Contemporary with the whig policy of aid to the railways and revision of the revenue were other movements of equally vital importance, — the establishment of a system of common schools, the foundation of asylums, and legal reform.
The educational movement began with the legislature of 1836, which added to the Literary Fund $500,000, to be invested in swamp lands and bank stock, and also the state stock in the Wilmington and Raleigh and all future railroad stocks held by the state. At the same session there was a demand for the immediate enactment of a school law, but the problem of framing an adequate measure was so great that the matter was referred to the trustees of the Literary Fund for a report at the next session. The result, after somewhat divergent bills had been introduced in both houses of the session of 1838, was a compromise measure, adopted January 7, 1839, by a non-partisan and almost unanimous vote. The law provided for an election in each county for the establishment of schools; in those counties in which the issue was carried the county courts were directed to appoint a board of county superintendents who should lay off school districts and appoint school commissioners for each district. It was also the duty of the court in each county voting for schools to levy a tax of $20 for each district, to be supplemented by an appropriation of $40 from the Literary Fund.
Now followed a state-wide campaign on the question of schools. The arguments advanced by the opposition well illustrated the contrast of the ideals of progress and reaction. The local tax was held to be a burden to the poor, unjust p243 to the childless, and also to those who educated their children at their own expense. The school law was also criticised as impractical in that the school districts would be too large, the salaries of the teachers too small, and the expected school term of three months too short. The case of the self-made, prosperous citizen was held up as an example of the uselessness of education. Illustrative was an incident in Rowan County. "There are some self-sufficient ones in this county," wrote the editor of the Carolina Watchman, "who say they never had any education and they have got on very well, and their children can do as they did. We were told a joke on one of these gentlemen which we think will answer as well as any argument we could advance. This natural genius had been holding forth at a gathering against the School Bill and holding up his own success as a proof that natral sense was better than edecation. In the midst of the harangue a neighbor took him out to pay him the balance on a note which he held. Neither creditor nor debtor understanding figures, they called to a schoolmaster in the crowd to come and calculate the interest for them. 'Let Mr. M. do it by his natral sense,' said he of the birchen sceptre; and the crowd shouted at the expense of the genius."1
However the cause of schools was supported by the more virile newspapers, many members of the legislature, and some of the county officials. As result, nearly all the counties voted to take advantage of the school law, the exceptions being Columbus, Edgecombe and Wayne in the east, and Davidson, Lincoln, Rowan and Yancey in the west. At the succeeding legislature the school law was amended by apportioning the Literary Fund among the counties according to federal population and authorizing, instead of requiring, the county courts to levy a local tax not greater than half the appropriation from the Fund.
The legislation providing for common schools indeed marks an epoch. For a decade, however, there was neither universal response to the opportunity offered nor any organization or administration resembling a modern school system. The p244 natural conservatism of the people, the lack of successful experience in public education in neighboring states, the apathy toward local taxation, and the old feeling that public aid smacked of charity, — all these provoked a sense of indifference. Establishing schools was left to the option of the counties, and not until 1846 did all respond to the opportunities of the law. As the county courts were authorized, not required, to levy the local tax, some of them levied a moderate tax, others a very small one, and some none at all. Hence "in all those counties dependent solely on the Literary Fund, the sum they received, when subdivided among a large number of districts is so small per each that many districts have no schools at all, and derive no benefit from this provision."2 Indeed in some counties all the income from the Fund was not spent on schools but found its way into the pocket of local officials; Governor Manly in 1850 estimated that certainly $90,000 and probably $180,000 had been so lost. There was practically no executive or administrative control, the trustees of the Literary Fund confining their activities mainly to financial matters, and few counties made reports to them on the condition of schools as required by law in 1846. Thus "diverse habits sprung up in different counties, and the best county system, made so by the exertions of discreet and zealous local friends, naturally felt least interest in state action and the system as a whole."3 The result was that in many sections school houses were deserted, the doors broken from their hinges, and the grass grew in the school yards.
