The estimate placed by these gentlemen on the Judges, is extremely unfavorable. Maclaine and Hay spoke of them with bitter contempt. Davis refused the offer of the District Judgeship of the United States, because of the paltry salary, though he was "anxious to escape from the d-d Judges." Hooper narrates the following, which I quote as showing our improvement in judicial dignity:
"Court went on in the usual dilatory mode. Great threats of dispatch accomplished in the usual way. Much conversation from Germanicus (Spencer), on the bench; his vanity has become insufferable, and is accompanied with overbearing insolence. Maclaine and he had a terrible 'fracas.' Germanicus with those strong intuitive powers with which he is inspired, took up Maclaine's defense in an ejectment and run away with it before it was opened. Maclaine expostulated, scolded, stormed, called names, abandoned the case. I prevailed, Spencer made condescensions, hostilities ceased and peace was restored."
Hay made before the Assembly of 1785, accusations against the Judges for the following offences. I copy verbatim from a letter of Hooper:
- High fines and shameful appropriations of them.
- Admitting new and illegal prosecution (depreciations, &c.)
- Banishment of Brice and McNeill.
- Dispensing with laws (the Newbern case).
- Negligence of their duty and delay of business.
- Ill behavior to Mr. Hay at Wilmington.
As to these charges, the Attorney General (Moore) said that some of them were quite new to him. Judge Ashe refused to notice these at all, and said that "he has clear hands and a pure heart."
Hooper says Hay "boils with as much fury against the judges as Saul against the Christians." He adds that "the ridiculous pursuit of Hay's ended as he expected. It was conceived in spleen and conducted with such headstrong passion that after the charges were made evidence was wanting to upset them." On the whole, we must conclude that the judges were not as learned or as dignified as our standards require, but they were by no means as deficient as the critical Federalist lawyers painted them. There were bad manners on both sides. That Spencer had talent and influence is proved by the continued hold he retained on the affections of the people of the State, especially of his intelligent constituents of Anson. It is proved by the evident respect shown to him and his opinions by such men as Iredell and Johnston and Davie in the Constitutional Convention of 1788 as well as by his strong arguments against certain clauses of the Constitution. I regret to say that tradition sustains the charge against his private character as to his anticipating, in his mode of living, the practices of Brigham Young, but I find no tangible charge of corruption in office. I am fortunate in being able to give a contemporary newspaper account of his death, the most peculiar in all the history of the taking off of great men:
"In extreme old age he was placed in a chair in his yard under a shady tree. A red cap protected his bald pate from the flies. The humming of bees and the balmy sunshine brought a gentle slumber upon him and caused him to nod. A large turkey gobbler mistook his nod for a challenge to fight, and smote with heavy spur the old man's temple. Suddenly awakened by the blow and resounding flaps of hostile wings, the venerable judge lost his balance, and fell heavily to the ground and was dead." The inhabitants of the valley of the Pee Dee will tell you that the gobbler was his murderer. My newspaper states that he was killed by the shock of the fall. Let each of you make his own deduction, according to his views of potentia proxima and potentia remotissima. The only judge cognizant of the facts died before rendering a decision.
Samuel Ashe was undoubtedly a man of force, strong in intellect and will, though his taste did not lie in hard study of the law. He had the confidence of his contemporaries during his nineteen years of judicial service, and after his elevation to the executive chair. The wrangling with the bar and between the judges, so often imputed to Spencer and Williams, were not imputed to him, though the charge that his hatred of Tories swerved him from perfect impartiality, in cases in which they were parties, may probably be true. Williams was in all likelihood the most unlearned of the three, but he has left behind him, especially among his neighbors in Granville in and around the village named in his honor, an unspotted reputation for integrity and charitable conduct.
These, our earliest judges, are entitled to the eminent distinction of contesting with Rhode Island the claim of being the first in the United States to decide that the courts have the power and duty to declare an act of the Legislature, which in their opinion is unconstitutional, to be null and void. The doctrine is so familiar to us, so universally acquiesced in, that it is difficult for us to realize that when it was first mooted, the judges who had the courage to declare it were fiercely denounced as usurpers of power. Speight, afterwards Governor, voiced a common notion when he declared that "the State was subject to three individuals, who united in their own persons the legislative and judicial power, which no monarch in England enjoys, which would be more despotic than the Roman Triumvirate and equally insufferable." In Rhode Island the Legislature refused to re-elect judges who decided an act contrary to their charter to be void. In Ohio, in 1807, judges who had made a similar decision were impeached, and a majority, but not two-thirds, voted to convict them. As I have mentioned, the action of the court was the foundation of one of the charges brought by Hay. He accused them with dispensing with a law-the "Newbern case." This was the case of Bayard v. Singleton, in ejectment, which our judges had the nerve, as early as May Term, 1786, to refuse to dismiss, as ordered by act of Assembly, on affidavit of the defendant that he bought the land in suit under confiscation sale. The judges were sustained eventually by public opinion. Iredell wrote a strong pamplet vindicating the power of the judiciary. New York follows with a similar decision in 1791; South Carolina in 1792; Maryland in 1802; the Supreme Court of the United States, in Marbury v. Madison, in 1801.
The Constitution contemplates that, as in England, the office of Attorney General should be of great importance. In his mode of election, and in the mandate as to adequate salaries, he is classed with the Governor and Supreme Judges. It is very doubtful whether the act of 1790, which provided for a Solicitor General for one-half of the counties, and that of 1806, which reduced the Attorney General to little better than a Solicitor for the metropolitan circuit, were not in this respect unconstitutional. They were certainly extra-constitutional. The early Attorneys General were equal if not superior to the Judges as lawyers. Waightstill Avery, who first held the office, was an accomplished and able man, the worthy ancestor of one of our present judges. On his resignation from ill-health in 1779, James Iredell succeeded and served until 1782. His successor, Alfred Moore, resigned in 1790 in disgust at being required to surrender to Edward Jones, the Solicitor General, half of the honors and emoluments of his office. The office lost none of its dignity by next devolving on the greatest criminal lawyer of that day, John Haywood.
