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Day 37 of the Convention

Tuesday, February 25, 1868 

The Convention was called to order on Tuesday at 10 o’clock, Mr. Pres. Cowles in the Chair.

Further consideration of the suffrage question was postponed to Thursday 11 o’clock. Instead, the report of the committee on judiciary was read.

In keeping the decisions made a in previously (see February 11 – Day 25 of the Convention), the proposed constitutional provisions called for election of supreme court and superior court justices. The elected terms were for 16 years and 12 years respectively.

The report also abolished the system of county courts and placed exclusive original jurisdiction of civil actions and all but petty criminal actions with Superior Courts.

The convention considered amendments to reduce the number of justices in the Supreme Court from five to three. The amendment passed. There also was an amendment to reduce the number of superior court judges from 12 to 8 or 10. On this matter, there was considerable debate, of which the following are excerpts:

Mr. Rodman: the State is divided into 89 counties—which gives to some of the judges 11 or 12 counties. The judges are engaged in holding courts twenty-two weeks of the year. Under this system the courts will last about four weeks. The greatest source of expense and annoyance is that cases are set for one term and not reached until another. Then some one is to pay the cost of witnesses and officers. …The merit of the proposed system is the economy and dispatch of business.

Mr. McDonald, of Chatham: These new offices are created for partizans. I did not come for the purpose of establishing offices for party measures.

Mr. Welker: my great aim as a member of the judiciary committee has been to decrease expense, and I believe the proposed system would do this. The bill of rights guaranteed speedy trial, but the old system did not give it. Now costs to county, State or individual are very great, but the speediness of trials will much diminish costs. The people are tired of the old arrangement. Twelve judges will enable the people to get justice at less cost.

Mr. Hood: I have heard of penny wise and pound foolish. With half an eye any one could see the advantage of the proposed system. There are now ten judges—eight circuits, one at New Bern and one at Wilmington. The two latter may be done away with under the proposed arrangement. What time will eight judges have to hold special courts? Now the people are taxed month after month in attending courts. If this was the case in the past, what will it be in future, when three hundred thousand people are added to the population? Hence there is a large increase of matter to come before the courts, and not less than twelve will be necessary for the present situation. Special terms cost more than regular terms. Therefore, the gentleman’s economy in that plan, will be to pay ten dollars for one.

Mr. Tourgee: The delegate from Chatham has about as much idea of this subject as an animal has of artillery. Whatever is to pay he bites at it, like a cerberens over the treasury. And now when the efficiency of the courts is to be increased, and time saved, he cries out, cost, cost. Now there are two or three jury trials, witness’ fees, delays and officers’ fees, to bleed the people. The County Court, a comedy of errors, should be abolished. And no judges are harder worked than those of North Carolina. Work them hard on the bench, but not in the saddle.

Mr. Harris, of Wake, said every one who had seen the small offences brought before County Courts, men indicted and jailed for lack of bail, thus augmenting the expense of the county, would favor the abolition of County Courts. This would be a practical measure of relief. Thus the hard working people of the country would be much relieved. In all cases of less than two hundred dollars, magistrates should have jurisdiction, and men would not be running around to hire themselves for bail. As to the number of the judges he was not able to speak. But, while not speaking in disrespect of the Wake County Court, yet the Sheriff brings in men, then two or three months in jail, for stealing a herring and a pipe stem. He did not favor supporting lawyers on such small offences, and having the hard fisted people of the country hiring themselves to lawyers and others to go their bail or defend them.

After debate, the proposed amendment to reduce the number of justices from 12 to 10 was put and lost, yeas – 43, nays – 57. The amendment to strike out twelve and insert eight was put and lost.

Mr. Heaton proposed to amend for the Legislature to elect Supreme Court judges. Put and lost.

On motion the Convention adjourned.



Ferrell, Joseph, ed., Compilation of the Official Report of the Proceedings of the Convention (Chapel Hill, N.C.: unpublished manuscript 2007). (See day 8 for fuller explanation of this resource.)


*The debate and other quotes are close to verbatim from the reported resources with some adjustment to put all comments in first person, present tense.


Ann McColl

Ann McColl is an attorney and state constitutional scholar.