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Abner Vance, Two Sides to Every Story By: Barbara Cherep

Abner Vance

Two Sides to Every Story

Written By Barbara Cherep

Foreword

The following article was researched by Barbara Cherep, Tom and Janice Vance. Although the original story of Abner was researched by many others first, to name a few are Theodosia Barrett, Kathleen Mason, Betty Williams, Charles C. Wells, Henry Ragland, Tim Vance, Grace Dotson, and probably more than a few I don’t know. This article will provide new pieces to the puzzle. Such as Judge Johnston’s Letter to the Legislature, Daniel Horton’s Letter to the Legislature and the American Beacon Newspaper Article. Theodosia Barrett mentioned the Virginia Case record by Brockenbrough but did not supply the transcripts for all to see. It is Thomas Ritchie’s letter of Judge Johnston that I found which tells the story from another point of view, one which will surprise you as it did me.

Even though I wrote this article from my own point of view of the trial; much of the exact spelling as the originals, I want you to read it. Come to your own opinions after reading these original transcripts. We are Vance’s and share in this story. It may differ in what was passed down, but the truth lies in the middle. If I have missed anything, misquoted or anything that comes to mind, I would be happy to include or do a rewrite. Send an email to barbnzhxkq@aol.com . At the end of this story you will find some Petitions of Russell County, which mention Abner and others. These were hard to read, and the spelling is that of the document. Some names and words left off. Did my best to read them, sorry for any mistakes.

Abner Vance - The Last Two Years

Abner was hung in Abingdon for shooting a man in the back named Lewis Horton brother to Daniel Horton whom Abner intended to kill. Now according to the many stories written and published, this version will share a proven extra little twist which will shed light on some of the folklore passed down generation to generation. Such as Abner did not get his rifle from over the door just before he shot Lewis Horton, however he did intend to kill Daniel Horton, who is not mentioned as accompanying Lewis Horton at the time he was shot. Only Joseph Fowlkes (i.e. Russell County records have his name as Joseph Fulks) is mentioned as being present at the time of the shooting. Many stories have been published on his hanging with some variance of that historic trial but the outcome is always the same. Abner was sentenced to murder in the first degree, hung for a murder he had admitted to and noted in the Richmond Enquirer and the Journal of the House of Delegates by William Brockenbrough.

However, there is still one document that tells the story as well as any. In 1818/19 in the Journal of the House of Delegates of the Commonwealth of Virginia, written by Thomas Ritchie printer for the Commonwealth. This document is known as “Letter of Peter Johnston Relative to the Trial of Abner Vance in Russell County”. Peter Johnston was the Judge of the first trial of Abner Vance in Russell County, Virginia. This letter holds what the Judge deems to be testimony of Abner and others present for the first trial in Russell County. Let’s start with the beginning records as we know it recorded in Russell County previous to the trial of Abner. I will then present the trial records and other documents found in support of his two trials.

March 4, 1817 - Daniel Horton commissioned as a Justice of the Peace.

April 1817 - Term of Russell County Virginia court, Abner Vance distinguished himself in the trial of John Elliott. John Elliott was being tried for the murder of Eli McLaughlin. Eleven of the jurors stood for first degree. Abner Vance "hung the jury" and with his eloquent oratory won them over. Instead of hanging, the sentence was "nine years in the penitentiary house in a solitary cell with a low coarse diet for half of the term."

June 3, 1817 - Ordered that John Vance be appointed surveyor of the road from head of Sandy down to the mouth of slate; Frederick Stilton Sen. From thence down to the state line of Kentucky and that Harry Smith Get., do furnish each of the said surveyors with a list of tithables.

June 3, 1817 - William Horton paid a $500 bond and took an oath of law to become a constable.

July 1, 1817 - Abner Vance being bound in a recognizance with John Vance and James Vance his securities to appear here this day to abide by and perform the judgment of the Court on a charge of a breach of the peace by Daniel Horton, was solemnly called but came not.

July 2, 1817 - Ordered that William Romine be appointed the surveyor of the cove road from the fork of the river road to the line of Tazewell near William Fannons and that Daniel Horton Gent., do furnish him with a list of tithables.

August 6, 1817 - Abraham slave of Abendego White, The prisoner was brought into court with a sundry of witnesses, charge was not proved, prisoner was discharged from prosecution, Abraham by the Commonwealth proved that he lifted his hands against William Cromwell, and others, he was given 5 lashes at the whipping post by the Sheriff, that the prisoner is of turbulent disposition, and the Daniel Horton the prosecutor in the case and is afraid that slave will take his life or do personal injury to him.

August 6, 1817 - The Commonwealth against Abner Vance, John Vance and James Vance defendants on a writ of venire facias to recover the penalty of a recognizance. By consent of the attorney for the Commonwealth and assent of the court, it is ordered that this writ be dismissed at the defts.

Proceeding the Trial - Cause and Effect

Sometime in September 1817 it is stated by Judge Johnston that Lewis Horton gave testimony in the days preceding the shooting in Chancery Court, presiding was Chancellor Brown, where Abner understood that Lewis Horton had “swore upon his life” or so Abner was told or misinformed. That statement comes from, “The Letter of Judge Peter Johnston Relative to the Trial of Abner Vance.” What is not stated is why Lewis Horton had given a deposition in Chancery Court. Chancery Courts would try to reconcile land disputes, divorces, bastardly bonds, Wills and Administrations. These are usually disputes that were non criminal in content such as trespassing or land deeds. If we could locate this Chancery Case we could prove why Lewis Horton was in Chancery against Abner Vance.

A story of this shooting was passed down through the generations but with no court related content to say that Abner Vance shot Horton because Lewis and Daniel dropped by horseback, his daughter off at Abners home after tarnishing her reputation. Another such story was told by William Vance to Judge Elihu Sutherland written in an article by Grace Dotson. William writes to Sutherland:

“As I have been told by older people Vance did not kill the Horton he aimed to kill. His mind was to kill Daniel, but Lewis put himself in the way and provoked the old man until he told him to go away or he would kill him, and Horton run and crossed the Clinch River, a distance of about 200 yards and told the old man to “shoot and be damned.” The old man fired and Horton rolled off his horse into the river.”

William’s story in this one paragraph was not far from the truth.

Lewis Horton was a single man however Daniel Horton was married. It was Daniel who Abner admits to wanting to kill as William says. That is so very true. Other stories say that Elizabeth, daughter of Abner is thought to have a multi day excursion of sorts with one Lewis or Daniel Horton. This depends on who tells the story. Locating the Chancery Case for Horton would solve that mystery forever. In our case the story could be proved with these documents. They say there are always two sides to every story. In this case I believe it’s true. Now, because of Judge Peter Johnston we have some new facts to go on which allude to much more than what was passed down.

On Sept 22, 1817, Abner Vance shot Lewis Horton. Abner loaded his gun this fateful day and walked down to the Ford of the Clinch where Judge Johnston’s letter states “to wait for Daniel”, just a short distance from his home. The Judge writes that Abner waited to kill Daniel Horton and 3 others whose names are not mentioned. However we do get a clue in this one verse of the Vance Song that was sung by Abner the day he was hung naming three others. At this point we cannot be sure it’s the Horton men (i.e. William, Robert Horton) in which Abner was talking about in this song. But it does begin to make sense. It’s the name David that does not come to mind in any transcript or record.

There are 1David Horton, Bob and Bill, a lie against me swore, in order to take my life away that I might be no more.

But they and I must meet when Gabriel’s trump shall blow. Perhaps I shall rest in Abraham’s breast while they roll in the gulf below.

Lewis Horton was shot in the back just below the shoulder and lived 6 days after the shooting. Lewis Horton last gave instructions of his Will on September 27th.

From the letter dated December 2, 1818 to the Legislature where Peter Johnston was looking to the Legislature for new legislation as he felt strongly about the way in which the first trial had gone, afterwards when a Writ of Error was filed, thus giving Abner a new trial based upon Abners defense of insanity. His daughter wanting to give testimony in Abners defense, of his insanity in the first trial, the daughter, name not mentioned, had not seen her father for days before the shooting. The court felt if she could not give testimony of his nature the day of the shooting, insanity could not be recognized as a defense. Abners Counsel “2excepted” the ruling, thus the insanity plea was dropped, only later to be overturned by the Attorney General for the State of Virginia, awarding Abner a “Stay of Execution”, a new trial on June 1818. This was more than likely the reprieve that many Vance descendants thought to be a “Stay of Execution” the day Abner was hanged, based on stories handed down generation after generation, which a reprieve was sent on the day he was hanged, which came moments to late. In Richmond the Governors Reprieve Book does not list Abner Vance anywhere in its contents. Therefore a Stay of Execution on the day Abner was hanged could not be found.

Judge Peter Johnston Jr.

Judge Peter Johnston was the Judge of the 13th Circuit Judicial Court mentioned in a book by Dobson called “The Speakers and Clerks of the Virginia House of Delegates.” It is noted in this book that Judge Peter Johnston was the speaker of the House for Virginia 1805 to 1807. He was born in Chesterfield, Virginia in 1763. Died at “Panicello” near Abingdon, Virginia and buried in the Johnston Cemetery on Walden Road, east of Abingdon. He was a member of the House of Delegates from 1792 to 1794 and 1798 to 1808. Assigned to Prince Edward County first, he took a position with the Thirteenth District General and Supreme Court of Law in 1811, because he felt that the hunting would be better in Southwest Virginia. He married Mary Wood, daughter of Valentine Wood and Lucy Henry, who is the sister to Patrick Henry.

Peter Johnston was a very influential man in Virginia. The trial of Abner Vance was not only a local issue to Russell and Washington Counties. Judge Johnston asks the Legislature for a change to Laws for what he believes to be an unfounded Cause of insanity in Abners trial, he states;

“It is not only probable, but certain, that other instances will arise under the present judiciary system of this State, requiring the special interference of the Legislature, unless some general law should be enacted, the provisions of which may be adequate to the prevention, of remedy of evils and difficulties, such as have occurred in the case of Abner Vance. I have made this communication from a persuasion, that if the subject appears as important to you, as it does to me, you will lay it before the General Assembly.” Peter Johnston

__________________________________ The First Trial Begins

Underlined dates are transcripts of Russell County Court Books to include Vance, Wingo, and Horton’s. The idea is to give you all of them so that you can get a feel for the people and what was happening around Abner as he goes into this trial.

7 Oct 1817 - William Wingo and John Webb Bell who were committed to the jail of this county for not finding security for their good behavior were brought into Court and sundry witness being sworn and examined against them and they being heard in their defense. It is considered by the Court that they the said William Wingo and John Webb Bell do enter into recognizance for their good behavior for the term of one year and a day in the penalty of one hundred dollars each with two securities in the sum of $50 each and pay the Costs of the Prosecution but being unable to find Security they were remanded to jail there to remain for the said term of a year & a day or until they find such security or be otherwise discharged by the due Course of law.

Ordered that it be certified to the Register of the Land Office that John, Travis, Lucy Sergent wife of Wm. Sergent, Elizabeth Sergent wife of Elijah Sergent, Enoch Horton, Sarah Bradshaw, wife of John Bradshaw, Lettice Horton wife of William Horton, Laodicea White wife Meshach White and Robert Horton are the heirs and all the heirs at law of John Horton deceased as has been satisfactorily proved to this Court.

This day personally appeared in Court Ezekiel Daniel and Isaac Arden (Harden) and made oath that Lewis Horton deceased during the time of his last sickness to wit on the 27th day of September last past at William Ardens in the county of Russell made his noncupative will in which he desired that all his just debts should be paid and after they were paid, that his remaining estate should be divided in four equal parts to be divided as follows, one part to his son Daniel by Priscilla Wilson and the other three parts divided between Lewis, Francis and Salley children of his brother Daniel Horton. Which is ordered to be established as the non cupative Will of the said Lewis Horton dec’d. (Noting Lewis Horton was a single man, having one child, seems to be an ex-wife or girlfriend, as she uses the name Wilson, also he leaves property to his brother Daniels children who is married, also noting that the name of Arden is used in the above but Harden is used below on Oct 16th when witnesses are called to give bond as witnesses against Abner)

October 16, 1817 - At a Court called and held by the justices of Russell County at the courthouse on the 16th day of October 1817 for the examination of Abner Vance and Susanna Vance charged with the murder of Lewis Horton.

