AT THE SAME time that the Legislature was fettering the free Negro, attempting to tie him more securely to his native locality and thus lessen the possibility of his becoming a corrupting influence to the slave population, there was underway a profound movement to free the judicial system from blind adherence to the common law. The movement in North Carolina, beginning as early as 1782, was a part of the general movement for humanitarian reform which was sweeping the western hemisphere. In England, Jeremy Bentham led the movement for judiciary reform; in the United States, Edward Livingstone of Louisiana and David Dudley Field of New York. 1
Court week in North Carolina was a bustle of activity, as has already been pointed out in the discussion of the ante-bellum town. 3
It brought to town judges, litigants, witnesses, men who hoped to serve as jurors, and lawyers who regularly made the round of courts as well as numerous vendors, entertainers, and spectators. This was the time when the political parties held their county and district meetings, when temperance and Bible societies organized or had their annual gatherings, when agricultural societies held their fairs. In 1805 the Pasquotank County CourtIn 1853 when Augustus S. Merrimon, then a young lawyer destined to become chief justice of the Supreme Court, attended the Madison County Court, he found a great crowd of people in attendance. "Little business has been done today," he wrote. "Yesterday the Judge ordered the whisky wagons to be removed, and thus we have not been so much disturbed with drunkeness as yesterday. As soon, however, as court adjourned this evening the whole crowd hurried to the Court House Door--and such a drunken crowd, I have seldom seen." And again in January, 1854, he wrote of the Yancey County Court, "There has been quite a crowd in attendance today and they have tried to see how badly they could behave themselves. . . . At different times I noticed groups about over the Court Yard and in the center stood a large gauky looking fellow with a fiddle and he would saw off some silly ditty [.] two or three drunken fools would dance to the same." 4
Inside the courtroom, there was usually more decorum, although Merrimon complained of the constant confusion, especially of the Yancey County Court in January, 1854: "There is during the Session of the court a continual fuss, a continual talking, so that the Court, the Council nor the jury cannot hear the testimony. . . . A portion of the time, while suits were trying the whole court were off of the bench." 5
It is probable that there was a certain amount of confusion in most of the county courts which were generally presided over by men untrained to law, but the judges of the superior courts were usually men of personal reserve, quick to punish any infringement upon the dignity or privilege of the court. 6The courtroom always reeked of tobacco juice, whisky, and sweating bodies, more especially on a winter day when the room was closed, the rusty stove or open fireplace belching smoke, and the air fetid. The fastidious young Merrimon was constantly
Most of the old counties and some of the new ones had substantial brick or stone courthouses at the opening of the nineteenth century, with judge's bench, jury rail, and clerk's table; but some of the western counties, even in the last decade of the ante-bellum period, made scanty provision for their courts. In 1853 Merrimon found the Waynesville Courthouse to be "a verry bad one." The Madison County Court opened "without seats fit to sit on and without any place to do business" and the Jackson County Court held its meeting in the middle of December in an open house with no floor. 8
The court system in North Carolina during the colonial period was inefficient, subject to frequent change, and a question of controversy between the Crown and the local Assembly. 9
The appellate court of the Colony, the forerunner of the superior court, was established before the precinct courts and gradually yielded some of its powers to them. Presided over at first by the governor and Council, this court was called the General Court and came to be presided over by a chief justice and several associates. It usually sat three times a year, having jurisdiction as a court of king's bench, common pleas, and exchequer and as a court of oyer, terminer, and general jail delivery. An attorney general represented the Crown and indictments were brought in the name of the Sovereign. The General Court also exercised administrative duties, the most important of which was the apportionment of taxes by direction of the General Assembly. The quarrel between Crown and General Assembly over the supervision and jurisdiction of the General Court was one of the chief causes which led to the overthrow of the royal government in North Carolina.
The Colony also had a chancery court and a vice-admiralty court. The governor and Council held the chancery court, hearing appeals from the General Court, trying public officials for misconduct in office, probating wills, and examining accounts of administrators and executors. The vice-admiralty court was directly responsible to the admiralty court of England which appointed the judge and subordinate officials.
The Constitution of 1776 and two legislative acts of 1777 erected the structure of the ante-bellum courts upon the basis of the colonial system. The Constitution authorized the General Assembly to "appoint judges of the Supreme Court of Law and Equity, Judges of Admiralty, and an Attorney-General, who shall be commissioned by the Governor, and hold their offices during good behaviour." It also specified that the judges should have "adequate salaries" and that they should not be eligible to membership in the General Assembly.
