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THE VICE-ADMIRALTY COURT OF ROYAL NORTH CAROLINA 1729-1759
By CARL W. UBBELOHDE, JR.
[Vol. 31 (1954), 517-528]
Royal government in the Carolinas was perhaps as orderly in arrangement as that of any of the overseas dominions of the Hanoverian monarchs. At the time the provinces were transferred from the Lords Proprietors—South Carolina in 1719 and North Carolina in 1729—the Crown had been administrating colonial governments in North America for a century. Some vestiges of John Locke’s elaborate Fundamental Constitutions lingered, but for the most part the governments of the two colonies were shaped to fit prevailing conceptions of model royal provinces.
The framework for governing colonial North Carolina was hierarchical and orderly. The governor, the council, the general assembly and the common law courts varied but little in pattern from other royal colonies and were, if anything, less cluttered with anomalies. Somewhere in the background, sometimes distinct, but more often lost in the turmoil of a frontier society, was the vice-admiralty court. This court, designed to administer law maritime and civil, played a dual role in the North Carolina port towns. It was, in one capacity, the arbitrator of all conflicts that concerned the ocean commerce of the province. It was also the agency which heard and determined cases involving infringements of the British Navigation Acts.
Colonial North Carolina never became an important commercial center. Her coastline was too obstructed with dangerous reefs and her inlets were too shallow or full of sandbars to allow her to compete successfully with either Norfolk in Virginia, or Charles Town in South Carolina. Nevertheless, coasting vessels and the larger ships and snows of the West Indian and European trade visited her port towns in ever increasing numbers during the eighteenth century. The five legal entry ports, Currituck, Roanoke, Bath Town, Beaufort, and Brunswick were part of a maritime world. In their economy of salt-water commerce the vice-admiralty court was as important as the common law courts were to the land speculators and inland farmers.
The records of the vice-admiralty court, although scattered, are sufficient to trace the major activities of the court during the first thirty years of royal government. The story they tell requires some revision of the traditional description of that court. Because the court employed civil rather than common law, because no jurymen were called to judge their peers, the vice-admiralty court has been viewed as the ugly duckling of the provincial legal structure. Charles Lee Raper in his North Carolina: A Study in English Colonial Government, asserted that This court was in fact not a provincial institution. It was at no time under the control of the officers of the province.1 Nothing could be less true. The vice-admiralty court was as much a local institution, and as much embroiled in domestic polities as were the common law courts. Like the common law courts, its officers were locally appointed, and to a large extent it concerned itself with local problems.
This suggests a second aspect of the colonial vice-admiralty jurisdiction. The bitter quarrel between the officers of the common law courts and the judges of the vice-admiralty courts during the early years of royal North Carolina has been interpreted as a miniature crusade for the native rights of Englishmen.2 It is true that the petitions and prohibitions of the time ring with such sentiment. But these accounts usually ignore the local political scene and so ignore reality. When a local politician presided over the vice-admiralty court it was natural for the court to become involved in political scraps. And when the Chief Justice of the colony was a politician in an opposing camp it was inevitable that friction between the two courts should arise.
