North Carolina State Government - The Judicial Branch

Historical Information

The colonial history of the judiciary under the Lords Proprietors and royal governors of North Carolina did not allow the legal profession that weight in the community that its importance merited. With despotic governors, and among a vagarious and restless population, rules of action declaring rights and prohibiting wrongs were but little regarded.

By the Fundamental Constitutions of Carolina (1669) drawn up by John Locke it was declared "to be a base and vile thing to plead for money or reward" in any of the courts of law. One of the complaints of the Assembly against Royal Governor Arthur Dobbs in 1760 was that he had "for the fee of four pistoles granted licenses to plead law to ignorant persons."

Up to the year of 1708, there had been but two executions for capital offenses within North Carolina and it was not until 1722 that there were any courthouses in the colony. Such was the state of virtual anarchy just before our Revolution that in 1773 Mr. Quincy of Boston, who was traveling through the colony, says "that there were no courts in being. No one can recover a debt except before a magistrate."

During the rule of the Lords Proprietors, the judicial power was vested in Precinct Courts, General Courts, and Courts of Chancery. Precinct Court was held in each precinct (county) by four justices appointed and commissioned by the Governor. General Court was held by the Chief Justice and seven Assistant Justices. The Court of Chancery was held by the Governor and the deputies of the Lords Proprietors.

In 1746, under the royal government, the judiciary was remodeled, and "the General Court" was held twice a year by the Chief Justice and three Associate Justices in New Bern. The Chief Justice was appointed and commissioned by the Crown, and the Associate Justices were appointed by the Royal Governor and his Executive Council.

In 1767, the colony was divided into six Judicial Districts - Edenton, Halifax, Hillsborough, New Bern, Salisbury, and Wilmington. Courts were held twice a year in each place by the Chief Justice and two Associate Justices. In the same year County Courts were also established in each and every county.

The first edition of the laws was by Swann, published in 1752, called the "yellow jacket;" the second by Davis in 1765; the third also by Davis in 1773; the fourth by Judge Iredell in 1790, the fifth by Martin in 1803; the sixth by Potter, Taylor, and Yancy in 1821; the seventh by Battle, Iredell, and Nash in 1836; the eighth by R.M. Saunders, Asa Biggs, and B.F. Moore in 1851.

The coming of the American Revolution with extreme differences between the Patriots and Royal Governor Josiah Martin caused the colony's courts to close in 1774. The last Chief Justice under the Crown was Martin Howard, accused by many to be a petty tyrant. He left North Carolina in July of 1777 for the north, and died in exile during the Revolution.

In contrast, as an Associate Justice, Maurice Moore of Brunswick County was deeply imbued with the true spirit of liberty, and he was no great friend of the last two Royal Governors - Tryon and Martin. After Indepdendence was declared, he was a member of the Provincial Congress and the General Assembly. He died in 1777, at the same time as his brother, Brigadier General James Moore.

The first General Assembly that met under the new State Constitution, in New Bern in April of 1777, revised the whole statute law; and superior courts were held semi-annually in Wilmington, New Bern, Edenton, Halifax, Hillsborough, and Salisbury. Three judges were elected - John Williams of Granville County, Samuel Ashe of New Hanover County, and Samuel Spencer of Anson County.

In 1782, Morganton was established as the seventh Judicial District, and in 1787, Fayetteville was established as the eighth Judicial District. Equity jurisdiction was given by an Act of 1782.

In 1790, a fourth judge was added; the State was divided into two ridings, and a Solicitor General was appointed.

In 1806, Superior Courts were established in each county, and two additional judges and four solicitors were appointed; another judge has been added since. One of the Judges of the Superior Court semi-annually holds a court in each county of the State, and a Solicitor to prosecute in behalf of the State. The Judges cannot twice ride the same circuit in succession. They are elected by the legislature during good behavior; and each receives a salary of $1,950 per year, which cannot be diminished during their continuance in office.

When the business demands, the Judge may appoint a special term to hear and end the suits in any county. The Governor specially appoints some Judge for this purpose, for which he receives $90.

The North Carolina State Supreme Court was created in 1818. Prior to this year, the Judges of the Superior Courts were directed (act of 1799) to meet to settle questions of law and equity at Raleigh twice a year, and this was called the Court of Conference. By act of 1805, it was styled the Supreme Court. By the act of 1818, the Judges of the Superior Courts were excused from this duty and confined to circuits, and three Judges were elected by the Legislature, who hold their offices during good behavior, who met twice a year in the city of Raleigh, and once a year at Morganton, to determine questions of law and equity.

The above comes from "Historical Sketches of North Carolina - From 1584 to 1851," by John H. Wheeler, with edits for clarity.

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