Government

Magistrates Courts in Early North Carolina

BY PAUL M. MCCAIN^*

[Vol. 48 (1971), 23-30]

In colonial North Carolina the county court, known before 1739 as the precinct court, was the major institution of local government. The members of the court were the justices of the peace in the county. In the early history of the colony, this local court relieved the general court, composed of the governor and his council, from trying petty civil cases and probating some of the routine records. As the population increased, the county court’s authority expanded to include some criminal as well as civil jurisdiction and to add a variety of administrative powers.¹

By 1750 the county court was responsible for supervising and controlling many of the activities and interests of the inhabitants. If a man desired to obtain crown land for himself and his family, he ordinarily proved his rights before the local court and had a certificate forwarded to the governor and council. Should he buy land or cattle, he petitioned the court to probate the deed or bill of sale and to have it registered. To distinguish his cattle, horses, and hogs from those of his neighbors, he had his cattle marks and brands recorded in the court minutes. When he and his neighbors wanted a road, they petitioned the court, or, if they lived in the southern part of the province, they petitioned the county road commissioners.² If he wished to establish an ordinary or a tavern at his house or to build a mill on a neighboring creek, he also submitted his petition to the court. And in the operation of these or other businesses the court required him to use only weights and measures which had the approval of the county standard keeper. To collect his small debts, he sued his debtor in the county court. He also petitioned the court to obtain a remedy for the service which an indentured servant failed or refused to perform.

An inhabitant fulfilled most of his public obligations under the supervision of officers nominated or appointed by the county court. His taxes, whether local or provincial, were paid to county officials. The constable annually reminded him to declare the number of his taxables; the nearest justice of the peace heard and recorded his declaration; the inspector of the county warehouse received the commodities brought in payment of his taxes; and the sheriff accepted the inspector’s notes as the equivalent of the money due. The sheriff or his deputy summoned a citizen to attend court as a juror or witness and executed any judgment against him for his neglect or refusal to appear. When he voted in the election for members of the assembly, he found the sheriff in charge of the polling place.

The county court maintained its authority over an inhabitant’s property and family even after his death. A relative or friend usually had his will proved before the county court and then qualified as executor. It there was no will, the court appointed an administrator and, if necessary, a guardian for minors; and it supervised both administrator and guardian in the exercise of their duties. Should the estate be too small for anyone to volunteer as guardian, the court bound the children out as apprentices.³

In practice there were two types of magistrates courts: those a single justice held, and those any two or more justices presided over. In general, the laws establishing magistrates courts for “the Tryal of Small & Mean Causes” gave two or more justices the power to try cases and offenses in which the maximum of debts or fines was twice what one justice could decide.⁴

Even though these laws permitted three or more justices to hold a magistrates court, apparently no more than two justices served together in such a court. The reason for this may have been that two justices had as much authority in a magistrates court held during the recess of the county court as any larger number did.⁵

The earliest extant act specifying the civil jurisdiction of magistrates courts was that of 1715 for “the Tryal of Small & Mean Causes.” This law provided that any two or more justices of the peace, one of whom was of the quorum,⁶ had jurisdiction “to Examine, Hear, Trye, Adjudge & finally Determine all Complaint & Action of Debts or Demands” not exceeding 40 shillings according to justice and equity. Suits for such small amounts were “Issuable, Tryable & Determinable” only before the magistrates courts.⁷ A single justice of the peace had similar powers in actions where the debt did not exceed 20 shillings.⁸

As the value of paper currency depreciated after 1715, the assembly enacted a law increasing the amounts for which suits could be tried in the magistrates courts. In 1729 an act established the maximum jurisdiction of two or more justices at £5 and that of a single justice at 40 shillings. At the same time the act provided a partial remedy for the lack of a jury in these courts. Should either of the parties to a suit be dissatisfied with a judgment, the justices could grant an appeal to the precinct court provided the judgment were for a sum of 40 shillings or more. Once the appeal reached the precinct court, a jury decided the issues. While initially this act was effective for only two years, an act of 1734 revived its provisions.⁹

In 1741 the assembly passed a new, comprehensive act pertaining to the magistrates courts. The law continued much of the old procedure but contained no references to a justice of the quorum. The jurisdiction was restricted to the former maximums of 20 and 40 shillings proclamation money; but as this larger amount was equivalent to £15 current bills, the change effected an increase in the magistrates’ jurisdiction.¹⁰ The plaintiff was required to prove a debt by submitting his accounts or other records as evidence.¹¹ The justices could issue execution against the plaintiff if he were “cast,” that is, if he lost the suit. Whenever the magistrates judged a defendant not worth the debt recovered, they could hire him to labor at so much per day until the debt was paid. Finally, either party could appeal any judgment to the next county court by first giving sufficient security that the appeal would be prosecuted.¹²

