USA > North Carolina > Historical sketches of North Carolina : from 1584 to 1851, Vol. I > Part 57
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First, they have by these unlawful means been empowered to calculate the laws to suit their purposes ; and where a contentious fellow owes an honest man a just debt, we will suppose it but five pounds, a lawyer will have thirty shillings for this cause in the County Court, and five pounds in the Superior, if he appeals ; where, if the honest man gains his action, he recovers seven pounds five shillings, and is six pounds ten shillings out of pocket, and so recovers just fifteen shillings for his five pounds.
And where an honest man is indicted by a rogue, he must pay a lawyer at least five pounds ; and if he is acquitted or not, the cost, besides five pounds, is the least they will look at now-a-days ; and this every year growing higher, ten pounds and fifty pounds in difficult cases. And if a lawyer may extort of me five pounds, why not three hundred or five hundred ? as in my own case ; for I was acquitted, as will be seen hereafter.
When a man is guilty of a crime, and pays dear for it, he has a remedy wherewith to guard himself for the future, thatis, to take care and not be guilty a second time ; but an honest man has no refuge, but is liable.to the same cost every year.
If a man owes me a debt of twenty pounds, I am sure to be three pounds ten shillings out of pocket, for no lawyer will touch my cause for less than five pounds, and I can recover but thirty shillings; and many times they ask ten pounds; and why not, in time, grow as generally to ten.
Now, is it not strange what custom will do; it is a second nature, as it is justly called, for in this case the lawyers have practiced taking extraordinary fees so long, without being punished either by the penal laws or indictments, both of which they are liable to, that they now are hardy enough to attempt to recover extraordinary fees by the law.
I hope the Province will not be long so grossly blinded. Suppose I suffer now through the stupidity which custom has blinded us with.
The following is a copy off the docket relating to the indictments at this court against the principal persons, one on each side, viz :-
NORTH CAROLINA, Hillsboro' District.
At a Superior Court of Justice, began and held for the District of Hills- boro', at the court-house, in the Town of Hillsboro', on the 22d day of Sep- tember, 1768.
Present, the Honorable MARTIN EDWARDS, EsQ., Chief Justice, and MAU- RICE MOORE and RICHARD HENDERSON, ESQRS., His Majesty's Associates, &c. THE KING VS. HERMAN HUSBANDS. Indictment for a rout. Ignoramus. . Witnesses .- Edmund Faning, George Henry, John Butler, John Lea, Zach. Rogers.
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HISTORY OF NORTH CAROLINA.
Same vs. same. Indictment for a rout. Ignoramus. Witnesses .- William Holmes, George Henry.
Same vs. same.' Indictment for a rout. Ignoramus. Witnesses .- Same.
Same vs. same. Indictment for a rout. A true bill. Witnesses .- Same.
And the defendant, by his attorney, comes and defends the force and in- jury, when and where, &c., and saith, that he is not guilty in manner and form as the plaintiff against him hath declared; and of this he puts himself upon God and the country: Therefore, let a jury come. agreeably to Act of Assembly, to recognize, &c.
The same day came the defendant by his attorney, whereupon, came also a jury, viz : J- M-, B- W- -, J- K- -, M -R -, A- H-, A- W-, W --- D-, R-K-, G-
B-, J-M-, and R -- W- -- , who being elected, tried, and sworn the truth to speak upon the issue joined, upon their oaths do say, That the defendant is not guilty in manner and form set forth in the indictment: Therefore, it is the opinion of the court, that the defendant be discharged by proclamation, &c. True copy .- Test. J. WATSON, Clerk.
NORTH CAROLINA, , Hillsboro' District.".
At a Superior Court of Justice, began and held for the District of Hills- boro', at the court-house, in Hillsboro' Town, on the 22d day of September, 1768-
Present, the Honorable MARTIN HOWARD, EsQ., Chief Justice, MAURICE MOORE, and RICHARD HENDERSON, ESQRS., His Majesty's Associates.
THE KING US. EDMOND FANING. Indictment for extortion. Pleads not guilty. Jury impanneled and sworn, find the defendant guilty: Fined one penny and costs.
Same vs. same. Indictment for extor.
Same plea. Same entry.
Same vs. same. Indictment for extor.
Same plea. Same entry.
