What we call "counties" were, until 1788, called "precincts," while a number of precincts constituted the larger jurisdictions of Albemarle and Bath counties. I do not find the County Courts, contemplated by the Fundamental Constitutions, ever had an existence. The Precinct Courts were established at once, and under the name, subsequently given, of Courts of Pleas and Quarter Sessions, continued until abolished by the Constitution of 1868.
It is not certain that the earliest Chief Justices were lawyers. The title, "Captain" John Willoughby, does not suggest Coke or Littleton. He seems to have been a man of force, as we have an accusation against him before the Lords Proprietors that he was a "person who runs himself in many errors and praemunires by his extra judicial and arbitrary proceedings in the courts." It is charged that he refused to grant an appeal to Thomas Eastchurch, saying that his courts "were the court of courts and jury of juries." As to the truth of the charge we must suspend judgment until the other side be heard from.
The earliest record of any General Court that we have, in 1694, at the house of Mr. Thomas White, shows that it was held by the whole Council, with Mr. John Durant as assistant. The Chief Justice was likewise the executive, Hon. Thomas Harvey, Esq., Deputy Governor, the Governor of Carolina being at Charleston. Whether he was a lawyer does not appear. The assistants were Hon. Francis Tomes, Benjamin Lakar, Major Samuel Swann, Daniel Akehurst, Secretary, Esq., Lord Deputies. The cases brought before the Court were escheats, laying out roads, attachments, actions in debt, assumpsit, detinue, trespass, quare clausum fregit. Criminal cases were also tried. They sat also as a court in chancery.
An instructive case, illustrating not only the court practices, but the business habits of the people, was that of Hopkins v. Wm. Spragg-Attachment.
The Provost Marshal, as the executive officer of the Court was called, returned attachment on six sheep, one pair of steel yards and one loom, one cow and yearling, one cow and calf, with whatever of estate of Spragg was in the hands of Christopher Butler; also £3 5 shillings in bonds of Lawrence Misell. The plaintiff declared that Spragg was indebted to him in 1,400 lbs of merchantable pork, agreed to be paid for; 14 sheep sold by plaintiff to defendant; that defendant was willing to surrender the 14 sheep in satisfaction, but Christopher Butler, by persuasion, prevented the same, and then, with intent to defraud said Hopkins, purchased all the defendant's estate; whereupon, Butler comes and defends the suit.
A jury is impaneled, who find for the plaintiff. The Court orders that the Marshal make payment to the plaintiff of the 1,400 lbs. of pork of the goods attached, being appraised according to law, with costs of suit, and the surplus, if any, to return to Butler.
Whereupon, Butler craves that further proceeding be stayed until the full hearing of the whole matter be had at the next Court of Chancery. Butler, and Mr. Stephen Manwaring as his surety for the appeal, give bond in the penal sum of 2,800 lbs. of pork.
At the Court of Chancery, the same officers being present, with Col. Thomas Pollock, a Lord Deputy, and Col. Anthony Daws, as assistants, being added, it is recited that Christopher Butler, appearing and pretending title to the goods of Spragg, having obtained an injunction, has not filed any bill. It is decreed that the suit be dismissed. Evidently, Butler appealed for delay only. I find other appeals where there was no pretense of an equitable element.
I will give a criminal case-an indictment for murder-which shows the rudeness of the practice in that day. It is charged that "Thos. Denham, Gent., with a certain weapon, commonly called or known by ye name of catt of nine tayles, feloniously and maliciously did strike, beat, wounded and killed" one Hudson, who, by reason of aforesaid mortal strokes and wounds, did depart this life.
Richard Plates, Att'y Gen'l.
Jury find "guilty of manslaughter."
The record states that Thomas Denham, having been convicted of manslaughter and "saved by his Book" (a curious entry for pleading the benefit of the clergy), "ordered, that Thomas Denham be burnt in Browne of left thumb with a hott iron having ye letter M, and pay all costs, and upon his petition, the court in chancery doth reprieve said sentence until her Majesty's pleasure be further known."
It seems here that the Governor and Council, sitting as a Court of Chancery, granted the reprieve. The power of reprieve was originally granted to the "Governor and Council." It is likely that the same body acted in an executive capacity at one moment, and, without leaving their seats, resolved itself into a Court of Chancery. The functions of the two were therefore sometimes confounded. Long afterwards we find that the Governor and Council prescribed days for holding court, generally the week after the session of the General Court.
It will be noticed that the reprieve was "until her Majesty's pleasure be known." This seems inconsistent with the claim of the Lords Proprietors to absolute rule, "jura regalia," in Carolina. History shows that there was great discontent with the practical independence of the Crown granted by the charters of Charles II. Quo warrantos were sometimes threatened for annulment of the grants, and the Proprietors found it necessary to make some concessions of their princely claims long before they sold their rights to the Crown. At one time the General Court refused to grant an appeal to the Privy Council, but afterwards it was deemed best to allow it, though so grudgingly that they refused to stay execution pending the appeal.
The oath required of the judges was short and to the point: "You shall doe equall Right to ye poore and rich after your conning, witt & Power. You shall not be councell of any quarrell hanging before you."