Present: Zachariah Fugate, Charles Carrell, James Browning, Nathan Hamilton and John Colley, Gent Justices The said Abner Vance and Susanna Vance being brought into Court and sundry witnesses being sworn and examined as well for as against them, it is the opinion of the Court that the said Abner Vance and Susanna Vance for the murder of Lewis Horton as aforesaid ought to be made in the Superior Court of Law for the county. That the said Susanna Vance be permitted to give security for her personal appearance before the said Superior Court at the next term in the sum of five thousand dollars to answer the charge aforesaid and thereupon the said Abner Vance was remanded to jail and the said Susanna Vance not being able to find such security was also remanded to Jail there to remain till she finds such security or until she be thence discharged by due course of law.

Daniel Horton, Ezekiel Daniel, Joseph Fulks, William Harden, Catherine Harden, Isaac Harden and William Horton all of this County came into Court and severally acknowledged themselves to be indebted to his Excellency James P. Preston Esquire Governor or Chief Magistrate of the Commonwealth of Virginia in the sum of one hundred dollars each, of their respective lands and tenements goods and chattels to be levied and to the said Governor and his successors for the use of the Commonwealth rendered; yet upon this condition that if the said Daniel Horton, Ezekiel Daniel, Joseph Fulk, William Harden, Catherine Harden, Isaac Harden and William Horton shall severally make their personal appearance before the Judge of the Superior Court of Law for this County at the Courthouse at the next term to give evidence on behalf of the Commonwealth against Abner Vance and Susanna Vance accused of Murder, then this recognizance to be void. Zachariah Fugate.

Oct 16 1817 - At a court called and held by the justices of Russell County at the Courthouse on the 16th day of October 1817 for the examination of William Wingo charged with being accessory to the murder of Lewis Horton. Present: Zachariah Fugate, Charles Carrell, Samuel Gibson, James Browning and John Colley gent justices. The said William Wingo being brought into Court and sundry Witnesses being sworn and examined as well for as against him on consideration it is the opinion of the Court that the said William Wingo for being as an accessory before the fact to the murder of Lewis Horton aforesaid ought to be tried in the Superior Court of Law for this County and that he be permitted to give security for his personal appearance before the said Superior Court at the next term to answer the said charge in the sum of two thousand dollars. Whereupon the said William Wingo and Squire McGuire and Francis McKinney all of the County of Tazewell here in Court acknowledged themselves to be indebted to his Excellency James P. Preston Esquire Governor or Chief Magistrate of the Commonwealth of Virginia the said William Wingo in the sum of two thousand dollars and the said Squire McGuire and Francis McKinney in the sum of one thousand dollars each of their respective lands and tenements goods and chattels to be levied and to the said Governor and his successors for the use of the Commonwealth rendered. Yet upon this condition that if the said William Wingo shall personally appear before the Judge of the Superior Court of Law for this County at the Courthouse at the next Superior Court to be holden for this County then and there to answer the Commonwealth of and concerning the charge aforesaid and shall not depart thence without the leave of the said Judge, then this recognizance to be void.

November 4, 1817 - Samuel Clark and Fanny Clark of this county come into Court and severally acknowledge themselves to be indebted to his Excellency James P. Preston Esquire Governor or Chief Magistrate of this Commonwealth of Virginia in the sum of one hundred dollars each of their respective lands and tenements goods and chattels to be levied and to the said Governor and his successors for the use of the Commonwealth rendered yet upon this condition that if the said Samuel Clark and Fanny Clark shall severally make their personal appearance at the Courthouse of this County before the Judge of the Superior Court of Law for this County at the next term of the said Superior Court to give evidence on behalf of the Commonwealth against William Wingo accused of being accessory before the fact to the murder of Lewis Horton and their recognizance to be void. Zachariah Fugate.

November 4, 1817 - Richard Vance committed to the Jail of this County charged with being accessory after the fact to the felonious shooting and wounding of Lewis Horton by Abner Vance with intent to murder and of which shooting the said Lewis Horton shortly thereafter died was brought into Court and thereupon sundry witnesses being sworn and examined as well for and against the said Richard Vance, it is the opinion of the Court that the said Richard Vance for the felony in being accessory as aforesaid ought to be tried in the Superior Court of Law for this County at the next term and thereupon he was removed to jail.

November 4, 1817 - John Olinger, John Scaggs and William Elkins all of this county come into Court and severally acknowledge themselves to be indebted to his Excellency James P. Preston Esquire Governor or Chief Magistrate of the Commonwealth of Virginia in the sum of one hundred dollars each of their respective lands and tenements goods and chattels to be levied and to the said Governor and his successors to the use of the Commonwealth rendered yet upon this condition that if the said John Olinger, John Scaggs and William Elkins shall severally make their personal appearance before the Judge of the Superior Court of Law for this County at the Courthouse on the second Monday in April next then and there to give evidence on behalf of the Commonwealth against Richard Vance charged with being accessory to a felony then this recognizance to be void.

November 5, 1817 - The case of Richard Vance who was yesterday committed for trial as accessory to a felony in the Superior Court of Law for this County as it respects his admission to bail was reconsidered and for reason appearing it is the opinion of the Court that the said Richard Vance be admitted to give security for his personal appearance at the next term of the said Superior Court by entering into recognizance in the sum of three hundred dollars with two securities in the penalty of one hundred fifty dollars each but not finding such security was remanded to jail there to remain till security given or until he be thence discharged by due course of law.

December 3, 1817 - On the motion of Daniel Horton who made oath as the law directs and together with James McFarlane his security entered into bond in the penalty of one thousand dollars conditioned according to law, certificate is granted the said Daniel Horton for obtaining administration of the estate of Lewis Horton decd with his Will annexed in due form.

Ordered that Harry Smith, Jacob Francisco, Moses Hunt and Simeon Jackson or any three of them being first sworn before a justice of the peace, do appraise in current money the personal estate of Lewis Horton decd and return the appraisement under their hands signed by the administrator to this Court.

April 14, 1818 - Abner Vance late of the County of Russell laborer who stands indicted of murder was led to the bar in custody of the keeper of the jail of the said County, of thereof arraigned and pleaded not guilty of the indictment and for his trial was put himself upon God and his Country; Whereupon came a jury to wit; George Robinson, John Belcher, Stephen Fuller, Larkin Howard, John Wallis Jr., Francis Fuller, William Williams, James Jesse, John Johnson, William Jesse, Thomas D. Fuller, and Jacob Rasnick Jr., who being elected tried and sworn the truth of and upon the premise to speak, and having heard the evidence upon their oath do say that the said Abner Vance is guilty of murder in the first degree in manner and form as in the indictment against him is alledged; and thereupon he is remanded to jail.

April 15, 1818 - Present the same Judge as yesterday

The Grand Jury appeared according to their adjournment of yesterday __ point out of the Court and after some time returned into Court and further presented.

An Indictment against Richard Vance as accessory to a murder a true bill, and

An Indictment against Susanna Vance for murder “not a true bill”.

They also forwarded John J. Cowan and John McFarland for a breach of the peace, And having nothing further to present the said Grand Jury were discharged.

Susanna Vance late of the county of Russell __ spinster, was led to the bar in custody of the keeper of the jail of the said county, and the Grand Jury having returned the indictment against her for murder not a true bill proclamation was made as the manner is, and nothing further appearing or being alledged against her, it is ordered that she be discharged from her imprisonment.

April 16, 1818 - The attorney prosecuting for the Commonwealth by consent of the court saith that he will not prosecute further on behalf of the Commonwealth against Richard Vance accused as accessory to a murder, therefore it is ordered, that the said Richard Vance be discharged from his recognizance.

April 17, 1818 (Friday) - Abner Vance late of the County of Russell laborer who stands convicted of murder in the first degree was once again led to the bar in custody of the keeper of the jail of the said county and thereupon it being demanded of him if anything for himself he had or know to say why the Court here to judgment and execution against him of and upon the premises should not proceed; he said he had nothing but what he had before said. Therefore it is considered by the Court that he be hanged by the neck till he be dead, and execution of the judgment be made and done upon him the said Abner Vance by the Sheriff of Russell County on Friday the 17th day of July next between eleven and the hours of the forenoon and two in the afternoon of the same day at the place of the execution of the said County.

Memorandum: At the trial of the cause and before the jury retired from the bar the counsel for the prisoner excepted to two opinions of the Court and a third after the jury retired from the bar to an opinion of the Court, which three exceptions were signed and sealed by the Court and ordered to be made a part of the record in this case.

Newspaper Article

The American Beacon and Commercial Diary

Norfolk, Tuesday Morning June 18, 1818

Extract to the Editor of the Inquirer, dated

“Lebanon (Russell County) May 2nd, 1818

At the last session of the Superior Court of law, holden in this place, Abner Vance and Sylvanus Bauer were severally convicted of murder in the first degree. The Counsel for Vance having excepted as to the opinion of the court, his execution was deferred till the law thereupon could be decided in General Court. If the exceptions are overruled, his execution, pursuant to the sentence of the court, will take place the 17th of July next.

“Execution of Sylvnaus Bauer

“This being the day directed by the judgment of the court for the execution of Sylvanus Bauer, convicted of murder in the first degree, a large concourse of citizens assembled to witness the awful and solemn scene. The prisoner was taken from the jail at about ten o’clock in the forenoon, and conveyed by the Sheriff to the place of execution distance about a half a mile from this village, where the spectators where pathetically addressed by the Rev. Mr. Ashly, and the throne of mercy supplicated on behalf of the criminal. He was then launched into eternity at about half past one o’clock.

“This person had been an inmate in the family of 3Samuel Indicot, whom he shot in the woods. The body was not found till four days after Indicot was missing. Suspicion having attached the murder to Bauer, he was arrested forthwith, but did not confess the fact till after conviction; no person saw the murder perpetrated; the evidence was merely circumstantial. The wife of the deceased is in the jail of the county, committed for trial at the September term of the superior court for this county, for advising Bauer to commit the murder; and such was the weight of the testimony against her, the court would not admit her to jail.”

May 7, 1818 - John Keen having obtained an attachment against the estate of John Vance who Vc, and the constable having made notice that he had executed the same in the hands of Francis Browning and summoned him as a garnishee; This day came as ordered the plaintiff by his attorney as the said garnishee in his proper person who declared on oath that he owed the defendant $30 due the 15th of the month one half to be paid in silver and the other half in notes; $23 due next fall, $25 payable in skins and ginseng next fall; And on motion of the plaintiff and for reasons appearing to the court ordered that this attachment be continued till next fall

September 14, 1818 (Monday) - At a Superior Court of Law held for Russell County at the Courthouse thereof on Monday the 14th day of September 1818.

Present Peter Johnston Esquire the Judge assigned to hold a Court in each of the Counties comprising of the 13th Judicial Circuit.

William Gilmore foreman, Collin Fugate, Archer Jesse, Charles Carrell, Robert Fugate, James Dickenson, Nathan Hamilton, Zachariah Fugate, Stephen Gose and John Smyth, John Counts Sen., Stephen Gose Jr., James Browning, William Browning, Lee Jesse, James Caldwell, John Jesse, David Muncey, John Johnson, William Nash, Benjamin Johnson, and William Price were sworn a Grand Jury of Inquest for the body of the County and adjourned till tomorrow 10 o’clock.

The Commonwealth against Abner Vance defendant - Upon Indictment for Murder

A copy of the judgment of the General Court bound awarding a new trial in the cause was produced in Court and ordered to be __ on the records of this court and as in the following words and figures to wit.

Virginia - In the General Court June 20th 1818 upon the petition of Abner Vance for a writ of Error to a Judgment rendered against him by the Superior Court of law for Russell County on the 17th day of April 1818 for murder in the first degree, this day came as well the Attorney General as the deft by his attorney who being fully heard, a writ of error is awarded, the said Vance, returnable further wit. And the Attorney General agrees to dispense with the execution and return of the said writ. And to receive the transcript of the record certified by the clerk of the said Superior Court upon inspection whereof the Writ of Error had been awarded, as if it had been duly certified by the Judge on the return of the writ, And he further agreed to receive the error set forth on the Plaintiffs petition instead of a formal assignment of Error, and thereto he pleaded that there is no error on the said record of the proceedings and Judgment of the Superior Court of Law. And this he is ready to certify. & which the Plaintiff replied that there is as or in the said record in manner and form as in the assignment he hath set forth and this he prays may be required of by the Court and the Attorney General likewise. And thereupon the transcript of the record of the Judgment and Proceedings fore with, being soon inspected, and due consideration had thereof, the Court are unanimously of opinion that there is order in this, that the Court rejected the evidence of the witness introduced by the prisoner to prove his insanity before the fact of which he was accused and in deciding that it was improper to introduce such proof until the prisoners insanity was proved on the day he shot the deceased. Wherefore it is considered that the said judgment be answered and annulled and a new trial awarded and in the main time that he be detained in safe custody in the Jail of the Superior Court of Russell County until the next term, and until he be discharged by due course of law. Which is ordered to be certified to the said Superior Court.