Same vs. same. Indictment for extor. Same plea. Same entry.
Same vs. same. . Indictment for extor. Same plea .. Same entry.
Same vs. same. Indictment for extor. Same plea. Same entry.
Same vs. same. Indictment for extor. Aute fau Convict. .
There are many more, but these may suffice, &c.
WILLIAM BUTLER and two others were tried, and found guilty, and sentenced to lay in prison some months, and pay a large fine, but at the close of the court, two of the prisoners broke out, and the third, though the door was open, would not go till he got a discharge.
The Governor's men began to die with the flux, and the officers being found guilty, they grew generally very discontented and angry. The Governor sent a discharge after the two other prisoners, and a general pardon, excepting a few in a county, and disbanded all his men. Nor did ever men look more sheepish and ashamed than they did as they returned, endeavoring to keep up their countenance by hooping and hooraying for the Regulators.
On the trial of one of the prisoners for rescuing the mare taken for the taxes, the attorneys mentioned that the legality of the said tax was disputed, and one of the judges, in answer, said that was not a legal way to dispute it; but if any one thought the tax not legal, they ought to indict the sheriff.
This being observed by Herman Husbands, he consulted the Attorney-Gene- ral, observing it to him, who not only remembered the advice, but concurred therewith. Whereupon, Herman Husbands indicted one of the sheriffs, who, being found not guilty, sued the said Husbands for a malicious prosecution. But the Assembly being soon called, and this being a material point, and having received no satisfaction either from the Governor's answer on this head, nor yet from the proceedings and examinations the court made thereon, we par- ticularly laid it again before the Assembly, who thereupon resolved, That
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ORANGE COUNTY.
three shillings of the public tax was wrong, or no more to be collected, yet, notwithstanding, the sheriffs continued to demand it of us.
At the next Superior Court, which was on the 22d of March, 1769, we made some farther trials at the law, but met with less encouragement of obtaining redress in that way, than we had the court before.
We minuted down some of the trials, which was in substance as follows :-
On a trial, the King against E --- F-, for extortion in his having taken six shillings for registering a deed. He urged in his plea, that he was igno- rant of the law, in that he put another construction on the words, &c., and that he did apply to the County Court, and they adjudged there was two and eight pence for the deed, and two and eight pence for any other writing, and seven pence for the certificate, and seven pence more for recording the certifi- cate, in all, six shillings and six pence, but that he had generously quit the six pence.
Now, he had pleaded this like cause several times before, in one of which he had took nine shillings and two pence, pleading in that one case, there were two other pieces of writing.
Attorney-General, as he had done before, showed the other piece of writing, mentioned in the table of fees, to have no relation to deeds at all, but bills of sale or other papers that might happen to want to be recorded; and before, he had observed that there was no certainty in the matter at all if it was al- lowed to make another piece of writing out of the deed, for, with as good reason, it might be divided into two or ten pieces of writing.
When Attorney-General was going to reply to the plea of the Inferior Court's judgment, F -- g stopped him, saying, I give up that, and lay no stress at all on it.
Then , - - - rose up and gave a charge to the jury to this effect, That though his own judgment was one with Attorney-General, and the same he had given on the like occasion twice before, yet he would remind them of what C- F-g alleged in his own favor, and so recounted over how he had obtained the judgment of the said Inferior Court, who made the fees out thus : for recording a deed, two shillings and eight pence; for the other piece of writing, two shillings and eight pence ; and for recording the certificate, seven pence, which makes, says he, six shillings and one penny, so that in the way they constructed the words of the law, he took one penny less.
Here, Attorney-General says it comes to but five shillings and eleven pence that way; this putting him to a stand, F-g says, there was two other pieces of writing : ay, says - , there was two other pieces of writing, which, at two shillings and eight pence a piece, with the deed and certificate, comes to (here he figured a little) eight and seven pence, and so according to this way, Colonel F -- g took two shillings and seven pence less, &c.
I have mentioned this to show the difficulty and uncertainty of these methods, by which like method all'our officers. make out their extortionary bills, and scarce one of them can make out a bill twice the same way, or any two to make out a bill to come to the same sum. I have seen them pinched here many a time, and not only in this, but when they have had a bill in their hand, with the sum in lumps, they could not make it answer when they un- dertook to divide it into particulars; in which extremity, they generally tell me that it takes a good lawyer to make out a fee-bill, and that few men in the Province could do it but Major M-, and Mr. B-guin, and intimated it as vain and a crime for any common man to pretend to understand the fee-bill.
