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- , DEBATE
, ' . fon the
in the
tV SENATE, oj N CAROLINA
PvyJThe Bill for the more uniform and coivc-
: nient administration or jurcc,
jfeaij a nccoud ttuc. anci ort for.aeier.rt-
'Mti Littli proposed to strike
mt the whole of the hill, except tlir
words " a bill." and insert in its place
a substitute, providing for a division
of the Stutc into fifteen ifis'ricts. "
Th Yeas and Nays being called,
Mr Welborn said he (shouh
ote against this amendment, be
cause he did not like the manner in
which it was in' rochet d, though he
liked the principle contained in it
better than the bill. And if it had
been brought In as a di tinct bill and
not merely with a view of frustrating
the measure before the Ivouse, he
voulQ haye given it his support.
The Yeas apd Nays were taken On
the propost'd ameiujt?n?n as follow :
YEAS . .Messrs, Alston, A,h, Arriijg
Ob, liryan, Drownri-jBiid Ulouit,
Blackraan, Fos er, Fisner, FranK in. Gtav,
Hugins, Lnt!e 'M'Koj.M'Car.ie, M'K;;.
b', Person, l?uy, Koceri, Sievelse, Smaw,
filmic 23 I !
v NAYS . Messrs Beard, Croom. Cie
jjients, Dcberry, D-.vis, D-venpoi;, Fojrc
Wi French, GruveS, Graham, Hortrtr.,
H lmes, Harris Harrison. Hacker, Hu'Ch,
Hintcn, Knight. G.-Lea, B. Lea, Mjir
al', Montgomery, Outlaw, OUi, PujCk
liam, Kaotles.j B. Smith, Sicdman,
S'm.th, ShuiForJ, Scales, Se!by YJLlams.
"W ibrn 34.
Mr. Frakklik mctf-ed to strik
ut the provision in the bill whipl
allows jurors to be called out .wict
r four times a year in the count
courts. IF this pa.t of the bill wja-
xpungedi the tounty couits Wut
ohttnue. to be held' as at" present.
k.
.S'. Welborn wihecigij proyi
WlrVn retained if it weisclecessui
ry to call out jurors fruYti -nes a year .
iliouht it Would bc-Wfon to pu
count ts to the trouble c cxpencc f
omi;2; so. And if it should be found
in prngrtss of time, that it would b
v Vr to havcidl the triafsihesjiperi Dt
co ir sthe j .tri - in the quartetny c uj
jidc-ht be mspeiistd with ahogeibt .
Mr. EjtfKKLiK said, 'If this pr
Vision wasferntd, it would product
iiuch confiVskTw In the Ste. Soin.
s - counties- will call out jurors" twice -'vfiyttir
.and some .four, liuie'iinu pr
sonshavinbusinesit in thr courts will
nor know whtn to attend. Thtjrt
uht to un finif rmity in the ccuil,s
, throughout tpe state ; they ought idi
to be -held quarterly, or althalfyearlv
l,Mr, B.. Smitjh said, the bill wts
intended to '! render the adfninisira
ticn of juat;.ce irore convenient to the
people. He; thought the provision
proper one. In large coundes, whe; c
'there is considerable business, a jury
tnight be summoned quarterly ; but
in counties 'whcTje thercwas htil to
be done, it Would be a hardship to cal!
out jurors more than twice in tha year.
Motion negatived.
Mr. Franllin mored to strikeout
the fast Section bl the bill, Which h
inietl i's ape raj iojV to three years.
If the system was a ood one, i;
would then p;o on ; and if not it cou!d
it any time be-' repealed. He saw
pa propriety-in the limitation,
Mr. R. Williams hoped thiss- c
"tlon would-be expunged, as it would
re move J a cphstitutional obje? tioi
wliich had be n nfade to the appoint
ment of the Judcres unde r it. TLt
constitution dir. cts that Judges sral
be appointed during good beha
viour," whereas if tht; bill passe
with this pttvision in it, they wouh
appointed for three years only.
The amenment passed without a
division.
