Precedent Carolina

A quasi-legal view of history, with an occasional focus on the Carolinas

The Stamp Act Crisis in North Carolina and S.B. 2, “Magistrate Recusal for Civil Ceremonies”

[N.b. – This post contains links to many primary documents, so click away!]

In the news this week is N.C. Senate Bill 2 (2015), which provides for a right of magistrates and assistant & deputy registers of deeds to recuse themselves from performing same-sex marriages (or ostensibly, any marriage), or, in the case of assistant and deputy registers of deeds, issuing marriage licenses, due to “sincerely held religious beliefs”.  Most recently the bill has been vetoed by Governor McCrory, and there is likely more wrangling to come between the General Assembly, the Governor, and perhaps the Courts, if the veto is overridden.

Immediately, I thought of the biggest event in our State’s history that caused similarly-situated government officials to, for one reason or another, not perform their duties: the Stamp Act of 1765 (5 Geo. III, c.12).  Hopefully everyone remembers from high school that the Stamp Act sought to tax the American colonies in various ways related to paper goods and legal documents, in an effort to offset some of the Crown’s expenses during the treasury-draining Seven Years War (much of which had been spent defending the colonies from the French and various Native American allies).

What caused me to draw a connection between S.B. 2 and the Stamp Act response was this fundamental question: when confronted with a duty of one’s office that an official either does not want to perform, or is being forced by others not to perform, is it more desirable (from a law and order standpoint) that the official resign (as opponents to S.B. 2 would argue) or to protest/ignore the dictates of the law (as S.B. 2 would permit as a matter of law).    I of course recognize that the Stamp Act and same-sex marriage are apples and oranges, and that any comparison between the legislation or judicial decisions at issue would be useless.  A comparison of the Stamp Act reactions, however, would at least be interesting.  For reasons you’ll soon see, the response was mixed; matters are further complicated by the fact that, for the most part, officials with duties under the Stamp Act in North Carolina resigned and/or swore to ignore the Act under a degree of duress from protestors, a condition not (yet) seen in N.C. relating to same-sex marriage.

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North Carolina’s [Confederate] Supreme Court

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.

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Samuel Spencer (c. 1734 – 1794) Homesite and Cemetery

Traveling back from the beach this weekend, I forced my wife and dog to endure something I’ve wanted to do for a long time, which is to find, and then visit, the homesite and resting place for one of my favorite deceased North Carolinians, Judge Samuel Spencer. I’m going to post some seemingly inane photographs, because the site is harder to find than it should be, especially if you’re expecting it to just be off the highway.  If you ever find yourself driving westbound on I-74 outside of Lilesville, in Anson County, you may notice this sign:


I’ll explain more below.

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Scalia v. Breyer v. …William Wirt?

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.

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“Book Debt”, Early American Law, and Slavery

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.”

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