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Colonial and State Records of North Carolina
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Minutes of the North Carolina Governor's Council
North Carolina. Council
May 01, 1731 - May 22, 1731
Volume 03, Pages 221-250


North Carolina—ss.

At a Council held at the Council Chamber in Edenton the first day of May Anno Dom 1731

Present
His Excellency George Burrington Esqr Govr &c
The Honble William Smith Esqr Member of his Majesties Council
The Honble Edmond Porter Esqr Member of his Majesties Council
The Honble Nathaniel Rice Esqr Member of his Majesties Council
The Honble John Bapt Ashe Esqr Member of his Majesties Council
The Honble Robert Halton Esqr Member of his Majesties Council
The Honble Cornl Harnett Esqr Member of his Majesties Council

William Little Esqr Late recr General appeared and produced his accompts to the 29 of September 1729 & and prayed time for the Exhibiting his accounts from that time till his Excellency arrival it being objected that the accots ought to have Extended no further than the 29th July 1729 when the King purchased of the Lords and thereon it being debated if the rents that year should be allowed & and accounted

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for by the said reciever General The matter was put to a vote and passed in the affirmative being the opinion of the Govr and Council that the Rents accrewing that year should be allowed an accounted for by the said Recr Genl and his accompts stand accordingly to the 29th of September 1729 And thereupon William Smith Robert Halton and John Bapt Ashe were appointed a Committee to Examine the sd accompts

By order
ROBERT FORSTER D Secty


North Carolina—ss.

At a Council held at the Council Chamber in Edenton the 4th day of May Anno Dom 1731

Present
His Excellency George Burrington Esqr Govr &c
The Honble William Smith Esqr Member of his Majesties Council
The Honble Edmond Porter Esqr Member of his Majesties Council
The Honble Nathaniel Rice Esqr Member of his Majesties Council
The Honble John Bapt Ashe Esqr Member of his Majesties Council
The Honble Robert Halton Esqr Member of his Majesties Council
The Honble Cornl Harnett Esqr Member of his Majesties Council

Sir Richard Everard Bart late Govr of this Province appeared again at this Board & Prayed to have forthwith Depositions taken for the support of his Complaints against John Lovick Esqr Late Secretary which was granted and accordingly Capt William Downing being first called appeared and disposed as followeth Vizt

The Deposition of Capt William Downing being first sworn on the Holly Evangelist Saith that he had seen a blank patent at Mr Cullen Pollock without any Number of Acres incerted and a receipt on the back of the pattent for the purchase money without mention of the sum which reciept was signed by Mr Little or Lovick & has heard of several blank pattents in the hands of people but does not know in whose possession they were or who told him of it the same being a General report

Sworn to ye 4th May 1731
W DOWNING

The Deposition of Mr Richard Russell being first sworn on the Holly Evangelist saith that some time agoe Mr John Galland Brother in Law to Mr Lovick Brought a blank Pattent down to Core sound (as he remembers) without mention of number of acres inserted and a reciept inserted on the back of said Pattent signed by Mr Lovick and the Deponant not approving to have ye sd Pattent filled up but at ye Secretarys office he sent ye same up to ye said office & had the patent perfected

And further this Deponant saith not

RICHARD RUSSELL
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Doctor George Allynn sworn on ye Holly Evangelist saith that a Messenger Came from Coll: William Read ye 12th of December 1728 who informed him that the said Read was Dangerously ill in so much that his life was dispaired of and that he had been two dayes in coming to him and that he the Deponant sat off from Edenton the 13th of the same month to visitt the said Read and arrived at the said Reeds Plantation the same night when Mrs Reed (wife of the said Colonel Reed) told this Deponant that her husband Dyed the day before he arrived & was put in the Ground & she the said Mrs Reed and one Banks then present further told this Deponant that the said Dec̄ed was taken Speeckles and continued so till he dyed

And further this Deponent saith not

Sworn to May the 4th 1731
GEORGE ALLYNN

The Deposition of Colonel Thomas Swann being first sworn on the Holly Evangelist saith that to ye best of his knowledge Col William Reed one of the members of the late Council dyed in the night between the Eleventh and Twelfth of December 1728, as he was Informed.

And further this Deponent saith not

Sworn May the 6th 1731
THOMAS SWANN
By order
ROBERT FORSTER D. Secty


North Carolina—ss.

At a Council held at the Council Chamber in Edenton the 8th Day of May Anno Dom 1731

Present
His Excellency Geo Burrington Esqr Govr &c
Ye honble William Smith Esqr Member of his Majesties Council.
Ye honble Edward Porter Esqr Member of his Majesties Council.
Ye honble Nathaniel Rice Esqr Member of his Majesties Council.
Ye honble John Bapt Ashe Esqr Member of his Majesties Council.
Ye honble Corns Harnett Esqr Member of his Majesties Council.
Ye honble Robert Halton Esqr Member of his Majesties Council.

Ordered that a Commission of the Peace Issue directed to Henry Guston James Millekin William Kinchen William Latimer George Winn Arthur Williams John Holbrook John Speir Phillip Walston Needham Bryant Doctor John Bryan John Soan John Dew John Harrord Johnn John Edward of Roanoke & John Hardy Gent Constituting and appointing them Justice of the peace for ye precinct of Bertie

By order
ROBERT FORSTER D Secty

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North Carolina—ss.

At a Council held at the Council Chamber in Edenton the 12th day of May Anno Domini 1731

Present
His Excellency Geo Burrington Esqr Govr &c
the Honble William Smith Esqr Member of his Majesties Council
the Honble Edmond Porter Esqr Member of his Majesties Council
the Honble Robert Halton Esqr Member of his Majesties Council
the Honble John Bapt Ashe Esqr Member of his Majesties Council
the Honble Cons Harnett Esqr Member of his Majesties Council

To his Excellency George Burrington Esqr Capt General Governor Comander in Chief & Admiral of ye said Province

The Complaint of William Little in behalf of himself and other Executors of Colonel Harvey and for divers other persons Late sufferers of the Court of Admiralty here

Your Excellency having been pleased in Council to signify and instruction from his Majesty to have the complaint of any person injured here lately by the oppression of those in the Aministration of Justice the said Complaints beg Leave to lay before you the proceedings of Edmond Porter Esqr Judge of the admiralty and others under him who refusing and disregarding Prohibitions the usual remedy in such cases hath divested the Subjects of the Benifit of the common Law which is Every Englishmans birth right & an Incroachment on the rights & Libertys of the subject in subversion of Justice and in Violation of ye Laws of the Realm for barely suggesting of which some have been others severely and censured in a very high manner contrary to the Equitable proceedings of all Courts of Justice where every man without fear dread ought to have free Liberty to make his Defence the sd Judge pretending such prohibitions to have been a Contempt to his court as hath been pleased to stile it not Considering the necessity there was for some stop to have been put to such violent & Illegall proceedings & indeed as it hath been ruled at Law prohibitions are not discretionary or ad Libitum but ex Merito Justina and the denying them is said to be denying the benefitt of the Common Law Every Englishmans birth right & the reason is Manifestly Given in the books where its said

