On the first day of the term, John Vann was found guilty, by a jury, of horse-stealing, the punishment for which at that time was death. On the same day the record contains an entry to the effect that “the Jury who passed upon the Tryal of John Vann beg Leave to Recommend him to the Court for Mercy”; but no mercy was shown him by “the Honl. Spruce McCay Esqr,” as the record discloses further along. During the week, two more unfortunates—Isaac Chote and William White—were found guilty of horse-stealing; and, on the last day of the term (August 20), Judge McCay disposes of all three of these criminals in one order, as follows: “Ord that John Vann Isaac Chote & Wm White now Under Sentence of Death be executed on the tenth day of September next.” This is the whole of the entry.
The judge was mistaken in saying that the three persons named in the order were “under sentence of death.” No such sentence is to be found of record—all that appears is an entry of the style of the case, as “State vs” etc., in each case, and the entry opposite the case, that “the jury sworn to pass upon the Tryal do find the defendant guilty in manner and form as charged in the indictment”; but there is no formal sentence of death entered of record in either of the three cases. It is not probable that a parallel proceeding can be found in judicial history. Judge McCay utterly ignored the unanimous action of the jury who recommended John Vann to the mercy of the court. Can a case be found where a judge, in the United States, ever refused mercy to a criminal who was commended to him for mercy by the jury that found him guilty? Can another case be found where a judge caused three persons to be “executed” by one order, consisting of five lines and seventeen words, exclusive of the names of the criminals?
Judge McCay omits entirely to direct the method of executing the three criminals—he does not say whether they shall be hanged, shot, burned or drowned—but they were executed, either with rope, rifle or tomahawk, according to the good taste of the sheriff or the wishes of the defendants.
Tradition in that country gave Judge McCay the character of a heartless tyrant. He was said, while judge, to have always been on one side or the other of suits tried before him; and he never failed to let it be known which side he was on. He frequently indulged in lecturing, not to say abusing, juries publicly, when they returned verdicts contrary to his wishes and instructions. But “the Honl. Spruce McCay Esqr” found his match in the juries. They could not be driven or intimidated into giving verdicts contrary to their convictions; and whenever they differed with the judge—and they always knew his views—in a case of weight or serious results, they would deliberately disperse, go to their homes, and not return any more during that term of court. In a case styled “State vs. Taylor,” the record shows that the jury was sworn and the defendant put on “Tryal.” Nothing more appears except the following significant entry: “State vs. Taylor. The jury having failed to come back into court, it is therefore a mistrial.”
Judge McCay may only have been, as has been said of him, “a man of strong character, determined and fearless in discharging his duty”—but so were the juries in that county, as the records show.
At the May term, 1783, there was made an entry, which, when taken in connection with one which will be given immediately after it, will show how wisely these pioneers judged of men, and how necessary, sometimes, it was for them to take measures which at the time appeared harsh and cruel. The first entry is as follows:
On petition of Lewis & Elias Pybourn that they who is at this time Lying out and keep themselves Secreted from Justice that the Court would permit them to Return to their Respective Houses and places of abode and Them the said Lewis & Elias Pybourn to give bond and sufficient Security for their Good behavior &c. The Court on consideration of the matter do Grant and Give Leave unto said Elias & Lewis Pybourn to Return accordingly on their giving bond & approved security to Capt. John Newman for their Good behavior &c.
A final entry, made in the “Superior Court of Law and Equity” at Jonesboro, seven years later—at the August term, 1790—in the case of the “State of North Carolina Against Elias Pybourn for Horse Stealing,” justifies the members of the Court of Pleas and Quarter Sessions in having required Elias Pybourn to give security for his future good behavior. The full entry is as follows:
The defendant being called to the Bar and asked if he had anything to say why sentence should not be passed upon him Saith Nothing. It is therefore Ordered that the said Elias Pybourn be confined in the publick Pillory one Hour. That he have both his ears nailed to the Pillory and severed from his Head; That he receive at the publick Whipping post thirty nine lashes well laid On; and be branded on the Right cheek with the letter H, and on his left cheek with the letter T. and that the Sheriff of Washington County put this sentence in execution between the hours of Twelve and Two this day.
Horrible, awful punishment! Marked for life; a description of his crime burned on and into his face with a hot iron—“Horse Thief”; both of his ears cut off close up to his head. What a hideous spectacle! Was the mark placed upon Cain by the Almighty such that when people met him they said, “Let him alone; keep your hands off him; he has been punished sufficiently already”? Would not people say the same of poor, debased, degraded Pybourn?