Politicizing the Courts and Undermining the Law: A Legal History of Colonial North Carolina, 1660-1775

BY William E. Nelson

This Article is the first monographic history of the legal output of colonial North Carolina courts. Based on an examination of voluminous manuscript court records, it concludes that a fragile legal system developed during the first half-century of the existence of an initially small colony on the banks of the Albemarle Sound. Just as that legal system was gaining solid footing in the late 1720’s however, it was destroyed when a sitting governor politicized it. The rule of law was slowly restored over the next quarter-century in the eastern portions of colonial North Carolina, and the legal system functioned effectively there during the last two decades before the American Revolution. But the vast geographic expanse of the colony, together with its ethnic and religious diversity, prevented the courts from governing western frontiers in depth. Instead, they confronted a series of riots in the 1760’s that culminated in open rebellion in the 1770’s. Although the then-governor successfully led an army against the rebels, that army could not sufficiently subdue them to enable the judges of the Supreme Court to meet regularly and govern the western regions. The article thereby shows that effective enforcement of law depends on more than brute force; it requires the consent and support of local communities.

DOWNLOAD PDF | 88 N.C. L. Rev. 2133 (2010)