Copyright USGenNet Inc., 2014 All Rights Reserved USGenNet Data Repository Please read USGenNet Copyright Statement on this page: Transcribed and submitted by Linda Talbott for the USGenNet Data Repository http://www.us-data.org/ =========================================================================== Formatted by USGenNet Data Repository Chief Archivist, Linda Talbott All of the above information must remain when copied or downloaded. =========================================================================== Biographical History of North Carolina, Vol 7 by Samuel A'Court Ashe pub. Charles L. Van Noppen, Greensboro, N.C. - 1908 [pp. 18-25] ALPHONSO CALHOUN AVERY ---------------------- Many of the most honored Southern families combine the blood of Pilgrim, Puritan or Scotch-Irish with that of Cavalier, for before the spirit of Garrison alienated the sections, the adventerous men of New England, who have since sought the West, frequently turned to the South for a larger and more promising field for their en- deavors than was offered by the granite hills of their native re- gion. Of such a blending of Puritan and Southern blood, with a strain of the Cavalier stock, is JUDGE ALPHONSO CALHOUN AVERY, the grandson of WAIGHTSTILL AVERY, and the fourth son of COLONEL ISAAC T. AVERY. His great-grandfather, COLONEL WILLIAM SHARPE, married KATHERINE, the daughter of DAVID REESE, a signer of the Mecklenburg Declaration of Independence. He was, therefore, descended from two men who pledged their lives and fortunes to the sacred cause of liberty by signing that instrument -- DAVID REESE and WAIGHTSTILL AVERY. ALPHONSO CALHOUN AVERY was born September 11, 1835, at his father's estate, Swan Ponds, near Morganton, Burke County, N.C., and he there passed the greater part of his home life. It is an ideal place for a home; the broad valley of the Catawba River, with its extensive plains and low undulating forest-covered hills, stretches out to the north and west, where rise the sharp crests of the mountains, forever glistening under the mellow southern sun. The Piedmont, it is called, for just so do the Alps rise beyond the fertile plains of the Po. His boyhood was that of the typical ante-bellum country life, quiet and simple, yet vigorous and natural, endowing him with per- fect health, and hardening a naturally vigorous constitution. While his father was wealthy, owning more than one hundred and fif- ty slaves, and reared his sons in cultured surroundings, giving them the advantages of the best education which the State afforded, he believed in their knowing the business of farming thoroughly, as that was the chief occupation of southern gentlemen, and each of his six sons was raised to follow the plow for at least one season. This part of his education completed, the subject of this sketch was prepared for college at the Bingham School at Oaks, Orange County, afterward entered the University of North Carolina, and graduated with the degree of A. B. in 1857, standing first in his class among such men as COLONEL THOMAS S. KENAN, MAJOR ROBERT BINGHAM, JUDGE THOMAS N. HILL of Halifax, and HON. W. P. McCLAIN of Texas. The ambitious youth, excelling in Latin and mathematics, was not content with his early academic laurels. An address of GOVERNOR SWAIN, heard while at college, pointing out that judicial positions were the most exalted and commonly afforded opportunity for winning the most enduring reputation, determined the law as a profession. Young AVERY was not able, however, to exercise his choice at once, and for the next two years, until the summer of 1859, he was in that part of Yancey County which has since been organized as Mitchell, in charge of a grass and stock farm of his father. He then, however, began the study of law under CHIEF JUS- TICE RICHMOND PEARSON at Logtown, and within a year, in June, 1860, was licensed under the old statute regulations to practice in the county courts. Although he was prepared to stand his examination for license to appear before the superior court, the crisis of the war intervened, and he hastened to take up arms in defense of his State. Before leaving home to join the army he was married on Feb- ruary 27, 1861, to Miss SUSAN WASHINGTON MORRISON, daughter of REV. R. H. MORRISON, of Lincoln County, and granddaughter of GENERAL JOSEPH GRAHAM, of Lincoln. His brother, I. E. AVERY, was commissioned captain and he was appointed first lieutenant of Company E, Sixth North Carolina regi- ment, which he joined in April, 1861, at Charlotte, where the regi- ment was being formed under COLONEL CHARLES F. FISHER. This was one of the ten regiments organized at the beginning of the war, in which the men enlisted for three years' service. The regiment at once proceeded to Virginia, where, after being reviewed by PRESIDENT DAVIS at Richmond, it was hurried forward by rail to Strasburg. A forced march was made to Winchester, and thence to Manassas, and, within a week after leaving the drill camp at Company Shops, N.C., it engaged in the bloody battle of Manasses, arriving on the field at a crisis, and was partly instu- mental in turning defeat into victory. In the first engagement COLONEL FISHER and many other officers and men of the regiment were slain, and because of its early losses and fine conduct the regi- ment became famous in North Carolina. In the report of the battle both CAPTAIN and LIEUTENANT AVERY were complimented for their excellent bearing on the field. In 1862, when his brother was promoted to colonelcy of the regi- ment, LIEUTENANT AVERY became captain of his company, and later he was commissioned as major and assistant adjutant-general of GENERAL D. H. HILL'S division of the Army of Northern Virginia. In 