In 1760, Governor Dobbs was moved by the urgency of the Assembly and prevalence of anarchy, with the approval of Chief Justice Berry, and the Attorney General Childs, who had given a different opinion when in England, to sign a court law substantially the same as that disapproved by the Crown. For this he was severely censured by the King and Council, and the laws were disallowed; wherefore, in 1762, the Assembly receded from the obnoxious provisions. A "Supreme Court of Justice" was established in the district of Edenton, Newbern, Wilmington and Halifax, to be composed of the Chief Justice and one Associate, and in the Salisbury district of the Chief Justice and an assistant Judge.
In 1767, a new and more elaborate court system was adopted for five years. The Province was divided into five judicial districts, Hillsboro being added to those heretofore mentioned. In each was a court held by the Chief Justice and two Associates, the latter appointed by the Governor and allowed £500 a year, for payment of which a special tax on each wheel of a pleasure carriage, and on law suits, was laid. Martin Howard was Chief Justice, and Richard Henderson and Maurice Moore were appointed Associate Justices.
This system was an essential departure from the English system. Instead of the judges trying questions of facts only in the districts, leaving the questions of law to be heard before all the judges sitting in bank at Newbern, all the members of the Court went to the courthouse of each district and there heard both questions of fact and questions of law. The Nisi Prius Court and the Appellate Court were held in the same town by the same judges, and during the same term. A great defect was, that one Judge, in the absence of the others, had all the powers of the Court.
The salary of the Chief Justice was £26, and of the Attorney General £16, the Associate Justices £41 13s. 4d., Proclamation money, for each court.
The act was not renewed. After the expiration of the five years' limit, the Governor and Council insisted on exempting from the attachment laws the estate of those who had never resided in the Province, and to confine them to cases of those debtors who had absconded from the Province with the intent to avoid payment of their debts. The Lower House unanimously resolved that the right to attach the estates of foreigners had long been exercised by the inhabitants of the Province; that it had been found greatly beneficial to its trade and commerce, and the security of the property of inhabitants, and that they could not, by any public act of theirs, relinquish this right, abandoning the interest of their constituents, and the peace and happiness of the Province. The Governor urged them to provide compensation, at least for those appointed by him especially to hold courts of Oyer and Terminer and General Jail Delivery, but they firmly declined. They claimed that such commissions could not be valid without the aid of the Legislature; that calamitous as the circumstances of a people might be, from the interruption both of criminal and civil jurisprudence, the House judged the misery of such a situation vanished in comparison with a mode of redress exercised by courts unconstitutionally formed. The various arguments of the Assembly on this question show ability and a fixed determination to secure for themselves the untrammeled right to pass laws suitable to the circumstances of the Province.
In consequence of this disagreement, our Province was without higher courts from 6th March, 1773, to December 24, 1777, which period is excepted out of the statute of limitations by the court law of 1777. Martin attempted to inaugurate criminal courts by special commission, under the royal prerogative, Samuel Cornell being, pro hoc vice, appointed Chief Justice, but such strong exceptions were made to the commissions that the scheme was not pressed. There is abundant evidence of the crime and turbulence resulting from the suspension of the courts. It was not long, however, for in August, 1775, the State Congress at Hillsboro adopted a provisional government in preparation for the war of independence, and the functions of the judiciary were exercised by the stern hand of the Committees of Safety.
It only remains, before leaving the Colonial history of the Supreme Court, to give a list of the Chief Justices after Wm. Smith, who left for England in 1740. John Montgomery received the temporary appointment, which, on Smith's death, three years later, was made permanent. He was succeeded in 1744 by Edward Moseley, a man of great ability, who for forty-four years preceding his death, in 1749, with rare ability and weight of character, was ever foremost in public and in private life, in working for the material interest of the Colony, in battling for the rights of the people, in courageously withstanding the tyranny of the executive. After Moseley was Enoch Hall, whose good character receives the praise of Governor Dobbs, while his knowledge of the law receives his depreciation. On his visiting England in 1760, Eleazer Allen and James Hazell held the office successively. I know nothing of Allen. McCullock, the elder, estimates Hazell as a creature of Johnston, not bred to the law and without the least knowledge therein. Peter Henly was next in office, a man of uprightness, according to the Lower House of the assembly. On his death in 1758, James Hazell was again the locum tenens, until the arrival of Charles Berry. He seems to have been a fair and upright Judge until he came to a tragic end in 1766, by suicide in a fit of temporary insanity, it is said, brought on by brooding over the displeasure of Tryon because the slayer of an English officer in a duel was not convicted in his court.
