It’s fairly well-known that lawyers rely on precedent found in case law to formulate arguments in court, assess the merits of cases, and to guide their advice to clients on a variety of legal questions. There’s a big divide, though, in terms of the usefulness of precedent. Cases from a higher court (e.g., the North Carolina Court of Appeals, if you’re arguing before an N.C. Superior Court) within the same state are clearly strong precedent, and generally set forth rules that all lower courts are bound to follow (or risk a swift reversal on appeal). Cases from courts in other states or countries, however, are generally only considered “persuasive” precedent, and even then, only if they describe a similar situation or the exact same legal rule as the one being discussed or applied in the case at bar. As I’ve explored earlier in this blog, cases from England and the pre-Revolution colonial courts were often considered strongly persuasive, based on their status as sources of original precedent.
So, what about cases from North Carolina while it was a member of the Confederate States? Are those cases somehow applicable to today’s rendering of the law? It would seem so. While I haven’t ever personally seen a North Carolina case circa 1861-1865 applied in a brief (though I’m sure they have been), the opinions of CSA-era cases from the North Carolina Supreme Court are readily available on your friendly neighborhood legal research service or in a dusty case reporter at your local law library. I’ll explore this a little below.
The Supreme Court issued its opinion today in National Labor Relations Board v. Noel Canning, a case primarily centered on (a) when recess appointments can be made by the President, and (b) whether or not the vacancy needed to occur before or after Senate went into recess. Just as a refresher, Article II, Section 2 of the Constitution says that “the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” So, in an opinion of the sort that causes non-lawyers to hate lawyers, Justice Breyer discusses the meaning of the words “the” and “during”…over the course of 41 pages.
The good news though, is that this opinion cites a great deal of historical research. In reading the opinion, I don’t think I’ve seen this much evidence of pure history footwork since Boumediene v. Bush (2006) or District of Columbia v. Heller (2008). Somewhere, some history Ph.D.’s have earned their keep for the past few years by pawing through the nation’s archives for this case.
In doing some research today on actions on account, I managed to run across a fairly musty case, Mitchell v. Clarke, 3 N.C. 13, 1 Martin 25 (Superior Court, 1791). I figured it might be interesting to explore the case a little further, give it some context, and see where this goes; I present the text below, with my discussion after the jump:
“Motion by Iredell for plaintiff to prove work and labor done, not by the plaintiff himself, but by negroes which he employed: and goods &c. sold and delivered for the use of the defendant, by sundry persons and paid for by the plaintiff, under the book debt act.
Objected by Mr. Attorney General Moore, that this is neither within the spirit nor letter of the act, because the work was not done by the plaintiff himself, &c.
But, on a long time taken up in discussing the subject, the court overruled the objection, and admitted the plaintiff to swear.”