Hostname: page-component-cd9895bd7-p9bg8 Total loading time: 0 Render date: 2024-12-25T08:08:39.945Z Has data issue: false hasContentIssue false
  • English
  • Français

The Struggle for Judicial Independence in Antebellum North Carolina: The Story of Two Judges

Published online by Cambridge University Press:  28 October 2011

Walter F. Pratt Jr.
Get access Rights & Permissions [Opens in a new window]

Extract

The Supreme Court of North Carolina is an anomaly among state courts in the antebellum years. In a period dominated by democratic reforms of state government, the court did not merely survive unscathed it actually increased its independence. The remarkable success of this court is largely attributable to the personal reputations and political acumen of two of its judges, Thomas Ruffin and William Gaston. Without those two men it is likely that the Supreme Court would have been abolished in a wave of democratic reforms that peaked in North Carolina with the constitutional amendments of 1835.

Type
Articles
Information
Law and History Review , Volume 4 , Issue 1 , Spring 1986 , pp. 129 - 159
Copyright
Copyright © the American Society for Legal History, Inc. 1986

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Joseph Gales, a Raleigh printer, published the proceedings of the 1835 constitutional convention in 1836 under the title Proceedings and Debates of the Convention of North-Carolina, Called to Amend the Constitution of the State. For an account of the convention see Connor, Robert D.W., ‘The Convention of 1835’, North Carolina Booklet viii (1908) 89–110Google Scholar; Counihan, Harold J., ‘The North Carolina Constitutional Convention of 1835: A Study in Jacksonian Democracy’, North Carolina Historical Review xlvi (1969) 335–64Google Scholar.

2. Green, Fletcher M., Constitutional Development in the South Atlantic States, 1776-1860 (Chapel Hill, 1930) 301Google Scholar; see also Ellis, Richard E., The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York, 1971) 7Google Scholar.

3. See Friedman, Lawrence M., A History of American Law (New York, 1973) 122–24Google Scholar; Fletcher M. Green, Constitutional Development, supra note 2; Wood, Gordon S., The Creation of the American Republic, 1776-1787 (Chapel Hill, 1969)Google Scholar.

4. Hurst, J. Willard, The Growth of American Law: The Law Makers (Boston, 1950) 101Google Scholar.

5. Cf. Surrency, Erwin C., ‘The Development of the Appellate Function: The Pennsylvania Experience’, American Journal of Legal History 20 (1976) 173–91CrossRefGoogle Scholar.

6. See Carpenter, William S., Judicial Tenure in the United States (New Haven, 1918) 168–84Google Scholar; Lawrence M. Friedman, History, supra note 3 at 111; Haynes, Evan, The Selection and Tenure of Judges (Newark, 1944) 80–135Google Scholar; J. Willard Hurst, Growth of American Law, supra note 4 at 101-02.

7. Cleveland, Len G., ‘The Establishment of the Georgia Supreme Court’, 9 Georgia State Bar Journal 417, 417–19 (1973)Google Scholar; see also Almand, Bond, ‘The Supreme Court of Georgia: An Account of Its Delayed Birth’, 6 Georgia State Bar Journal 95, 98 (1943)Google Scholar.

8. Brantly, William H. Jr., ‘Law and Courts in Pioneer Alabama’, 6 Alabama Lawyer 390, 395–98 (1945)Google Scholar; Gardner, Lucien D., ‘The Circuit Judges of Alabama’, 1 Alabama Lawyer 280, 288–89 (1940)Google Scholar.

9. Senese, Donald, ‘Building the Pyramid: The Growth and Development of the State Court System in Antebellum South Carolina, 1800-1860’, 24 South Carolina Law Review 357, 367–69 (1972)Google Scholar. A similar extreme reaction had occurred in 1823 in Kentucky, where the state legislature abolished the court of appeals and created a rival court in retaliation for the judges' striking down a debtor relief law. See Lawrence M. Friedman, History, supra note 3 at 115.

10. Selsam, J. Paul, ‘A History of Judicial Tenure in Pennsylvania’, 38 Dickinson Law Review 168, 176 (1934)Google Scholar.

11. See ibid. at 176-79.

12. Fletcher M. Green, Constitutional Development, supra note 2 at 231-32. On sectionalism see Blackmun, Ora, Western North Carolina: Its Mountains and Its People to 1880 (Boone, N.C., 1977) 130–33Google Scholar.

13. N.C. Coll., Broadsides, Charles Phelps, To the Freemen of Wilkes County, July 2, 1824.

14. See Proceedings, supra note 1 at 422-23.

15. North Carolina Constitution of 1776, §23.

16. Senate Journal, Dec. 2, 1819, 41, quoted in Raleigh Register, Nov. 26, 1819, p. 2, col. 5.

17. Raleigh Register, Dec. 1, 1819, p. 1, col. 3.

18. Ibid. at col. 4.

19. The third member of the court was the considerably less distinguished Joseph J. Daniel. Ruffin disliked him, see SHC, William Gaston Papers, Ruffin to Gaston, Aug. 21, 1833. And Gaston had despaired when he learned of Daniel‘s appointment to the court, see ibid., Gaston to Hannah Manly, Dec. 31, 1832. See also Winston, Robert W., ‘A Century of Law in North Carolina’, 176 N.C. 763, 789 (1919Google Scholar) (Daniel described as being ‘well-furnished’).