Bul they have been put to it what to answer me, when I reminded them, that the legislative body calculated it for, and supposed every man to under- stand it, and that it was a pity every officer could not carry Major M- or Mr. B-guin in their pockets.
However, to proceed to the minutes of trials, &c.
On a trial, the King against John Wood, &c :-
The King proved that Stephen Jones, having a writ served on John Erwin for a debt of six pounds, that on serving the writ, Jones and Erwin agreed;
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HISTORY OF NORTH CAROLINA.
but neither of them paying the cost, this sheriff, John Wood, served an exe- cution on Jones for the cost, and took thereupon, fifty shillings and eight pence, exclusive of thirty shillings which Jones paid a lawyer.
Attorney-General told the court and jury that he had examined the laws, and could make out no such fees.
The Judge ordered the defendant to make them out, whereupon the bill was handed up to the judge, and he separated the clerk's bill from the sheriff's, and ordered them to make out the sheriff's fees, he being only the defendant. The clerk's bill was twenty-six shillings and eight pence, and when the separate bill was handed up, the judge asked, what is this ten shil- lings and eight pence for? And when the defendant's attorney says, for so and so, &c., the judge said, that is already charged in the clerk's bill, and is part of the twenty-six shillings and eight pence which I have separated.
After some time, they handed it up again, but he returned it in the same manner, saying, some other part of the twenty-six shillings and eight pence was still charged over again.
The defendant's attornies, for he had two or three, took the law-book into the bar, and kept working at it so long as tired the judge so that he began to complain.
Then one of the attorneys began to read over the bill or say it over by head, thus ; " there is one shilling for a bail bond, and one shilling and four pence, for serving a declaration," and was going on, when Attorney-General says, "there was no bail taken, nor no declaration; the case was immediately agreed, &c."
After awhile, one of them again gets up and says ; "and please your honor, I have found a way to make it out ; there was two shillings and eight pence for commitment, and two shillings and eight pence for releasement. But Attorney-General says there was no commitment in the case, nor bail, I am sensible. Where bail is necessary, though a Sheriff don't take bail, yet, as he then stands culpable himself, he might with some reason charge for the bond ; but no bail was necessary in this case; the action was immediately agreed.".
The defendant's attorney replies, addressing himself to the court; " in the ordinary course of practice, bail is necessary. And, Mr. Attorney (looking at him), you allow all fees to be due which should or ought to have been done."
Attorney-General replies, " for my part, I tell you I have examined the law, and can make out no such fees. But let the jury take the law-book with them, and if they can make out such fees, it is nothing to me ; for my part I can't. The action was immediately agreed."
Upon this, the judge gave the jury their charge, and told them they had to consider how much terror sheriffs must be under from the late disturbances, &c. And that he had been informed that salaries were low ; so that they had this to consider, that whether, if the sheriffs are too much discouraged, it would not be hard to get any to officiate.
The jury found the defendant not guilty, and sealed up their verdict till court sat next morning. But we being alarmed at such proceedings, showed the aforesaid minutes to the jury, and also to Attorney-General ; with the fol- lowing supposition ; upon which the jury disagreed to their verdict, and the matter being debated over again, they found him guilty.
The supposition was thus, with a little amendment, viz. :-
Let us suppose this case had been between a farmer, plaintiff, and a black- smith, defendant. The farmer proves that he sent to the blacksmith for a colter ; that he got one which was not steeled, and that the smith dying im- mediately, his executors sent to the farmer and demanded and received thirty four shillings and sixpence, which he had paid; but now had sued them for wronging him.
The plaintiff's attorney informed the court that, by the smith's book, no such account was to be found. The judge then desired the defendant to make it out. He produced his account stated, thus :-
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ORANGE COUNTY.