1863, on HILL'S transfer to the western army, MAJOR AVERY accompanied him to Chattanooga, but when GENERAL HILL return to Richmond, after his disagreement with BRAGG, MAJOR AVERY remained in the West, serving on the staff of BRECKINRIDGE, HINDMAN and HOOD, and being on the staff of the latter in the retreat from Dalton to the Chattahoochee River. Toward the end of the war, after the death of two of his brothers, he secured permission to return to North Carolina, and was given a commission as colonel and the command of a battalion in western North Carolina. In April, 1865, just before JOHNSTON'S surrender, he was captured near Salisbury by GENERAL STONEMAN, and was a prisoner of war at Camp Chase and Johnson's Island until August, 1865. In June, 1866, COLONEL AVERY secured his license to practice be- fore the superior court, and at once entered upon the duties of his profession. In the fall of the same year he was nominated by the Confederate soldiers and elected to the North Carolina senate by a large majority from the district formed of Burke, Caldwell, and McDowell counties. This was the last legislative body convened in North Carolina which was elected exclusively by white voters. Thought the youngest member of the senate, he became a favorite with older senators, among whom were ex-GOVERNOR CLARK, JUDGE MOORE, MR. J. H. WILSON, COLONEL JOHN W. CUNNINGHAM, HON. MASON L. WIGGINS, and COLONEL EDWARD HALL, and succeeded in originating and securing the passage of laws which proved very beneficial to his constituents. The terminus of the Western North Carolina Railroad was then at Morganton. The charter provided that when solvent in- dividuals should subscribe a million dollars or more to the capital stock of the company, the governor, upon that fact being certified by the president of the company, should cause double the amount so subscribed to be paid by the State in its bonds at par; but the bonds could not be sold for more than a song, because the interest was not being paid on the outstanding bonded debt of the State. In this emergency the young senator conceived the idea of enhancing the value of the bonds thereafter to be issued for stock in the company by pledging an equal amount of the State's stock in the North Carolina Railroad Company for the payment of each state bond thereafter issued, and put his plan into execution by securing the enactment of chapter 106, Laws of North Carolina of 1866-67. In less than six months the grading was let to contract from Morganton to Asheville, and within two years was completed to Old Fort. This work was paid for almost exclusively out of the proceeds of the enhanced bonds issued under the act referred to, though the bonds sold for much less than par. The passage of this act gave rise to what is known as the "South Dakota Bond Suit," compromised by the State, but it enabled the company to complete forty miles of road, extending it almost to the eastern portal of the tunnel, and to do much grading on and beyond the Blue Ridge. Two years afterward, although there had been a readjustment of the senatorial district, he was again elected on the Democratic ticket, but as he had been elected solicitor of Burke County in 1861, the Republican senate, at the instance of GOVERNOR CALDWELL, decided that he was barred by the provisions of the Thirteenth Amendment to the Constitution of the United States, and his seat was refused him. Thereupon he returned to Morganton and again took up his profession, acting as counsellor in many important cases. Although urged, he declined to be a candidate again for the legislature. In 1875 he was elected from Burke County as a member of the constitutional convention which revised the state constitu- tion. He was one of the foremost members of that distinguished body; was largely instrumental in perfecting its organization, in adjusting differences of opinion among its members and in drafting the important constitutional amendments it adopted, which were always revised and made ready for the reports of committees in a Democratic caucus. Again, the subject of this sketch, being sent by the citizens of Morganton, in 1875, to Raleigh to aid in securing the passage of the bill, offered by CAPTAIN MILLS in senate, to provide for build- ing the asylum at Morganton, found while there that some of the creditors of the North Carolina Railroad Company threatened to dis- regard a private agreement with COLONEL S. McD. TATE and refused to settle their claims on the terms provided in TATE'S bill, whereupon he drew up a resolution, subsequently offered by MAJOR ERWIN, re- presentative from McDowell County, which brought the recusant creditors to terms. This resolution will be found on page 405, laws of 1874-75, and provided for reinstating and carrying on a suit in equity involving the validity of their claims, instituted by GOVERNOR T. R. CALDWELL in the name of the State, in the Circuit Court of the United States, at Greensboro, in which a nonsuit had been entered, reserving to the State the privilege of reinstating the suit within a given time. The resolution empowered GOVERNOR BROGDEN and Speakers ARMFIELD and JAMES L. ROBINSON, of the senate and house, respectively, to cause the original suit to be rein- stated on the docket pending negotiation for a compromise with the creditors of the Western North Carolina Railroad Company, and the suit was reinstated by them. JUDGE AVERY was instrumental in compelling the Wilmington and Weldon Railroad Company to submit to taxation. Availing itself of the provisions of its charter exempting it from taxation, the Wilmington and Weldon Railroad Company successfully resisted all efforts in the courts and by legislation to tax its franchise and