20. 15 N.C. 1 (1834). Hoke was reversed in Mial v. Ellington, 134 N.C. 131 (1903)Google Scholar.

21. This was common in many state constitutions. See Fletcher M. Green, Constitutional Development, supra note 2 at 91-95. For discussions of the North Carolina Constitution see Connor, Robert D.W., ‘Ante-Bellum Builders of North Carolina’, North Carolina State Normal & Industrial College Historical Publications iii (1914) 3, 22–25Google Scholar; Nash, Frank, ‘The North Carolina Constitution of 1776 and its Makers’, James Sprunt Historical Publications xi, no. 2 (1912) 7–23Google Scholar.

22. North Carolina Constitution of 1776, §13. The uncertainty inherent in that provision is emphasized by subsequent proposals for amendment which would have added ‘and superior’ to make the phrase read: ‘the General Assembly shall … appoint Judges of the Supreme and Superior Courts of law and Equity’. Raleigh Register, Nov. 18, 1823, p. 2, col. 1.

23. North Carolina Constitution of 1776, §21.

24. See Fletcher M. Green, Constitutional Development, supra note 2 at 91 (court system left to statutory enactment).

25. Act of 1777, ch. 2, §2, 1821 N.C. Laws 282, 281, ch. 115, §2. The legislature added a seventh circuit in 1787. Act of 1787, ch. 32, 1821 N.C. Laws 582, ch. 281.

26. Act of 1806, ch. 2, 1821 N.C. Laws 1050, ch. 693.

27. Act of 1799, 1821 N.C. Laws 887, ch. 520.

28. Act of 1801, 1821 N.C. Laws 941, ch. 576.

29. Act of 1805, ch. 1, 1821 N.C. Laws 1039, ch. 674. See generally Boyd, William K., History of North Carolina: The Federal Period, 1783-1860, 2 vols. (Chicago, 1919) ii, 66–70Google Scholar; Johnson, Guion G., Ante-Bellum North Carolina (Chapel Hill, 1937) 613–43Google Scholar.

30. Act of 1818, ch. 1, 1821 N.C. Laws 1433, ch. 962. For the text of the committee report recommending the supreme court see Raleigh Register, Dec. 4, 1818, p. 1, col. 1. See also N.C. Coll., Broadsides, A Letter from a Member of the General Assembly to One of his Constituents Respecting the Change in the Judiciary System, together with the Substance of Mr. Mebane's Speech on the Same Subject, 1818. The bill passed each house with a comfortable, but not overwhelming majority. See Raleigh Register, Dec. 11, 1818, p. 2, col. 5 (71-53 vote in House of Commons); ibid., Dec. 18, 1818, p. 2, col. 3 (34-24 vote in Senate). A supplemental act continued the practice of the old Conference Court by authorizing the judges themselves to select one of their number as chief justice. Act of 1818, ch. 2, 1821 N.C. Laws 1435, ch. 963.

31. Raleigh Register, Nov. 20, 1818, p. 2 col. 2; Raleigh Star, Nov. 20, 1818, p. 1, col.4.

32. Ibid. (Both newspapers printed the governor's address.)

33. Raleigh Register, Dec. 11, 1818, p. 2, col. 3 (debate on motion to recommit bill to permit discussion of salary); ibid., Dec. 18, 1818, p. 2, col. 3. See also The Star (Raleigh), Jan. 1, 1819, p. 1, col. 1 (report of debate on salary). The next year the Senate passed, and the House joined, a resolution calling for an inquiry into whether the salaries were ‘more than adequate to [the judges'] services’. Senate Journal, Nov. 27, 1819, 28; ibid., Nov. 29, 1819, 31. A bill to reduce the salaries failed by a vote of 34-26, with eastern delegates voting 23-13 against the bill and western delegates voting 13-11 in favor. See ibid., Dec. 23, 1819, 98. The bill had already passed the House. House Journal, Dec. 22, 1819, 92. The next year a majority of delegates from both east and west voted against reducing salaries. See Senate Journal, Dec. 4, 1820, 26.

34. Act of 1817, ch. 25, 1821 N.C. Laws 1415, ch. 956 (increasing salary by $400). See also Act of 1793, 1821 N.C. Laws 730, ch. 403 (list of salaries ‘corrected in 1820’; Governor's salary listed as $2000). But see Clark, Walter, ‘History of the Supreme Court of North Carolina’, 177 N.C. 615, 620 (1919)Google Scholar (erroneously reports that the governor's salary was $1900).

35. See de R. Hamilton, Joseph G., ed., The Papers of Thomas Ruffin, 2 vols. (Raleigh, N.C, 1918) i, 465Google Scholar n.7. In a letter to David Swain, Ruffin reported that his salary plus his legal fees yielded him $4000 annually. N.C. Coll., Epistolary Letters of David Swain, vol. 3, Ruffin to Swain, Oct. 15, 1829 (a typescript is in the SHC). The act which created the bank authorized the stockholders to set the compensation for the president. Act of 1810, ch. 5, §9, 1821 N.C. Laws 1171, 1176, ch. 788, §9.