There was also a dearth of capable teachers, and considerable opposition to the new type of institution was often manifested by the academies and the old field schools. Distribution of the proceeds of the Literary Fund according to federal rather than white population caused criticism in those counties which had few slaves. Yet the forces of progress were at work. The educational law was the most liberal and modern in the South at that time, for it made no distinction between the children of the pauper and those of the wealthy, p245 and by 1850 approximately 104,000 were enrolled in the common schools, which numbered 2,657, a record excelled in the South only by Tennessee. In 1851 definite action toward the better preparation of teachers was taken. Braxton Craven, principal of Union Institute, in Randolph County, presented in pamphlet form a plan for teacher training. By act of January 28, 1851, Union Institute was changed to Normal College and its graduates were authorized to teach in the common schools without re-examination by school authorities. In 1852 an amended charter provided a loan of $10,000 from the Literary Fund, made the Governor and the Superintendent of Common Schools respectively, ex officio president and secretary of the board of trustees, a relationship which the state maintained until 1859.
By far the greatest improvement in the nascent educational system came during the democratic regime, by the institution of the office of Superintendent of Common Schools in 1852. Its first incumbent was Calvin H. Wiley, of Guilford County, a young lawyer of prominence and author of two works of fiction, "Alamance" (1842) and "Roanoke" (1849), and editor, with W. D. Cooke, of The Southern Weekly Post (Raleigh), designed to cultivate among native North Carolinians a knowledge of the history and resources of the state and an improvement of literary taste. From his assumption of the state superintendency on January 1, 1853, to the close of the Civil War, the common schools are as much a part of Mr. Wiley's biography as a chapter in the state's history. His constant appeals to the public, his patience, self-denial, and sense of moral responsibility made him a veritable missionary. Indeed "he assumed his delicate trust on his knees, solemnly committing his way to God, and resolving ever to seek his guidance, and to act as before him."4 His first work was to arouse public opinion to the cause. For this purpose he visited all parts of the state by private conveyance. "Incessant efforts by pen and tongue were required to correct misconception, to make known the true spirit of the mission of the schools, to provoke system and p246 uniformity of effort, to overcome doubts and combat covert and open opposition, and create and foster a healthy public spirit on behalf of the system. Special pains were needed and taken to show academies, high schools and colleges their interest in the common school, to enlist sympathy and co-operation of ministers of the gospel of all denominations as a duty to humanity, and to make friends of the cause everywhere feel that it was one, and that the teacher and officer of the coast were joined to officer and teacher on the Smoky Mountains. At that day all these points, some of which now seem elementary, had to be fixed, and some of them after a hard struggle, and the whole system had to be purged of the fatal taint of charity once adhering to it and especially, p247 after protracted effort, lifted from the beneficence of a class, to that of a fundamental interest of all the state."5
Calvin H. Wiley
No less important was the necessity of supplying more and better equipped teachers. Those immediately available were mainly self-taught, individualistic and ignorant of the higher branches. "The teacher in most cases," said Dr. Wiley, "was a law to himself, knew little of the methods of his brothers at other places, and never regarded himself as an element of a general system, and his progress was in the mechanical art of writing, and from years of practice many became masters of penmanship and naturally looked with contempt on their brethren of the new generation whose qualifications were mental and who had not spent a life time in learning to make graceful curvatures and flourishes with the quill."6
Several methods were used to solve the problem of the teacher. One was to establish examining boards in each county and to require the teacher to secure from them certificates annually. Another was to get recruits from a class which had as a rule overlooked the teaching profession, ambitious young men and women who had to rely on their own efforts for a livelihood. An important result was to increase the number of women in the teaching force, yet in 1860 the number of men and women teachers licensed were respectively 1,849 and 315. The question of teacher training was met by county institutes rather than normal schools. Professional organization was perfected through the Educational Association of North Carolina, the direct outgrowth of a teachers' convention held in Goldsboro in May, 1856. In the same year appeared the first issue of the North Carolina School Journal; its publication, suspended after the first year, was resumed in 1858 under the new title, The North Carolina Journal of Education, Wiley being chief editor. The matter of textbooks also received attention. It was Wiley's hope to see founded a uniform series especially adapted to North Carolina conditions. To that end he planned a series of readers and other textbooks before his election to the superintendency; p248 but after entering on the duties of the office he sold all copyrights and plates to A. S. Barnes & Co., for cost. This disposed of his North Carolina Reader, published by Lippincott in 1851; later editions were published by Barnes and also two other North Carolina Readers, edited by Professor F. M. Hubbard, of the University.