Thequsstion " shall this bill pass
-Its second reading" lacing put,
"Mr. Franklin did not think it
light that a bill of so much imrjor
tance should pass without discussion.
lie acknowl edged hi. r. sell to oe
-a of those who did not approve of
thr
'2S proposed chanire in our ' Judicrdr'y
system.-' Ht tl.ouht the change V.v
' jr'rcat. , It was' givmg' tip a sysieiri
.which had hidirtoscci:red cur ricjh's
. -and privileges ; and although sdn,
" corpplaints were made against it,;ye
' they 'were- not of that radical kin;
which call for its desi ruction, nd
if Uie old system be defective, sc ts
the cue proposed to replace ii -j 'for
X his .pa 1 1, '. he considered the prr
,v, seat biirmerely asripg wedpjj
j tc a plr which does not yet fully ap-
pear.- . i ins ijiii w i'-
others Indeed another must pas
al.this session, or the Judiciary cart
not no on, as there is no provtsit n
in the present bill for - .clerks'" and
masters in equity.
. c)ur Jury System, (said Mr. F.
which is, perhaps, the best in th
world, is about to be destroyed, aw
jv be replaced by one. upon a new
piincipl h whigh Will b dan runs
in ns operation Our present juror
are d rwn from a plurality of coun
tics ; and no man could tamper with
a Jury thus chosen. The Justices at
the comity. courts are now to appoint
hc Jurors. Where are your influ
ential men when this is done ? No
about these Justices j but thry will
have emissaries there. These Ju
rors are appointed three months be
fore the triah and known by the ma
to bettied. Will not this afford
opportunity fortampering wfih them
Or if tins cannot be done, the part;,
nay get his cause removed to aiv
her rounty, which will &e produc
:ive of delay and expencif it dot s
not finally defeat th endsctf Justict .
But gentlemen say, thaft tins sys-
Is
etu will bring Justice to every manS
door, ami that it will be as iuim
administered as at present. He die
r.ot believe; this. We have, sid he.
hithertrj had juries, which s- rvtd as
shtrld for the poor man aaiti-x
'.he rich ; but'we are now about if
c ilopt a Juiy system, which sAvt.ulr
4rove dangerous loour country.
Mr. F. legi;cd gentlemen to cr ii
.der how far this bill es. If th1
bill passes, said he, your .Judiciarj
Sysu m is one, your county court
1 re -gone ; indeed .lte whole arlil!et
f,thc bill is levelled at our prest.u
t ountv courts ro ptit them vut o
lijefway, andestabhsh superior cour
iri their place ; and gentk-men hih
asfwell come forward 8c avow this iv
fje'.'he r intention, and ifih-ry arc
nuisance let h - a once be pui down
JyVheie. (asked Mr. V.) is you
quuy " business to be tried ? If in
the county sup-rior courts, he sup
;osed tl e same causes would prevent
iheir beiiiK attended to, that had hi-
theilo had that effe ct. He supposed ;
our supreme out would b- ou'1 cour
f chn erv, t nv rate, he wished
to see the woirmarhinery of the Lu
pine ss, oe fore he pjssd the preset i:
bi'l.'He was lor dividing thelaw from
:h'S equity business, it" any eligible
Axn could be devised for the purpose.
H thought some of the provisions
of this bill too strong, and others too
Teak. It was too weak with respect
o criminals. Great offenders vouUJ
be : commi't d for trial. Will your
county jails ho'd them? At son
of the county court-houses there re
no; more than thre or fiu?- iuiuhi
lunts. Would the friends of a man
:n this situation suffer him to iemin
in an insecure orison, when his l;fr
;night pay the forfeit, on convi. (ion ?
rhey would not, and in ord..r to w
cure such an one, guarcls tnns'
iesnted to.. On ; lobki ng ovr th
files of thecommittee f claims, the
expence on this htac'. will be fc.und
.already sumcicn' iy large ; but what
will ' it b,hen he courts are' in-
-reastd fr m eight '.o MXtv f Th'
he considered as amongst the weak
pa'rof the system, the part thiot'gh
. tiltn great nffenders would '"iipt
rvur.:shnient.
He would statetin what light hr
. , , , - -. a , l
'onsidered the stem :') strong.
i! would create 1 10 new officers, vi:.
2 Judges, 4 Solic .s nd IO4 clerks
..d clerks 'and 'masters m equity
riiese men, finding thmsilvcs m
nTrce, when they c;Oj,t;Pan e'ecioi.,
wilhenquire, Is die canttidate a .mii
who wll meddle with our ofTiceV; ?
Such considerations, he had no doub
would have their efiect.j
Let us, said be,' loolfei -tthe cow
I .truction of our government. Th-
J,)cvvei t the. lecunv is very nmi-
Talte awaySpow?1, ,,r Pr
'dpiiihg,- and thrs scircely any
' teg lefc He ahotlnng to .do
wichl the-' other two branches. He
onld not resist a system like this.