36. Connor, Robert D.W., North Carolina: Rebuilding an Ancient Commonwealth, 1584-1925, 2 vols. (Chicago, 1929) i, 466Google Scholar (annual state expenditures ranged between $81,000 and $224,000). As indicated in note 33 supra, some legislators complained about the salary from the start. Other efforts to reduce the salary came later. See, e.g., Western Carolinian (Salisbury), Jan. 18, 1825, p. 3, col. 3 (bill to reduce salaries); Greensborough Patriot, Dec. 5, 1829, p. 2, col. 3 (bill to limit salaries to not more than $2,000); ibid., Jan. 12, 1831, p. 2, col. 1 (bill to reduce salaries to $2,000). The salary remained fixed at $2,500 at least through 1889, no doubt in part the result of complaints that the salary was too high. See Battle, Kemp P., ‘An Address on the History of the Supreme Court’, 1 N.C. 834, 858 (1889Google Scholar; rev. ed. 1937).

37. Ora Blackmun, Western North Carolina, supra note 12, at 196-205, 261-62, 307; Wager, Paul W., County Government and Administration in North Carolina (Chapel Hill, 1928) 16–18Google Scholar; Williams, Max R., ‘The Foundations of the Whig Party in North Carolina: A Synthesis and a Modest Proposal’, North Carolina Historical Review xlvii (1970) 115, 115Google Scholar; Cuthrell, Mabel, ‘The County Court System of North Carolina, 1776-1835, With Special Reference to Rowan County’, (unpublished M.A. thesis, Duke University, 1942) 58–59Google Scholar; see also discussion at 140, with accompanying note 58. These disputes resonated with many of the same themes that had characterized the Regulator movement over fifty years earlier. For examples of recent scholarship on the Regulators see Whittenburg, James P., ‘Planters, Merchants, and Lawyers: Social Change and the Origins of the North Carolina Regulation’, William and Mary Quarterly (3d ser.) xxxiv (1977) 215–238CrossRefGoogle Scholar; Kay, Marvin L.M., ‘The Institutional Background of the Regulation in Colonial North Carolina’ (unpublished Ph.D. dissertation, University of Minnesota 1962)Google Scholar.

38. The areas were computed from the statistics in Powell, William S., The North Carolina Gazetteer (Chapel Hill, 1968)Google Scholar. The population statistics are collected in Cheney, John L. Jr., ed., North Carolina Government, 1585-1979 (Raleigh, N.C., 1981)Google Scholar.

39. State Archives, Allen, T. & Davidson, Theodore F. Papers, ‘Reminiscences and Traditions of North Carolina’, address by Theodore F. Davidson to the Pen and Plate Club of Asheville, North Carolina, Nov. 1928Google Scholar.

40. State Archives, D.S. Reid Papers, T. Baker, To the Freemen of the Counties of Burke and Yancy, Jan. 21, 1837.

41. Duke RBR., Pamphlets, Debate on the Convention Question in the House of Commons, Jan. 14, 1832, 32 (pamphlet published by Joseph Gales, Raleigh, N.C., 1832). Cf. Western Carolinian (Salisbury), Dec. 26, 1826, p. 2, col. 4 (editorial complaining of delays in courts of ‘many of the large counties of this state’).

42. N.C. Coll., Broadsides, J. Allison, To the Freemen of Orange County, Feb. 12, 1832.

43. For examples of these efforts see Raleigh Register, Nov. 24, 1820, p. 3, col. 1 (Governor's message to legislature); ibid., Dec. 9, 1823, p. 3, col. 2 (debate on proposals to, among others, allow the governor to call extra courts in counties with unusual congestion); ibid., Dec. 12, 1823, p. 2, col. 1.

44. Act of 1777, ch. 2, §34, 1821 N.C. Laws 297, ch. 115, §34 (‘All jury causes shall be first tried’.) Cf. The Star (Raleigh), Oct. 23, 1818Google Scholar, at p. 3, col. 1 (letter from ‘A Western Farmer of North Carolina’ complaining that the combination of courts of law and equity was one case of delay); ibid., Nov. 13, 1818, p. 3, col. 1 (similar complaint in another letter); The Patriot (Greensborough), Feb. 24, 1827, p. 3, col. 1 (Guilford's legislative delegation reports on failure of bill to create equity courts; remarks on need for relief but west split over best means). A 1792 statute made it illegal for a court to hear other than equity cases during the last three days of its term. Act of 1792, ch. 8. The statute is not included in the 1821 compilation of laws in force. See 1821 N.C. Laws 686-87.

45. Act of 1818, ch. 1, §5, 1821 N.C. Laws 1434, ch. 962, §5.

46. Report of Select Joint Committee on the Judiciary, Senate Journal 113, 115 (1819). Cf. The Star (Raleigh), Dec. 11, 1818Google Scholar, p. 3, col. 1 (with the creation of the supreme court the state ‘judicial system will now inspire a confidence and respect which the utmost industry and talent could not before give to it’).