property up to January, 1891. The charter of the railroad from Weldon to Petersburg had expired in 1888 and had been re-enacted unless the other company would consent to pay taxes. But the Wil- mington and Weldon people, relying upon the authority conferred by several amendments to their charter, as well as the general law, defied the Legislature. The Supreme Court of North Carolina had held in Railroad vs. Alsbrook, 110 N.C. 137, that the branches of the Wilmington and Weldon Railroad, being created by acts passed under the clause of the Constitution of 1868, reserving to the State the right to alter and amend all charters thereafter enacted, were not exempt from taxation, while the charter for the main line, granted in chapter 78, laws of 1833-34, contained a provision exempting that line from taxation, which it was contended was in the nature of a contract, protected from being impaired by the Con- stitution of the United States. At the request of ELIAS CARR, afterward governor, but then at the head of the Farmers' Alliance, JUDGE AVERY, in March, 1891, drew what was published as chapter 544, laws of 1891, which repealed all authority for connecting the line of the Wilmington and Weldon Railroad with the Virginia line between the Blackwater and the crossing of the Clarksville Road over the state line. The bill was offered by MR. JONES, of Wake, and was passed after a bitter fight in both houses; but the fran- chise and property of the railroad was on the tax lists for the next and subsequent years. MR. BAYLUS CADE, who is still living, represented GOVERNOR CARR in getting the bill from JUSTICE AVERY and having it offered by MR. JONES. In the presidential election of 1876 JUDGE AVERY was a Tilden elector from the eighth congressional district, and made a favor- able and extended campaign, being a strong, earnest speaker, and exerting a great influence throughout the piedmont region. Two years later he was elected judge on the Democratic ticket for the eighth judicial district, and served until 1886, when he was re- elected as judge of the tenth judicial district, in which position he served until January, 1889, when he ascended the Supreme Bench of North Carolina, having been elected associate justice in the preceding fall. This position he continued to fill until January, 1897. While on the Supreme Bench, JUSTICE AVERY prepared many opinions which are noted for their breadth of view and the rational manner in which he applied his extensive knowledge of the law and cited cases of precedents. At the very outset of his service upon the Supreme Bench he rendered marked service to the profession by certain decisions in which were crystallized rules of practice applicable to issues and the granting of new trials upon newly dis- covered testimony. Later, the rules governing negligence, parole trusts, real estate, constitutional law, and other questions of im- portance were simplified and made to cover growing conditions of our new civilization. In reviewing the dissenting opinion of JUSTICE AVERY in EMERY'S case, MR. DESTY, in a legal classic, said the rules governing the duties of judge and jury in trials of cases involving questions of negligence had never been more clearly expressed. On the day before assuming the ermine of the Supreme Court Bench he was married to his second wife, Miss SALLIE LOVE THOMAS, a dau- ghter of COLONEL W. H. THOMAS, of Jackson County, and a great- granddaughter of COLONEL ROBERT LOVE, of Buncombe. JUDGE AVERY possesses in a high degree the judicial temperament, as would be inferred from the length of time he has been judge of the superior and supreme courts, resolute and flexible, yet cautious and tempering justice with mercy. The traits which he displayed upon the Bench he has carried with him through life, for the role of judgeship but displayed his qualities in the brighter light of publicity. While an unswerving Democrat, his politics have never influenced his judicial opinions, and he was fair and impartial in administering justice. By belief and early training JUDGE AVERY is a Presbyterian, and he has been an elder in the First Presbyterian Church of Morganton for more than twenty-five years, and, indeed, he has carried his religion into his daily life. At college he was a member of the Beta Theta Pi fraternity. He is a Master Mason, and Odd Fellow, a member of the Royal Arca- num, and an honorary member of the Junior Order of United American Mechanics. In 1889 the University of North Carolina conferred upon him the honorary degrees of A.M. and LL.D., and the latter degree was likewise conferred by Trinity College, North Carolina. JUDGE AVERY is a member of the Southern Historical Society. He is especially interested in the history of the civil war period, and has prepared several sketches and articles covering incidents or actions of the war, the most important one being a sketch of certain North Carolina regiments, and he is considering the prepa- ration of a personal memoir covering the entire period. Among other publications that he has made is an extended histor- ical account of Burke County, which is of great interest and value, published in Smith's "Western North Carolina." JUDGE AVERY has had eleven children, among them being ISAAC ERWIN AVERY, the brilliant local editor of the Charlotte Observer, whose untimely death in 1904 was lamented throughout the entire State. W. W. ASHE. =========================================================================== If you've reached this file through a SEARCH, you can access more of our growing collection of FREE online information by going to the following URL: http://www.us-data.org/ ===========================================================================