As in colonial times, the magistrate's court stood at the bottom of the structure in the ante-bellum court system. The court, presided over by a justice of the peace, on some occasions two justices, met informally whenever the occasion arose. In the towns,
A justice of the peace received his commission from the governor, having been recommended to the office by the General Assembly, in actual practice by the members of the Assembly from his county. He was sworn into office by the county court and continued to serve as long as he resided within his county unless he tendered his resignation to the Legislature. He performed his duties without other remuneration than exemption from work on the public roads. The justice derived his powers from various legislative acts. In general, he had full power to maintain, keep, and preserve the peace; to solemnize the rites of matrimony, and to issue all processes necessary to the performance of his duties. His authority to keep the peace and his duties as a civil court covered a wide range of important functions.
The act of 1777 gave a justice of the peace "full power and authority, as amply and fully to all intents and purposes as any justice of the peace . . . had or ought to have had by virtue of any act or Assembly . . . under the late government." It was not until 1794 that the Assembly limited the magistrate's jurisdiction in civil cases to all debts and demands not exceeding twenty pounds, giving him authority to pronounce judgment and award process of execution against "the goods, chattels, land and tenements, or body of the party cast." In 1802 his jurisdiction was increased to £25, in 1803 to £30, and at the close of the period in 1860 he had jurisdiction over civil actions not exceeding $100. 11
Under this jurisdiction, a justice had cognizance of a large number and variety of forfeitures and penalties. In commenting upon this phase of a magistrate's jurisdiction, Edward Cantwell wrote in his North Carolina Magistrate in 1856: ". . . one cannot help being struck with the peculiar severity and efficiency of our North Carolina law, which has made nearly all crimes except perhaps the highest and misdemeanors, subject to a three-fold punishment namely, indictment, an action for damages at the suit of the party grieved, and finally, a pecuniary penalty recoverable in a summary manner, before a single magistrate." 12
Some of the penalties over which the magistrate had exclusive jurisdiction were: the forfeiture of $20 by a freeholder neglecting to notify the county ranger of taking up a stray; forfeiture of double the amount lent by persons charging greater interest than 6 per cent; forfeiture of $1 for violation of the Sabbath; forfeiture of $100 by a person fraudulently giving a slave permission in writing to sell, trade, or traffic; forfeiture of $40 by an owner hiring a slave his own time; forfeiture of $2 by a free Negro entertaining a slave at his house.
Besides the general powers and the civil jurisdiction already referred to, a justice of the peace possessed an important sphere of power and duty in the administration of the criminal law. The necessity of providing by law for some means of detaining offenders and suspected felons during the recess of the grand jury, the customs of the people derived from the common law, and especially the existence of slavery seemed to justify the Legislature's granting such vast power to the magistrate's court. The criminal jurisdiction of this court consisted mainly in (1) the summary trial and punishment of slaves for trivial offenses; (2) the arrest of vagrants, the destruction of gambling tables, and the seizure of money staked or used in gaming; and (3) the examination and commitment of felons and suspected persons and the collection of testimony for their conviction.
The trivial offenses committed by a slave, over which a single justice had cognizance, have already been enumerated in the discussion of the slave code. Besides these inferior offenses, a justice of the peace might try all other misdemeanors and crimes committed by slaves which, if done by a white person, would not
The Legislature also vested certain other important powers in the justices of the peace. In some cases these powers were to be exercised by one justice, in others by two, by three, or by seven. For instance, a single justice of the peace might order apprentices, examine the mother of bastard children, take evidence for the court of equity, administer oaths, remove prisoners, take the lists of revenue, and change private roads. 14
The powers which two justices of the peace might exercise were: to admit patients to the State Asylum for the insane, to discharge insolvent debtors who had no visible estate; to prove the revenue lists in certain cases; and to outlaw runaway slaves in certain cases. 15 Three or more justices of the peace might appoint special administrators, coroners, inspectors,Like the magistrate's court, the county court, which was next above it, had many administrative duties as well as the duties of a regular law court. The justices of the peace presided over the county court which sat quarterly at times appointed by legislative act. The justices had the privilege of appointing five of their number to hold the courts for a year, any three of whom had power to act. Each court had authority to appoint a chairman who should hold his office until a successor was appointed. The justices might be paid out of the county funds from $1 to $3 a day for their work. 17
In actual practice, a county court might have two or three different chairmen during one sitting of court and might have a change of justices almost every day. It was this fact which led to one of the chief criticisms of the county court made during the ante-bellum period, as will be pointed out later.The county court sat from one to six days, and all business not completed in that time was continued to the next succeeding term. Even the six-day term was often insufficient to dispose of all the business. In 1858 the Leisure Hour wrote of the Oxford County Court: "Although there were upwards of one hundred fifty cases on the docket, we understand that very little business was transacted. We dare say, that the fact that a vast amount of business was before the officials, to be performed, had a paralyzing effect upon their energies, and hence the week was frittered away, and scarcely anything done." The next week the Leisure Hour, apologizing for its hasty remarks, said, "There were 400 cases on docket and 200 taken off." 18