47. See Western Carolinian (Salisbury), Feb. 13, 1827Google Scholar, p. 1, col. 1; The Patriot (Greensborough), Feb. 3, 1827Google Scholar, p. 1, col. 4 (complaint of Mr. Morehead from Guilford County that civil and criminal cases took much of the courts' time, to the exclusion of equity cases thereby requiring a transfer to the supreme court with greater cost).

48. Cf. Boyd, William K., History, supra note 29 at ii, 70Google Scholar; Henderson, Archibald, North Carolina: The Old North State and the New, 2 vols. (Chicago, 1941) ii, 31Google Scholar.

49. See, e.g., Western Carolinian (Salisbury), Dec. 13, 1825Google Scholar, p. 2, col. 3 (resolution to investigate establishment of separate equity courts to be manned by justices of the supreme court).

50. Tarborough Free Press, Dec. 6, 1833, p. 2, col. 2. (bill would add an additional circuit in the west, abolish the supreme court, and have the circuit judges sit in review of their own judgments, with a salary of $2000).

51. SHC, Bartlett Yancey Papers, Gaston to Yancey, July 15, 1821.

52. SHC, William Gaston Papers, Yancey to Gaston, Sept. 25, 1821 (text of letter refers to its being in response to Gaston's letter of July 1821). In 1817 Yancey had chaired a legislative committee which unsuccessfully proposed a separate supreme court. Many of the thoughts in this letter are also found in the committee report. See N.C. Coll., Report (n.d.). (The date is suggested in Guion G. Johnson, Ante-Bellum North Carolina, supra note 29 at 626.) See also Raleigh Register (semi-weekly), Feb. 6, 1827, p. 1, col. 1 (to require judges to sit on equity courts is the ‘overthrow of everything deserving the name of Supreme Court in the State’).

53. Act of 1829, ch. 5, 1837 N.C. Rev. Stat. 564, ch. 109. For an account of the remarkably similar ‘democratic impulse’ in South Carolina see Ely, James W. Jr., ‘“That no office whatever be held during life or good behavior:” Judicial Impeachments and the Struggle for Democracy in South Carolina’, 30 Vanderbilt Law Review 167–209 (1977)Google Scholar.

54. New Bern Spectator, Dec. 8, 1832, p. 3, col. 2. The controversy over the clerks is understandable in light of the fact that along with justices of the peace and sheriffs, the clerks were the most influential county officials. Paul W. Wager, County Government, supra note 37 at 222.

55. See Hoffman, William S., Andrew Jackson and North Carolina Politics (Chapel Hill, 1958) 28 (vol. 40Google Scholar of the James Sprunt Studies in History and Political Science).

56. New Bern Spectator, Dec. 8, 1832, p. 3, col. 2. The statement is difficult to relate to statute law. The clerks held office during good behavior under an act of 1806 which empowered the judges to appoint the clerks, who would serve ‘during good behaviour’. The act of 1806, ch. 1, §10, 1821 N.C. Laws 1050, 1053-54, ch. 193, §10, provided for clerks of the newly created superior courts for each county. The act further provided that the clerks would be ‘subject to the same rules, regulations, and penalties as the clerks of the superior courts … heretofore established by law’. Ibid. The earlier act, passed in 1777, provided that the clerks should ‘hold their offices during their good behaviour therein’. Act of 1777, ch. 2, §4, 1821 N.C. Laws 281, 282, ch. 115, §4. (Appointments under that act proved to be a source of dispute; the legislature amended it in 1794 to require that appointments be made by a majority of the judges. Act of 1794, ch. 23, 1821 N.C. Laws 763, ch. 423.) The only basis for a turnover of clerks seems to come from an 1822 statute which provided: ‘That from and after the passing of this act, that the clerks of the supreme court and all …; clerks of the superior courts …; to be appointed under the laws of this state, shall be appointed for the term of four years.’ Act of 1822, ch. 19, §1, 1827 N.C. Rev. Laws 72, 72, ch. 1147, §1. The prospective nature of the statute probably explains the lack of any challenge to its constitutionality. Cf. Raleigh Register, Jan. 3, 1823, p. 2, col. 2 (clerks ‘could hereafter be appointed for four years where vacancies occur’); The Star (Raleigh), Jan. 3, 1823, p. 1, col. 2 (clerks ‘are hereafter to be appointed for four years where vacancies occur’). Yet the second section provided that sitting clerks could be removed by the judges of their courts, a manifest change in the tenure provisions of the earlier acts. The rapid turnover described in the text may have been the result of those removal provisions.

57. Greensborough Patriot, Dec. 5, 1832, p. 3, col. 2.

58. New Bern Spectator, Dec. 21, 1832, p. 3, col. 2. The Greensborough Patriot likewise had no doubt that the law effectively ‘declare[d] all the offices absolutely vacant’. Greensborough Patriot, Dec. 12, 1832, p. 3, col. 2.

59. New Bern Spectator, Dec. 8, 1832, p. 3, col. 2. The South Carolina legislature passed a similar law but amended it to exempt incumbents. James W. Ely, Jr., ‘Judicial Impeachments’, supra note 53 at 205-06.

