^ 
 
 1^19 
 
 J
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 CENTENNIAL CELEBRATION 
 
 OF THE 
 
 Supreme Court of North Carolina 
 
 1819—1919 
 
 BY THE 
 
 North Carolina Bar Association 
 
 '1; 
 
 HELD IN THE 
 
 SUPREME COURT ROOM 
 
 RALEIGH 
 
 JANUARY 4, 1919 
 
 RALEIGH 
 
 MITCHELL PRINTING COMPANY 
 
 1919
 
 T 
 
 19)9
 
 w 
 
 3^-33^0
 
 John Louis Taylok 
 Chief Justice 
 
 111 Mil I.SdN 
 
 Judyi 
 
 NORTH CAIIOLIXA SUPKEMK COnn 
 A. I). IM!)
 
 JUDGES AND OFFICERS OF THE SUPREME COURT OF 
 j^ORTH CAROLINA, 1819 
 
 CHIEF JUSTICE: 
 Hon. John Louis Taylor. 
 
 ASSOCIATE JUSTICES: 
 John Hall, Esq. Leonard Henderson, Esq. 
 
 ATTORNEY-GENERAL : 
 WiLLLAM Drew. 
 
 CLERK : 
 William Robards.
 
 JUDGES AND OFFICEES OF THE SUPKEME COURT OF 
 NORTH CAROLINA, 1919 
 
 CHIEF JUSTICE: 
 Walter Clark. 
 
 ASSOCIATE JUSTICES: 
 Platt D. Walker, William A. Hoke, 
 
 George H. Beowx, William R. Allen. 
 
 ATTORNEY-GENERAL : 
 James S. Manning. 
 
 ASSISTANT ATTORNEY-GENERAL : 
 
 Frank Nash. 
 
 SUPREME COURT REPORTER: 
 Robert C. Strong. 
 
 CLERK OF THE SUPREME COURT : 
 Joseph L. Seawell. 
 
 OFFICE CLERK: 
 Edward C. Seawell. 
 
 MARSHAL AND LIBRARIAN: 
 
 Marshall DeLancey Haywood.
 
 Platt D. Walker 
 A.ssociate Justice 
 
 George H. Brown 
 Associate Justice 
 
 Walter Clark 
 Chief Justice 
 
 William A. Hoke 
 Associate Justice 
 
 William R. Allen 
 Associate Justice 
 
 XOETH CAEOLIXA yUPKEME COURT 
 A.D. 1919
 
 OFFICERS OF NORTH CAROLINA BAR ASSOCIATION, 
 
 1918-1919 
 
 PRESIDENT : 
 
 Edwin F. Aydlett. 
 
 VICE-PRESIDENTS : 
 Mark W. Brown, G. S. Bradshaw, William Dunn, Jb. 
 
 SECRETARY AND TREASURER : 
 Thomas W. Davis. 
 
 EXECUTIVE COMMITTEE: 
 Frank Nash, Chairman. 
 H. F. Seawell, R. H. Sykes, Secretary, 
 
 J. W. Pless, John A. McRae, 
 
 G. V. Cowper, E. F. Aydlett (ex-officio) , 
 
 Thomas W. Davis (ex-officio). 
 
 COMMITTEE CHAIRMEN: 
 
 Executive Frank Nash 
 
 Admission to Membership Walter E. Brock 
 
 Legislation and Law Reform William P. Bynum 
 
 Memorials Harry Skinner 
 
 Legal Education and Admission to the Bar A. B. Andrews 
 
 Judiciary A. L. Brooks 
 
 Grievance Thomas D. Warren 
 
 Legal Ethics A. W. McLean 
 
 Uniform Legislation R. A. Doughton
 
 PKOGRAM 
 
 Bar Association called to order by President Edwin F. Aydlett, at 12 o'clock, 
 noon, Saturday, January 4, 1919, in the Supreme Court Room. 
 
 Prayer by the Rt. Rev. Joseph Blount Cheshire, D.D., Bishop of North Caro- 
 lina. 
 
 Address by Hon. Robert W. Winston, of Raleigh, "A Century of Law in North 
 Carolina." 
 
 Address by Hon. Thurston T. Hicks, of Henderson, "The Supreme Court of the 
 Future." 
 
 Address by Marshall DcLancey Haywood, of Raleigh, "The Officers of the 
 Supreme Court, 1819-1919." 
 
 Response to the addresses, by Chief Justice Walter Clark.
 
 PROCEEDINGS OF THE 
 
 NORTH CAROLINA BAR ASSOCIATION 
 
 IN THE SUPREME CdUliT ROOM 
 
 RALEIGH, 4 JANUARY, 1919, ON THE OCCASION OF THE 
 CELEBRATION OF THE 
 
 ONE HUNDREDTH ANNIVERSARY 
 
 OF THE ESTABLISHMENT OF 
 
 THE SUPREME COURT 
 
 OF NORTH CAROLINA 
 
 A special meeting of the Xorth Carolina Bar Association to celebrate 
 the one-hundredth anniversary of the Supreme Court of North Carolina 
 was held in Raleigh, jST. C, January 4, 1919. The meeting was called 
 to order by Mr. E. F. Aydlett, of Elizabeth City, President of the Asso- 
 ciation, at 12 o'clock, noon, and the following proceedings were had: 
 
 President Aydlett: The Association will come to order. Bishop 
 Joseph B. Chesire will offer prayer. 
 
 PRAYER BY BISHOP CHESHIRE 
 
 Bishop Cheshire: O God, our Father, who dost make and govern 
 all things, we invoke Thy presence and implore Thy blessing as we are 
 here met to commemorate Thy goodness in the continuance of our free 
 government and our just and equal laws. Thou sittest in the Throne 
 that judgest right ; Thy special blessing is upon those who minister true 
 judgment unto the people, and Thy hand shall cast down them that 
 pervert truth and equity. We thank Thee for the great and good men 
 who for a hundred years past have with wisdom and prudence inter- 
 preted and expounded the laws of our land in this honorable court, and 
 we recognize with devout gratitude that faithfulness, integrity and 
 purity have not in this our day been wanting to those who occupy this 
 seat of justice. From Thee cometh every good and perfect gift; Thou 
 givest wisdom to the prudent. We thank Thee for all Avho in the past 
 or the present have served Thee and their country in making, inter- 
 preting or administering our laws. We pray Thee, O God, to continue 
 Thy blessings upon our State and our country. Out of trials and strug-
 
 PROCEEDINGS BAR ASSOCIATION" 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 gles Thou hast given us peace. May the peace in which we now rejoice 
 be illustrated by still better attainments in the civil and social life of 
 our State and of our country, and may truth and righteousness grow 
 and strengthen in all, whether in public or private station, and bring 
 near the accomplishment of Thy good purpose of love and good-will 
 among all men. We ask all in His name and for His sake, Who taught 
 us that when we pray we shall say: 
 
 Our Father Who art in heaven, hallowed would be Thy name; Thy 
 Kingdom come ; Thy will be done on earth as it is in heaven. Give us 
 this day our daily bread, and forgive us our trespasses as we forgive 
 those who trespass against us, and lead us not into temptation, but de- 
 liver us from evil, for Thine is the Kingdom and the power and the 
 glory forever and ever. Amen. 
 
 ADDRESS BY PRESIDENT AYDLETT 
 
 Chief Justice and Associate Justices of the Supreme Court, Memhers of 
 the North Carolina Bar Association, Ladies and Gentlemen: 
 
 The occasion which brings us together today is of interest not only to 
 the Bench and Bar, but to every citizen of our great Commonwealth. 
 
 It is not claimed that the Supreme Court of North Carolina is only 
 one hundred years old. Its origin began with the first organized govern- 
 ment of our State. Its earlier opinions rendered prior to January, 
 1819, are reported in the first six volumes of the North Carolina Reports. 
 
 The Act of 1818 provided for the appointment of three judges, learned 
 in the law, who should be styled "Judges of the Supreme Court of North 
 Carolina, and pursuant to this act, in January, 1819, one hundred years 
 ago, this Court was established on its present basis. Its creation under 
 this act was a wide departure from the system, therefore, in effect, in 
 that its Judges were not allowed to try cases in the courts below. 
 
 During its existence this Court has stood for law, order and justice, 
 and has ably and honestly met its obligations in expounding the law and 
 safeguarding the rights of the State and its people. It is not a law- 
 making body, but its high and solemn duty is to declare what the law 
 is and to construe and apply it to concrete cases regardless of public 
 favor or croaking criticism. It has ever been true to its sacred trust, 
 yet progressive and fearless. 
 
 We claim our earliest Judges were the first in the United States to
 
 William Dunn, Jr. 
 Vice-President 
 
 Thomas W. Davis 
 Secretary 
 
 OFFICERS A^ORTH CAROLINA BAR ASSOCIATIOX 
 
 A. I). 1910
 
 PROCEEDIN'GS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 hold that the courts have the right, and it is their duty, to declare an 
 act of the Legislature, which in their opinion is unconstitutional, null 
 and void. It is, therefore, now fitting for us, on this Centennial, to 
 review the history of this branch of our great Government which has 
 had so much to do with the welfare and destiny of our people, and note 
 the results of one hundred years administration of equal and impartial 
 justice. 
 
 To this end, the ]N"orth Carolina Bar Association at its annual meet- 
 ing at Wrightsville last June passed a resolution that we take proper 
 steps to celebrate the centenary of our Supreme Court. 
 
 The people of North Carolina have every cause to be proud of the 
 reputation and achievements of this honorable Court. It is a great 
 court — ^great in its conception, in its personnel and in its jurisdiction. 
 Its make-up has been of strong-minded and able men, learned in the 
 law; patient, painstaking and upright Judges; and at no time in its 
 history has it failed to fully measure up to the purpose of its creation. 
 At times there has been criticism. It is believed on the part of some 
 that the filing of dissenting opinions occasionally give rise to this. The 
 layman does not understand why there should be a difference of opinion 
 between able jurists as to what the law is on a given state of facts and 
 often members of the Bar become divided in their views. 
 
 The opinion of a majority of the Court is the law, and for it to go 
 forth as the unanimous judgment of the Court carried weight which is 
 calculated to settle the question against further dispute or agitation. 
 The dissenting opinion tends onh^ to weaken the force of the judgment, 
 cause greater dissatisfaction, and sometimes criticism. 
 
 If I may be pardoned for speaking only a word of the future, I am 
 persuaded that long before we celebrate the next centenary of this Court 
 the practice of filing dissenting opinions will be consigned to the realms 
 of innocuous desuetude ; the opinion of the Court will be a statement of 
 the law in that case upon its facts, and there stop; the ohiter dicta, 
 which has given the practitioner no little trouble, will be a thing of the 
 past, and this Court will be so enlarged or relieved of a part of its bur- 
 den by an intermediate appellate court that it can give the members of 
 the Bar such time as is necessary to present their causes in a manner 
 that will materially aid the Court in reaching its decision. 
 
 With these remarks, I take pleasure in introducing the first speaker 
 on the program, one of the ablest and most learned members of our Bar, 
 Honorable Robert W. Winston, of Raleigh, North Carolina.
 
 10 PROCEEDINGS BAR ASSOCIATIOiN' 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 A CENTURY OF LAW IN NORTH CAROLINA 
 
 By Robert W. Winston 
 
 A fair test of the worth of a government is the affection in which it 
 is held by the citizen. It is by this standard we love to measure our 
 brave State. Wherever a North Carolina man may go, his heart remains 
 with his people; the sylvan Toe wanderer through the woods; Mount 
 Mitchell, standing forth without a peer; the bleak sand-dunes of Nags 
 Head — every foot of ground is dear to us. As the wintry winds blow 
 through her forests of pine, or the sounding waves beat against the 
 shores, where Virginia Dare was born, or the Cape Fear majestically 
 sweeps to the deeper sea, it is of Moore's Creek, Guilford, King's Moun- 
 tain, and of freedom, they tell — it is of unyielding resistance to unjust 
 authority, of undying devotion to free government, based upon law. 
 This is our heritage, this our birthright. 
 
 How has it come about, that there is still one spot on this mad and 
 frantic globe, one spot where no red flag has ever waved, where the peo- 
 ple are confiding and contented, where the God of our fathers is still 
 enthroned ? 
 
 Constitution — Ark of Covenant. 
 
 One who loves his State as a true son should love her will try to 
 make true answer. We are a people, one in race, one in language, one 
 in religion, and one in ideals; a people without itching ears. We have 
 no great cities; our per capita wealth is evenly distributed; eighty per 
 cent of our population are tillers of the soil; more than fifty per cent 
 of the white adults are landowners; less than one-half of one per cent 
 are foreign born — great auxiliaries, no doubt, to a stable and conserva- 
 tive government — but greater, far greater, than these are our just and 
 equal laws, administered without fear, favor or affection, reward, or the 
 hope of reward. If our sister States of the South have had such states- 
 men as Jefferson, Calhoun, and Clay, they have had no such jurist as 
 Ruffin. Morley, I think, rightly contends that the great magistrate has 
 as least as good a title to the front place in the Temple of Fame as the 
 highest political servants or leaders of the State. 
 
 The distinguishing feature of our American Commonwealths is their 
 constitutions. The attitude of North Carolina toward her Constitution 
 manifests the reverence in which we hold it. Only once in a hundred
 
 Robert W. Winston
 
 PKOCEEDINGS BAR ASSOCIATION 11 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 and forty years has North Carolina materially changed her fundamental 
 law. Louisiana and Georgia have each had seven constitutions; Vir- 
 ginia, Arkansas, and South Carolina have had five each; Pennsylvania 
 four, and Illinois, New York, and Delaware three each. 
 
 As to our national charter, others may look upon it as dishonest, but 
 North Carolina judges, in the main, agree with Burke that no man 
 should approach to look into its defects or corruptions but with due 
 caution ; that he should never dream of beginning its reformation by its 
 subversion; that he should approach to the faults of the State as to the 
 wounds of a father — with pious awe and trembling solicitude. By this 
 wise prejudice, we are taught to look with horror on those children of 
 their countiy who are prompt rashly to hack that aged parent in pieces 
 and put him into the kettle of magicians, in hopes that by their poison- 
 ous weeds and wild incantations they may regenerate the paternal con- 
 stitution and renovate their father's life. Our judges feel, with "Web- 
 ster, that written constitutions sanctify and confirm great principles, but 
 the latter are prior in existence to the former. Bryce expressed the same 
 idea that our National Constitution is the ark of the covenant, whereon 
 no man may lay rash hands; and Bryce was but following De Toque- 
 ville, M, Emile Boutmy, Gladstone, Lieber, and Henry Maine. 
 
 Our first State Constitution was adopted at Halifax in 1776. Its 
 founders were determined that not one drop of blood which had been 
 shed on the other side of the Atlantic during seven centuries of contest 
 with arbitrary power should sink into the ground, but the fruits of every 
 popular victory should be garnered up in this new government. Neither 
 Greece nor Rome was their model, nor was Plutarch's Lives or Rous- 
 seau's Social Compact their guide. Unlike Mirabeau, Danton or Robe- 
 speare impracticable, high-sounding, they were level-headed and work- 
 able men; Hooper, Harnett, Abner Nash and Samuel Ashe, the con- 
 servatives, standing stoutly against the radicalism of Bloodworth, Person, 
 and "Wiley Jones. The result of their deliberations was a wise and prac- 
 tical compilation of the fundamental principles which mankind, climb- 
 ing upward for centuries, had wrested from kings and tyrants, each word 
 wet with the blood of heroes; Magna Charta of King John, of Henry 
 III. and Edward I., the Petition of Rights of Charles I., and the Habeas 
 Corpus acts of Charles I. and Charles II., and the great BiU of Right 
 of "William and Mary. 
 
 One hundred years ago, and as it is today, the common law of Eng-
 
 12 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 land was the law of this State, and there were then few statutes regu- 
 lating human conduct or controlling human affairs. At that time our 
 highways were of mud; there were no railroads, few corporations, no 
 complicated machinery, and little commerce. The common law of Eng- 
 land was well adapted to these primitive conditions and to the life of a 
 simple and turbulent people, its very rigidity and harshness increasing 
 its effectiveness. It was a day of abstractions and scholasticism. Schol- 
 ars were interested in words, not in things, their concern largely being 
 to distinguish and divide a hair twixt south and southwest side. 
 
 It is not fair, I think, to berate our forefathers because they did not 
 enjoy the blessings of universal suffrage and the benign laws which we 
 have toda3^ More urgent things at that time demanded their attention. 
 First the blade, then the ear, after that the full corn in the ear. They 
 had not forgotten the military policy of the Celtic nations, the Goths, 
 the Huns, the Franks, the Vandals, and the Lombards, who poured 
 themselves all over Europe after the fall of the Roman Empire and 
 established the feudal system on the continent and in England; so 
 firmly indeed in England that not until the twelfth year of Charles II, 
 was it abolished (and in Germany not until November 11, 1918), A 
 system of slavery more complete cannot be imagined, with its aids, 
 relief, primer — seisin, wardship, control after marriage, fines and 
 escheats. Nor were the doings of the Stuarts and the Georges forgotten, 
 taxation without representation, the suspension of the writ of habeas 
 corpus, ship money, the forfeiture of charters, and the encroachments of 
 the sovereign. The early patriots greatly feared a judge owned by king 
 or commonwealth, whose sole office was to do his master's bidding. 
 Bloody Jeffreys was to them more than a warning, and they resolved 
 that another Thomas More should not die for conscience sake, nor 
 should another Bedford jail imprison a Bunyan, innocent of crime. 
 Free speech, free thought, free conscience, a free religion, and the funda- 
 mentals of a free existence mightily concerned our forefathers in '76 
 and 1819, 
 
 North Carolina Found Herself, '30 to '40, 
 
 North Carolina was not ripe for progress until the decade, 1830 to 
 1840, when England's reform movement of 1832 abolishing slavery, 
 emancipating the Catholics, and culminating in the reform bill of that 
 year swept across the Atlantic and made its impress on this Common-
 
 PKOCEEDINGS BAE ASSOCIATION 13 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 wealth. In 1835 a constitutional convention composed of the ablest men 
 of their day was held in Raleigh. It changed the basis of representa- 
 tion by abolishing borough towns, which had possessed the right, suo 
 vigore, of additional members in the General Assembly ; by taking away 
 from the General Assembly the election of the Governor and by giving 
 this privilege to the people ; by taking the right to vote from free negroes, 
 and by striking out the sectarian test for office-holding. These reforms 
 were passed by the smallest margin possible — 31 to 30 in the Senate, 
 four Eastern Senators uniting with the "Western Senators chiefly from 
 patriotic motives, but also because of the Catholic emancipation pro- 
 vision which removed all doubt of the right of the beloved Judge Gaston 
 to hold the office of Supreme Court Judge, to which he had just been 
 appointed. An era of prosperity followed. The old laissez faire policy 
 of Nat. Macon received its first blow. The attention of the State was 
 turned toward the building of roads and highways, the inauguration of 
 a public school system, the deepening of rivers and harbors, the con- 
 struction of railroads, and to general internal improvements. 
 
 In 1833 a great industrial convention had been held in Raleigh, It 
 was composed of a hundred and twenty-five delegates from many coun- 
 ties. Many delegates favored a plan of railroad construction from 
 north to south, but a larger number advocated connecting our seaboard 
 with the mountains of this State and Tennessee. The plan finally 
 adopted was to construct a railroad from Shephard's Point, now More- 
 head City, running through Goldsboro, Raleigh, Greensboro, thence on 
 to Asheville, Murphey and Ducktown. 
 
 "To this era belong the erection of the present State Capitol, the 
 building of the North Carolina Railroad, the Atlantic and North Caro- 
 lina Railroad, the beginning of the Western North Carolina Railroad, 
 the organization of the North Carolina Agricultural Society, the erection 
 of the first hospital for the insane, the founding of the State School for 
 the Deaf and Dumb and the Blind, the establishment of a system of 
 public schools, the expansion of the University from a local high school 
 with ninety students into a real college, whose five hundred students 
 represented every State from the Potomac to the Gulf of Mexico, and 
 many other progressive measures that lie at the very foundation of the 
 present prosperity, honor and glory of the State." 
 
 These forward movements came none too soon. Prior to 1830-40 the 
 old State was in a bad way educationally, industrially, and politically.
 
 14 PROCEEDINGS BAR ASSOCIATION" 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 Few of the people could read and write. East was divided against West. 
 The rotten borough system gave the balance of power to the Eastern 
 counties, having a smaller population than the West, and atrophied by 
 hundreds of thousands of human beings in slavery. Previous to the 
 Convention of '35 the Governor had usually been so subservient to the 
 Legislature that made him that he was merely a figure head. From 
 '30 to '40 the population of the State was practically at a standstill. 
 The census of 1850 showed that one-third of all native North Caro- 
 linians were living in other States. It has taken many years and much 
 effort to overcome the inertia of those dreary days. That our people 
 did not perish is due to the vision of those early men of the Republic 
 who guided and followed its destiny. 
 
 Time would fail me to tell of the vision of Archibald D. Murphey, 
 the wisdom of Swain, and the labors of Bartlett Yancey, Joseph Cald- 
 well, Calvin H. Wiley, John M. Morehead, Calvin Graves, William A. 
 Graham and others. Suffice it to say, that because of these men and of 
 their co-laborers in executive chair and legislative halls there came about 
 an "era of progress that within the next quarter century raised North 
 Carolina from the lowest to the highest rank among the slave-holding 
 States of the South in all those things that make for the material, in- 
 tellectual and social uplift of the people." 
 
 Modern Material Progress. 
 
 The work of these men has been taken up by Vance, by Jarvis, and 
 by Aycock, until the dream of Murphey has become the commonplace 
 of today. Railroads bisect our State from sea to mountains; Beaufort 
 is soon to be a real harbor of refuge. An inland waterway uniting our 
 sounds and bays and lakes from the harbor of Boston to the mouth of 
 the Rio Grande seems assured ; the great Bankhead and Capitol to Capi- 
 tol Highway, and lateral highways, make travel easy and delightful; a 
 six-months school term, just provided by constitutional amendment, will 
 move us high up from our old place near the foot of column of illiteracy. 
 Chapel Hill, under the guidance of Battle, Winston, Alderman, Yenable, 
 and Graham, has become, if not the foremost, perhaps the most service- 
 able, university of the South ; and the brain of Mclver conceived, and 
 with the aid of Noble, Joyner and others, has made possible the higher 
 education of our women. Spirituous liquors have been excluded from
 
 PROCEEDINGS BAR ASSOCIATION 15 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 the State, and other progressive and benign laws have been put into 
 effect. Agriculture has not been neglected. The A. & E. College has a 
 great future. Seed selection, soil analysis and fertilization, crop rota- 
 tion, animal industry, pig clubs for boys, canning clubs for girls, farm- 
 life schools and comprehensive home demonstration work are remaking 
 our rural sections. Today North Carolina spins more cotton than she 
 produces (and more than any Southern State), raises more wheat than 
 she consumes, has the largest per acre cotton yield, is first in the value 
 of tobacco produced, near the top in the production of sweet potatoes, 
 peanuts, apples, peaches and sorghum, and is in the seventh or eighth 
 place in the aggregate wealth of her farm products. 
 
