To Thomas McGwire Esqre His Majesty's Attorney General of
the Province of North Carolina.
Sir,
Having received overtures from certain of the Outlawed Insurgents to surrender themselves to Justice I recommend to your consideration the following questions on which you will be pleased to give me your opinion in writing.
1st. Whether upon their surrender the Outlawry may be perfected that I am informed is now incompleat so as to bring the Offenders under the Royal Pleasure.
I think it cannot, the proceedings against the Insurgents in New Bern district for felonies being invalid and though they might have been subject to the consequences of not surrendering within sixty days after proclamations issued; even where they were indicted for offences not capital for I think such a construction the 9th section of
the Riot Act warrants yet the proclamations not having issued as I ever understood agreeable to the directions of that Law I think their situation does not bring them within the perview of that clause if so they can be proceeded against only in those cases where they have been indicted for Trespasses and other misdemeanorous offences not of sufficient dignity to bring the Offenders under the Royal Pleasure.2d. Whether these Insurgents are subject to indictment and trial under the lately expired Riot Act of this Province of the year 1771, or otherwise for the subsequent and most capital crime of taking arms against his Majesty's Government of which I have recently discovered that no legal cognizance hath been taken heretofore believing the Outlawry consequential of that treason and the proceedings at Law compleat and final and that the Criminals were depending solely on his Majesty's Pleasure the general received opinion on which was formed my assurance that it was out of my power to grant the pardon to them that the late Assembly proposed to me.
I think the Insurgents may still be tried under the late Riot Act but if the Court should be of a different opinion they may be indicted for whatever offence their taking up arms amounts to but from an attentive review of the circumstances of their conduct upon that occasion I am afraid their offence would not amount to Treason at common Law or fall within the perview of the statute of constructive Treason passed in the 23rd of Edward 3rd (though that act should be admitted to be in force here and of which there is some doubt) in which case their crimes though heinous are yet independent of the Riot Act not capital.
3d Whether if liable to arraignment for such act of high Treason their criminality will appear with proper dignity before the Legislature until it be fully and judiciously established when in consequence of his Majesty's Royal commands it shall be offered to the consideration of the General Assembly at the next Session to pass an Act of Pardon and Oblivion with such exceptions as may be judged proper.
A Conviction would best ascertain the quality of their Offence and might be perhaps proper if it could be certainly obtained and of which there would be no doubt if I am right in my opinion that they may be still tried under the Riot Act though I think the General Assembly might pass a general act of Pardon and Oblivion
with such exceptions as may be judged proper without the previous ceremony of a Trial.Lastly. In what state will these Criminals be if any of them be excepted in the Act of Grace the proceedings at Law against them being incompleat and they consequently not depending on the Royal Pleasure, as his Majesty hath been informed and as hath been generally and erroneously believed.
Such Criminals as should be excepted in the Act of Grace in those instances where the proceedings at Law against them are invalid are I think in the same state as if there had been no prosecutions commenced but where they are incompleat only the Insurgents may be proceeded against or not as it hereafter should be thought necessary, in all other instances they are liable to be indicted and tried for such offences as their conduct in the Eye of the Law amounts to.
August 29th 1772.