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Report by Charles Berry concerning bills of the North Carolina General Assembly concerning courts
Berry, Charles, d. 1765
May 22, 1760
Volume 06, Pages 251-254

Quæres with the Chief Justice's Answer.

Queres on the following abstracts of his Majesty's Instructions and Clauses in two Several Bills for establishing Courts in the Province of North Carolina Proposed by his Excellency the Governor for the consideration of the Honble Chas Berry Esqre his Majesty's Chief Justice.

Abstract of his Majesty's Instructions.

You shall not appoint any person to be a Judge or Justice of the Peace without the advice and Consent of at least three of our Council signified in Council nor shall you execute yourself or by Deputy any of the said offices and it is our further will and pleasure that in all Commissions to be granted by you to any person or persons to be Judges, Justices of the Peace or other necessary Officers be granted during pleasure only—

We do hereby Will and require you not to pass or give your assent hereafter to any Bill or Bills in the Assembly of our said Province of unusual or extraordinary nature and importance wherein our Prerogative

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or the Property of our Subjects may be prejudiced until you have first transmitted unto our Commissioners of Trade and Plantations in order to be laid before us the Draught of such Bill or Bills and shall have received our Royal Pleasure thereupon unless you take care in passing any such Bill or Bills that there be a Clause inserted suspending and deferring the Execution thereof until our Pleasure be known concerning the same.

It is our further Will and Pleasure that you do not for the future upon any Pretence whatsoever give your assent to any Law or Laws to be passed in our said Province inconsistant with these our Instructions to you or prejudicial to that Right or Authority which you derive from us in Virtue of our Commission and Instructions.

A Bill having passed both Houses of Assembly for establishing Superior Courts of Justice &c: in which there is a Clause directing that the Justices to be appointed by the said Act should hold their Commissions “Quam diu bene Gesserint” And also another Clause confining his Majesty in the Appointment of the Associate Justices Quere. As the above Clauses are repugnant to my Instructions ought I consistant with my Duty to pass this Bill and do you give it as your Opinion and advice that I ought to lessen his Majesty's Prerogative by passing this Bill.

I have considered the sevl above Clauses extracted from his Majesty's Instructions to your Excellency as likewise the Bill for establishing Superior Courts of Justice in this Province which having provided competent Salarys for the Associate Justices so as to make it worth while for persons of skill and learning in the Law to accept those Offices whereby notwithstanding the Extensiveness of the Circuit the Suits and Causes depending in the Superior Courts may now without delay to the Suitors receive proper determinations I conceive the Chief Reason for repealing the Superior Court Act passed in 1754 is thereby obviated and am of opinion that there cannot be a Bill better framed or more adapted to the peculiar circumstances of this Province than the present bill—

With regard to your Excellencys Query wherein you desire my opinion whether you should give your assent to the said Bill on account of two clauses in the Bill objected to by your Excellency and here stated, my opinion with respect to that is as follows.

Considering the present circumstances and Situation of Affairs in this Province and the indispensable necessity there is of an immediate Establishment of proper and convenient Courts of Justice upon which so greatly depends at this time as well the Interior

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peace and wellfare as the support of the Trade and Credit of this Province which has greatly suffered from a cessation of the Administration of Justice for eight months past owing to there not having been during that time convenient and necessary Courts established I would advise your Excellency to give your assent to the said Bill notwithstanding the said two Clauses and the rather as I do not think his Majesty's Royal Prerogative can be in any danger of being lessened or diminished by your Excellency's giving your assent to the Bill which is not conclusive on the Crown and can only exist during his Majesty's Royal Will and Pleasure

CHAs BERRY, Chief Justice

22d May 1760.

A Bill having passed both Houses for establishing Inferior Courts of Pleas and Quarter Sessions In which they have given the said Courts a Jurisdiction of fifty pounds. Quere. As the late Law was repealed by his Majesty in Council principally on Account that the Jurisdiction was too extensive when at forty pounds ought I to pass the present Bill as it now stands and do you give it as your Opinion and advice that I ought to pass it.

With regard to the above Query I beg leave to observe to your Excellency that there were other reasons for the repeal of the late County Court more cogent in my opinion than that stated in the above Query as will appear in the report from the Lords of Trade to his Majesty.

There is another circumstance which I would also beg leave to observe to your Excellency and that is that at the time I had under my consideration in England the late County Court Act I was a stranger to the nature of the Jurisdictions of the County Courts in general in America particularly those in Virginia a neighbouring Colony which I find have a much higher Jurisdiction than that given by the present Bill to the Inferior Courts here and therefore notwithstanding the Jurisdiction of the Inferior Courts here is somewhat increased to [by] the present Bill yet considering that Writs of Error and appeals do lay from the Inferior to the Superior Courts in all cases of Consequence where any person may conceive himself aggrieved by the Judgment of an Inferior Court I am of opinion your Excellency may give your assent to the said Bill as no very mischevious consequence can arise to his Majesty's Subjects from the Judmts of those Courts while there are Superior Courts to controul and correct their Errors without which such extensive Jurisdictions

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might be of very mischeivous and dangerous consequence to the subject as thereby the Judgments and decisions of such Inferior Courts would in such case be final and absolute

CHAs BERRY Chief Justice

22. May. 1760.

Additional Notes for Electronic Version: This report was enclosed with a letter from Arthur Dobbs and a memorandum from the Board of Trade - See Related Documents.