To a new colter, weight ten pounds £0 15 0 To six sharps, . 030
To eight, do. ·
0 4 0
To laying the colter, · 050
To the forge for fifteen pounds iron, 07 6
£1 14 6
The judge soon separated the last seven shillings and six pence, being twice charged, it being included in the first fifteen shillings. So then the de- fendant's attorney, allowing the sharpings and layings for granted, had to make out that seven shillings and sixpence ; and they kept searching the book till the judge's patience was tired, and he complained. Then one be- gins to say over the account. There is a shilling for a key to every colter, and one shilling and sixpence for steel. But the plaintiff's attorney says, there was no key nor steel in the case. Then after some time, says one of them, and please your honor I have found a way to make it out ; here is five shillings for making a shear to the colter, and two shillings and sixpence for steel, which is charged in most people's accounts. But the plaintiff's attor- ney says, "we had no shear, no steel, nor key. The blacksmith died imme- diately before ever the colter was used, as has been proven. I am sensible that by a bad heat a blacksmith might put steel on a colter, which, possibly, might drop off before it came into the owner's hands, and it might possibly be charged ; but then the blacksmith stands liable to put it on, and make it good."
The defendant's attorney replies, "and please the court, in the ordinary course of practice there is always a shear to every colter, and they are gene- . rally steeled ; and, Mr. Attorney (looking at the plaintiff's attorney), you allow that steeling may be charged, though so badly put on as to come off; and with as good reason it may be charged, though not done at all ; because in the general course of practice it ought to have been done, &c. &c. &c."
A word to the wise is sufficient.
By the fee-bill, the whole cost of this suit came to but fourteen shillings and one penny, after reckoning up every service that possibly could have been done, viz .:-
To entering Jones and Irwin on Docket £0 0 7
Entering an attorney ; the law allows nothing, but, suppose 0 0 7
To a writ,
011
To serving the writ,
0 5 4
To calling the action in court, .
004
Sheriff returning it agreed; no allow- ance in law ; suppose 0 0 4
Entering the action agreed, 0 0 7
Calling it over agreed, . 0 0 4
092
Drawing bill of cost,
.
0
0 7
Issuing execution,
0
1 4.
Serving execution, one shilling in pound
0 0 6
Tax fee, if due,
0
2 6
£0 14 1
The Governor had dissolved our Assembly and granted us a new election, on the 10th of July, 1768; a little before which the Regulators wrote the fol- lowing address to the inhabitants in general.
To the Inhabitants of the Province of North Carolina.
DEAR BRETHREN :- Nothing is more common than for persons who look upon themselves to be injured than to resent and complain. These are sounded
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HISTORY OF NORTH CAROLINA.
aloud, and plain in proportion to the apprehension of it. Our fearfulness too, frequently augment our real as well as apparent dangers. Let us adjust our complaints or resentments to the reality as well as the nature of the injury received.
Excess in any matter breeds contempt; whereas strict propriety obtains the suffrage of every class. The oppression of inferior individuals must only demand tutelage of superiors ; and in civil matters our cries should reach the authorative ear, when the weight that crusheth descendeth from the higher powers. But when imposed by populace, to the populace our complaints must extend. When therefore the cry of any city, province, or nation is general, it must be generally directed to the source from whence the cry is caused.
The late commotions and crying dissatisfactions among the common people of this province, is not unknown or unfelt by any thinking person. No per- son among you could be at a loss to find out the true cause. I dare venture to assert you all advised to the application of the public money ; these you saw misapplied to the enriching of individuals, or at least embezzled in some way, without defraying the public expenses. Have not your purses been pil- laged by the exorbitant and unlawful fees taken by officers, clerks, &c. I need not mention the intolerable expensive method of recovery by law, occa- sioned by the narrow limits of the inferior court's jurisdiction. Have you not been grieved to find the powers of our county courts so curtailed, that scarce the shadow of power is left. This body, however respectable, is in- trusted with little more than might pertain to the jurisdiction of a single magistrate, or at least two or three justices of the peace in conjunction. In consequence of this, very small sums drags us to Superior Courts. These must be attended with all our evidences, although many at the distance of one hundred and fifty miles. Add to this a double fee to all officers; hence we are made feelingly sensible, that our necessary expenses, with the additional costs, are equal, if not surpass the original sum.
For what end was the jurisdiction of the courts reduced to such narrow limits ? Is it not to fill the superior houses with business? Why has the authority fallen upon this wonderful expedient? Is it not evident that this was calculated for the emolument of lawyers, clerks, &c. What other reason can be assigned for this amazing scheme ?- none brethren, none!