A copy Teste, Peyton Drew(?)

Whereupon a motion of the Attorney for the Commonwealth a venire facias denier is awarded returnable on this day and that said writ being returned ___. The prisoner is led to the bar in custody of the keeper of the Jail of the county and upon his motion and for reasons appearing to the Court it is ordered that this cause be continued till tomorrow and thereupon the said Abner Vance is remanded to jail.

September 15, 1818 (Tuesday) - An Indictment against William Wingo as accessory to a murder, a true bill.

William Wingo late of the County of Russell laborer who stands indicted as accessory to the murder of Lewis Horton appeared in Court according to the condition of his recognizance entered into before the Court at the last term, and thereupon the said William Wingo is ordered in Custody of the Sheriff to be committed to the jail of this County & there to be safely kept until he be tried, or otherwise discharged by due cause of law.

William Wingo of the County of Russell comes into Court and acknowledges himself to be indebted to James P. Preston Esquire Governor or Chief Magistrate of the Commonwealth in the sum of Five Hundred dollars of this lands & tenements goods & chattels to be levied and to the said Governor & his successors for the use of the Commonwealth rendered; yet upon the condition that if Polly Wingo wife of the said William Wingo shall make her personal appearance before the Court on tomorrow to give evidence on behalf of Abner Vance who stands indicted of murder and shall not depart thence without the leave of the Court, there this recognizance to be ordered.

Abner Vance late of the County of Russell laborer who stands indicted of murder was again led to the bar in custody of the keeper of the jail of Russell County and by consent as well of the Prisoners Counsel as of the Attorney for the Commonwealth the trail of the said Abner Vance is continued till tomorrow & he remanded to jail.

Ordered that the Court be adjourned till tomorrow morning 10 o’clock. Peter Johnston.

September 16, 1818 (Wednesday) - Abner Vance late of this County of Russell laborer who stands indicted of murder was again led to the bar in custody of the keeper of the jail of the said County and thereupon the prisoner by his Counsel moved the Court to continue the Cause till the next term and filed two affidavits made by the prisoner stating the reason for such motion on argument where of the Court overruled the said motion for as to which opinion of the Court the prisoner by his Counsel filed a ordered to be made a part of the record to which opinion of the court the prisoner by his Counsel files a bill of exception which a continuation, and the prisoner being arraigned upon the said indictment pleaded not guilty and for his trial put himself upon God and the County whereupon the venire men to try this case being all called and every person attending the Court qualified according to law to serve as a juror in such a case, as the Sheriff reported; and that a part of the jury being elected every other such person having been either challenged for cause by the prisoner or the attorney for the Commonwealth as peremptorily by the prisoner, it is ordered that a venire facias be awarded directed to the Sheriff of Russell County commanding him to cause to come before this Court on tomorrow forty eight persons qualified as the law requires for venire men returnable here tomorrow and thereupon the said Abner Vance is remanded to jail.

Ordered that the Court be adjourned till tomorrow morning 10 o’clock. Peter Johnston

An indictment for Daniel Horton for an assault, a true bill.

Others with Indictments for assault that day were, Shadrick Clark, William Irvine, Daniel Horton, Michael Kinser, and Isaac Jackson. Spenser Breeding for retailing liquor, William Owens assault, George Cowan, John Gray, Nimrod Kizer for assault, James Thompson, for assault and challenge for a dual, and then the Grand Jury having nothing further to present were discharged.

September 17, 1818 - Present the same Judge as yesterday.

Abner Vance late of the County of Russell laborer who stand indicted for murder was again led to the bar in custody of the keeper of the jail of the said County and the venire facias awarded on yesterday in this cause being returned executed and all the person attending the Court this day as well as those brought hither by the said Venire Facias qualified according to law to serve as venire men having been exempt from challenge, it is ordered that a new venire facias be awarded to the Sheriff of the said county discharged requiring him to cause to come before the Court on tomorrow forty eight persons qualified as the law directs for venire men, returnable here on tomorrow and thereupon the said Abner Vance was remanded to jail.

On the motion to Samuel Ritchie Senior to quash an execution served out of the Court in the name of William McKee & Edward M. Greenway against Samuel Ritchie Jr. the said Samuel Ritchie Senior and George Kendrick’s. This day came as with the plaintiff by her attorney as Rodah Horton for where benefit the said execution is admitted to have been issued by his attorney and it appearing that the said Rodah Horton her Counsel or against has not been notified hereof as the law directs, it is considered that the motion be dismissed at the plaintiffs cost. (This is a separate issue to the trial of Abner)

On the motion of William Wingo who has been committed to the jail of the County upon an Indictment charging him as accessory to a murder he is admitted to give bail for his appearance before the Court at the next term to answer for the felony aforesaid, whereupon the said William Wingo and George Wiser of the County of Russell, James Brown and John Brown of the County of Tazewell here in Court severally acknowledged themselves to the indebted to James P. Preston Esquire Governor or Chief Magistrate of the Commonwealth of Virginia the said William Wingo in the sum of One Thousand dollars and the said George Wizer, James Brown and John Brown in the sum of three hundred and fifty dollars each of their respective lands & tenements goods and chattels to be levied and to the said Governor and his succession for the use of the Commonwealth rendered, yet upon the condition that if the said William Wingo shall personally appear here before the Judge of the Court at the next term to answer the Commonwealth of and concerning the charge aforesaid, and shall not depart thence without the leave of the said Judge, then this recognizance to be void, and this case is continued till the next term.

September 18, 1818 - Abner Vance late of the County of Russell laborer who stands indicted of murder was again led to the bar in custody of the keeper of the jail of the said County and it appearing to this court at 35 minutes past two o’clock on the 5th day of the term that only seven persons have been elected to serve as jurors in this case, none of them whom have been sworn, that this prisoner has thirteen preemptory challenges yet to make and that on execution of the order of yesterday to summon 48 persons to serve as jurors only 17 have been found & summoned by the Sheriff and the Counsel as well for the Commonwealth as the prisoner concurring with the Court in opinion that a cannot be made up & the cause tried during this term which will and from necessity at 12 o’clock tomorrow evening. It is ordered that the trial of this cause be put off till the next term, and thereupon the prisoner is remanded to jail.

Thomas Bundy keeper of the jail of Russell County presented his account against the Commonwealth amounting to the sum of one hundred and seventeen dollars and seventy seven cents for imprisonment, releasing, maintenance and execution of the Criminals the account of several persons who have served as guards for the safe keeping of prisoners in the jail in the County to wit: Thomas McClure one dollar and fifty cents, Nicholas Lazier seventy two dollars and fifty cents, Euagey Price seventy two dollars, and Mark M Wright seventy four dollars, William Robinson seventy six dollars, George H. Hendrick seventy six dollars and fifty cents, and Jefferson Candler forty eight dollars and fifty cents, and Jesse West one dollar and fifty cents, which several accounts being present either by the oath of the jailer on other persons were allowed by the Court and ordered to be certified to the Auditor of Public Accounts.

Ordered that Harry Smith Sheriff of Russell County be allowed eight dollars and eighty seven and a half cents for seeking lodging & other provisions for persons elected to serve on the jury for the trial of Abner Vance and five dollars and seventy five cents for summoning sixty four persons in the country to attend the Court at this term exclusive of the venire in the Case of an Indictment against Abner Vance for murder which are ordered to be certified to the Auditor of the Public Accounts.

Judge Johnston - His Letter

Abner did get his new trial based on the Cause of Insanity, which the jury did not hear any facts regarding the mind set of Abner, or the insanity defense; which was not allowed in his first trial. Thus, the second trial was held in Washington County as a change in venue was ordered, as it was impossible to find a jury in Russell County, however the records for this second trial are nowhere to be had in Washington County. What we can now derive is that they do or did exist somewhere, as Brockenbrough wrote about the case to include the Washington County records. These records were not found in Richmond or in Abingdon.

It is on December 2, 1818; Peter Johnston writes a letter to the House of Delegates pleading for a change of law using the trial of Abner Vance for this basis. Thomas Ritchie, Printer for the Commonwealth included this letter in the Journal of the House of Delegates. In this letter Judge Johnston states the facts, or evidence presented in the trial. Was there any prejudice to this letter, we will never know. Abner Vance and his Counsel secured such evidence, that prejudice by Peter Johnston who anonymously wrote a newspaper article in the 4Political Prospect, of Abingdon on June 13, 1818, noted in a transcript written by William Brockenbrough, Cases of the General Court of Virginia. Judge Johnston wrote that 2 men were tried for murder and noting in this article that Abner Vance was regarded as an “unfeeling savage”. Abner and his Counsel were able to prove that it was Peter Johnston who wrote the article during his first trial in Russell; but did not know the anonymous author until the second trial. Its Cause was heard by the Washington Court, but the Court felt that the jurors had never read or known of the newspaper article, or that it did not inflict harm on the sentencing of Abner. Thus, it was regarded as an unwarrantable issue by the court, as the jurors were asked if the article had any consequence on their judgment of Abner, the jurors said……it did not, then the Judge for Washington County states;

“The jury then must be considered as having acted and decided impartially.”

From the Brockenbrough rewrite of the case of Abner in the second trial, this was said about the actions of Judge Peter Johnston relative to prejudice sited by Abners defense;

“The Court is of opinion that, although the official conduct of the Judge of the 13th Circuit is directly 5inculpated by the nature and character of this motion, and for that reason, a decision therein, by adjourning to the General Court the question which is involved, might be declined, yet that the principles of public justice require that the motion be now decided.”

Abner by his Counsel tried in the second trial to include many exceptions, but the Court of Washington in the second trial over-ruled all remaining motions.

Peter Johnston’s letter below written December 2, 1818, explains what happen on the day Lewis Horton was murdered. What was added as testimony to the Legislature will be regarded as the truth, as it is the only known document in existence that gives this detail of the murder of Horton. Certainly, it is what was left out of this letter which will be in question for years to come by Vance descendants. The Judges in Washington County found no evidence of prejudice on the behalf of Judge Johnston.

JOURNAL OF THE HOUSE OF DELEGATES FOR THE COMMONWEALTH OF VIRGINIA

Begun and Held AT THE CAPITOL IN THE CITY OF RICHMOND IN THE SEVENTH DAY OF DECEMBER, ONE THOUSAND EIGHT HUNDRED AND EIGHTEEN

Printed by Thomas Ritchie for the Commonwealth

The Communication of Judge Johnston was read as follows;

Sir - A criminal case, attended by peculiar circumstances, and involving difficulties which can be removed by the Legislature only, has occurred in the county of Russell.