If there be but probable cause it must be granted ex Debite Justica for if granted where it ought Not the other party Remedy by consultation but if denyed whereto be granted the party is without remedy And the Statutes of Richd the Second and other doth most fully restrain the Admiralti from Intermedling with any thing Done or Riseing within the bodies Counties by Land or water Indeed Disputes have arisen on the Construction of those Statutes and the Extent of the admiralty Jurisdiction

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but your Compts concieve when the Late proceedings & Decrees of this Court are fully represented they will appear without ye Least colour of excuse and they bare re of them they think without any reflection made will sufficiently the oppressions & Grievous injuries people have sustained thereby A plain narrative of which they now Humbly begg Leave to offer

1 The first case in that Court after Judge Porters arrival was Trotter V Northy for 1516 bill money not of the Value of three shillings sterling & was for a Tavern Score at an ordinary in Edenton and tho a prohibition was obtained thereon it was not regarded by the sd Judge who proceeded to decree the Debt and costs and taxed the costs to about Twelve pounds or upward & the poor man was put into Gaol upon it in Execution while a small Vessell he was Master of lay Exposed all the while the voyage and Business hindred and Chiefly by means of this and the next suit the said Northy suffered so much that at last he broake and went of Laving a poor family in a very helpless condition

2 The next suit was Allyn v Northy Layd for Damages aledged in the Libil it self to be an agreement at York river in Verginia & so infra corpus comilatus and the Deft too tendered his oath which if admitted must have discharged him but all did not avail he was Condemned & Exorbitant fees Taxed on him and he was Committed to Close prison in Execution tho there was a prohibition granted

3 Another affair in the said Court was concerning a Ship from Guina cast away at Curratuck belonging to some Merchants in Bristol the Master was Drowned but some of the men saved & Goods & effects to a very great Value which were seized and Confiscated by the said Judge & officers Except a small matter allowed one or two of the sailors was kept by the said Judge and his officers and tho the act of Parliament requires in such cases that the Collectors take care of such Wrecked Goods which no way belong to the Admiralty Judge yet the Collector was not permitted to Intermedle therewith

4 Another case was between Sir Richard Everard And Christopher Gale Esqr the Chief Justice who indeed by the priviledge of his ought to have been exempt from said Court the suit was for money lent at Land as the very Libell aledged only was said to be borrowed to Pay a passage from New Yorke which was all that had any Colour of Marine Neature in it a prohibition was thereon obtained but disregarded & decree past for the Debt and Excesive costs taxed thereon and notwithstanding an appeal made yet Execution was granted and your Complts further alledge that the said Christor Gale which Chief Justice notwithstanding the

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privolidge of his office was by an admiralty Warrant from said Porter made a prisoner and held in Custody in a most Violent and Illegal manner

5 Another case in that court was Brought By a poor mariner belonging to a Vessell cast away that sued for his wages but the Master being advise that the wages were due there being effects saved & that the master was cognizable in Admiarlty Comply'd with matter but the sailor first went to the Register to know the Charges who told him it was matter these having no court held on it upon which was Compromised & the Sailor discharged the Master and told the Register to dismiss the suit but afterwards Judge Porter refused to permitt it to be so dismissed Saying his Court should not be made a of and held his court notwithstanding & Condemned ye for not prosecuting his suit in excessive fees & charges & the the sailor being poor and unable to pay it to save himself from being thrown into Goal thereon was forced to sell himself into servitude to discharge the matter

6 Another affair in Admiralty was at Port Beaufort where the proceeding were so Violent and Arbitratory that it hath been so deservedly Exclaimed against in other countrys three Vessells and their Cargoes were seized & prosecuted tho not the Fraud or Coulor of it appeared the Matter was there was Some Dispute between two persons about the Naval office the old Officer refuseing on some pretention to deliver up the office till further orders from the Governour Still Continued to act and the new Officer Claimed it the Masters who as it appeared too were Ignorant of the matter on their Arrival Entered with the old officer who still continued acting in the office upon a consultation with the then Governour Sir Richard Everard & Judge Porter the said Vessells and Cargoes were seized and Libelled on the statute 15th Charles IId that forfeits Vessells and Cargoes if the master does not Enter a Report or Manifest of his Cargoe with the Naval Officer on Tryall notwithstanding all the disadwenture the master were under the proceeding appeared so Barefaced & not the Least colour of Fraud in them that the Judge acquited the Vessells that were seized which if the act was broak ought to have been Condemned & an Injuries was done to the King in acquitting them. & if the act was not broake there was no offence Committed and the Libell should have been dismissed & the parties acquitted from any costs but the masters were Condemned in the most excessive costs and Charges amounting to several hundred pounds to satisfye which their cargoes nay their sail and rigging were siezed & exposed to sale which wholey disposed their Voyages and utterly ruined some of them

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to the exceeding great discouragement of Trade & Great Complaints was made thereof from the owners of New England to the Government here and the matter in the General Assembly was voted a great Geivance & remonstrated In an adress to the Governour as such for some redress but thro the Indolence or favour of Sir Richard Everard then Govr the matter was husht and no remedy cou'd ever be obtained

7. Another affair in Admiralty was at Bath Town on as frivilous pretence on West for Entering as was pretended with the wrong officer on which the man was condemned and thrown in Goal & obliged to pay seventy pounds to be released & coming to Edenton thereon for redress was unfortunately drowned.

8. Another Case before the Judge was between Cook and Phelpson on agreement at Core sound to pilot a Shallop to an Inlett some little distance in the same precinct and the vessell was Lost (tho no fault appeared in the Dept nether) and on suggesting that the contract made at Land a prohibition was granted but disregard and the Defendant condemned in Damages & Great cost Committed to Goal in Execution

9 Another affair in said Court was concering a Boat belonging to James Trotter of Edenton the Judge under some slight pretence that she belongd to the Bristol man cast away mentioned in the third Article fore-going tho in truth it was not so) ordered his Marshall to seize her which he did & sold her without any contestatian of Title permitted to the said Trotter tho Claim was made by him who wholey Lost the vessel thereby

