Another change is in the mode of appointment of the Chief Justice. Until 1868 the designation of the judge who was to perform the honorary function of presiding was left to the judges themselves. From the beginning the safe rule was adopted, that the oldest in office should be chief. Henderson and Hall naturally yielded to Taylor, who had been for eight years Chief Justice with entire acceptability over the old court. When Ruffin, after serving as Chief Justice for nineteen years, resigned and came again to the bench in 1858, after the death of Chief Justice Nash, some were of opinion that he would be allowed to resume his old{483} headship, but Pearson's claim to it under the unbroken rule was allowed without objection. By the Constitution of 1868 the appointment of the Chief Justice is vested in the people. The Constitution of 1876 continues the provision, as well as the designation of the associates as "justices" instead of "judges." The salaries of the judges are exactly as fixed in 1818. Men have come and men have gone; population has increased threefold; periods of prosperity have been followed by awful financial crashes and prolonged depressions in industrial efforts; near three thousand miles of railway have permeated our land, annihilating distance and economizing time, like the genii of oriental stories on their magic tapestry; the men of the mountains and the men of the seaboard have become next-door neighbors; markets, once possible of access only over roads almost impassable, and many days of toilsome and dangerous journeying, have been brought to our doors; the cultivated land has vastly increased in area; factories are humming, and mines are being dug; yet there stand the same old figures, 2500, as if engraved on adamant, unchanged, though representing much diminished purchasing power. The General Assembly, to all appeals to their liberality, make the answer that the salary is sufficient to attract the best legal talent and experience; and it is no flattery in me to say that the answer cannot be " traversed," however we can "confess and avoid" it.
When I say that the salary has not been advanced for seventy years, I am not unaware that in the dark days of our great civil war it was nominally raised. For the year 1864 it was $3,000 per annum, and after January, 1865, it was ordered to be $7,000 per annum, but it was payable, by the terms of the law, in Confederate currency, and thus, in effect, in defiance of the Constitution, it was greatly lowered. Applying the scale of depreciation, we find that the salary for 1862, was $1,354 15; for 1863, $283 20; for 1864, only $117; and for the first quarter of 1865, the installment of $1,750, dwindled down to $17.50. At the end of 1861, it would buy 320 barrels of flour; at the end of 1862, 250 barrels; at the end of 1863, 30 barrels; at the end of 1864, 17 barrels. The installment of $1,750, payable 1st April, 1865, would buy 3 barrels. The steadfastness and pluck with which the judges performed their duties with this meager allowance are worthy of all praise.
The time of meeting of the Court has been several times altered. The first term began on the 1st January, 1819, and after that on the 20th days of May and November. This was the next year changed to the third Monday in June and last Monday in December. Soon after, the second Monday in June was substituted for the third, and these continued to be the days of the opening of the Court until the first Mondays of January and July were prescribed in the Constitution of 1868. The Constitution of 1876 omits this provision, and the General Assembly of 1881 fixed the openings on the first Mondays of February and October, as at present. In 1846 the lawyers of the western portion of the State induced the General Assembly to order a term of the Court to be held in Morganton on the first Monday in August for all cases in the counties west of Stokes, Davidson, Union, Stanly and Montgomery, and for cases from these counties, with consent of both parties. The experiment was not satisfactory to the Court or to the profession. Owing to a want of a law library, "Morganton decisions," as they were called, were regarded as less certainly sound than those at Raleigh. The Constitution of 1868 fixed the sessions of the Court "at the seat of government;" that of 1876 leaves the sessions at "the city of Raleigh, until otherwise ordered by the General Assembly."
The judges of the Court, under the Constitution of 1776, were to hold office during good behavior, and were elected by the General Assembly. These provisions were not changed in 1835. Vacancies during the recess of the General Assembly were filled by the Governor and Council, until{486} the end of the next session. Under the Constitution of 1868 and 1876, the election is given to the people, the term of office is eight years, and vacancies are filled by the Governor alone, until the next general election. What will be the ultimate result of periodical dependence on the will of the people, time will show. One effect is obvious. All the judges as a rule belong to the same political party, whereas the old Court had generally representatives of the two leading parties. It is beyond my province to discuss the propriety of these great changes. Our ancestors in Colonial days yearned and struggled for the life tenure as necessary for the independence of the Court. Whether tenure at the will of the people will prove to be better than was the tenure at the will of the Crown or the Governor, experience will decide. And whether the transfer of the election of the judges from the General Assembly practically to the nominating conventions, will be an evil, must be left to the future.
