Battle Address (Page 6 of 10)

As the judges for the last six years had not elaborated their opinions in such manner as met the approval of the profession, a law was passed in 1810 requiring them to write out their opinions "at full length," which mandate many young students of the law think was in after years occasionally obeyed with too much conscientiousness. For this additional labor they were to be paid £50 ($100) per annum. They were at the same time to elect out of their number a Chief Justice. John Louis Taylor was the first and only judge that held this honorable office. The Governor was required to procure for the court a seal, with suitable devices and motto. Any party to a suit in the Superior Court was given right to appeal to the Supreme Court on questions of law.

For fear that the requisitions as to the opinions would not be carried into effect, in the following year it was provided, in substance, that the decisions of the court should have no validity until the opinions should be delivered publicly and in open court, stating at length the ground of argument upon which the opinions are founded and supported, and also copies of the same delivered to the clerk.

This completes the legislation prior to the creation of the present organization of the Supreme Court. Although the meeting of the judges at the seat of government to hear appeals was a great improvement on the preceding plan, it was impracticable to secure best results, "while the Supreme Court was held by any two of six judges, coming to their labors after long journeying over horrible roads at the rate of three or four miles an hour, and yearning for a needed rest at home. Some of those judges were exceedingly able lawyers. Five of them-Taylor, Hall, Henderson, Ruffin, and Daniel-were eminent members of the new court. Besides these there were others worthy to sit with them; for example, Alfred Moore, afterwards appointed to the Supreme Bench of the United States, and Henry Seawell, one of the strongest criminal lawyers we ever had. Duncan Cameron, of large brain, who, abandoning law to be president of the chief bank of the State, became one of the most astute financiers of the land; David Stone, called from the bench to be Governor and United States Senator. But they did not have the opportunity for profound and uninterrupted devotion to the study of the principles of the cases before them, and that undivided responsibility which stimulates to highest exertions.

I have been somewhat minute in my notices of Ashe, Spencer and Williams, because they were the first judges, and because they sat together for seventeen years of the most important period of our history, ending five years after the adoption of the Federal Constitution. It would be a grateful task to give similar notices of their successors. Even the anecdotes of them which have been handed down should be recorded; such, for example, as that of the simple-minded Lowrie, from the foot of the Blue Ridge, on his first trip to Edenton, stopping a lawyer in his argument, because, from his seat on the bench, he could look out on the bay and see the behavior of two vessels in a gale of wind. "Stop, Mr. Attorney, this Court sees one ship going one way and another going right opposite in the same wind and the Court does not understand it." And when taken on a visit to one of the vessels, stamping his foot on deck, with some alarm, saying, "I declare, men, I believe she's hollow." But I must content myself with giving, in the appendix, a list of the judges, with the dates of the beginning and ending of their terms.

The year 1818 is the great epoch in the history of the Supreme Court, when we consider the stern economy prevalent in the Legislature of that day, and the general prejudice against enlarging the official class, especially when lawyers only were to be visibly benefitted, the creation of these new judges, at an aggregate expense of $7,500, to perform their duties at a place remote from the constituents of the members, is most surprising, and shows that there were very enlightened and influential men in the Legislature in 1818.

I find in that body J. J. McKay of Bladen, Zebulon Baird of Buncombe, M. J. Kenan of Sampson, R. M. Saunders and Bedford Brown of Caswell, James Iredell the younger of Chowan, John Stanly, Wm. Gaston and Viser Allen of Craven, John Winslow of Cumberland, Louis D. Wilson of Edgecombe, John B. Baker of Gates, David F. Caldwell of Iredell, Simmons J. Baker of Martin, Wm. B. Meares of New Hanover, A. D. Murphy, James Mebane and Willie P. Mangum of Orange, Chas. Fisher of Rowan, and other strong men, a goodly array of leaders of the people. Their meeting at this time was not the result of accident. It was a time when there was wild excitement about internal improvements. The great Erie Canal was in progress. The time was approaching when Governor De Witt Clinton, with a company of great officials, traveled in a canal boat from Buffalo to New York, and amid thunders of cannon passed into the ocean water, brought from Lake Erie. The spirit of canal and river improvements spread like a prairie fire in a windstorm. In North Carolina there were dreams of navigating our streams from near their sources to the ocean. Raleigh was to receive the vessels of Pamlico Sound up Neuse River and Walnut Creek to the crossing of Rocky Branch by the Fayetteville Road. Boats were to ascend and descend the Cape Fear and Deep Rivers to the Randolph hills. The produce of the Yadkin Valley, from the foot of Blowing Rock, was to cross over by canal to Deep River and be exported from Wilmington, and the puffing of steamboats was to echo from the mountains which look down on the headwaters of the Catawba and the Broad. In vain a Chatham member vowed that in dry times a terrapin could carry on his back a sack of flour perfectly dry down Deep and Cape Fear rivers to Fayetteville. All warnings were unheeded. Civil Engineer Fulton was brought from Scotland at a salary of $6,000 to make Asheville, Raleigh, Morganton, Wilkesboro, Rutherfordton, Gaston and Louisburg, seaport towns. The Western people, cut off by long roads of mud and jagged rocks, clamored for State aid. The Eastern people, having by the old Constitution the Legislature by two thirds majority in both branches, most of them having every access to markets, sat heavily on the treasury box, and hence provoked a demand for a change of the Constitution. This eastern and western question aroused the fiercest passions and sent to the Legislature the ablest men.