Dr. Wiley's efforts on behalf of the common schools were successful. In 1860 the number of schools was 2,854, the number of teachers licensed 2,164, the average salary $26 per month, the enrollment 105,054 out of 200,855 of school age, and the average school term was 3⅔ months. The school expenditure was $255,641, of which approximately $100,000 was from local taxation, the remainder coming from the Literary Fund. Although the percentage of white adult illiterates had not been materially reduced from that of 1840, the idea of a common school had been well integrated in the life of the people, and Wiley, a whig, held office continuously under the democratic administration.
School administration was not the only educational problem. The management of the Literary Fund was equally as vital. In 1836 the Board of Trustees was reorganized, the governor remaining president and appointing the other members. Its principal duty was the oversight of the Fund's securities and the investment of that part of its income not appropriated to the schools. As public education was only one of the movements for social and economic improvement, there was a strong feeling that the Literary Fund should aid kindred causes. Thus by 1840 the trustees had invested $140,000 in state endorsed bonds of the Raleigh and Gaston Railroad and $85,000 in privately endorsed bonds of the Wilmington and Weldon, and in 1842 they also invested $1,800 in Wilmington and Weldon bonds and $22,764 in bonds of the Raleigh and Gaston. Where the trustees led, the legislature followed, that body in 1843 ordering the trustees to invest $50,000 in the maturing bonds of the Wilmington and Weldon endorsed by the state, which neither the road nor the treasurer could redeem. Another legislative policy was to meet deficits with the fund; by 1850 $122,150 had been so used and $40,380 of bonds and notes had also been transferred p249 to the general fund. No interest was paid on the money thus used until 1853, none on the bonds and notes transferred until 1857. Moreover the treasurer used the Literary Fund to meet temporary deficits, restoring the money when the tax returns came in.
Among other investments by the trustees were state bonds ($97,000), state endorsed bonds of the Fayetteville and Western Plank Road ($12,500), and bonds of the Cape Fear and Deep River Navigation Company ($93,000). Appropriations ordered by the legislature were made to turn-pikes in the mountainous section, amounting to $8,799. Bank stock was another favorite investment. In 1839 and 1840 $115,000 were invested in the Bank of the Cape Fear, and $2,700 in the Bank of the State in 1843. When the charter of the latter corporation expired in 1858, the fund invested in the stock was transferred to its successor, the Bank of North Carolina. The cause of private education was also aided by loans as follows: to Wake Forest College $10,000, to Normal (later Trinity College) $10,000, Greensboro Female College $7,000, Chowan Female Institute $3,000, Clinton Female Institute $3,000, Floral College $2,000, and Mt. Pleasant Academy $2,000. Education of the deaf, dumb and blind was also aided by an appropriation of $5,000 a year beginning in 1845, increased to $8,000 in 1852. Loans to individuals amounting to $282,677 were made in 1838 and by 1860 these loans had been reduced to $5,821.
The final investment by the trustees of the Literary Fund was in swamp lands. According to the act of 1836, $200,000 of the $500,000 of the surplus revenue apportioned to the Literary Fund was to be used in the improvement of the swamp lands. Such an undertaking had been suggested as early as 1819 by Archibald DeBow Murphey in his "Memoir on Internal Improvements," and in 1822 the Board of Internal Improvements ordered surveys of the lands in question, reports being made in 1823 and 1827. The Board suggested in the latter year and also in 1833 that Mattamuskeet Lake be selected for experimentation in drainage, but no action was taken. In the meantime the swamp lands were vested in the p250 Literary Fund in 1825, and the distribution of the surplus revenue in 1836 made possible drainage work.