 The most radical change in our fundamental law took place in 1868, 
 when a new Constitution was adopted. The Constitution of 1776 dealt 
 with general principles only, leaving the details to legislative control 
 and supervision, whereas the Constitution of 1868 deals with the details 
 of Government. Of such constitutions, Bryce says that they are no 
 more than codes. It may be remarked that prior to 1868 there were no 
 appeals from our Supreme Court to the Supreme Court at Washington. 
 Now, such appeals are frequent, having to do with interstate commerce, 
 the violation of contracts. Employers' Liability Act, and the Fourteenth 
 Amendment to the Constitution. 
 
 Enlarged Demockacy. 
 
 In the last century much has been accomplished through the law- 
 making power to meet the spirit of an enlarged and universal democracy. 
 Human slavery has been abolished and the former slave and his descend- 
 ants enrolled among the electors. A homestead of one thousand dollars 
 in land and five hundred dollars in personal property has been provided. 
 By the Constitution of '76 only persons owning fifty acres of land could 
 vote for a State Senator, now all electors vote for such Senator. All 
 judges, county and State officials, including the Governor and United 
 States Senators, are now elected by popular vote. A State Primary 
 Law has been on the statute books a short time. It has not been suffi- 
 ciently tested to justify itself. In State elections at least, it seems to be 
 a failure. The door is open quite wide for any person to become a can- 
 didate, but the cost and labor of reaching the voter is great, and there 
 are fewer entrances for office than under the old convention plan. The
 
 16 PKOCEEDIjS^GS BAR ASSOCIATIOiN" 
 
 Cextenniax Celebration Supreme Court of North Carolina 
 
 average elector knows little of an obscure candidate residing in some 
 other county. No doubt the primary will be of value in emergencies, 
 when the advocate of some great popular movement and his cause have 
 become one in the minds of the people. Imprisonment for debt has been 
 abolished; dueling, lotteries, and gambling, thought to be the special 
 privilege of gentlemen a hundred years ago, have succumbed to corrosive 
 statutes sustained by a wise public sentiment. The rights of women 
 have been greatly enlarged. Women are now entitled to the products of 
 their own labors and to damages recovered for injury to her person or 
 property; she may sue alone, execute a contract, and make a will dis- 
 posing of her real and personal property without the consent or joinder 
 of her husband. And she may be divorced for the one cause formerly 
 allowed to the husband alone — adultery. 
 
 Technicalities Abolished — Humane Laws. 
 
 The Code of Civil Procedure, modeled after the Code of ISTew York, 
 was adopted in 1868. It supplants common law, pleading, and practice. 
 John Doe and Richard Roe and Jacob Moreland, the impecunious com- 
 mon vouchee, are no more. No longer does the irate landowner begin 
 his action by the absurd way of writing a note addressed to his "dear" 
 friend, demanding an interest in the term. All such fictions are swept 
 away and in all cases the real party in interest must now bring suit. 
 The distinction between law and equity has been abolished. There is 
 only one form of civil action. Pleadings have been greatly simplified 
 and must contain a plain and concise narrative of the facts, and are to 
 be liberally construed for the promotion of justice. A defendant in a 
 civil action can testify in his own behalf. Proceedings supplemental to 
 execution have taken the place of equitable fi. fas. and other suits to 
 discover assets of dishonest debtors. 
 
 We sympathize with our forefathers in their fears of judicial tyranny 
 and appreciate the safeguards which they threw around an accused per- 
 son, but it would seem that they sometimes exceeded the bounds of 
 caution. Take the first case in this Court. It may be found in 3 Mur- 
 phey, at page 1 {State v. Jim). It seems that one Jim, a slave, was 
 indicted for breaking into a dwelling-house with intent to steal a bank 
 note. The indictment concluded most fortunately for the aforesaid 
 Jim, "contrary to the form of the statute in such case made and pro-
 
 PROCEEDINGS BAR ASSOCIATION 17 
 
 Cemen.mal Celebkation Supreme Court of North Carolina 
 
 vided." Now at that time tliere happened to be two statutes regulating 
 the larceny of bank notes. The bill, therefore, was quashed and a new 
 trial granted because it concluded in the singular "contrary to the form 
 of the statute" in such cases made and provided, instead of in the plural 
 "contrary to the form of the statutes" in such cases made and provided. 
 "The defendant is by this indictment," said the Court, "referred to one 
 statute. Which shall he examine to prepare his defense? Whilst he is 
 preparing his defense under one law, the prosecutor is arranging the 
 charge under another, and by the perplexity thus occasioned an innocent 
 man may be surprised into a conviction." 
 
 There has been progress since State v. Jim! Indictments, and spe- 
 cially those for murder and perjury, have been much simplified and 
 shortened. They need not conclude against the form of the statute or 
 statutes at all. It is not necessary to give the exact date of the alleged 
 offense or the exact amount alleged to have been stolen. Our statutes 
 of jeofails have wisely cured all these trivialities. The accused person 
 may testify in his own behalf, and when the guilty party is finally con- 
 victed the sentence is executed under an order of the Governor, without 
 awaiting the next term of court. 
 
 Death by electrocution has been substituted for hanging and corporal 
 punishment has been abolished. The number of capital felonies has 
 been reduced from a round dozen or more to four. Murder has been 
 divided into first and second degree — first degree being that accom- 
 plished by premeditation, deliberation, and willfulness, such as burning, 
 poisoning, torturing and lying in wait. Burglary has been divided into 
 two degrees, it being now punishable with death only when the felony is 
 committed in the night-time, in a dwelling, actually occupied, and the 
 same as to arson. We no longer imprison children in the State's Prison 
 or the jails; we commit them to the boys' reformatory or training school. 
 And perhaps the most salutary change in the treatment of prisoners 
 relates to their life in prison. The humane spirit of the day demands 
 clean and well-ventilated jails and county homes, wholesome food and 
 good clothing, various forms of diversion, rewards for good conduct, a 
 division of the unfortunates into three classes — one called the Honor 
 Class — and some compensation, but not yet enough for work performed. 
 One visit more from Mrs. Ballington Booth, sister to the man "within 
 closed walls," with her large sympathy and moving eloquence, and Jack 
 Mills himself would be pleased with our prison conditions, I am sure. 
 2— Bar
 
 18 PKOCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Couut of North Carolina 
 
 To Dorothy Dix and James C. Dobbin we are largely indebted for our 
 first hospital for the insane, and this was followed by other like hos- 
 pitals and by hospitals for the deaf, dumb and blind, the tubercular, the 
 feeble-minded, and homes for orphans, a total of more than five thou- 
 sands of these unfortunates now having the tender care of the State. 
 
 Remedial Statutes — The Code. 
 
 Statutes of a general character have also been passed to facilitate the 
 administration of justice. Statutes have no roots, we are taught, but 
 judicial decisions are seldom without them. And yet, behind many a 
 remedial statute is some dissent of a virile minority, or some impossible 
 situation into which the law has been thrown by an ill-considered deci- 
 sion. There may be, and often is, a long struggle between the forces of 
 reaction and of progress, but the end may be seen from the beginning. 
 Take, for example, the opinion of Lord Abinger, Sir James Scarlett, 
 England's greatest advocate, in the case of Priestly v. Fowler, holding 
 that the master is not liable for the negligence of a fellow-servant. It 
 took three-fourths of a century to reverse this wrong to society. It fur- 
 nishes, says the Ohio Court, one of many instances of how little some of 
 the most shining talents of the advocate appear to prepare their pos- 
 sessor for the office of judge. The first fellow-servant decision in this 
 State was Ponton v. R. R., and it followed the English decision. This 
 doctrine of fellow-servant was abolished by statute in North Carolina not 
 until the year 1897. 
 
 Perhaps the wisest of these remedial statutes is the Connor Act of 
 1885, requiring all deeds to be registered, and practically placing an 
 unregistered deed on a footing with an unregistered mortgage. Prior to 
 said act, no one could with safety make a loan on North Carolina lands, 
 and foreign capital avoided the State. 
 
 Because of such decisions as Busbee v. Commissioners, declaring that 
 an action to remove cloud from title to land would not lie if the com- 
 plaint alleged that the said claim was invalid ("what is the necessity 
 for the suit, then, if the claim is not good," said the Court, and dis- 
 missed the action), the Jacob Battle Act was passed, and now any per- 
 son, whether in or out of possession, can bring a party into court claim- 
 ing an interest in land and contest his claim and remove the cloud. If 
 one makes obligation to convey land and afterwards dies his executor
 
 PROCEEDINGS BAR ASSOCIATION 19 
 
 Centenxial Celebration Supreme Court of North Carolina 
 
 or administrator, after the obligation is registered and upon receipt of 
 the purchase money, may execute a valid deed to the obligee. 
 
 You may now join in one suit a cause of action for debt, or on account, 
 or for tort, and in the same action attack defendant's fraudulent deed 
 executed to avoid paying his just obligations. Great progress has been 
 made in retaining jurisdiction of causes, if the court to which the 
 appeal has been taken has jurisdiction, although the court in which the 
 litigation originated had no jurisdiction. Amendments to pleadings and 
 to records, even in this Court, are liberally allowed in the interest of 
 substantial justice. 
 
 Napoleon was no doubt the most versatile of the children of men. 
 He reformed everything — war, finance, arts, government, religion, and 
 the law. On his Code Napoleon his fame rests secure. To simplify and 
 perfect the law has been the labor of mankind from Lycurgus to David 
 Dudley Field and Roscoe Pound. The problem is how to so simplify 
 the law as to avoid technicalities and delays and yet preserve personal 
 and property rights. This great task has had the attention of this 
 Court and of this Association and much free advice has been offered by 
 enthusiastic reformers both on and off the bench. I submit, with be- 
 coming diffidence, that the only remedy is the trial judge. Continuances 
 are too easy, cross-examinations too prolix, and speeches too long — and 
 these are evils the trial judge can correct. There are no delays in this 
 our Supreme Court. With each recurring first Tuesday in February 
 and last Tuesday in August, as that faithful old timepiece ticks out its 
 ten of the o'clock, a brand new bill of fare, a Id carte, is ready for the 
 expectant brethren whose speeches of three-hours length, cut to thirty 
 minutes under Rule 33, come forth under high pressure. 
 
 It is the sense of the lawyers of this State generally, I think, that the 
 Code of Civil Procedure, together with the amendments, under the lib- 
 eral construction of this Court, gives the framework for the speedy and 
 safe dispatch of the business of courts. The Code of Civil Procedure is 
 an improvement on common-law pleading and practice, as cases are now 
 tried on their merits and upon the main issue. The Code may not be 
 so accurate or scientific as common-law practice, and undoubtedly it 
 gives this Court great leeway to affirm or reverse in the interest of sub- 
 stantial justice without doing violence to any well-recognized legal prin- 
 ciple. Adopted at the end of the Civil War, brought to this State by 
 carpet-baggers and scalawags against the wish of bench and bar, the
 
 20 PROCEEDINGS BAR ASSOCIATIOI^ 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 fact tliat it is still with us is the best evidence of its worth. It is rarely 
 the case that a new trial is granted because of a mistaken remedy under 
 the Code. If one is in doubt as to whether he will bring an independent 
 action or make a motion in the original cause, he simply does both and 
 then consolidates. I have examined the last volume of our Reports and 
 find that no new trial is therein granted because of error in pleadings. 
 Judge Dillard while a member of this Court was in doubt as to whether 
 he should accept the degree of LL.D. from the University, because he 
 did not know whether old Mybra Gulley should have brought an inde- 
 pendent action or moved in the cause ! If this is the only obstacle to 
 such honors we should now have many learned doctors in our midst. 
 Much delay would be avoided if a three-fourths or four-fifths verdict 
 were allowed in civil cases. The Legislature of 1919 will do the State 
 some service if it shall break away from this fetish of a unanimous 
 verdict. It seems strange that in a republic where the majority rule 
 and rule supreme, and with the delays and wastage of hung juries, we 
 should still require all twelve jurors in civil cases to be of one mind. 
 
 The doctrine of harmless error, like a specter, haunts appellants. If 
 the merits are with the appellee, if substantial justice has been done, 
 he may feel reasonably safe ; but if an act of injustice can be seen in 
 the record, well may he tremble — the slightest error will undo him. The 
 tragedy of the law is when some appellate court, in the interest of sup- 
 posed innocence or to suppress a supposed fraud, wanders from the 
 beaten legal path and at the same time fails to discover on which side 
 justice really lies. Failing to set forth in the record what the excluded 
 answer to the obnoxious question would have been is the lion in the 
 pathway of new trials if substantial justice has been done; but if in- 
 justice has been enacted into law, this usually benign and sleeping prin- 
 ciple awakens into life. " Quacunque via data'' justice is done, "Fiat 
 justitia mat caelum." Sometimes the trial judge excludes a mass of in- 
 competent evidence, and afterwards in arraying the contentions to the 
 jury repeats such excluded evidence. It is exasperating to hear the 
 appellate court say in a cold manner that they do not grant new trials 
 because of error of the judge in arraying evidence. In addition to the 
 codification of our Civil Procedure, we have codified most wisely the 
 law of "Negotiable Instruments," "Corporations," "Partnerships," and 
 "Executors and Administrators."
 
 PKOCEEDINGS BAE ASSOCIATION 21 
 
 Centennial Celebration Supreme Court of North Cabolina 
 
 To be a judge satisfactorily to one's self is not, nowadays, an easy task. 
 He shonld bo just and do right and not thwart the intelligent will of 
 the people; but he must not decide so as to make himself ridiculous in 
 the eyes of the judicious and to the delight of the groundlings. To be 
 a judge and yet to so miss the law that impartial law journals and 
 writers hold one's opinion up to merited ridicule, what could be more 
 galling ! Of the Chief Justice's opinion in the Tobacco Cases, Judge 
 Harlan, in his dissent, declared that it was as sensible and learned as 
 if he had said that black was white and white was black. Sometimes it 
 happens that an error is made in an opinion of the Court, funds are 
 distributed under the erroneous opinion, a petition to rehear is filed and, 
 perforce, denied, and the principle is finally overruled in some other 
 appeal. The point first decided, and then reversed, was that the lien of 
 a judgment on the lands of a debtor should be displaced in favor of a 
 junior mortgage. 
 
 Other Statutes — Court Practice. 
 
 An examination of the Revisal will disclose that scores of sections 
 have been enacted to fill some gap in the law, to meet some knotty prob- 
 lem, or to resolve a doubtful construction. One wise statute, as Pro- 
 fessor Mordecai in his Lectures remarks, is worth a dozen decisions of 
 the Court. For example, our betterment statute, in some cases, takes 
 the place of a vendor's lien ; the question which puzzled the "Washington 
 Supreme Court, *'Is a husband who kills his wife entitled to the insur- 
 ance on her life?" is put at rest by a statute denying such right; nor is a 
 divorced person entitled to any portion of the estate of the spouse. Un- 
 gathered crops of a decedent belong to the personal representative and 
 shall not pass to the widow under a will. The appointment of a person 
 as executor shall not discharge a debt due by him to the estate; heirs 
 shall be jointly and not severally liable for the debts of their ancestor, 
 but not beyond the property acquired. Lord Campbell's Act, giving a 
 suit for death by wrongful act, is a part of our jurisprudence and is 
 most liberally construed. In many States the Employers' Compensation 
 Act has superseded this statute. All doubt as to the legal status of ille- 
 gitimates and half-blood and after-born children has been removed by 
 statute ; and wise provision has been made to supply lost or burnt records 
 or to make easy proof of the same. Curative statutes relating to defect-
 
 22 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 ive probates and registration of conveyances have served a useful pur- 
 pose in strengthening and preserving titles to real estate ; and the actual 
 possession of land for a short time under color, or for a longer time 
 without color, ripening such possession into a legal title, has been wisely 
 provided. Ours is the only State requiring a greater length of time to 
 ripen title by adverse possession as between tenants in common than 
 between strangers. Our registration laws meet the requirements of the 
 Federal Reserve system, and much money has been invested therein on 
 the easy amortization plan to persons actually engaged in agriculture. 
 Time, which is silently pulling down and destroying the handiwork of 
 man, is just as surely building up the title to his real estate in posses- 
 sion. Legacies which formerly lapsed if the legatee predeceased the tes- 
 tator are now preserved in the lineal line. The attempt to cure by 
 statute defects in deeds because of vagueness of description has naturally 
 proven abortive. The statute of frauds requires all contracts relating 
 to land to be reduced to writing ; and if the deed is lacking in an essen- 
 tial element, no statute can supply the defect. Stocks of goods may not 
 be sold in bulk except upon notice to all creditors; and assignments for 
 the benefit of creditors are safeguarded, the assignor being required to 
 file his list of creditors and make due report to the clerk of the Superior 
 Court. Suits for libel and slander are of ancient origin. The absurd 
 ruling that "The greater the truth the greater the libel" has long since 
 gone to limbo, and almost anything pertinent to the controversy, even 
 rumors, will be admitted in mitigation of damages. Seisin, which gave 
 the old courts much trouble to define and apply, has been defined by 
 statute to be any right, title or interest in the inheritance. This has 
 been construed to enable the husband to inherit from his deceased child, 
 leaving no brother or sister or descendants of such, and though there 
 may be an outstanding estate by the curtesy or for life and although the 
 husband was not of the blood of the ancestor from whom such child 
 inherits. That is to say, the husband is seized of the inheritance de- 
 spite an outstanding particular life estate. But one is not entitled to 
 a homestead, or to dower, in a remainder. 
 
 Attitude of Courts to Statutes. 
 
 Let us now consider the attitude of this Court towards the work of 
 the lawmakers. Has this Court heard the voice of the people ? The late
 
 PROCEEDINGS BAR ASSOCIATION 23 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 Col. Tazewell Hargrove used to tell the story of an old man who lay 
 dying. His two sons, one weak-minded, having been called to his bed- 
 side, he said, "My dear boys, to Thomas I am going to leave the bulk 
 of my fortune, and I will appoint you, Richard, his trustee." "Father," 
 said the weak-minded youth, "won't you give Dick the bulk of the estate 
 and make me his trustee?" 
 
 We recall that Jefferson wrote to Roane, "If the judges have the 
 power to annul statutes in conflict with the Constitution, then the Con- 
 stitution and laws are a mere thing of wax which they may twist and 
 shape into any form they please." The power of courts so to do has 
 been disputed at all times. ISTorth Carolina, though "the freest of the 
 free," was a pioneer in upholding such power. In 1787 the highest 
 Court in this State declared an act of the Legislature unconstitutional 
 and void. Judge Iredell upholding the power and Governor Richard 
 Dobbs Speight championing the opposition. Iredell addressed an open 
 letter to Speight, which text-writers pronounce the ablest and most com- 
 plete exposition of the power of the judiciary over unconstitutional legis- 
 lation which had appeared in the whole literature on the subject. 
 Governor Speight maintained that the judiciary had usurped all the 
 functions of government. Judge Iredell replied that when a judge took 
 an oath to support the Constitution, this oath ought to bind him, and 
 that if an act of the Legislature conflicted with the Constitution, to sus- 
 tain it would be to do violence not only to the Constitution but to the 
 oath he had taken. 
 
 The members of this Court, at its organization in January, 1819, were 
 of the Iredell school of thought. Chief Justice Taylor and Judge Hall 
 were graduates of William and Mary College, the college of John Mar- 
 shall, with whom they, as well as Judge Henderson, the ablest judge on 
 the bench, were in full accord. They maintained that it is the duty of 
 a judge to exercise his judgment, and not his will, and that judges should 
 be free and independent. 
 
 We read in John Quincy Adams' Diary a remark of Senator Giles of 
 Virginia, that he and men of the Jefferson school treated with the utmost 
 contempt this idea of an independent judiciary. 
 
 In a few months after this Court was organized, the epoch-making 
 opinion of Marshall in the Dartmouth College case was delivered, hold- 
 ing that the charter of a college was a contract which the Legislature 
 of New Hampshire had no right to alter in any material respect with-
 
 24 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial, Celebration Supreme Court of North Carolina 
 
 out the consent of tlie trustees. It may be remarked that Justice Gabriel 
 Duvall, without writing a word, dissented himself into immortality. 
 
 North Carolina was soon confronted with a similar question in the 
 famous case of Hoke against Henderson. The question here presented 
 was whether an office is the private property of a citizen. This Court 
 held that it was, and that he could be deprived of it only by the law 
 of the land. HoTce against Henderson was not reversed until early in the 
 present century, when it was held that an office is not based on contract, 
 but is held by right of tenure and is subject to the control of the Legis- 
 lature. Many vigorous dissents were filed before this consummation 
 came about. When courts cease to be farseeing and give utterance 
 to doctrines opposed to orderly and natural progress and development, 
 as in the Dartmouth College case, the Dred Scott decision, the Income 
 Tax cases, they invite attack. It is to be wished that judges may so 
 administer the important trust committed to them, with an eye not only 
 to precedent but to manifest destiny, to things not of today or tomorrow 
 but of a hundred years hence, that further attacks upon the system of 
 which they are exponents will not be made. 
 
 The doctrine of the recall of judicial decisions is so humiliating to 
 an honest-minded judge that an office held subject to such thralldom 
 would have as little of honor as of emolument. Our judges were first 
 appointed by the Crown, afterwards by the Executive (together with the 
 Council of State), then by the Legislature, and since 1868 they have 
 been elected by the people. In some States the final plunge has been 
 made and judges and their opinions are subject to popular recall. What 
 a commentary upon the fickleness and instability of the people or upon 
 the narrowness of the courts! The dignity of our judiciary has been 
 upheld because the courts have usually, in the first instance, planted 
 themselves upon the immutable principles of justice and right, having 
 due regard to the rights of property and of the individual. 
 
 Decisions : Wise and Otherwise. 
 