The justices of the county court had authority to summon both a grand jury and petit juries for each sitting of the court, but they had the privilege of dispensing with the attendance of a jury at two
The civil jurisdiction of the county court extended to suits for the imposition of penalties to the amount of $100 and upwards incurred by violation of the penal statutes and to suits for dower, partition, filial portions, legacies, and distributive shares of intestates' estates. As a part of its civil jurisdiction, the county court also sat at the first term of the year as an orphans' court, 19
proving and recording guardians' bonds, securing and managing the estate of orphans for whom no guardian could be found, authorizing the sale of perishable estates, appointing yearly sums for education and support, and in some cases disciplining unruly orphans. The orphans' court had concurrent jurisdiction with the superior court in appointing and removing guardians and in taking guardians' bonds. The work of the orphans' court often consumed much time, for some courts investigated more than a hundred accounts each year. In 1833, for instance, the Pasquotank County Court heard and proved 176 orphans' accounts and the Edgecombe County Court proved yearly between 1831 and 1857 from 110 to 163 accounts. 20The criminal jurisdiction of the county court extended to all cases in which the judgment upon conviction did not extend to death or dismemberment. 21
The administrative duties 22
THE SUPERIOR COURT
The superior court, like the magistrate's court and the county court, had civil and criminal jurisdiction and administrative duties. The act of 1777 created a superior court of three judges, divided the State into six districts, and provided for two courts a year in each of the district towns: Wilmington, New Bern, Edenton, Halifax, Hillsboro, and Salisbury. 23
The movement for reform, begun in 1782 with the erection of the Morgan district, became so insistent by 1806 that the Legislature created a superior court for each county in the State. In 1790 the Legislature had added a superior court judge and a solicitor general whose powers were identical with those of the attorney general. The act of 1806 increased the number of judges to six, added four additional solicitors, and changed the number of ridings to six instead of two, as under the act of 1790. No judge was to ride the same circuit twice in succession. 24
The term of court was usually six days unless a county obtained by legislative act a special court or a continuation of the regular term; as, for instance, Anson County Superior Court which was authorized to continue two weeks every fall term whenever the business of the court required it. In 1844, however, the Legislature delegated to the judge on the bench authority to announce a special term of court "whenever the civil business . . . shall become too great to be done at the regular term." 25
At the end of the sixth day, a superior court automatically came to a close regardless of whether a case was on trial, but in 1830 the Legislature authorized a judge to continue the term of court when a trial in a capital case had been started and the jury had not returned a verdict. In 1854 the Legislature permitted the judge to extend the term in case of any jury trial in order to receive the verdict of the jury.The act of 1777 gave the superior court original jurisdiction in civil suits for any debt or demand of £100 or upwards when the parties lived in the same district and for £50 or upwards when the parties lived in different districts. In 1808, however, the Legislature
In 1782 the Legislature also gave the superior court power to sit as a court of equity possessed of "all the powers and authorities within the same, that the court of chancery, which was formerly held in this State under the colonial government, used and exercised, and that are properly and rightfully incident to such a court. . . ." 27
An act of the following year further defined the duties of the equity court by declaring that "in all cases of disputes in matters of administration, testaments and trusts between executors, administrators, and guardians, and their wards and minors, in the settlement of accounts, and trusts arising from the depreciation of the currency and incidents growing out of the times, the parties may form a full and perfect state of the case on both sides, at their joint expence, which case shall be submitted to the determination of the judges of the court of equity, who are hereby authorised . . . to determine the same according to equity and good conscience." 28 This act and numerous ones passed thereafter further defined the rules and procedure of court, and an act of 1792 set aside the last three days of the superior court term as a time for disposing of the business on the equity docket. From 1782 until the close of the ante-bellum period, a movement was frequently underway in the Legislature to create equity courts distinct from the superior courts; but the Legislature steadfastly refused to take equity powers from the superior court judges. The practice of giving both law and equity powers to judges had been adopted by the federal court system and continues there to this day.The act of 1777 gave the superior court criminal jurisdiction in all cases except indictments for assault and battery, petit larceny, and slander, but an act of 1807 extended the jurisdiction of the superior court by giving it concurrent jurisdiction with the county court of "all pleas and prosecutions of the State, and of all actions of slander." This court also had original jurisdiction of all felonies.