The defendant in actions before the magistrates courts was the party who normally made the appeal, if any, to the county court. Although a jury usually tried the appeal, the parties could refer their case to arbitrators.¹³ With few exceptions the juries returned findings for the appellee, or respondent, thus sustaining the judgments of the lower courts.¹⁴

Governor George Burrington described the popularity of the magistrates courts in his report to the Board of Trade in 1731: “...People are generally fond of [the courts] being an expedicious way of obtaining justice.”¹⁵ The courts were a means of obtaining redress quickly. Andre Richard of Edenton secured a judgment in less than two days. On February 5, 1744/45, he complained to Abraham Blackall, a Chowan justice, that Elizabeth Hacket of Edenton was indebted to him in the sum of £5 current money. Blackall immediately prepared a warrant which Thomas Kimsey, the local constable, executed. The defendant appeared before Blackall the following day. When she acknowledged the debt, Blackall gave judgment for the £5 and costs.¹⁶

In addition to having jurisdiction over actions of debt, one or more justices of the peace had authority to determine actions of trespass in which damages were less than 40 shillings arising from cattle straying on cleared ground. If the owner of the land maintained a “sufficient fence” five feet high around the cleared ground involved, he could obtain satisfaction from the owner of the cattle for any damage suffered. Any two freeholders “Indifferently chosen & sworn before some Magistrate” were to determine the sufficiency of the fence. Should the freeholders decide that the fence failed to meet the legal standards, the owner of the cattle could obtain satisfaction for any damage his cattle suffered in being “unreasonably” chased, worried, maimed, or killed.¹⁷ Under this act John Collins of Bertie County brought suit against Daniel Vanpelt in 1744 for having shot his horse while the horse was on Vanpelt’s land. When Collins obtained a judgment from John Wynns, a justice of the county, Vanpelt appealed the case to the Bertie court, but at the August term of the county court a jury upheld Wynn’s judgment.¹⁸

Justices of the peace also held examinations of commodities to determine their marketability. Because of a scarcity of money in North Carolina’s agricultural economy a number of commodities had an established monetary value for the payment of taxes and debts. To protect the value of the currency only merchantable staples were permitted in this exchange. If a creditor or collector of taxes considered any goods offered him to be substandard, he could apply to a justice to have two freeholders render a just and impartial opinion of the quality of the commodities.¹⁹ With a more extensive development of this system in 1740, the freeholders’ condemnation of the goods meant that the justice not only could authorize a rejection of the goods but also could make the person offering the commodities pay a fine equal to half the value of the goods, had they been acceptable.²⁰ A justice also summoned two freeholders to render their opinion when any person complained to him that the barreled goods he had bought were unmerchantable. If the freeholders’ verdict substantiated the complaint, the justice awarded the plantiff double damages.²¹

A part of the judicial activity of justices during the vacation of the county court was the holding of summary courts for the trial of petty offenses. If any justice saw a person participating in a sport or engaging in unnecessary work on Sunday, heard a profane oath, or discovered someone drunk, the justice could sentence the offender, without further formality, to pay a fine. In default of payment, the justice could have the fine levied by distress and hold a sale of the person’s goods or have the offender put in the stocks for three hours.²² Road surveyors or overseers called upon “the next,” or nearest, magistrate to pass on the reasonableness of the excuses the men designated to work on the highways offered for their failure to appear; and if the reasons were unacceptable, the justices imposed a fine.²³ In order to collect a share of the penalties, informers could report under oath to a justice their knowledge of any persons using unapproved weights and measures in trade, charging more than the legal rates for an ordinary or tavern, killing deer out of season,²⁴ and the neglect of the court clerk or parish minister to read publicly the acts which were directed by law to be read twice a year either during county court or at the parish chapel service.²⁵ In addition to levying fines, a justice determined the amount of corporal punishment slaves were to suffer for roaming about at night without permission²⁶ and white servants were to receive for disobeying or assaulting their masters.²⁷