In 1729, when the Proprietors surrendered the charter of the second of the two Carolinas to the Crown, the vice-admiralty court of North Carolina had been in existence some thirty-two years.3 On paper its history reached even further into the past. John Locke’s Fundamental Constitutions of 1669 mentioned an Admirals’ Court…to try cases belonging to law-merchant, but it was never established.4 Maritime cases were tried in the general court until 1697 when, as a part of the general reorganization of the agencies for enforcing the Navigation Acts, vice-admiralty courts were erected in all of the North American colonies. The Lords Proprietors fought the movement which suggested increased royal interference in their granted preserves. In common with the agent of Connecticut and the proprietors of Pennsylvania and the two Jerseys, they protested that ... all suits... may... be brought and prosecuted in the Common Law Courts and yt the erecting Courts of admiralty would have occasioned Sallaryes and other great and expensive Charges.5
The protestation was to no avail. North Carolina was included in the jurisdiction of the governor of Virginia in his commission to establish a vice-admiralty court in June, 1697.6 Despite the objections of the governor and council of North Carolina the Proprietors could ill afford to risk an outright refusal, and informed the American officers that it would be better ... at this time to suffer it, than to give any occasion of a dispute.7
In reality, the North Carolina situation was more foreboding for the future than undesirable at the moment. Henderson Walker was commissioned judge of vice-admiralty, and other officers for a court were appointed by Governor Harvey. This rendered the Virginia governor’s commission valueless in North Carolina. Nothing further could be done until Walker died and left the vice-admiralty bench vacant. Governor Harvey informed Governor Archdale of South Carolina ...that there was no vacancy & soe at present [he had] put a stop to that Matter....8
It is possible that no ordinary admiralty case from North Carolina was ever tried in the Virginia court.9 In 1704 a sloop, The Pamlico Adventure, was seized at Pamlico for breaking bulk before entry. A petition from the master of the sloop was forwarded to Robert Daniel, the deputy governor of the province, asking that a court of admiralty be called to try his case.10 This suggests that either Walker still lived, or that a successor had been named without raising the question of jurisdiction. Records of an appeal from the decree of a vice-admiralty judge to the provincial Court of Delegates in 1712 substantiates this belief.11 By 1724 the North Carolina Council was assisting the governor in appointing officers for a vice-admiralty court. At a meeting on April 2 of that year the Council noted that Daniel Richardson, late judge of the court of admiralty and attorney general, had died, and commissions were given to Edward Moseley as judge, Thomas Boyd as advocate, and Robert Forster as register of the vice-admiralty court.12
Seven men held the office of judge of the North Carolina vice-admiralty court in the thirty years between 1729 and 1759: Edmond Porter, Edmund Gale, John Hodgson, Joseph Anderson, Francis Corbin, Henry McCulloch, and William Ross. With the exception of Henry McCulloch they were all appointed by the governor and council. The procedure was, in theory, that the governor and council could fill vacancies when they occurred, but the appointments were subject to review by the High Court of Admiralty of England. In 1743 Joseph Anderson suggested to the register of the High Court that since the governor had appointed him judge he would be pleased to have a commission from the English court.13 This practice of applying to the English court evidently vanished, for in 1767 Governor William Tryon wrote that the court consisted of a judge ... appointed by the Governor, a Register and a Marshal appointed by the Judge, and all hold [office] during pleasure.14
The vice-admiralty judges appointed surrogate, or deputy, judges for the distant ports. During the early years when governmental activities centered in the Roanoke-Edenton district, the court was held at the courthouse in Edenton. As time passed, and the Cape Fear region developed and surpassed the older district, surrogate judges sat at Wilmington. When the government moved to New Bern the major activities of the court moved with it, and surrogates were then appointed for the northern districts.15
The officers of the court were paid only by fees which were established by the General Assembly. Unlike the common law courts the vice-admiralty court did not sit according to scheduled terms, but was called whenever cases arose. These were few. Records of only sixty cases are extant for the thirty years from 1729 to 1759. Joseph Anderson in 1743 claimed that the judgeship was a place...not worth soliciting for.16
However, the office of judge had certain advantages. For one thing, it was possible for the judge to obtain desirable commodities from the sale of confiscated goods. Joseph Anderson, in directing his surrogate at New Bern to settle his expenses for a trip to New Bern from Edenton and back to try the prize case of the schooner Harra My Juda in 1748-49, claimed his expenses as 180 pound bills. But he told his deputy, who was to be present at the sale, that he would prefer ... linnen for myself Mrs. Anderson and Children ...[or] any sheeting Linnen... [to money] unless it be Cash.17 It is not uncommon to find that the judge purchased the major part of the forfeitures at the public auctions held to dispose of condemned goods.
The other officers of the court were of much less importance and were often deputized on the spot for single cases. James Craven held the office of register for many years, but other men often acted as his deputy. The office of marshal was also exercised by a variety of individuals. The marshal’s duties were sometimes hazardous, but more often consisted of routine serving of summonses and citations, posting notices for trials, and conducting sales of condemned ships and goods.