The administrative powers of the superior court were less
In 1787 a superior court in North Carolina had declared in the case of Bayard v. Singleton the power of the court to set aside an act of the Legislature as unconstitutional. This famous case was the first reported "in which an act of a Legislature was declared void because contrary to a written constitution," but the State was slow to create a court of final jurisdiction. 30
The creation of a superior court for each county in the State under the act of 1806 had increased the work of the judges to such an extent that it became more and more burdensome for these same men to sit twice a year as a supreme court. Archibald D. Murphey had gone to the Legislature of 1817 determined "to get a Supreme Court with three Judges--and if we fail this, to add two more Judicial Districts." 31
To this same Legislature Governor Miller sent a message calling attention to the necessity of selecting separate judges who would sit as the Supreme Court. 32 On Murphey's motion Governor Miller's message was referred to a joint committee of the Legislature with Bartlett Yancey of the Senate as chairman. On November 26 Yancey reported a bill establishing a Supreme Court of three judges which, in addition to being a court of final resort, should also have jurisdiction over pending equity cases. 33 Yancey's bill was defeated but the following year William Gaston, later an illustrious member of the Supreme Court, introduced a similar bill and carried it through to victory. The act of 1818 called for the appointment of three judges whose duty it should be to hear cases on appeal from the superior and equity courts; to have original jurisdiction in repealing letters patent; to have power to issue writs; to prescribe rules of practice for the superior courts; to examine and license attorneys at law; and to appoint a chief justice, a clerk, and a reporter. 34"We have had in this State few changes in our judicial system--perhaps fewer than in any of our sister States," wrote "Gaston" in an address to the newly elected members of the General Assembly in 1854. "And however this may argue stability in our courts, its wisdom and policy may be a matter of doubt." 35
The movement for reform made itself felt early in the history of the State. The first important victory came in 1782 with the erection of the Morgan district superior court and the creation of equity courts. The first victory for reform of the new century was the continuation of the life of the Court of Conference. The century had opened, however, with a movement underway for an increase in the number of superior courts. A petition in 1802 from Johnston County complained of "the Extensiveness of our present Superior Court District" and the "very great inconvenience of attending Courts so remotely situated," saying, "Instead of being Tribunals of Justice to relieve the oppressed these distant Courts become Engines of oppression in the hands of the Opulent." 36 The movement for reform continued throughout the years. Sometimes it was virulent and after a few years of agitation won victories, but more often it was somnolent, sometimes even apparently dead.Opposed to reform was the conservative spirit of the courts which was blindly attached to precedent. The court system had been adapted from the English during colonial times; it had been sanctioned by the Revolutionary fathers; "for that reason it must be good and wholesome." "The Old Farmer is not fond of innovations," wrote a reformer in 1805. He is so busily engaged in making corn, tobacco, and cotton that he does not realize that a court "system calculated to answer all the purposes of an infant state of society, is altogether unsuitable for a populous, wealthy, mercantile and improving people, whose minds are expanding, whose wants are increasing, and whose relative situations are daily changing." 37
The farmers were not the only class opposed to reform. Frequently the lawyers and the district judges were in opposition, as in the case of the act of 1806 which gave every county a superior court. Sometimes even the reformers who might be counted on for support in minor changes were themselves opposedThe office of justice of the peace engaged the attention of the reformers throughout the period. "That there are serious defects in the Judicial System of this State, is too obvious to have escaped the observation of the most careless," wrote Edward J. Hale in the Carolina Observer of May 3, 1826. "What is a greater mockery of Justice, for instance, than the dependence which the laws place in the feeble and unwilling hands of our justices of peace? They seldom know their duties, and still more seldom perform them. And this is no wonder. Taken from among the people, without regard to legal knowledge, and sometimes even without regard to common sense and common honesty, selected by two or three individuals, sometimes according as caprice or interest may dictate, receiving no emolument, and precious little honor, for their services, how can we expect to fill this important, though humble office with competent men? or where is the incitement of a faithful discharge of its duties? Only a few days since, we saw a poor woman who said her house had been robbed of everything, that she had applied to several magistrates, and could not even obtain a search warrant. . . . We believe that such cases of hardship occur frequently."