10 The next case before the said Judge was the Famous case against Judge Harvey Execrs who was formerly Judge of the Court of Admiralty here It would be too tedious to repeat ye whole proceeding here which were carryed on in unparelled manner there was three distinct suits made of it for what Reason is very obvious when it is considered what ye fees amounted to in every case according to the method in that Court used tho it is plain no new suit at all ought to have been Instituted therein if there had been occasion for any Inquiry in affair The matter was the collector at Bath some years ago had seized some goods of one Capt Phippen for wch he coud prod no Cocketts (tho the collector as was then offered to be made appear told the master he would pass the matter by for a peice of Calico) a suite was brought for the affair before Judge Harvey & on hearing the master alledged some accident and prayed time to produce some fresh certificates whereupon the Judge ordered the goods to be appraised and delivered the owner on his Giving security in a limited time to return cocketts on Deposit the money to be forfeited in case of failure of the Goods appraised at Fifty pounds which was Called stirling and the money was allowed

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by the Judge to be deposited at 50 per cent in Bills agreeable to ye Laws of the Country as in all Bills Bonds &c Sterling were to be paid & the master finding it would be a great Charge to send for fresh Cirtificates or thro neglect failed in the time Limitted to produce them and the money deposited was according to the decree of the court forfeited & Distributed as the Law Directs so the matter rested for some years till stirred by Judge Porter who writt to Mr Ottvall to forward the matter which at first was pretended to be only concerning the Informers part there being some private dispute about it between the colector and the attorney that prosecuted it who by agreement with the collector was made Informer and prosecutor in the original suite by the thing grew upon hand till at length three found suites were made of it against the Executors of Judge Harvey dec̄ed & against William Little Agent therein pretending Judge Harvey had done amiss in suffering the money to be paid at 50 per cent & that the said agent had done amiss in recieving and paying it so tho by order of the court & tho it was subjected that if Judge Harvey had carryed in his Decree any person Grieved might have appealed & that Judge Porter the present Judge was not supreme Judge to reverse the Decrees of the former Judge much Less could he subject his Estate to Damages about it Especially since it was appearent Judge Harvey recieved nothing of it nor any gainer by but on acted Judicially therein and the affair properly cognizable before him and in behalf of said Little it was objected that he rec̄ed and payed by order of court and cou'd be Lyable for no more that he rec̄ed and it was farther objected too that regularly no new seuts should have been brought upon it only the former parties cited in an examination & Enquiry duly made if the former decree had been done and Executed if not then to have complyd with and so was Judge Porter from home on his of the affair Directed to have proceeded upon it but notwithstanding all this Judge Porter proceeded upon several Extraordinary decrees to condemn Judge Harvey Estate in Damages and costs amounting to several hundred pounds to make good out of his Estate what Judge Porter was pleased to Imagine Judge Harvey ought to have decreed and the said Little was condemned great sums to make good what Judge Porter was pleased to Imagine sd Little ought to have rec̄ed tho he both rec'd & pd according to Judge Harveys order whose estate too at the same time is Condemned for making the order so & tho nothing is Plainer than that the said Little could be accountable for no more than he recieved by the courts order that appointed him Agent therein

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From these decrees an appeal was made to his Majestys Councill & Security offered but it was denyed by the sd Judge tho in such cases appeal from the plantations can to his Majesty because they are not cognizable before ye Judge of the high court of admiralty in England Seizure & forfeitures on the acts of Trade being Tryable at Common Law only & are there brought in the Exchequer but in the plantations by a special act of parliament are made Triable in the courts of Admiralty in the plantations but that give the court of Admiralty in England no jurisdiction of it & Therefore it is that all appeals in such cases from the courts of admiralty in the plantations are to the King in Councill also and on suggesting all these Extrajudicial proceedings prohibition was obtained but wholey disregarded & Execution made out against the said Littles Estate, & his Estate seized thereon which was afterwards Replureict & on Tryal at Common Law discharged) the Execution in Admiralty after such appeal interposed and prohibition to ye Judge being Deemed Null and void, whereupon the said Judge Porter afterwards Granted another Execution for the very same matter matter against The said Little Body who was violently taken into custody & his House attempted to be broak open and he to save himself from Goal was compelled to pay the very great sum of money which the Porter recieved himself as can be proved and as farter instance of the said Judges unjust and partial proceedings the complainants Alledge that said William Little haveing in the suit aforesaid Excepted against the said Porters being Judge in his coure for the open and known Enmity the said Judge bore him and accordingly put in his plea Recusation & tho it was drawn in the very form and manner Directed in the civill Law books which in such cases allways allow it a sufficient Yet the said Little was by the said Judge very harshly Treated for it & fined the sum of one hundred pounds & some time after notwithstanding there was prohibition & an appeal two for the decrees yet the said Judge before any Admonition given which the course of those courts require made out Execution against the said Littles Body upon it who was taken unto custody by the Marshall who by the Judges Express orders attempted to Dragg the said Little out of his sick Bed where to appear and he Lay dying not able to get out of his Bed but as helpt which in human action was lookt only all as a Shocking instance of the Judges Malice and Barbarity proceedings tho it sufficiently showed what reason the said Little had to make his accusation against him.

And further the said Complainants alledge that in the said suite they applyed to the Register for copies of the said Decrees they were told by

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him he had them not but that the Judge had Carryed them not but that the Judge had Carryed them out of Town to correct & amend & some days after the said Judge having returned them to the Register he then refused to sign copies of them alledging they had been altered & he could not on oath cirtify them for Copies of the Decrees passed in Court so the Deft could get no copy of them

And the said Complainant alledgist complaint they have great Reason to bel've and Give Sufficient grounds for it that the said Judge hath often promoted and forwarded suits brought before him and hath been assisting in Drawing Libels if not Wholly Drawn by him who some time agoe gave out that he had Elleven Libels ready on proper Occation which were Understood to be Chiefly against such as he had known hatred and Enmity too and the said Judge having tho without any foundation as the Complts believe Informed the Honll the Commission of his Majesties Customs that there was in this Country great frauds and concealments of the Kings monies he was more Upon by them Impowered to Recover the same at his own court on and agreement an agreement as the Comlts has been informed to have part of what should be Recovered and there upon the said Porter hath Caused suits to be brought against persons before himselfe and so was Judge Impropera Causa being therein both Judge and party which is Manifestly Unjust

11. Accordingly suit was brought before him in the Kings name against Christor Gale Esqr about a Bark Cast away at Core sound many years agoe and tho suit were brought in Admiralty in the time of it to condemn her for the King and the Decree was against it and the said Gale appointed one the agents to Keep the Effects saved for the owners after Salvadge and wadges paid which Effects fell much short of. Yet now without the least real reason suits is brought in the Kings name and great Vexations and trouble Given the Deft for which it being Craftilly Done in the Kings name no Cost Could be obtained for time

The next suit in the said Court was brought by Sir Richard Everard against David Osheal and Bond entered into at Edenton as security for the faithfull Discharge of a Naval office which being so Clearly out of the Admiraltys Jurisdiction a prohibition was granted which was not only Disregarded as Usuall but it was deemed a Contempt to the Court to offer and the said David was fined £50 and Imediately by the Judges Order Draged away to the Common Goale in a verry rough manner which was broke open on the occation And with the Judges assistance the said David was thrust in and another Lock put on and he Loct up and kept till weary of so Noisome a place the Gent was compelled to