 It was early held that a corporation, to which had been granted a 
 charter to operate a ferry or maintain a bridge across a river, had no 
 exclusive right to such privilege, and that to so hold would be to create 
 a monopoly, and that other bridges and ferries might be chartered, main-
 
 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 tained and operated. Indeed our Court has been careful to vitalize our 
 declaration of rights, that perpetuities and monopolies are contrary to 
 the genius of a free people and ought not to be allowed. For example, 
 the grant to a bank of a perpetual charter with the power of charging 
 any rate of interest that may be agreed upon creates a special privilege 
 and is a monopoly and void. So the grant by the city to a corporation 
 of the exclusive use of its streets for water-works constitutes a monopoly 
 and is void. All attempts to unduly tie up real estate or create perpetui- 
 ties therein have been wisely thwarted and we adhere to the English 
 rule laid down in Peter Thelusson's Will case, a life or lives in being 
 twenty-one years thereafter. For a like reason, the Rule in Shelley's 
 case is firmly engrafted into the law of real estate. To give the first 
 taker a fee simple, though the instrument seems to convey to him only a 
 life estate, and to construe the words heirs or heirs of the body of such 
 first taker as words of limitation and not of purchase, puts the lands in 
 the channels of commerce and avoids entails. As our courts have well 
 said, "It is not a rule of construction, it is a rule of tenure, a rule of 
 law." Professor Mordecai in his comprehensive Law Lectures gives this 
 further reason, "Thou shalt not seethe the kid in its mother's milk. 
 Why not? Because the law forbids it. So with the Rule in Shelley's 
 case." 
 
 Courts have had much trouble in giving effect to limitations in deeds 
 or wills dependent upon one dying without heirs or heirs of the body, 
 such limitations being void for remoteness. To meet this difficulty, in 
 1827, the Legislature enacted that in such cases such words should be 
 interpreted to mean when such person shall die not having such heir or 
 issue or child living at the time of his death. What a tempest has raged 
 around Pearson's great opinion in Ililliard against Kearney! This 
 opinion is a half-century ahead of its time and in line with modern 
 thought. It declares that when an estate is defeasible and no time is 
 fixed on at which it is to become absolute, and the property itself is 
 given and not the mere use of it, if there be any intermediate period 
 between the death of the testator and the death of the legatee at which 
 the estate may fairly be considered absolute, that time will be adopted 
 for the reason that while, on the one hand, testators are not apt to have 
 reference to what may happen between the making of the will and their 
 own death, inasmuch as such an event may be provided for by a codicil
 
 26 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 or another will; on the other, it is highly improbable that they ever 
 mean, after giving the property itself, to make the estate defeasible 
 during the entire lifetime of the legatee and, in effect, give merely the 
 interest or use of it, which is inconsistent with the prior gift of the 
 property and deprives the primary object of bounty of the right ever to 
 exercise full ownership over it — e. g., A gift to A. if he arrives at the 
 age of twenty-one, but if he dies without leaving a child the property is 
 to go to B., the intermediate period is adopted and the gift is absolute 
 at his age of twenty-one. 
 
 Since the act of 1827 the doctrine of Hilliard and Kearney no longer 
 applies, it would seem. The mischief to be remedied by this act was to 
 prevent the failure of a remainder to take effect because of remoteness. 
 It only establishes a rule of construction by means of which the second 
 estate could under certain circumstances be validated and upheld, and 
 did not intend to change the nature of the first estate or make the second 
 estate a qualification of the first. To make said act serve the further 
 purpose of absolutely preventing a vesting of the remainder during the 
 lifetime of the testator has created much uncertainty and has tied up 
 estates for the use of unborn generations. We have a very wise statute 
 authorizing the sale of contingent estates in land, and it has been liber- 
 ally construed. Progress was made at one time in the unfettering of 
 estates by opinions holding that contingencies which impart a present 
 interest of which the future enjoyment was contingent are defeasible 
 and may be the subject of release operating as an estoppel on the heirs 
 and effectual as a valid conveyance. In one case a father devised to his 
 son certain property and provided that if the son died unmarried or 
 leaving no children the property should go to the testator's brothers or 
 sisters. It was held that the son and the living brothers and sisters of 
 the said testator could make a valid conveyance, and if all the brothers 
 and sisters of the said testator should thereafter die leaving children 
 such last-named children would be estopped by the deed of their ances- 
 tors. Of late years there has been a tendency to react from this line 
 of cases. 
 
 This Court has not hesitated to strike down acts of the Legislature 
 which manifestly violated the National or State constitutions. For ex- 
 ample, a stay law staying the collection of debts was declared void, and 
 an act providing that where an owner of swamp lands fails to pay all 
 taxes levied or which ought to have been levied on or before a certain
 
 PROCEEDINGS BAR ASSOCIATION 27 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 date, such lands should be forfeited to the State without any judicial 
 proceedings. 
 
 The State-wide Highway Law of 1917 failed to have the approval of 
 this Court, but it is confidently expected that in 1919 the lawmakers will 
 enact another statute conforming to the requirements of this Court and 
 giving our State the benefit of the same. North Carolina's climate and 
 scenery and diversity of soil, its stretch from sea to mountains are so 
 fine, that it is little short of a calamity that she shall not have highways 
 alluring pleasure-seekers, like the Trossacks and the Riviera. 
 
 A good illustration of the progress of judicial opinion is furnished by 
 the attitude of this Court to Article IX, section 3, of the Constitution, 
 providing for a four-months school tenn. Twenty-five years ago the case 
 of Barksdale v. Commissioners was decided by a divided Court. It was 
 then held that an act of the Legislature authorizing the county commis- 
 sioners of a county to exceed the limit of taxation provided by Article Y, 
 section 1, was unconstitutional and void. The gist of the opinion was 
 that schools were not a necessary expense of the county, and that the 
 equation in taxation must be observed. This was more than a fourth of 
 a century ago. The University had not then become a part of the life 
 of the people ; there were no teachers' training schools ; the public school 
 teachers were not organized. The people of the State chaffed under the 
 Barksdale decision until 1908, when Collies case came to the Supreme 
 Court, and upon the same state of facts as in the Barksdale case, Barks- 
 dale was reversed. The Court simply caught step with the people, and 
 has since held that electric lights for the use of a town or city is a 
 necessary expense. Why not schools also? 
 
 In contrast with the Barksdale decision is the opinion in a very recent 
 "No-Fence Law" case. It boldly sweeps aside the earlier decisions, up- 
 holding the State policy that stock might range where they would, and 
 that crops, not hogs, should be fenced, and declares "The defendants 
 contend that under the decisions of the Court in Jones and Laws cases 
 it was held that by the public policy of this State the owners of stock 
 are allowed the privilege of letting them run at large upon the property 
 of others without being liable for damages done by them in such tres- 
 passes, and that, on the contrary, the owners of crops are liable for not 
 keeping up fences to prevent trespasses from their neighbor's stock." 
 This loses sight of the fact that these decisions were rendered prior to
 
 28 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 the war in 1860 — fifty-eight years ago — and that in the meantime the 
 public policy of the State as to fences, as evinced by numerous statutes 
 and provisions, is now exactly the contrary. 
 
 Statutes authorizing local tax assessments for roads, for drainage, and 
 those regulating prohibition, upholding the jug law, enforcing vaccina- 
 tion, and requiring the signature of the wife and her private examina- 
 tion to a chattlc mortgage of the household and kitchen furniture have 
 been liberally construed and upheld. About 1870 this Court refused to 
 give to the Legislature its opinion as to the tenure of office of the mem- 
 bers of the General Assembly ; three of the judges wrote letters declining 
 for the reason that the Constitution of 1868 made forever separate the 
 three departments of government. Since that time, however, this Court 
 has receded from that position and given its opinion as to the length 
 of the term of office of its own members. 
 
 Evidence Progressive. 
 
 One of the most difficult matters for lawmakers and judges is the law 
 of evidence. Professor Thayer and Justice Holmes say that the law of 
 evidence is the creature of experience, not of logic, and that the dealings 
 of men are not dependent upon mathematical certainty. It was con- 
 ceived originally that witnesses should always be present, but this was 
 found impracticable and the general rule has become honeycombed with 
 so-called exceptions based, as Wigmore says, on circumstantial guarantee 
 of trustworthiness and necessity. Boundaries, pedigree and expert evi- 
 dence had been recognized among the leading exceptions to the rule 
 excluding hearsay evidence, such having been admitted from necessity; 
 but there is at the present time an even more liberal tendency, and rules 
 found by the business world to be safe for ordinary transactions have 
 been adopted by the courts which are no longer pedantic, but practical. 
 
 The question was early presented in this State, whether a person not 
 an expert could testify to one's mental condition or capacity. Judge 
 Gaston delivered the first opinion, in the Clary Will Case, upholding the 
 admissibility of such evidence. Of Judge Gaston's opinion, Redfield 
 says that it was done with great ability, and Wigmore calls it the great 
 law-making and argument furnishing precedent for the earlier rulings. 
 George E. Badger, our greatest forensic orator, who enjoyed a large 
 practice before the U. S. Supreme Court, was of counsel in the Clary
 
 PROCEEDINGS BAR ASSOCIATION 29 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 Will Case. Evidence of this kind is not designated as expert, but opin- 
 ion evidence, and the distinction is well marked. 
 
 Great progress has been made regulating the proof of handwriting. 
 The old rule of Outlaw and Hurdle, that the jury must hear, and not 
 see, has yielded to the better ruling that all possible light upon this 
 mooted question should be let in. The disputed writing and the ad- 
 mitted, or proven genuine writing, may now be shown to the jury and 
 an expert witness may explain and illustrate his testimony to them and 
 his conclusions and reasons for the same. North Carolina and Louisiana 
 were the only States forbidding the jury to exercise their eyesight in 
 such circumstances. 
 
 It has been held competent, in an insurance case, to ask a witness, 
 who had knoAvn the insured intimately for months, if he was temper- 
 ate in the use of liquors. This was held to be neither expert nor opinion 
 evidence, but the statement of a fact. Train sheets made out by a train 
 dispatcher from reports telegraphed to him by a station agent and show- 
 ing the position of a train at a certain time are admissible, as are daily 
 records kept by a recluse for his own use and showing that it rained on 
 a given day at a given place. The court, not the jury, passes on the 
 question of expert or nonexpert; and a wheelwright, who did not know 
 what was the square root of 49, was admitted as an expert to testify to 
 a question of hydraulics, the question being how much does the with- 
 drawal of so many inches of water from a pond effect the potential 
 capacity of its waterhead. 
 
 At first our courts were slow to admit photographs in evidence, but 
 now not only photographs, but messages by telephone, are admitted. The 
 mortuary tables and the charge of the judge upon request may be 
 handed to the jury for their consideration ; indeed the conduct of a well- 
 trained dog in following the trail will not be excluded under proper safe- 
 guards. 
 
 Parol Evidence — Parol Trusts. 
 
 Our courts have a natural desire to do the right thing. This tendency 
 exhibits itself in letting down the bars for parol evidence to vaiy the 
 terms of a written instrument. When the entire contract has been 
 reduced to writing, and there is no fraud, a relaxation of this rule is 
 regrettable. Moffitt and Maness is the safe rule, as the latest utterances 
 of this Court attest.
 
 30 PROCEEDINGS BAR ASSOCIATION^ 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 Of the Statute of Frauds an Eiiglisli judge remarked that each word 
 was worth a subsidy. Professor Smith says that he is not so sure of 
 this, though each word has undoubtedly cost a subsidy. The Statute of 
 Frauds has been enacted in part only with us. The seventh section, 
 forbidding the creation of parol trusts or confidence of lands, unless 
 manifested or proved by some writing, is not in force. We often wish 
 that it were. The law on the subject is in great confusion. The opinion 
 of Pearson in Sheltons case has been departed from and the beneficent 
 provisions of the Statute of Frauds occasionally set at naught. We con- 
 cede that at common law no writing was necessary either to pass title 
 or to create a trust. The vendor handed to the vendee a clod of dirt 
 and put him in possession in the name of livery of seizin, and a trust 
 could then be engrafted on the land by parol. To say that the failure 
 to enact the clause relating to parol trusts warrants the doctrine that 
 any bargain by word of mouth concerning lands may be enforced be- 
 cause the specious plea of ''parol trust" is relied on would seem to beg 
 the question. What is a parol trust? It cannot exist when there is no 
 fiduciary relationship, when neither party has title to the land, and 
 when the party invoking the doctrine has not paid the purchase money. 
 For example, it cannot embrace a loss of a bargain because one party 
 has broken his word and bought at public sale lands which the other 
 party claims the purchaser agreed to buy for him. Is not the safe rule 
 that when there is no well-recognized trust relation between the parties 
 the mere words of the holder of the legal title will not suffice to create 
 such trust? 
 
 Innocent Holder for Value. 
 
 Commercial paper is, of course, the life-blood of trade, not one- 
 hundredth of one per cent of business being based on actual money. 
 When the rule admitting parol evidence is extended to such paper, in 
 the hands of a holder for value, contrary to the well-recognized rules of 
 the law-merchant, is not the life of trade imperiled? Some notes are 
 necessarily dishonored even in the hands of an innocent holder for value 
 and without notice ; for example, those tinctured with usury or based on 
 the violation of some statute, such as gambling, and all such notes as 
 fail to comply with the wise provisions of our Negotiable Instrument 
 Act. But when it was declared that a municipal bond was invalid in 
 the hands of an innocent holder because the roll was not called three
 
 PROCEEDINGS BAR ASSOCIATION 31 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 separate times in the Senate and in the House when the act authorizing 
 the bond issue was on its passage, the credit of the State suffered. The 
 Supreme Court at "Washington soon set us right in this matter. Six 
 and eight-cent cotton was pinching us in those days! M. V. Lanier, 
 a great lawyer, dug up this point in the Oxford Bond Case. That a 
 note due in two or three years, interest payable semi-annually, is dis- 
 honored upon failure to pay the first installment of interest, and that 
 the party who acquired the same in due course without notice and for 
 full value is not protected was held in an inferior court in New York 
 and afterwards followed in this State, how wisely time will determine. 
 Light and trifling circumstances showing knowledge of the fraud can 
 only be justified where the transaction is of such publicity and extent 
 that the commercial world may be presumed to have notice thereof ; for 
 example, the fraudulent sales, up and down the land, of sewing ma- 
 chines, Percheron horses, and the like. 
 
 "Cyc." and Liens. 
 
 "We thus see that numerous changes have occurred in many depart- 
 ments of the law, particularly adjective law, and that both civil and 
 criminal procedure and practice have been revolutionized. Sanders on 
 Pleading and Evidence, which Chief Justice Smith and my father used 
 to tell me was the vade mecum of the common-law lawyer, has given 
 place to "Cyc." and Corpus Juris. "Well do I remember with what 
 scorn these black-letter lawyers looked upon the coming out of the Ency- 
 clopedia of Law — a mechanical and alphabetical arrangement to supply 
 the place of brains. And the advertisement of such books ! How offen- 
 sive ! A great locomotive labeled "Cyc," like the Bull of Basham, dash- 
 ing down the track and hurling Story and Fearne and Greenleaf and 
 Sugden and Stephen hither and yon; or else some care-worn attorney, 
 with fingers running through dishevelled hair, and so perplexed until 
 the A. & E. arrived, and then — all smiles ! And yet the substantive law 
 has been altered but little these hundred years — real property, wills, 
 contracts, principal and agent, sales, executors and administrators, lega- 
 cies, bailment, and the right of a citizen to personal liberty and personal 
 security — the law governing all these subjects remains practically the 
 same. 
 
 Our Government lives up to the principle that the laborer is worthy
 
 32 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 of his hire and makes ample provision that his wage shall be secure. 
 The farm laborer has his lien on the crop, ahead of all other liens ; the 
 mechanic has his lien on the building; the materialman and subcon- 
 tractor have their liens ; the hotel and boarding-house have their lien on 
 the baggage ; the liveryman his lien on the stock ; the doctor is preferred 
 as to his services in the last illness of his patient; all classes seem to 
 have some kind of lien except the lawyer, and he comes in only when 
 he is acting as an officer of the court and under its orders and there is 
 a fund created by his efforts and within the custody of the court. 
 
 Important Decisions. 
 
 The harsh rule of Cutter v. Powell that there can be no recovery upon 
 a quantum meruit for breach of an entire contract, though it had been 
 nearly performed, and the breach is occasioned by the death of the em- 
 ployee, has been greatly modified in the interest of substantial justice. 
 One who contracted to serve for a stated period at so much a year, pay- 
 able monthly, was held entitled to recover by the month, though he quit 
 his employment before the end of the period. 
 
 The greatest good to the greatest number being the law of this Court, 
 if one erect a dam across a floatable stream he must arrange suitable 
 sluiceways for the convenient passage of logs and timber, and a floatable 
 stream is held to be one down which, at ordinary seasons of rainfall, 
 logs may be floated. And again, riparian owners may not materially 
 diminish the flow of a stream by extracting water therefrom and to so 
 deflect such water to the injury of lower riparian owners is actionable; 
 as it is likewise actionable to pollute the water of a stream by allowing 
 raw sewage therein. The watersheds of cities and towns have the 
 fostering aid of the court; the right to pure and wholesome water as it 
 flows down the rivers and streams is rigidly upheld as against the right 
 of parties up the stream to dump raw sewage therein; such latter right 
 being a servient easement. 
 
 This Court has yielded wholeheartedly to the doctrine of the police 
 power of the State, the safety of the people being suprema lex. Stat- 
 utes regulating bucket shops, making it presumptive evidence of gam- 
 bling to purchase any article for future delivery when no immediate de- 
 livery takes place, raising presumptions of guilt from the bare posses- 
 sion of a small quantity of spirituous liquors, making the place of de-
 
 PROCEEDINGS BAR ASSOCIATION 33 
 
 Centennial Celebuation Supreme Court of North Carolina 
 
 livery the place of sale of spirituous liquors, requiring cities, towns and 
 manufacturing plants to put in sanitary filtration and other appliances 
 to protect watersheds; these and many like statutes have been liberally 
 construed by the Court to the great benefit of the people. 
 
 On the question of the constitutionality of a statute which directed 
 the proper official to seize and confiscate fishing nets which were engaged 
 in violating the fishing laws there was a sharp division of the Court, the 
 majority declaring that the statute was valid. 
 
 Under the police power, and for the protection of morals, acts have 
 been upheld making it a misdemeanor to use profane and indecent lan- 
 guage in public places; forbidding the doing on Sunday of labor, work 
 or business of one's ordinary calling; an act of this kind was, however, 
 declared void which attempted to prohibit, because done on Sunday, 
 work done in private and which did not effect public decency or disturb 
 the religious devotions of others. The Christian religion is no part of 
 the common law, and contracts executed on Sunday have been upheld. 
 
 The kindred right of Eminent Domain, the right of governmental 
 agencies to appropriate the property of the citizen for general good, is 
 a favorite of our courts. In a leading case, soon after this Court was 
 organized, it was held that the General Assembly could acquire not only 
 the easement, but all interest of the individual, the only restriction be- 
 ing that the property must be for public, not for private, uses, and that 
 it must be upon just compensation. The Constitution makes no pro- 
 vision for compensation, but the principle is so grounded in natural 
 equity that it has never been denied to be a part of the law of this State, 
 and such compensation need not precede the taking, so that provision is 
 made that the owner will be surely and ultimately compensated. 
 
 Contempt and Public-Service Corporation. 
 
 On the subject of contempt this Court has taken an advanced position, 
 holding that when a trial judge was assaulted in his room at the hotel 
 after court had adjourned for the term, though no formal announcement 
 had been made and such assault was on account of a sentence of the 
 judge during said term, such judge was within his rights in summarily 
 punishing the offender for contempt. It is a matter of interest to the 
 friends of the Secretary of the Navy to know that the U. S. Supreme 
 Court has just affirmed a contempt punishment of a Toledo editor in 
 3— Bar
 
 34 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 circumstances almost identical with those which so stirred our State 
 some dozen years ago when Josephus Daniels was heavily fined by Judge 
 Punaell and subsequently released by that brave and loyal son of the 
 State, Judge Jeter C. Pritchard. The vigorous dissent of Justice 
 Holmes in the Toledo case must be the law. It cannot be otherwise in 
 a free republic. 
 
 This State and perhaps Texas seem to be the only jurisdictions in 
 which mental anguish is recoverable for a negligent failure to deliver a 
 telegram designated as a death message. Such cases, in their various 
 ramifications, are indeed a puzzle to our courts. Public-service corpora- 
 tions have been held liable in damages, actual and compensatory, for the 
 violation of contracts with the public, and such damages may likewise 
 embrace any humiliation or disgrace thereby occasioned. And we are 
 one of the few States permitting an injured party to sue into a water 
 contract made by a water company with a city and guaranteeing flow 
 and pressure of water sufficient for domestic and fire purposes, which 
 contract had been broken by the company with resulting injury. 
 
 Negligence Master and Sekvant. 
 
 No branch of the law has undergone greater change than the law of 
 negligence, particularly as between master and servant, lias not the 
 time about come in America, as it has actually come in England, when 
 a servant engaged in complicated work must be compensated for injuries 
 occurring while in the performance of duty, though the master be not 
 negligent? Society is so complicated and the proper relation of man to 
 man such that the stronger must bear the burdens of the weaker. With 
 the abolition of the fellow-servant rule and of the assumption of risk a 
 long step for^vard was taken ; and though we have no employers' com- 
 pensation act, this Court has been at all times liberal and astute to dis- 
 cover evidence of negligence. Thus it is negligence in the master not to 
 instruct a green hand working with complicated machinery. The fail- 
 ing to promulgate reasonably safe rules for doing work, in such cases, 
 is likewise negligent; and so is the failure, periodically, to inspect ele- 
 vators and other dangerous appliances. The duty of the master to fur- 
 nish safe appliances, a safe place, and to make reasonably safe rules for 
 the servant is enforced with vigor. At one time, under the catch phrase 
 "the continuous negligent omission of duty," it seemed that the servant
 
 PROCEEDINGS BAR ASSOCIATION 35 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 might recover for the negligence of the master who failed in this pri- 
 mary duty, although the servant was himself guilty of contributory 
 negligence. But, at the first opportunity, this was reversed and it was 
 held not true as an abstract proposition that the defense of contributory 
 negligence is not available to the defendant in such cases. If the in- 
 jured party is negligent (except when engaged in railroading, which is 
 now regulated by a statute conforming to the Federal statute), and such 
 negligence is the proximate cause of his injury, he is barred. The em- 
 ployee of a manufacturing plant assumes all risks incident to his em- 
 ployment, except as to defective appliances, which he does not assume 
 unless the defect is so obviously dangerous that no prudent man would 
 continue to work and incur the risks. If an infant under the statutory 
 age is employed in a factory and is injured, the employer is liable, 
 although the infant was not at the time in the actual line of his work. 
 So the owner of a railroad is liable for the negligence of its lessee in 
 operating the road. 
 
 The doctrine of the last clear chance (Davies and Mann) has been 
 adopted by our courts. So far has this been carried that it is really an 
 advantage to the cause of the plaintiff that his intestate was drunk and 
 down on the track when killed, because the engineer could have discov- 
 ered his peril the more readily. It is negligence not to stop the train 
 for one that could be seen by the engineer on a trestle or bridge, or for 
 an infant. This rule was, however, not adopted without a stiff dissent. 
 It is not negligence not to stop the train for a person walking on the 
 track and apparently in possession of his faculties. It is presumed that 
 he will get off, and this presumption protects the railroad until the 
 moment of impact. Such holdings as Smith v. Railroad, that one riding 
 in a passenger coach attached to a freight train and standing up between 
 the seats was thereby guilty of such contributory negligence that he 
 could not recover damages if injured by the negligent jerking of the 
 train sounds harsh a third of a century later. 
 
