In studying the development of a people nothing is more helpful than a correct understanding of their system of judicature, for here we not only learn their methods of administering justice, but, at the same time, we get an insight into their conception of justice itself. There is no question of government more vital to the individual than the mode in which the authority of that government is to be administered. There is hardly another function of government that touches the citizen at a point quite so delicate as the institution, which passes judgment upon his deeds and intentions. Hence we find that all peoples at all times have demanded a satisfactory and, to their minds, a fair system of meting out justice to both offender and offended. “Equality before the law” is not alone a plea for an equal voice in selecting the rulers and legislators who are to make the laws, but it is also a plea for an indiscriminating law, applying indiscriminately to rich and poor, bond and free, to be administered by an impartial hand, not without a certain “fear and trembling,” yet with a boldness and fidelity becoming a man robed with authority. I say the people not only demand that the laws be impartial, but that the courts in which those laws are to be interpreted and applied be such as will insure fair play to all those bringing suits therein. Thus it is that a knowledge of the court system of a people comes to have such wide significance and suggestiveness.
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To treat adequately and explicitly a subject like the one in hand is quite a difficult task on account of general confusion, and in some cases actual lack of certain important records, and on account, also, of a direful want of coordination in the system. Different things were tried at different places and times as the exigencies of the case might demand. The reader should also bear in mind two other points: first, that the amount of territory occupied in early colonial days was very small, and a system of judicature adapted to the narrow limits of a small province would, of necessity, have to be remodeled and enlarged to meet the demands of an expanding settlement; and secondly, that all our institutions were merely attempted adaptations of English institutions to our conditions, consequently many were superfluous and many were unsuited and unsuitable to a widely dispersed population occupying an undeveloped country.
With these introductory remarks I am prepared to enter upon my task which is, not to trace all the changes, giving the minute details and dates, but rather, to give a summary, of the Court Systems of North Carolina prior to the Revolutionary war. And it will greatly aid the mind in getting hold of the facts if we divide it into two periods, the first extending up to the close of the proprietary regime in 1729, and the other continuing it to the breaking out of the war.