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pay the money to be Discharged which the Judge also recieved himself

Another suit in Admiralty was brought in the name of the King on the forementioned pretext of Monies Due to the crown Consealed against William Little for the Kings third of a small Seizure made at Bath Eight or Ten Years agoe when the said Little was appointed agent and the Condemnation money came into his hands and tho it appeared by Accounts that the Kings third amounted to but £39:7 bill money and the said Little offered the Judge a full Discharge from the collector for the Kings part and tho no prosecute appeared yet the said Judge would retain the suite and compelld the Deft to give Baile to the sum of £600 this Currency and tho it was Urged that no Baile Shoold be required nor no new suite Indeed Instituted only the partie Cited to shew and that such Excessive Bail was againts Magna Charta and the Laws and Liberties of an English Subject it did not availe the Judge replyd if the Deft was Cleare the Baile Could not be no harme not Considering how unjust it is to be Deemed Exorbitant Baile and how Difficult it might be for the Deffendant to find such Lardge Security which if he did not he must have gone to Goale

12 Another Suite also was brought against the said Little who being reciever of the Tenth of the fishery had recieved a small Quantity of Oyle in Certain Contracts made at Land with the Whalers but being so Notoriously wrong in the matter and since the present settlement and support of the Lawes finding a prohibition Coming he thought fit to Dismiss the suite himself

13 the Last prosecution in his Court was against the saide Little and William Mackie Esqrs provost Marshall and Robert Foster Gent the Court, the said Little finding prohibition being Disregarded and no stop to be put to the said Judges Arbitrary proceedings for the Injurys done them and for the monnies so Unjustly Extorted from them brought action at Common Law against the said and his Marshall upon which these prosecutions were brought in Admiralty Vizt against the saide Little for Ofering to comence seuites and against the Clerk of the Common Law Court for Granting process and the Marshall for serving them In high Contempt of his court as the Judge was pleased to Call it which Suites has been Drapt to such Unheard of proceeding while the reignes of Govemt were so loose in the late times caused an uncomon ferment among the people now knowing where these Violencies would end one thing more Your Complts beg leave to observe that altho the admiralty fees are here stated by Law and verry high too Yet the said Judge without any regard to them or having any Instructions or Lawfull warrants

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Arbitrarily asumed to Impose what costs he pleases and hath Constantly Done it in a very Exhorbitant manner and as appears by aforegoing Case above It is Teen time more than the Debt

May it please your Excelly Your complts having now gone there with the Narrative of the Cases into ye Court that they avoid making any Reflections on them or giving those terms the proceeding really deserve & would be natural on such occasions being satisfied they must appear so Monstose that they rely upon Representing the bare facts but beg leave only to make this observation that these are all the cases that have ever been before the said Judge and Unhappily for the Judge it is remarkable that in Every one of them he hath most apparently proceeded with partiality and Prejudice or Extrajudicialty in an arbitrary and unlawfull manner in oppression of the subject and manifest Preversion of the Justice whereby your complts and divers others have been greviously Injured which hath Induced them to lay the Complaint before your Excelly to whom the matter in most humble manner is submitted humbly praying that the said Judge may thereon be suspended or the matter be represented & and such course taken as your Excelly in Great Wisdom shall thereon think Just and proper

Wm LITTLE as Sup


North Carolina—ss.

At a council held at the Council Chamber in Edenton the 14th day of May Anno Domini 1731

Present
His Excelly George Burrington Esqr Govr &c
the Honoble William Smith Esqr Member of His Majestie Council
the Honoble Edmd Porter Esqr Member of His Majestie Council
the Honoble Robt Halton Esqr Member of His Majestie Council
the Honoble Jno Bapt Ashe Esqr Member of His Majestie Council
the Honoble Corns Harnett Esqr Member of His Majestie Council

His Excelly the Governor was pleased to deliver a paper directed to this Board in the ffollowing words Vizt

Gent of the Council

Some debates arising yesterday at the Board upon Enquiry of the affair of the late councils Complaint against Sir Richard Everard Bart late Govr pursuant to his Majesties Instructions which I think were fully cleard up and being willing to have those matter then debated apertained in such manner as I may before I proceed further know you sentiments therein I desire your oppinion and answer in writting to the following Question if his Majesty Commands one by an Instruction to Enquire into any affair or if any thing comes before me to be

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Enquired into for his majesties service & for my better direction therein I lay the same before the Council Whether as it is their Duty to advise me in all affair of Governmt the Council is not oblidged in such Cases to give me their Oppinion & altho the affair be directed to me only and the council not mentioned 2d—this affair of Sir Richard Everard being only an Enquiry in order to form a prosecution thereon if it shall be found Necessary I desire Your oppinion Wheither any Persons being Complts is a Sufficient objection against their Evidence being taken to prove any matters they have Informed on their own knowledge

GEORGE BURRINGTON


North Carolina—ss.

At a council held at the Council Chamber in Edenton ye 15th day of May Anno Domini 1731

Present
His Excellency Geo Burrington Esqr Govr &c
the Honoble Will Smith Esqr Member of his Majesties Council
the Honoble Edmd Porter Esqr Member of his Majesties Council
the Honoble Robt Halton Esqr Member of his Majesties Council
the Honoble Jon Bap Ashe Esqr Member of his Majesties Council
the Honoble Corns Harnett Esqr Member of his Majesties Council

His Excelly the Govr delivered the following paper to the Board Vizt

Gent of the Council

Upon a Message from the Lower house Last Tuesday Concerning assistant Judges Seemed the oppinion of the upper House on perusing the Cheif Justices Warrent that he had by it the sole power of holding the General Court but upon Reading my Commission and the Eight Instruction I see his Majesty has directed me to appoint Assistant Judges which Instruction I now lay before you and your opinion upon the following Queries: 1. Whether assistant Judges appointed pursuant to that Instruction have not power as such to give Judgment in all Cases as Judges in Great Brittian do? 2. Whether the allowing the Chief Justice to be Sole Judge would not Establishing a common Law Court contrary to the Constitution of the English Law and against the meaning of his Majesties Eight Instructions to me and in the Choice and Nomination of the Members of our said Council as also the Chief officers Judges Assistants Justices and Sherriffs you are always to take Care that they be men of good life and well effected to our Government & of good Estates and abilities and not necessitous persons the Eight Instructions near the Meddle of my Comission are these word following

And we do hereby Impower and authorize you to constitute and appoint Judges and in Cases Requisite Comisioners of Oyer & Terminer

GEORGE BURRINGTON

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North Carolina—ss.

