Six Miles to Charleston

by Bruce Orr

  The Six Mile gang was not the only criminal elements that Charleston faced at that particular time. As stated earlier, the pirate captain George Clark and members of his crew were housed in the City Jail. Perhaps the example of his capture and incarceration had forced other Patriot Privateers to take up the art of Land Privateering, as the Charleston Courier article stated. Apparently land in the Charleston area was much better suited for robbery than the harbor—until now.

  Also housed in the jail was Martin Toohey. Martin Toohey and his gang had murdered James W. Gadsden. Gadsden had been a member of a prominent South Carolina family, but it did not save him from Toohey’s knife. Michael Toohey, Martin’s brother, had been involved in the crime but received a lesser sentence for manslaughter and received a branding as punishment.

  Many of the Six Mile offenders had a criminal history. At twenty-eight years of age, John Fisher had already once been sentenced to receive thirty lashes for theft, but he had been pardoned by the governor on condition he leave not only the city of Charleston but also the entire state of South Carolina.

  James Sterrett had been convicted of larceny in Charleston the previous year. He had received a branding as a result.

  Joseph Roberts was missing part of his ear. Cropping was still considered as a punishment and apparently he had received this treatment. He had already been held in the jail in 1817 but had escaped the Charleston jail by pretending to belong to a party of visitors. He had also escaped from jail in Savannah, Georgia.

  William Heyward was also familiar with the courts of Charleston. He was quite the busy fellow. In 1815, he and a female accomplice were indicted for assault and robbery. He was accused of assaulting Jane Francis, stripping the clothes from her back and robbing her husband. In 1816, he and others were indicted for assaulting three men, including Alfred Huger, a member of one of the more prominent families in Charleston. Again, in 1816, he was found guilty of perjury.

  According to the Charleston Courier, William Heyward was described as one of the leaders. Remember that there were two houses involved, the Five Mile House and the Six Mile House. After the burning of Five Mile and the removal of the undesirables of Six Mile, David Ross had been put in charge of the Six Mile House. It was apparent from Ross’s statement that all the parties had gathered at Six Mile. From investigation it appears that Heyward was the proprietor of Five Mile House. A later article would refer to him as a member of the “five mile house fraternity.” Although all the members were considered part of the same gang, and the terms Five Mile House gang and Six Mile House gang are synonymous and refer to the same group of people, there is a distinct division as to the identity of the inns’ proprietors. The Fishers ran Six Mile, and William Heyward ran Five Mile.

  On March 23, 1819, the Fishers, William Heyward and Joseph Roberts were brought up on a Writ of Habeas Corpus before sixty-five-year-old Judge Elihu Hall Bay. Judge Bay was described as a stuttering, crotchety old man who constantly repeated himself. Judge Bay indeed stuttered very badly. He once referred to a defendant’s lies as “the d-d-desperate effort of every d-d-desperate d-d-desperado.” Judge Bay was also mostly deaf and the evidence had to be screamed to him in order for him to even hear it. It gave the hearing the appearance of a carnival act or vaudeville comedy routine with the attorneys screaming at the judge and the old and perhaps senile judge straining over the bench to hear what was presented. In reality, it was supposed to be a hearing to establish if there was enough cause and sufficient legal authority to detain the prisoners. Judge Bay determined that there was. Bond was set, and while the Fishers returned to jail, Roberts and Heyward posted bail.

  Joseph Roberts did not stay free for long. On March 25, he was rearrested for threatening the life of Frederick Schwach, a butcher. Apparently this is where LaCoste’s ill-fated cow ended up, and obviously he was attempting to silence the butcher prior to trial. Roberts was not going to be taken easily; he mounted a horse and, in an attempt to escape, fled up Queen Street. Apparently unknown to Roberts, the street had been opened up to clear out the sewage drain. While riding at top speed, he and the horse fell into the open ditch. The horse’s neck was broken, instantly killing the animal. It obviously took a tremendous amount of impact to break the neck of a horse. That leads one to believe that Roberts had, at minimum, suffered minor injuries to himself in the incident. Injuries or not, Joseph Roberts was rearrested and returned to jail.