Three distinct operations were begun. First was the drainage of Mattamuskeet Lake in Hyde County. By a special act $8,000 was appropriated to this enterprise, and •approximately 8,000 acres were reclaimed by 1842. The second and also the largest project of this kind was the drainage of Pungo and Alligator lakes by connecting them with Pungo River. By 1842 this work was completed at an expenditure of $175,553.34, and •approximately 60,000 acres had been reclaimed. The third area drained consisted of "open prairie" lands in County, on which $5,000 were expended. In addition to the expenditures for drainage were those for the construction of roads. These cost over $10,000. Other expenses brought the total expenditure for the swamp territory by 1860 to $200,608.48.
The returns on this large expenditure were meagre, amounting to $22,294.69. For this there were several reasons. One was that the drainage made was not extensive enough to be profitable; main ditches only were constructed and the purchaser of lands had to dig new trenches to connect with them. Also the nature of the lands in many places was not realized; thus in the Mattamuskeet region after drainage was effected only sand beaches were disclosed. To these causes must be added the matter of titles. In earlier days much of the swamp lands had been entered; although no settlements had been made, the state found that counter claims made impossible the sale of the lands.
From the management of the Literary Fund as outlined above certain conclusions are evident. First of these is that the trustees as well as the legislature believed that the principal and the unexpended balances should be used to support such enterprises of general economic and social interest as railways, roads, banks, swamp lands, drainage and private schools. Even the needs of the state treasury were temporarily supplied by the Fund. It is also evident that some of the investments were not successful, notably those in the swamp lands. The war opened before the plank roads, chartered in the 'fifties, whose endorsed bonds were held by the Fund, could p251 be completed, and no dividends were reported from the roads in the mountain section. However no great calamity overtook the Literary Fund, and no complaint was ever made that the cause of the common schools was actually retarded by the investments of the legislature and the trustees.
Contemporary with the agitation for common schools was the movement for the proper care of physical and mental defectives. Murphey, in his plan of a comprehensive school system submitted in 1817, had included an asylum for the deaf and dumb. Ten years later the North Carolina Institution for the Instruction of the Deaf and Dumb was chartered. Estimating that the number of deaf and dumb in the state was approximately 400, the incorporators in January, 1828, petitioned the Federal Government through Senator Nathaniel Macon and Congressman John H. Bryan for a donation of public lands as an endowment for "the accomplishment of the object in view." The petition was fruitless, and with it apparently ended the activity of the institution. A new and more successful agitation began in 1842. Governor Morehead in his first message to the legislature recommended the establishment of asylums for the deaf, dumb, and blind, and for the protection of unfortunate lunatics. The recommendation was fruitless. The following year William D. Cooke, principal of the Deaf and Dumb Institution at Staunton, Virginia, wrote Governor Morehead concerning the feasibility of founding a private school for the deaf and dumb in North Carolina. Many applicants for entrance to the Virginia asylum were turned away for lack of accommodations; these, with the 280 mutes reported to be in North Carolina by the census of 1840, would form a clientele for the proposed institution, which in turn might expand into a state institution. Governor Morehead, anxious for moral support of the cause, conveyed his correspondence with Cooke to Reverend James Phillips, presiding officer of the Presbyterian Synod of North Carolina, which convened at Raleigh in March, 1844. The Synod adopted resolutions commending Governor Morehead's interest in the deaf and dumb, approved the idea of an institution under the superintendency of Cooke, and requested members of the Synod to furnish the governor any facts that might be of service.