 "Upon the whole," says Professor Mordecai, "I take it that we may 
 consider the law of this State now to be: That the principal is liable 
 for the negligence, unskillfulness, frauds, trespasses and torts of his 
 agent, although such trespasses and torts be willful, wanton and mali- 
 cious ; provided they be done either by the direction, assent or authority 
 of the principal, or are subsequently ratified by him, or are committed
 
 36 PROCEEDINGS BAR ASSOCIATION 
 
 Cen'tennial Celebration Supreme Court of North Carolina 
 
 by the agent in the prosecution of the principal's business or within the 
 scope of such agent's employment in the discharge of duties assigned to 
 him and while in the discharge thereof; or it seems, if the act be done 
 with the belief that it will benefit the principal and with the intention 
 to advance his interests, and that this applies alike to individuals and 
 corporations, although the distinctions between individuals and corpora- 
 tions and between different classes of corporations heretofore pointed 
 out may exist. If the wrongful act of the employee be wanton and mali- 
 cious, only compensatory damages will be allowed, even against rail- 
 roads. Railroad corporations are liable for injury, insult, violence and 
 ill-treatment to passengers inflicted by their employees, though such in- 
 juries be the result of the willful and malicious act of an employee, and 
 although the employee acted in consequence of charges made against 
 him and epithets applied to him by the passenger such as no good man 
 would deserve and no brave man would submit to." 
 
 Chief Justice Ruffin — Equity. 
 
 When this Court was organized there were no text-books or treatises 
 of value on the subject of Equity. Blackstone devotes less than twenty 
 pages of his commentaries to it. The fame of our great Chief Justice 
 Ruffin rests for all time upon his comprehensive grasp of this subject. 
 He blazed the way, and his fame is greater as time passes — of him and 
 of Lemuel Shaw, Chief Justice of Massachusetts, and of John Gibson, 
 Chief Justice of Pennsylvania, and of Charles Doe, Chief Justice of 
 New Hampshire, Professor Pound, Dean of the Harvard Law School, 
 declares that they arc the greatest judges that have adorned a State 
 bench. 
 
 Negko Legislation. 
 
 If I could I would let this occasion pass without a discordant note; 
 but he is a false prophet who speaks only smooth things. From John 
 Morley's Diary of September 1, 1910, I read: "Today Booker Wash- 
 ington comes to Skibo, where I am staying, being a great friend of my 
 host's. I had talks with him when I was in America, six years ago. 
 The future of the negro in the United States has always profoundly in- 
 terested and excited me, as well it might. What will their numbers 
 amount to twenty or fifty years hence ? Terrible to think of it ! Talk
 
 PKOCEEDIISrGS BAK ASSOCIATION" 37 
 
 Centennial Celebhation Supreme Court of North Carolina 
 
 of India and other insoluble problems of great states, I declare the 
 American negro often strikes me as the hardest of them all." 
 
 These words were spoken by a friend of America, a careful and wise 
 statesman, a liberal and an optimist. Shall we take them to heart ? So 
 long had England shut her ears to Ireland's plea that when her day of 
 trial came (July 31, 1914) hundreds of thousands of British soldiers 
 were required to guard other hundreds of thousands of discontented 
 Irishmen, more than a million men remaining inactive while the pillars 
 of civilization were being torn away. Had the great war broken out in 
 the days of Populism, when the negro was contending for his rights, 
 what would have been the consequences ! And when another war shall 
 come and the negro is smarting under the servitude in which an inexor- 
 able fate has placed him and must keep him, God pity us of the South. 
 
 "We do not apologize for, nor would we undo, one piece of North Caro- 
 lina legislation affecting the negro. The constitutional amendment 
 taking away his vote is necessary, and so are the laws separating whites 
 and blacks toto coelo in railroad trains, street cars, theaters, and other 
 public places. If two races occupy the same country on an equality, the 
 end has always been amalgamation. Ethnologists say that this will be 
 our fate. I do not think so. The last sixty years have deepened the 
 instinct of race prejudice and the danger lies another way. Even in 
 this calm and judicial presence, let me say that as things now stand, the 
 alternatives are : amalgamation, extermination, emigration, or servitude. 
 I have my views, but this is neither the time nor place to promulgate 
 
 Sidelights on this Court, Etc. 
 
 There are some sidelights on the legal and legislative history of the 
 last hundred years that may be of interest. One of the most noted dis- 
 sents, considering the personal consequences, is Pearson's, in Spruill v. 
 Lean/, the dissenting opinion becoming the law in Myers v. Craig. The 
 point as at first decided was that collateral warranty barred the heirs of 
 the warrantor and those claiming under him — really too dry a subject 
 to have caused any unpleasantness between the two eminent Chief Jus- 
 tices. The earnest dissent of Euffin in Wiswall against Brinson, that 
 if a landowner was answerable in damages for negligence of one em- 
 ployed to move a house, the whole of life would fall into the relation- 
 ship of master and servant, profoundly impressed the older lawyers and
 
 38 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebuation Supreme Couet of North Carolina 
 
 has been quoted in Westminster Hall. Rodman's dissent in Long v. 
 Long no doubt changed the law in divorce matters, bringing about sec- 
 tion 1561 (4) of the Revisal. The humane dissent of Battle changed 
 the rule excluding threats of the deceased communicated to the prisoner. 
 The dissent of Merrimon in the Barhsdale case disclosed his larger 
 vision. Bynum's dissent in the North Carolina lease matter gave him 
 merited fame; as did the dissent of the present Chief Justice in the 
 Office Holding Cases; and his dissenting opinions in the matter of con- 
 tracts of married women and of the homestead led up, respectively, to 
 the Martin Act, which allows the wife to contract without the joinder 
 of her husband, and to such a change in the law of homestead that when 
 a homestead is now sold it ceases to be exempt in the hands of the pur- 
 chaser. Iredell's dissent in Cliisliolm v. Georgia, as is well known, 
 brought about the Eleventh Amendment of the Constitution. Bartholo- 
 mew F. Moore's brief in State v. Will, a slave, is one of the most im- 
 pressive documents on file. It may be found in Peele's Distinguished 
 North Carolinians. It advocated the right of a slave to slay his master 
 in self-defense, and saved his life. The most important civil cause, con- 
 sidering the length of the trial, the amount involved, the ability of the 
 attorneys engaged, the prominence of the trial judge and of the suitors 
 and witnesses, is the Johnson Will Case. It is in a class to itself. The 
 cause which aroused most bitterness, dividing a great denomination, and 
 coming four times to this Court, was Gattis and Kilgo. The decisions 
 in the Alshrook case, putting the W. & "W. R. R. on the tax books, though 
 exempted from taxation by charter; and in the Selma Connection case, 
 requiring the railroad to make convenient connection with Raleigh, were 
 afiirmed by the U. S. Supreme Court and are far-reaching and pro- 
 gressive in sweep and novelty. The most exciting and dramatic criminal 
 cause was State v. Boyle. 
 
 Prior to the Sixty-third Reports, no writ of error had gone from this 
 Court to the Supreme Court at Washington. Since then fifty-nine writs 
 of error have been disposed of by said Court, with the following results : 
 
 Dismissed 17 
 
 Affirmed 20 
 
 Reversed 22 
 
 59
 
 PKOCEEDINGS BAK ASSOCIATION" 39 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 Affirmances, 47 per cent of appeals. This Court, disregarding Chief 
 Justice Bleckley's caution that a Court reverse all errors except its own, 
 has overruled itself one hundred and seventy times in a hundred years. 
 The longest term of sei-vice on this bench is that of the present Chief 
 Justice — thirty years; next in length of service come Pearson and 
 Ruffin, twenty-nine years and ten days and twenty-five years each, 
 respectively. The longest term of service on the Superior Court bench 
 was John M. Dick's twenty-seven years. Judge Oliver H. Allen, now 
 of our Superior Court bench, is a veteran of twenty-one years service. 
 Of the olden day, the legislator having the longest service was Joseph 
 Riddick of Gates — twenty-nine years in the House and four years in the 
 Senate — thirty-three in all ; and Harry W. Stubbs of Martin has to his 
 credit a longer legislative record than any living man — twenty-four 
 years in Senate and House. Amicus Curiae of this Court, for years and 
 years, was Patrick Henry Winston, Sr., whose argument won Cloud v. 
 Webh, and to whom Pearson pays high tribute in Day v. Howard. 
 
 Apostrophe to Judges. 
 
 The task which the partiality of my brethren has assigned me is now 
 completed. Patriotic duties to our country, before the great war ended 
 and since, and a busy professional life, made more onerous by the ab- 
 sence of a son, now a captain in that war, have prevented a more com- 
 prehensive review of this interesting subject. Sometimes when friends 
 have gathered around the fireside in a sister State I have heard those 
 who have made a study of ISTorth Carolina remark, "You North Caro- 
 lina folks have a great way of knowing one another; you seem to be 
 one big family." And so we are, both as to the quick and the dead. 
 And the spirit of the departed, who wrought and labored in these halls, 
 and many of whom look down upon us from these walls, seems to be 
 about us on this interesting occasion — Taylor, the Mansfield of the 
 bench; the strong-minded Henderson; the well-furnished Hall and 
 Daniel ; Ruffin, the stern and clear-minded prophet ; Gaston, the man of 
 righteousness ; the courtly Toomer ; the profound Nash ; the dependable 
 Battle; the versatile and original Pearson; the accomplished Manly; 
 Reade, the caustic logician; Smith, the well-versed jurist; Bynum, 
 Rodman, and Boyden, profound students of the law; Dick, the belle-
 
 40 PEOCEEDINGS BAR xVSSOCIATIO:N^ 
 
 Centennial Celebration Supkeme Court of North Carolina 
 
 letter scholar ; the slow but safe Faircloth ; Settle, the statesman ; Ashe, 
 every inch the judge ; Dillard, the sweet-spirited dispenser of justice and 
 equity; Merrimon, the free lance; Euffin, Jr., a terror to frauds and 
 shams; honest Joe Davis; the imperious Avery; the erudite and dis- 
 criminating Shepherd ; the incisive MacRae ; the well-rounded Burwell ; 
 the rugged Furches ; the lovable Cook ; and the legal idealist, Douglass, 
 and their successors surviving — all, all, are in this presence today. 
 
 The mariner of old said to jSTeptune, in a great tempest: "O God! 
 thou mayest save me if thou wilt, or if thou wilt thou mayest destroy me ; 
 but whether or no, I will steer my rudder true." Through sunshine and 
 shadow, these hundred eventful years, this, too, has been the prayer of 
 North Carolina judges, 
 
 Mr. President and gentlemen of the Supreme Court, North Carolina 
 has a right to our love and pride. "Behold her and judge for your- 
 selves." 
 
 Some Authorities and Comment. 
 
 To preserve something of the flavor of our law and for benefit of 
 younger brethren, let me append : 
 
 Lord Denman's Act (see Rev., 1628) allows defendant in civil action 
 to testify, passed in 1866 ; in criminal cases defendant allowed to testify 
 in 1881. Lord Campbell's Act, recovery for death by wrongful act. Rev., 
 sec. 59. 
 
 Important statutes and decisions relating to real estate : Act of 1827, 
 construes contingent limitations, Rev., 1851 ; act of 1903 authorizes sale 
 of contingent interests. Rev., 1590; act defining seisin ("Asa Biggs 
 Act"), Rev., 1556, Rule 12; act 1879, making deed fee simple without 
 word "heirs," Rev., 946; act 1885, Connor Act, requiring registration 
 of all deeds. Rev., 980; act 1891, to cure vagueness of description. Rev., 
 948 ; act 1893, quieting title, Jacob Battle Act, Rev., 1589. 
 
 Perhaps greatest legal buttles have waged around act 1827 : Hilliard 
 V. Kearney, 45—221, leading case before act; since act. Shepherd's great 
 opinion, Starnes v. Hill, 112—1; 134—24; 165—20. Martin Act, Laws 
 1911, ch. 109; Fellow-servant Statute, Rev., 2646; Laws 1897, cli. 56; 
 acts abolishing contributory negligence and assumption of risk, Laws 
 1913, ch. 6; 1915, ch. 356. Judge Asa Biggs lost Lawrence v. Pitt, 46—
 
 PEOCEEDINGS BAR ASSOCIATION 41 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 352 (a life estate depriving his client of seisin) ; next session, he being 
 a member, the Legislature defined seisin to be any interest in freehold. 
 The common-law definition of seisin would seem to deprive one of home- 
 stead in remainder or reversion, 87 — 79 ; and widow would have no 
 dower therein, 90 — 189. Dos de dote! xict quieting title is liberally 
 construed, 154^157; 151—615; 173—525. The contingent remainder 
 act is constitutional and a favorite, 142 — 154; 165 — 64; 132 — 549; 
 fountain-head of doctrine, Ex Parte Dodd, 62—97 ; act of 1879, "Heirs" 
 statute, liberally construed, 133 — 5; prior to statute, see Vicl-ers v. 
 Leigh, 104 — 257, title to large part of Durham City confirmed by labors 
 of W. W. Fuller. 
 
 Safe rule governing parol trust, Sheltons case, 58 — 292; 64 — 772; 
 contra, 151—26. Evidence progressive, 145—385; 147—564; 138—337. 
 Outlaiu V. Hurdle, 46—150. Clarij Will Case, 24—78. 
 
 iSTegotiable Instrument Act, Eev., ch. 54, resolves scores of doubtful 
 points governing bills, etc. (not sufficiently studied by the profession). 
 Farthing v. Darh, 109 — 291, dangerous doctrine, subsequently overruled; 
 do., 153 — 475. Recovery on special contracts: Cutter v. Powell, an 
 English case; doctrine repudiated : Gorman v. Bellemy, 82 — 497; 95 — 98. 
 Leah v. Gay, 107 — 468, overruled in Thornton v. Vanstory, 113 — 196 
 (after funds distributed in former case). Cheeh v. ^Yalli:er, 138-446, 
 upholding a deed by contingent remainderman and his "living" heirs, 
 has lost favor with the Court in some recent decisions. Rights of ripa- 
 rian owners in floatable stream, 116 — 731. Judges giving opinions as 
 to tenn of office, 64 — 785. 
 
 Burke's "Reflections on French Revolution." 
 
 Connor, R. D. W., "Ante-bellum Builders of North Carolina." 
 
 Bryce's "American Commonwealths." 
 
 Blackstone, Vol. I, Feudal System. 
 
 Sprunt's "Chronicles of the Cape Fear." 
 
 Battle's History of the Supreme Court, 103 IST. C. Reports. 
 
 Morley's Recollections. 
 
 Connor & Cheshire's "North Carolina Constitution." 
 
 Mordecai's Law Lectures. 
 
 "Two Centuries Growth of American Law,"
 
 42 PEOCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 President Aydlett : The second speaker is one of the strongest and 
 most prominent lawyers of our State, Hon. T. T. Ilicks, of Henderson, 
 who Avill address us on "The Supreme Court of the Future." 
 
 THE SUPREME COURT OF THE FUTURE 
 By Thurston T. Hicks. 
 Mr. President, Ladies and Gentlemen: 
 
 The time that is past and the time to come are equal in length and 
 are separated by the moment we call the present. We know so much 
 more of the past than of the future that it will require much less time 
 to predict than to narrate. 
 
 While Sir Walter Raleigh was confined in the Tower of London await- 
 ing execution, and writing his History of the World, he saw from his 
 window an affray in the courtyard below, which ended in the stabbing 
 and killing of a man. Talking of the occurrence aftenvard to the gov- 
 ernor of the prison. Sir Walter was surprised to find that all his ideas 
 as to what happened, all his deductions from what he had seen, were 
 utterly at variance with the facts. "Alas!" sighed the world-famous 
 man, "If I am so inaccurate as to what passes before my eyes, how can 
 I hope to be accurate in the 'History of the World' I am writing?" 
 
 For the last hundred years the lawyers of ]S^orth Carolina, with abso- 
 lute knowledge of the facts, have puzzled their brains to determine in 
 advance what the Supreme Court would do in each of the thousands of 
 cases that have been before it. A large majority of them have proven 
 to be false prophets, for has not one side nearly always lost? And have 
 we not often not only lost cases that we expected to gain, but also gained 
 cases that we expected to lose? 
 
 The public policy of the State in the last hundred years has changed 
 from within, or been changed from Avithout, in many vital particulars. 
 Yet the Bar Association, "by and with the advice and consent" of the 
 Court, has directed me to foretell what kind of a Supreme Court will 
 sit in Xorth Carolina, with what duties and authority, and what it will 
 do in the hundred years beginning this 4 January, 1919.
 
 Thurston T. Hicks
 
 PROCEEDINGS BAR ASSOCIATION 43 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 In the performance of this task I have invoked the spirit of prophecy, 
 and it is upon nie : not any supernatural visitation. I have and use no 
 "Thus saith the Lord" to give weight to my words. No delphic oracle 
 inspires my tongue with ambiguous speech, made to fit in with what 
 may hereafter occur. Neither have I donned the time-annihilating hat 
 of Herr Teufelsdrock to enable me to see and exhibit the conditions 
 that shall be. 
 
 If I miss the mark of my high calling, some of you are no doubt wise 
 enough to know it today, but you will not file dissenting opinions. For 
 this occasion I have the only authoritative record guess as to this Court's 
 future. If the sequel proves me to be a false prophet, none of you or 
 of those now living will be here to witness my failure at the fin de siecle. 
 
 Modern vaticination takes its cue from Patrick Henry's famous inter- 
 rogation : "How shall we judge the future except by the past ?" 
 
 My success upon this historic occasion will depend upon whether I 
 have rightly interpreted the nature of our foundations, and the meaning 
 and quality of the structure already begun and in course of erection, 
 known as North Carolina. 
 
 One must understand what has been and what is, to be able to deter- 
 mine with reasonable probability what will be. Would that I might be 
 able to interpret truly, through the eyes of the present, by the light of 
 our past, the hopes of the future, in such manner as to assist to some 
 extent at least in the realization of the State's high aim to produce and 
 maintain a happy, prosperous and progressive commonwealth, whose 
 brightest ornaments shall be the magistrates who will minister continu- 
 ally in this its great temple of justice. 
 
 The unknown quantities in the problem to be solved are how much 
 health, wealth, common sense and culture the people of this State will 
 have in the next hundred years. Great States have great courts and 
 great men to preside in them and interpret greatly their purposes and 
 their laws. Since law is the perfection of reason, the progress and 
 power to be attained by the administrators of the law in the years to 
 come will depend upon the development of the character, intelligence, 
 good sense and reasoning faculties of the people. Like people like 
 priests. Like lawyers like courts. 
 
 Until the year 1868 the dead hand of the past held us fast. In that 
 year first, by what means you all do know full well and against what
 
 44 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celeijkation Supreme Coukt of North Carolina 
 
 opposition it became and has since been an indictable misdemeanor for 
 the county commissioners to fail to provide at the public charge a free 
 public school for four months in every year within convenient distance 
 of all the youth of the State. The effect of this law upon the State has 
 been greater and better than any other single mandate or influence in 
 the last fifty years. With the exceptions of the abolition of slavery and 
 the sale of whiskey, it was the greatest legal event since the keels of 
 Amidas and Barlow first grated upon our sands. 
 
 When our Supreme Court was just fifty years old "Free Public 
 Schools" came for all and for all time. As this Court reached its cen- 
 tury mark, the mighty people, without a single appeal from the hustings, 
 voted almost unanimously to extend, by taxation, the annual school term 
 to six months. After waiting forty-five years, the Legislature acquired 
 the courage to put into operation the provisions of article 9, section 15, 
 of the Constitution of 1868, compelling school attendance of all children 
 of sufficient mental and physical ability. These schools and the instruc- 
 tion in hygiene required by the law have and will undoubtedly discover 
 many sound minds in sound bodies to whose eyes "Knowledge her ample 
 pages, rich with the spoils of time, will sure unroll," developing men and 
 women capable of supplying all the great needs of the great State. 
 
 If "all things are possible to him that believeth," all things are prob- 
 able, yea, reasonably certain, to him that knoweth. 
 
 The Supreme Court of the State starts its second century freed 
 from the incubus of having to try the titles to admit human beings, the 
 administration of corporeal punishment and the determination of the 
 sizes of the switches with which husbands may castigate and flagellate 
 their wives. It starts with the pleasing prospect that it will construe 
 but few more instruments exemplified with the signum of the holy cross 
 instead of the sign manual ; and that in this cycle the superstitution will 
 disappear that truth will more probably be uttered if the lips of the 
 utterer be first brought in contact with a book. And this great Court's 
 prospects of great power and usefulness are greatly enhanced by the 
 fact that from and after the first decade of its second century, the right 
 to vote and hold office will no more depend upon the sex of the citizen 
 than the duties of earning a living and paying taxes have depended upon 
 sex in the last thousand years. 
 
 Many good people among us who know more than your prophet on
 
 PKOCEEDINGS BAR ASSOCIATION 45 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 many subjects think Avoman suffrage "the abomination of desolation 
 which was spoken of by Daniel the prophet." They seem to think women 
 voters and officeholders will wear spurs and big black beards; will let 
 all the babies die ; will cease to bear children, keep house and make home 
 attractive, and will devote their time to politics, mostly "of the ward 
 type." These prophets of evil have another think coming. They will 
 see the electorate greatly improved and its quality reflected in all the 
 offices. I once rode in a buggy sixteen miles with a sixteen-years-old 
 boy. Just before reaching the end of the journey he broke a long silence 
 to ask me : "How many men's words does it take to overcome one 
 woman's word in court?" I believe that this great reform will cause 
 battles between men and women in courts to be fought on more nearly 
 equal terms. Who can doubt that the average son will have more bal- 
 ance, judgment, and viridus vis anivii, when the average mother extends 
 the sphere of her thinking from "the washing of cups and pots," sweep- 
 ing and picking chickens, to questions of statecraft, taxation, the police 
 power, the tariff, finance, and the freedom of the seas? Instead of the 
 exercise of the suffrage dragging women down it will enable her to drag 
 the State up. 
 
 Some politicians have cause to oppose woman suffrage, because it will 
 answer for them the prayer of the Psalmist: "Make me to know mine 
 end and the measure of my days." 
 
 Our Supreme Court will in the years to come cease to be annoyed 
 with such questions as who is the owner of a window sash worth a dollar 
 and fifty cents ; or whether a chattel mortgage for twenty dollars on an 
 old mule may be given in evidence since it was not listed for taxation 
 as a solvent credit. 
 