  Meanwhile, William Heyward’s bond had been posted by Stephen Moore and Richard Heyward, according to court documents. Each man had posted $250.00 each, and after the court received the total $500.00 fine, Heyward was freed. Apparently he left the city immediately. He was scheduled to appear in court on May 10, 1819, because he had been indicted for the assault on David Ross. William Heyward chose not to return for this hearing. In fact, if he had his way, he never would have returned to Charleston at all.

  William Heyward’s bond order. Courtesy South Carolina Department of Archives and History.

  This is quite a different story from the legend that attributes the crimes to Lavinia and John Fisher only. If the authorities were correct then, there were nine male coconspirators associated with the group and another female.

  The victims own statements kept in the state’s archive records show no use of oleander tea, no trapdoors and no multitude of corpses, and the “victims” never were guests at all. One was part of a mob—an intruder—and the second was a man watering his horses outside of the inn.

  Lavinia was not a seductress and did not use her feminine wiles on either John Peoples or David Ross unless one considers being beaten about the head and shoulders and having your head slammed through a window as seduction. Along the same lines, John Fisher never butchered either victim, and even the two bodies found within the immediate vicinity were intact except for decomposition.

  Of the twelve total persons attributed to the group, only four remained in jail and actually made it before the judge in March 1819. Those persons would be John and Lavinia Fisher, the keepers of Six Mile House; William Heyward, the keeper of Five Mile House; and Joseph Roberts, the hapless horseman. The only reason Roberts was being held at this time was for his threats on the butcher, Frederick Schwach.

  CHAPTER 4

  The Trial

  COLONIAL JUSTICE IS NOT CRIMINAL JUSTICE

  On May 10, 1819, the particulars of the case were heard before a jury. This jury would be similar to what is known as a grand jury by today’s standards. A true bill was passed by the jury, which means that, in their belief, sufficient probable cause existed to place the defendants on trial for the crimes in which they were accused. John and Lavinia Fisher were indicted for assault with intent to murder and also common assault on David Ross with that incident being the only crime reviewed. William Heyward had jumped bail and was on the run. Joseph Roberts was no longer considered in the proceedings. Roberts had pleaded guilty to assault in regard to the butcher and was imprisoned for one year and fined $1,000.00. James McElroy’s name now resurfaces. Both Heyward and McElroy were also indicted.

  From the actual court document, the jurors were identified as foreman William Hart, Luke Bowes, William Wheelen, David Murray, J.S. Packer, William Owens, I. Gespeale, William Mathews, James Fogartie, Joseph Tyler, William Brisbane, Caleb Walker, Peter Gaillard, John Davis and John Wilson. Very little is known of most of these jurors. What is known is that Mathews was a planter; Tyler was a merchant; Walker was a carpenter; Davis was a mariner; and John Wilson was the state engineer.

  According to the Office of State Engineer for South Carolina, the responsibility of this office is for providing construction procurement procedures and training, approvals and assistance on state construction projects. It seems odd that a person with the responsibility of state improvement projects would be sitting on a grand jury. In January through March of that year, the Charleston Courier documented that John Wilson had been involved in negotiations to improving waterway access to the city for larger steamships traveling from
the North Carolina mountain passes. It was hoped that within the space of three years, ships from ten to fifteen tons may pass from the mountains of North Carolina through the Wando Canal into Charleston. According to a March 9, 1819 article, negotiations were to resume in May in regard to additional issues in the contracts and funding. It is somewhat interesting that Major John Wilson would have the time to sit upon a jury if he was involved in the negotiations, unless perhaps this case might somehow pertain to his work.

  Attorney General Robert Hayne’s indictment for crimes against David Ross. Courtesy South Carolina Department of Archives and History.