Has not the charges of Government been unnecessarily raised, to the great increase of the public tax ? Has not the public money been entrusted in the hands of insufficient persons, without sufficient securities, or due care taken in accounting for, and recovering the same? Has not this often reduced us to the disagreeable necessity of contributing or paying by tax the sum once raised-but through carelessness or neglect, or something worse, uselessly consumed ? To what does this tend? Is not the issue manifestly the im- poverishment of the country ?- fatal consequences.
The exorbitant, not to say unlawful fees, required and assumed by officers- the unnecessary, not to say destructive, abridgement of a court's jurisdiction -the enormous increase of the provincial tax unnecessarily; these are evils of which no person can be insensible, and which I doubt not has been lamented by each of you. It must have obliged you to examine from what quarter relief might be found against these sad calamities :- In vain will you search for a remedy until you find out the disease.
Many are accusing the legislative body as the source of all these woful calamities. These, it must be confessed, are the instrumental cause ; they can, yea do impose some of these heavy burdens. But whence received they this power? Is not their power delegated from the populace ? The original principal cause is our own blind stupid conduct.
If it be queried, how does our conduct contribute to this ? Answer presents itself-we have chosen persons to represent us to make laws, &c., whose former conduct and circumstance might have given us the highest reason to expect they would sacrifice the true interest of their country to avarice, or ambition, or both.
I need not inform you, that a majority of our Assembly is composed of law-
,
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ORANGE COUNTY.
yers, clerks, and others in connection with them, while by our own voice we have excluded the planter. Is it not evident their own private interest is de- signed in the whole train of our laws ? We have not the least reason to expect the good of the farmer, and consequently of the community, will be consulted by those who hang on favor, or depend on the intricacies of the laws. What can be expected from those who have ever discovered a want of good princi- ples, and whose highest study is the promotion of their wealth; and with whom the interest of the public, when it comes in competition with their pri- vate advantages, is suffered to sink ?- nothing less than the ruin of the public. Have we not hitherto, in a great degree, chosen such men as have been de- scribed ? Nay, have they not been such as are dependent in their fortunes, with great expectation from others, or enjoy places of benefit and trust in the government? Does not reason declare we might expect such cringing vassals would readily sacrifice the interest of the community to idol self ?- Are not such persons utterly disqualified for supporting our rights and properties ? Is it not high time to seek an antidote against such deadly poison before it utterly destroys us ?
.
But you will say : What is the remedy against this malignant disease ?
I will venture to describe a sovereign one if duly applied : that is, as you have now a fit opportunity, choose for your representatives or burgesses such men as have given you the strongest reason to believe they are truly honest- such as are disinterested, public-spirited, who will not allow their private advantage once to come in competition with the public good.
You grant the prescription is sovereign ; but how shall you obtain such ? I answer: Let your judgment be formed on their past conduct ; let them be such as have been unblamable in life, independent in their fortunes, without expectations from others ; let them be such as enjoy no places of benefit under the government ; such as do not depend upon favor for their living, nor do derive profit or advantage from the intricate perplexity of the law. In short, let them be men whose private interest neither doth nor can clash with the interest or special good of their country.
Are you not sensible, brethren, that we have too long groaned in secret under the weight of these crushing mischiefs ?, How long will ye in this servile manner subject yourselves to slavery ? Now show yourselves to be freemen, and for once assert your liberty and maintain your rights. This election let us exert ourselves, and show that we will not through fear, favor, or affection, bow and subject ourselves to those who, under the mask of friendship, have long drawn calamities upon us.
Should we now, through fear or favor, act as we have done, contrary to duty and interest, so far as we do this we contribute to all the mischief con- sequent upon it. Where, then, is that moving principle, self-preservation ? Will you, can you, voluntarily submit yourselves to ignominy and want ? These will aggrandize themselves and swim in opulence.
Have they not monopolized your properties, and what is wanting but time to draw from you the last farthing ? who that has the least spirit of a man could endure this ? who that has the least spark of love to his country or to himself would bear the delusion ?
In a special manner, then, let us at this election arouse all our powers to act like free public-spirited men, knowing that he that betrays the cause now betrays his country, and must sink in the general ruin.
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