Governor Burrington's friendship with Chief Justice Smith was of short continuance. We soon find the latter proceeding to England bearing complaints of the Governor's tyrannical and overbearing conduct, one witness swearing that he had in the presence of the Court ordered the marshal to arrest and imprison him. The Governor endeavored to break the force of his attack by writing to the Board of Trade that Smith was "the jest and scorn of the men who perverted him," "a silly, rash boy, a busy fool and an egregious sot," "ungrateful, perfidious scoundrel, and as much wanting in truth as understanding."
These are hard words to be said of one presiding in the highest court of the land, but the Chief Justice repaid the Governor with such compounded interest that Gabriel Johnston was soon seated in the executive chair, and Smith resumed his seat on the bench.
During Smith's absence in England, Burrington appointed John Palin as his successor, and on his resignation from ill health, Wm. Little, Gale's son-in-law, who died in two years and was succeeded by Daniel Hanmer, who in turn was soon ousted by the triumphant Smith. Those were sad times. In addition to the outrageous violence of the Governor, the lower house of the Assembly unanimously voted that Chief Justice Little was guilty of oppression and extortion, while Chief Justice Hanmer was imprisoned for perjury, which his friends charged was procured by the vindictive malice of Chief Justice Smith. Sixteen members of the Assembly charged Smith with grievous exactions and extortions and offered to prove the charges if time should be given for procurement of the witnesses. And still people prate of the glorious old time ! Even the old song, which tells of the miller's stealing corn and being drowned in his dam, and the weaver's expiating the theft of yarn by being hung in his web, and of the little tailor who went down below gripping tightly the purloined broadcloth under his arm, neither, however, meeting justice at the hands of the law-even that old song, bearing most cogent testimony of wide-spread corruption, has the effrontery to begin:
"In the good old Colony times,
When we were under the King!"
We now approach an important epoch in the history of our Colonial law. For many years the judges had been endeavoring to mould our judicial system after the English pattern-a court in bank, where all the pleadings were made up, sending out its judges periodically for trials of questions of fact in the neighborhood where the parties and witnesses reside. The first circuit ever attempted was Edenton and Newton, in Hyde County. The increase of population on the Cape Fear, the Neuse and the Tar, made it proper to take steps to accommodate those localities. Governor Johnston and his able Council were leading spirits, determined, if possible, to introduce the English system more fully, with Newbern as the new Westminster and to adopt that town as the capital of the Province.
A formidable obstacle was in the way of this improvement. The Lords Proprietors had granted each of the six precincts of old Albemarle County, Currituck, Pasquotank, Perquimans, Bertie, and Tyrrell, five members of the Assembly, while the others had only two. Such inequality may seem atrocious to us, but there were scores of worse inequalities among the boroughs sending members to the British House of Commons; and we are familiar with diminutive Delaware having the same political power in the Federal Senate as her big sister New York, with population thirty-five times greater. Certainly the inhabitants of those counties clung tenaciously, without sense of shame, to their privilege; and their thirty members, being a majority of the House, voted solidly against transferring the seat of government from Edenton.
Governor Johnston determined to carry his point by surprise. He prorogued the Assembly, appointing the new place Wilmington, as far as possible from the Albemarle, and the time, the latter part of November, when the swamps and low grounds were usually deep in water, and the Albemarle members, nearly all planters, were engaged in driving their hogs to market or curing their slaughtered carcasses for future use. He reckoned correctly that they would be slow in making the long and toilsome journey, and incurring danger of financial ruin by leaving their farms at a most critical period. By his advice, the southern members, taking advantage of their absence at the opening of the term, resolved that, by analogy to the British House of Commons, in which forty members constitute a quorum for transacting business, fourteen and the Speaker should be a quorum, and proceeded to reduce the representation of those counties to two each, fixed the seat of government at Newbern and passed the court bill of 1746. They thus added one more to the instances of good measures, like the union of England and Scotland, and the habeas corpus act, passed by unworthy means.
By virtue of this act Newbern took the place of Westminster. All writs, plaints, and process were to be commenced in the Supreme or General Court then, and all the pleadings and proceedings thereon were to be carried on until the case was at issue, and then the court issued out writs of nisi prius and subpoenas for witnesses to attend at the proper places.
These nisi prius courts were to be held by the Chief Justice twice a year at Edenton, in the Northern circuit, at Wilmington on the Southern circuit, and in the court-house in Edgecombe in the Western circuit.