  Two years later, John Wilson’s name would once again surface in connection with another infamous personality in Charleston’s history. He would become involved in the Denmark Vesey conspiracy. It would be Wilson’s slave that infiltrated the group and brought back information regarding the plans of the violent slave revolt prior to its execution. It would be the actions of this man’s slave that would save Charleston from an uprising and bloody massacre in 1822.

  John and Lavinia Fisher, William Heyward (in his absence) and James McElroy were indicted for assault with intent to murder and also common assault in regard to the incident involving David Ross. The actual indictment gives us insight into the particulars of the crime they were charged with. Attorney General Robert Y. Hayne’s document lists the jurors mentioned above and then describes the actions alleged to have been taken by the accused at the Six Mile House. The four were said to have wielded, pointed and fired a loaded weapon at David Ross with the intent to kill him. The document lists all as participants but does not tell who held the weapon and pulled the trigger. It goes on to state that Ross was mistreated, beaten, wounded and placed in great fear for his life.

  Back of indictment showing James McElroy’s name scratched through and delivery of the true bill on charges. Courtesy South Carolina Department of Archives and History.

  On May 27, 1819, the case was heard. By now James McElroy was removed from the indictment. His name is actually scratched through on the documents—another name whittled off the original dozen associated with the gang.

  With the removal of McElroy and the fact that William Heyward was still at large, this left just John and Lavinia to face the charges. Since they faced trial together as a couple and separate from any of the other members of the gang, this is why the erroneous belief arose that they acted alone. At the hearing, Attorney John Davis Heath entered a plea of not guilty for his clients, John and Lavinia Fisher.

  Little is known of the Fishers’ attorney, other than Heath had been appointed to the bar in 1807 and had twelve years of legal experience. He seems to have faded into obscurity after this trial.

  On the other side of this case for the prosecution was the attorney general for the state of South Carolina, Robert Young Hayne. Robert Hayne had less legal experience than Heath and had been appointed to the bar in 1812.

  Hayne was a free trader; in other words, he believed in a system of trade without interference from the government. This interference could come in the form of legislation or taxes, subsidies and tariffs. Hayne could exercise free trade under South Carolina’s laws. This fact and other personal beliefs made him a proponent of states’ rights, laws and guidelines over federal mandates; so was most of the South. He felt that such issues, including the issue of slavery, should be decided by each individual state and not the federal government. He was once quoted in one of his speeches as stating that, “The moment the federal government shall make the unhallowed attempt to interfere with the domestic concerns of the states, those states will consider themselves driven from the Union.” With bold and eloquent statements such as this, Robert Hayne was also considered to be a great orator. It would take Daniel Webster, possibly the greatest orator of his time, to face him eleven years later on the floor of the Senate in regard to what is known by history as the Great Debate. This exchange would take place between the two in January and February of 1830 and would be over the very principles of the United States Constitution, the authority of the general government and the rights of the individual states.

  In his current stand against federal controls and a stand he would defend in the Great Debate, Robert Hayne felt that the United States Constitution was no more than a treaty or compact between the federal government and the states, and that any state, at will, could nullify any federal law it felt contradictory to its interests. Again, this was the stance of the majority of those in power in Charleston. It was also the stance of the majority of the South, and eventually it would lead to South Carolina seceding from the Union and the beginning of the Civil War.

  The fact that the Constitution and a person’s constitutional rights were meaningless to Hayne and those in power like him is a key issue throughout the entire ordeal regarding the incidents at Six Mile House. From the very beginning until the absolute end of this case, one will soon learn that the United States Constitution and its amendments have very little to do with colonial justice in a Charleston courtroom. It is a lesson Attorney John Davis Heath will soon learn at the Fishers’ expense.

  Robert Hayne had just obtained a conviction in the Gadsden murder case, and Martin Toohey was already scheduled to face the hangman’s noose the following day, May 28. Many citizens flocked to the courthouse to hear this eloquent speaker and to witness the fate of John and Lavinia Fisher.