Then the contest for power will be
etvveen the liegisiaturo ana juui
riary, andf01" bill passes, you i
V;e the ifrter'tco strong for thejjtb
rhuiiu.Titliiiiti- cannot dis-il W
maKe
fbner. The legislature cannot dsy
place thes, office ts, autftlw nul im
finr- viW eUtions. s aud hid oU It
dcev , ...
Monday.,-' January 56, 180r.
Ir. B. Sfr h considered the sub
ect before the house as one of the
rreattst niaguUude. After giving it
-he most mature deliberation, the
principle of the proposed rhantre in
he judiciary system of the State
met his Warm approbation.
Last year a bill of similar import
was proposedi ami bring before the
Sena'e near the end of the session,
when his mind and body were too
much debilitated to admit of c'onti
rued investigation ; he ued his en
deavours to postpone a delermim
ion to the present meeting of the
Legislature and succeededPThence'
ne thought it his peculiar durv to
-ek information, and had amongst j
tner enquiries, maoe one by wri
ing to a gentleman, whose very .re
spectabie standing and lone: experi
ence in administering jticejrom
he bench of thv superior courts in
cu:h-Carolina, made his opinion
eminently desirable. The answer
vas so extremely favourable to a
svstcm which carried the 'superior
oouns into the counties, that it dis
posed; him tc,gfve hissupp;rtto a si
milar arrangement for. this State
Mr S. said he had heard a num
ber of artnumcnts against the bill pro-
-s d, but notwithstanding iltfe high
espect winch might be entertained
tiv the learning and abilities of the
-entliien who used them, he was
ci) far ft om being convinced by their
reasonings against adopting the
ri- aurc, that a lull examin aion cf
hem had mo it stro:ily confi mcd
liin in favour of it.
He b-'isve the principal o'j-c-
ons to th i)ill might br: comprised
iv der-the following !n f.Js : 1st, the
U'ltmph of' he prambl Id, heun-
uiislitu'ionali.y of he- bill from be -;
opixjsd to the d strict principl-
jJ, the great clanger attending
novations, particularly on the wo k
J the lieioesand Statesmen of the
evolution,; he Pa triotsScSagCSuf Tt),
x4th.the inexpediency of . he masure. I
It haa been aser ed tha' the pre
amble cor.Li.ir.ed a .very ui.qualtSed
censure of the Judges of the supe
rior courts, and attempt we-e made
to prove that it alleuged facts win. h
re untrue. He could not think
that any censure ws either expres
sed or intended against the Judges.
The words are, that the delays am'
expeuces msep -iVoIe from the pi
jent C'jnsti'u'ion of the courts of this
Suite do - utii amount, to adetvul l
jusiicc. -Here is not the shadow oi
coinp'ain' agVmt the Judges. Had
nc colisidried it in that light he
would not vote fur a bill with such.
an unfounded charge. For when
the three eldest of the Judgts wr c
elected, he liad the houor of a seat
in the Legislature, and tht pleasure
J of voting for them. Tie had no rea
I Svn to repent of th preference given
to them, nor did " he believe"-, the
J friends of the kill meant to convey
j! trie s-.t'iallts; censure upon any of the
juoes i iv ir com!i-ins rt niauiiV
direcu-d -Against the con t. tut :on of h.:
courts, a change in which ihcy thi..k
lndiprnsibii for the happiness and !
con ve .ience of the people.
lri attempting to prove the un&pn
stilulipnaUty ot the blii sumittcl to
consideration, there had been cited
the 44th article of the; constitutivn
declaring the Bill of Rights a par
of it, and then the 4th, 9tH antLr:
sections 01 inc lim ot igiiCL:won
the construction of the '.e, much in
genuity had been disol.iyed, but al
fho' the ear was gratified, he hcaH
tin argtimetit which conyjneed the
aulCrsta di; It is trthe 4tii
section declares " that the leg'tsla
tiye, i secutive and suprernie j'Kiici i
powers of government ought to be
forever separate and distinct from
each other."- No one is disposed to
deny the propriety of this declara
tor., 'nor has it tren proved that the
1:!.! infringed that article. It is in
sinuatetl that this is done by im:rea
. sing "-the du;f f the Judges without
ratling thoir salaries. it was in
favor of lineral salaries, and did not.
believe they -could bt beiterbest$v
ed than upon gotrd Judges ; but i
not the salary the. satnt nowf;,siricc
tlie duty has been diministiea by se
parating the State into different ri
d.r.gs as it was when the whole StaN.
