Letter from Charles Berry and Thomas Child to the Board of Trade of Great Britain
Child, Thomas, fl. 1745-1767; Berry, Charles, d. 1765
Volume 06, Pages 13-15
[B. P. R. O. North Carolina B. T. Vol. 13. D. 39.]
Letter from Chas Berry and Thos Child Esqres Chief Justice & Attorney
General of North Carolina to the Right Honorable the Lords
Commrs for Trade & Plantation.
May it please your Lordships,
In obedience to your Lordships Commands, signified to us by Mr Pownall, we have, to the best of our ability duly considered those Acts of Assembly passed in North Carolina, respecting the Administration of Justice, whereof your Lordships were pleased to desire our opinions, and we humbly beg leave to lay before your Lordships accordingly, such Observations as have occurred to us thereupon.
With respect to the Act passed in 1754, entitled An Act for establishing the Supreme Courts of Justice &c, we are of opinion that it is a very exceptionable Act, whether it be considered relatively to the Prerogative of the Crown, or the expedition of Justice and the ease
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of suitors. In the former View, it is to be noticed that this Act of Assembly creates the offices of Associate Judges, leaving only to His Majesty's Governor the form of naming and commissioning them; and delegates to such Associates, in case of the disability or absence of the Chief Justice, the whole right of exercising Judicature, which we humbly apprehend can be only, in the first instance, solely delegated by the Crown, and by extending the circuit to an impracticable journey of above 1900 miles a year, they have taken care to throw upon the Chief Justice that disability of attendance, for half that Circuit at the least, by this means, the whole exercise of Judicature must necessarily devolve upon such Associate Judges in those places; Which Officers having no adequate sallaries or other competent profits annexed to them, will fall to the lot of Persons unlearned in the Laws, whereon all judicial determinations ought to be grounded. In the latter View, as Issues and other points of law as well as matters of fact, arising within the District severally appropriated to each Supreme Court, are determinable at such respective Court, which Courts are distant from one to two and near three hundred miles from each other, and some of 'em held in desart Places; the Chief Justice will be deprived of any recourse, at those times, to books, in order for considering the cases cited on both sides and enabling himself to make a right decision according to law: And in such Cases should he defer giving judgment till the next Court, for the sake of consulting the authorities, it will retard the execution of Justice by the space of six months at least; and this will not only augment expenses, and double the attendance of Parties, but may oftentimes occasion to Plaintiffs the loss of their demands, by the death or flight of Defendants in the Interim. And when such points of law shall fall to the determination of the Associate Judges, from whom no writ of error is provided, the consequent uncertainty and inconvenience might be still greater.
With respect to the Act passed the same year, entitled an Act for establishing County Courts, and for enlarging their Jurisdiction &c, We have two objections to it; which, in our opinion, are very material ones, since they tend to prove that the Act is not warranted by any Principles of Law, or Precedent. It is well known that those who generally act as Justices in the County Courts, are unlettered persons & chiefly guided by some popular Lawyer in the neighborhood; the enlarging the Jurisdiction of such Courts, so constituted, to forty pounds, as it will comprehend the greatest part of the causes arising in the country, must be very improper: And since their
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determinations seldom prove satisfactory, but writs of error from them are continually bringing to the Supreme Courts; suits, expenses and delays must be consequently multiplied, serving to no other end than the emolument of Lawyers. Here the Jurisdiction of the County Courts is limited to causes under forty shillings; which being generally matters of fact, and seldom complicated with any intricate circumstances, are easily determined, without much mischief to the parties at the worst. But, what is much more extraordinary and mischievous, These County Courts are by this Act empowered to take cognizance of, and to hear and determine all Filial portions, Legacies and the distribution of Intestates Estates, for any sum or sums whatsoever a Jurisdiction, which, here, belongs only to the Chancery, and there, ought least of all to be trusted to Courts, the most inferior and worst circumstanced of any in the Province. Nor can we pass by a remarkable absurdity, which attends it; namely that in common contracts their Jurisdiction is limited to forty pounds, but in more delicate and difficult matters such as the construction of Wills and of the Acts relating to Intestates Estates, it is without any limitation at all.
With respect to the Act entitled, An Act to provide indifferent Jurymen in all Causes, &c. and also to that entitled, An Act to amend an Act for establishing the Supreme Courts of Justice &c. passed in 1756, there do not occur to us any material objections, wherewith to trouble your Lordships; but, appearing to be made for the purposes of explaining & facilitating the execution of the Supreme Court Act aforementioned they may in our humble opinion not improperly attend the fate of that Act, as simple dependants upon it.
We have the honor to subscribe ourselves, &c.,
CHARLES BERRY: Chief Justice of North Carolina
THOs CHILD—Attorney General of North Carolina
24th February 1759