At the circuit court held for that county in the month of April last. Abner Vance was indicted for the murder of Lewis Horton and by the jury impannelled for his trial convicted of murder in the 1st degree. Sentence of death was pronounced upon him in consideration of this conviction, but his execution was delayed that he might have an opportunity of applying to the General Court for a writ of error, because it was contented that the opinion of the court which tried him in certain points exhibited by a bill of exception for was not correct. The General Court at the last June term decided that the opinion of the Circuit Court on one question presented by the record was erroneous, directed the verdict to be set aside, and awarded a new trial of the case. In the month of September last the Circuit Court for the county of Russell was occupied until the evening of Friday, the fifth day of the term, in efforts which proved ineffectual to bring the prisoner to another trial. So great a concourse of people had attended, heard the evidence and expressed an opinion, on the trial in April, that few individuals in the county were exempt from such objections as rendered them enable to challenge for Cause, and the prisoner availed himself of his right of peremptory challenge to the greater number of those against whom a challenge for cause did not lie: Although the court was numerously attended as long as it continued to sit and the Sheriff every evening was required to go into the country and summon forty-eight jurors to appear on the succeeding day, it was ascertained with perfect certainty, that there is no possibility of making up a jury for the trial of this man in the county of Russell. And as no Court in Virginia passes the power of changing the venue in a criminal case, he cannot under existing laws be brought to trial in another county. For the purpose of exhibiting the character of the offense committed by Vance, give me leave to state in substance, but with precision, the testimony of the witnesses examined in his trial. The prisoner lived near Clinch river and walked down to a ford at no great distance from his dwelling on the morning of September 22, 1817, carrying his rifle, and declaring he had loaded it for the special purpose of shooting Daniel Horton, the brother of the young man afterwards slain; and, that he would not only kill him, but three others whom he named. Lewis Horton soon appeared in view, riding along the road which leads across the river near the place where Vance was waiting, as he said, to shoot Daniel Horton. As soon as the young man came within such a distance that his person was identified, Vance said “yonder comes Lewis Horton, and I have a mind to kill him.” He approached Vance and saluted him with civility. Vance charged him with having sworn his life away; language, which had reference to a deposition given a few days before by Lewis Horton, in a suit in Chancery depending before Chancellor Brown. Horton expressed his astonishment at this charge and inquired what Vance had understood to be the purport of his deposition. Upon hearing Vance’s reply, Horton assured him he was mistaken or misinformed, and proceeded to repeat what he really had stated in the before mentioned deposition. Vance then expressed himself fully satisfied, declared to Lewis Horton he had nothing against him, and asked, “Have you anything against me”…”Nothing,” said the young man, in a mild language and manner, “except that I do not like to see you have drawn your gun upon me,”. “Help yourself as you can, I believe I will shoot you now,” said Vance. Horton and a certain Joseph Fowlkes who was present, observing from the tone and countenance of Vance, the horrid purpose which he meditated, began to implore his mercy; but he raised his gun, leveled it at Horton, while he was endeavoring to make good his flight across the river, and tried when he was not a greater distance than thirty paces, shooting the ball through the body of this victim, near the back bone, and a little below the shoulder blade. As he fell from his horse into the water, Vance poured forth execrations too bitter and horrible for repetition, and threatened with death an old man from the opposite shore, who advanced into the river, hoping that Horton’s life might yet be saved. But in this, he was mistaken. Although the young man was rescued from immediate death by drowning, he survived his wound but a short time expiring on the sixth day after its infliction. It is not only probable, but certain, that other instances will arise under the present judiciary system of this State, requiring the special interference of the Legislature, unless some general law should be enacted, the provisions of which may be adequate to the prevention, of remedy of evils and difficulties, such as have occurred in the case of Abner Vance. I have made this communication from a persuasion, that if the subject appears as important to you, as it does to me, you will lay it before the General Assembly.

I have the honor to be, with high consideration and esteem, Sir, Your obedient Servant.

Peter Johnston

Abingdon, December 2d, 1818

On Motion of Mr. McFarlane,

Ordered that the said communication he referred to the Committee on the subject of the revision of the laws,

The speaker laid before the House, a letter from Governor, inclosing the Annual Report of the Board of Public Works, and a Report of a Committee of the said Board.

On motion of Mr. Alexander of Rockbridge.

Ordered that the said letter and reports be laid upon the table; and that 250 copies thereof be printed for the members of the General Assembly.

And the House adjourned until tomorrow twelve o’clock.

_______________________________________

One could wonder why Judge Johnston fought so hard to convict Abner, to hang Abner in his Court and in the Newspapers, and in the Legislature. But one would ask why. Was Abners case so different than that of any other had in his court? Brockenbrough writes that Abners Counsel declared prejudice in the Russell Court room as Judge Peter Johnston said words of his guilt before his conviction. Brockenbrough wrote;

“He also shewed by the Record, that the Judge of the 13th Circuit, in over-ruling a motion for a continuance at September Term, 1818, in Russell Superior Court, gave an opinion unfavorable to the prisoner, on a material question arising in his defense, in relation to his alleged insanity.”

With regret one would say after reading Judge Johnston’s letter that Abner killed a man and that Judge Johnston did what he had to do to bring Abner to his sentence of death for what was deemed his punishment by Judge and Jury.

Not only was there a letter written to the Legislature by Peter Johnston, but too by James Caswell, Superior Clerk of the County of Russell.

Was the Judge and others in this case as alleged in “The Vance Song” out to make good…..we will never know, but it does seem to point in that direction. At least in the eyes of Abner as he writes;

6The judge said he was my friend, though Elliot’s life I saved. A jury man, I did become, that Elliot, he might live.

The friendship that I have shown to others has not been shown to me. Humanity, it belongs to the brave and I hope it remains with me.

It was by the advice of McFarland that Judge Johnson did me call. I was taken from my native home and placed in yon stonewall.

My persecutors have gained their quest, they promised to make good. They swore that they would never rest till they had gained my life’s blood.

Remembering that Abner was awarded his new trial based on the lack of testimony which could have been presented by his daughter in court as to his insanity. It seems that others did give testimony of his insanity. To what extent Brockenbrough does not write.

What was the testimony of the daughter and which daughter? Tabitha Browning is the only daughter mentioned in the witness list for Abner. And she was married and would not have seen her father for days as was stated by Brockenbrough in his rewrite of the case. Now that we have proof that a daughter wanting to give testimony, we can rule out the Susannah mentioned in the Russell Court records is his daughter. Abner did not have a daughter named Susannah according to Abner Vance researchers. However, Abners wife was named Susannah and their home near the Ford, so she would have been present at the time of the killing of Horton, so she could be deemed an accessory to murder. Thus, pointing to the wife as who is mentioned in the Russell County Court Records; although circumstantial…..it fits.

In the Will of Jane Allen, she has in her Inventory of Estate a loom, sheep, wool card, cotton card, flax wheel and cotton wheel. All used for making clothe and linens. Spinning usually a skill passed down from mother to daughter, like cooking. Some women used it in the everyday household, while others much more fortunate, paid women for spinning cloth for them. The word Spinster also can share the connotation of “Spinner”. As Abner was called a “Laborer” in court records Susannah may be called a “Spinster”.

Jane Allen Inventory as written - The Property of Jane Allen deceased, three basons, two dishes, ten plates, eight spoons, a case of knives, and forks, two cups, 2 quart cups, one pot, one dutch oven, one kittle, one skillet, two glass tumblers, two water poles, two cotton wheles, two flax wheles, two chest, three beads stads, two beads, and furniture, one mans saddle, one womans saddle, two smoothing irons, two iron pot racks, a half dozen ch?? two tables, one bridle, one currycomb, one pare of cotton cards, one pare of wool cards two iron wedges, one mattick, fore hoes, two shovel, plows, one pare of fire tongs, one fire shovel, two axes, one loome, one set of swingles, trees, two yearlings kids? fore sows, and twelve pigs, three head of sheep five head of cattle, one hundred and fifty acres of woodling land, one flax hackle, two barrels, eight hogs heads, three meet tubs, one cog and powdering tub, one yearling colt.

The hole amount of this property was sold and bought for ninety pounds sixteen shillings and ten pents.

Charles Howard

James Howard

Now I leave the door open to interpretation of the word Spinster as it carries many definitions from an unmarried woman to an elderly unmarried woman, a man who spins, to a woman who spins, even used as a title to a surname. It was used in the case of Sarah Indicot wife of Samuel Indicot at the time of her trial in Russell County. She was a widow but known in court documents as a “Spinster”. Yet she was a married woman and recent widow with grown children at the time of her husband’s murder. She was not found guilty in his death. Interpretation of the word is just that of the court clerk. He could have used the word as you and I use Mr. or Mrs. Interpretation is that of the reader until further proof be had.

Horton and Caswell Petition

December 10, 1818 - James P. Caswell writes a letter for Daniel Horton to the Legislature asking for a change in venue, so that the proceedings of Abners case would be heard in Washington County. What struck me are these words by Horton and Caswell;

“That in consequence of the exclusion of some testimony not materially varying his case, he obtained a wit of error and reordered the judgment in the General Court; this awarded him a new trial.”

The petition by Horton and Caswell was rejected December 12, 1818. Horton’s letter to the Legislature states:

To the Honorable the Legislature of Virginia

The petition of Daniel Horton of the County of Russell respectfully represents.

That in the year 1817 Abner Vance of the County of Russell, committed a murder upon the person of your petitioners brother, in the said County, that at the Spring Term of the Superior Court of law of the said County he was tried and found guilty of the said offence, and sentenced to undergo capital punishment therefore. That in consequence of the exclusion of some testimony not materially varying his case, he obtained a wit of error and reordered the judgment in the General Court; this awarded him a new trial. That at the last fall term of the said court an attempt was made to empanel a jury to try him which failed because nearly all those summoned had expressed an opinion on the Case. That the Court anxious to procure a trial of the Case, after the original panel had been disposed of and all the bystanders summoned, without enabling the Court to obtain a jury; issued a Venire Facias and directed the Sheriff to produce from day to day, forty eight persons qualified to serve as jurors. That on the fifth day of the term but seven jurors could be obtained; and the Court being convinced the report of the Sheriff that a jury could not be formed at that term, continued the Cause. A copy of the record herewith exhibited; will shew the difficulty to be encountered, in obtaining a jury in the County of Russell to try this Cause. Your petitioner believes, and it is the general belief in his County, as also of the Court and bar, that almost every man in the said County otherwise qualified to serve as a juror, has disqualified himself by the exception of an opinion; so that it is believed to be impossible ever to try the said Vance, unless he can be removed to, or jurors form some other County can be impaneled to try him. Your petitioner is aware of the difficulty of proving a legislature remedy for this Case on account of that clause of the bill of rights, which secures to every man accused of a crime, a speedy and impartial trial by a jury of the Vicinage; but in this Case, so far from a Speedy trial, it is believed no trial is practicable for the Causes above stated. Your petitioner therefore submits the Case to the wisdom of the Legislature, hoping that if any remedy can be applied, it will be promptly afforded, and a way provided in which the justice and laws of the Country can operate upon a Crime ____alled in attrocity.

And your petitioner as in duty bound will ever pray Vc. Daniel Horton

Accompanying Horton’s letter were 2 pages of the trial transcript for September 16th, 17th and 18th Russell County records rewritten by James P. Caswell C.S.C. (i.e. Clerk Superior Court). They are not included here as you can reference the underlined and dated court records.

_________________________________

Last attempt by Judge Johnston in Russell County

It is noted in the Russell County records that Judge Peter Johnston did try to give Abner a second and new trial in Russell County Court. However, it was impossible to find a jury of men who could sit in this venire. Abner by his Counsel successfully was able to reject many of the jurors who the Sheriff thought qualified to sit. So the case was transferred to Washington for its second trial. All the witnesses posted their bond for the new trial in Washington including Tabitha Browning.

April 12, 1819 - Present Peter Johnston Esquire

The Judge assigned to hold the court in each of the counties comprising of the 13th judicial circuit.

The court wishing to make another effort for the trial in the County of Russell of Abner Vance late of said county laborer who stands indicted of murder, doth order that a venire facias be issued to the Sheriff of said county directed commanding him to cause to come before this court on tomorrow twelve persons qualified according to law for the trail of said Vance returnable here tomorrow.

April 13, 1819 (Tuesday) - Abner Vance late of the County of Russell laborer who stands indicted of murder was again led to the bar in custody of the keeper of the jail of the said County and it appearing thereof arraigned and pleaded not guilty to the said indictment and for his trial put himself upon God and his country and the venire summoned in virtue of the process of this court awarded yesterday in this cause as also every other person attending the court qualified according to the law (as reported by the Sheriff) having been called and but two jurors being selected therefrom upon the motion of the prisoner by his counsel it is ordered that a venire facias be awarded by the Sheriff of Russell County directed commanding him to Cause to come before this court on tomorrow by 10 o’clock in the morning 24 persons qualified according to law to serve as venire men returnable here on tomorrow and that in the mean time the said two selected jurors be kept together by the Sheriff so that they have no communication with any individual whatever accept himself on the subject of their accommodations which by him is to comfortably provided for; and thereupon the said Abner Vance is remanded to jail.

Judge Peter Johnston

April 14th 1819 - Wednesday April the 14th 1819 - Present the same Judge as yesterday.

Abner Vance late of the County of Russell laborer who stands indicted of murder was again led to the bar in custody of the keeper of the jail of the said county and the twenty four men summoned in virtue of the process awarded yesterday in the case as also every other person attending the court qualified according to la, as reported by the sheriff having been called, but one reported by the Sheriff having been called but one additional juror elected therefrom: Whereupon from the number of challenges for cause made by the prisoner of this case as well at the present term as at the last it appears to the satisfaction of the court that an impartial and legally qualified jury cannot be had for the trial of the prisoner in the County of Russell. It is therefore ordered that the venue in this case be changed to the Superior Court of law for the County of Washington, which will commence on the thirty first day of May next, the most convenient Superior Court of law in the thirteenth Circuit; when, in the opinion of this Court the Commonwealth and the prisoner can have a fair and impartial trial; and thereupon the prisoner is remanded to jail. And it is further ordered that the said prisoner be retained in safe custody on the jail of the county of Russell until the Sheriff thereof shall under the authority of a warrant from the judge of this Court to be directed to him for that purpose, remove his body to the place for holding the Superior Court of law for the said County of Washington.