60. Act of 1832, ch. 2. See North Carolina Journal (Fayetteville), Dec. 19, 1832Google Scholar, p. 1, col. 5. See also New Bern Spectator, Dec. 21, 1832, p. 3, col. 2.

61. James Graham to William A. Graham, Feb. 7, 1833, de R. Hamilton, Joseph G., ed., The Papers of William Alexander Graham, 2 vols. (Raleigh, N.C., 1957) i, 250, 252Google Scholar.

62. Sherrill, William L., Annals of Lincoln County North Carolina (Charlotte, 1937) 107Google Scholar; Nixon, Alfred, ‘The History of Lincoln County’, North Carolina Booklet ix (1910) 111, 138–39Google Scholar.

63. Henderson may have been one of the few remaining clerks serving during good behavior. The other clerks may have served under the provision of later acts. For a discussion of tenure of clerks see note 56 supra. The surviving records from Lincoln County do not provide evidence of Henderson's service before 1829. Thereafter, however, the records contain the bond that he filed each year from 1829 to 1835. See State Archives, Register of Official Bonds, Lincoln County. No minute docket for the superior court of Lincoln County exists for the years of Henderson's service before 1816. During the years 1816 to 1825 there are no notations concerning Henderson that would suggest that he was reappointed under any statute. There is, though, a reference to a deputy clerk who ‘came into open court & qualified according to law’. State Archives, Minute Docket, Superior Court of Lincoln County, Fall Term 1833, 163. That entry, and the absence of any similar entry for Henderson, suggests that he continued to serve under his initial qualification in 1807.

64. Hoke received a considerable majority, winning by better than a two-to-one vote over the only other candidate. State Archives, Election Returns for 1833, Lincoln County.

65. Histories of Lincoln County note the dispute between Henderson and Hoke; but no one explains the origin of the dispute. E.g., William L. Sherrill, Annals, supra note 62 at 107; Alfred Nixon, ‘History’, supra note 62 at 111, 138-39.

66. William L. Sherrill, Annals, supra note 62 at 130.

67. Guion G. Johnson, Ante-Bellum North Carolina, supra note 29 at 32-33.

68. See William L. Sherrill, Annals, supra note 62 at 111, 129-30; Alfred Nixon, ‘History’, supra note 62 at 111, 138-39.

69. See Hoke v. Henderson, 14 N.C. 12 (1831).

70. See State Archives, Minute Docket, Superior Court of Lincoln County, Fall Term 1833, 174-75. There is no reference to any appearance by attorneys for either side. The minute entry of Judge Norwood's disposition contains no reference to precedent, or other authority. There is no copy of a written opinion by Judge Norwood.

71. In 1823, for example, a bill to reduce the salaries passed the House by a vote of 65-37. House Journal, Dec. 30, 1823, 227-28. The Senate rejected the bill by a vote of 30-20. Senate Journal, Dec. 31, 1823, 105. Ten years later, both the Senate and the House rejected bills to reduce the salaries of judges. Senate Journal, Dec. 19, 1833, 65 (vote 38-23); House Journal, Dec. 10, 1833, 175-76 (vote 79-51).

72. de R. Hamilton, Joseph G., ed., Ruffin Papers, supra note 35 at i, 461Google Scholar.

73. Cf. ibid. at 470-71, John M. Dick to Ruffin, Feb. 12, 1829 (refers to conversation with Ruffin in November 1828 when Ruffin expressed his preference for the court seat rather than a post at the state bank); Peele, William J., Lives of Distinguished North Carolinians (Raleigh, 1898) 291Google Scholar (Ruffin declined appointment to U.S. Senate in 1829 in preference to a legal career).

74. Joseph, G.R. Hamilton, de, ed., Ruffin Papers, supra note 35 at i, 447, Browne to Ruffin, Aug. 7, 1828Google Scholar.

75. See, e.g., ibid. at 456, 457, Frederick Nash to Ruffin, Nov. 22, 1828; ibid. at 469, Patrick Henry Winston to Ruffin, Feb. 10, 1829; ibid. at 482, 483, John L. Henderson to Ruffin, Mar. 6, 1829.

76. E.g., ibid. at 467, John L. Henderson to Ruffin, Jan. 30, 1829.

77. Section 20 of the 1776 state constitution authorized the governor to make interim appointments, with the advice of the council.

78. See Raleigh Register, Nov. 26, 1829, p. 3, col. 1 (Ruffin elected on fourth ballot).

79. See de R. Hamilton, Joseph G., ed., Ruffin Papers, supra note 35 at i, 470–71Google Scholar, John M. Dick to Ruffin, Feb. 12, 1829; ibid. at 471-72, Frederick Nash to Ruffin, Feb. 12, 1829; ibid. at 482-83, John L. Henderson to Ruffin, Mar. 6, 1829; ibid. at 490-91, David F. Caldwell to Ruffin, Mar. 30, 1829; ibid. at 496, Emmanuel Shober to Ruffin, Apr. 24, 1829; ibid., Andrew Joyner to Ruffin, Apr. 25, 1829.