 I am of the opinion, upon the principle "de minimis non curat lex," 
 that no case will be appealable to the Supreme Court of the future un- 
 less it involves more than a hundred dollars value. This would certainly 
 discourage litigation about trifling matters that "cost more than they 
 come to"; encourage people in their efforts to adjust small differences, 
 and give the Court more time to devote to "the weightier matters of 
 truth and judgment." 
 
 The Supreme Court will not much longer have the authority or the 
 painful duty to declare that a human being shall be put to death by law 
 in JSTorth Carolina. Revenge in the law will give place to reform. "Will
 
 46 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 the borders of our fair State fifty years hence contain a single man, not 
 to say a majority, who will admit that he or they are willing to be in- 
 flnenced in a matter of life and death by a spirit of vengeance or retali- 
 ation ? Will not the conscientious men and women who meet to celebrate 
 the next centennial of this Court blush, as they turn these pages, to 
 think that their ancestors in 1919 condemned human beings to death by 
 law in North Carolina ? In this, if in nothing else, may they honor me 
 as "the prophet of the coming time," 
 
 Is it true that "the cure for the ills of a democracy is more democ- 
 racy?" Is it true that in these last days we have destroyed the principle 
 of kinship among men and made "democracy safe for the world" and 
 for North Carolina? That all the war laws we now endure will be 
 repealed, and that the people will be free to grow in culture and in 
 w^ealth and worth ? And if so, will the world-old controversies concern- 
 ing frauds and torts and breaches of contract largely disappear from our 
 dockets? Will not the Government own the public utilities, and all ques- 
 tions of negligence and damages be adjusted by schedules arranged by 
 act of Congress? The titles to all lands will be settled, except the few 
 ever-recurring questions of boundary. But litigation arising out of in- 
 juries on highways, in motor vehicles, and in aerial and water naviga- 
 tion will wax more and more in the century before us. 
 
 "New occasions teach new duties — 
 Time makes ancient Rood uncouth." 
 
 Questions concerning wages and price-fixing, hours of labor, child 
 labor, irrigation, water supplies, and those arising out of the dissemina- 
 tion of odors in manufacturing, upper and lower riparian rights, the 
 occupation and conveying of the upper and lower stories of houses, the 
 communication of diseases : these and the like, in a population of ten 
 millions of people, together with race segregation laws that will be sure 
 to arise again and again, will rouse into action the mightiest powers of 
 our mightiest judges. 
 
 May some Daniel come to judgment among us in the next century and 
 show tliis people how two races in the same State, though they may not 
 be agreed, may yet walk together in justice and in peace. 
 
 We speak of the supreme powers in a State prescribing the law. We
 
 PKOCEEDINGS BAR ASSOCIxiTION 47 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 have heard much Lately of the cannon, the aeroplane, the submarine, the 
 food supply and man-power as "the last arguments to which kings 
 resort." (Alas for our maxims since there are to be no more kings!) 
 Those are words and phrases of and for the people. Lawyers know that 
 the minds of the Supreme Court judges are the supreme power. Long 
 may this be so in our good land, where "reason is the life of the law." 
 
 The Colonial Assembly, followed by the State Legislature (Revisal, 
 932), vested in the Supreme Court by indirection, the right to determine 
 what was or is the common law, and what parts of it not repealed or 
 enacted by the Legislature were and are good for the people of jSTorth 
 Carolina and what parts are not good for us. This has tended to encour- 
 age the enactment and repeal from time to time of judge-made laAv or 
 judicial legislation. This kind of law will, we think — and the wish may 
 be father to the thought — be less and less in fashion with the Supreme 
 Court until it falls into disuse. 
 
 If public schools and the press and, to quote Hamlet, "the occurrents 
 that have more and less solicited" recently shall so elevate our people 
 that lynchiugs and riots shall cease, that conservatism and property 
 shall be in no danger from hasty and ill-considered legislation, we may 
 cease to need a written constitution. That will be true when democracy 
 becomes absolutely safe for our State. Then the oath to support the 
 Constitution will no longer be required, and the judges will cease to exer- 
 cise the high prerogative heretofore exercised of declaring acts of Legis- 
 lature unconstitutional. I have no assurance that we will adopt this 
 course in the next century of this Court's life. 
 
 The growth of our population and increase of judicial work will in 
 the next century increase our Supreme Court judges to nine, two or 
 three of whom will no doubt be women, whose presence will continually 
 suggest the transformation since 1915, when it was held in this very 
 tribunal that our laws were so written that females were disqualified to 
 be even notaries public ! 
 
 In the century just passed many eminent minds adorned this judg- 
 ment seat. None greater perhaps than those who now serve here. For 
 have these not, in addition to the results of their own labors and research, 
 those of all their predecessors canned and preserved for instant use? 
 Are not our judges and lawyers in a peculiar sense "the heirs of all the 
 ages in the foremost files of time?" And so will our successors be.
 
 48 PEOCEEDINGS BAH ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 Tlie last semi-centenniul of tliis Court was marked and honored by 
 the abolition in this State of the death penalty in more than forty cases, 
 and more than forty kinds of civil actions, as well as all distinctions be- 
 tween actions at law and suits in equity and the forms thereof. The 
 principles upon which all actions are determined abide. 
 
 An old common-law lawyer said of equity, "It is a roguish thing. 
 For law we have a measure. Equity is according to the conscience of 
 him who is chancellor, and as that is longer or narrower, so is equity. 
 It is all one as if they should make the standard for the measure we call 
 a foot, a chancellor's foot. What an uncertain measure would this be? 
 One chancellor has a long foot, another a short foot, a third an indiffer- 
 ent foot. It is the same thing in the chancellor's conscience." 
 
 An equity lawyer spoke of the judicial discretion of the judges of the 
 law courts: "The discretion of a judge is the law of tyrants: it is 
 always unknown: it is different in different men. It is casual and de- 
 pends upon constitution, temper and passion. In the best it is often- 
 times caprice; in the worst it is every vice, folly and passion to which 
 human nature is liable." 
 
 No doubt many lawyers in the past — and litigants, too — (I am not 
 speaking of the present) have felt the force of those observations, and 
 have appreciated the feelings of Cardinal Wolsey when Judge Shelley 
 delivered to him the mandate of that model of virtue, mirror of wisdom, 
 and fountain of justice. King Henry VIII., in regard to surrendering 
 his estates: "Master Shelley, you shall report to the king's highness 
 that I am his obedient subject and faithful chaplain and bondsman, 
 whose royal commandment and behest I will in no wise disobey, but 
 most gladly fulfill and accomplish his princely will and pleasure in all 
 things and in especial in this matter, inasmuch as ye, the fathers of the 
 laws, say that I must lawfully do it. Therefore I charge your conscience 
 and discharge mine. Ilowbeit, I pray you show his majesty from me 
 that I most humbly desire his highness to call to his most gracious re- 
 membrance that there is both a heaven and a hell." 
 
 Lawyers and litigants of the future in North Carolina will not, if they 
 ever did, entertain any such thoughts as I have quoted of and concern- 
 ing the judges. The Witen-a-gamote — the council of wise men and 
 women, who will compose this great tribunal after democracy shall be 
 made safe for the world— will approach every subject presented with
 
 PROCEEDINGS BAR ASSOCIATION 49 
 
 Centexnial Celebration Supreme Court of North Carolina 
 
 absolute knowledge of the law without any latitude or range for judicial 
 discretion or the longitudinal conscience of the chancellor, and a true 
 and scientific conclusion reach in accordance with this then exact science. 
 
 And the people will regard the judiciary as Sir Thomas More, author 
 of Utopia, regarded and said of himself when he was Lord Chancellor 
 of England : "But this one thing I assure thee, on my faith, but if the 
 parties will at my hands call for justice and equity, then, although it 
 were my father, whom I reverence dearly, that stood on the one side 
 and the devil, whom I hate extremely, were on the other side, his cause 
 being just, the devil, of me, should have his right." So will it be said 
 of our judiciary, as it was said by another of the judiciary of England : 
 "No British judge can be swer\^ed a hair's breadth from the line of duty 
 by any earthly consideration." 
 
 The system of selecting judges having veered from appointment by 
 the sovereign during his will and pleasure, or during good behavior, to 
 nominations by party convention, caucus or primary, and at one time 
 apparently being about to subject the judges to recall by the popular 
 vote for unpopular decisions, has another turn of fortune's or time's 
 wheels before it. No autocrat or party caucus or primary or conven- 
 tion will in the future name the judges. Politics, which in practice has 
 been defined as "a systematic organization of hatreds," will cease to have 
 any part in the selection of judges, but they will be selected by the asso- 
 ciation of lawyers without regard to party affiliations, or will be mem- 
 bers of all political parties. 
 
 It has been actually computed by an enterprising law publisher in 
 the last few years that a majority of the cases decided by the appellate 
 courts of America "went off" on questions of practice and procedure. 
 Let us hope that the Supreme Court of the future will, with or without 
 the aid of the lawyers, find a way to make every case turn on its real 
 legal merits; that "harmless error" and long dissenting and concurring 
 opinions, costing so much time and money to write and print and read, 
 will be things of the past; that a clear, short statement of the law in a 
 few sentences and the reason on which it is based in a few others, with 
 brief and lucid headnotes and indexes, will be the rule of the Supreme 
 Court of the future. 
 
 There will be no undue veneration for what somebody else has said or 
 thought in a bygone age, nor any reverence for precedents, but a clear 
 4— Bar
 
 50 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 compelling knowledge of which is the better reason, and a support of it 
 that will be all-convincing. 
 
 Hugo Munstenburg suggested that the psychologists of the future 
 might invent a device by which the truthfulness of the words of a wit- 
 ness may be tested with unerring accuracy. And who knows but that 
 the womb of time shall bear for the use of the servitors in the temples 
 of justice real touchstones and mete-wands that will strike to the heart 
 of the case and bring out truth and justice every time : so clear and 
 shining that the losing party can see it, and not be thereby reminded of 
 his hope that there is a heaven and also a hell. 
 
 The world war has just ended. It was fought by the victors, as it was 
 said, to put an end to war for all time to come. We are told that their 
 purpose has been accomplished; that all men will henceforth know how 
 to govern themselves. This nation has had the first opportunity to test 
 the truth of the statement by governing itself while its executive head 
 has gone to assist in arranging for the first ''parliament of man and 
 federation of the world." The fangs of hate that caused the world to 
 war have been drawn. Man will no longer be conceived in sin and 
 brought forth in iniquity. Even peace with victory, we are now taught, 
 will not again, when the vanquished have recovered strength, start the 
 black horse and his rider on their march of death. 
 
 The world-old maxim "Inter arma leges silent'' is to drop out of time 
 and be forgotten, for the days to come will furnish no facts to prove its 
 truth. Never again, let us hope and pray, will the laws be silent, but 
 ever speaking and declaring rules for every condition that may arise. 
 Old Jack Cade's prophecy of the good time to be ushered in by killing 
 all the lawyers will never come. The triumph of reason over unreason 
 in courts of justice and in the minds of men will be the supreme per- 
 petual purpose of the race. Thus we seek after God and think His 
 thoughts after Him. So long as there may be two opinions about a 
 matter and different points of view and angles of interest, so long will 
 students of law irn^estigatc and contend concerning its meaning, and 
 great judges will declare which is the better reason. The progress and 
 development of the human intellect is unlimited. The law will be found, 
 as the rule of right, for every new condition that may arise. 
 
 So we see the State in the century beginning today making great 
 progress in wealth, in population, in intellect, in education, and in
 
 Marshall DeLancey Haywood
 
 PROCEEDINGS BAR ASSOCIATION 51 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 character. And the larger minds that will be needed for action on this 
 larger stage, before this larger audience, will come forth out of our 
 midst and fill the measure of the new time's demand. 
 
 Great men are the greatest and best gifts of God to His earth. Let 
 us hope that in the cycle beginning today the God and father of us all 
 will bring forth on this planet, in our beloved niche of it, even in North 
 Carolina, one great man to lead His people ; and whether prophet, priest, 
 or king, or judge, or by whatever name he may be known, may they 
 follow him to higher and higher levels. 
 
 President Aydlett : The third speaker on this occasion is Mr. Mar- 
 shall DeLancey Haywood, of Raleigh, who will now address us on the 
 Subject of the ''Officers of the Supreme Court." 
 
 THE OFFICERS OF THE COURT, 1819-1919. 
 By Marshall DeLancey Haywood. 
 Gentlemen of the Bench and Bar, Ladies and Gentlemen: 
 
 Honored by an invitation from the North Carolina Bar Association 
 to appear before this assemblage today and speak of the "Officers of the 
 Court" — Clerks and Marshals — who have served in bygone years, I am 
 here to perform, as best I can, the duty thus assigned me. 
 
 Seven Clerks and four Marshals make up the list. The Clerks have 
 been "William Robards, John L. Henderson, Edmund B. Freeman, 
 Charles B. Root, William H. Bagley, and Thomas S. Kenan; also 
 James R. Dodge, Clerk of the Summer sessions formerly held at Mor- 
 ganton. The Marshals have been Colonel John T. C. Wiatt, James 
 Litchford, David A. Wicker, and Robert H. Bradley. 
 
 CLERKS 
 William Robards, Clerk 
 
 On January 4, 1819, at the first sitting of the Supreme Court, it 
 elected William Robards, of the old town of Williamsborough, in Gran- 
 ville County, to the office of Clerk of the Court. Mr. Robards was a 
 native of Goochland County, Virginia, born November 20, 1779, and 
 was brought by his father (James Robards) to North Carolina when
 
 52 PROCEEDINGS BAR ASSOCIATION" 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 quite young. Before he became an officer of the Supreme Court he had 
 already seen something of public life, having sat in the North Carolina 
 House of Commons as a representative of Granville County at the ses- 
 sions of 1806 and 1808. He was deeply interested in the cause of general 
 education, and was associated with Chief Justice Henderson in conduct' 
 ing a law school at Williamsborough. He was also a trustee of various 
 educational institutions — of the Williamsborough Academy, of the Ox- 
 ford Academy, and of the University of North Carolina, his term in the 
 last mentioned capacity extending from 1827 until his death. 
 
 Though the objects for which it labored did not take form in the shape 
 of a public institution until a score of years later, a Society for Estab- 
 lishing an Institution for the Deaf and Dumb was organized in North 
 Carolina as early as 1827, and was incorporated by chapter 64 of the 
 Laws of 1827-28. Mr. Robards was a member of this society, and also 
 served on its Board of Directors. 
 
 After his election as Clerk of the Supreme Court in 1819, Mr. Robards 
 occupied that position until he was elected State Treasurer, or "Public 
 Treasurer," as it was then called, by a joint ballot of the General As- 
 sembly on December 14, 1827. Immediately after this, he resigned his 
 office with the Supreme Court, and entered upon his new duties. He 
 filled the office of Public Treasurer with marked ability for several 
 years until the end of 1830, his successor being elected on the 4th of 
 December in that year. He thereupon returned to his old home in Gran- 
 ville County, and there spent the remainder of his life. 
 
 The wife of Mr. Robards was Ann (or "Nancy") Keeling Satter- 
 white, daughter of Thomas Satterwhite, and a lady of wide connections 
 in Granville County among such well-known families as those of Wil- 
 liams, Bullock, Henderson, Burton, Ridley, etc. Mr. Robards left a 
 numerous posterity, whose members have well measured up to the good 
 name which he bequeathed to them. These, for the most part, still live 
 in Granville and Vance counties (Vance being a part of old Granville), 
 and some have removed to Tennessee, the Gulf States, and other locali- 
 ties throughout the Union. 
 
 In his religious affiliations Mr. Robards was an Episcopalian, and was 
 a vestryman of the historic St. John's Church at Williamsborough. He 
 died on the 17th of June, 1842. I cannot better conclude this sketch of 
 his life than by quoting a tribute to his memory, which appeared in the
 
 PROCEEDINGS BAE ASSOCIATIOjST 53 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 Raleigh Register of June 24tli, a few days after his death. In part, that 
 paper said : ''He suffered much from a long and severe illness, which 
 he bore with a degree of fortitude never surpassed. Of the character of 
 the deceased it would be useless to speak to those who knew him well. 
 All will bear testimony to the magnanimity, the noble disinterestedness, 
 and unceasing patriotism which characterized his whole life. As a 
 neighbor, he was obliging and hospitable; as a friend, ardent and con- 
 stant; as a citizen, just and ready in the performance of every duty. 
 No one in distress ever appealed to him in vain when, by any exertion 
 or sacrifice of his own, that distress could be alleviated or removed. 
 He filled many high public offices during life, the duties of which he 
 performed with a fidelity seldom equaled, and for which he received the 
 highest commendations of his fellow-citizens. By the State generally, 
 and particularly by his neighborhood, will his death be felt as a heavy 
 loss. ISTor were the incidents of his death less gratifying than his life 
 was useful and upright. He professed confidence in the truth and a 
 firm reliance on the faith of the Christian religion." 
 
 John Lawson Henderson, Clerk 
 
 John Lawsoi^ Hendeeson was the second Clerk of the Supreme 
 Court, elected in January, 1828, to supply vacancy caused by the resig- 
 nation of William Robards. Mr. Henderson was a younger brother of 
 Chief Justice Leonard Henderson, and a son of Judge Richard Hender- 
 son, who figured prominently in public life prior to the Revolution and 
 during that war. 
 
 John L. Henderson was born in Granville County in the year 1778, 
 and graduated from the University of North Carolina in the Class of 
 1800. He eiitered the legal profession, but never attained a degree of 
 success therein in any way equal to his two distinguished brothers, 
 Leonard and Archibald. He made his home in Salisbury, and was 
 borough representative from that town in the North Carolina House of 
 Commons at the sessions of 1815, 1816, 1823, and 1824. In 1827 he 
 was appointed Comptroller of State, an office (later abolished) similar 
 to the present post of State Auditor, being chosen to fill an unexpired 
 term. He was a candidate before the next General Assembly for re- 
 election, but was defeated by James Grant, of Halifax. About this time 
 (January, 1828) he was elected Clerk of the Supreme Court to fill
 
 64 PROCEEDINGS BAR ASSOCIATION 
 
 Cextexxial Celebration Supreme Court of North Carolina 
 
 vacancy caused by the resignation of Mr. Robards, and retained that 
 office throughout the remainder of his life. 
 
 Mr. Henderson never married. In the Papers of Archibald D. Mur- 
 phey, published by the ISTorth Carolina Historical Commission, is an 
 amusing letter from Judge Murphey, dated December 15, 1809, wherein 
 the writer tried to work a reformation in his friend, in part saying: 
 "I rejoice to see my friends get married. I always regard the stock of 
 human happiness as thereby increased. Whilst so many young men of 
 your acquaintance are thus adding to their happiness, feel you no wish 
 to add to yours? In the circle in which you move, can no one be found 
 whom you love, and whose hand and heart you can consider as the 
 richest treasure of this life ? I hope there is. Get married, dear friend, 
 and get a wife of good sense." Henderson, alas! never got a wife, 
 either with or without ''good sense." 
 
 Mr. Henderson died in office on the 11th day of July, 1843. The 
 Raleigh Register, of July 14th, contained an obituary of the character- 
 istic brevity of that day, which said: 
 
 "Died. — In this city, of congestive disease, on Tuesday last, in the 
 66th year of his age, John L, Henderson, Esq., Clerk of the Supreme 
 Court of North Carolina. Mr. H. resided in Salisbury, but was here in 
 attendance on the Court now in session. He was buried with Masonic 
 honors." 
 
 The funeral of Mr. Henderson was conducted from Christ Church, in 
 Raleigh, on the day following his death, by the Rev. Richard S. Mason, 
 D.D., Rector of the parish. 
 
 Edmund B. Freeman, Clerk 
 
 On July 13, 1843, Edmund B. Ereeman was elected Clerk of the Su- 
 preme Court, vice John Lawson Henderson, who had died two days 
 earlier. Before becoming Clerk, Mr. Freeman had served as Deputy 
 Clerk under Mr. Henderson, and hence was in the service of the Court 
 for a longer period than the twenty-five years in which he held the higher 
 position. 
 
 Mr. Freeman was born in Falmouth, Massachusetts, on the 8th day of 
 September, 1795. He was a son of the Rev. Jonathan Otis Freeman, 
 D.D., a distinguished Presbyterian clergyman, who did much educa- 
 tional work in North Carolina, teaching at various points throughout
 
 PROCEEDIIs^GS BAR ASSOCIATION 55 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 the State. This clergyman was a brother of the Right Rev. George 
 "Washington Freeman, D.D., for some years rector of Christ Church, 
 Raleigh, and later Missionary Bishop of Arkansas and the Southwest. 
 Brigadier-General jNTathaniel Freeman, of the Massachusetts militia in 
 the War of the Revolution, was the father of the Rev, Dr. Freeman and 
 of Bishop Freeman, and hence was the grandfather of Edmund B. 
 Freeman. 
 
 When he was a ten-year-old child, Edmund B. Freeman was brought 
 to North Carolina by his father. After completing his general educa- 
 tion, he studied law and Avas duly licensed, but the probability is that he 
 never engaged in active practice. For a while, in early life, he edited 
 the Compiler, a newspaper published at the town of Halifax. For one 
 or more terms of the Legislature he was Reading Clerk of the House of 
 Commons, and was Principal Clerk of the State Constitutional Conven- 
 tion of 1835. From his election as Clerk of the Supreme Court in 1843 
 until his death, he was one of the most conscientious and capable officials 
 who ever served any court in North Carolina. His heart, as well as his 
 brain, was put into his work; and there were countless gentlemen of 
 both the Bench and Bar who profited by his knowledge and experience. 
 Alluding to Chief Justice Ruffin, in an oration on that great jurist, the 
 late Governor Graham said: "The precision and propriety of entries, 
 in every species of procedure, were brought to a high state of perfection 
 mainly by his investigations and labors, in conjunction with those of 
 that most worthy gentleman, and modest but able lawyer, Edmund B. 
 Freeman, Esq., late Clerk of the Supreme Court." 
 
