Such in general were the courts in North Carolina at the end of the proprietary government, and such they continued for several years thereafter. The change of the Colonial government from proprietary to royal had very little effect upon the courts. Only such changes were made from time to time as circumstances demanded. It now remains for us to note a few of the more important of these changes that were made prior to the beginning of the Revolution.
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The first one of importance occurred in 1738. An act was passed “by his Excellency Gabriel Johnston, Esq., Governor, by and with the consent of his Majesty’s Council, and the General Assembly of this province,” abolishing the Provost-Marshals of the Province and appointing instead a Sheriff in each County. Three Justices of the Peace in each county must be recommended biennially to the Governor by the court of the county, who must be “most fit and able to execute the office of Sheriff for their respective counties.” The Governor appointed the one that to him seemed “meet for the office,” and he served the next two ensuing years.” The same act changed the name Precinct to County, and the old Precinct Court became the County Court, but its organization and functions remained the same in essence as they had been.
The next change of interest came in 1746 when there was a general revision of the courts. At this time it was enacted that the Court of Chancery, and the Supreme or General Court shall be held and kept at the town of “Newbern.” But the same act created a new court, “a Court of Assize, Oyer and Terminer, and General Delivery.” This court was to be held twice a year by the Chief Justice and Attorney General at each of the following places: “at Edenton in Chowan County, at Wilmington in New-Hanover County, and at the court house in Edgecomb County.” Thus the State was divided into three judicial districts. The number of districts was increased from time to time as occasion demanded, and it came to be called the Circuit Court, and finally the Superior Court. It should be noted that it was a splitting off of certain of the functions of the General Court leaving it to be the Supreme Appellate Court of the State. This latter Court continued to meet twice a year at Newbern.
“And for the better establishing of the County Courts” it was enacted that they should be held four times in each year, and that the Justices of the Peace “shall have power and authority, as amply and fully, to all intents and purposes as Justices of the Peace in the Counties in England as well out of their Court of Quarter Sessions, as within, to preserve, maintain, and keep the peace within their respective Counties.”
This system of courts continued without material change till the opening of the war. The great weakness of the whole system was its instability. The court laws were temporary and on account of political disputes between the assembly and the Governor their existence was generally limited to a certain specified period, usually two years.
This led to frequent legislation with its consequent agitations and discussions regarding courts and court systems. But this was greatly remedied in the closing years of Governor Tryon’s administration. In 1788, the court question was again taken up, and, while the general features of the system were left unaltered, the duration of the same was extended to five years instead of two, as formerly.