William D. Cooke
The following November Governor Morehead again recommended to the legislature that some provision be made by the state for the deaf and dumb, the blind, and the insane. In December two exhibitions by deaf, dumb, and blind students brought from Staunton, Virginia, were conducted by Mr. Cooke in the presence of the legislature. In the House of Commons Mr. Scales introduced a resolution that the Committee on Education and the Literary Fund be instructed to inquire into the expediency of applying a portion of the Literary Fund to the education of the deaf and dumb, and the blind. Governor Morehead in a special message of December 31, 1844, estimated the number of deaf and dumb in the state to be 283, the blind 223, and the insane 582, and suggested that $75,000 would cover the cost of buildings and equipment p253 and recommended that the state's share in the fourth installment of the federal surplus ($478,000) be applied to construction and endowment. The legislature, however, was more conservative than the governor. It passed over the insane, and appropriated $5,000 from the Literary Fund for the instruction of the deaf mutes and the blind, to be supplemented by local county taxes of $75 for each student. In pursuance of the law, the trustees of the Literary Fund contracted with Mr. Cooke for the instruction of the deaf and dumb at Raleigh, the work to begin in May, 1845. The age limits of students were fixed at eight and thirty years, and the rate for each student, including tuition, board, and clothing, was $150 per annum. Instruction of the blind was temporarily omitted on account of the lack of teachers and the few applicants. By 1846 the number of students was thirty-three and the curriculum included domestic and industrial arts. At first the institution was conducted in rented buildings. In 1847 an appropriation of $10,000 was made for permanent quarters, one-half of which came from the current income of the Literary Fund, the other from the unexpended balance of previous appropriations. Two buildings, one dormitory and administrative, the other a school, were erected on government property in Caswell Square at Raleigh. The cost, however, was $15,000, which was $5,000 more than the appropriation. This was also defrayed by using the unexpended annual appropriation.
At the opening of the seventh session in 1851 the instruction of the blind was provided for, and in 1852 the institution was incorporated as the North Carolina Institution for the Education of the Deaf, Dumb, and Blind. The annual appropriation was increased from $5,000 to $8,000, and to $10,000 in 1857. The institution also received a bequest of $6,000 in 1854 from the will of John Kelly.
Hardly was the institution for the deaf and dumb firmly established when scientific care for the insane was also provided. For this much credit is due to Miss Dorothea Dix, America's apostle of humanitarianism. After spending three months visiting North Carolina jails and poor houses, which afforded the only public care of the insane, she prepared a memorial to the legislature of 1848, convincing in argument p254 and deeply touching in its appeal to sympathy. "I come not to urge personal claims, nor to seek individual benefits," she wrote. "I appear as the advocate for those who cannot plead their own cause; I come as the friend of those who are deserted, oppressed, and desolate. In the Providence of God, I am the voice of the maniac whose piercing cries from the dreary dungeons of your jails penetrate not your halls of legislature. I am the hope of the poor crazed beings who pine in the cells, and stalls, and cages of your poorhouses. I am the revelation of hundreds of wailing, suffering creatures, hidden in your private dwellings, and in pens and cabins — shut out, cut off from all healing influences, from all mind-restoring cures."7
The unsanitary conditions, the depressing influences on the insane of association with criminals, and the total lack of medical attention, were pointed out, with many concrete illustrations. In contrast she emphasized the large percentage of recoveries together with the economy in those states that had established asylums, and pointed out that of the original thirteen states all except Delaware and North Carolina had established such institutions. Above all, moral duty to the demented was pressed home. "Talk not of expense — of the cost of supporting and ministering remedies for these afflicted ones. Who shall dare compute in dollars and cents the worth of one mind? Who will weigh gold against the priceless possession of a sound understanding? You turn not away from the beggar at your door, ready to perish. You open your hand, and he is warmed, fed, and clothed; will you refuse to the maniac the solace of a decent shelter, the protection of a fit asylum, the care that shall raise him from the condition of the brute, and the healing remedies that shall reillumine the temple of reason? Who amongst you is so strong that he may not become weak? Whose reason is so sound that madness may not overwhelm in an hour the noblest intellect?"
