like today, four magistrates were elected. The senior most member of that group took the office of Sheriff, with the rest serving as magistrates.

The duties of the first sheriff, John McColloch, were not unlike that of any of his counterparts in any other state, law enforcement and tax collection. Magistrate court was quite another matter. As January 6th, 2012 marks the 235th anniversary of Ohio County Magistrate Court, it is most interesting to look back on the earliest days of the institution

Even prior to the official birth of Ohio County, our magistrate’s court got off to a rollicking start. Jurisdiction of the area between Ohio and Monongehela Rivers had been a subject of controversy between the royal states of Virginia and Pennsylvania. Each state appointed their own magistrates and by 1775 the dispute had become so heated that the Pittsburgh sheriff arrested Virginia’s vice-governor. In retaliation Virginia officials arrested three Pennsylvania magistrates and sent them south on a leaky boat to Wheeling where they became unwilling guests at the newly erected Fort Henry. The Keystone justices complained, “We were exposed to every species of insult and abuse.”

The First Magistrates- The first four magistrates to be appointed at the first court session were David Shepherd, Silas Hedges, William Scott, and James Caldwell. Later in that session Zachariah Sprigg, Thomas Waller and Daniel McLain were also sworn in and James McMechen was appointed the first clerk of the court. Some of the other earliest magistrates were Solomon Hedges, Edward Robinson, James McMechen, John Williamson, John Boggs, John Robinson, John Doddridge, James Miller, Ebezener Zane, Charles Wells and James Gillaspy. The first lawyers to be admitted to practice in the new court were Phillip Pendleton and George Brant, but this did not happen until Nov. 2nd 1778. In the following few years, David Shepherd would become the pre-eminent figure of that group and the soul of the local government. He was the first magistrate, the second sheriff, and County Lieutenant Despite the military sounding title of latter, it was a civil office that was responsible for keeping the muster rolls of the militia. A short time later he was given the military office of Colonel of the Ohio County militia.

Worth noting, simply to accept the office of magistrate or any other in the new government was a chancy proposition. Officeholders posted their farms and personal property as a bond against any financial malfeasance. At least two area sheriffs from the period left office ruined financially as a result. Further, in a very real sense anyone who accepted any office was a traitor to the king of England. Should the revolution fail, the hangman’s noose might well be their lot. While those first county officials may have been out of King George’s immediate reach, his mercenaries, the Indians, were close at hand. Royal wrath would fall on Ohio County in full fury in the coming summer and fall.

The birth year of the county would be remembered on the frontier as the Year of the Bloody Sevens with good reason. By the summer of 1777 conditions in the county had become so dangerous due to Indian raids it appeared that civil government was all but suspended. Nearly every Ohio County family would loose a member and in some cases none were left to tell the tale. Many families would leave the area before winter. Adding to the chaos, neighbors began to view each other with suspicion as local Tories suspected of passing information to the Indians had become a nearly as great a worry. Several Loyalists in neighboring Washington County would meet with suspicious accidents on their way to trial.

That first magistrate briefly assumed nearly dictatorial powers. For the second half of 1777, the county government was located wherever Col. Shepherd happened to be seated. His tale also demonstrated the perils of power and how harsh frontier life could be. On September 1st, 1777 he was the commander of the fort at the first siege of Fort Henry. He had the brief joy of seeing his oldest son William escape an ambush where most of his fellow soldiers had been killed only to see him tomahawked just yards from the safety of the fort. A couple of hours later Shepherd saw his son-in-law, Francis Duke, shot out of the saddle as he tried to ride to the relief of the fort.

If David Shepherd deserves special mention was the embodiment of civic virtue, early magistrate Sam Mason deserves it for the opposite reasons. Though not listed in primary sources, period historian Boyd Crumrine lists him as an Ohio County magistrate in his excellent History of Washington County. Mason was a militia captain and a hero of Fort Henry. Ironically he was a survivor of the same ambush where Shepherd’s son was killed. He left the area about 1782 and by 1800 had become one of the most feared and bloodthirsty brown water pirates on the lower Ohio and Mississippi Rivers. John James Audubon would write in 1815: “The name of Mason is still familiar to many of the navigators on the lower Ohio and Mississippi. By dint of industry in bad deeds, he became a notorious horse stealer, forming a line of worthless associates from the eastern part of Virginia to New Orleans,…His depredations were the talk of the whole western country.” American Wild West historian Paul Wellman would later refer to Sam Mason as “the first real genius of outlawry on the frontier.”

Early Civil Duties- The first Magistrate Court wielded a huge amount of authority. It was not that our early magistrates were power hungry. It was simply a case of there was no government and those early justices stepped in to fill a very necessary void The Ohio River represented the edge of civilization. Beyond the river’s edge existed only the tribal law and what existed east of the Virginia shore was most rudimentary. The frontier society of that time was an unusual mix of faith and felony. Early pioneers left their doors unlocked so that a wayfarer might find shelter should the family not be present. It was also so dangerous that outlaws on the trail might murder a stranger simply for his clothing.

At that time Ohio County consisted of all four counties that make up the northern panhandle. In today’s terms the body at Black’s Tavern effectively operated as Magistrate Court, Circuit Court, County Commission and roughly split the duties of Assessor with the Sheriff They probated wills, heard libel cases, granted licenses and established prices for taverns, registered hog brands, ordered roads built, and settled juvenile matters for good measure. The following orders are from the earliest records and demonstrate the widely varied duties of the court.