Although Edward J. Hale was not often given to exaggeration, neither the Legislature nor the Supreme Court agreed with him that justices of the peace were generally unfit for the office they held. The Legislature gradually extended the jurisdiction of justices and the Supreme Court usually upheld the extension. An eminent jurist, writing in the North Carolina Standard in 1845, said, "In imitation of recent English examples we would even enlarge the jurisdiction of a Justice and make it final (by amendment of the Constitution if necessary) in all very petty cases of
As the writer pointed out, a great many cases appearing before a justice were of an extremely petty nature and not really contested. Ridiculing this aspect of the magistrate's court, Taliaferro wrote in his Fisher's River Scenes of one John Senter of Surry County who openly boasted of his fondness of "being in law." he once sued and received judgment against Ben Carson on the following items:
Although the law prescribed specific penalties for nonperformance of duty and abuse of jurisdiction, the masses felt that the 'squire was above the law. In cases of glaring inefficiency or corruption, however, there could usually be found someone in the 'squire's neighborhood daring enough to bring him to justice. In 1808 a petition signed by fifty citizens of Bladen County complained of "the privations and injuries" incident to the appointment of one Allen Hall as justice of the peace: "Your petitioners if present could prove to your honorable body; that he has been charged with many acts of felony, to which the records of their court bears testimony;--That he lives now, and has done for many years in adultery; That he is an officer of the peace, and bound by his oath to preserve it; that not withstanding he is generally the first in all public meetings to break it; That he has given many false judgements injurious to the good citizens of his neighbourhood, which he refuses to rectify on being informed thereof; plainly indicating thereby, that 'feeling power, he forgets right.'" 40
Occasionally the county court records bear testimony that justices were brought to law. For example, the OrangeDespite the provisions which the law made for holding a justice of the peace answerable for his acts, there is evidence of a general feeling among the people that the office was not sufficiently close to the democracy. At intervals from 1800 to the close of the ante-bellum period, and especially during the last decade, petitions and bills appeared in the Legislature asking that the office be made elective. Some wanted the justice elected by the captains' companies of the militia; others, by taxpayers entitled to vote for members of the House of Commons. 41
Among the reformers, there was a desire not only to enlarge the jurisdiction of the justice's courts, as has already been pointed out, but also to make the court one of record and to remunerate the justice for his work. ". . . I believe no Sett of Men in the United States perform without procuring reward such important services as the Justices of the Peace of No. Carolina," wrote a justice in resigning his office in 1832. The justice of the peace was forbidden to accept any fees. Even in the case of performing the rites of matrimony he could not charge, like the minister, $2 for his services. It was not until 1848 that an act was obtained exempting justices from road duty, although a bill with that purpose in view failed by only a few votes in the Legislature of 1844-1845. 42
Despite the general opinion that men desirous of climbing politically and socially sought the office of justice of the peace, the numerous resignations which the governor received every year
Since the same men who sat on the magistrate's bench might also sit on the bench of the county court, the same criticisms were also aimed at this court. If the justices of the peace were, separately, "boobies," "inefficient," "men who received office as rewards for electioneering or for a purchase price," so also were they when they sat collectively as a county court. Most of the petitions and bills concerning reform in the county courts which appeared before the General Assembly between 1800 and 1860 sought to create a fixed executive for the court. For instance, a bill in 1804 proposed to establish a "quorum of three justices," appointed by the Legislature, which should sit as the county court. In 1808 the House of Commons instructed its Judiciary Committee to inquire into the expediency of creating such a quorum and a bill of 1809 called for the popular election of seven justices who should constitute the county court. In 1818, the same year that Gaston wrote his Supreme Court bill, he reported unfavorably as chairman of the Judiciary Committee on "the expediency of appointing five respectable men in each county to hold the courts of pleas and quarter sessions during good behavior and to receive a per diem compensation for their services." 45
In the last decade of the period, the bills calling for reform looked toward the election or appointment of a single judge. A bill of 1850 called for the election of a judge by the people and a bill of 1852 for the election of a judge by a majority of the justices of the peace.It was frequently complained that the county court justices monopolized all the minor appointive offices within their power. Before the passage of the act of 1808 forbidding justices of the