By the supplemental act of 1818, if a judge of the Supreme Court should be incompetent to decide a case on account of personal interest in the event, or some other sufficient reason, the Governor was authorized to give a special appointment to a Judge of the Superior Court, requiring him to sit with the other judges pro hac vice. Under this law Judge Murphy acted at June Term, 1820, in place of Judge Henderson, who had been counsel in important cases before the Court. The validity of the will of Moses Griffin, under which the Griffin Free School in New Bern was established, was maintained by this Court. The law was repealed in 1821.
Since 1834 two judges have been authorized to hold the Court, "in case one of the judges is disabled from sickness or other inevitable cause," and this continues to be the law in substance, The Code changing "sickness" to "illness," for what reason I know not. It has been the practice to regard the death of a judge as a disability. This is in the spirit of its act, though hardly written in its letter, as at death the judgeship ceases and there is no judge who can be the subject of disability. An interesting question would arise if a judge should, without any inevitable cause, but from sheer obstinate neglect of duty, fail to take his seat. It would seem that the other judges must await the removal of the offender by impeachment, or possibly two-thirds of both houses of the General Assembly might regard such contumacious refusal, proof of "mental inability." I suppose, of course, this law will be amended so as to require three instead of two out of the five justices to be present in order to constitute a court.
It was not until 1808 that there was any attempt made by law to furnish the people with the decisions of their highest legal tribunal. In that year the Clerk of the Supreme Court was directed to furnish the Secretary of State a report of the decisions of the preceding four years, and annually those made thereafter. There was no appropriation for the cost of publication, but advertisement was to be made for a printer to do the work at his own expense in consideration of the copyright for seven years, the State to have sixty-six copies free. In 1813, the same niggardly offer was made to the Clerk of the Court, the copyright being extended to the time granted by the laws of the United States. I think these laws led to no result, the reports of that day being published on private account.
In 1818 the Supreme Court was authorized to appoint a Reporter at a salary of $500, on condition he should furnish the State, free of charge, eighty copies of the reports, and the counties sixty-two copies. I presume, though it is not expressly so said, that he was entitled to the copyright. Afterwards he was allowed to print 101 copies for the State and counties at the public expense, and was allowed a salary of $300, and the copyright. In 1851 his salary was raised to $600, and the number of copies for the State increased, so as to supply the libraries of the different States and Territories, and a few others. In 1871 the office of Reporter was abolished, and the duties and emoluments given to the Attorney General. Afterwards the salary was increased to $1,000, and the State assumed all the expense of printing, distributing and selling the reports in excess of those donated, and covered into the treasury the receipts of sales, less five per cent commission for selling. The office of Reporter has always been considered a very honorable one, and has been much sought after by aspiring lawyers. The list of reporters in the appendix shows the truth of this.
Of these, Murphy was one of the most energetic and useful men the State ever had in legislative and judicial capacities. He was an enlightened laborer for public education and internal improvements. He collected valuable historical material for writing a history of the State, for the expenses of which he was authorized by law to raise $15,000 by a lottery, but it was not successful. His collections passed into the hands of President Swain, and much of them may be found in issues of the University Magazine published in his day.
Dr. Hawks gave up a brilliant career at the bar for the Christian ministry, became an eminent divine, and an author of valuable historical works. Devereux was forced to surrender a large practice in order to take charge of great estates which he had inherited. Ruffin and Battle became Judges of the Supreme Court. Badger's great career as a lawyer, Judge, Secretary of the Navy, United States Senator, is well known. James Iredell, the younger, had been Speaker of the House, Judge, Governor, and Senator of the United States. Perrin Busbee was an able lawyer, one of the leaders of the Democratic party, and in the line of promotion to the highest offices. Jones was a sound lawyer, and a popular Whig. Winston, to be distinguished from Patrick H. Winston, of Bertie, was regarded as one of the most learned in law and history in his day. Phillips had been Speaker of the House of Commons, refused the tender of a Supreme Court judgeship, and was afterwards Solicitor General of the United States. McCorkle was a big-brained lawyer. I will{489} not describe Shipp, Hargrove, Kenan and Davidson, first, because they are still alive, and, secondly, they held their post as Reporters by virtue of holding the higher office of Attorney General. This I will say, however, that if they had not towered high as lawyers, among the leaders of their respective parties, they would not have been chosen for the highest non-judicial law office in the State. The wonderful improvement in the style of the printed volumes was begun by Attorney General Kenan.
The Clerks of the Supreme Court hold a most responsible office. Questions of great complexity are frequently referred to them. The duties require an excellent memory and business head, good knowledge of the law, great accuracy, perfect integrity, untiring patience, and unfailing courtesy.
The Court has been fortunate in its choice of officers. Their names are: Archibald D. Murphy, Wm. Robards, Edmund B. Freeman, Wm. H. Bagley, Thos. S. Kenan (the present incumbent). The Clerk at Morganton was Jas. R. Dodge.