Ordered that Ebenezer Zane, Conrad Wheat and Sam Mason, agreeable to the former order of this court for the purpose of laying out the most direct way for a road from Fort Henry to the first forks of the Wheeling (Elm Grove).

Ordered that James Fitzpatrick, an orphan child, be bound to Sam Bruce to learn the art and mystery of a Taylor until he shall arrive at the age of Twenty One.

Upon the motion of Jacob Newland, ordered that his mark a crop in the left ear & hole in the right ear be recorded.

William Caldwell vs. Isaac Taylor, dismissed, not properly served.

Ordered that a license be granted unto Jacob Wolf for keeping an Ordinary (Inn) at his home.

Ordered that Ordinary (Inn) Keepers in this County sell at the following rates,

For Half pint Whisky • 6 dollars
Breakfast or Supper • 6 dollars
For a horse to hay for 24 hours • 6 dollars
For 1 Qt. strong beer • 4 dollars

Criminal Law- The first magistrates at Black’s Tavern were a stern-eyed gentry in an iron-handed age Raw whisky and rough-sawed justice were served up at the same bar. Frontier life was rugged and dangerous and those whom meted out justice did not suffer fools gladly. One should remember that even in the more civilized Merry Old England at that point there were still over 100 offenses the carried the death penalty. Slavery and Indentured Servitude were legal and dueling was common. Our legal forefathers clearly were not affected by any Quakerish notions of restorative justice. The great chronicler of the period, Rev. Joseph Doddridge, simply noted that the common belief was “a thief should be whipped.” For minor offenses the guilty one would carry the flag on their back, thirteen stripes, and for major offenses it was the biblical forty minus one, well laid on. Notably, after ordering construction of a courthouse and jail, the next items purchased were stocks and a whipping post. Doddridge also stated, “For many years after the law was put into operation in the western part of Virginia the magistrates were in the habit of giving those who were brought before them on charges of small thefts the liberty of being sent to jail or taking a whipping. The latter was commonly chosen and was immediately inflicted, after which the thief was ordered to clear out…. He was there informed that he must decamp in so many days and be seen there no more on penalty of having the number of stripes doubled” Local law enforcement was no doubt delighted as this system dramatically cut down the recidivist rate and the county commissioners were equally overjoyed about the reduction in jail costs.

For conduct that offended public-at-large sensibilities, but not quite meriting capitol punishment, there were extra-judicial punishments meted out by the community such as tar and feathering or an exercise known as “hating out the offender.”

When the court imposed fines they were given they were paid in tobacco, corn or other produce. The paper money in circulation at the time was almost worthless and hard coin was nearly non-existent. Labor was sometimes accepted as a substitute.

The First Jail and Courthouse- One of the first orders of business for the new county government was the building of a proper courthouse No account of those would be complete without a description of our first courthouse and jail.

“A Diamond Cornered house of Dimentions Twenty Two by eighteen feet in the Clear, one Story & one half high, a floor above& below of hewd or sawn plank; Ten Joice in the upper floor, nine or ten feet high; in the Lower Story a Coart’s Bench and Clark’s Table Two windows of eight lights each eight by ten inches; a pair of stairs & Cabbin Roof; a plain Door & hinges of Iron; likewise plain window Shutters, with Iron hinges”

A Jail Twenty by sixteen feet on the outside, the Loggs of the walls to be round & Close laid the loft; floors and partitions to be of loggs squarid to eight inches thick; Two Rounds of Loggs above the Loft; Cabbin Roof’d & windows agreeable; A Stone Chimney with Iron Gates, the doors done with nails, Lock Sufficient; the Loft and Floor to have each a Large Summur Supporting them in the middle.

These structures would serve until the seat of government was moved from West Liberty to Wheeling. Court was first held in The Friendly City on May 8th 1798. For a bawdy and brawling river town like Wheeling was during that period, it was fitting that hard liquor and hard jurisprudence should once again served at the same bar. This time it was at a local tavern known as Gooding’s Inn. By the early 1800s a new courthouse was finished in the area of 10th and Main streets. If anyone expected any softening of attitude toward bad behavior they were sadly mistaken as Wheeling’s first courthouse was also equipped with a whipping post. What else would one expect from a town whose name is derived from an Indian word meaning “Place of the Skull?”

This author knows of no pictures of that structure exist but it must have been an odd looking building. It was described as a square structure with a four-sided roof and a cupola in the center. An early visitor who looked at it remarked, “Folks here must be awfully fond of ham, why else would they build such a large smokehouse?” It was not until 1839 that a more dignified structure was finished at 12th and Chapline streets where the present day Board of Trade building now stands. An aside, Ohio County’s last hanging was carried out privately in the jail in the rear of that building in 1893. The large scale public executions performed in the mid 1800s had by this time fallen out of favor.

This year as we celebrate the 235th anniversary of our first judiciary, all four northern panhandle magistrate courts can claim descent from that earliest log cabin court. When our present serving magistrates are having a bad day due to malfunctioning equipment, overly zealous attorneys, or nasty letters from the Supreme Court, they should take heart. They would due well to remember the earliest days of our courts where they had a tomahawk for a gavel, a long rifle for a bailiff, and the commute to work during the Indian raiding season could be a real killer.