 Mr. Freeman served in his office as Clerk of the Supreme Court 
 until he passed from his earthly labors. The 30th of June, 1868, was 
 the day set for the Court, under its old form, to pass out of existence, 
 and for the Court under the new State Constitution to take over its 
 duties; and on that very day the old Clerk died, thus ending his labors 
 with the final adjournment of the old Court whose history had been so 
 closely entwined with his own life. An entry on the Minute Docket, 
 under date of June 30th, says: "At the hour of 2 o'clock, p. m., on 
 this day, Edmund B. Freeman, the ancient Clerk of this our Supreme 
 Court, expired." On the next day (July 1st) Attorney-General Sion H. 
 Rogers announced Mr. Freeman's death in Court (convened for memo- 
 rial services), and offered a set of resolutions on behalf of the gentle-
 
 56 PROCEEDINGS BAR ASSOCIATION" 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 men of the Bar, expressive of the esteem in which they held the late 
 Clerk, both personally and officially. Replying, Chief Justice Pearson 
 said: 
 
 "Gentlemen of the Bar: The Judges of the Supreme Court fully con- 
 cur in your resolutions. We have known Edmund B. Freeman long and 
 intimately. In his private associations, he was kind and agreeable, and 
 in the duties of his office 'no one could him excel.' He was trained to 
 be a clerk from infancy, and was fond of the vocation. He displayed 
 great ability, not only in accuracy of detail, but also in grasping the 
 scope of complicated cases whilst stating accounts. His integrity and 
 entire fairness in discharging his duties no one ever called in question, 
 and he earned and is entitled to the distinction of having been a 'model 
 clerk.' His attachment to the Old Court was so strong that on several 
 occasions he said to the Judges : 'I cannot outlive the Court, or work in 
 any other traces !' That the Court should have died on the same day 
 with its Clerk is a coincidence that is remarkable, and to theorists may 
 form a topic of discussion. The Court orders that the resolutions be 
 entered upon the records, and that a copy thereof be transmitted to 
 Mr. Freeman's family." 
 
 On this same old Minute Docket is given a poem written in memory 
 of Mr. Freeman by Mrs. Mary Bayard Clarke. Part of this was quoted 
 by Dr. Battle in his History of the Supreme Court printed in the 103d 
 iSTorth Carolina Reports. The entire poem is as follows: 
 
 The old Clerk sits in bis office chair — 
 
 His head is white as snow, 
 His siglit is dim, and his hearing dull, 
 
 And his step is weak and slow ; 
 But his heart is stout, and his mind is clear, 
 
 As he copies each decree, 
 And he smiles and saj's, as the Judges pass, 
 
 " 'Tis the last Court I shall see." 
 
 But he lingers on, till his work is done, 
 
 To pass with the old regime, 
 When he lays his pen with a smile aside 
 
 To stand at the Bar Supreme ; 
 For the old Clerk died with the Court he served 
 
 For forty years, save three, 
 And breathes his last as the Judges meet 
 
 To sign their last decree.
 
 PROCEEDINGS BAR ASSOCIATION 57 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 The Pointed Sword at his Naked Heart* 
 
 With a child-like smile he views, 
 For his spirit glows with the fervid heat 
 
 Good deeds alone diffuse, 
 For like his Lamb-skin Apron white* 
 
 Is the life that he had led, 
 And Sinai brings before the Court 
 
 No charge against the dead, 
 While Calvary unbars the gates 
 
 Of Heaven, and entrance gives 
 Unto his soul, which meekly saith, 
 
 "I know my Redeemer lives." 
 
 Mr. Freeman was twice married. His first wife's maiden name was 
 Mary McKinney Stitli. She died January 25, 1835. By her he had an 
 only daughter, Emily, who became the wife of the late Hampden S. 
 Smith, and left several children, one of these being Hampden Freeman 
 Smith, former City Clerk and a bank officer in Raleigh, but now residing 
 in New York City. The second wife of Mr. Freeman was Mrs. Eliza- 
 beth Ellis Foreman, nee Williams, widow of "William Foreman, of Pitt 
 County. He left no children by that wife, who died November 11, 1848. 
 
 Mr. Freeman was a deeply religious man and an Episcopalian in his 
 religious affiliations, holding his membership in Christ Church, Raleigh, 
 of which his uncle w^as rector for so many years. He was also a Mason, 
 and served as Junior Grand Warden of the Grand Lodge of North 
 Carolina from December 11, 1833, to December 5, 1834, and from De- 
 cember 7, 1835, to December 14, 1836. 
 
 Charles Boudinot Root. Clerk 
 
 The immediate successor of Mr. Freeman, as Clerk of the Supreme 
 Court, was Ch.^les B. Root, of Raleigh. Mr. Root was elected Clerk 
 ad interim for a term of six months, beginning July 1, 1868, and ending 
 January 4, 1869. He and Mr. Freeman were close friends, and they 
 married cousins. It was largely for the purpose of winding up the office 
 accounts of the deceased Clerk (at the request of his daughter) that 
 Mr. Root accepted the temporary appointment tendered him by the 
 Court. The Deputy Clerk ad interim was Johnstone-Jones, later Adju- 
 tant General and now a resident of California. 
 
 ♦Masonic symbols.
 
 58 PROCEEDINGS BAR ASSOCIATIOX 
 
 Centennial Celebration Supreme Coikt of North Carolina 
 
 Like his predecessor in office, Mr. Root was a New Englander by 
 birth, but spent sixty-six of his eighty-four years in Raleigh. He wa8 
 born in the town of Montague, Massachusetts, on the 31st day of Octo- 
 ber, 1818. His paternal descent ran through many generations of 
 sturdy and prosperous New England ancestors back to Thomas Root, 
 who came to America in 1637. 
 
 Along with the other children of Elihu Root, of Montague, Charles B. 
 Root received good educational training, and was a student at the acad- 
 emy in Greenfield, Massachusetts. Leaving that institution, he went to 
 New York City, but did not remain long, and removed to Raleigh in 
 1837. Before leaving New York he had been promised employment by 
 a Raleigh jeweler, Bernard Dupuy, with whom he sensed some time, and 
 whose business he later bought. In 1860, Mr. Root sold his jewelry 
 establishment, and never thereafter engaged in mercantile pursuits. In 
 the early part of the War between the States he was Mayor of Raleigh 
 (serving without compensation), and for eighteen years following the 
 war was president of the Raleigh Gas Company. In the course of his 
 life he was a member of the Board of Aldermen of the city of Raleigh 
 and a member of the Board of Commissioners of Wake County, being 
 chairman of the latter body for some time. From 1884 up to the time 
 of his voluntary retirement, not long before his death, he was Tax Col- 
 lector of the city of Raleigh. For a long time he held a commission as 
 magistrate in Wake County, this giving him the appellation of ''Squire" 
 Root, by which he was known to the citizens of his community. Close 
 attention to the duties of his various stations, and unquestioned integrity 
 in public and private transactions marked his course through life. 
 
 In 1848, Mr. Root married iVnna Freeman Gales, daughter of Weston 
 R. Gales, of Raleigh. Mr. Gales was a gifted journalist, who succeeded 
 his father, Joseph Gales, as editor of the Raleigh Register, and was a 
 brother of Joseph Gales, Jr., who wielded a potent influence in the poli- 
 tics of the nation as editor of the National Intelligencer, in Washington 
 City. By this marriage, Mr. Root left a son, Charles Root, now cashier 
 of the Raleigh Savings Bank, and a daughter who married the late Dr. 
 Vines E. Turner, of Raleigh. 
 
 "Old Squire Root," as he is still affectionately remembered by the 
 people of Raleigh, was gentle, tender-hearted, and courteous, charitable 
 to the poor, and considerate of the feelings of every one. He passed
 
 PROCEEDINGS BAR ASSOCIATION 50 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 away in the eighty-fifth year of his age, on the 7th day of May, 1903. 
 His funeral was conducted from Christ Church, of which he was a 
 zealous member and consistent communicant. 
 
 William Henry Kagley, Clerk 
 
 As already stated, the commission of Mr. Root as Clerk ad interim 
 expired on the 4th day of January, 1869. Two weeks later, on January 
 18th, Major "William H. Bagley, of Raleigh, was elected Clerk of the 
 Supreme Court for a term of eight years ; and by subsequent reelections, 
 held that position until his death, a little more than seventeen years 
 thereafter. 
 
 Major Bagley was born in Perquimans County, North Carolina, on 
 the 5th day of July, 1833, and was a son of Colonel "Willis Bagley, a 
 well-known citizen of that section of the State. 
 
 In 1852, before he became of age, "William H. Bagley was elected 
 Register of Deeds of his native County, and held that position for several 
 years. In 1855, he removed to Elizabeth City, in the adjacent county of 
 Pasquotank, and there engaged in journalistic work as editor of the 
 Sentinel. He also studied law, and was licensed to practice in 1859. In 
 1860, he was associated in the editorial management of another paper, 
 the State, with James W. Hinton. 
 
 Upon the outbreak of the "War between the States, Mr. Bagley entered 
 the Confederate service, and was commissioned First Lieutenant of Com- 
 pany A, Eighth North Carolina Regiment, on May 16, 1861. This regi- 
 ment being sent to join the forces engaged in the defenses around Albe- 
 marle and Pamlico Sounds, Lieutenant Bagley was engaged in numerous 
 actions in that vicinity until February 8, 1862, when he was captured 
 by Burnside's expedition against Roanoke Island, where he was sta- 
 tioned. In recounting this event, the historian who prepared the sketch 
 of the Eighth Regiment for Chief Justice Clark's great compilation 
 entitled North Carolina Regiments, 1861-65, says : 
 
 "After the surrender of the island on the 8th of February, we were held in 
 camp as prisoners of war about two weeks, when we were conveyed by steam- 
 ers to Elizabeth City, paroled, and sent home by way of the Dismal Swamp 
 Canal and Portsmouth. Whilst prisoners in the hands of the enemy, we were 
 well treated. Of course we were closely guarded, but no insults were offered. 
 During the first and second weeks of September, 1862, the men having been 
 exchanged, the regiment reassembled."
 
 60 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 Shortly after the Eighth Regiment reassembled, as just mentioned, 
 Lieutenant Bagley was promoted to the rank of Captain, October 25, 
 1862, and assigned to his former company. He probably did not rejoin 
 his company immediately, as about this time he had been elected State 
 Senator from the First Senatorial District, composed of the counties of 
 Pasquotank and Perquimans. 
 
 On April 15, 1864, Captain Bagley was commissioned Major of the 
 Sixty-eighth Regiment. He did not remain with this regiment long, 
 however, but resigned on June 11th in the same year. He again became 
 a member of the State Senate in 1864. 
 
 In July, 1865, President Johnson appointed Major Bagley to the post 
 of Superintendent of the United States Mint at Charlotte, but the recipi- 
 ent of this appointment could not qualify as he was unable to take the 
 "iron-clad oath" alleging that he had borne no part in what was then 
 officially designated "the late Rebellion." 
 
 On December 15, 1865, Jonathan Worth became Governor of North 
 Carolina, and remained in office until turned out several years later to 
 make room for a "Provisional Governor" appointed by the President. 
 Major Bagley Avas appointed Private Secretary by Governor Worth, and 
 served in that capacity for some time. In 1866, he married the Govern- 
 or's daughter, Miss Adelaide Worth. This venerable lady survives her 
 husband, and now resides with her two unmarried daughters in Wash- 
 ington City. One of the children born to this marriage was Ensign 
 Worth Bagley, killed in the War with Spain, and in whose honor a 
 statue now stands in the Capitol Square at Raleigh. William Henry 
 Bagle}'', second son, is engaged in newspaper work. A third son is Com- 
 mander David Worth Bagley, of the Navy, who saw active service in 
 the war just closed. One of Major Bagley's daughters is Mrs. Josephus 
 Daniels, herself a patriotic welfare worker in connection with the late 
 war, and wife of the present Secretary of the Navy, whose labors have 
 brought the sea forces of our Government up to a scale of magnitude and 
 efficiency never dreamed of before. 
 
 Major Bagley was a man of liandsome and distinguished appearance, 
 and enjoyed a good measure of health up to the month of November, 
 1885, when he suffered an attack of illness from which he never recov- 
 ered, and which resulted in his death a few months later, despite treat-
 
 PEOCEEDINGS BAE ASSOCIATIOX 61 
 
 Centennial Celebration Supreme Coltst of North Carolina 
 
 ment by the most eminent members of the medical profession of both 
 Raleigh and Baltimore, 
 
 No sketch of Major Bagley's life would be complete without reference 
 to his connection with the Independent Order of Odd Fellows, in which 
 fraternity he held the highest honors. He was initiated into this order 
 in 1857 as a member of Achoree Lodge, ISTo. 14, of Elizabeth City. In 
 1865, he transferred his membership to Seaton Gales Lodge, No. 64, of 
 Raleigh, and became a member of McKee Encampment, No. 15, in the 
 same city. He represented the Grand Lodge of North Carolina in the 
 Grand Lodge of the United States (afterwards known as the Sovereign 
 Grand Lodge) from 1874 until 1886, and was Grand Master of the 
 Grand Lodge of North Carolina from May, 1873, until May, 1874. 
 
 The death of Major Bagley occurred at his home in Raleigh on the 
 21st day of February, 1886, and caused wide regret. The Neius and 
 Observer (then edited by Captain Samuel A. Ashe) said : "Major Bag- 
 ley was held in very high esteem here, and the grief at his death is deep 
 and sincere." In the Journal of Proceedings of the Grand Lodge of 
 Odd Fellows, a memorial of him declared : "Outspoken at all times, 
 always having the courage of his convictions, steady in friendship, firm 
 in his ideas of right, yet at all times courteous, considerate, and amiable, 
 he acquired and held unto the end the warm and affectionate regard of 
 his brethren." 
 
 The funeral services of Major Bagley were held on February 23d from 
 the First Presbyterian Church in Raleigh, being conducted by the Rev. 
 John S. "Watkins, D.D., assisted by the Rev. William C. Norman, pastor 
 of the Edenton Street Methodist Church. In attendance were the offi- 
 cers of the State Departments, the Justices and officers of the Supreme 
 Court, the Raleigh Bar in a body, a numerous representation of Odd 
 Fellows, and a large concourse of citizens, 
 
 Thomas Stephen Kenan, Clerk 
 
 Colonel Thomas S. Kenan, whom we all remember so well, was 
 elected Clerk of the Supreme Court on the 1st day of March, 1886, to 
 fill vacancy caused by the death of Major Bagley, and qualified two days 
 later. 
 
 Before his election as Clerk, Colonel Kenan had won high reputation 
 both as a soldier and lawyer. He was born on the 12th day of Febmary,
 
 62 PROCEEDINGS BAR ASSOCIATIO^^ 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 1838, at the county-seat of Duplin, Kenansville, a town named in honor 
 of his family. He was the eldest son of a prominent citizen of that sec- 
 tion, Owen R. Kenan, member of the Confederate Congress. Owen 
 Kenan's father, Thomas Kenan, member of the United States Congress, 
 from 1805 to 1807, was the son of Colonel James Kenan, an active and 
 courageous officer of the Revolution. 
 
 After a preparatory education at Old Grove Academy, in Kenansville, 
 and at the Central Military Institute, at Selma, Alabama, Thomas S. 
 Kenan entered Wake Forest College and completed his freshman year 
 there. He left in 1854 to enter the University of North Carolina. He 
 graduated with the degree of A.B. from the University in 1857, later 
 being given the degree of A.M. He studied law at Richmond Hill under 
 Chief Justice Pearson, and located for the practice of his profession at 
 Kenansville in 1860. Closely following this came the outbreak of the 
 War between the States. Mr. Kenan promptly volunteered his services 
 to the Confederate Government, and was chiefly instrumental in raising 
 the Duplin Rifles, of which he was elected captain. This company was 
 later made a part of the First or "Bethel" Regiment, then assigned to 
 the Second Regiment, and eventually it became a part of the Forty-third 
 Regiment. Colonel Kenan bore an honorable part in many hard cam- 
 paigns and bloody battles until he was badly wounded while leading a 
 charge at Gettysburg. On the next day he fell into the hands of the 
 enemy, while being carried to the rear in an ambulance train, and was 
 sent to the military prison on Johnson's Island, in Lake Erie. There 
 he was confined until 1865, when he was released on parole. The war 
 ending about this time, he was never exchanged. 
 
 Immediately after the close of the war, Colonel Kenan was elected a 
 member of the State Senate from Duplin County, serving at the sessions 
 of 1865 and 1866. In 1868, the Democrats of his district nominated 
 him for a seat in Congress, but he was defeated. 
 
 He removed from Kenansville to Wilson in 1869, and became Mayor 
 of the latter town, serving from 1872 until 1876. In 1876, when the 
 Democratic party was searching out strong men to make up the ticket 
 for that year and carry on the campaign under the leadership of Vance, 
 Colonel Kenan was nominated for Attorney-General, was duly elected, 
 and held that position eight years, during the administration of Gov- 
 ernors Vance and Jarvis, from January 1, 1877, until January 21, 1885. 
 About a year after the expiration of his term, he was elected Clerk of
 
 PEOCEEDIiSTGS BAR ASSOCIATION 63 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 the Supreme Court, as already mentioned, and he retained that office 
 up to the time of his death, a little more than twenty-five years there- 
 after, on the 21st of December, 1911. 
 
 On May 20, 1868, Colonel Kenan married Miss Sallie Dortch, daugh- 
 ter of Dr. Lewis Dortch, a native North Carolinian residing in Missis- 
 sippi. No children were born to this union. 
 
 In personal appearance. Colonel Kenan was one of the most strikingly 
 handsome men of the generation in which he lived. An oil portrait in 
 the Clerk's office, preserving his likeness in a realistic manner, has been 
 presented by his family, an example which it is hoped that the descend- 
 ants of his predecessors will follow by placing there portraits of Robards, 
 Henderson, Freeman, Dodge, Root, and Bagley. 
 
 Colonel Kenan's interest in the University was deep and lifelong. He 
 was a trustee for many years, and there was seldom a commencement 
 that he did not attend. He lived to celebrate with the survivors of his 
 class the fiftieth anniversary of graduation. He was an Episcopalian 
 in religion, and a member of Christ Church, at Raleigh, for many years 
 prior to his death. In the western gallery of this church is a handsome 
 set of memorial Avindows erected in his honor. He was a member of the 
 Masonic fraternity, and held the post of Deputy Grand Master of the 
 Grand Lodge in the years 1877-78. He was one of the charter members 
 of the North Carolina Society of the Sons of the Revolution, being presi- 
 dent of that organization at the time of his death, and for some years 
 prior thereto. He was a member of the United Confederate Veterans, 
 and member of the advisory committee of the Ladies Memorial Asso- 
 ciation, of Raleigh. He contributed a valuable sketch of the Eorty- 
 third Regiment to Chief Justice Clark's compilation entitled North 
 Carolina Regiments, 1861-65. His own purse was ever open to aid a 
 Confederate veteran who had failed of fortune in the contest of life, and 
 he took a deep interest in the pension legislation of the State, as well as 
 in the Soldiers' Home at Raleigh. Yet with all of his interest in Con- 
 federate matters, there never lived a man more free from sectional bit- 
 teiTiess, or one who had less patience with any one who strove to rekindle 
 sectional animosity. While the war lasted he w^as a loyal Confederate, 
 never flinching from the ordeals of camp, field, or prison ; but after the 
 return of peace, though disappointed of his hopes for Southern inde- 
 pendence, he spent no time in railing at his former adversaries, but 
 became a friend and brother of all good Americans.
 
 64 PROCEEDIXGS BAE ASSOCIATIOX 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 The foregoing sketch of Colonel Kenan concludes what I have to say 
 of the Clerks who have served in the State Supreme Court at Raleigh. 
 It is not my purpose to speak of the present incumbent, Joseph L. Sea- 
 well, who began his connection with the Court when less than fifteen 
 years of age, as an office clerk under Major Bagley, and who well meas- 
 ures up to the best of his predecessors in point of efficiency. Before 
 taking leave of the Clerks who have labored in Raleigh, however, I must 
 say a few words of the excellent gentleman who served in the same line 
 of work many years ago, during the time (1847-61) when the Court held 
 a Summer session each year in the mountain town of Morganton. 
 
 .Tames Richard Dodge, Clerk (Morganton Division) 
 
 It is a fact now almost forgotten that the Supreme Court of Worth 
 Carolina held a Summer term each year at the town of Morganton for 
 nearly fifteen years, beginning in 1847 and ending in 1861. It was by 
 chapter 28 of the Laws of 1846-47 that this Summer term was estab- 
 lished, the action being taken for the convenience of the lawyers of 
 western i^orth Carolina, Raleigh then being almost inaccessible to those 
 residing in that section, owing to the lack of railroads and the bad con- 
 dition of the stage roads. The Court at Morganton maintained an 
 existence until the opening of the War between the States, when, it was 
 abolished by chapter 4 (ratified September 11, 1861) of a volume of 
 statutes entitled ''Public Laws of the State of North Carolina, passed at 
 the General Assembly at the Sessions of 1861-62-63-64 and one in 1859." 
 
 Jaaies R. Dodge was the Clerk of the Supreme Court for the Morgan- 
 ton Division during the whole period of its existence. He was elected 
 on the 20th of February, 1847, and qualified in open court on the first 
 day of its session, August 2, 1847. The Sheriff of Burke County acted 
 as Marshal. 
 
 Mr. Dodge was born at Johnstown, in the State of New York, on the 
 27th day of October, 1795, and belonged to a family which had been 
 settled in America since 1629. His father, Richard Dodge, had run 
 away from home at the age of fifteen to join AVashington's army in 1778, 
 served as a fifer until 1782, and became a Brigadier-General in the War 
 of 1812-15. In the latter war, James R. Dodge, the subject of this 
 sketch, acted for a while as his aide-de-camp, also serving in a company 
 called the Albany Independent Volunteers. The wife of General Dodge,
 
 PROCEEDINGS BAK ASSOCIxVTION 65 
 
 Centennial Celebkation Supreme Court of North Carolina 
 
 and mother of James E. Dodge, was Ann Sarah Indng, a sister of the 
 celebrated American author, Washington Irving. At the home of his 
 father, who was much given to hospitality, young James Dodge became 
 well acquainted with many of the most noted military and naval leaders 
 of that day. 
 
 Being resolved to seek his fortune in the South, James R. Dodge, 
 when twenty-two years old, embarked for Charleston, South Carolina, 
 but was destined never to reach that port. A storm so damaged his ship 
 that she put into the port of Norfolk, Virginia, and could never be made 
 sea-worthy again. This changed Mr. Dodge's plans. He removed to 
 Petersburg, and spent two or three years in that city. While there, he 
 studied law, and procured a license to practice in the State of Virginia. 
 He came to Raleigh in 1820, and soon won the friendship and confidence 
 of such well-known members of the legal profession as Judges Taylor, 
 Henderson, and Hall of the Supreme Court ; Ruffin, later to become the 
 greatest of Chief Justices; Badger, Gaston, Archibald Henderson, and 
 many others. 
 
 Legal business carrying Mr. Dodge to Stokes County, he decided to 
 settle at Gerraantown, the county-seat. About the year 1823 he seems 
 to have been a resident of Lexington, as he represented St. Peter's 
 Church, in that town, in the Diocesan Convention of 1823 which elected 
 John Stark Ravenscroft to the Bishopric. He removed to Wilkesboro 
 in 1826 and remained until 1834. From that year until 1838, he resided 
 in Lincolnton, being Solicitor of the Judicial District in which that 
 town was located. In a brief autobiography prepared not many months 
 before his death, Mr. Dodge (referring to his removal from Lincolnton) 
 says: "Upon consultation with my sympathizing and truly pious wife, 
 we retired to the banks of the Yadkin, our cottage and farm. She man- 
 aged at home, and I labored night and day at Court, at Raleigh and at 
 Morganton. At home we were always happy; care or trouble never 
 entered our door, and these years were the happiest of my life." 
 