The advocate of the court, when one was in residence, prosecuted cases for the Crown. Often the attorney general of the province was commissioned as advocate. Lawyers practising in the province served as proctors, that is, trial lawyers, for the parties bringing or defending causes. As late as 1743 the dearth of such professional men in the colony caused Judge Anderson to apologize for the form in which records were drawn. When the decree against the ship Success was appealed to the High Court of Admiralty of England he wrote that
… when it comes to be considered how few we have here that understand the forms and practice of Civil Law Courts the want thereof will the more readily be past over & excused; I must confess had the proceedings been taken before myself I would have endeavoured to have sent them in a much more regular manner and in a better dress; the port where this Seizure was made is upwards of 200 miles distant from this place [Edenton] where I reside and where all the Kings Ordinary Courts of Justice are held.18
Apologies like Anderson’s were seldom necessary for the Carolina court had little contact with the High Court of Admiralty in England. After the governors had established their power to name the vice-admiralty judges, cases of appeal formed the only tie between the two courts. The procedure of appeal was simple. The local judge determined what causes could be appealed to the High Court. After receiving security from the appellants, the judge forwarded the documents of the case to the English court. That tribunal, in turn, commanded the local court to halt all action on the case until it had been tried in England. When this had been done, and a decree issued on the appeal, the local court was directed to carry out the provisions of that decree. In prize cases the appeal went to the Commissioners of Prizes in England rather than to the High Court of Admiralty.
The local court attempted, whenever possible, to adjust matters to meet the convenience of persons involved in litigation. In 1755 Robert McCordy, the master of the sloop Ranger of Boston, wrecked his vessel at Corebanks. At his request Judge Henry McCulloch condemned the sloop and ordered a public sale so that McCordy could take the proceeds to the owners in Boston. McCulloch first ordered the sale at Edenton, but the captain of the Ranger successfully petitioned him to allow the auction to take place near Core-banks to save the expense of moving the sloop to Edenton.19
In 1755 Peter Payne, the collector of Port Roanoke, died shortly after libelling the sloop Nelly for illegal importation of foreign rum. Judge Francis Corbin allowed the owners of the sloop to enter into a bond and promise to abide by the decree of the court when it was possible to proceed in the case. In this way the owners secured the release of their vessel and were able to conduct their business during the three years which ensued before Surrogate Jasper Charlton acquitted the vessel.20 Likewise, in 1747, Samuel Scollary gave 24 pounds sterling as security when his pettiauger was seized by John Hull, the collector of Roanoke. The trial was postponed three months to allow time for evidence to be brought into the colony, and during this time Scollary had the use of his small vessel.21
The sixty cases for which evidence has been found concerning North Carolina in the years 1729-1759 fall naturally into three categories. The most numerous, twenty-three in number, were prosecutions for violations of the Navigation Acts. This percentage was much higher than in most of the other North American provinces.22 The second most numerous, were cases that might be termed ordinary mercantile cases. Under this category should be listed eleven cases of seamen’s wages, five involving wrecked and salvaged ships, a case involving charges of a pilot, and a request for an appraisement of a vessel. The third category, much smaller in number than the other two, was that of prize causes. In the years under consideration, these totalled only six. Finally, there were eight recovery cases brought in the year 1730 during the Burrington-Everard struggle.
Thus the work of the court in these years was about evenly divided between what might be called imperial cases involving violations of the Navigation Acts, and domestic cases concerning local maritime problems. It would, from this evidence, be quite incorrect to term the court a royal institution that never played a part in domestic provincial affairs.
The most turbulent years of the North Carolina vice-admiralty court were those from the time of Edmond Porter’s commission as judge in 1728 until his discharge from office in 1732. During this time the court often formed the scene for the struggle which was being waged between two factions for control of the province. Sir Richard Everard replaced George Burrington as governor of the province in 1725. The replacement was not at the request of Burrington, and once out of office he used every available means to regain his position.