We have no records of the General Court during the troublesome times of the so-called Cary Rebellion and the Tuscarora War. The record of one held in 1713, for the Province of North Carolina, is printed in the Colonial Records. This is like our modern courts. The Deputy Governor and his Council, with one or two assistants, are no longer the judges. In their place we find the Hon. Christo. Gale, Chief Justice, and Thos. Miller, Capt. John Pottiver and Anthony Hatch, Assistant Justices. Gale was a lawyer, though Urmstone, the missionary (not a good witness, however, as a rule), says that he was in England only a lawyer's clerk. The others were plain justices of the peace. At what time these changes occurred does not appear. This constitution of the court continued for many years.
The pleadings are more accurately drawn, though the spelling does not improve. For example, we have "enorminous" for "enormous," "abrobrious" for "opprobrious," "dispositions" for "depositions." Lawyers are more numerous. The principals are Edward Moseley, Thos. Snoden, and Edward Donwich, who is her Majesty's Attorney General. The place of meeting is Captain John Hecklefield's, in Little River. The Assistant Justices are sometimes styled "Associates." Instead of appealing to the Courts of Chancery to set aside judgments, motions are made before the Court itself for arrest of judgment. The points made by Edward Moseley in Cary v. Took would do credit to a modern lawyer with his unlimited access to books.
It is to be remarked in passing that the Colonial Records show that the act of the General Assembly, expressly declaring that the common law is and shall be in force in this government, except the "part of the practice in the issuing out and return of writs and proceedings in the Court of Westminster," &c., which Hawks and others say was first passed in 1715, was certainly passed as early as 1711.
Christopher Gale is the most imposing figure in the early judiciary. His portrait, with his dignified countenance and flowing wig, shows judicial serenity equal to his contemporaries in England. The missionary, Urmstone, whose grumbling spirit and vituperative pen destroy his credibility, cannot help admitting that he had gained great esteem, and was regarded as an oracle. Everard and Burrington praise him at time, and when he opposes their schemes violently denounce him, as they did all other officers not agreeing with them. But the vestrymen of his church indorse his piety, the members or the lower house of the Assembly his learning and integrity, and the Lords Proprietors give him their support. My opinion inclines to Gale.
Whoever has held the great office of Chief Justice deserves at least that his name shall be recorded. I therefore state that Tobias Knight, the same who was accused of complicity with the pirate Teach, or Thache (pronounced Tack), known as Blackbeard, who was, however, acquitted, was in place of Gale, who vacated his office by going to England. Then came Frederick Jones, who, I am grieved to say, unjustly detained money, paid to him in lieu of bail, which his executors were forced to disgorge. Then came Gale again, during whose second term the court was for the first time held in a court-house, in Edenton, formerly Queen Ann's Creek. In 1724 the terrible Burrington assumed the power of ejecting him and appointing Thomas Pollock, but the indignant Proprietors quickly reversed his action, ejecting Burrington and installing Sir Richard Everard as his successor. At the Court in 1726 ten assistants sustained the Chief Justice, while three indictments were found against the late Governor for trespass, assault, misdemeanor and breach of the peace, which the accused contemptuously ignored until after the second term; the Court, in despair of enforcing its authority, ordered nolle prosequis to be entered. It was high time for the Lords Proprietors to surrender a trust which they had so shamefully mismanaged.
In 1728 the Proprietors transferred to the Crown the jurisdiction over all the territory covered by the charters of 1663 and 1665, and seven-eighths of the title to the land, Earl Granville retaining his interest in the soil, which was in 1744 conveyed to him in severalty. The jurisdiction was not formally assumed until 1731, when Burrington, the first royal Governor, replaced Everard. There was no change, therefore, in the court system until the latter date, Gale continuing to be Chief Justice, and having constantly stormy disputes with the Governor. He was superseded by William Smith, who is described as having been educated at one of the English universities and having been a barrister at law for two years. The royal instructions to the Governor show a desire to have a better government. The Governor was forbidden to displace a Judge, without good cause reported to the King or the Commissioners for Trade and Plantations. Justice was ordered to be dispensed without delay or partiality, and the privilege of the writ of habeas corpus was enjoined. Appeals from the Court to the Governor and Council were allowed in cases of over £100 value, and thence to the Privy Council in cases over £300.
Burrington, in an official report, gives a very intelligent account of the court laws of his day. The Chief Justice was paid a salary and fees for forty-one several acts, the scale of which may be estimated from issuing a writ being 3 shillings, filing a declaration or plea 2 shillings and 6d., &c. The Clerk's fees were about the same as those of his chief. The fees were payable in Proclamation money, or in certain commodities at prescribed rates, e. g., tobacco at 11 shillings per 100 lbs, corn at 2 shillings per bushel, wheat at 4 shillings per bushel. The Clerk, Wm. Badham, reports that in 1772 the salary of the Chief Justice was £60 per annum, and fees about £100. The later rose to £500. Attorney General Little in 1731 estimates his own fees at £100, and the Chief Justice's income at £500 or £600, of which £60 was salary. The depreciation in Proclamation money varied very much at this time-according to Burrington the pound sterling being eight to one, but according to the Assembly only five to one.