  The deck now seems to be stacked against the Fishers. They knew of the reputation of Robert Hayne and the conviction of Martin Toohey. They also knew what Toohey’s fate was destined to be the following day. Heath did his best, but in the end John and Lavinia were found guilty for the crimes against David Ross. So was William Heyward in his absence. They were charged for the crimes of assault with intent to murder and common assault. They were sent back to jail to await sentencing. Remember, these facts as they will be very important in what happens later.

  Less than a week later, on June 2, 1819, John and Lavinia were brought before Judge Charles Jones Colcock for sentencing. As Judge Colcock listened, John Davis Heath presented notice that a motion for a new trial would be made at the constitutional court. The constitutional court was simply a forerunner of the current court of appeals. Judge Colcock made no objections. The constitutional court would not meet again until January, so for now the Fishers were returned to the horrors of the Jail.

  In the meantime, William Heyward had managed to find his way to Columbia, South Carolina. Having failed to appear at his May hearing, he was now considered a fugitive. On July 3, 1819, the Charleston Courier reprinted an article from the Columbia Telescope reporting on Heyward’s capture.

  Heyward, also known as Howard in this instance, was recognized and identified by a gentleman as he stayed at a hotel in Columbia. He was arrested and detained there until he could be brought back to Charleston to stand trial.

  The Columbia State Gazette added that Heyward had with him a male and a female, both slaves. The male slave said he had been stolen by Heyward while in Charleston but had difficulty in pronouncing his master’s name due to his African dialect. Since no one could interpret the name, no victim could be found and no one could prove that they were not Heyward’s slaves.

  Upon his arrival back to Charleston, Heyward wrote a letter to the City Gazette. In this letter he sought to separate himself from the Fishers. He also expounded on how he did not want to be tried with the others and used this as an excuse as to why he had not returned for trial. He also insisted that he was the one requesting to be brought back to Charleston. Most of this seems to be excuses, but what is significant is a brief excerpt regarding Fisher himself. In an effort to distance himself from John Fisher, Heyward states, “As to Fisher having any farther correspondence with me than dealing in my store, I deny; but as a stranger, what he bought he paid for.” Once again, here is indication that Heyward was the keeper of Five Mile House and that he knew Fisher as an occasional customer, not an inhabitant of Five Mile. Since business was common among the inns, this is
another illustration of the separation of Heyward and Fisher as proprietors and the inns they ran.

  From a total of twelve members attributed to the gang, the list had been whittled down and now there were three left facing charges. They were the keepers and proprietors of both the Five Mile House and the Six Mile House. They were husband and wife John and Lavinia Fisher and William Heyward. The final three—and no one else—were charged with the crimes against David Ross.

  CHAPTER 5

  The Escape

  A LAST BID FOR FREEDOM

  Because they were husband and wife, John and Lavinia were housed together in a single cell separate from the general population. This was an inner cell on the lowest level generally used as an isolation cell. There was little light or air flow through this cell. Conditions were horrendous.

  Apparently there came an opportunity for the Fishers to be moved to another section. According to records, Lavinia pleaded with Sheriff Cleary and both she and John were moved to a less secure part of the jail used as a debtors’ prison. Debtors were also held at the jail and manufactured a commodity that the jail had much use for—coffins.

  The debtors’ section was in an upper level of the jail where the Fishers could move freely about a larger cell. It was at this location that the Fishers were reunited with Joseph Roberts who was serving out his one-year sentence for assault on the butcher.

  On the night of Monday, September 13, 1819, John Fisher and Joseph Roberts created a hole under one of the windows and lowered themselves down with blankets they had tied together. Roberts went out first, followed by Fisher. As Fisher lowered himself to the ground, the blankets broke. He fell approximately twenty feet to the ground. Lavinia could not escape. Her line to freedom had been suddenly severed. Try as he may, John could not save Lavinia that night without alerting the guards. With no alternative, John Fisher and Joseph Roberts escaped into the darkness. Fortunately for them, their escape was not noticed until the following day or they would have had the tracking dogs to contend with.