 The wife of Mr. Dodge, to whom he was married on the 24th of May, 
 1826, was Susan Williams, daughter of Joseph Williams, and grand- 
 daughter of Colonel Joseph Williams, a noted Revolutionary patriot of 
 Surry County. The home of Mr. Dodge, "on the banks of the Yadkin," 
 was originally in Surry County, biU later became a part of Yadkin 
 County when the latter was created out of a part of Surry in 1850. Oae 
 5— Bar
 
 66 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supkeme Court of North Carolina 
 
 of Mr. Dodge's cliildren was the late Colonel Richard Irving Dodge, of 
 the United States Army. Another, Miss Annie Dodge, became the wife 
 of Captain Chalmers Glenn, of the Confederate Army, who was killed 
 at the Battle of South Mountain, leaving several children, one of whom 
 is ex-Governor Robert B. Glenn, now of "Winston-Salem. Another son 
 was the late Adjutant-General James D. Glenn. 
 
 Mr. Dodge possessed a keen sense of humor. His famous epitaph on 
 Hillman, Swain, and Dewes is too well known to need repetition.* He 
 lived to a good old age, honored and respected by all who knew him. 
 His death occurred at the home of his daughter, Mrs. Chalmers Glenn, 
 in Rockingham County, on the 24:th day of February, 1880. 
 
 MARSHALS 
 
 Having given brief sketches of those who served the Court in the 
 office of Clerk, I now turn to the Marshals. When the Court was first 
 organized, the Sheriff of Wake County acted in that capacity. Chapter 
 136 of the Laws of 1819 compensated the sheriff for these services. The 
 separate office of Marshal was created by chapter 15 of the Laws of 
 1840-41, ratified on the 11th day of January, 1841, and I shall now have 
 something to say of the four gentlemen who formerly held this office. 
 
 John Todd Cocke Wiatt, Marshal 
 
 The first Marshal of the Supreme Court was Colonel John T. C. 
 Wiatt, a native of Virginia, who had been a resident of Raleigh for 
 many years. He had figured as an officer in the War of 1812-15, and 
 later was a well-known citizen of Wake County. 
 
 He evinced a strong interest in military matters throughout his entire 
 life. He was captain of a company of infantry in Raleigh prior to the 
 outbreak of the War of 1812-15. His command was mustered into the 
 service of the United States in that war as the "Seventh Company, de- 
 tached from the Wake Regiment." This company (numbering 70 men) 
 formed a part of the Fourth North Carolina Regiment of Avhich Richard 
 Atkinson was Colonel, or "Lieutenant-Colonel Commandant" ; Simpson 
 Shaw, First Major; and Benjamin Elliott, Second Major. The regi- 
 ment was made up in 1812, at the beginning of the war. In his 1892 
 Centennial Address on the City of Raleigh, the Hon. Kemp P. Battle, 
 
 •See Wheeler's History of North Carolina, Part I, p. 108.
 
 PEOCEEDINGS BAE ASSOCIATION 67 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 LL.D., refers to Captain Wiatt's war record and subsequent career in 
 these words : ''The leader of the Raleigh Volunteers, Captain J. T. C. 
 Wiatt, afterwards Colonel "Wiatt, was a remarkable man ; and if he had 
 had an opportunity would have become eminent as a partisan officer. 
 He had nerves of steel. When Sheriff of Wake,* his name became 
 famous throughout the State because of his killing a prisoner named 
 Wolfe. Wolfe was a man of great physical strength. He came to 
 Ealeigh as a recruiting officer, married, and settled here. He adopted 
 gambling as a business, was arrested under the vagrant act, and com- 
 mitted to Wiatt's custody. Wiatt ordered the jailer. Miller, to change 
 his quarters to the dungeon, as he Avas fearful of an escape. Wolfe 
 knocked Miller down and was rushing for the door, when Wiatt shot 
 and killed him. His action was decided to be justifiable. In 1841 the 
 Supreme Court of the State made him its Marshal, in which capacity 
 he acted until his death." 
 
 By a reorganization of the North Carolina Militia, which took place 
 during the War of 1812-15, the troops of Wake County were divided 
 into the First Regiment (containing 756 officers and men) and the 
 Second Regiment (containing 732 officers and men). Of the former 
 regiment. Captain Wiatt became First Major; and the command of it 
 devolved upon him, as senior officer, when Colonel Rogers resigned early 
 in 1815. In the same year, Major Wiatt was promoted to the rank of 
 Colonel, and retained command of the First Wake Regiment for some 
 time. 
 
 After the war. Colonel Wiatt set up an establishment for the manufac- 
 ture of coaches and other vehicles, on his lot west of the courthouse. 
 Under date of ISTovember 29, 1815, he makes announcement of this busi- 
 ness through the Raleigh papers. In the same card he thanks the public 
 for past favors, so he may have been engaged in a similar line of work 
 before. Several years thereafter (March 15, 1818) an advertisement of 
 like nature was made by him and his brother under the firm name of 
 Haute C. Wiatt & Company. At a somewhat later date, he gave up this 
 business and became a planter. 
 
 Colonel Wiatt belonged to the Masonic fraternity, and was a member 
 of Hiram Lodge, ISTo. 40, in the city of Raleigh. After filling several 
 lesser stations in his lodge he became Worshipful Master in 1815, hold- 
 
 *Colonel Wiatt was Deputy Sheriff for a while. I can find no record of his having been 
 Sheriff.— M. DeL. H.
 
 68 PEOCEEDINGS BAR ASSOCIATION" 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 ing that post for five terms, his service ending in 1819. He was also, at 
 a little later time, one of the Grand Stewards of the Grand Lodge ; and 
 he became Grand Tiler about the year 1824, holding the two offices 
 jointly until December 26, 1827. On the date last given, Richard W. 
 Ashton became Grand Tiler, and Wiatt was continued in the office of 
 Grand Steward until 1837. He retained his membership in Hiram 
 Lodge up to the time of his death. 
 
 Notwithstanding his high rank in Masonry, it must be confessed that 
 Colonel Wiatt profited little by the ancient precept of the Order, with 
 respect to profanity, which the Fraternity so constantly endeavors to 
 inculcate into the hearts of all members, for he was indeed "full of 
 strange oaths," and bore too close a resemblance to soldiers of old, in 
 the army which "swore terribly in Flanders." Yet withal, he was of a 
 generous and obliging disposition, who took pleasure in contributing to 
 the welfare and comfort of those in need of assistance, especially persons 
 passing on the much traveled highway which led by his country home. 
 Long before tlie poet voiced the sentiment in words, it was his delight to 
 
 "Live in a house by the side of the road 
 And be a friend to man." 
 
 By the fence dividing his front yard from the public highway, he had 
 a well dug, and equipped it with a rope, on each end of which was a 
 bucket, one swinging inward for his family's use, and one swinging out- 
 ward for the use of any thirsty wayfarer who might stop to refresh him- 
 self or his horse before continuing his journey. In the aforementioned 
 1892 Centennial Address on the City of Raleigh, Dr. Battle says : "Old- 
 time travelers remember the cool water of his well four miles west of 
 town on the road to Chapel Hill and Hillsboro. The drivers of the pub- 
 lic stages always watered their horses at Wiatt's well." 
 
 In connection with this well, an amusing tradition survives. On one 
 occasion, several gay young students from the University of Xorth Caro- 
 lina were traveling the road between Chapel Hill and Raleigh. While 
 stopping for water at this well, one of them occupied his time by teasing 
 a chained bulldog belonging to the colonel. The owner finally became 
 annoyed, and called out: "If you don't let that dog alone, I'll tuni him 
 loose on you." To this threat came the defiant reply : "Turn him loose, 
 and I'll fight him fair." The dog was accordingly released, and was
 
 PROCEEDINGS BAR ASSOCIATION 69 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 met halfway by the student, who vaulted over the fence into the yard, 
 whip in hand, and showered blow after blow upon the fierce animal, the 
 strokes being accompanied by such a torrent of profanity as had never 
 before been heard in North Carolina since the days of George Burring- 
 ton. Colonel Wiatt watched the combat with amused interest, and 
 finally saw his dog, with tail stuck between his legs, hastily seeking 
 refuge under an outhouse. Thereupon he went forward and warmly 
 congratulated the victor, remarking : "You have done two things that 
 nobody else ever did — you have made my bulldog run from you; and 
 you have shown me that there is one man in North Carolina who can 
 swear louder and longer than I can. The world is likely to hear from 
 you before it gets much older." After a lapse of some years. Colonel 
 Wiatt happened to be in Raleigh one day, when a friend, accompanied 
 by another gentleman, called to him and said he wished to introduce his 
 companion, a clergyman of North Carolina birth, who had been absent 
 from the State for some years, and had stopped in Raleigh to renew an 
 acquaintance with some of his old friends. Upon recognizing the minis- 
 ter as the hero of the bulldog encounter in former years, and as the one 
 whose proficiency in profanity had excited his wonderment (if not 
 envy). Colonel Wiatt remarked: "I once had the pleasure of hearing 
 this gentleman talk, but he was not then preaching the Gospel — accord- 
 ing to my recollection." He then related the incident, much to the 
 amusement of several gentlemen who had joined the group, the minister 
 entering heartily into the laugh which followed. On taking leave, 
 Colonel Wiatt declared that he would avail himself of the first oppor- 
 tunity to listen to a sermon by his young friend, as he was confident 
 that no man with such fluency in expressing himself could fail to be 
 entertaining as a preacher. Not many months later, the clergyman was 
 called to the pastorate of one of the principal churches of Raleigh, and 
 became an honored resident of the city, but Colonel Wiatt died just be- 
 fore his arrival. 
 
 Colonel Wiatt married Cecelia Dabney, and has quite a number of 
 descendants residing in Raleigh and Louisburg — members of the Foster 
 and Yarborough families. He died at his home near Raleigh, February 
 23, 1855, and was buried with Masonic honors.
 
 70 PROCEEDI^^GS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 *.7ames Litchford, Marshal 
 
 James Litchford, of Ealeigh, was the second Marshal of the Supreme 
 Court, succeeding Colonel Wiatt in that office. He was born in or near 
 the old colonial capital of Williamsburg, Virginia, in the year 1795. 
 His father, Arthur Litchford, was a pensioner of the United States 
 Government for services rendered during the War of the Revolution. 
 
 When the War of 1812-15 came on, young James Litchford was as 
 ready to fight for American rights as his father had been in the "Days 
 of '76," and he enlisted in the Sixth Regiment of Virginia Infantry. 
 His company commander was Captain Edward Pescud, who has many 
 descendants now living in N^orth Carolina. What were the details of 
 Mr. Litchford's services we are unable to state; but as the militia of 
 Virginia and adjacent States was kept busy defending the seacoast 
 around Norfolk from depredations of the military and naval forces 
 brought over by Admiral Cockburn, we may assume that young Litch- 
 ford had a full share of active service. 
 
 In 1818, Mr. Litchford was united in marriage with Mary Archer 
 Gill, of James City County, Virginia. About the same time he decided 
 to remove to the town of Halifax, North Carolina, but remained there 
 only a short time, and came to Raleigh in 1820. He was a citizen of 
 Raleigh for the remainder of his life, being for many years associated 
 in business with his kinsman, James Selby. 
 
 Mr. Litchford was a member of the Masonic fraternity. He took his 
 degrees in Hiram Lodge, No. 40, in 1828, but withdrew shortly there- 
 after. He resumed his membership later in life, however, and continued 
 a member of Hiram Lodge up to the time of his death. 
 
 It was in February, 1855, that Mr. Litchford succeeded Colonel Wiatt 
 as Marshal of the Supreme Court. The Court was then composed of 
 Chief Justice Frederick Nash and Associate Justices Richmond M. 
 Pearson (later Chief Justice), and William II. Battle. 
 
 Mr. Litchford held the office of Marshal up to 1869, when the Supreme 
 Court was reorganized under a provision of the new State Constitution, 
 placing the election of Supreme Court Justices in the hands of the peo- 
 ple, instead of their being chosen by the Legislature, as was theretofore 
 the usage. 
 
 ♦This article is reproduced from a sketch of Mr. Litchford which I wrote for the News and 
 Observer, September 23, 1918, giving an account of his portrait which had been presented to 
 the Supreme Court Library by Henry E. Litchford. — M. DeL. H.
 
 PROCEEDINGS BAR ASSOCIATION 71 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 Mr. Litcliford died on the 1st day of September, 1870, at the age of 
 seventy-five. In alluding to his death, the Raleigh Sentinel, in its issue 
 of September 3d, said, in part : 
 
 "Mr. Litchford was a native of James City County, Virginia, removed to 
 Raleigh in 1820, and has been a resident of tlie city for nearly fifty years. 
 He was a most excellent citizen, quiet yet strongly marked in his principles, 
 and an honest man. As a husband, father, and friend, we have known none 
 better. His death is universally regretted." 
 
 The funeral of Mr. Litchford was held from the Baptist Church on 
 the morning of September 3d, and he was buried with Masonic honors 
 by Hiram Lodge, No. 40, a number of members of William G. Hill 
 Lodge, No. 218, being also in attendance. 
 
 Mr, Litchford left a number of children, one of his sons being the 
 late James J. Litchford, a well-known and highly esteemed citizen of 
 Raleigh. Among the children of the latter is Henry E. Litchford, 
 formerly cashier of the Citizens National Bank, of Raleigh, and now 
 vice-president and treasurer of the Old Dominion Trust Company, of 
 Richmond, Virginia. 
 
 David Alexander Wicker, Marshal 
 
 David A. Wicker became Marshal of the Supreme Court, as successor 
 to Mr. Litchford, on January 12, 1869. This gentleman was a native 
 of Moore County, North Carolina, and the date of his birth was Feb- 
 ruary 6, 1824. In early manhood he came to Raleigh, and was employed 
 as salesman in a clothing store. He did not engage in this occupation 
 long, however, but removed to Arkansas, and remained there about five 
 years. In Arkansas he was engaged in mercantile pursuits, and was 
 postmaster of the town where he was located. Returning to North Caro- 
 lina, he engaged in railroading, and became General Freight Agent of 
 the North Carolina Railroad, now a part of the Southern Railway. He 
 lived in Greensboro during a part of the war, there being an enrolled 
 member of the Home Guard, and returned to Raleigh in 1865, upon 
 being appointed Traffic Manager of the old Raleigh and Gaston Rail- 
 road, now a part of the Seaboard Air Line System. The office last 
 mentioned included the superintendence of the southern division of the 
 Old Dominion Steamship Line, plying between Norfolk and New York. 
 On one occasion, while on a tour of inspection over this line, his ship
 
 72 PROCEEDINGS BAE ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 was totally destroyed by fire, and he came near perishing in an open 
 boat which was buffeted by the waves for two days before reaching 
 Norfolk. For a while Mr. Wicker held a responsible position with the 
 Southern Express Company. 
 
 As already stated, Mr. "Wicker became Marshal of the Supreme Court 
 in January, 1869. He was in the service of the Court for a little over 
 ten years, being succeeded in 1879 by Mr. Bradley. 
 
 After his retirement from the post of Marshal, Mr. Wicker exercised 
 the duties of a magistrate for some years. A veteran of the Raleigh 
 Bar recently told me that the lawyers of that day enjoyed practicing 
 before him on account of the intelligence, impartiality, and promptitude 
 with which he transacted business. 
 
 In 1845, Mr. Wicker was united in marriage with Miss Emma Jane 
 Williams, a daughter of the late Mark M. Williams, of Raleigh. He 
 was the father of eleven children, all of whom are now dead except 
 Robert D. Wicker and Mrs. John R. Upchurch, of Raleigh, and Claude 
 A. Wicker, of Durham. A grandson, Edgar J. Wicker, of Raleigh, 
 received a license to practice law at the last term of this Court. Nor, 
 while mentioning grandchildren, should we fail to record the name of 
 our diminutive friend, Pearson Upchurch, whose labors in manipulating 
 the elevators in this building have proved a great convenience to the 
 Bench, Bar, and general public. 
 
 Mr. Wicker died in Raleigh on the 23d of January, 1890. In record- 
 ing his death, the News and Observer said : "Mr. Wicker had held many 
 prominent places of trust, in all of which he did his duties well. Socially 
 he was jovial and companionable, and had many friends and few enemies 
 wherever he was known." 
 
 Robert Henry Bradley, Marshal and IJliraiian 
 
 The fourth Marshal, and the first person to hold the joint office of 
 Marshal and Librarian, was Robert H. Bradley, whose long and honor- 
 able service to this Court and the legal profession in general was term- 
 inated by the hand of death less than a year ago, when the days of his 
 life had far exceeded the measurement of threescore years and ten. 
 
 Mr. Bradley was born in the good old county of Edgecombe, on the 
 23d day of August, 1840. He was reared on his father's plantation, 
 enjoying such educational advantages as the neighborhood afforded and
 
 PROCEEDINGS BAR ASSOCIATION 73 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 iBdiistriously aiding in carrying on the work incident to a life in the 
 country. On the outbreak of the War between the States, he enlisted 
 (April 18, 1861) in Company A, of what was then known as the First 
 North Carolina Regiment, but which was later placed between the 
 Eleventh and Twelfth Regiments and designated the "Bethel Regiment." 
 This regiment was then commanded by Colonel D. H. Hill, later a 
 Lieutenant-General, and the company in which Mr. Bradley served was 
 under the command of Captain John L. Bridgers, of Edgecombe County, 
 later Lieutenant-Colonel. After undergoing a course of military train- 
 ing in Raleigh, Mr. Bradley marched with his command to Virginia and 
 was present at the Battle of Bethel. There he was one of the party 
 which volunteered to burn a house which obstructed the fire of the Con- 
 federates. In the execution of this design, Henry Lawson Wyatt was 
 killed, being the first Confederate soldier to lose his life in line of battle. 
 After the expiration of Mr. Bradley's enlistment of six months, he was 
 employed as an express messenger on one of the railroads, and served 
 in that capacity for some time. It was then that he decided to make 
 Raleigh his home. Soon after the war, he was appointed Keeper of the 
 Capitol. Later he engaged in mercantile life, and was in a fair way to 
 succeed well in business, when his entire stock of goods was destroyed by 
 fire in 1879. Soon after this misfortune, and in the same year, he was 
 elected Marshal of the Supreme Court. So acceptable were his services 
 that he was later given additional duties and compensation by authority 
 of chapter 100 of the Public Laws of 1883, being thereafter designated 
 Marshal and Librarian. Then it was that his great life-work as a law 
 librarian began, and it must be said that he had a poor subject to start 
 with, for the collection of books — never large, at best, up to that time — 
 had been mismanaged, plundered, and scattered to such an extent that 
 there was not even a full set of the North Carolina Reports in the whole 
 Library. Beginning in the cramped quarters of the Capitol, where the 
 Court then held its sessions, he gathered and classified the collection. 
 In 1886 the Library had grown to such an extent that it was moved to 
 larger quarters in a new building, and finally was brought to its present 
 location. 
 
 Though I knew Mr. Bradley intimately for many years of his life, 
 I never fully realized until I became his Assistant, seven months be- 
 fore his death, the full measure of fortitude under pain and devotion 
 to duty which characterized his life. Often, in his last days, when I
 
 74 PROCEEDINGS BAR ASSOCIATION^ 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 saw him racked by pain and weakness, I urged him to go home and rest 
 for an afternoon, but his invariable reply was that he had worked in the 
 Library for so many years that to be anywhere else during office hours 
 made him feel ill at ease and out of place. He performed his duties to 
 the last, and found peace in death on the 17th of May, 1918. 
 
 Mr. Bradley was twice married and left four children. His first wife 
 was Miss Harriet King, of Wake County. After her death, he married 
 her cousin. Miss Cynthia A. King. This lady survives him. 
 
 Mr. Bradley was a Baptist, and served as a deacon in the Tabernacle 
 Baptist Church, of Raleigh, for many years before his death. For over 
 fifty years he was an active Mason, and held many honors in the various 
 branches of that Fraternity. I feel safe in saying that he was, without 
 exception, the most widely known member of the Order in North Caro- 
 lina. 
 
 To the members of the Bar here present, it is needless to speak of 
 Mr. Bradley's obliging disposition. He served them long and well, and 
 his memory will abide with them for many years to come. 
 
 President Aydlett : The response to the able addresses which we 
 have enjoyed will be made by the great and distinguished Chief Justice 
 of our Supreme Court, Hon. "Walter Clark, of Raleigh. 
 
 RESPONSE TO ADDRESSES 
 
 By Chief Justice Clakk. 
 
 "We take no note of time, but from its loss. To give it then a tongue 
 is wise in man." 
 
 The tick of the clock tells us that another moment has joined the past 
 eternity. We see by the hand on the dial-plate that another hour has 
 passed. When the sun in supernal splendor sets along the gorgeous west, 
 we know that another day is done. When "seed-time and harvest and 
 summer and winter" have gone by, we know that another year has fled. 
 But neither sight nor sound nor sensation suggests to us that with stately 
 steppings a century has swept by. We only know it from reading the 
 record. We stand today in the presence of history. 
 
 The admirable and instructive address of Judge Winston tells us of 
 the progress made by the Court and the changes in the laws, whether by 
 decision or by statute, in the last hundred years. Mr. Hicks has grace-
 
 Frank Nash 
 Chairiuan 
 
 Robert H. Sykes 
 Secretary 
 
 Herbert F. Sea well 
 
 J. W. Pless 
 
 George V. Cowper 
 
 John A. McRae 
 
 EXECUTIVE COMMITTKE NOETII (AROLLXA BAR 
 ASSOCIAXrOX. A. I), unit
 
 PROCEEDINGS BAR ASSOCIATION 75 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 fully foretold, as far as any man can foretell, somewhat of the changes 
 we may expect in the next one himdred years. 
 
 Mr. Haywood has given us a very interesting account of the inside 
 history of the Court, as shown in the lives of its clerks and marshals. 
 
 The Court held its first session one hundred years ago tomorrow, so 
 today closes its century. In more senses than one, that period has been 
 equally divided. During the first fifty years, from November, 1818, to 
 1868, the judges were elected by the General Assembly and were chosen 
 for life. During the last fifty years the judges have been chosen at the 
 ballot-box and their tenure has been for a term of years. 
 
 During the first fifty years of this Court it lived under the practice 
 and procedure formulated in feudal ages by the judges, who for the most 
 part were not lawyers, but priests of the Catholic Church or laymen. 
 The law and procedure created by them was called the common law, a? 
 distinguished from the feudal law administered by the barons in their 
 local courts, who hanged or fined or imprisoned their followers, and 
 decided disputes as to civil matters, according to their good pleasure. 
 