At a Council held at the Council Chamber in Edenton the 18th Day of May Anno Domini 1731

Present
His Excelly George Burrington Esqr Govr &c
the Honble William Smith Esqr Member of his Majesties Council
the Honble Edmd Porter Esqr Member of his Majesties Council
the Honble Robt Halton Esqr Member of his Majesties Council
the Honble Jon Bapt Ashe Esqr Member of his Majesties Council
the Honble Corns Harnett Esqr Member of his Majesties Council

Ordered that a comission of the Peace Issue for the the Precinct of Curratuck Directed to Thos Taylor Senr John Etheridge John Woodhouse John Mann Moses Linton Henry White Francis Morse Ralf Mathan Thos Robbs John Martin Richard Hodges and Thos Davis Gent Constituting and appointing them Justices of the Peace for and within the said Precinct

Ordered that a New Commission of the Peace issue for the Prcinct of Perquimons Directed to Machrora Scarborough Richard Sanderson Jun Ezeakiel Maudlin John Wiat Samuel Swann Zebulon Clayton Jacob Perry James Sumner James Norfleet Thos Docton Thomas Norcom Thomas Sprieght and Moses Sprieght Gent Constituting and appointing them Justices of them Justices of the Peace for and within said Prcinct

Ordered that a New Commission of the Peace Issue for the Prcinct of Pasquetank Directed to John Palin Esqr John Solley David Bailey Charles West George Linnington Simon Bryan Thomas Palin John Boyd Nathl Hall Gabreal Burnham John Relph Abell Ross Joseph Reading James Pritchard Gent Constituting and appointing them Justices of the Peace for and within said precinct

The Council desiring the Govr they may be paid as usual Ten shilling a day paper money of this Province Each for their attendance During the time the Assembly were sitting pursuant to the Resolves of Both Houses the same being usual and Customary and also that their Demands may be Entred upon the Council Journal to which Request the Govr answered that he agreed the Request or Demand afore Said should be Entred in the Council Book but would sign no Warrent for the payments of either the Council or house of Burgesses until he had Recieved Orders from the Lord of Trade and plantations.

John Bapt Ashe Esqr delivered in the two following Papers to His Excelly the Govr and pray'd the same might be Entered in the Council Journal which papers are these words Vizt

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To His Excelly the Govr

May it pease your Excelly

In answer to the Query put by you relating to the bill of Ascertaining officers Fees and payments of Quit rents I say

As it is known and Confesed by all people that there is not Gold or silver Coin Enough in the Country to answer ye above one Tenth part of the payments of Rents

I am of oppinion that the Assembly have Endeavoured to answer his Majesties Intention as near as may be in proposing something as are Equivolent & if I am rightly Informed that Tobacco in Verginia at ten shillings per Hundred Equivolent to there Currency of their Tobacco here & I take Eleven shillings per Hundred will appear to be an equivolent to proclamation Money being nearest as ten to Eleven and if and if a Clause be incerted in such act declaring that it shall not take Effect as to the Rents His Majesty be pleased to confirm or approve the same I think the King can recieve no prejudice thereby and what makes me propose such a Method is that provission might be immediately made for officers Fees & registering of Rents His Majesty having in his nineteenth Instruction directed that all those Matters should be Included in one and the same act.

JOHN BAPt ASHE

May it Please your Excelly

Having this prepared at the Day appointed for the Consideration of your Excellys Query to which it is an answer & your Excelly before putting it in prorogued the Assembly I not withstanding prefer it to shew your Excelly I would in the least be backward in Complying with any of your Excellys Comand

JOHN BAPt ASHE

To His Excelly the Govr &c

In answer to the paper put into the Council by your Excelly relating to debates which had arisen at the council Board on the Enquiry of the affair of the Late Councils Complaint against Sir Richard Everard Bart Govr which you say were not fully Cleared I beg leave in order to put that matter in a Clear light to recite it just as it happened some of the Council observing His Majesty in his Instruction to your Excelly relating to that affair had stiled both sides parties and (as it were) seems to have Directed that their Respective allegations should have been supported by Witnesses ordering that they should have free Liberty to

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Examine Witnesses Observing Likewise that Sir Richard Everard Bart had not Offered his own Evidence to support his charge against any of the council observing moreover the great heat and Animosity which seemed to be between both parties doubted Whether they mought be admitted as Evidences to support their own Charge upon this your Excelly was pleased in very Express & Emphatical Terms to declare you are resolved to admit them and immediately thereon Demanded the oppinion of the Council wither these should be admitted as Evidence this with due submission be it spoken I did not look as a becoming Treatment of his Majesties Council from the Govr and therefore as you had in so positive a manner given your Resolution I then forbore giving my oppinion in which I hope I transgressed not the Rules of good manners and all was out of my Duty and now in answer to your first Question without presuming to Determine what his Majestys Council is obliged to do I assure your Excelly that for my part in all affair of Government wherein I ought and shall be consulted I shall out of the great Loyalty I bear to his Majesty's Shew a great Readiness in giving my oppinion or Indeed of doing whatever else in me lyes which may conduce to His Majesties Service

As to your second Question I beg leave to refer your Excelly to what I have said before in Relation to the observation on his Majesty's Instructions which If it be not thought of sufficient weight as the Question Seems as stated by your Excelly to be a point of Law and Indeed the Gent of the late Council having desired Council to be heard on it I beg leave to suspend my Judgement till (by hearing what their Council shall offer to maintain That their own Evidence will be sufficient to support their allegation) I shall be better Informed I beleive indeed on a Criminal prosecution an Informer may be admitted as an Evidence for the King but then in such the Crime & it nature ought (as I take it) to be precisly and Expresly alledged and set forth

JNO BAPt ASHE

William Smith Edmond Porter Jno Bapt Ashe and Cornelius Harnett Esqrs delivered the following paper To His Excelly & prayed the same might be entered in the Council Journal which was in these words Vizt

To His Excelly the Governour &c

We are surprised that Instead of the usual method of openly debating by word of mouth in Council and after debate of entering resolutions your Excelly is fallen only into this of only stating Questions in writing

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and Demanding answers thereon. What lead us to take notice of this is that your Excelly having been of the same oppinion with us in this case relating to the Message from the Lower House of Assembly Concerning the assistance as will appear by the answer to the said message as you now have if you have altered you oppinion perhaps on hearing argument used by you which may have moved you we might be convinced and Retract with your Excelly But since it is your pleasure we submit to this Method

And in answer to your first Question after premising that in his Majesties Eight Instruction there is no mention made of Assistant Judges but only of assistants (not saying what Assistants) and that we think it with submission improperly said assistants Judges Appointed pursuant to that Instruction because that Instruction directs not nor Comands the appointment of Assitants but only supposing it prescribes realy to be observed in Choosing fitt persons for that among other offices So that no Inferrence Can be made from thence but of those being (and that only by Implication) none of their power therefore till we are better Informed what is their Power we Think we cannot pretend to Determine whither it is Equal in all cases to that of Judges (not saying what Judges) in Great Brittain.