In an attempt to reform the practice and procedure in the county courts, numerous petitions complained of the carelessness with which the courts kept their records. They complained that a clerk or a single justice performed privately administrative business that the law required to be done in open court, that it was difficult to get a chairman to serve throughout a single term of court, and that it was almost impossible to get a majority of justices present. When the Legislature steadfastly refused to make any important change in the county court system, various counties sought relief by obtaining special acts permitting deviation from the general law. In 1826, for example, Davidson County obtained a law permitting eleven justices to perform all the powers previously exercised by a majority, and in 1828 Nash County obtained a law permitting the same number of justices which composed a special court to perform all the duties formerly delegated to a majority of justices except in certain appointments and in the laying of taxes. In Wayne County by act of 1830 and in Brunswick County by act of 1831 the justices present at any time might in all cases proceed to exercise the powers delegated to the majority. Numerous other counties also obtained special acts permitting modifications of the general law. 47
A few counties, among them, Robeson, Brunswick, Moore, Burke, Yancey, Cleveland, Henderson, Buncombe, Gaston, Lincoln, Polk, Cherokee, and Macon, obtained acts forbidding their county courts to hold jury trials. The case of Robeson County is especially interesting. The county obtained this reform in 1820, to the general satisfaction of everyone except "persons at or near the Court house." About twenty years later the opposition was strong enough to call for a popular vote on the subject and the question
In 1845 when an eminent jurist of North Carolina reviewed the court system of the State, he found the greatest need for reform in the county courts. "It must be obvious to any observer," he wrote, "that this Court, from its constitution, is extremely ill adapted to administer the law. . . . Long since, we believe, would it have been altogether divested of powers so little appropriate, but for the unfortunate indifference of public men in general to any measure unconnected with party politics, and the unworthy dread of risking popularity with the vulgar by innovations, however wise." 49
"Justices are perpetually going on and off the bench," wrote the critic of the courts in 1845, "and it often happens that the Court is wholly changed several times during the progress of a trial. This would be incredible to strangers. We think no parallel can be found in the institutions of any country professing to administer
It happened, accordingly, that the county courts were presided over by (1) judges without any knowledge of the law they administered, (2) judges receiving little or no compensation 52
The reforms which the eminent jurist advocated through the columns of the North Carolina Standard in 1845 were as follows: (1) the annual election of justices of the peace "by the people of the several captain's districts" of the militia, (2) "a reasonable compensation," (3) the continuation and enlargement of the administrative powers of the county court, (4) removal of all judicial powers from the county court except as a court of probate. 55
In 1820 Governor Branch had pointed out "the confusion apparent in our county courts, in consequence of what is technically called county business clashing with the regular jury trials" and had called for a separation of those duties and powers by the creation of a special court for the transaction of county business. 56
The Legislature ignored the suggestion, but various counties, as it has already been pointed out, adapted it to their needs by depriving their courts of jury trials. Again in 1846 Governor Graham suggested that all jurisdiction of pleas in the county courts might be abolished with advantage and "those Courts be permitted to remain only for purposes of Probate and County Police, with a session of but a single day in each month." 57 A bill to put Governor Graham's suggestion into effect failed as did similar bills in 1856 and in 1858. Some would go a step further and abolish the county courts entirely. Such a bill appeared in the Legislature as early as 1812. 58 In 1854 A. S. Merrimon, then a young lawyer, wrote, "The more I see of the County Courts, the more I wish to see them abolished." 59 He saw this wish realized in the Constitution of 1868 which created a board of county commissioners with power to exercise most of the administrative functions formerly within the jurisdiction of the county court. The Constitution conferred the general administrative powers such as probating wills and appointing guardians, formerly exercised by the county courts, upon clerks of the superior courts and divided the judicial powers of the county court between the magistrate's court and the superior court. It was not until 1923 that the Legislature again authorized a county courtThe greatest reform in the superior court system came in 1806 with the creation of a superior court for each county in the State. Before that time, the reformers called the system "a wretched, decrepit one that has for many years been about to fall." 60
The public mind having been agitated, the Legislature in 1806 passed the bill which had been proposed the previous year. But many of the lawyers and judges opposed the system from the first and Governor Alexander called for a repeal of the act in 1807: "The change that was effected by the last Legislature, in our Judiciary System, has produced a scene of confusion never before witnessed; such a clashing of courts, posting of judges, lawyers, clients and witnesses, as to prevent all regular proceedings." He thought the counties not populous enough to furnish sufficient jurors and declared that if six additional judges were appointed their work would still be too arduous. "It is cruel and oppressive to compel your judges to travel through ten counties, in ten successive weeks, twice in the year, and perhaps travel two or three hundred miles before they enter upon their judicial career." 61Later movements for reform were largely aimed at decreasing the size of the superior court circuits and increasing the salaries of the judges. The few additional superior courts which were created after 1806 by the erection of new counties were added to some one of the existing six districts until the act of 1836 which redistricted the State into seven circuits and added an additional judge and an additional circuit. When Judge Francis Locke resigned his position in 1814, he declared that the "degree of fatigue and labor . . . and with the labor a great increase of expenses" imposed by succeeding Legislatures upon superior court judges had become insupportable. 62