William Arden, Catherine Arden, Isaac Arden, John Wilson Jun., Larkin Howard, Ezekiel Daniel, Rhoda Wilson, Harry Smith, George Kendrick, John Scaggs, John Olinger, Andrew Cowan, Joseph Fulks, Oliver Crawford, Travis Kindles, John Harper, Abner Thompson, Daniel Horton, William Horton, James McFarland, and James P. Carrell come into and acknowledge themselves to be indebted to James P. Preston Esquire Governor of Chief Magistrate of the Commonwealth in the sum of five hundred dollars each, of their respective lands and tenements goods and chattels, to be levied, and to the said Governor and his Successors for the use of the Commonwealth rendered: Yet upon the condition that if the said William Arden, Catherine Arden, Isaac Arden, John Wilson Jun., Larkin Howard, Ezekiel Daniel, Rhoda Wilson, Harry Smith, George Kendrick, John Scaggs, John Olinger, Andrew Cowan, Joseph Fulks, Oliver Crawford, Travis Kindles, John Harper, Abner Thompson, Daniel Horton, William Horton, James McFarland, and James P. Carrell shall severally make their personal appearance before the Judge of the Superior Court of law to be holden for Washington County at the Courthouse thereof on the first day of the next term of the said Superior Court of law for Washington County to give evidence on behalf of the Commonwealth against Abner Vance accused of murder and shall not depart thence without the leave of the said Judge then this recognizance to be void.

Squire Wingo, Robert Shortridge, Thomas Brown, John Brown, Patrick Kendrick, Elizabeth Kendrick, Daniel Green, John Green, William Green, Shadrick White, William Vance, George Steel, John Prater, James Preter, Frederick Stiltner, Elizabeth Stiltner, Tabitha Browning, Stephen Coleman, James Lester, George Belcher, Thomas Wilson, Francis Davis, Isaac Spratt, Francis Browning, Daniel Clark, Joseph Fulks, Laney Fulks, Andrew Caldwell, Isaac Jackson, Edward Elswick, Jacob Weddington, Daniel Horton, Mary Horton, George Wizer, Henry Wizer, John Stinson, Henry Asbury, William Wingo, Mary Wingo, Johnson Howard come into Court & acknowledged themselves to be indebted to James P. Preston Esquire Governor or Chief Magistrate of this Commonwealth, in the sum of five hundred dollars each, of their respective lands and tenements goods and chattels to be levied and to the said governor and his Successors for the use of the Commonwealth rendered. Yet upon the condition that if the said Squire Wingo, Robert Shortridge, Thomas Brown, John Brown, Patrick Kendrick, Elizabeth Kendrick, Daniel Green, John Green, William Green, Shadrick White, William Vance, George Steel, John Prater, James Prater, Frederick Stiltner, Elizabeth Stiltner, Tabitha Browning wife of the said Frances Browning, Stephen Coleman, James Lester, George Belcher, Thomas Wilson, Francis Davis, Isaac Spratt, Daniel Clark, Laney Fulks wife of said Joseph Fulks, Andrew Caldwell, Isaac Jackson, Edward Elswick, Jacob Weddington, Mary Horton wife of said Daniel Horton, George Wizer, Henry Wizer, John Stinson, Henry Asbury, Mary Wingo wife of said William Wingo, Johnson Howard shall severally make their personal appearance before the Judge of the Superior Court of law to be holden for Washington County at the Courthouse thereof on the first day of the next term of the said Superior Court of law for Washington County to give evidence on behalf of Abner Vance accused of murder, and shall not depart thence without the leave of the said Judge, the this recognizance be void.

The First and Second Trial - the conclusion and punishment

On April 14, 1819, appears to be the last entry in Russell County for the Case of Abner Vance. No records have been located within Washington County. But at some time they did exist as William Brockenbrough writes of this case, on both the first and second trials of Abner Vance and in great detail of each cause presented by the attorneys. It’s the only known record in existence that contains the Washington County detail. The second trial begins on May 31, 1819 in the Superior Court of Washington County. This document is provided as a courtesy of Janice and Tom Vance.

VIRGINIA CASES

OR DECISIONS OF THE GENERAL COURT OF VIRGINIA CHIEFLY ON THE CRIMINAL LAW OF THE COMMONWEALTH, COMMENCING JUNE TERM, 1815, AND ENDING JUNE TERM, 1826, WITH AN INDEX OF THE PRINCIPAL MATTERS IN THIS AND THE PRECEDING VOLUME. VOL.II. BY WILLIAM BROCKENBROUGH ONE OF THE JUDGES OF THAT COURT, RICHMOND: PUBLISHED BY PETER COTTON, AND FOR SALE AT HIS LAW AND MISCELLANEOUS BOOK STORE. 1826

Page 132

June Term, 1818

Abner Vance V. The Commonwealth

Where the defense of a prisoner is insanity of a prisoner, is insanity before the act committed improper, without first proving the insanity at the time of its commission.

This was an application for a 7Writ of Error to a judgment against the petitioner, in the Superior Court of Russell County. The prisoner was indicted for murder of Lewis Horton. At his trial, there were three Bills of Exceptions taken to the opinion of the Court. The first Bill stated that, “John Chandler, one of the venire, being called and sworn on the 8voir dire, stated, in answer to the interrogatory by the Court, ‘have you made up and expressed an opinion in this case?’ That he had made up, from the rumor of the country, this opinion, that if the facts of the trail, then his opinion would be in conformity to those facts; but if the facts and proof should appear different from the rumor and the opinion which he had formed of it. And being further interrogated by the court, the said Chandler said he had not heard the evidence or any part of it; that he felt no prejudice against the accused, and believed in his conscience he could do the accused as much justice as any other person, and try his case free from any bias or prejudice whatsoever. Whereupon, the prisoner by his Counsel, challenged the said John Chandler for the above stated, and insisted that the said Chandler was, in consequence thereof, an unfit juror to pass upon his Case; But the Court decided that the cause alleged was insufficient to constitute a good ground of challenge, and directed the said Chandler to look upon the prisoner, upon which the prisoner peremptorily challenged him. To the said decision the prisoner excepted.”

The second Bill of Exceptions stated, “that the prisoner introduced his daughter, a witness, to prove the insanity of the prisoner before the fact, of which he is accused, was committed; but such evidence being objected to by the Attorney for the Commonwealth, the Court decided that it was improper to introduce such proof until the prisoner’s insanity was proved, stating that she knew nothing of the prisoner on that day nor for some days before, was not further interrogated. To that opinion the prisoner excepted.”

The third 9Bill of Exception is unnecessary to be set forth. The prisoner was convicted, and sentence of death was passed upon him.

(Page 133) Mr. Leigh on behalf of the prisoner, now prayed for a Writ of Error, alledging, “that he is aggrieved by the opinion of the Court, stated in the second Bill of Exceptions; the Court having there decided, that it was improper to introduce a witness for the prisoner to prove his insanity, before the fact he was accused of was committed, until his insanity was proved on the day he shot the deceased; and the witness stating that she knew nothing of the prisoner on that day, nor for some days before, was not further interrogated. Now your petitioner humbly represents, that although no proof was adduced to shew his insanity on that day on which the fact was committed, yet evidence of insanity recently preceding the fact, ought to have been admitted, in order that the jury, having evidence of insanity before them, might be enabled to judge from the circumstances attending that 10malady, whether it probably continued until the perpetration of the fact, or was mere temporary in it’s nature.”

The Writ of Error was awarded, and the Attorney General agreeing to dispense with the emanation of the Writ, and to receive the Record on which the petition was founded, as if verified on the return of a 11Certiorari, pleaded thereto “ 12in nullo est erratum,” and the court having inspected the Record, decided unanimously that the judgment should be reversed, the same being erroneous in this, “that the Court rejected the evidence of the witness introduced by the prisoner, to prove his insanity before the commission of the fact of which he was accused, and in deciding that is was improper to introduce such proof until the prisoner’s insanity was proved on the day he shot the deceased.” A new trial was therefore awarded.

Page 162

13JUNE TERM, 1818

Second Case

An indictment for murder need on conclude 14contra formam statuti, although a punishment variant from the Common Law punishment is prescribed by Statute for the second degree of the offence.

The Act of Assembly which directs, that on a change of venue in a Case of Felony, the Judge shall certify the recognizance’s, together with a copy of the record of the Case, “and all other papers which he may deem necessary to the trial, “does not require that the Judge should certify a copy of the record of the Examining Court.

If a prisoner has been tried and convicted of a crime, and a new trial awarded to him, although he should not be again tried till after the third Term, (subsequent to his examination) he is not entitled to a discharge.

The venue being changed from the county of R. to that of W. a plea that the murder was committed in R. and that therefore the Court of W. has no jurisdiction, is had on 15demurrer.

Nor can the array of the jury be challenged because they were summoned by the Sheriff of W.

A prisoner having been arraigned and pleaded in the county in which the offence was committed, need not be arraigned, or required to plead, in the county to which the venue is changed.

A new trial was asked for by the prisoner, because an account of the evidence given on a former trial, with a harsh expression towards him, was published in the county of his second trial, in a newspaper printed there, the Judge of the Court having been the writer of that statement, but refused, the jury opinion, the fact of the Judge being known till after the trial, he not having during the trial given an opinion to the jury, and no prejudice shewn to exist on the minds of the jury.

This was an application of the judgment against the petitioner in the Superior Court of Law for Washington County. He had been indicted, tried, convicted, and sentenced to death by the Superior Court of Russell County, in April, 1818, for the murder of Lewis Horton. That judgment was reversed by the General Court, in June, 1818, and a new trial awarded.

At the September Term, 1818 of the same Court for a continuance of the Cause till next Term, upon an affidavit setting forth the materiality of certain witnesses, and their absence, subpoenas having been taken out to compel their attendance. The motion was over-ruled by the Court for several reasons, which are set forth; and in assigning those reasons, this remark was made by the Court: “and the Court, considering the prisoner as a man of considerable sagacity and artifice, evinced by various circumstances which have occurred at this Term, is of opinion that the motion is made to gain time.”

(Page 163) The motion for a continuance being over-ruled, the prisoner was put upon his trail, and the 16venire summoned to try the Case being all called, and every person attending the Court, qualified according to Law, to serve as a juror in such a Case, as the Sheriff reported, and but part of the jury being elected, every other such person having been either challenged for cause by the prisoner, or by the Attorney for the Commonwealth, or peremptorily by the prisoner, a 17venire facias was awarded by the Court, directed to the Sheriff of Russell county, commanding him to cause to come before the Court on the then to-morrow forth eight persons, qualified as the Law requires, for venire-men, returnable on the said next day. On that day, which was Thursday, the venire facias was returned executed, and all the persons attending the Court, as well as those brought by the venire facias, who were duly qualified, having been called, and a jury not being yet selected, another venire facias for forty-eight others was awarded, returnable on the next day. On that day, the venire facias having been returned, and it appearing to the Court, “that on that fifth day of the Term, at thirty-five minutes past two o’clock only seven persons have been elected to serve as jurors, none of whom have been sworn, that the prisoner has still thirteen preemptory challenges yet to make, and that in execution of the process of yesterday, only seventeen persons have been found and summoned by the Sheriff, and concurring in opinion with the Court, that a jury cannot be made up, and the Cause tried during this term, which will end from necessity at 12 o’clock tomorrow evening,” it was ordered that the trial be postponed till the next Term.

Between those Terms the Act of Assembly passed, which authorities the Superior Court of Law, for certain causes to change the venue in cases of treason or felony. See the 18Act 1 Rev. Code of 1819, ch. 169, ~ 9, p 601.

