While they all met the approval of the Court, for their intelligence and fidelity, I notice specially Edmund B. Freeman, as having been identified with the Court for a third of a century. The following lines by Mrs. Mary Bayard Clarke, though not historically perfectly accurate, are very touching:
"The old Clerk sits in his office chair,
And his head is white as snow;
His sight is dim and his hearing dull,
And his step is weak and slow;
But his heart is stout and his mind is clear
As he copies each decree,
And he smiles and says as the judges pass,
''Tis the last court I shall see.'
But he lingers on till his work is done,
To pass with the old regime,
When he lays his pen, with a smile aside,
To stand at the Bar Supreme;
For the old Clerk dies with the Court he served
For forty years save three;
And breathes his last as the judges meet
To sign their last decree."
The Court was authorized to appoint a Marshal in 1841. Previous to that time the Sheriff of Wake was its executive officer at the term held in Raleigh. The Sheriff of Burke was always its officer at the Morganton term. The names of the marshals were: J. T. C. Wyatt, James Litchford, David A. Wicker, Robert H. Bradley (the present incumbent).
It may interest you to know that Mr. Litchford, when pursuing, in early life, his business as tailor, had an apprentice boy, who, in company with several companions, threw stones at the house of one who had offended them. Dreading prosecution, he left Raleigh for a western home. In 1867 he returned as President of the United States. It was Andrew Johnson.
There have been important changes in the jurisdiction of the Court from time to time.
By act of 1799 the Court therein organized had jurisdiction of questions of law or equity which any judge on the circuit was unwilling to decide, or on which there was a disagreement between the judges.
By act of 1810, any party dissatisfied with the ruling of the Superior Court had a right to remove it to the Supreme Court. By the act of 1818 the judges were to have all the powers of the Superior Court Judges, except that of holding a Superior Court. Any party could appeal from the final judgment, sentence or decree of the Superior Court on giving security to abide the judgment or decree of the Supreme Court, which was authorized to give such judgment as should appear to them right in law, to be rendered on inspection of the whole record. Equity cases could be removed to the Supreme Court for hearing, upon sufficient cause appearing, by affidavit or otherwise, showing that such removal was required for purposes of justice, but no parol evidence was received before the court, or any jury impaneled to try issues, except witnesses to prove exhibits or other documents. Under this provision it became customary to remove all important equity causes, so that the Superior Court Judge escaped the responsibility of giving any opinion in the matter. The Constitution of 1868 and that of 1876 put a stop to these proceedings by confining the jurisdiction of the Supreme Court to appeals on matters of law or legal inference. In 1830 original and exclusive jurisdiction was given to this Court for vacation and repeal of grants and letters patent, for fraud, false suggestion or other cause, but this power was also swept away by the same constitutional provision. The provision of the Constitution giving to the Court original jurisdiction to hear claims against the State, and to report their decisions to the General Assembly, has been construed by the Court to embrace only cases involving questions of law.
These are the principal changes made, specially by law, in the functions of the Court. But there was a mighty mass of changes in the character of their work thrown on the judges, by the Constitution of 1868, and the transplanting to North Carolina the Code of Civil Procedure, first elaborated in New York. The Constitution of 1776, even as amended in 1835, was founded on the assumption that the agents of the people, the General Assembly, would be honest and have such stake in the soil that they could be entrusted with powers almost unlimited. They could tax any subject to any amount, and exempt any subject from any tax at all. They had boundless right to pledge the State credit. They had, as I have shown vast powers in the control of the other departments of government. They had full discretion as to nearly all subjects of legislation.
The Constitution ratified in 1876, which is merely an amendment of that of 1868, is founded on the assumption that the representatives may be untrustworthy. Hence, the executive and judicial departments are made really independent of the legislative. Hence, there are limitations on the taxing power, and on the power of pledging the State credit. Hence, are made a part of the fundamental law numerous provisions, declaring what the General Assembly must do, what it may do, and what it may or may not do. Many provisions seem properly to belong to the statute books, to be modified or amended whenever the interests of the people require.
The General Assembly of 1868, being composed largely of the dominating spirits of the Constitution of that year, adopted the Code of Civil Procedure, framed to carry into effect the modern innovations in judicial proceedings, without attempting to harmonize them with the former habits of our people. Many of the members of the General Assembly, accustomed to the freedom allowed by the old Constitution, framed and voted for enactments without such careful compliance with the minute provisions of the new instrument as judges are bound to exercise.
Moreover, the amendments to the Constitution of the United States, recently adopted, contain guarantees of privileges and immunities to the freedmen which, from life-time experience of different relations, it was difficult to understand and appreciate thoroughly, and which it required the Supreme Court of the United States to elucidate and settle.
Then, too, the difference of opinion between President Johnson and Congress as to their respective powers in restoring the States which attempted secession, the subversion of the State government set in motion by the authority of the President, and the substitution of one under authority of acts passed by Congress, led to discussions and recriminations, alienations and discord, and in certain localities even to strife.
