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Preface to Volume 25 of the State Records of North Carolina
Clark, Walter, 1846-1924
June 01, 1906
Volume 25

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PREFATORY NOTES.

The editor finds great satisfaction in being able to publish in this volume with the Acts of 1789 and 1790, many of the earlier Acts which, not accessible when Volumes XXIII and XXIV were being printed, have since been found, by careful search, in the British Archives. These lost Acts are printed as a supplement to this volume —“Omitted Acts 1669-1783.” They are memorials of a period long since passed, and we are fortunate to be able to perpetuate them for the benefit of the profession or the use of the historian.

Government was first established in Albemarle in 1664, by the appointment of William Drummond as Governor, and an Assembly was then held, the proceedings being under “the Concessions.” The records of that day were not preserved, and the enactments are lost.

Almost immediately, however, Shaftesbury began with his Secretary, the celebrated John Locke, to frame a more perfect system of government for Carolina; and the instrument was substantially finished by the first of March, 1669. Being transmitted to Albemarle, the Grand Assembly acting under it, in October, 1669, re-enacted many of the laws previously passed, and they were sent to England for confirmation. The style of enactment was: “Be it therefore enacted by the Palatine and the Lords Proprietors, by and with the advice and consent of the present Grand Assembly.”

Several of these earliest laws of Albemarle are worthy of passing notice.

Our practice of recording titles, registering deeds, at that period entirely unknown in England, is due to a clause in the Fundamental Constitutions. It was one of the customs of Holland, whence it was transferred to America.

Another early enactment was that legalizing civil marriages, and putting them on the same footing as if performed by a minister in England; there being no ministers in the colony.

Still another, was one taken from the Virginia Statutes, to encourage settlers by exempting them from suits for a period of five years. In this Virginians who came over the line only re-enacted what had earlier been the Virginia enactment.

Beginning with 1669 the Fundamental Constitutions were more or less observed, being carried into effect “as near as may be.” There was one rule, however, that probably was not strictly enforced:

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“No person above 17 years of age shall have any benefit or protection of the law, or be capable of any place of profit or honor, who is not a member of some church or profession, having his name recorded in some, and but one religious record at once.”

With this strict requirement it was necessary to facilitate the observance of the regulation; and so it was provided that “any seven persons, agreeing in religious opinion, may form a church or profession of their own, to which they shall give some name to distinguish it from others.”

No record has been preserved indicating that any religious organization ever existed in Albemarle before 1700, except that of the Friends or Quakers; and that would seem to have been established only after the visits of Fox and Edmundson, as the former found only one Quaker in the colony in 1672.

Another provision of the Fundamental Constitutions allowed any church “to prescribe its own manner of witnessing the truth, such as holding up the hands, or in any other sensible way.” Indeed, earlier, even in the Concessions, provision was made for affirmation,“ instead of an oath, administered in common form. This practice, which obtained among the Quakers, was never questioned until about 1705. The denial of this right of “affirmation,” which had been so long enjoyed in Albemarle, was one of the causes of the turmoils which in after years made that period known among the inhabitants as 'the troublesome time.”

Chief, however, among the notable features of the Fundamentals were the provisions for electing the parliament. Shaftesbury was an ardent lover of liberty. He had witnessed the tyranny of Charles and the still greater exercise of arbitrary power by Cromwell. He had seen both govern without a parliament; and a parliament perpetuate its own existence through many years, long after it had lost every semblance of a representative character.

To prevent such a possibility it was provided in the Constitutions: “That in order to the due election of members for the biennial parliament, it shall be lawful for the freeholders of the respective precincts to meet the first Tuesday in September, every two years, in the same town or place that they last met in, to choose parliament men, and there choose those members who are to sit the next November following.”

“And a new parliament shall assemble the first Monday of the month of November every second year, and shall meet and sit in the same town they last sat in, without any summons.”

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These provisions were a distinct improvement on the English Constitution. They established representative government on a sure foundation. The biennial election and the meeting of the Assembly in November were a part of the Constitution. No Governor could prevent it. In 1727 Sir Richard Everard tried, but failed. Despite his proclamation proroguing the Assembly before it met, the body met and asserted its rights and privileges.

In after years the Royal Governors found this right of the people very inconvenient, and it was a thorn in their side, until at length, by a compromise, Governor Johnston obtained the abandonment of the right.

It is to be observed that the early Acts were by “the Grand Assembly,” and for “the County of Albemarle.” The “County of Albemarle” had its own seal; and when later the appellation, “North Carolina,” came into use, the seal of “the County of Albemarle” was continued in service, as the seal of the Province, until after the purchase by the crown.

The Act of 1685, in regard the suppressing pirates and privateersmen, was passed for the southern part of Carolina, “That part of the Province from Cape Feare south and west.”

There was no particular occasion for such a law for Albemarle at that time. The evil to be remedied was further south. This act, however, is of historic interest, as it established a dividing line between the governments at Albemarle and Charleston: “west from Cape Feare.”

From that date, the terms North and South Carolina came into vogue; although the first authoritative use of “North” Carolina was in 1688, or 1689.

The Act of 1722, now published, requiring the Chief Justice, Secretary, and all officers, except alone the Governor, to keep their several and respective offices open at Edenton, fixed the seat of government at that place. Later, in Governor Johnston's time, 1746, and act was passed “by management,” establishing the Capital at New Bern. This act, however, did not go into operation; and it was only when the Province was swept off its feet in the universal rejoicing from Boston to Savannah, over the repeal of the Stamp Act, that Governor Tryon secured the change from Edenton to New Bern.

The Court Law of 1777 has received the high encomiums of our best lawyers. Dr. Battle, however, regards the Act of 1746 as being equally meritorious.

The editor calls attention also to the Act of 1754, as being worthy of special consideration by the profession.

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The system provided for in the Act of 1746 was patterned after the English system, with a General Court, writs sued out only at New Bern, where the pleadings were to be made up, and the case then sent to the proper District Court for trial. That act was “disallowed” some years later, because there was no quorum present when it was passed.

The Act of 1754 established the system that has ever since been in use in North Carolina. There were five districts arranged; in each of which two terms of court were to be held each year; and the court had full jurisdiction in civil and criminal cases. They were exactly like the Superior Courts of our day, except that no appeals lay from them.

The act in its several parts seems to be worthy of high commendation. It is doubtless the particular foundation on which the famous Act of 1777 was built. All of the court laws, however, were drawn with great care and nicety, and reflect credit on their authors in Colonial days.

An Index to these three “Law” Volumes—Vols. XXIII, XXIV, and XXV—is appended, also a list of captions of the acts embraced, prepared by Dr. Stephen B. Weeks, Ph.D. This makes these three volumes of Laws 1669-1790 complete in themselves. An extra number of copies of these Law volumes have been printed for the convenience of lawyers and others who may not wish the other twentyfour volumes of these Records. The matter in the Index to this volume will be also incorporated into the “General Index” to the whole work.

Walter Clark

RALEIGH, N. C.,
1 June, 1906.