80. Ashe, Samuel A'Court, History of North Carolina, 2 vols. (Greensboro, N.C., 1925) ii, 322Google Scholar.

81. de R. Hamilton, Joseph G., ed., Ruffin Papers, supra note 35 at i, 496, Andrew Joyner to Ruffin, Apr. 25, 1829Google Scholar.

82. Cf. Henderson, Archibald, North Carolina, supra note 48 at ii, 35Google Scholar (‘[T]he death of Chief Justice Henderson in 1833 removed one of the main props of a court which had never been entirely popular since it was established’).

83. North Carolina Journal, Dec. 19, 1832, p. 3, col. 4.

84. See New Bern Spectator, Dec. 21, 1832, p. 3 col. 2 (bill reported in the Senate; motion defeated which would have postponed the bill indefinitely).

85. Cf. Raleigh Register, Jan. 4, 1833, p. 2, col. 5 (bill passed by Senate).

86. New Bern Spectator, Jan. 4, 1833, p. 3, col. 3 (emphasis in original).

87. Raleigh Register, Jan. 18, 1833, p. 2, col. 1. Cf. SHC, William Gaston Papers, Gaston to his daughter Hannah Manly, Dec. 31, 1832 (commenting upon the doubt that the General Assembly would fill the vacancy caused by Hall's resignation and deploring the likely passage of the bill to reduce the judges’ salaries).

88. SHC, William Gaston Papers, Gaston to Hannah Manly, Dec. 31, 1831.

89. Raleigh Register, Jan. 11, 1833, p. 2, col. 6.

90. Along with the late Judge Taylor, Hall and Henderson were the longest serving judges of the nineteenth century. See John L. Cheney, Jr., ed., North Carolina Government, 1585-1979, supra note 38 at 360-61, 575-76.

91. SHC, William Gaston Papers, Devereux to Gaston, Aug. 15, 1833; see also ibid., Devereux to Gaston, Aug. 20, 1833; ibid., Devereux to Gaston, Aug. 21, 1833.

92. Ibid., Devereux to Gaston, Aug. 21, 1833.

93. Ibid., Swain to Gaston, Aug. 15, 1833. Swain repeated his prediction in another letter less than two weeks later. Ibid., Swain to Gaston, Aug. 27, 1833. See also ibid., G.E. Badger and T.P. Devereux to Gaston, Sept. 3, 1833. On Swain see Wallace, Carolyn A., ‘David Lowry Swain, The First Whig Governor of North Carolina’, in Sitterson, Joseph C., ed., Studies in Southern History (Chapel Hill, 1957) 62–81Google Scholar (vol. 39 of the James Sprunt Studies in History and Political Science); Daniel, Carolyn A., ‘David Lowry Swain, 1801-1835’ (unpublished Ph.D. dissertation, University of North Carolina at Chapel Hill, 1955)Google Scholar.

94. SHC, William Gaston Papers, Ruffin to Gaston, Aug. 21, 1833.

95. Ibid., Ruffin to Gaston, Aug. 21, 1833 (emphasis in original). Ruffin's profession of indifference to the salary may have resulted from his ownership of several profitable plantations. See Lefler, Hugh T., North Carolina History Told by Contemporaries (Chapel Hill, 1934) 257Google Scholar.

96. SHC, William Gaston Papers, Gaston to Robert Donaldson, Aug. 17, 1833 (reports that his debts amounted to $8,000).

97. Ibid., Gaston to Ruffin, Aug. 25, 1833.

98. Ibid., Gaston to Devereux, Aug. 26, 1833. See also ibid., Gaston to Devereux, Aug. 19, 1833.

99. Ibid., Gaston to Devereux, Sept. 9, 1833. For an account of the campaign to get Gaston to serve see Schauinger, Joseph H., William Gaston, Carolinian (Milwaukee, 1949) 158–59Google Scholar.

100. SHC, William Gaston Papers, David Swain to Gaston, Nov. 8, 1833; ibid., George E. Badger to Gaston, Nov. 14, 1833. Section 32 of the North Carolina Constitution of 1776 prohibited any person from holding state office ‘who shall deny the being of God, or the truth of the protestant religion, or the divine authority either of the old or new testament’. For correspondence concerning Gaston's eligibility to hold office see SHC, William Gaston Papers, Ruffin to Gaston, May 23, 1832; ibid., Gaston to T.P. Devereux, Aug. 18, 1833, (copy reprinted in de R. Hamilton, Joseph G., ed., Graham Papers, supra note 61 at i, 266–68)Google Scholar; SHC, William Gaston Papers, T.P. Devereux to Gaston, Nov. 14, 1833. The question of Gaston's religion remained an issue, at least until the constitutional amendments of 1835, one of which changed the word ‘protestant’ to ‘Christian’. See SHC, William Gaston Papers, Gaston to William A. Graham, Nov. 12, 1834, reprinted in de R. Hamilton, Joseph G., ed., Graham Papers, supra note 61 at i, 326–30Google Scholar (for Graham's response see ibid. at 365-66); SHC, William Gaston Papers, Joseph Hopkinson to Gaston, Dec. 28, 1834 (reporting rumor that Gaston was to be removed from office); ibid., Gaston to Joseph Hopkinson, Jan. 13, 1835 (photocopy of original in the Genealogical Society of Pennsylvania); ibid., Gaston to Cornelius C. Baldwin, Dec. 29, 1835 (explaining Gaston's views on the Catholic issue and denying rumor that he had gone to Baltimore in 1833 to seek permission from the Bishop there to join the court). For a general discussion of Catholics in North Carolina at the time see Worsley, Stephen C., ‘Catholicism in Antebellum North Carolina’, North Carolina Historical Review lx (1983) 399–430Google Scholar.