Martin Howard, the next Chief Justice, was a firm supporter of the royal prerogative. For his advocacy of the Stamp Act, while a Judge in Rhode Island, his home was burnt and he was forced to flee for his life. Unusual obloquy has been heaped upon his name; but as he was allowed to reside on his plantation in Craven County, where he claimed to have made two blades of grass grow where one grew before, unmolested, until the middle of September, 1777, and was on friendly terms with Judge Iredell, I surmise that much of the odium against him must be attributed to party feeling. His legal reputation was high.
Judges Moore and Henderson espoused the cause of the Colonies, and the former was active as a legislator in Revolutionary times. Moore seems to have been an able lawyer. Henderson turned his attention to land speculation, and certainly had ambitious views, as history shows. A son of the former, Alfred Moore, became a Judge of the Supreme Court of the United States, and a son of the latter, Chief Justice of the Supreme Court of our own State.
The Constitution of the free State of North Carolina was adopted on the 18th of December, 1776. The framers had no conception of any system in which the judges of the supreme or appellate court should not themselves sit in the trial of causes. There is no provision in it regarding a Superior Court Judge. It is the legislative, executive and supreme judicial power that are to be kept separate. The General Assembly is to elect Judges of the Supreme Court of law and equity and Judges of the Admiralty. It is the Judges of the Supreme Court who are to have adequate salaries. It is certain that the Constitution contemplated that the Supreme and Superior Court Judges should be the same persons, as in Colonial days and as in England.
Under the Colonial government, the Chief Justice was the highest judicial power; yet he was a member of the Council, and therefore an influential part of the executive department. As the Council was the upper house of the General Assembly, he was likewise an influential part of the Legislature. The Governor not only could disapprove acts and dissolve and prorogue the Assembly, but had large weight in the appointment and control of the Council, and thus had power in the Legislature. Moreover, being a member of, and presiding over, the Court of Chancery, he was an important factor in the judicial department. In fact, complaint was made against Governor Johnston that he acted as Chancellor when the court was not in session. Hence, we find the prohibition of the intermingling of the three departments of our government inserted in the Declaration of Rights. But the framers of the Constitution had had so much experience of the arbitrary conduct of the Governor and Judges that they made the executive and judicial branches almost entirely dependent on the General Assembly, the annually-elected agents of the people. I will not stop to show this as to the Governor. The statement is abundantly evident as to the judges. They held office during good behavior, but they could be removed by repeal of the law authorizing the court. They were to have adequate salaries, but the Assembly had the sole decision as to what was adequate. The Assembly, without the intervention of a grand jury, could prosecute them by impeachment for alleged maladministration or corruption.
The Constitution of 1835 remedied at least two of these defects. By the amendments then adopted, the salaries of the judges could not be diminished during their continuance in office, and the Senate only could try impeachments, two thirds being required for conviction. The judges were still removable by repeal of the law under which their offices were held. It was not until 1868 that the Supreme Court was made a part of the Constitution, so as to secure entire independence. It is a strong proof of the firmness and integrity of our judges since 1777, as well as the conservatism of our people, that those officers never hesitated to do their duty, even when in opposition to the will of the Assembly, and the people sustained them. They have repeatedly declared null laws framed by the body which could have docked their salaries and even abolished their offices. They have not hesitated to incur temporary unpopularity in defence of principles of lasting value.
On November 15, 1777, the new court law was adopted. It is so nearly a copy of the act of 1767 as to suggest the probability of having been drawn by the same lawyer. The term "Superior Court" was used when it was manifestly proper to use the constitutional term "Supreme Court," which would not have been a misnomer, as it had supreme jurisdiction. In another section the draftsman forgot to omit the words "or commander-in-chief" after the word Governor, as should have been done. In the oath are phrases copied from the old oath, which are out of place in a government where the judges are in no danger from the arbitrary action of the executive.
The few changes were undoubtedly for the better. Two judges were required to declare questions of law, or demurrers, cases agreed, special verdicts, bills of exception to evidence, and motions in arrest of judgment. The licensing of new attorneys was taken from the Governor and given to at least two judges. The salary was increased to £100 for each term attended, or £50 in case of non-attendance from necessity, and no fees were allowed.