We now resume the legislative history of the Supreme Court:
In 1790 the eight judicial districts were separated into ridings, the districts of Halifax, Edenton, Newbern and Wilmington constituting the Eastern, and those of Morganton, Salisbury, Fayetteville and Hillsborough constituting the Western riding. An additional Judge, Spruce McKay, whose advent was hailed by the lawyers deservedly with joy, was elected. Two judges in rotation, with the Attorney or Solicitor General, were assigned to hold the courts in each riding. This law was, as to the appellate functions of the court, worse than the old. The uniformity secured by having the same Judges for all the State was lost, and the miserable spectacle of diverse decisions by different supreme tribunals of the same question was not only possible but frequent. Delays from difference of opinions were unavoidable. For example, take the case of Winstead v. Winstead, in 1 Haywood, where the question was whether levy on the land of husband and sale after death divests dower. The court was composed of Williams and Haywood. They agreed that the levy did not divest dower but concluded to write their opinions afterwards. Williams failed to send his opinion, so the case was continued, and in October, 1796, came before McKay and Stone. McKay stated that he was not ready to decide the question. Afterwards, at another term, when Williams returned, the case came up again, and he was inclined to change his opinion; so the case was continued again. The final entry is that it went off the docket without decision, whether because the widow Winstead died of old age does not appear. It was impossible for the ablest and best balanced judges to give satisfaction under these adverse circumstances, so there was wide-spread anxiety to procure a change. For eight years of this period, too, these judges, as I have said, were authorized to express their opinion of the facts to the jury, and as there was no appeal from their decisions, their power was certainly inconsistent with free institutions. It was greater even than in Colonial times, because then the Court of Chancery, and appeal to the King in Council, were checks to unfair decisions.
The student of history sees repeated instances of God's evolving good out of what appeared at the time an unmixed evil. The corrupt conduct of one of our most trusted and beloved public servants proved a partial remedy for our ruinously inefficient judicial systems.
It was found, amid universal horror, that James Glasgow, a Revolutionary patriot, so popular that a county had been called in his honor, Secretary of State since the adoption of the Constitution, by annual election, had been for years confederating with John and Martin Armstrong and others, in cheating the State by the issue of fraudulent bond warrants.
To secure the punishment of these criminals, the General Assembly, probably deeming it more convenient to have the trial at the place where was the Secretary's office, was induced to create an extraordinary court. It was to consist of at least two of the Judges, who were to meet at Raleigh for the purpose of trying this prosecution. While so convened they were authorized to hear appeal of causes accumulated in the district courts. They were to meet twice a year, and to sit not exceeding ten days at each term. Both the Attorney and Solicitor Generals were ordered to prosecute, and a special agent was authorized to prepare and arrange the evidence and attend the trial, the solitary instance in our history of the employment of a public "attorney," charged with the functions of an English "attorney," as distinguished from the barrister. The act was to expire at the close of the session of the General Assembly next after June 10, 1802.
Notwithstanding the fact that Judge Haywood, moved by a fee of $1,000, which was of seductive magnitude in that economical period, resigned his judgeship to appear as counsel for the defence, the accused were convicted. We find the name of Greene replacing that of Glasgow in our list of counties, and the black lines of expulsion drawn around his name on the books of the venerable order of Masons.
The General Assembly were persuaded to grant the continuance for three years longer of such part of the act as provided for the meeting of the judges for hearing appeals, and to give the court a name, viz., the "Court of Conference." The suspicion that the lawyers were pushing this measure for their own emolument, endangering the passage of the bill, the astounding provision was inserted, as a rider, that "no attorney shall be allowed to speak or admitted as counsel in the aforesaid court." I have called your attention to the fact that a similar ebullition of vulgar prejudice may likewise be found in the Fundamental Constitutions, drawn by the great philosopher John Locke, the ignorant legislators and the learned metaphysician both guilty of the extreme folly, first, of endeavoring to shut out light from the minds of the judges, and, secondly, of supposing that such childish provisions could outwit the lawyers. I hope this August assembly will pardon me for saying that this "Locke on the human understanding" was exceedingly weak.
By the act of 1804, the Court was made a permanent court of record, the judges were ordered to reduce their opinions to writing, and to deliver the same viva voce in open court.
In the following year the name was changed to that contemplated by the Constitution, the Supreme Court. An executive officer, the Sheriff of Wake, was given to it and the limit to the duration of the term was removed.
In 1806, a great change was made in the Supreme Court system, for the purpose of relieving the people of long journeys for the purpose of attending to their court business. In modern days we cannot realize the evils in this respect under which our ancestors suffered. My old grandmother, who was married in 1788, said to me: "Talk about your bridal tours-in my day we had none. The only bridal tour I ever heard of was riding to the nearest judge to sign away the wife's land." Brides whose honeymoon devotion was equal to the sacrifice, were forced to traverse many scores of miles to reach a judge or a county court. Superior Courts, by the new law, were to be semi-annually held in each county. The counties were grouped into six circuits, called also ridings, but the judges were to ride in rotation. In other words, the existing system was adopted. Two new judges were created and four new solicitors. The Supreme Court now consisted of six, but two continued to be a quorum. The preamble of the act asserts that the old system caused such delays as often amounted to denial of justice, and the change was a great relief.