.-t.on rmg : .vvnen the
Legislature formed the casern au
,stcni . r.Kas tuUhc,re iy lesei...
f," - v-s U1C Juuc,
et-. feiavnvy-uv uc juues,
but continued their full salaries, vlm
heard the smallest suggestion 'W"
'he measure was uncons ituttanal .'
Did the Judires complain of the al
deration ? Bv conscientious, lea mer.f
and
upright ofiicers, composing
greai and mosf independent branch
of government, bound by the mos t
solemn oaths to support the consti
iution, would they not have refused
to carry th- law into effect if it had
been contrary to that , venerable in
strument i We therefore, by their
compliance with that law, have theif
legal knowledge and trietVintegfityq
mjavor or acknowledgment of our
right to alter their duties without
changing the sahiry ; and if we had
a constitutional right to pass that
law,which has not been controverted,
ye certainlv haVe an equal right to
perfect the bill before you into a law!
-.- . ..
it is true, that in one of the great- i
est models of human wisdom and i
political excellence, fhe coivstitutiot. 'j sier to that of the justices in yVs.
of the United States, the sages whoM Thul we wish to remove the causes
formed it, by the 1st section of the jj from oir district towns 'Othe coun
3d article, look mote care to guard;! ties where the causes of ac ion arie
the independence of the Judges 1 und to relic ve cur consti'Utnts frpmt
than is shewn in oui constitution, ; the .intolerable bui then of being
by forbidding a diminution of com- ! compelled, as parties, witnesses and
pensi'-ion during their continuance 1 1 jurors, to go lrom thv.ir own CGuniiesj
inomcr. Yet tven this sccdon jea- I to the distant ones where the supe
lous js it is of judicial rights, does rior couits are held at present. Tp
not forbid un increase of duties with j conclude the authoritits respecting
out an increase. of salary. Petictra-1 , the an-ient mode of trial by jury
non tar IpSs keen than that of tnose H
great and wise men, must easily!
have foreseen that with the certain j
and rapid increase of population and !
commerce incur country, iaw-smts
must multiply, which would inevita- i
b!y add tu the labours of the Judges.
Fhe 4th section of our Bill of H
Rights urged against the measure m ception, and of .he neighboujrhddtff
proposed he 'considered ih favor of that is of the county whetefie
it That declares " In all contro j , factis committed. Thus wetlcia-vei-sies;
of hw respecting propertyi P bundnt esses in favour of trials" by
the ancient mode of trial by jury is ' juries of the counties. Not one of
otic otthe u.si securities of ht rights5 teal ancient date respecting juries
cf the people, and ought to remain from a district composed of several
sacred Sc inviolable. ' An attempt counties The article however most
was made to shew thai a jury selec- relied on to prove the UQt onsiitu
ted from the district was the ancient valitv of the pitsent bill, is the'9wh
mode; but if he recollecte:.' rightly ! section of the Bill of ILghts, -which
his sort of vinciertt. "mode was not declaim, k That no free man shall
preterded to have, existed in this be cotrictv.d -of any crime, bui by
i olony more' than' fifty years bark. r, the unanimous verdict of a jury of
Certainly muclvmorc ancient modest good and lawful men m open courtj
w;i known to ilioe who formed
i2e constitution of Xurth-Carylina heretofore does not appear to appl
CAuld b shewn. These were trial I m the strict sense contended fr by
by peers of good ami lawful men,.; any opposer of the bill. If it did,
1st, bom the vicinage 2dly, fprn ' tne jurors ought to be uksn cx-icty
the -body cf the county. ;j hvm the sfmc districts that Chcy
" The moit celebra'ed authorities !j ware heretofore, thtis, previous to
btuiei'.ha . by the policy of t he Hscient ' 1 the forming -of the cbnsti;uti;ii. iAd
Uw the jury was to come d; vi'cin -t$. .! mining this doctrine, the State could
from thr neighbourhood or vrcmage ; j not have been divided into mors
of the vilU ot place wheie the cause !! districts fhanxis ed previous to76,
of actoii was luid in the dt deration,? which vc know has been done with
tnd ;herfore sonis of the jury ei-e i out any cccstitutional objection be
obliged to be returned from the ing I'aistd. If such a strainer con
hundred in which such viL'c . iuy,-i-st ruction erf-.-correctr a criminal
aiidif none we re returned i ne array If ff Morgan district (formerlyja-part
niint be1 challenged' for defect of yl of Sxliwbury district) upon eing
hundredors. For living in the '.eigh-1 convicted, migh: vitiate tac triaFand
bourhoo'd they were properly 'he arrest judgment by urging Von
very country oi pais o which both k have. tried me by jurors c;f Mcrganv
partij, had appealed, and were district, whereas, I ought to htjve
suppose! io know bet -re-hand th?jibeen tried by those of Salisbury, dis
csiaructeis of the panics and witnes- !' trict as -tht was th mode her.to-
se
and i h r.rsfors the better knew-
what- credit to give to the" facts r.I-ij mit such i.n argument to be good ?