But perhaps your Excelly may Object to us that we (by Implication at least) acknowledge their being or that they may be & may ask what then is their power or use to obiate which we answer to Inform & advise if in the Chief Justices or the Supream Courts) as we conceive and not to adjudge and in this sence we believe the word assistant to be taken so the masters in chancery are styled assistants to the Chancellor

As to your Excellys Second Question we say that we find that his majesty in his Warrant for that purpose Orders and Directs that Letters pattants be passed Constituting and appointing William Smith Esqr Chief Justice of this Province with full power & authority to hold the Supream Courts of Jyudicator &c Now we beg your Excelly to give us leave to ask Whither there is a power greater than a full power & Authority requisite to hold Such Courts No to this whole Query we answer therfore negatively because we are of Oppinion such Establishment is not Contrary to the Constitution to the Constitution of the English Laws nor Indeed to his Majesties 8th Instruction.

But had our Oppinion been otherwise we ought Rather Modestly & Cautiously to have represented it to his Majesty than to have reflected on his Justice by asserting it in such a manner as an affirmative answer to this Queery (it should seem) would lead us to As to the paragraph

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recited out of your Excellys Comission We beg leave to say that we Cannot See how that is applicable to the present case because there may be Other courts and Judges whose Authorities Interfere not with that of the Chief Justice & his Or the Supream Courts & that such may be appointed I beleive none has Denyed nor Indeed do we deny but Assistants may be in his or the Supream Courts with their proper power but we think we have hitherto found no Sufficient Reason to Remove us recede from the answer we gave to the Message of the Assembly Vizt

That the assistants had not a Judicial power

WILLIAM SMITH
EDMd PORTER
JNO BAPt ASHE
CORNELIUS HARNETT

Mr Chief Justice Smith delivd to His Excelly at the Council Board the following paper which he Desired might be Entered on the Council Journal which was in these word Vizt

To His Excelly the Govr

Since your Excelly has been pleased to demand an answer in writing to two Queeries preposed to us by your Excelly I with great Chearfullness Embrace the oppertunity to Declare my Sentiments which hitherto I have been forced to conceal being Deterrd therefrom by the Displeasure of your Excelly whenever I was so unhappy as to Differ in oppinion from you I cannot but think ye Qeeries proposed by you Excelly to be very Extraordinary at this time seeing that after the whole Council very much Doubted whither the evidence of the Gent of the Late Council ought to be taken in their Own behalf your Excelly was pleased to declare that you was Bound in Honour and Consience to take their Evidence so that with due submission this Queery seems to be unnecessary

In answer to your second Queery I humbly conceive that His Majesty by his Instruction Calls both Sides parties & by his Directing Each partie to Examine Witnesses it may easly be Imagined that his Majesty expected that they should support their charge by other Evidence than their own It is very unaccountable that the Gent. of the Late Council should have nobody but themselves to make out a Charge in there are several things that one would think must have been known to many Others and by their praying that it might be put off till the return of Mr Gale when it is very much to be doubted whither he will ever return & when it is well known that Sir Richard Everard pretends

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to leave this Province within a few days Seems to make the Charge without any foundation & to be only the Effect of personal resentment without any View to the service of his Majesty or the Interest of this Province

These may it please your Excelly are my humble Sentiments and I have no Other End than to do my Duty in my Station So I never shall be lead into arbitrary and Illegal measures through any Temptations of Fear or Interest

WILLIAM SMITH

Adjourned till tomorrow morning 9 of the Clock


North Carolina—ss.

At a Council held at the Council Chamber in Edenton the 20th Day of May Anno Domini 1731

Present
His Excelly George Burrington Esqr Govr &c
the Honble William Smith Esqr Member of His Majesties Council.
the Honble Robt Halton Esqr Member of His Majesties Council.
the Honble Jos Jenoure Esqr Member of His Majesties Council.
the Honble Corns Harnett Esqr Member of His Majesties Council.

John Montgomery Esqr produced to this Board His Majesties Warrant under his sign manuel directing that Letters pattents Issue under the seal of this Province Constituting & appointing him the said John Montgomery Attorney General therein

Ordered that Lers pattent Issue for the same

Mr Chief Justice Smith declaring that there was not a Council Sufficient to do business the Govr in answer thereto Acquainted the Board that he yesterday morning directed the Marshall to summons all the members of Council and the Marshall being called acquainted the Board that he Summoned Mr Smith Mr Jenoure Mr Halton Mr Porter Mr Ashe and Mr Harnett which (Except Mr Secty Rice who was gone to South Carolina) are all the members as yet Qualified to attend the Govr in council this day at nine of the Clock in the forenoon

Mr Chief Justice Smith resin'd his place as a member of his Majesties Council for this Province

His Excelly the Govr Returned and answer to the paper given in at this Board the 18th Instance by Mr Chief Justice Smith in these words Vizt

Mr Chief Justice

the King having Comanded me to Enquire in to the Complaints made to his Majesty by the late Council against Sir Richard Everard late Govr

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and by Sir Richard to the Duke of Newcastle against several members of the then Council I was to proceed therein with the utmost care & Caution and having and having had your Cheerfull assistance in taking Depositions on Sir Richard Complaint against the members of the former Council I expected the same readiness upon Enquiring into the Complaint against Sir Richard in which are some things that concern his Majesty's Person & Dignity & for my better Guidence in so nice an affair I was desirous in several matters to have the advice of the Council but found so much warmth in some and so much backwardness In others that Induced me to put two short and plain Queeries to the Council that required only as short plain & Direct an answer but Instead of Mr Cheif Justice has in a long paper flew of from the plain Matter Stating it Different from the Questions I put & wide of the purpose you maketh doubt to be as you word it whither the Evidence of the late Council ought to be taken in their own behalf tho it is manifest the enquiry is in behalf of the King & having once got out of the path you go on further in the same way and say his Majesty nameth both sides Parties and would inferr from thence that these Gent in their Information are parties in it as tho the Enquiry is to be carr'd on by order of the King in their behalf is the Cheif Justice in earnest in this His Majestys Instruction is to make Enquiry into the Complts and if found needfull to make a prosecution on it & I dare say the Chief Justice will not deny to admitt those Gent that Informed or Complained against Sir Richard to be Evidences for the King in Case prosecution is Ordered pray then Mr Chief Justice how can I fully Enquire If there be sufficient grounds or not for a Prosecution if I may not have the same Evidence that may be given on the prosecution & as the prosecution if Ordered would be in the King behalf also & I shall think the Chief Justice ought to be the Last man to debarr the King from the Evidence that may any wise appear in his behalf I cannot tell what Turn might be given to such slighting over the Kings Evidence you go on in the same strain that it is unacountable that the Gent of the Late Council have no Evidence but themselves & do you really think it unaccountable that men may Inform the King of their own Knowledge or would that at all Invalidate their Evidence tho the Questions I put was neither their Evidence might not be taken in any thing they had informed the King of their own Knowledge but what is more surprizing Still is that the Chief Justice should prejudge the matter before one Evidence is heard on it and allow the charge to be without any foundation & only the effect of Personal Resentment without any View of serving his Majesty & this under your hand & in a matter to that may come Judicially before you