When the Crown took over the province in 1729 it decided to continue all officials in office, but before the year was over, largely because of his good relations with the Duke of Newcastle, Burrington was assured of again becoming governor of North Carolina.23 The struggle for power that ensued between Everard and Burrington aligned the political figures of the colony into two camps. Judge Porter was no exception. His relations with Everard, at times, had been friendly, but perhaps foreseeing the future, he attempted to keep from alienating Burrington. While Burrington was in England, Everard used the vice-admiralty court in an attempt to ruin his enemies by bringing informations and libels for the recovery of money from earlier condemnations. Evidence of eight recovery cases from the year 1730 has survived. Five of these cases were between the governor and John Lovick, four for the recovery of the king’s third from condemnations of ships and goods, and one for the recovery of the king’s tenth from whale oil and bone. The other three cases dealt with whale oil recoveries, one each against William Smith, William Little, and David O’Sheal.24
At this time Judge Porter was willing to allow Everard the use of his court in the political battle. His support of the governor, however, soon ceased. When accusations of disloyalty to the Hanoverians were publicly levelled against Everard his followers quickly dropped away. Within a few months Burrington had secured the governorship. At first Porter was on friendly terms with the reinstated governor. He was among those listed in Burrington’s instructions as a member of the Council.25 The honeymoon was unfortunately short. Burrington’s personality and his handling of such explosive provincial problems as the disposition of lands, fee rates, rent rolls and currency exchange resulted in antagonizing Porter and most of the members of his council. Within three months of his taking office he was also in open collision with the chief justice, the attorney general, the secretary of the province, and the lower house of the legislature.26
Porter’s conduct of his court was unhappily not without blemish. He had earlier incurred the wrath of some of the men who now supported the governor by hearing cases which without any doubt lay outside the jurisdiction of his court. In 1728 even Everard had complained of Porter’s summary proceedings in the case of James Trotter v. Samuel Northey. Judge Porter allowed Trotter, who was an innkeeper, to libel Northey for a bill he had run up at the tavern. Although the debt was contracted on land, Northey was master of a vessel and for this reason alone the case was admitted in the vice-admiralty court. Northey promptly appealed to the chief justice, Christopher Gale, for a prohibition to halt the admiralty proceedings. Porter disregarded the common law court order, and jailed Northey for not paying the bill and the costs of the trial, which Northey claimed to have been fifteen times the tavern score. Northey then appealed to Governor Everard who released him and transmitted the records of the case to England with the comment that he was confident that the Board of Trade would have ...a very tender regard for the preservation of the Com: Laws and the rights and libertys of the subject and the Englishman’s Privileges of Juries.27
Burrington set out to check this jurisdictional imperialism by personally taking part in the management of the vice-admiralty court. He attended trials held by Porter and on one occasion called the judge’s attention to the fact that the court was to meet only when he agreed to allow it. Within a short time the two men had quarreled openly.28
Charles M. Andrews analysed this struggle as between the two jurisdictions [civil and common law], during which the relations between the vice-admiralty court and the Governor and Chief Justice became ... strained….29 But this explanation takes no account of the personal struggle for power which Burrington was waging; nor does it indicate that the vice-admiralty judge was also an uncooperative member of the governor’s council. As for the chief justice, he had little to lose by enhancing the power of his court at the expense of the vice-admiralty jurisdiction.