ledgv-d in the evidence. Thisprac- ' ; Ar.d shallWc be alarmed at one so
tice was 'afterwards, by ciifT rent easily answered I No, tke true mean
statutes, gradually t xtended liHby ..r ing of the word, beretofbie, is ex
24ib Geo: 2d. ch. 13. -he jurvJr; plained by the clause itself, 4 th
to come dc corpore conitctus from unanimous v&rdict of good and ltw
the body cf tin: county at kuy.e. : ful men iu open court." if the word
In Majna Charta, that famous inr means murit js that juries shall ba
sTrument ckiiwv.ledging and ascer-j "summoned agrebiy to ihe ancienc
tuinmg the righ's af the gail tnt peo i . mode which ha been fully shewn tc
pie from whom w are descended,; be from the Yicmage or county," and
it is more th.m once insist ad on as thfe reasoning is pardcuUriv suppor
the principal bulwark of their liber- ' d by the 14th section ol the Biii of
ies, but especially by ch. 21 - ; Rights,
- That no fVce man shall be hurt in Former legislatures of the State as
ei'.ber his ptrton or proptsrty, the increase of population and conA
' ni-i ptr legal? judicivi f arium su vnieuee of the people ruquired,hav
orurH vei per gevi t rra" and it r xtended thenumbrofdisiricts sinco
esteenled a privilege of th- high ; the formation of thr conrtitution by
v-,st and most beneficial nature. creating Morgan Sc Fayelteville. disi
Aloreovr when an issue is joined tricts, atid in. 1785, actually c abb's bj
etirieert the pirtitsinu suit by these, ! led a suptri t co irtoflaw and equity
vbrds, ' And this the said A. prajTS in thr tounty of Davidson -Was anjT
may -fee enquired of by the country," obje lion r ised agams- these Lw
or, ' and of this he purs jhimself up- uplu. the ground now taken ? No one
on the country and the said B.dbes -can have a doubt ot our power or
ihe like ;Vne court twaroVawrit of rights being equal o those of any for
vrnirefaci8immhc roll or record mer Legislature. Why chen should
-.'OnimVi.umg . the sheriff " that lie w"e be detcrredfrom establishing n
4aUse to come here, on such a dav, many superior courts as we ttonk f
twelve tfe ana liiwtui men, iiros
ft
9 "cuui
.cwat,. autf
the matter may be, better kDCril
who ace neitheof kin .io th tixgm
said A. nor the: aforesaid to t:
cognize the truth ot the issuebc
tween the said pa n ies," f and rucl r
writ is accordingly, issued to th
sheriffff- But w$an the usage began ,
to brinjaetioiis of any trifling
ture mVfc courts f .! 'Westminitev
Hallj It was foartd to be an intolcH
pie : burthti compel i he- rt;es
wimesses and juror s to ;cord front
Wcstmoreiatid perhaps, or Cor .
trail, to try aii action of assaul at
Westminster, A practice theref ro
very, early obtained, of continuiaV
thexause from term to ttrm in the
court tmove proryiuedthe justices in
By ref d id not previously come into
tfiecounty where -ilie cause of acti one
arose, find if it appead that ihey i;
arrived there in thatinttrral thr ..
the
cause was removed from the iu
risdiition of the iustices of Wcstmin
wt find by ?d Hale, P C. 2i4, anrj
2d fiawk. P C. ch. 40, that woert
a prisoner on his arraignment h
pleaded not guilty, -and for his trial
hath put himself upon his couifiry,
which country the jury are,the sheriff
of the county must return k panne! of.
jurors, freeholders without just ex
. as heretbiore ued." The
fors used' Would any Ju'tge ad
Dcnejaciaoine PEOPLwittu ut be-
A -' t.?-r.-fi i