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I leave you sir to reflect what may be said on it and how farr this would be thought obeying his Majestys Instructions but before I Conclude I must take notice of the Indecent manner you begin your paper intermating that you have been forced to conceal your oppinion if Contrary to mine being deterr'd by me this would be a Hevy Charge against me if true but it happens to be so well known with what remarkable temper and Deliberation I have Proceeded in this and all other Matters and Causes that have been transacted or brought before me in Council that it gives me very Little Concern as to my self I only look upon as an Effect of that Rash Inconsiderate way you are so apt to be led into & which I have so often in the mildest and friendlyest manner Cautioned you Against

GEORGE BURRINGTON

His Excelly the Govr Delivered the following paper in answer to the paper giving in at this Board the 18th Instant signed by Mr Chief Justice Smith Mr Porter Mr Ashe Mr Harnett and ordered that the same be entered in the Council Journal & a copy thereof delivered to them forth-with which was accordingly Done which was in these Word Vizt

To William Smith Edmond Porter John Bapt Ashe and Cornelins Harnett Esqrs Members of the Council

Gent

I have read your Joynt paper about assistant Judges I must own the paper came from the Lower house to Know the power of Assistant Judges I did not oppose the answer Sent by the Upper house to it Neither Did I declare my Oppinion upon it afterwards Reflecting further upon it & Operning my Comission & Instructions & Considering Indeed the Nature of the thing I could not think it Right and for my own part Whenever I am Wrong I shall always think it better to Retract as you call it than Obstinately to Persist in an Error I was willing to have the debate Resumed & in order thereto put in two plain Questions the Council for their Oppinion which might Easily been as plainly answer But your paper upon it Runn into Niceties and distinctions forreign to that purpose you ask me if the warrant for the Chief Justices Pattent Doth not Call it a full power & authority to hold the Court but then Certainly it must be understood in a Legall way it doth doth not say by himself only & therefore must Intend as the Usage Ever has been with assistants Which assistants my Comission and Instructions directs and impowers me to appoint tho you wisely observe upon it that it doth not so much

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direct me to appoint them as Supposeing of them it directs the Rules to be Observed in Choosing them This I think make the matter much Stronger for it takes it for granted that they ought to be appointed but then you say the Instruction doth not say assistant Judges this is a pritty Extraordinary Construction of one of his Majesties plain Instructions when the Instructions Couple Judges Assistants Justices &c Besides the Instruction which you had before you forbids me Establishing any new Courts or desolving any already Established and it is well Known the General Courts here hath Constantly been with Assistant Judges that have had a Judicial power & I cannot help beleiving that the allowing the Chief Justice to be sole Judge of that Court would be erecting a new Court but you seem to recede from all that & allow there should be Assistants but of what power or Use should they be why truly to Inform and advise the Chief Justice as Masters in Chancery For my part Gent I was not bred a Lawyer but I never heard of a Common Law Court where the business of any of the Judges was to advise only and Indeed the Establishing of a single Judge of the Supream Court of Comon pleas Seems Contrary to the very nature of it & I am sure would be Establishing a New Court of Judicature here Contrary to my Instructions & no way for his Majesties Service or the good administration of Justice & should I allow it it might be Just matter of Complaint against me as I am perswaded the Increasing of it would be against the Gent If he should Assume it

GEORGE BURRINGTON

Then His Excelly the Govr delivered the following Paper in answer to the paper delivered by Mr Ashe at the Council Board the 18th instant & directed to the same to be Entered in the Council Journal & a Copy thereof delivered to Mr Ashe forthwith which was accordingly done which paper was in these words Vizt

To John Bapt Ashe Esqr

In the late debate about the Complaints against Sir Richard Everard I put two short Queeries to the Council for their Oppinion I plainly told in the debate my oppinion was that those Gent who has complained against Sir Richard Everard might give their Evidence of any facts of their own knowledge but desired ye oppinion of the Council that if I was wrong I might be better advised which I never think myself above Recieving but Instead of a plain Categorical answer Mr Ashe has branched out into a long discourse upon it while I cannot help thinking quite evades the matter and I shall only say I expected more Candor

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and plainness from you there is another paper you offer too about the late Bill Concerning fees and Quit Rents but comes quite out of time Being after the Assembly was prorogued you make some adjustment about tobacco in it which is not satisfactory neither but you mention nothing of Rice that was Icerted for the payment of Quit rents you propose too now it is over a Clause of referring it to his Majesty but I Observed it not so in the Bill I shall only say I several time demanded if any person in the Council had anthing further to advance upon it you say your paper was prepared ye day of the debate it would certainly looked much fairer had you then offered it but being done when the affair was all over seems very particular Your paper about Assistant Judges which you have joyned with three more of the Council I answer by itself

GEORGE BURRINGTON

His Excelly the Govr was pleased to desire the oppinion of the Board Whither the officer attending both Houses of Assembly should be paid for their service and attendance on the last session & ye Honobles the Council was of oppinion that his Excelly the Govr Issue Warrants to the publick Treasurer to pay the same which was done accordingly

His Excelly the Govr was pleased to Direct that the first paragraph of Mr Chief Justice Smiths paper which he gave in at the Council Board the| 18th Instant might be read which was accordingly read in these words Vizt

To His Excelly the Govr

Since your Excelly has been pleased to Demand an answer in Writing to two Queeries proposed to us by your Excelly I with great Cheerfullness Embrace the Opertunity to Declare my sentiments which hitherto I have been forced to conceal being Deterrd therefrom by the Displeasure of your Excelly whenever I was so Unhappy as to Differ in Opinion from you And the Govr Desired this Board that they would Declare whither or no there has not been all the freedom of debate imaginable used at this Board and whither he ever Deterrd Mr Chief Justice or any other member from openly debating every matter and thing that came before them at this Board and the Council thereupon Declared that they have not at any time since His Excellys arrival observed that any member of this Board has been deterred or otherwise Hindred or obstructed from debating openly and freely every matter any thing that has layn before this Board

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Ordered that a comission of the Peace Issue for Chowan prcint directed to Colo Henry Bonner William Badham Henry Baker Thos Luten Samuel Paget John Ismay Jacob Blount Samuel Spruell Francis Pough Aaron Blanchard William Roods Thomas Garrett Richard Parker John Sumner John Blount and Francis Branch Constituting & appointing them Justices of the peace within the said Precinct.

