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Records relating to any of the higher courts in early North Carolina represented in the series CCR are extremely scarce until 1683, and are almost non-existent for several higher courts well after that date. Records of the General Court, the most important of these courts in terms of powers and amount of business transacted, do not begin to be abundant until 1694. It is therefore necessary in many instances to draw only tentative conclusions about the structure and work of the courts during the colony's early years. The court system of colonial North Carolina began to function some time shortly after the grant of Carolina to the Lords Proprietors in 1663, and the first court to open in the colony probably was composed of the governor and Council, the governor's advisory body. Extant records do not reveal its name or functions, or the year of its organization, but evidence suggests either 1664 or 1665. The governor and Council apparently sat as the highest court of law in the colony until 1698, during most of this time bearing the name "General Court" and hearing civil and criminal cases in both an original and an appellate capacity. During the early decades of the proprietary period, which lasted from 1663 to 1729, courts held by the governor and Council included the General Court, Court of Chancery, Palatine's Court, Council of State, Court of Grand Council, and Grand Court--the latter two possibly being variant names for the General Court. Several of the courts had executive as well as judicial powers, and all of them had jurisdiction over the entire colony. Functions as well as terminology were far from being firmly set during this period, and likely the courts had overlapping responsibilities. At different times until the 1690s, the governor and proprietors' deputies convened as the "Palatine's Court" which appears from sparse records to have sat as both a judicial and executive body. For a brief period in the late 1670s, the term "Council of State" was used for the governor and Council sitting to perform various functions relating to the administration of estates. In addition, from an early date courts apparently were held by governors and councillors individually, although nothing is known about them aside from a reference in an act of 1670 empowering them to try persons accused of illegally trading with Indians. A court intermediate between these higher courts and the lower, or precinct courts existed during much of the 1680s and early 1690s. Termed the "County Court of Albemarle" it was a court of first instance, employed a jury, and seems to have assumed most of the original jurisdiction of the higher courts, with the governor and Council sitting mainly as a court of appeal. In 1694 the governor and Council again were sitting as a lawcourt and a court of equity. The former court employed a jury in actions brought in original jurisdiction, the latter did not, and each had both original and appellate jurisdiction. The lawcourt was termed the General Court, and the court of equity was styled Court of Chancery. Until 1754 the General Court was the highest court of law in the colony, and ceased to be composed of the governor and Council after 1697. Except for the chief justice, the governor and Council appointed the court's members. The position of chief justice was created by the Lords Proprietors in 1712, and the appointment was reserved to the proprietors, later to the crown. The other members of the bench were usually during the proprietary era styled "assistants" occasionally "associates" and had to have the chief justice present in order to constitute a court. In the royal period down to 1746 they were called "assistants" and "associates" thereafter--the latter term implying a role less subordinate to the chief justice than did the former. The General Court had original jurisdiction over civil actions of a more consequential nature, as determined by the value of the matter at issue, and over crimes such as murder and counterfeiting, punishable by loss of life or member. The General Court also functioned as a court of appeals from judgments of precinct (county" after 1739) courts, which had original jurisdiction over lesser civil actions and crimes. During the proprietary era the size of the bench varied from three to nine justices, with six or seven being the usual number. The bench enlarged when the court convened as a court of "oyer and terminer and general gaol [jail] delivery" for trying criminal actions, when it added to its number the Council and principal officials of the colony. After royalization, the number of assistant justices was four, and for a time there was a similar addition to its membership when it sat to try criminal cases. The General Court normally convened three times a year to deal with both civil and criminal cases during the proprietary era, and three times a year for civil and twice for criminal proceedings during the royal period. A provost marshal served as executive officer of the General Court, summoning juries, serving writs, enforcing judgments, and the like. The clerk of the court kept the records, prepared the documents necessary for causes to be initiated and completed, and took minutes of the proceedings. An attorney general prosecuted criminal actions and brought civil suits on behalf of the Lords Proprietors and the crown. Grand juries brought indictments in criminal cases and petit juries determined facts in both criminal and civil actions. Attorneys pleading in the General Court had to be licensed by the governor. Litigations and prosecutions in the General Court generally followed English practice in form of action, principles of adjudication, and courtroom procedure. The court also employed in its deliberations the statute law of the colony, and to a lesser extent that of the mother country as well. The court shared with the lower courts such administrative functions as probate of wills, deeds, and landrights; appointment of guardians for orphans; and the like. With few exceptions, the courts in North Carolina were free of interference from authorities in London. Judgments in civil actions could, if of sufficient importance, be appealed to the Privy Council, and the crown could disallow legislation