On the first day of the Term, April, 1818, the Superior Court of Russell awarded a venire facias for twelve qualified jurors, returnable on the next day. On the second day, the venire summoned by virtue of that writ, as also every other person attending the Court qualified according to Law, (as reported by the Sheriff,) having been called, and but two jurors selected therefrom, upon the motion of the prisoner, by his Counsel, another venire facias was (Page 164) awarded, returnable on the next day, commanding the Sheriff to cause twenty-four freeholders, &c to come, and two selected jurors committed to the Sheriff’s custody, with the usual injunctions. On the third day, the twenty-four persons summoned by virtue of the last process, and every other persons summoned by virtue of the last process, and every other person attending the Court, qualified according to Law, (as reported by the Sheriff,) having been called, but one additional juror was elected therefrom. “Whereupon, from the number of challenges for cause made by the last, it appears (says the record,) to the satisfaction of the Court, that an impartial and legally qualified jury cannot be had for the trial of the prisoner in the county of Russell: it is therefore ordered, that the venue in this Case be changed to the Superior Court of Law for the county of Washington, the most convenient Court in the 13th Circuit, where in the opinion of this Court, the Commonwealth and the prisoner can have a fair and impartial trial.”

Accordingly, on the first day of the ensuing Term of the Superior Court of Washington, on the 31st May, 1819, the prisoner was set to the bar, and appearing in an emaciated state, his Counsel moved the Court that a physician be appointed to examined whether the state of the prisoner’s health be such as to enable him to undergo the fatigue of a trail; accordingly, three physicians were appointed, who reported that the prisoner had some fever, but not so much as to injure him more in remaining at the bar, and undergoing the fatigues of his trial, than to be confined in jail. The prisoner thereupon craved over of the record of the Examining Court, and the trial postponed till the next day. On the second day of the Court, the record of the Examining Court was produced, certified by the Deputy Clerk of Russell County Court. The Counsel for the prisoner thereupon moved the Court to discharge him, the proceedings of the Examining Court not being certified to this Court by the Judge of the Superior Court of Law for the county of Russell, as the said Counsel alledged they ought to have been, in pursuance of the 9th section of the Act of the last session, passed 26th February, 1819, which directs the said Judge to certify a copy of “all other papers which he may deem necessary to the trial,” but the said proceedings of the Examining Court are attested by the Deputy Clerk of the County Court of Russell, who is not authorized, as the Counsel alledges, to certify the said proceedings in this Court; (Page 165) But the Court being of opinion, that the said Act of Assembly required only a certificate of the record and papers belonging to the Case, in the Superior Court of Law for Russell county, and it not appearing that the record of the Examining Court was there filed among the papers belonging to this Case, nor made part of the record, and the court being further of opinion, that the record as certified, is proper evidence of the fact that an Examining Court than been holden, over-ruled the motion.

19The Counsel for the prisoner then moved the Court to discharge him, because the Examining Court was holden, on the 16th October, 1817, and three terms of the Superior Court of Russell have since been held, to wit: in April, 1818, in September, 1818, and April, 1819, and the prisoner has not yet had his trial. But the Court over-ruled the motion, because the prisoner had been tried at the April Term of the Superior Court of Law for Russell, 1818, had been convicted, sentence pronounced on him, but execution had been prevented by a judgment of the General Court, reversing that judgment, and directing a new trial, and because every effort was made to bring him again to trial at the September Term of the Circuit Court of Russell, 1818, and at the April term of the said Court, 1819, but no trial could be had at either of those Terms, for reasons which sufficiently appear by the record of this Case, from the said Circuit Court of Russell.

The prisoner then pleaded that the killing of Lewis Horton, by him, happened in the county of Russell within the jurisdiction of the Superior Court for Russell, as in the said Indictment is alledged, and not within the jurisdiction of the Superior Court of Washington, &c. The Attorney for the Commonwealth demurred to the said plea; and the Court sustained the demurrer, and over-ruled the said plea to the jurisdiction.

The prisoner challenged the array of the jury returned to try him, alledging for cause of this challenge, that the act for which he is to be tried, was committed in the county of Russell; that the prisoner is an inhabitant of the county of Russell; and that the jury returned have been summoned by the Sheriff of the county of Washington, by virtue of a venire facias issued by the Clerk of the Superior Court of Washington, and that the jurors are freeholders and inhabitants of the said county of Washington, and not of the vicinage of the prisoner; wherefore he prayed that the said (Page 166) array might be squashed. Which motion was over-ruled by the Court.

The prisoner was then put on trial, and the trial running to such a length that it could not be concluded on the day of trial, the jurors were directed to be kept together by the deputy Sheriffs, they having been sworn and charged for that purpose, so that the jurors may have not communication but with each other. On the next day he was convicted of murder in the first degree.

On a subsequent day, the prisoner moved the Court for a new trial, on the following grounds: He proved that a newspaper was printed in the town of Abingdon, county of Washington, called the “Political Prospect;” that there are about one hundred subscribers in the county aforesaid to said newspaper, and that it circulates more in that , than in any other county; that in that newspaper, printed 13th June, 1818, was inserted a publication, subscribed, “A Citizen of Washington” of which the Judge of the 13th Circuit, (then on the bench) was the author. The publication is then set forth in 20haec verba: the publication purports to give a statement of the evidence, given in the Superior Court of Russell, on the trial of two persons for murder, one of whom was the present prisoner, and both of whom had been convicted at the April Term proceeding. In speaking of the act of the prisoner in shooting the deceased, the author uses the words “unfeeling savage,” as applied to the prisoner. {This is mentioned because it was much dwelt upon by the Counsel, in his petition for a Writ of Error.} He also shewed by the Record, that the Judge of the 13th Circuit, in over-ruling a motion for a continuance at September Term, 1818, in Russell Superior Court, gave an opinion unfavorable to the prisoner, on a material question arising in his defense, in relation to his alledged insanity. This motion for a new trial was opposed by the Attorney for the Commonwealth, who reminded the Court that the jurors, (except those whom the prisoner declined swearing on the voir dire,) were sworn, and having been asked if they had formed and delivered an opinion in the prisoners Case, severally answered in the negative; he also contended, that the publication should have been mentioned to the Superior Court of Law for Russell County, when the venue to any other county. The Counsel for the prisoner alledged that the publication in question (Page 167) remained unknown to the prisoner and his Counsel, until after the jury were sworn in this Court. The judge thereupon gave the following opinion: “The Court is of opinion that, although the official conduct of the Judge of the 13th Circuit is directly 21inculpated by the nature and character of this motion, and for that reason, a decision therein, by adjourning to the General Court the question which is involved, might be declined, yet that the principles of public justice require that the motion be now decided. The most dangerous consequences may be apprehended, should the progress of public justice be arrested whenever a prisoner, or his counsel, should think proper to make an attempt for that purpose, by an application like the present, at any stage of the proceedings in a criminal trial. The feelings of the individual ought, therefore, to yield to the duties which the Court owes to the community. With respect to the principal question now to be determined, the Court is of opinion, that in the newspaper publication, and in the order refusing a continuance referred to by the prisoner’s Counsel, in the motion now made, no opinion on the prisoner’s case is declared; that even if such opinion had been given, the prisoner at this Term, (as the fact is not denied to have been,) it would afford no good cause for a new trial.

“The Court is also of opinion that it has not appeared that any of the jury ever saw the before-mentioned newspaper publication, the author of which was never known until since the last trial of this Case, when a disclosure was obtained by evidence on the part of the prisoner, it could have produced no influence of the verdict. The jurors too, were sworn and examined for the purpose of ascertaining whether they were liable to be challenged for cause, or not, and all of them, except such as the prisoner elected without requiring them to be sworn, appeared not to have formed and expressed an opinion relative to this Case. The jury then must be considered as having acted and decided impartially. It has previously formed any opinion or in any manner prejudiced the prisoners Case. No proof of anything like unfairness in the trial has been offered, unless it may be inferred from the fact specifically noticed by the prisoner in the terms of the motion. It ought not to be forgotten, that the plea of insanity was abandoned by the prisoner’s Counsel in the defense, although (Page 168) many witnesses were examined with a view to the support of that plea. There does not seem to be any power vested in this Court, by which the venue in this Case can now be again changed, from the county to which it has been lately transferred, to any other county, either within or without the limits of the 13th Circuit. The Act of the last session of Assembly affords all the authority which the Court can legally exercise in changing the venue in a Criminal Case, and this Court has already done all in relation to that subject, which the Legislature has empowered it to do. The motion for a new trial, and for changing the venue, is therefore over-ruled.”

The prisoner then moved to arrest the judgment, for the following reasons:

Because the Indictment does not conclude against the Act of Assembly in that case made and provided.

Because the prisoner was not arraigned in this Court.

Because the prisoner was not put to plead in this tenus, in the Superior Court for the county of Russell.

Because this Court cannot give judgment for an offense committed and laid in the county of Russell.

The said errors in arrest of judgment, were over-ruled by the Court, and sentenced of death was thereupon passed on him.

And not he applied to this Court for a Writ of Error, assigning as causes for reversing the judgment, all of the points which are made in the record, and which were decided against him. The application was rejected by the unanimous opinion of the Judges present, and the Writ of Error refused.

The Hanging

After the Washington Superior Court proceedings Abner Vance was tried, all errors or motions, writs, change of venues denied, he was found guilty of murder and sentenced to be hanged; he died Friday, July 16, 1819. Nearly two years after the murder of Lewis Horton. The newspaper accounts of Abners hanging gives us some solace and understanding of what he and others might have felt of that day in July.

Clips Courtesy of Arnold Dickens

Richmond Enquirer August 31 1819

Abingdon, (VA) July 24 - The execution of Abner Vance, who was sentenced to death for the murder of Lewis Horton, took place on Friday the 16th. Never have we witnessed a more solemn spectacle. The unhappy victim addressed the multitude for a considerable time, acknowledged he had done the deed but alleged it was done in a passion, and seemed to think his execution was unjust. He spoke with great strength of voice, and evinced a complete contempt for death.

Lynchburg Virginia Press July 27, 1819

On Friday the 16th instant, Abner Vance was executed at Abingdon, in pursuance of his sentence for the murder of Lewis Horton. He addressed about 4000 for an hour and a half, with considerable ability; and died with the most perfect composure and heroic fortitude. He accused some persons of giving false evidence against him; and said that if he obtained a fair trial, and nothing but truth had been sworn against him, he thought the penitentiary would have been the proper punishment for his offense.

With the above news articles we can derive a few things that can be proven of Abners death that tells us of the man himself.

The facts are that the articles talk highly of a man who admits to his crime and is found guilty of murder noting this; “he died with composure and heroic fortitude” and “died with the most perfect composure”. He was considered an “unhappy victim”. Abner must have had the sympathy of some for his crime of “passion.”

That Abner “addresses about 4000”; a multitude of people for a considerable amount of time or an “hour and a half”. Abner was a man who was not apparently short on words. It does not take an educated man to talk for such a period, but just as today, he was given the right to face his accusers on his terms for giving false evidence, as Abner alluded in the Abner Vance Song. He had much to say I suspect and pleaded his case to the public noting he was guilty; but death was too harsh a punishment for his crime. I would say it took a very passionate man to talk for such a period of time and not be harried off as he did in the trial of John Elliot when he won over the jury with his eloquent oratory, had the sentence of Elliot reduced from a hanging to imprisonment. The article says he spoke with “considerable ability”. For others it was simply a ghastly site to attend a hanging, but attend they did….as they did in court noted in Judge Johnston’s letter. Hangings especially those who have the appearance of unjust prosecution, alleged prejudice by Johnston of the 13th Superior Court of Russell. Abner had captured the crowd’s attention. The articles above do not use words such as sermon or preaching or the word pastor or elder. Nor does any court documents found to date. Just says he “addressed” or “spoke with great strength”. I believe he was a man with great belief of what he had done, and made peace with it, and with his God, by singing a song that has been passed down to many generations. Could it be that for prosperity sake, Abner wanted his family of generations to know the unjust nature of this whole ordeal?

The End

Not to be copied without the permission of the writers.