The outlook for a favorable action was not promising. The democrats, long out of power, had made great gains in the recent elections, securing a majority in the Commons, and the p255 party was hostile to increasing any public expenditures. Moreover, the question of a railroad for the western counties overshadowed all other issues. But the soul of the reformer was undaunted. "They say," she wrote, "nothing can be done here. I reply, 'I know no such word in the vocabulary I adopt.' It is declared that no word will be uttered in opposition to my claims, but that the democrats, having banded as a party to vote for nothing that involves expenses, will unite and silently vote down the bill. A motion was made to order the lighting of the lamps in the portico of the capitol, and voted down by the democrats. 'Ye have darkness because your deeds are evil,' said a whig in great ire: and a voice from the gallery responded piously, 'For ye are of your father, the devil.' "8
Her method of procedure was bold and direct. "This morning after breakfast several gentlemen called, all whigs, talked of the hospital, and said the most discouraging things possible. I sent for the leading democrats, went to my room and brought my memorial, written under the exhaustion of ten weeks most fatiguing journeys and labors. 'Gentlemen,' I said, 'here is a document I have prepared for your assembly. I desire you, sir, to present it,' handing it to a democrat popular with his party. 'And you, gentlemen,' I said, turning to the astonished delegation, 'you, I expect, will sustain the motion this gentleman will make to print the same.' "
The democrat to whom the memorial was handed was John W. Ellis of Rowan, the champion of the Charlotte and Danville Railroad bill. The document was duly presented in both houses and referred to a joint committee, which reported a bill appropriating $100,000 for a state hospital for the insane. Such a sum seemed indeed fabulous, when the annual revenue exclusive of the Literary Fund was less than $200,000. Consequently, the section of the bill making the appropriation was struck out on December 19. Two days later Mr. Rayner, a whig, offered an amendment to levy a special tax of 2½ cents on the $100 value of land and 7½ cents on the poll, which was also defeated after an earnest and eloquent appeal by its p256 author. Apparently the cause was lost, but on December 22 a new advocate appeared, James C. Dobbin, democrat, who had been defeated for the speakership by two votes. He introduced an amendment calling for a tax of 1¾ cents on the $100 value of land and 5¼ cents on the poll for four years, and made an even more impressive plea than Mr. Rayner. His interest in the bill was due largely to a personal appeal. His wife, afflicted with an incurable malady, was visited and cheered by Miss Dix. When she expressed to the philanthropist her desire to show her appreciation, Miss Dix replied, "You can do something; ask your husband to speak in favor of the hospital bill." Mrs. Dobbin made the request and soon afterward died. Four days after her death Mr. Dobbin introduced his amendment and made an eloquent address that brought tears to many and swept away all opposition. Thus was the foundation of the asylum assured. Miss Dix wrote:
"Rejoice, rejoice with me. Through toil, anxiety and tribulation my bill has passed. * * * I am not well, though perfectly happy. I leave North Carolina compensated a thousand-fold for all labors by this great success."
James C. Dobbin
In memory of her services, the site on which the institution p257 was located near Raleigh was named Dix Hill. Toward its support the legislature proved liberal. In 1852 the tax of 1848 was continued for three years. Direct appropriation begun in 1856 amounted to $20,000 per annum, and this was increased to $25,000 in 1858. These appropriations were supplemented by local county taxes for the care of the indigent insane. The first director of the institution, Dr. E. C. Fisher, was from Staunton, Virginia.