All these innovations and experiments, and political and constitutional difficulties, threw vast responsibilities and peculiar perplexities on the Court, whose action, while not escaping adverse criticism, was, in the main, conservative and wise. The judges, trained under the old Constitution and legal procedure, have not obstinately impeded the legislative will, however unpalatable. As interpreted by them and amended by the Assembly, the changes seem acceptable to the lawyers, whose practice has been mainly under them. The decisions of the Court on questions growing out of the reconstruction laws have been sustained by the highest tribunal of the land and acquiesced in by all. Neither the people nor the Assembly have resented the frequent declaration of unconstitutionality of legislative acts. On the contrary, the people applauded some of these decisions as preserving them from burdensome taxation.
Another ordeal in the history of the Court, which few tribunals ever pass through unscathed in character, was the civil war. I think it may be said of our Supreme Court that it did not on the one hand so share in the prevailing excitement as to arrest improperly the laws in aid of the war power, or on the other to embarrass the military authorities by unreasonable interference. In defiance of unpopularity and even threats, when the most desperate exertions were put forth in the unequal contest, writs of habeas corpus issued by the judges were executed in camps within the sound of the enemy's cannon. And so decisions in favor of military powers of the Confederate Government are such as have been approved by the judicial authorities in favor of the military powers of the United States. The Constitution of the Confederacy on this subject is identical with that of the United States.
I witnessed an interesting scene in the Convention of the reunited Episcopal Church, held in Philadelphia in October, 1865. A proposition was made to petition Congress to exempt candidates for the ministry from military service in future wars, and it seemed to meet with favor. One of the members from the South, a Judge of the Supreme Court of North Carolina, arose and opposed the resolution in strong language and convincing reasoning, sustaining the right of the government in times of war to the service of all its citizens, and their duty to render such service. The speech made a great impression on account of its being from a Southern man, and also because of the evident familiarity of the speaker with the whole question. It was telegraphed to the leading papers of the North. The resolution was killed at once. The speaker was Judge Battle, giving his carefully prepared opinion on the substitute case of Gatlin v. Walton, in which it was decided that Congress can conscript a man who has furnished a substitute under a former law; that one Congress cannot bind a subsequent Congress, or even itself, from calling out, if necessary, all the able-bodied men of the land, and is the sole judge of such necessity.
That the Court has given satisfaction, on the whole, to the profession and the people, is shown, as I have stated, by the strong hold it has upon their respect and confidence. It has been diligent in expounding the principles of the common law and applying them to the facts of the cases before them. When the principles of the common law or of equity, as established in England, are not suited to the condition of a new and unsettled country, it has changed them under the doctrine, cessante ratione cessat ipsa lex.
It would be most interesting and profitable to show, in detail, the various departures from English precedents, and the causes therefor, such as "waste" and "pin-money trust," "wife's equity for a settlement," "past performances," "cy pres," "purchasers seeing to the application of purchase money," and so on. It would be equally interesting, but presumption, perhaps, to discuss whether the Court might not advantageously have refused in other cases to follow English precedents, which they admitted to be bad law; but these inquiries belong, more properly, to the history, of the law than of the Court. Certainly, I have not time to go into them now.
In the appendix will be found a complete list of the judges since 1818, grouped into four periods, the first ending with the vacation of all the offices of the State in April, 1865; the second ending with the close of the provisional government inaugurated by President Johnson, July 1, 1868; the third ending with December 31, 1878, during which there were five judges; the fourth coming down to January 1, 1889, during which period there were three Judges.
I will give short notices of those of the judges who have passed away, more particularly of those who were longest members of the Court and had most to do in molding its character. I begin, of course, with the first Chief Justice, John Louis Taylor.
It would be difficult to imagine how a man could have had a better training for the position of Chief Justice than John Louis Taylor. He was at his election forty-nine years old; was educated at the College of William and Mary, an institution of high character in those days, the college of Jefferson, Madison, Monroe, Winfield Scott and Bishop Ravenscroft, and above all of Chief Justice Marshall. He was one of the leaders of the bars of Fayetteville and Newbern, until elevated to the Bench in 1798. He rode the circuit for twenty years, and was a faithful attendant on the Court of Conference. As already stated he was made Chief Justice of the Supreme Court of 1810-'18. He showed his devotion to his profession by publishing, in 1802, reports of cases determined in the Superior Courts of North Carolina, and in 1814 two volumes of "biographical sketches of eminent judges, opinions of American and foreign jurists, and additional reports of cases determined in our courts," under the title of the "North Carolina Law Repository," and afterwards a third work, containing reports of cases adjudged in the Supreme Court of North Carolina from 1816 to 1818. A charge to the grand jury of Edgecombe was of such excellence as to be published at the request of that body. In conjunction with Henry Potter and Bartlett Yancey, he, at the request of the General Assembly, revised the statute laws of the State and enumerated the statutes of Great Britain in force in North Carolina. In early life he had been an active member of the General Assembly. His judicial labors had been eminently satisfactory. His opinions showed that he possessed a style not only clear but eloquent. His literary taste was conspicuous; his manners elegant and winning.