On October 5th 1792 Legislative Petition

To the Honorable and Speaker and members of the house of ___ inhabitants of the counties of Russell and Washington beg leave to lay before Your honorable body this petition in opposition to two ____ of the county of Wythe the first praying that the county of Montgomery may be added to the judicial lists can ___ of Wythe, Washington and Russell and that, the court for the same may be holden to Wythe Court House as to that purpose. The other that District Court for the ___ composed of the counties of Wythe, Washington, and Russell may in future may be holden alternately at Washington and Wythe Court Houses. As to the addition the county of Montgomery to the Judicial District composed of the counties of Wythe, Washington and Russell your petitioners humbly concur should it be the case would lend to defeat the purposed operations of the sad establishing District Courts and regulating the General Court and in a measure ___ of the evils; it any wisely ___ to prevent. The law in its present form ___ to be very beneficial to the Commonwealth at large and ___ of the frontier counties of this counties your petitioners also fear that such a measure would lay a foundation for the obtainment of a consolidation of the Judicial Districts throughout the state which would not only comfort the wishes of a few advocates for such a ___ but effectually destroy the valuable purposes of the District Law. Your petitioners humbly conceive that the Judicial District in which they reside contains as large a space of Territory if not larger than any other of the Districts, and the population of which particularly towards the boundaries west ward ___ any considerably an addition therefore of territory which would be extremely ___. Your petitioners humbly hope will never be awarded to by your Honorable Body. Your petitioners would also humbly represent that in consequence of the District Court being by law held at Washington Court House considerable sums of many have been expensed to Grace a large and commodious Court House and to any a strong and secure jail. The petition praying that the that the District Court may in future be held alternately at Washington and Wythe Court Houses, your petitioners conceive is extremely partial and ___, and could only have originated in the minds of same few designing characters, only to gratify their certain motives whose estates lying contiguous to Wythe Court House would expect to receive same ___ advantages thereby in, But __ the following _________ preserve the partiality and inconsistency of their Petitions will eventually appear. The distance of Washington Court House to the extremity of Russell County westward to one hundred and fifty miles. Same as the distance from the said Courthouse to the extremity of Wythe County Eastward at the head of Reedy Island is as your petitioners conceive not more than ninety computed miles. Washington Court house is situated is about ten miles from the southern boundary of this state, but not so far south of the line dividing Washington and Russell Counties, Many of the inhabitants of Wythe County near the boundary line of Wythe and North Carolina live about equal distance from Washington and Wythe Courthouses so that they labour under ___ from their attendant upon the district court as it is at present situated. The most remote inhabitants of Wythe County then they appear at the district court have not to travel not more than ninety miles but the most remote inhabitants of Russell County when they attend have to travel one hundred and thirty, therefore should the District Court be holden at Wythe Court House as prayed for by the __ of the inhabitants of Russell Court Westward would have to travel one hundred and eighty five miles and the extreme inhabitants of Wythe County eastward would have to travel but thirty two; this proves that imaging this proportion consequently their Petition contains the most evident partiality. Your Petitioners is well aware that the alternate holding of the District Court will be attended with the inconsiderable inconvenience to the Clerk. Thereof and dangerous ___ to the parties to ___ by them ___ in the year of records and papers which in their ___ are subject to a variety of ___ petitioners found their opposition to the petitions above mentioned from the ___ contained in two advertisements __ up at the door of the Courthouse of Washington County which to the unprivileged of the Petitioners were only discovered at the court held for Washington County this Tuesday the twenty first of August 1792, therefore can only guess as the reasons offered in their petitions to enforce prayers thereof. They being so cautiously handed about that few if any of those who could be supposed would act in opposition thereto have been favored with a sight of them. Your Petitioners from a through consideration that the present situation and establishment of their Judicial District and the courthouse thereof is perfectly ___ convenient equitable and impartial; humbly hope that your Honorable Body will not think is expedient to make any alteration or addition thereto but they earnestly pray that in future it may remain as at present established by law; And your Petitioners is in duty bound will ever pray.

Samuel Ritchie, Samuel Ewing, Henry Hamblin, Moses Dorton, Abraham Owen, John Robinson, Richard Price, Shardrick Harris, Thomas Stapleton, Andrew Cowan, Thomas Harrisford, Shardrick Williams, Samuel Williams, William Gilmore Junior, William Gilmore, John Cowan, James West, Francis Browning, ? Smyth, Richard Oney, Henry Williams, Richard Williams, George Robinson, David Robinson, Samuel Robinson Junior, Thomas Night, ? Ogden, John Green, Robert Johnson, Jesse Vermillion, Enos Browning, Joel Barker, John Weirs, Michael Elliot, Abraham Fowler, Caleb Green, John Green, John Gibson, Joseph Fealds, James Owen, Anthony McNight, William Price, Charlie Brickley, Henry Burke, Abindego White, Abraham Crabtree, John Jackson, Thomas Hunt, Abner Vance, William Samples, David Ward, Edward Young, John Bristow, John Ruth, Alexander Murphy, Jacob Francisco, George Francisco, William Ramey, Thomas Ward Jr., Henry Bowen, Thomas Ferguson, John Ferguson, John McCormick, Edward Callahan, Benjamin Longly, Jonathan Dryden, Leonard Hutson, William Berry, Jas. Campbell, James Trimble, Thomas Berry, Elisha Dungan, Arch McKinnie, Robert Davidson, Andrew Davenport, John Moffett, John Montgomery, James Smith, David Goins, John Orr, Joann Hughs, John Allison, James Weir, James Crowe, Robert Kincaid, Wm. Beatie, Abraham Braadley, William Goran, John Evans, James Glen, Jno. Thompson, John Keys, David Dryden, Samuel Buchanan, Robert Montgomery, William McDonald, Robert Preston, Charles Cummings, James Dickenson, John Balfor, John English, Mathew Smock, David Wilson, Samuel Russell, Alex Doran, Thomas Montgomery, William Anderson, Wm. Scott, Charles Harris, Andrew Colwill Jr. Andrew Colwill, William Leger, Thomas Kendirck, Richard Dorton, Robert Ramsey, Robert Ligget, James Campbell, Arch McGinnis, Robert Hensley, Henry Shakr, William Cormack, Samuel Hensley, Lewis Pitts, Nicholas Hensley, John Flenor, John Flenor, Nicholas Flenor, James Sprouts, Samuel Sprouts, John Sprouts, D. Craig, Henry Grimes, John Barker, Abram Fulkerson, Thomas Goff, Abraham Bledso, Thomas Bledso, Peter Levenston, John Kendrick Sen., John Russell, James Smyth, Thomas Barker, John Burks, Thomas Kendrick, Daniel Frich, John Gray, James Logan, Charles Barker, William Bradshaw, William Fares, Randl Willoughby, William Robinson, Robert Fares, James Wright, William Wedly, John Gilworth, Samuel Musgrave, James Swan, Moses Lethen, Samuel Scott Sen., ? Vanhook, Jesse Robinson, Robert Houston, Joseph Head, Adam Deck, Thomas Smith, Lodowick Deck, Rubin Bradley, Lilburn Hensley, James Fulkerson, David Beatie, Wm. Hensley, James Craig, William Large, Ezekiel Hobbs, Eliza Frost, William Smith, John Phips Sen., Jacob Goadman, George Goadman, William Bond, John Phips Jr., Basil Talburts, Levin Bledso, Larkin Hensley, John Sprouts, Roling Childs, John Loid, Levy Moore, Joseph Bradon, John Robinson, William Strong, William Hampton, Samuel Moore, Charles Scott, Peter Scott, Thomas Tate, Isaac Spratt, Robert Fowler, Andrew Marshall, ? Marshall, ? Campbell, Wm Clark, John Lucas, James Young, ? Mattingly, Valentine Hatfield, John Furley, Wm. Bennett, Stephen Bennett, Clark Banning, Joseph Campbell, Andrew Lamie, John Lamie, Walter Mattingly Jr., Wm. Conway, Young Lee, Lewis Young, Will Mathison, Samuel Fields, P. Fulkerson, Samuel Scott, Wm. Russell, John Burks, James Craig, Joseph Cole, James Bradley, John Fulkerson, Samuel McKinney, Joseph Gray, Jesse Owens, Jacob Zimmerle, John McCulloch, James Fulkerson, Robert Henderson, Joseph Hensley, Levi Bishop, James Berry, Drury Fletcher, James Sprouls, Andy Goff, Joseph Frost, James Fugit, George Finley, Robert Craig, James Cummings, Thomas Cummings, John Porterfield, John White, John Gilliland, Wm. Johnson, Moses White, W. King, Andrew Fergison, John King, Elijah King, Wm. Ward, John Ward, Robert Barnes, James Daniel, George Belsher, Robert Belsher, Craven Belsher, George Asbury, Samuel Young, James Haney, Wm. Nash, John Murphy, Jeremiah Skaggs, Thomas Murphy.

Oct 22, 1794 Legislative Petition

A petition sent to the Honorable Speaker and said members of the House of Delegates, a petition of sundry inhabitants of the county of Russell requesting to build a new courthouse in a convenient place, those who signed this petition are as follows, as best that one can make them out or altogether excluded; H. Smith, Ben. Johnson, Jacob Crabtree, George Finney, Timothy Burgess, Abner Vance, Andrew Martin, Robert Coffey, ? Finney, James Elliott, Wm. Elliott, Francis Browning, James Scott?, Jesse Browning, James Browning, Harry Smith, Michael Elliott, Alex Shoemaker, William Gilmore, Jonathan Davis, ? Davis, George Robinson, Andrew Cowan, William Gilmore Sr., ? Davis, John Stacy, Stephen Ogdon, Henry Smith Jr., James Pemberton, Daniel Gilmon, Jonathan Prater, Jeremiah Puckett ?, Harden Smith, George Asbury, Jesse Daniel, Will Webb, Shadrack ?, Wm. Fletcher, Eph Hatfield, Augustine Berry, Samuel Short, John Thompson, ? Van Hook, A. Williamson, Wm. Elam, Wm. Nash, Thos. Humphrey, Lazarus Dameron, Jacob Thomason, John Stacy, Jeremiah Stilton, ? Stilton, Joshua Stilton, Saml. Hendrix, ? Ewing, George Smith, John Smith, John Hargis, Wm. Crumwell, Charles Crumwell, Thos. Nash, Alex Murphy, John Murphy, Adam Nash, George Lusk?, George Muller, Elijah Webb, Joseph Webb, Isacc Moore, John Green, Peter Bays, Wm. Bays, James Bays, Simeon Jackson, John Hunt, Thomas Hunt, Solomon Litton, John Litton, Henry Campbell, Thomas Hendrix, David Hendrix, Wm. Grant

December 4th, 1811, Petition of Divorce of Jesse Horton to the Legislature

To the honorable Speaker of the House and Delegates

The petition of Jesse Horton humbly showeth that some considerable time ago he was joined in the holy rites of matrimony with a certain Jemima Harel with who he expected to pass his life with all the felicity arising from the state but soon experience melancholy, experience evinced the contrary to be his unhappy lot of or this said Jemima forgetful of her solemn ties and obligations of the marriage state and actuated by a wicked disposition has left the company of your petitioner and lives in the habit of adultery with others as will satisfactorily appear referenced being had to the affidavits herewith transmitted to your humble Body are regardful of the interest and happiness of your citizens by interfering in Similar cases and separating the offending from there injured party. It is with extreme difference and embarrassment your petitioner comes forward with this applications & from this cause has labored in this disagreeable situation some years; but he disconnect from his own mind, which can only be imagined and not described and the unprovoked conduct of the said Jemima urges him then humbly to solicit __ from the only earthly power that can grant it and he is hopeful the same measure of justice will be dealt to him that he observes others have happily experienced. Your petitioners therefore pray that a law may be passed divorcing him from Jemima Harel, and your petitioners are duty bound will pray. Jesse Horton.

In these Petition papers were two witnesses who say that Jemima’s youngest child is not of Jesse Horton, these will not be included here.

Elijah Vance can be found as early as 1837 in Russell on a Petition.

To the Honorable Speaker and Gentlemen of both houses of the General Assembly of Virginia

The petition of Sundry Inhabitants of the Counties of Russell and Tazewell humbly represents to your honorable body that about the year 1801 a portion of the county of Russell was taken to make Tazewell and the people of Tazewell them not satisfied prayed to have another piece of the county of Russell added to Tazewell which was granted to them in the year 1834, there was another piece of Russell County added to the County of Tazewell taking a sundry of inhabitants of the County of Russell contrary to their wish and will and that all or nearly all the citizens to said petition was deceived and a great number of the citizens never saw the petition nor gave leave to have their names put to the petition and to say the last of it your honorable body has been deceived and as very little expense has yet been issued by the lines adding a part of Russell to Tazewell and by returning the same there will be more costs immersed on the counties it is therefore the prayers of your petitioners to add that part of Tazewell to Russell which runs on the east side of a line beginning on the top of Kents Ridge on the old line adding a part of Russell County to Tazewell and with that old line to the line of Peggy Smiths land and with her lines taking her land in Russell County to where her land corners with Harry Smiths land of 200 acres and with said Harry Smiths south lines to Cole Creek & up the main branch of Cole Creek to the head and thence North course to the state line of Kentucky which last part of the line which will run through a mountainous country where nobody lives & will need no running or if it should have to be run it will cost not more than it will to the line not yet run adding a part of Russell and Tazewell & we conceive that if the above lines is as established it will give satisfaction to all the inhabitants that will be thrown in to County of Russell & will be more inconvenient to their courthouse then they are at present for these and many other reasons that might be urged your petitioners pray that your honorable body will relieve them and forgive them their sins for praying to be added to the county of Tazewell and they never will offend in this like way again and your petitioners as in duty bound will ever pray Vc.