The spirit of reform was not confined to the foundation of a school system, internal improvements, and the care of the defective classes. It also pervaded the domain of law, both statutes and court decisions. Many rules of the English common law, inherited from colonial days, were modified or abolished, and new principles of justice were formulated. Illustrative was the matter of imprisonment for debt. According to the common law every debtor was subject to imprisonment at the will of the creditor until the debt was paid. However a colonial statute, whose principle was continued after statehood was attained, allowed the honest debtor without property to be released after twenty days imprisonment if he swore before court "that he hath not the worth of ten dollars in any worldly substance, either in debts owing to him, or otherwise howsoever, over and above his wearing apparel, one bed and its necessary furniture, one wheel and cards, also one loom, working tools and arms for muster, one bible and testament, one hymn book, and all necessary school books," and that he had not since imprisonment disposed of any of his estate. Moreover the honest debtor with property must follow a simple procedure of imprisonment before making a settlement with his creditors. After twenty days imprisonment he filed petition with the court, setting forth the cause of imprisonment and the amount of property held; then, after formal court proceedings, the prisoner was released, his property was sold under execution, and his body was relieved from liability to imprisonment for the debt so adjusted. Thus imprisonment was part of the legal procedure for settling debts whether the debtor was guilty of fraud or was simply insolvent. A notable instance of the operation of the law was the case of Archibald DeBow Murphey. Unable to meet his obligations he submitted p258 to the law, enduring imprisonment and settling with his creditors in formal court proceedings. A vivid account of his life in prison has been left by one who knew the facts.
I heard good old sheriff Doak say that no occurrence of his life, official or otherwise, was so painful to him as the execution of the causa upon the venerable judge, the meekness and dignity of whose bearing was so impressive, and his resignation to the inevitable so touching. When he was conducted to the prison and surveyed his surroundings, "in such cases made and provided by law" for the inexorable twenty days previous to the humiliating process of "swearing out," he remarked that the room was not, and he supposed, considering the purpose, could not be, sufficiently lighted and ventilated. He, therefore, requested the sheriff to leave the door open! And the sheriff went off and left the door open! There are few instances, I suppose, where men have been shut up in jail with an open door; but no suspicion entered the sheriff's head that any advantage would be taken of the fact in this case.
Within a day or two a visit was made by Judge Cameron to the prisoner in his new quarters — a visit of friendship and also on business connected with his case. Coming away from the interview he met the sheriff, and remarked that it had occurred to him that he, the sheriff, might be running a risk by leaving the jail door unlocked. "A risk!" exclaimed the officer; "I would risk life and sacred honor with Judge Murphey. You don't think he would go away?" "I do not mean that," replied Judge Cameron; "I mean that it might be considered in law an escape, and you might yourself become involved to your hurt. But," said he further, "Murphey knows the law; let us go back and consult him."
They went back to the jail and held a consultation, at the close of which Judge Murphey said, with a sad smile, "Mr. Sheriff, my friend, it will be safest for you to lock the door upon me."
The visitor and the sheriff retired; the key was turned in the door; and if there were two big tears seen to roll down the cheeks of the latter they did honor to the heart of old Jimmy Doak.
At the end of twenty days the prisoner took the oath that he was "not worth forty shillings in any earthly substance," and was turned loose upon a country to which he had rendered his best services, whose high places his occupancy had adorned, and whose interests were cherished as his own.9
Against the severity of the debtor law there was a well defined reaction. In 1820 imprisonment for debt was abolished but the statute was repealed the following year; then in 1823 it was enacted that imprisonment for debts contracted prior p259 to that date might be avoided until the meeting of court by the debtor giving bond for appearance, as a pledge to surrender his property or to make oath as to his insolvency. In 1844 further protection was given by prohibiting imprisonment except when the creditors made oath that the debtor had property which could not be reached by a facias faciendum. In 1848 debtors were still further protected by exempting from execution personal property to the value of fifty dollars.
The tendency to ameliorate the law was also reflected in the legislation regarding the position of woman. The right of the husband over the person of his wife to the extent of imprisonment or other correction was not restricted at the common law. Indeed the penalty of death at the stake for slaying her husband who was exercising his right of correction was imposed on a woman of Iredell County in 1787. Six years later, in 1793, the penalty was abolished by statute. In 1823 women were also exempted from imprisonment for debt and the Code Commission of 1855 relieved them from the penalty of branding or corporal punishment, substituting therefor imprisonment. Their property rights were also enlarged. In 1844 woman's right to act as executor without bond given by her husband was recognized, and in 1848 the husband was denied the right to dispose of the wife's real estate without her consent. The right of the divorced wife to property and money acquired after divorce was also granted in 1819 and women were likewise admitted to benefit of clergy until that custom was abolished by the Code Commission of 1855.