A number of offenses were determinable by two justices of the peace upon their own knowledge or upon the oath of one or more witnesses. Two magistrates had authority to fine constables and road surveyors or overseers for being delinquent in certain of their duties. The justices could fine constables for not qualifying upon appointment, for refusing or neglecting to assist in the return of a runaway slave, and for failing to summon people to list their taxables or to return to the county court a list of people so summoned.²⁸ The magistrates of the northern counties could impose a fine of £10 current money on any surveyor or overseer who did not properly maintain his section of the road.²⁹ Throughout the province any two justices could issue a warrant for the recovery of the £5 current money, penalty for operating a ferry within ten miles of one authorized by the precinct court.³⁰ When two justices had knowledge or information that an unwed woman was pregnant or had given birth to a child, they were to summon her to appear before them so that they could discover the name of the child’s father. Upon learning the name of the father, they were to require him to enter into a bond, payable to the justices of the county court, that he would maintain the child.³¹ Two justices could also suppress the operation of an ordinary or tavern until the next term of the county court if the owner of the ordinary permitted unlawful activities at his house.³²

In addition to trying petty cases the justice of the peace held hearings for the examination of suspected criminals. A justice having personal knowledge or sworn information of a crime committed in his county could issue a warrant directing the sheriff or a constable to bring the accused before any justice of the county to answer the charges. During the examination the justice heard evidence given under oath for and against the culprit. Upon finding probable cause, the justice committed the offender to jail or required him to give sufficient bond for his appearance at the next term of the court which had jurisdiction over the crime. The magistrate also required a “recognizance,” or bond, of the informer for his appearance at the court to prosecute or give evidence against the accused.

Should a justice find a person guilty of a minor offense or breach of the peace, the justice might require the person to enter into a recognizance for his good behavior for any period of time up to a year and a day. When a person was unable to secure acceptable securities or endorsers for his recognizance, the justice could commit him to jail. Prior to the time of each court the justice returned a record of his examinations and the recognizances he had taken so that the matters could be entered upon the court docket for further proceedings.³³

When a creditor learned that his debtor had departed from the province or was intending to leave to avoid payment of an obligation, the creditor could make a complaint under oath to any justice of the peace in his county and request an attachment against the estate of the person absconding. The justice thereupon issued a writ to the sheriff, his deputy, or any constable, to attach sufficient goods and chattels of the debtor to satisfy the claims and accruing costs. At the same time the justice required a bond of the plaintiff for his prosecution of the action at the next court. The officer executing the writ seized the goods and held them until the defendant redeemed them with a bond for his appearance in court, or until the goods were discharged by due course of law. Before the next court met, the justice filed the creditor’s complaint, and the officer executing the writ returned that instrument to the clerk with a list of the goods he attached. The case was then ready for the court’s customary consideration of a civil action.³⁴

During the county court’s vacation a justice frequently engaged in activities of an administrative nature. After determining the facts, he issued certificates to persons taking up and returning runaway slaves so that they could be reimbursed for their efforts.³⁵ Similarly, he issued certificates upon proper proof to anyone killing wild animals for which bounties were offered.³⁶ In the absence of a minister of the Church of England in the county, the justice performed marriages.³⁷ He frequently administered the oaths of office to some of the county officials, particularly to the constables.³⁸ He often proved the inventories of estates or witnessed the signing of papers, such as apprentice or servant bonds, deeds, and powers of attorney.

Two justices could take the bonds of ferrymen and ordinary keepers.³⁹ Until 1741 any two justices could fill the temporary vacancy of a constable’s position.⁴⁰ A frequent duty for two justices was to inspect or audit the accounts of the sheriff or other officers who handled the county’s money and the accounts of administrators for estates. During the recess of the county court two justices could assume two duties regularly assigned to the higher court: administering the pauper’s oath to a debtor to free him from jail,⁴¹ and hiring out any runaway slaves confined in the provincial jail.⁴²

As a magistrate’s court was not a court of record, it is difficult to determine how much time a justice devoted to the duties of his office. However, the variety of matters within the scope of his jurisdiction was probably great enough to absorb as much time as a justice cared to take from his business and personal affairs. There was no compensation for the time he spent as a judge of the county court, but a justice received some remuneration for his efforts when he held a magistrate’s court. The act “for the Tryal of Small & Mean Causes” authorized the justice to receive a fee for each warrant he issued. Although the act of 1715 set the fee at only 15 pence,⁴³ the revision of the law in 1729 provided for an increase in the amount collectible for the issuance of a warrant—if one justice executed a warrant the cost was 2 shillings 6 pence, and if two justices performed this service the cost was 5 shillings.⁴⁴ In 1741 the fee for a warrant from either one or two justices became 1 shilling 3 pence.⁴⁵ Even though these fees were not large enough to make a justice wealthy, they would serve as an encouragement for him to fulfill the duties of his office.

Footnotes