 As a consequence, during the first fifty years of this Court, it admin- 
 istered the law according to the views of a ruder age. During that 
 half a hundred years the greatest and most powerful interest in the State 
 was slavery, and the condition of women was little short of it, for upon 
 marriage their property became that of the husband, and he still retained 
 the right to chastise his wife at will, without power in the courts to hin- 
 der him, provided he used "a switch no larger than his thumb." Judge 
 Little so instructed the jury as late as S. v. Rhodes, 61 jST. C, 453, at 
 Fall Term, 1867; and Judge Reade, speaking for a unanimous Court, 
 said there was no error, and that the courts could not punish the husband 
 even though the whipping had been inflicted without any provocation. 
 If the negro was a slave, the wives of white men also had only the legal 
 status of a chattel. 
 
 In 1868, at the middle of the Court's century, the negro was admitted 
 to a share in the government because emancipated from the master's lash. 
 But not till 1874 did the Court, in S. v. Oliver, 70 N. C, 60, recognize 
 that even the courts must bow to the spirit of the age, and emancipated 
 the wife from the husband's whip. 
 
 In 1868 both the Federal and the State Constitution admitted the 
 former slaves to a share in the government. It will be a mystery to com- 
 ing generations that another half-century has passed and we are now only
 
 76 PROCEEDINGS BAR ASSOCIATION 
 
 Cexte.nmal Celebration Supreme Court of North Cabolina 
 
 on the eve of admitting that the mothers, wives, sisters, and daughters of 
 the voters of North Carolina are as competent as our foraier slaves to 
 share in the government. During this half-century, so far as political 
 recognition is concerned, they have remained disfranchised in the same 
 class with convicts, lunatics, idiots, infants, and illiterates. We cannot 
 say that the admission of the negroes to the ballot-box by the Fifteenth 
 Amendment was entirely forced upon this State, for among the members 
 of the North Carolina Legislature who voted to ratify the amendment 
 conferring suffrage upon our former slaves the record shows the names 
 of Thomas J. Jarvis, James L. Robinson, Edward W. Pou, and other 
 leaders of like character. 
 
 In the recent election in England the vote of the women was conserva- 
 tive, and so it will be here, for such is their nature. Their vote will be 
 needed. It will always be cast for the home and its best interests. 
 
 Though the Constitution of 1868 did not admit the women of the State 
 to a share in the government which was granted to the former slaves, it 
 did not disqualify them from holding office,* and it did expressly confer 
 upon married women the ownership of their property inherited or in 
 whatever manner acquired, "as fully as if they had remained unmar- 
 ried," with the single requirement of the written assent of the husband 
 to a conveyance of realty. But such was the force of precedent and pre- 
 conceived opinions that the judges, who had been educated under the 
 feudal ideas as to the incapacity of women to manage property, blandly 
 continued to hold that wives were not only incapable to contract, but 
 that their husbands could recover their earnings from their personal 
 labors, and for mental and physical anguish sustained by them from per- 
 sonal injuries, and continued to assimilate their condition, as far as pos- 
 sible, to the old feudal conditions until by act of the General Assembly 
 married women have at last been partly, but not yet entirely, vested with 
 the rights granted them by the Constitution. 
 
 The Constitution of 1868 also emancipated the law from those fetters 
 of form which made one of the greatest reproaches of the system we had 
 inherited from the judges who formulated the common-law practice. 
 The Constitution of 1868 absolutely abolished all distinction in the forms 
 of action, and even divorced us from the fetish that there was an inherent 
 and insurmountable distinction between law and equity. 
 
 *It merely provided that "Every voter" (meaning merely to include the newly enfranchised 
 negro) should be eligible to oflSce. Cons., Art. VI, sec. 7.
 
 PROCEEDIlSrGS BAR ASSOCIATION 77 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 Under the system in force when this Court was formed, a hundred 
 years ago, it was esteemed a crime for a man to become unfortunate 
 financially, and he was accordingly imprisoned if he could not pay his 
 debts. One of the most distinguished judges who ever sat upon this 
 Court, a leader in thought, and one of the originators of our common- 
 school system, and the pioneer of internal improvements, was imprisoned 
 for months in Guilford jail at Greensboro because he was unable to 
 meet his financial obligations — Judge Archibald D. Murphey; and 
 Robert Morris, who financed the patriot cause in our Revolution, lan- 
 guished for years in jail for debt thereafter. We have certainly traveled 
 far from that in these one hundred years. 
 
 More than that, we established in 1868 a system that was shocking to 
 the reactionary shylocks, to whom the dollar was infinitely more precious 
 than the liberty of the citizen, by creating "a homestead and personal 
 property exemption" for the unfortunate debtor. He would be a rash 
 man now who would attempt to repeal it. The world has moved in the 
 last fifty years. We have not only emancipated the slave, given prop- 
 erty rights to the women, and are about to give them also a share in the 
 government, but we have freed the debtor. 
 
 The pages of our Reports show that we have not halted with these 
 reforms, but we have set out upon a course that is to emancipate the 
 children by giving them education in the public schools and by limiting 
 the years within which they can be harnessed down to labor, and we are 
 giving to the creators of the wealth of the State some recognition by 
 limiting the hours of labor. We already have destroyed the mediaeval 
 doctrine that an employee of a common carrier could not recover for 
 injuries inflicted in the service if a fellow-servant contributed by his 
 negligence in causing it. 
 
 More than that, in the last hundred years we have emancipated the 
 people, or, rather, they have emancipated themselves, by making all 
 officials elective, from constable to governor. Under the Constitution of 
 1776, enacted at Halifax, the people were trusted to elect only the mem- 
 bers of the Lower House, just as the Constitution at Philadelphia eleven 
 years later, entrusted to the people the election only of members of the 
 House of Representatives. The magistrates were elected by the Legis- 
 lature, and the magistrates elected the county officers, except the clerk, 
 who was appointed by the judge. Sixty years passed before we began
 
 78 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 to trust the people to elect tlieir own agents by making the Governor 
 elective. Twenty more years elapsed before we allowed the State Sena- 
 tors to be so chosen. Up to that time it was thought unsafe to permit 
 any man to vote for State Senator unless he owned fifty acres of land. 
 The judges and all the State officers, except the Governor, continued to 
 be elected by the Legislature until half the century of this Court had 
 expired, in 1868, and property qualifications were required for offices. 
 Further, the Constitution held a man unfit to be Governor unless he 
 owned a freehold above a thousand pounds in value, nor fit to be a State 
 Senator unless he owned three hundred acres of land. They intended to 
 admit no Bolshevist into office. It is still held by this Court that women 
 cannot hold any office or place under the State, but they in fact do hold 
 several, and there is no disqualification of women to hold office to be 
 found in the Constitution or in any statute. 
 
 Numerous instances in which our State laws and decisions have been 
 modernized have been stated by Judge Winston. It is hard for us to 
 realize that the Constitution of the United States today is the oldest 
 form of government in any civilized country. The only governments 
 which have not been modernized since ours was created are the autocracy 
 of the barbarous tribes in Central Africa and in the Pacific Islands. In 
 no country today except ours is the Executive permitted to interfere 
 with legislation by the representatives of the people by interposing his 
 veto. This remnant of distrust of the capacity of the people for self- 
 government has disappeared in every country save this. North Caro- 
 lina in this particular stands ahead of all her sister States, for it is the 
 only one which so far has refused to confer the veto power upon the 
 Governor. Then, too, government in this country is the only one in 
 which the Judiciary exercises, or has exercised, the veto power over the 
 Legislative Department. This, however, is not conferred by the Consti- 
 tution, either Federal or State, but is an assumption of authority by the 
 ruling of the Court in its own favor in Marhury v. Madison in 1803. 
 It was created by an ingenious process of reasoning in the obiter dictum 
 in that case and, it is believed, as a bulwark for the protection of slavery 
 against possible hostile legislation. Certainly it was never used against 
 an act of Congress until (in another obiter dictum) in the Dred Scott 
 case in 1857, which hastened the Civil War. After that war, aggregated 
 wealth invoked instead the Fourteenth Amendment, enacted for the
 
 PROCEEDINGS BAR ASSOCIATIOIn" 79 
 
 Centennial Celebration Stjpkeme Court of North Carolina 
 
 totally different purpose of protecting the newly emancipated negro, 
 which it never did. 
 
 The assertion of the judicial veto in Marhury's case was promptly 
 denied by President Jefferson, the leader of one great party, and later 
 by Abraham Lincoln, the leader of the other. Its adoption was most 
 unfortunate for the courts. To quote an expression of Talleyrand, "It 
 was worse than a crime; it was a blunder." It has made the composi- 
 tion of the courts ever since a matter of prime importance to aggregated 
 wealth wherever judges are appointive. This Court extended it in HoJce 
 V. Henderson, 15 IST. C, 1, but this lead was not followed by any other 
 State, and the soundness of the decision was denied by the U. S. Su- 
 preme Court. It remained a cause of friction between the legislative 
 and the judicial department of the State government for seventy years 
 until (after having been affirmed sixty times) it was overruled by Mial 
 V. Ellington, 134 N. C, 131, in 1903. 
 
 Among the many excellencies of the law schools in this country there 
 is one great defect which has been cured in but few of them, and that is 
 the history of the law is not taught. ISTot only are students, as a rule, 
 and therefore lawyers, uninformed as to the development of our State 
 law so admirably traced by Judge Winston in his address, but they are 
 misinformed as to the origin and development of the law in England. 
 From the charming narrative of Blackstone, students have conceived an 
 admiration of the so-called common law, which he tells us is the "per- 
 fection of reason," whereas though it may have been the best that could 
 have been done by the judges who created it in a barbarous age, our 
 progress consists in changing it in every way possible. So far from its 
 origin being "as undiscoverable as the sources of the Nile," we know 
 that it was simply "judge-made law." 
 
 In our training as lawyers we also received an entire misconception 
 of Magna Carta, which was a reactionary instrument exacted by the 
 barons to secure their local and personal privileges (among them was 
 the right of hanging their retainers at will) against the extension of the 
 jurisdiction of the King's Courts which had been created by the father 
 of King John. Even so great an authority as the Supreme Court of 
 the United States ought to be stated on one occasion that trial by jury 
 was guaranteed by Magna Carta, and one writer has even said that it 
 was "drawn by the great lawyers of England." The truth is, as we now
 
 80 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 know, that when Magna Carta was signed in 1215 there were no lawyers 
 in Enghmd of any kind, but eA^ery person in any proceeding, civil or 
 criminal, Avas required to appear in his own behalf. It was twenty-one 
 years later, by the Statute of Merton in 1236, that authority was first 
 given one to appear in court by a friend or agent to plead for him. It 
 was not till seventy-six years after the Magna Carta that the Statute of 
 Edward I. in 1291 gave authority for lawyers to act as professional 
 agents for litigants or defendants and authorized forty lawyers to be 
 licensed for all England. The judges up to that time were priests, with 
 now and then a layman, and for centuries later continued to be mostly 
 such. There was no law school in England by which lawyers could be 
 educated professionally until 1758, nearly five centuries and a half after 
 Magna Carta, when a briefless barrister who had failed at the bar was 
 enabled by the gift of a layman to open the first law school in England 
 at Oxford. His lectures have become famous as Blackstone's Commen- 
 taries. During all the centuries from 1291 till then, lawyers had pre- 
 pared themselves by being articled as clerks to practicing lawyers, or 
 picking up such crumbs of information as they could by attending the 
 courts. The Inns of Court were not law schools but voluntary associ- 
 ations of law students. 
 
 As to trial by jury, there was none in England until 1351, one hun- 
 dred and thirty-six years after Magna Carta, and the first juries were 
 composed of the witnesses, who were to find the facts by reconciling their 
 testimony. Hence juries were not at first always composed of twelve 
 men, nor for a long time was unanimity required. It must be remem- 
 bered, also, that during all the centuries from the Conquest down to 
 Blackstone's day the records of the court were kept in dog latin, and for 
 most of that time the opinions of the judges and the arguments of coun- 
 sel were in Norman-French, which might well be styled pigeon-English. 
 To add to the uncertainty, the opinions of the English judges, with rare 
 exceptions, Avhen the Court entered "curia vult advisari," were rendered 
 hot foot, at the hearing, and there were no reasons given in writing. 
 The reporters until very recently were never official, but always volun- 
 teers and subject to no revision. The records show that they frequently 
 misconceived the reasons given by the Judges. The result is that many 
 Reports have been justly characterized as almost valueless, and compara- 
 tively few can be depended upon as at all accurate. Reports of opinions
 
 PROCEEDINGS BAR ASSOCIATION 81 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 delivered orally, at the close of the argument, and in Norman-French, 
 taken down by volunteer and often incompetent reporters, were natur- 
 ally often misconceptions of what was said and done. The recent publi- 
 cation of the researches of Professor Vinogradoff and others in the 
 archives of the courts are conclusive on this subject. It could not be 
 otherwise when all the elements of uncertainty are considered. No 
 wonder that with the misconceptions borne in on the profession by the 
 teaching of Coke and Blackstone our courts became so much at conflict 
 with the spirit of freedom and liberty that it has required constitutional 
 amendments and so many statutes to make the necessary changes. 
 
 That the changes in the next hundred years will be greater still is 
 inevitable. Even the foresight of Mr. Hicks cannot conceive them. Not 
 only have the Constitutions of all countries been created or changed 
 since that of the United States was adopted, but the method of changing 
 them is different. In France and Germany, Italy and Spain, and other 
 countries, when an amenament to the constitution is desired, it is not 
 made in the cumbersome way we adopted in 1787 — out of fear to trust 
 the newly emancipated people, who were then mostly uneducated — but 
 in those countries and in probably all others except England a joint 
 session of the two Houses of the lawmaking body is held and the amend- 
 ment is then made by a majority vote. In England it is not even neces- 
 sary to have a joint session of the two Houses, but when a bill has passed 
 three times through the Lower House in two consecutive sessions of 
 Parliament it becomes a part of the constitution without the assent of 
 the other House. How soon we shall reach this stage of progress in 
 civilization we cannot tell. We only know that so far we have essen- 
 tially changed the method of electing the Senate and cured by amend- 
 ment some errors of the courts. 
 
 There is, as I have said, no veto in any country but ours, either by the 
 executive or by the courts, upon any legislation. It is very certain that 
 the judicial veto upon legislation cannot much longer sur\dve the discus- 
 sion which has arisen over it in the absence of any provision in the Con- 
 stitution or law conferring that power upon the courts. This power 
 which the reactionary interests cling to as their last bulwark to stay prog- 
 ress and the extension of equal rights of all to share in the benefits of 
 increasing wealth and of the comforts and opportunities of civilization 
 will be as futile a barrier for them as to "attempt to dam the Nile with 
 6— Bar
 
 82 PEOCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supueme Coukt of Nouth Carolina 
 
 bulrushes." At present the Court has created itself a Privy Council by- 
 its own enactment, with the power to nullify the vote of the two Houses, 
 though approved by the President or Governor. 
 
 In our own State it would seem quite clear that among early changes 
 will be the abolition of the antiquated system of rotating the trial judges, 
 each of whom, selected by one district, can yet preside over the other 
 nineteen, whose people have had no part in his nomination. Another 
 change which would seem extremely probable is to give force and effect 
 to section 8 of Article I of our Constitution, which provides, "The legis- 
 lative, executive, and supreme judicial powers of the government ought 
 to be forever separate and distinct from each other." We know that, 
 under the influence of former ideas^ this paragraph and requirement is 
 an absolute nullity. 
 
 The legislative is not separate and distinct, but is subject to the power 
 of the judiciary to negative and destroy legislation, the only require- 
 ment being some ingenuity or skill in holding that a given feature of 
 any act is not "due process of law," or not "according to the law of the 
 land," or "not the equal protection of the laws," or some other reason 
 "equally as good." 
 
 On the other hand, the judiciary has not control of its own depart- 
 ment, for its procedure is prescribed or changed at will by the interfer- 
 ence of the Legislature. In New York, where they first formulated the 
 new and simpler code of procedure drawn up by David Dudley Field in 
 some 391 sections, it became the custom for every lawyer who lost a cause 
 to rush to the Legislature to amend the procedure, so that today they 
 have a code of more than 3,000 sections which is more complex and 
 complicated than the absurd system which it was intended to succeed. 
 In England they have proceeded according to the spirit of the provision 
 in our Constitution (and the United States Congress, to a certain extent, 
 is proposing to do the same) by authorizing the highest Court to formu- 
 late the procedure by rules of practice. In England the court has done 
 this in sixty-three sections. 
 
 Not only are the courts thus interfered with by legislation in their 
 procedure and practice, matters which pertain to the Court, but the 
 Executive interferes with matters strictly judicial, by ordering special 
 terms, or the exchange of circuits, and by the use of the pardoning 
 power, and in other ways. There should be either a bureau of justice,
 
 PKOCEEDIJSTGS BAE ASSOCIATION" 83 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 or the Court itself should be authorized to discharge these matters of 
 which the judiciary are better informed, instead of relegating them to 
 Executive action, which is foreign to such duties. 
 
 When these and some other changes are made each department will 
 be separate and distinct, but not till then. At present there is hopeless 
 interference by each of the three departments with the other two. 
 
 It is probable that in the future the anomaly of Federal judges being 
 appointed, instead of elected by the people, and holding for life, which 
 is unrepublican and autocratic, will be abolished. It is also probable 
 that many of the grounds of jurisdiction in the Federal court, such as 
 diversity of citizenship, shall be abolished, or else the spectacle of two 
 concurrent jurisdictions, the Federal and the State courts revolving in 
 the same orbit, will disappear by there being only one system of courts 
 with appeals, instead of writ of error, from State courts to the United 
 States Supreme Court, or at least there will be an abolition of Federal 
 courts except for purposes of executing the law in purely Federal mat- 
 ters not involving questions of private right. 
 
 There will be still greater changes, which no man can prophecy, in 
 law and its administration which will have been realized one hundred 
 years hence. 
 
 Mr. Hicks mentions the suggestion of Hugo Munstenburg that some 
 psychologist may invent a machine to tell when a man is lying. It 
 would greatly shorten trials. A defendant, preparing to take the stand 
 as a witness, asked his counsel, in some trepidation, if he thought this 
 possible. His counsel said : "Huh, of course. I married one." 
 
 The English-speaking people are the only ones where recorded de- 
 cisions are taken or have ever been held as authority. Everywhere else 
 each case is decided as it arises upon its own merits, unbiased by what 
 other judges in other cases have said. In 1890 the volumes of Reports 
 in English had already reached 8,000. Today there are nearly 35,000 
 volumes of Reports. This system is breaking down of its own weight. 
 It cannot go on. Shall we substitute for it the system prevailing in 
 other countries of not printing or quoting the decisions, and having in- 
 stead codification similar to the Code ISTapoleon? If not, what shall we 
 do? If an opinion or decision is erroneous, duplication and reduplica- 
 tion will not make it sound. 
 
 Great, as it seems to us, has been the change in laws and their admin-
 
 84 PROCEEDINGS BAR ASSOCIATION 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 istration in the one hundred years that have passed since tliis Court was 
 created, it has been exceedingly small as compared with the progress in 
 every other department of thought and of action. A hundred years ago 
 flteam railroads were undreamed of, and the transmission of intelligence 
 by electricity. Telephones, phonographs, ocean cables, wireless teleg- 
 raphy and navigation of the air and other discoveries and inventions 
 are so recent as still to be novelties. The human mind cannot foresee 
 "all the wonders that shall be" in the next hundred years. A hundred 
 years ago anesthetics were unknown and amputations were made with- 
 out chloroform or ether. Even now antisepsis and sanitation are new. 
 The progress in religious conceptions from the then still recent execu- 
 tion of witches, against abolition of which Blackstone protested, to these 
 days when religion approximates somewhat nearer to the teachings of 
 the Master, in the establishment of the Red Cross and of hospitals, free- 
 dom from work for children, the extension to them of education at the 
 public expense, greater consideration for the poor and the recognition of 
 the rights of women, as well as of inferior races, has taken the concrete 
 form of governmental adoption. The battle of the Marne, besides its 
 other results, will obtain the guarantee by the nations of the world of 
 the protection of an historic race throughout Russia, Germany, Austria, 
 and Turkey from a persecution which began on the day when "Mordecai 
 the Jew sat in the king's gate," and at a woman's bidding salvation 
 came in the order of protection sent by swift couriers to the one hundred 
 and twenty provinces. 
 
 When this Court held its first session one hundred years ago, had some 
 one predicted that in less than half a century the people would be trusted 
 with the election of the Judges and all other officers from Governor to 
 constable, that the negro would be emancipated and a citizen, that 
 women would possess property rights, and that the ancient forms of 
 legal practice and procedure would be swept away, it would have created 
 consternation. But not as much as would be the case if one could stand 
 here and foretell the conditions of government and of society Avhich will 
 exist when the second Centennial of this Court shall be celebrated. As 
 the astronomers, by taking note of the direction from which our plane- 
 tary system drawn along by the great central orb 1,300,000 times as 
 large as this little planet on which we live has rolled on its course with 
 incredible speed, c-an tell us that the direction in which we are moving
 
 PROCEEDINGS BAR ASSOCIATION 85 
 
 Centennial Celebration Supreme Court of North Carolina 
 
 is towards the star Vega, which shines near the horizon to the northwest, 
 so we can see in the great Declaration at Philadelphia in 1776, its 
 adoption since in some form of the Rights of Man by all nations, its 
 extension to the emancipation of subject races and the admission of 
 women to a share in government, and still more in the limitation of the 
 hours of labor, the minimum wage and other requirements, that we are 
 traveling with increasing speed towards giving a greater and a more 
 adequate share of the wealth they create to the labor that creates it. In 
 the not distant future there will be no Rockefellers and Carnegies, no 
 kaisers or kings, but a higher standard of living and more enjoyment of 
 life for those who "make all things that are made and without whom 
 nothing is made that is made." Privilege will pass. Equality of oppor- 
 tunity will prevail. The miter and the musket will no longer have a 
 controlling share in government when the hammer and the level, the 
 brain and the hand shall "rule in the realm which they have made." 
 
 If any one shall read one hundred years hence what is said here today 
 they may find that we had at least some glimpse of the kingdom into 
 which this generation, like the children of Israel of old, may not enter, 
 and beyond which even in that day there will still lie an illimitable 
 
 field— 
 
 "The infinite world of man's last aspirations untrod, 
 Save by the evening and the morn and the angels of God." 
 
 The end.
 
 LAW LIBRARY 
 
 UNIVERSITY OF CALIFORNIA 
 
 LOS ANGELES
 
 UC SOUTHERN REGIONAL LIBRARY FACILITY 
 
 lli!|Hli1ll!!||l'lfl|l||l|l|1l|;!!|1l|i!|iri|| 
 
 000 776 914 4