The spirit of humanity and reform also pervaded the decisions of the Supreme Court. Illustrative were the opinions concerning the negro written by Associate Justice Gaston. In the case of State vs. Will, decided in 1835, the right of the slave to resist inhumanity on the part of the master, his agent, or temporary owner was distinctly recognized.
In the absence then of all precedents directly in point, or strikingly analogous, the question recurs, if the passion of the slave be excited unto unlawful violence by the inhumanity of the master, or temporary owner, or one clothed with the master's authority, is it a conclusion of law that such passion must spring from diabolical malice? Unless I see my way clear as a sunbeam, I cannot believe that this is the law of a civilized people and of a Christian land, p260 * * * If the Legislature should ever prescribe such a law, a supposition which can scarcely be made without disrespect, it will be for those who then sit in judgment to administer it. But the appeal here is to the common law, which declares passion, not transcending all reasonable limits, to be district from malice. The prisoner is a human being, degraded indeed by slavery, but yet having "organs, dimensions, sense, affections, passions, like our own." * * * Express malice is not found by the jury. From the facts, I am satisfied as a man that in truth malice did not in fact exist, and I can see no law which compels me, as a judge, to infer malice contrary to the truth.
Thus a tenderness and a more humane attitude were introduced into the judicial decisions relating to the slave. A more liberal attitude was also manifested toward the free negro in the case of State vs. Manuel, the opinion, rendered in 1838, also being handed down by Gaston. The legislature of 1831 had declared that a free negro, convicted and fined, if he were unable to pay the fine, should be hired out to "any person who will pay the fine for his services for the shortest time possible." On the other hand the state constitution prohibited imprisonment of the debtor after ascertained insolvency and the legislature of 1836 allowed any person duly convicted and imprisoned for costs and fine to take advantage of the insolvent debtor law. In defense of the statute of 1831 the attorney general contended that free negroes were not citizens and therefore did not enjoy the guarantees of the constitution or the benefits of the remedial statute. Gaston's decision set aside this contention and allowed the free negro the benefit of the insolvent debtor law by showing that he was a citizen.
Upon the Revolution no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on a European King to a free and sovereign state. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the state, continued aliens. Slaves manumitted became freemen, and therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the state are born citizens of the state.
Undoubtedly it was in the domain of civil law that the North Carolina court achieved its greatest distinction. Preëminent were the decisions of Justice Ruffin, associate justice from 1829 to 1833, chief justice from the latter date to 1852, and again associate justice in 1858 and 1859. Three notable p261 departures from the English common law doctrine were made under his leadership. First, in the construction of the Statute of Frauds the court rejected the English doctrine of part performance and held that specific performance of an oral contract to convey land would not be decreed. The second departure was discarding the doctrine that a vendor who had was the repudiation of the English doctrine of a married woman's equitable right to settlement for maintenance before the husband invoked the power of the courts to reduce her estate to possession. Other decisions no less notable were in defense of the right of eminent domain, the denial of the right of the legislature to divest one of property, including even a p262 public office, that recovery for fraud extended to games of chance, and that corporate franchises cannot be sold under execution. By these and other decisions not only did the Supreme Court refine the law and make justice more equitable; it also won distinction and leadership in American jurisprudence.
Justice Thomas Ruffin
1 Coon, Documentary Hist. of Public Education in N. C. to 1840, II, p896.
2 Message of Governor Manly, 1850.
3 Wiley, Hist. of Common Schools of N. C. (N. C. Journal of Education, Sept. 15, 1881).
4 Ibid., July 15, 1882.
6 Ibid., March 15, 1882.
7 Memorial soliciting a state hospital for the insane.
8 Connor, James C. Dobbin (Biog. Hist. of N. C., Vol. VI).
9 Lyndon Swaim, quoted from Hoyt, Murphey Papers, II.431.
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