Probably the basic cause for the antagonism lay in the continuing quarrel over the disposition of lands in the province. Porter was exposing Burrington’s methods of land grabbing which he later claimed saved the Crown from losing a half-million acres of North Carolina real estate. By his opposition to filling up old obsolete blank warrants he alienated himself from his seat at the council table.30 In turn, Burrington capitalized on Porter’s unpopular activities as admiralty judge to force him from the council. On January 7, 1731, at the hour when Porter planned to try a case at the courthouse in Edenton, a group of Burrington’s men moved into the room, set up a mock judge in the chair, and held a gay revel with dancing and drinking. Porter, fearing for his life, fled the place.31
In May William Little introduced to the council a long paper containing a series of articles of complaints against Porter’s handling of his admiralty business. Here was recited in words ringing with praise for the common law courts a sordid story labelled the record of Porter’s misconduct of the court as it appeared to his political enemies.32 The council did not act upon these complaints until January, 1732. On the twentieth of that month it suspended Porter from the bench and instituted proceedings to remove him from its own ranks. This was done the following day.33 The governor and council then appointed Edmund Gale, a councilor of their camp, to the judgeship. In 1736, after Gabriel Johnston had replaced Burrington as governor, Porter regained his position as vice-admiralty judge. He acted then only three years and upon his death John Hodgson was given the position by Johnston and his council.34
After Porter’s death the vice-admiralty court never again became a subject for political attack. In the early year of the colony the lack of men qualified by training to hold many of the provincial offices made it necessary for some men to hold several positions. Thus both Edmond Porter and Edmund Gale sat on the governor’s council. John Hodgson, Porter’s successor, was an influential member of the General Assembly and had been its speaker in 1729. As time passed and more lawyers came to reside in the province, multiple office-holding became less common. After 1749 only Henry McCulloch held additional offices during his tenure as vice-admiralty judge, and his term as judge of the court was short. It is not only coincidence that the stormy days of the vice-admiralty court were those in which the principal officer also held other important governmental posts. Not only were there few protests against the court, but there were almost no appeals for the rights of jury trial or native rights of Englishmen. When the vice-admiralty judge no longer sat on the council, or otherwise engaged in political activities, quietness bordering on obscurity settled around the North Carolina court.
3 The vice-admiralty court of South Carolina was established earlier. In April, 1691, a judge and a register for such a court were appointed by Charles Hedges, judge of the High Court of Admiralty of England. William L. Saunders (ed.), Colonial Records of North Carolina (Raleigh, 1886-90), I, 491.
6 Proceedings of the Councill Concerning the Bounds Between Virginia & North Carolina Anno Dom 1699, May 2, 1699, in Saunders, Colonial Records, I, 505; Francis Nicholson to Thomas Harvy [sic], May 3, 1699, in Saunders, Colonial Records, I, 510; Edward Hill to —, March 10, 1697/8 in Microfilm Collection of Early State Records (State Historical Society of Wisconsin), North Carolina, F. 3.
9 Disputes between Virginia and North Carolina officials over admiralty jurisdiction did arise, however, in 1719 when the Blackbeard piracy case was moved to a Virginia court. Governor Spotswood to Lord Cartwright, February 14, 1719, in Saunders, Colonial Records, II, 326; Council Journals, April 3, 1719, Saunders, Colonial Records, II, 329-330; Governor Spotswood to the Lords of Trade, May 26, 1719, in Saunders, Colonial Records, II, 338-339; Samuel A. Ashe, History of North Carolina (Greensboro, 1908), I, 200-201.
13 Joseph Anderson to Samuel Hull, November 1, 1743, in Microfilm Collection of Early State Records. Henry McCulloch’s commission, dated December 6, 1754, from the High Court of Admiralty of England is printed in Saunders, Colonial Records, V, 617-621.
27 Saunders, Colonial Records, II, 757-762, 817. From this case, Porter earned the title, abominable extortioner, and an uncomplimentary comparison with Judge Jeffries by nineteenth century historians. See Hugh Williamson, The History of North Carolina (Philadelphia, 1812), II, 31; and Francis L. Hawks, History of North Carolina (Fayetteville, 1859), II, 206.
31 Narrative upon Oath of Edmond Porter Esqre relating to his Complaints against Captain Burrington..., Saunders, Colonial Records, III, 508, 511-513; George Burrington to the Duke of Newcastle, July 2, 1731, in Saunders, Colonial Records, III, 148; Microfilm Collection of Early State Records.
34 Council Journals, January 22, 1732 in Saunders, Colonial Records, III, 414; Council Journals, October 14, 1736, in Saunders, Colonial Records, IV, 223-224; Council Journals, March 6, 1739, in Saunders, Colonial Records, IV, 345.
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