In 1815 Governor Miller declared that the poor pay of the superior court judges produced an able bar and a weak bench, creating a situation in which "justice must necessarily, andThe act of 1818 creating the Supreme Court greatly relieved the work of the superior court judges, but did little toward increasing their salaries. In 1786 the Legislature had fixed the salary of superior court judges at £50 a court and so it continued despite the great increase of duties until 1808 when it was reduced to £40 a court with $100 added for attending the Supreme Court. The act of 1818, while fixing the salary of Supreme Court judges at $2,500, higher by $500 than the salary of the governor, gave only $90 a court to superior court judges. The Legislature of 1836 somewhat improved the situation of the judges by giving them a fixed salary of $1,950, and so the salary remained until the Revised Code of 1855 allowed superior court judges an additional $90 per court when a circuit had more than twelve courts.
Even after the creation of a separate body of judges for the Supreme Court, the superior court judges were still overworked. In 1819 Governor Branch, commenting upon Judge John D. Toomer's resignation, pointed out "the Herculean tasks," the "extraordinary labors and privations and exposures to which our Superior Court Judges are subjected" and asked the Legislature for relief. 65
An act of 1821 sought to relieve the overcrowded dockets of superior courts in which "suits . . . have so accumulated" by providing extra terms of court and a similar act of 1824 sought the same object, adding as a bait to the Legislature, "extending relief . . . without any increase of salary to the Judges holding said Courts." 66As in the case of justices of the peace, sheriffs, clerks of court, and other minor offices, a movement was begun for limiting the tenure of office and providing for the popular election of judges of the superior courts. A bill before the Senate in 1830 proposed to limit the appointment of judges to a four-year term and in 1851 a bill called for the election of Supreme Court and superior court judges every eight years. 69
It was chiefly in connection with the civil side of the docket that the superior courts became clogged. The courts sometimes continued the same suit year after year until it actually happened, as Governor Graham declared in 1846, that cases were handed down from father to son. The act of 1782 creating courts of equity in no way relieved the superior courts, for it merely gave the judges powers in equity as well as in law. Thus it happened that James Barnes of Gates County in 1807 might truthfully describe the equity court of his county as an "extraordinary whirlpool . . . which has nearly been my ruin." The suit began in 1783 and after twenty-four years had not yet been settled. During that time, Barnes had employed five different attorneys, some of the earlier ones having died; the master in equity had lost the papers for a period of two years; the bill had been amended; a decree had been obtained in 1801; but now he seemed inextricably "hung up, as they call it, by a Plea." During the continuance of this suit, Barnes wrote, "I have been a slave in attendance on the court, and were it not for providential circumstances in other respects, I should by this time have been beggared." 70
In 1810 Governor Stone suggested a change in the disposition of equity suits 71
and in 1811 "A Constituent," in an able article,The act of 1818 creating the Supreme Court also gave tremendous relief to the equity docket of the superior courts, for one section of the act provided that a case, after having been set for hearing might be removed to the Supreme Court on sufficient cause being shown by affidavit. Only one year after the creation of the Supreme Court, William Gaston reported to the Senate, ". . . the court is ready to receive those weighty and numerous equity suits, which have for so many years slept unheard on the dockets of the courts in the west. . . . Sufficiently long have the parties been mocked with a promise of hearing. In this court they will be heard, and it is in this court only that they can obtain this boon." 73
It was in connection with the trial of such suits that the Supreme Court, especially under the guidance of Chief Justice Ruffin, rendered a valuable service in clarifying rules of equity 74Until the provision of 1818 giving the Supreme Court jurisdiction in certain cases, the Legislature considered almost yearly from 1803 bills calling for the establishment of equity, or chancery, courts separate from the law courts. Even after 1818, bills appeared seeking to establish separate chancery courts. A bill of 1825 would have created a chancery court presided over by the Supreme Court judges. 75
The Constitution of 1868 declared that "the distinctions between actions at law and suits in equity, and the forms of all such actions and suits, shall be abolished; and there shall be in this State but one form of action . . . a civil action." This provision did not destroy equitable rights and remedies but declared that all suits formerly brought at equity should now be brought as actions at law. 76The jurist advocating reform in the judiciary system of North Carolina pointed out in 1845 that the superior courts of law and equity did not have the three requisite qualities of a perfect system: certainty, speed, and cheapness. Aside from defects arising from the system itself, this critic of the courts would point to defects in the practice of the court. Although the statutes of the State provided for a rigid system of pleading, the system actually followed in the courts was extremely loose and careless.
