LEGAL LEGACY OF THE LOWER CAPE FEAR AND THE DEVELOPMENT OF THE NORTH CAROLINA COURTS FROM THE REVOLUTIONARY PERIOD A revision of articles by this author first appearing as Wilmington’s Legal Legacy and Legal Legacy of the Lower Cape Fear Distributed to The New Hanover County Bar Association between 2002 and the present time. By John W. Smith Superior Court Judge Wilmington, N.C. Excerpt: Samuel Ashe And the Birth of a Free State First State Senator, First Speaker, First Superior Court Judge After Independence, Governor John W. Smith is a graduate of Davidson College and Wake Forest Law School. He was elected as a District Court Judge for the Fifth Judicial District in 1988, and served as Chief District Judge from 1996 through 2001. In 2005, he was appointed as a Special Superior Court Judge. He and his wife Harriet lived in Wilmington, N.C., until 2008, when he was appointed Director of the North Carolina Administrative Office of the Courts by Chief Justice Sarah Parker. Since his retirement in 2015, he has served as an Emergency Superior Court Judge. They now make their home in Raleigh. Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 1 Preface to Legal History of the Lower Cape Fear: a revision of articles titled “Wilmington’s Legal Legacy” first appearing in the New Hanover County Bar Association newsletter, BarBriefs. This series of articles was inspired by two events. The first was when the new courtrooms were about to be dedicated and Superior Court Judge Ernest Fullwood asked if we had a list of judges who had served the district. He had a plan to hang portraits of as many judges as could be identified. When I checked, there was no list. Not only was there no list, but a list could be developed only with great effort. And the list, as I began to assemble it, contained names totally unfamiliar to everybody in the court system. The second event occurred when a newly arrived attorney, who had taught legal history in a northern law school and whose wife was herself a historian, asked if I could recommend a book which gave the legal history of this area. While I knew of several great histories of our area, including the ones by Lawrence Lee, Alan D. Watson, and others, none of them really addressed the history of our courts, the judges who presided over them, or the development of our local legal institutions through the centuries. From these two events emerged a driving curiosity, and the more I looked, the more I became convinced that these were stories that needed to be collected and told. One fascinating personality led to the next. One history-making event interlocked with another. And so the process held me like a prisoner until the next captive who had been forgotten by time could be liberated. I am not a historian, nor do I pretend to that credentialed office occupied by academics I greatly respect and on whom I have relied. Nor am I a genealogist, although my family arrived and settled during the Scots migrations at the earliest time before the Revolution. But I have become an amateur on this subject in the best sense of the word. A love of the law, a love of the courts, and a love for the people on whose shoulders we stand all feed a desire that those who are curious might know the stories and have available the sources to follow them. This desire has driven this endeavor. And because it is the effort of the amateur, I am certain that those who have earned the right to be called historians are likely to find errors. I have used (some would say over-used) footnotes and references to make the information transparent as to the sources and to show how local events often blend with regional or national events. Because I have worked alone, and each of these articles build on to the next, and each taught me something new, there will be an unevenness to them when they are rearranged in chronological order, as I have done. For example, a footnote in the article on Daniel Russell, one of the first in the series, became an article in itself when I got to the article on his contemporary George Rountree, one of the last. While I chose each succeeding subject depending on what I learned from the previous articles, placing them in the proper order achieves the purpose I intended: to provide a comprehendible legal history of the Lower Cape Fear. And as I worked, it became apparent that these stories preserve more than a local history. Because of the ancient origins and position of Wilmington and New Hanover County, this history is both reflective of and influential in a larger context. As counties were borne from New Hanover, as new counties to the west were named for our local judges, as our local judges presided across the state and became state and national public figures, the events recorded in these accounts reverberate and often become a part of state and national events. Space constraints in the original articles compelled relegation to footnotes tidbits of this type which could better have been incorporated into the text had there been space available to develop them more thoroughly. These threads which are often mentioned, deserve more attention than the scope of this endeavor permitted. I want to thank my wife Harriet who, as an English Major from Wake Forest, suffered hours-on- end of proof reading; and sympathize with her despair over what must have been my frustrating insistence Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 2 on questions of “style” and inconsistent shorthand referencing. Any polish deserves her credit, and any blemish is stubbornly my own. I also want to thank Beverly Tetterton, Joe Shepard, and Eli Naher for their assistance. The North Carolina Room in the public library and the Latimer House archives are gems in the crown of Wilmington. Mining them with their help has, I hope, produced a work worthy of the title I have given it. I also need to thank the board of directors of the Bar Association for encouraging this project; and John Burns, the editor of BarBriefs who extended his deadlines and found space to present them. As the current president of the New Hanover County Bar Association, an organization which has roots back to pre-revolutionary war days, I recognize the importance of accurately preserving this research for those who are caught by a curiosity to know from whence we came. As any amateur must, I relish the advice of those more knowledgeable about any facts. Corrections, whether minor or major, are always appreciated. I hope that in the future if anyone asks the simple question of who are the judges who have served this district, that this may be a source for the answer. And as the lives of these who temporarily occupied the stage are read together, the fascinating story of how we came to be who we are as a society begins to shine through. While the picture which emerges is not always as pretty as we would like, it shows the struggle by which we arrived. And in the lessons of this history, may we avoid repeating that which we regret and aspire to that which we admire. But more than that, may we know from whence we came. It is with humility and a sense of having tackled a task greater than that for which I have time or talents that I give this research as a gift to the New Hanover County Bar Association, the people of the Lower Cape Fear, and my home state of North Carolina. John W. Smith District Court Judge Wilmington, December, 2004 Legal Legacy of the Lower Cape Fear, © John W. Smith 2005; Revised with corrections through 2/13/2006. Page 3 Legal Legacy of the Lower Cape Fear by John W. Smith Listing of Articles in the order in which they were originally published in the New Hanover County Bar Association newsletter, BarBriefs (Years given are dates of service as Superior Court Judge. Dates in brackets are dates of publication for original article.): I. 2002, Mar. Daniel Lindsay Russell: 1868-1874 [3/2002] Enigma Extraordinaire 2002, Oct. Special Edition: [10/2002] Dedication of the W. Allen Cobb Judicial Building, October, 2002 II. 2003, Apr. The Wilmington Law School [4/2003] III. 2003, Jun. Walter Parker Stacy: 1915-1920 [6/2003] Lawyer, Judge, and Chief Justice IV. 2003, Sep. New Hanover Superior Court Judges 1868-1913 [9/2003] Almand Alexander McKoy, Edward T. Boykin, Oliver H. Allen (Special Judges: Oliver Pendleton Meares, Egbert Kedar Bryan) V. 2003, Nov. Chief Justice Charles Berry: 1759-1765 [11/2003] A Tragedy in Colonial Wilmington: Death and Revolution VI. 2004, Mar. Samuel Ashe and the Birth of a Free State: 1777-1795 [3/2004] First State Senator, First Speaker, First Superior Court Judge After Independence, Governor VII. 2004, May Joshua Grainger Wright: 1808-1811 [5/2004] VIII. 2004, Sep. George Rountree: 1913-1916 [9/2004] IX. 2004, Nov.. The Moore Family: Part 1 Maurice Moore [11/04] X. 2005, Jan. The Moore Family: Part 2 Alfred Moore [1/05] XI 2005, Apr James Hasell and the Propagation of the Gospel [4/05] XII 2005, Sep. John Jay Burney [9/05] XIV 2006, Jan. Eleazer Allen of Lilliput [1/06] XV 2006, Oct.