The supreme and principal Court of Pleas for the Province was to be held twice a year in Newbern, and was to be called by the old name, the General Court. The Court consisted of the Chief Justice, appointed by the Crown, and three Associates to be appointed by the Governor, the Associates to have the powers of Associates in England, and to hold the court in cases of the sickness or disability of the Chief Justice, or when he was a party.
The criminal cases were to be tried in courts of Oyer and Terminer and General Jail Delivery, to be held by the Chief Justice or some person specially commissioned.
The Courts of Chancery were to be held in Newbern on the second Tuesdays after the General Courts.
The County Courts were to have cognizance of all cases above 40 shillings, and not exceeding £20 Proclamation money, of all petty larcenies and misdemeanors, with right of appeal to the General Court.
This act was a great improvement on the old system. It contains many provisions of the court acts of North Carolina of our day. I conjecture it was drawn by Moseley, then Chief Justice, or by him and Samuel Swann, both of whom were able and experienced lawyers. They, with Enoch Hall and Thomas Barker, were appointed the same year to revise and publish the Acts of Assembly in force. Hall and Barker seem not to have acted, and Moseley died in 1749, so the work is called Swann's Revisal, or "Yellow Jacket."
The admirers of Archibald MacLain claim for him the authorship of the much-lauded court law of 1777, which claim is, I think, successfully disputed by the admirers of James Iredell the elder in his behalf. The codifiers of the Revised Statutes of 1836 give the credit to the unknown author of the court law of 1767, but an inspection of the Acts of 1746 shows that its authors should have equal praise.
The acts met with vehement opposition at home and in England. The Board of Trade submitted the question as to their loyalty to the eminent law officers, both afterwards conspicuously adorning the Chief Justiceship of the King's Bench of England, Sir Dudley Ryder, Attorney General, and Wm. Mansfield, afterwards Lord Mansfield, Solicitor General. Their opinion was that the acts were passed "by management, precipitation and surprise, when very few members were present, and are of such a nature and tendency and such an effect and operation that the Governor, by his instructions, ought not to have assented to them, tho' they had passed deliberately in a full Assembly."
Whereupon, the agent for North Carolina craved leave to appear by counsel, Mr. Hume Campbell and Solicitor Sharpe. Their argument was ably replied to by Mr. Joddrell, counsel for the Albemarle counties.
This argument was had in 1751, five years after the passage of the act. Three years after this the Board of Trade made its decision against the acts, on the ground that they encroached on the King's prerogative. In consequence of this unaccountable and criminal neglect during all the years from 1746 to 1754, the six counties regarded not only these, but all other acts of Assembly, as illegal, and refused to recognize them in any way, because passed by an unlawful Assembly. Juries refused to attend the courts in Edenton, and there was practically no recognized government in the Albemarle country. Bishop Spangenberg, the Moravian, reports that "perfect anarchy prevailed. As a result, crimes are of frequent occurrence." This is not an unusual example of the misgovernment of North Carolina during the Colonial period.
The Assemblies under Governor Dobbs showed determined purpose to secure administration of the law, intelligent and honest. To secure independence they enacted that the Associate Justices should hold office during good behavior, which had been the rule in England since the Act of Settlement in 1701. To secure legal ability and interest in the Province, they enacted that no one should be an Associate Justice unless he should have been an outer barrister of five year's standing in England, or an attorney of seven years' practice in this or an adjoining Colony, and also have been a resident here for one year.
This excellent law was vehemently objected to by the Crown officers of the Board of Trade, and was repeatedly disapproved by the Crown. The Assembly stood firm, so that occasionally there was an interval of anarchy between the notice of the disapproval and the passage of the new law. Riotous assemblies were had, jails broken into, malefactors set at large, and violence and robbery were frequent and unpunished. Attorney General Robert Jones piteously complains that the rioters of Granville had notified him that they intended to petition the Court to silence him, and if they refused, to pull his nose.
The flimsy reasons given for the disapproval of these acts bring out clearly the strength of the position taken by the Assembly. They were:
- That the qualifications prescribed for the Associates were an unconstitutional restraint on the power of the Governor, who held his power of appointment under the Great Seal.
- That they practically prevented anyone from England being appointed an Associate Judge.
- That it was manifestly improper that the Associates should hold during good behavior, while the Chief Justice held at the pleasure of the Crown.
- That the acts create the offices of Associate Justices, leaving the Governor only the form and name of commissioning them.
- That it delegates to them, in the absence of the Chief Justice, the whole right of jurisdiction, which right can only be delegated by the Crown.
- That by the extending the circuit over 1,900 miles a year, a disability of attendance is created.
- That the Chief Justice in distant and desert places will be deprived of recourse to books to enable him to make a right decision.