relating to the operation of courts, as it did on several occasions. A major change in the General Court system came with the creation of circuits. The court had sat mainly in Perquimans County until 1716, when the town later incorporated as Edenton became its home. Three circuits (Bath, New Bern, and Wilmington), sitting twice a year, were created by the General Assembly in 1738. Civil actions were commenced and pleaded in the court in Edenton, and tried in the circuit courts. In 1746 the court's central office moved to New Bern, Edenton was added to the circuit, and Edgecombe Courthouse replaced Bath. Other changes, mostly minor, occurred from time to time. The term "provost marshal" for example, gave way to "sheriff" and the offices of chief justice and attorney general were crown appointments after 1729. In broad outline, however, the court's organization, functions, and procedures remained much the same from 1698 until the General Court system came to an end in 1754. In 1754 the General Court was abolished by statute and in its place five independent district courts were erected, seated in Edenton, Wilmington, Enfield, Salisbury, and New Bern. These courts, sitting twice yearly and termed the Supreme Courts of Justice, Oyer and Terminer and General Gaol Delivery, existed from 1755 through 1759. The chief justice and three other justices composed the bench of each court. The Supreme Courts were by act of assembly replaced in 1760 by District Superior Courts. These latter were essentially identical to the Supreme Courts, with the same jurisdiction and being seated in Edenton, Wilmington, Halifax, New Bern, and Salisbury, and from 1768, Hillsborough. The Superior Court system collapsed in 1772, when the royal government refused to permit a new court act to be passed replacing the one having recently expired, and superior courts were not revived until 1778. The governor and Council sat as a Court of Chancery throughout the colonial period. The court adjudicated according to principles of equity, a relief that might be sought by a litigant when justice could not be obtained according to the principles of law. The volume of litigation handled by the court was much less than that of the General Court and its successors, although it exercised both original and at times appellate jurisdiction in noncriminal actions. Another court composed of the governor and Council was the Court of Claims, erected during the royal era to grant land and adjudicate disputes relating to land. A higher court undertaking little if any activity was the Court of Exchequer. Theoretically organized in the early 1730s to deal with questions relating to crown revenue, the court apparently sat no more than a few times. A Court of Vice Admiralty was constituted in the province in the late 1690s. The court dealt with maritime matters of all kinds, including mercantile and other noncriminal litigation, as well as crimes and the taking of prizes in wartime. The Court of Vice Admiralty dispensed justice according to principles of civil law, based on Roman codes rather than the precepts of the common law. The single judge, appointed by the governor and Council (as were the court's other officials), sat without a jury, and his judgments could be appealed to the High Court of Admiralty in London. Relatively few actions are known to have come before the Court of Vice Admiralty. The authority by which proprietary higher courts were established in North Carolina was based on the royal charters granting Carolina to the Lords Proprietors. The proprietors then, through their series of Fundamental Constitutions devised from 1669 to 1698, attempted to determine the form and function of such courts. However, the cumbersome scheme set forth in the constitutions, with each of the eight proprietors' deputies maintaining his own court, proved unworkable except for the partial implementation of the Palatine's Court. Much more important in determining the nature of the court system were the proprietors' commissions and instructions to successive governors, which often included orders to establish, with the consent of the Council, such courts as they thought necessary. In a few instances the proprietors specified rules of procedure to be followed in the conduct of trials, but this was rare. Usually such details were left to be worked out in the province, as were the type and number of courts. Little changed with the implementation of royal government. By the governor's commission, he and the Council were empowered to erect "such and so many Courts of Judicature and Public Justice" as they saw fit, and to appoint judges and other court officials. And with the exception of a small number of directives from the crown concerning such fundamental considerations as speedy trials, appeals, appointment and removal of judges, and habeas corpus, procedural matters were not addressed by the authorities in London. A series of provincial statutes enacted during both the proprietary and royal periods prescribed much of the jurisdiction and procedure in the lawcourts. (Very little such legislation related to the Court of Chancery, and the Court of Exchequer and Court of Vice Admiralty operated entirely outside the purview of colonial laws.) A number of such acts related to specific procedural points, such as the act "concerning Appeals and Writs of Error" of 1715, and the act "directing the Method of appointing Jurymen" of 1762. Other acts in 1738, 1746, 1754, 1760, 1762, 1767, and 1773 (several of which were disallowed by the Privy Council in London), went much further, erecting courts, setting their jurisdiction, and prescribing their procedure in detail. REFERENCES: P.L., 1715, c. 22. P.L., 1738, c. 6. P.L., 1746, 2d sess., c. 2. P.L., 1754, 2d sess., c. 1. P.L., 1760, 2d sess., c. 1. P.L., 1762, c. 1. P.L., 1767, c. 1. P.L., 1773, c. 1. Fundamental Constitutions of Carolina, 1669-1698. Parker, Mattie Erma Edwards, William S. Price, Jr., and Robert J. Cain, eds. NORTH CAROLINA HIGHER-COURT RECORDS. Vols. 2-6 of THE COLONIAL RECORDS OF NORTH CAROLINA (SECOND SERIES). Raleigh: Division of Archives and History, Department of Cultural Resources, 1968-1980. Saunders, William S., ed. THE COLONIAL RECORDS OF NORTH CAROLINA. 10 vols. Raleigh: State of North Carolina, 1886-1890. |