101. New Bern Spectator, Dec. 6, 1833, p. 3, col. 2. Raleigh Register, Dec. 3, 1833, p. 3, col. 2.

102. Senate Journal, Dec. 19, 1833, 65 (38-23 vote to indefinitely postpone bill to regulate salaries); House Journal, Dec. 7, 1833, 172 (102-23 vote to indefinitely postpone bill to ‘alter and amend’ judicial system); ibid., Dec. 10, 1833, 175-76 (79-51 vote to postpone indefinitely bill to reduce salaries); see New Bern Spectator, Dec. 6, 1833, p. 3, col. 2 (defeat predicted); ibid., Dec. 20, 1833, p. 3, col. 2 (reports defeat of bills to destroy the court); Raleigh Register, Dec. 10, 1833, p. 3, cols. 2, 5; ibid., Dec. 24, 1833, p. 3, col. 1. Earlier in the session the House of Commons had ‘promptly rejected without debate’ a motion directing its judiciary committee to investigate the expedience of repealing the act that established the supreme court. New Bern Spectator, Nov. 29, 1833, p. 3, col. 2; ibid., Dec. 6, 1833, p. 3, col. 2.

103. New Bern Spectator, Dec. 20, 1833, p. 3, col. 2.

104. Tarborough Free Press, Dec. 13, 1833, p. 2, col. 3. The correspondent for that newspaper had been decidedly optimistic about the fate of the court in the face of the bills that session. See ibid., Nov. 29, 1833, p. 2, col. 4 (Commons bill to reduce salaries ‘cannot pass’).

105. Fayetteville Observer, Dec. 17, 1833, p. 3, col. 1. Cf. de R. Hamilton, Joseph G., ed., Graham Papers, supra note 61 at i, 271, 273Google Scholar, Hugh Waddell to William A. Graham, Dec. 15, 1833 (comment that the legislature had elected Gaston and Swain [as governor] and saved the supreme court; Waddell was a prominent Whig). The impact of Gaston is further evidenced by the fact that upon his death in 1846 there was renewed discussion of eliminating the supreme court. SHC, Ruffin-Roulhac-Hamilton Papers, Catherine Roulhac [Ruffin's daughter] to Joseph Roulhac, Dec. 5, 1846.

106. See text at notes 32 & 56 supra.

107. Taft v. Adams, 3 Gray (Mass.) 126, 130 (1855). Judge Thomas Cooley of Michigan expressed similar views in City of Wyandotte v. Drennan, 46 Mich. 478, 480-81 (1881).

108. Unfortunately, no records of the case or of the briefs of counsel appear to have survived. The records of the Supreme Court of North Carolina are now housed at the State Archives in Raleigh; but there is no file for the decision. There is a copy of Judge Norwood's minute decision but it is misfiled, with the record of a different case between the same parties, Hoke v. Henderson, 14 N.C. 12 (1831), State Archives, Supreme Court of North Carolina, Records of Original Cases, file 2282. The other case concerns only a land dispute, which had begun some years earlier. I have not been able to locate the record in any other place. I have looked in the papers of Judges Ruffin and Gaston and in the papers of the attorneys involved, Badger, Devereux, and Iredell.

109. This is the point for which the case is know, particularly through the writing of Professor Corwin. See Corwin, Edward S., Liberty Against Government (Baton Rouge, 1948) 72Google Scholar; Corwin, Edward S., ‘The Doctrine of Due Process of Law Before the Civil War’, 24 Harvard Law Review 366, 383–84 (1911)Google Scholar. See also Hyman, Harold M. & Wiecek, William C., Equal Justice Under Law: Constitutional Developments 1835-1875 (New York, 1982) 23Google Scholar. As this article argues, however, the decision is far more significant as a political fact than for the unexceptional resort to the concept ‘law of the land’.

110. A near contemporary decision noted that Hoke ‘stands out in strong contrast … to every published decision and opinion on the subject which we have seen’. Conner v. Mayor of New York, 2 Sandf. 355, 373 (N.Y. Super. Ct. 1849), aff'd, 1 Seld. 285 (NY. 1851). Later comments were no less definite. See Annotation, American Law Reports (Rochester, 1919) iv, 205, 205Google Scholar; Annotation, American Decisions (San Francisco, 1886) xxv, 677, 701Google Scholar.

111. See text at notes 58 & 59 supra; Greensborough Patriot, Dec. 12, 1832, p. 3, col. 2.

112. 15 N.C. at 4-6.