Amstead Harper, Enoch Harper, Joel Gibson, ? Gibson, ? Church, Robert Looney, Joel Church, John Yates, Elijah Vance, Joel Church Jr., Henry Wallis, Abraham Coleman, Stephen ?, David McClannahan Jr., David McClannahan, John Elswick, Alexander McClannahan, John Elswick Sr., Jesse ?, ?, James Wilkerson, Charles Riggins, Andrew Johnston, James W. ?, Wm. W. ?, John Horton, James Warrenburgh, Henry D. Smith, Jno. W. Taylor, H. Smith, Elijah Stilton, Jacob Stilton, David Stilton, Andrew Martin, Rodden Muller, W. D. Hurt, David Horton, Vincent S. Horton, Daniel Horton, Joab Wilson, ? B. Duff, Daniel ?, Richard Yates.

R&T No. 107

The Petition of Sundry Citizens of the Counties of Russell and Tazewell praying that a portion of Tazewell formerly of Russell for reattachment of Russell

W. Jesse

No Document

February 8, 1837

Ref to Prop.

March 16th Chair to ask discharge

The following petition list Abner and his sons together in Russell County.

December 6, 1815 - Petition to the Legislature (copy is mostly unreadable, hard to read but included what I could)

The honorable the Legislature of Virginia, the citizens of Russell County hereby informed that I your last session a law was passed by which parts of citizens of Russell a ___ and the area formed into a New County that by the division Russell County then but have in presented in that from then but since has presented & that from these but since to the __ line of this county is nine miles and to the upper line about thirty two miles part of the place taken then but since is at present stalled is in county unfit a town or a village that although a town has been there laid out and established yet the land is yet then situated in a ___ recommended spot that very purpose has been which to settle it at and consequently ___ are insufficient since land impossible to be ___ there in, but the land there is not improving but going fast to decay that although considerably ___ of many have been expected as the publick building in this said town yet the wish thereof has been boldly suggested that they are of very little live and ___ to inhabit we also inform you that a petition will be presented to the Legislature and to keep the seat of justice at in but give it to the County of Washington and town ____which would better herein able us to pray for it to contain where it is for reasons in or ___ line of the county as the present but ___ who within five miles of the town between Russell and Washington and your petitioners being divided in opinion as to the most suitable spot for ___ and ___ and moving the seat of justice further to the prayers of your petitioners in that commissioners may be appointed in and our county Daniel Horton, Benjamin ___, Larkin ___, Zachariah Fugate (i.e. list of others unreadable and so on) petitioners duly pray. (Will include only those names readable who signed this petition)

Daniel Horton, Thomas Jackson, Joseph Fulks, John Wilson, Elijah Sargent, Joseph Elkins, Elijah Taylor, John Fulks, Stephen Bishop, Ralph Fulks, Moses Hart, John Duff, Eli Jackson, William Robbins, John Duff, John Skaggs, W. Jackson, Lewis Horton, Reas Duff, Mathias Keen, John Keen, ? Patrick, W. Keen, Elijah Jackson, William Robinson, Levi Jackson, Richard Welch, William Keen, Crabtree Price, Richard Price Akin Fitzgerald, James Hunt, Benjamin Gilbert, William Jones, Elias Owen, Joseph Booth, Mitchel Black, John McFarlan, Frank Sprout, W. Cantrell, ? Cecil, James Vance, Henry Smith, Samuel Robinson, William Lockhart, William Hunt, Gabriel Murphey, Larkin Howard, John Howard, Anthony Witt, John Witt, John Smith, Henry Smith, Thomas Robinson, John Gilbert, Alexander Stinson, Henry Hess, John Hess, Richard Johnson, Meakin Hurt, William Fletcher, David May, Richard Thompson, Abner Thompson, James Wallis Capt., William Wallis, Thomas Compton, John Olinger, David Olinger, Jerel Keen, David Compton, ? Jones, Joseph Shoemaker, Jacob Sisk, John Ball, John Buck, William D. Hurt, John Horton, William Booth, John C. Olinger, William Sargent, Abner Vance George Wiser, John Brown, P. Hendrick, Frederick Trent, William Vance, John Vance, Richard Vance, Francis Browning, Abner Vance Jr., Jacob Olinger, Frances Browning, Samuel Caviel, Jesse Vermillion, Joseph Webb, William Robinson, Levy Jackson, Michael Lark, James Scott, Frances Browning, David Muncey, John Browning, Wm. Munick, Joseph Fults, John Jesse, Lee Jesse, George Williams, Jesse Sargent, Abram Muncey, Abram Campbell, Philip Henry, James Daugherty, Charles Hicks, Alexander Robinson, John Hicks, Jonathan Harden, John W. Williams, David Sargent, William Williams, George Pucket, John Williams, Andrew Hubbel, Samuel B. Hubbel, John Fields, George Cowan, David Cowan, Ephraim Sargent, Stephen Stephens, Samuel Williams, James Browning, James Barnet, Daniel Cloud, James Cloud, Joshua Fuller, Joab Davenport, William Gilmore, William Jesse, John Jesse, George Robinson, Jesse Vermillion, Thomas Vermillion, John Elliott, James Gilmore, John Scott, George Fuller, J. Daugherty, John Alexander, W. Browning, John Fields, John Whitlock, John Candler, William Lockhart, Henry Smith, John Smith, Larking Howard, Samuel Robinson, Wm. Stone, Andrew Martain, William Robinson.

Russell County Petition Dec. 6th, 1815 (Ref’d to Russell) (reasonable in part)

1 Is this supposed to be Daniel Horton?

2 Excepted - Webster; A formal objection to the decision of a court during trial.

3 Indicot is also known as Samuel Endicott and Bauer is also known as Sylvanus Brewer by their descendants.

4 4 The Political Prospect news paper article seems to have not survived. I have tried numerous libraries and even the Library of Congress. If anyone comes up with it, could hold the keys to what Judge Johnston says about Abner Vance and Sylvanus Bauer. Probably giving much more detail of the trial and killing of Lewis Horton.

5 Webster - Inculpate meaning to incriminate.

6 Grace Dodson Story on Abner Vance - Known as the Vance Song, 2nd two versus.

7 A Writ or Error - A writ commissioning an appellate court to review the proceedings of another court and correct the judgment given if deemed necessary.

8 Voir Dire- Rules for impaneling a jury.

9 Bill of Exception - Document presented in court and containing a formal statement of a case, complaint, or petition.

10 Malady - Webster says; A disease; illness. Any disordered condition.

11 Certiorari - Webster says: A Writ from a superior to an inferior court, directing that a record of a designated case be sent up for review.

12 in nullo est erratum - A plea to errors assigned on proceedings in error, by which the defendant in error affirms there is no error in the error, by which the defendant in error affirms there is no error in the record.

13 These paragraphs are the basis and defense for the second trial in Washington County. Washington County records cannot be found thus far.

14 When one statute prohibits a thing and another gives the penalty, in an action for the penalty, the declaration should conclude contra fornam statutorum. The same rule applies to information and indictments. 2. But where a statute refers to a former one, and adopts and continues the provisions of it, the declaration or indictment should conclude contra formam statuti. 3. Where a thing is prohibited by several statutes, if one only gives the action, and the others are explanatory and restrictive, the conclusion should be contra formam statuti. 4. When the act prohibited was not an offence or ground of action at common law, it is necessary both in criminal and civil cases to conclude against the form of the statute or statutes. 5. But if the act prohibited by the statute is an offence or ground of action at common law, the indictment or action may be in the common law form, and the statute need not be noticed, even though it prescribe a form of prosecution or of action, the statute remedy is merely cumulative. 6. When a statute only inflicts a punishment on that which was an offence at common law, the offence prescribed may be inflicted though the statute is not noticed in the indictment.

15 Demurrer - When an issue in law is formed, a transcript is made upon paper of all the pleadings that have been filed or delivered made upon paper of all the pleadings that have been filed or delivered between the parties, which transcript is called the demurrer book.

16 Venire - Webster; A panel of people from which a jury is selected. Law Term - The name of a writ directed to the sheriff commanding him to cause to come from the body of the county the sheriff commanding him to cause to come from the body of the county before the court from which its issued, on some day certain and therein before the court from which it issued, on some day certain and therein specified, a certain number of qualified citizens who are to act as jurors specified, a certain number of qualified citizens who are to act as jurors in the said court.

17 Venire Facias - According to the English law, the proper process to be issued on an indictment for any petit misdemeanor, on a penal process to be issued on an indictment for any petit misdemeanor, on a penal statute, is a writ called venire facias. 2. It is in the nature of a summons statute, is a writ called venire facias. 2. It is in the nature of a summons to cause the party to appear.

18 Book; The Origins of Felony Sentencing in the United States; mention the case of Abner Vance in revision of codes for the State of Virginia - Although the general court later declared in 1817 that change of venue was prohibited, the option was soon restored by statute. VA. Rev. Code ch. 169, §§ 9, 15 (1819).

19 The Origins of Felony Sentencing in the United States by Nancy J. King - Vance v. Commonwealth, 4 Va. (2 Va. Cas.) 162 (1819) (upholding judgment). Consider also Gibson v. Commonwealth, 4 Va. (2 Va. Cas.) 111 (1817), where the general court approved the use of two sets of summonses to get up a jury when the bystanders ran out. In Gibson, after challenges, the jurors, together with the bystanders, among them “Attorneys, practising in the court,” fell short of the requisite twelve, so that those “who had been elected and sworn, were adjourned in the attendance of the Sheriff, till the next day, and charged not to separate” or communicate with themselves or others. Id. at 115-16. The sheriff that night summoned, from their homes miles from the courthouse, several additional potential jurors, and after more challenges, “at length” a jury was formed. Id. at 115. The legislature was moved to provide-as an incentive to public duty as well as protection for the accused-that whenever court participants were not able to assemble and hear a criminal case for three consecutive terms, the accused would be freed. Oct. 1777 Va. Laws (9 Va. Stat. (Hening)) ch. 17, § 54, at 414; VA. REV. CODE ch. 169, § 28 (1819).

20 Haec Verba - Latin for "in these words," which refers to stating the exact language of an agreement in a complaint or other pleading rather than attaching a copy of the agreement as an exhibit incorporated into the pleading.

21 Webster - Meaning to incriminate.


This is a picture of the ford where Abner Vance shot Lewis Horton. This is standing on the Tazewell County side of the Clinch River looking across to the Russell County side of the river. Abner Vance's home sat a little to the right and up on the knoll behind the brick pump house in the picture. Abner Vance is suppose to be buried in the field to the left of the road coming up out of the river on the Russell County side.

Try to envision how this looked in September of 1817. The small brick pump house wasn't there. There are railroad tracks running directly behind the pump house, they weren't there in 1817 either. The field to the left of the ford road wasn't grown up, it was part of Abner's farm, and was most likely still full of corn as it wasn't quite harvest time when Lewis was shot.

I have been across this ford many time. I have crossed it on horse back, in vehicles, and on foot. My Father showed us where this was, he told us the story of Abner Vance that had been handed down from generation to generation. Many times as I was crossing the ford I would try to visualize how things looked in 1817, I would try to put myself in Abner's shoes, and attempt to relive in my mind some of his life.. Perhaps I have managed to relive some of his life in my mind, I don't know but I like to think I have. I have stood on the knoll overlooking the river where I think his home sat. I have stood there trying to imagine what he was thinking on that fateful day in September of 1817. I have tried to imagine his thoughts after he shot Lewis Horton.

I have often wondered how Susannah "Howard" Vance felt about what happened to Abner... It had to be extremely tough on her, and their children.. Life can be very hard sometimes.

This picture was taken on 22-Nov-2007 by Tim Vance.


This picture was also taken on the Tazewell County side of the Clinch River looking across to the Russell County side..

This picture was taken on 22-Nov-2007 by Tim Vance

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