This body of enlightened representatives, the General Assembly of 1818, by the triumphant vote of 42 to 16 in the Senate, and 73 to 53 in the House, gave to the State the priceless blessing of a Supreme Court, and manned it with excellent Judges. The constitutional mode of voting for officers was, until 1835, by ballot. John Louis Taylor, Leonard Henderson, John Hall, Archibald D. Murphy, Henry Seawell and Bartlett Yancey were placed in nomination; Henderson and Hall were elected on the first ballot, and Taylor on the second. The great lawyer, Archibald Henderson, of Rowan, was nominated, but withdrawn, as he was unwilling to come in competition with his brother.

The measure was strongly recommended by Governor Branch, who gave his personal observation of the evils of the old system.

The creation of the Supreme Court was a wide departure from the old English system, and from that of our general government, in that its judges do not try cases in the courts below. The English system adopted in 1873 is, in great part, similar to ours. It is easy to see that Congress will adopt our plan before many years. It was feared by many that the efficiency of our judges would be impaired by not having their minds kept alert by occasional friction in actively-contested jury trials. These fears have not been realized. Amid all the changes and excitements, in peace and war, for seventy years, the Court has, as a rule, with only an occasional transient exception, possessed the full confidence of the people. From the beginning its authority has been extraordinary, being accepted, with rare questioning, not only by this State, but by the tribunals of other States. Under the old system there were very able judges. At one time on the appellate bench we had men of such uncommon strength as Taylor, Hall, Seawell, Ruffin, Daniel. At another period sat together Taylor, Hall, Seawell, Cameron-an aggregate of talent and learning equal to the best bench of any State. But there was not that regularity of attendance, that continuity of work, that sense of individual responsibility which leads to best results. Under the new organization the great principle of division of labor, which has done so much in modern times for promotion of science and the arts, was adopted for our judiciary. The new judges were given salaries ample to enable them to discard all other pursuits, and devote themselves solely to the final settlement of disputed questions involving the lives, the fortunes, the happiness of the people. This grand and sacred trust could not be shirked or shared with others; they had every incentive and full opportunity and leisure to make themselves experts in their professions, and to labor continuously to acquire new learning and greater wisdom. They were placed on high in sight of all the people. The ablest men, with sharp and critical eyes, watched their actions, ready to detect a failure or reward success. They had an opportunity seldom vouchsafed to men to win the admiration and gratitude of their fellow-citizens by intelligent and faithful work. On the other hand, if, by ignorance or rash spirit of innovation, they should lose the public confidence, the representatives of the people, who, under the Constitution of 1776, had full power over them, would return to the old system, to their eternal disgrace.

It was fortunate for the new experiment that, owing to miry and rocky roads, infrequent bridges and rough ferries over dangerous streams, and long distances from the seat of government, the members of the bar could not generally follow up their cases and argue them before the new tribunal. A few eminent lawyers found it profitable to devote most of their time specially to this practice. The spectacle, so often seen in these days of rapid transit, of counsel from a village where there is no law library, hurrying into the court-room, after a restless night on the cars, beginning his speech by apologies for want of preparation, was never seen in the early days of the Court. The Nestor of the Bar and distinguished ex-member of the Court (Judge Reade), once satirized this practice with that peculiar cayenne pepper pungency which so often made ignorant pertness of the bar flinch and false witnesses quail, and even pierced to the marrow a presumptuous "D. D.," who, in a commencement address, assailed the honor of our profession. The Supreme Court bar, composed of such lawyers as Peter Brown, Moses Mordecai, Wm. Gaston, Geo E Badger, Thomas Ruffin, the elder, Archibald D. Murphy, Archibald Henderson, Henry Seawell, Gavin Hogg, Duncan Cameron, Joseph Wilson, James Martin, prepared with careful study their arguments, cogent in logic and mighty in language, and fortified by{483} precedent. The judges, aided by this presentation of all the strength of both sides of the case, deliberated with patient care, decided with conscientious desire for the truth, and wrote their opinions elaborately and clearly, for the guidance and instruction of the profession. Such have been the uniform ability, learning and integrity of the members of the Court from the beginning, their freedom, as a rule, from partisan bias, that the people have, as we have seen, with wonderful unanimity, made it part of the fundamental law, one of the corner-stones which support our fabric of government, one of the main props of our social system.

I will not describe in detail the constitution of the court. That can be found in the Constitution of the State and the code of laws. It is, however, a part of my duty to chronicle the principal changes from time to time in its functions.

The number of the judges continued to be three until the Constitution of 1868 increased it to five. The Convention of 1875 reduced it again to three. Experience demonstrated that the business of the Court, settling the litigations of a million and a half of people, was vastly greater than existed for six hundred thousand people in 1818. It was and is a common belief that the late Justice Ashe had his life shortened by labors too arduous for his constitution. By an extraordinary majority, the number, in 1888, was by constitutional amendment increased again to five.

Scroll to Top