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Memorandum from the Board of Trade of Great Britain to George II, King of Great Britain concerning acts of the North Carolina General Assembly concerning courts
Great Britain. Board of Trade
April 12, 1759
Volume 06, Pages 25-28

[B. P. R. O. North Carolina. B. T. Vol. 22. p. 299.]

To the King's most Excellent Majesty April 12th 1759

May it please your Majesty,

We have had under our consideration five Acts passed in Your Majesty's Province of North Carolina in 1755 and 1756 for establishing the Jurisdiction of the several Courts and settling the Administration of Justice throughout the said Province, And as several Provisions in these Acts appeared to Us to be new and unprecedented, We thought it our duty in a matter of so much importance to the

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good Government of your Majesty's said Province, not only to take as usual the Opinion of Sir Mathew Lamb, one of your Majesty's Council, in point of Law upon them but also to refer them to the consideration of the Chief Justice and Attorney General of North Carolina, now resident here who from their Knowledge of the Laws in general and of the former constitution of the Courts of Judicature and Mode of Administering Justice in the said Province, appeared to us to be competent Judges how far the said Acts are necessary, expidient or proper, And having accordingly received the Report of the said Chief Justice and Attorney General, we beg leave humbly to lay the said Acts before your Majesty with such Observations as they have made upon each of them.

An Act for establishing the Supreme Courts of Justice, Oyer and Terminer and General Goal delivery of North Carolina.

This Act your Majesty's said Chief Justice and Attorney General conceive to be very exceptionable, whether it be considered relatively to your Majesty's Prerogative, or to the Expedition of Justice and the Ease of suitors, In the former view they observe that this Act creates the Offices of Associate Judges leaving only to your Majesty's Governor the Form of naming and commissioning them, and delegates to such Associates in case of Disability or Absence of the Chief Justice, the whole right of exercising Judicature which they apprehend can only be delegated in the first instance by your Majesty That by extending the Circuit to an impracticable Journey of One thousand Nine hundred miles a year that disability of attendance at least for half the Circuit is thrown upon the Chief Justice and thus the whole exercise of Judicature must necessarily devolve upon such Associate Judges in those place, which Offices having no adequate salaries or other competent Profits annexed to them will fall to the lot of Persons unlearned in the Laws on which all Judicial Determinations ought to be founded, With respect to the latter View, they take notice that 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 and as those Courts are distant from one to two and near three hundred miles from each other and some of them held in desart places the Chief Justice will be deprived of any recourse at those times to Books in order to consider the Cases cited on both sides and thereby enable himself to make a right decision according to law, and should he in such cases deferr giving Judgment till the next Court for the sake of consulting the Authorities, it will retard the Execution of Justice by

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the space of six Months at least which will not only augment Expence 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 where 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 must be still greater.

An Act for establishing County Courts, for enlarging their Jurisdiction and settling the Proceedings therein passed in January 1755.

To this Act the Chief Justice and Attorney General of North Carolina have stated two Objections which they conceive to be material since they tend to prove that the Act is not warranted by any Principle of Law or Precedent, they observe that it is well known that those who generally Act as Justices in the County Courts are unlettered Persons and chiefly guided by some popular Lawyer in the neighbourhood And therefore to enlarge the Jurisdiction of 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 as the determinations of those Courts seldom prove satisfactory but writs of error are continually brought from them to the supreme Courts suits, expences, and delays must consequently be multiplied serving to no other end than the emolument of Lawyers.

Their second Objection to this Act is, that in this Kingdom the Jurisdiction of 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 worst, but by this Act the County Courts are 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 whatever, a jurisdiction which in this Kingdom belongs only to the Chancery and which in their Opinion may least of all be trusted to Courts the most inferior and worst circumstanced of any in the Province And in this most extraordinary and mischievous Provision they justly observe a remarkable absurdity namely that in common contracts the Jurisdiction of the County Courts 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.

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An Act to provide indifferent Jurymen in all causes criminal and civil and for an allowance for the Attendance of Jurors attending at the Courts passed in January 1755.

An Act to amend an Act for establishing the supreme Courts of Justice, Oyer and Terminer and General Goal Delivery of North Carolina, passed in Octr 1756.

These two Acts in the Opinion of the said Chief Justice and Attorney General are not liable to any material Objections but appearing to be passed for the purposes of explaining or facilitating the Execution of the first mentioned Act, relative to the supreme Court, may properly attend the Fate of that Act as simple dependents upon it.

An Act for regulating Orphans, their Guardians & Estates.

Upon this Act the said Chief Justice and Attorney General have reported that the Jurisdiction which is thereby given to the County Courts in cases which are the Peculiar Objects of Equity, is not warranted by any Law or similar Practice in this Kingdom and therefore the Act appears to them unfit to receive your Majesty's Approbation.

Upon the whole we are humbly of Opinion for the several Reasons above stated that the said five Acts should receive your Majesty's Royal disallowance.

Which is most humbly submitted.

April 12 1759.