It shows the continued domination of English ideas that the establishment of courts of equity was delayed for five years. As the departments of government were obliged, under the Constitution, to be kept separate, the General Assembly could not, even if it desired, have conferred equitable jurisdiction on the Governor and Council, as in Colonial days, nor was the creation of new offices in accordance with their views. The expedient of making the same officer a judge at one hour, of law, and at another, of equity, was not obvious to the legislative mind until 1782.
The act of 1777 followed that of 1776 in dividing the State into six districts, the Courts for which were to be held at Wilmington, Newbern, Edenton, Hillsboro, Halifax and Salisbury. In 1782 the district of Morgan was added, and in 1787 that of Fayetteville, making eight in all. The Attorney General, as in Colonial times, attended all the Courts in behalf of the State. The people of the counties of New Hanover, Onslow, Bladen, Duplin and Brunswick attended Court in Wilmington; of the counties of Craven, Carteret, Beaufort, Johnston, Hyde, Dobbs and Pitt, in Newbern; of the counties of Chowan, Perquimans, Pasquotank, Currituck, Bertie, Tyrrell, Hertford and Camden, in Edenton; of the counties of Halifax, Northampton, Edgecombe, Bute, Martin and Nash, in Halifax; of Orange, Granville, Wake, Chatham and Caswell, in Hillsboro; of the counties of Rowan, Anson, Mecklenburg, Guilford, Surry, and Montgomery, in Salisbury; of the counties of Burke, Wilkes, Rutherford, Washington, Sullivan and Lincoln (Washington and Sullivan being in what is now Tennessee), in Morgan, now called Morganton; the people of the counties of Richmond, Cumberland, Sampson, Union and Robeson, in Fayetteville.
A full Court consisted of all three Judges and Attorney General. One Judge could hold the Court, but it required, as before stated, two Judges to sit as an appellate or Supreme Court. For trial of criminals beyond "the extensive mountains that lie desolate between the inhabited parts of Washington (in Tennessee) and the inhabited parts of Burke," it was provided by act of 1782 that one of the Judges, and "some other gentleman commissioned for the purpose," should hold Court at the county seat of Washington (Jonesboro), for that county and Sullivan, the Judges and Attorney General to have two-thirds of the allowance given for holding the other Courts.
The first Judges elected were Samuel Ashe, of New Hanover; Samuel Spencer, of Anson, and James Iredell of{469} Chowan. After riding one circuit Iredell resigned his seat, and John Williams, of Granville, took his place in 1777. Iredell was a very able lawyer, of a judicial temper, afterward fully demonstrated on the Supreme Court Bench of the United States, to which he was appointed by Washington. Ashe held his office until 1795, when he was elected Governor; Spencer until his death in 1794; Williams until his death in 1799. For thirteen years, at a most critical period of our history, during the throes of the Revolutionary War, during the chaotic days of the nerveless confederacy succeeding, when the exhausted people, staggering under broken fortunes and a worthless currency, were bringing into order the State whose liberties they had won, during the stormy discussions preceding the adoption of the Constitution, which many thought would bring back the galling tyranny of Tryon and Martin-during all these times of despondency and poverty, of dissension and furious party spirit, these three were the entire judiciary-Judges at nisi prius and Judges in bank, Judges of law and Judges of equity, Judges of the Superior and Judges of the Supreme Court.
The calm judicial demeanor, the superiority to the passions which tear the breast and influence the actions of clients and their lawyers, was not in those days, nor long afterwards, expected of the Bench. Fierce sarcasms, like those of Ellenborough and Chase, and foul curses, like those of Thurlow, could be paralleled at many courts in England and America. It was not until 1796, that a Judge in North Carolina was forbidden to express to the jury his opinion of the facts, and this practice inevitably provokes the wrath of lawyers. It is not wonderful that our judges had the faults of their day. Moreover, neither one of the judges had properly much training in the law before his election to the Bench. Ashe was a lawyer, but the character of the practice and the turbulence of the times did not allow much devotion to his profession. Spencer had been Clerk of Anson Court and certainly had been a lawyer only a limited time, if at all. Williams had been a carpenter, and though possessed of good judgment and highest character, was unlettered. The troublous times of the Revolution afforded little opportunity for the Judges to perfect themselves for their judicial duties. Having witnessed with their own eyes the despotic conduct of Governors and other royalist officers, their feelings were warmly enlisted against the establishment of a strong general government. Some of the lawyers who practiced before them were well read in literary as well as legal lore, ardent Federalists, and at least two of the most prominent, Maclaine and Hay, were high tempered, and when irritated, had tongues sharp as a scorpion's sting.