113. 5 U.S. (1 Cranch) 137 (1803).

114. 15 N.C. at 6.

115. Ibid.

116. Ibid. at 7.

117. For examples see cases cited in notes 139, 144, & 165 infra.

118. 15 N.C. at 7.

119. Ibid. at 8-9.

120. Ibid. at 10.

121. Ibid. at 8.

122. Ibid.

123. Ibid. at 11.

124. Ibid. at 12.

125. N.C. Coll., Report and Counter Report of the Joint Select Committee on the Subject of Convention 11 (Legislative Document No. 10, 1832, Raleigh) (minority report).

126. North Carolina Constitution of 1776, Declaration of Rights §10, quoted in 15 N.C. at 12. The declaration of rights is part of the constitution even though it precedes the text of that document. North Carolina Constitution of 1776, §44.

127. North Carolina Constitution of 1776, Declaration of Rights §4, quoted in 15 N.C. at 12. For a discussion of the most recent decisions on this point see Orth, John V., ‘“Forever Separate and Distinct”: Separation of Powers in North Carolina’, 62 North Carolina Law Review 1–28 (1984)Google Scholar.

128. 15 N.C. at 13.

129. Ibid.

130. Ibid. at 15.

131. John V. Orth, ‘Separation of Powers’, supra note 127 at 5-6 and n. 28.

132. One need only look at the session laws for any year in the early nineteenth century to find examples. The constitutional amendments of 1835 sharply restricted the legislature's power to enact private laws.

133. The clerks of the county courts held office ‘during good behaviour’ by virtue of the same 1777 statute which established the tenure of the superior court clerks. Act of 1777, ch. 2, §60, 1821 N.C. Laws 281, 306, ch. 115, §60.

134. Act of 1786, ch. 14, §12, 1821 N.C. Laws 544, 548, ch. 253, §11 [sic] (the 1821 compilation omits section 9 of the original act).

135. Act of 1800, ch. 23, 1821 N.C. Laws 928, ch. 563.

136. See note 56 supra.

137. 15 N.C. at 15-16. Ruffin did not, however, refer to section 14 of the declaration of rights which provided: ‘That in all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.’ North Carolina Constitution of 1776, Declaration of Rights §14.

138. 15 N.C. at 16.

139. Cf. Conner v. Mayor of New York, 2 Sand. 355, 374 (N.Y. Super. Ct. 1849) (‘It appears to us, with much respect for the learned tribunal which [decided Hoke], that it was unduly influenced by the common law rule derived from prescriptive offices, and operating in a government whose genius and spirit are perhaps in no respect more unlike ours than in this very subject, the source and nature of the rights and interest acquired by public officers’.), aff'd, 1 Seld. 285 (1851).

140. 15 N.C. at 17.

141. Blackstone, William, Commentaries on the Laws of England ii, 36Google Scholar.

142. St. Tucker, George, Blackstone's Commentaries, 4 vols., (Philadelphia, 1803) ii, 36Google Scholar n. Ruffin did not mention the North Carolina declaration of rights which provided ‘[t]hat no hereditary emoluments, privileges or honours, ought to be granted or conferred in this state’. North Carolina Constitution of 1776, Declaration of Rights §22.

143. Kent, James, Commentaries on American law, 4 vols. (1st ed. New York, 1828) iii, 362Google Scholar; ibid. (2d ed. New York, 1832) iii, 454.

144. State ex rel. Mayor of Savannah v. Dews, R.M. Charlt. 397, 400 (Ga. 1835). For a long discussion of the differences between England and the United States on this point see ibid. at 400-05.

145. People v. Morris, 12 Wend. 325, 331-32 (N.Y. Super. Ct. 1835).

146. 15 N.C. at 18.

147. Ibid.

148. Ibid.

149. ibid. at 18-19.

150. See Raleigh Register, Dec. 1, 1819, p. 1, col. 4; Senate Journal, 1819, 116; Raleigh Register, Nov. 26, 1829, p. 3, col. 2.

151. United States Constitution, art. 1, §10.

152. See Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 627-29 (1819). Some years later the Supreme Court held that no contract existed between a state and its officers. Butler v. Pennsylvania, 51 U.S. (10 How.) 402 (1851).

153. 15 N.C. at 20.

154. Ibid.

155. Ibid.

156. ibid. at 21. Contra, e.g., People ex rel. McMinn v. Haskell, 5 Cal. 357, 359 (1855); Attorney General v. Jochim, 99 Mich. 358, 368 (1894)); People ex rel. Robertson v. Van Gaskin, 5 Mont. 352, 363 (1885)); Foster v. Jones, 29 Va. 642, 644 (1884).

157. 15 N.C. at 21.

158. Ibid. at 23.

159. Ibid.

160. Ibid.

161. Ibid. at 26.

162. Ibid. at 26-27.

163. Ibid. at 27.

164. Ibid.

165. Ibid.

166. 5 U.S. (1 Cranch) 162.

167. 15 N.C. at 28-29.

168. Ibid. at 29. Ruffin's comment is very similar to Gaston's quoted in text at note 98 supra.

169. 15 N.C. at 30-31.