The statute prescribes when declarations and pleas shall be filed and demurrer argued, and that an "entire and perfect record" of the proceedings in each suit shall be made. The truth is, we have never possessed but its most attenuated shadow. 77
The result of this loose method of pleading and of the failure of the courts to insist upon complete records being filed was that law and fact became inextricably blended so that the jury necessarily decided, as in the county courts, both upon the law and upon the facts and thus usurped the functions of the court. Another effect of the failure of the parties to file record was to deprive the litigants almost entirely of a most important right provided by statute, the right to a writ of error for error in the record. Without a record there could, of course, be no apparent error. The loose system of pleading, moreover, made litigation a monstrous and unreasonable cost not only because of the delays which it produced through the ease of making false pleas, but also because of the great number of witnesses that it necessitated. "It is the vast crowd of witnesses, unnecessary under any other system, which renders law in North Carolina either a luxury for epicures, or a covered abyss to swallow up suitors for justice."
Thus, the jurist, advocating reform in the North Carolina Standard, declared that the practice prevailing in North Carolina in these respects was "utterly unexampled elsewhere." "And it cannot fail, on consideration, to strike every one with astonishment how we have been able to get along for a century under a system compared with which the rudest and most aboriginal form of settling disputes, arbitration by neighbors, is vastly superior." 79
He advocated, therefore, the following reforms: (1) the adoption of a system of pleading, simple and concise, and as free as possible from technicalities; (2) a compulsory statute, if necessary, requiring that a record of demand and response be filed with theThe Supreme Court remained throughout the ante-bellum period as established by the act of 1818 except for such minor changes as were provided by an act of 1822 giving the Court power to amend proceedings, an act of 1825 permitting the Court to allow the taking of further testimony, various acts further describing the duties of the clerk, an act of 1834 permitting two judges to hold court in case of sickness of the third, an act of 1842 providing for a term of court to be held at Morganton, and a few other acts in no way greatly affecting the structure of the Court. 83
The Supreme Court, however, had its enemies, especially during the first ten years of its existence. But in 1824, when W. Alston introduced a resolution into the Legislature to abolish the Supreme Court, he found the public press about his heels. "A Plain Farmer," writing in the Catawba Journal of Charlotte, described the Alston resolution as "an extraordinary stretch of Legislative power" and dismissed the attempt to reduce the salaries of the judges as "a fantastic trick" of a man "with a little brief authority." 84
If, as the Plain Farmer stated, the people of the State had come by 1825 to consider the Supreme Court "as the palladium of their safety, as the sacred repository of their lives, their liberty, and their property," they revered it even more inIn his letter of resignation Chief Justice Ruffin had warned the Legislature that the successful administration of justice rested upon an "independent and sound Judiciary." Commenting upon this fact, the Raleigh Register declared, ". . . the ability of the judiciary and the impartial and satisfactory administration of justice can exist only, while the Judges shall be independent of popular favors and popular sentiments, and shall be removed in the discharge of their duties from the insinuating influences of party." 87
It was left for the Constitution of 1868 to free the Supreme Court from its position as creature of the Legislature. The Constitution specifically determined the composition of the Court so that it was no longer possible, as it might have been during ante-bellum days, for the Legislature to abolish the Supreme Court. While securing the permanency of the Court, the Constitution also introduced a feature of which Chief Justice Ruffin had been fearful in 1852, the popular election of judges.The administration of justice had been brought nearer to the people by the act of 1806 creating a superior court for every county in the State and by the act of 1818 establishing a Supreme Court presided over by a separate body of judges; but, even at the close of the period, court dockets were overcrowded and judicature was expensive and often uncertain. Simultaneous with the reform in the court system, there was underway a movement for reform in the penal code.
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