Ordered that a Comission of the Peace Issue for the Prcinct of Beauford & Hyde & Directed to Eward Salter Jno Snoad Simon Aderson Robert Turner Samuel Slade Robert Peyton Thos Worsley Junr Churchill Reading Thos Smith William Barrows & Wm Cordant Constituting and appointing them Justices of the peac within the said prcincts

Ordered that a Comission of the peace Issue for the prcinct of Craven Directed to Capt Wm Handcock Capt Daniel Shine Thos Martin John Powell Capt Thos Masters Jacob Miller Jacob Sheets Martin Frank John Formveil Junr Wm Brice Simon Bright George Whittaker and Walter Lane Constituting & appointing them Justices of Peace Within the said Prcinct,

Ordered that a Comission of the peace Issue for the prcinct of Carteret directed to John Nelson Richd Russell Enoch Ward Richard Whitehurst Joseph Bell Taylor Capt Arthur Mabson Francis Brice Elenzer Harker and Chaddock Constituting and appointing them Justices of Peace Within the said prcinct

The Complaint of the members of the Late Council against Sir Richard Everard which was to have been Argued this Day and the Members of the Late Council Appearing Sir Richard was sent for & the messenger Returned & acquainted the Board that he was told Sir Richard Everard was not at Home but that Mr Everard (Sir Richard's son) would appear & answer in his fathers behalf to morrow morning which was objected to by the said upon which His Excelly the Govr & Council taken the same into Consideration it was consented to that Mr Everard should appear in his fathers behalf

Ordered that ye Marshall do Sumons His Majestys Council to attend his Excelly the Govr in Councill to Morrow Morning nine of the Clock

To which time the Board adjourned


North Carolina—ss.

At a Council held at the Council Chamber in Edenton the 21st day of May Anno Domini 1731
-------------------- page 245 --------------------

Present
His Excelly George Burrington Esqr Govr &c
The Honble Joseph Jenoure Esqr Member of His Majesties Council
The Honble Edmd Porter Esqr Member of His Majesties Council
The Honble Robt Halton Esqr Member of His Majesties Council
The Honble Jno Bapt Ashe Esqr Member of His Majesties Council
The Honble Corns Harnett Esqr Member of His Majesties Council

Mr Everard in behalf of his Father Sir Richard Everard appeared this day at the Board as also the Gent of the Late Council Whereupon reading their Charge against Sr Richard Everard the Govr & Council were unanimously of opinion that none of the articles of their Charge were sufficient Grounds of prosecution of the suit save the two last to which the Gent of the Late Council faild to produce Any Evidence to support them alledgeing that Colo Harvey who was one of their Evidences was Dead and Coll Gale the other was out of the Country


Carolina—ss.

At a Council held at the Council Chamber in Edenton the 22d Day of May Anno Dom 1731

Present
His Excelly George Burrington Esqr Govr &c
The Honble Jos Jenoure Esqr Member of His Majesties Council
The Honble Robt Halton Esqr Member of His Majesties Council
The Honble Corns Harnett Esqr Member of His Majesties Council

John Lovick Esqr late Secty came before this Board & gave in the following paper in answer to the Several Depositions on the Complaint of Sr Richard Everard against him which was read in these words Vizt


North Carolina.

To His Excellency George Burrington Esqr Govr Capt General & Comander in Chief of His Majesties Province of North Carolina

The Remonstrance of John Lovick upon the Complaint of Sir Richard Everard against the Sd Lovick & Edward Mosely Esqr

Humbly Showeth

that a Complaint being made by Sir Richard Everard to his Majesty against your Remonstrant and Edwd Moseley Esqr which your Excelly by his Majestys Directions has been pleased to Enquire into & Several Depositions has been taken but they being all Matters subsequent to that Complaint & your Excelly and the Council yesterday Declaring your Oppinion that such Evidence Could not be recieved to support that Complaint and Sir Richard failing to produce any other Evidence the said John Lovick Concieves the Charge must of Course drop and that it

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would be needful for him to answer thereto and that Regularly as he humbly Concieves they ought not to have been recieved as he had then been prsent he could easily have shown and fully have obviated then but least those Depositions might seem to Reflect on the Conduct & Character of your Remonstrant which he is desirous to set Clear before your Excelly he begs leave to make his observations on the several Depositions taken & to shew how much they fall short of proving anything unjustifiable against him the sum of them (for they all seem to tend to one thing tho Variously Modelld) is about some blank patents that Mr George Pollock had your Remonstrant need not Observe the Constant method of signing pattents has been to sign them blank but the occassion of putting those patents into Mr Pollocks hands upon which the Clamour was Endeavoured to be raised was as followeth) when the line was for to be run betwixt this Government and Verginia their being no money belonging to the Lords proprietors in their Recrs hand to defray the Charge the Govr & Council passed an order for the sale of Lands to Reimburse it & thereupon the line was runn to General Satisfaction & at a Charge that has been thought no way immoderate your Remonstrance being one of the Comissioners the Creditt of that Order of the Board advanced great sums of money towards the defraying the Charges and had lands afterwards assigned to him to Reimburse the same and upon it sold out to Mr George Pollock Seventeen thousand acres but the said Pollock for his greater Conveyance in taking up the Lands desired patents might be left Blank in His hands not knowing in what Quantities he might take it up which patent he was to fill up when the surveys were made in such parcells as the whole should not Exceed that Quantity and the all to be returned into the Office to be Compleated on Record to all this Col Thos Pollock was Evidence then a member of Council who is ready to declare (if called upon) the whole affair was in this manner & no otherwise Neither is it pretended that your Remonstrant had any fee Rewarded Gratuity for so Doing that if Mr. Pollock had Committed any fraud about it Must easily have been Detected but that Gents Character is two good to be suspected of such Vile practice nor indeed is it so much as pretended that there has been the the least fraud or Design of it and your remonstrant averrs that he had no fee Reward or Gratuity Directly or Indirectly for his so doing or was any penny Gainer by it

This May it please your Excelly is the whole of that affair that there was so much pains taken by the Noise & Number of the Evidence to swell it up to a Charge

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Having now giving this plain account of the affair it Self the said John Lovick begs leave to Observe the amount of the several Depsitions taken the first is Mr Harding Jones who swears he saw a blank pattent in Mr. George Pollocks hands about twelve months since & that he said something that made Mr Pollock smile which is all that concerned the said Lovick & may probably be true the next is Mr James Castellaw who Swears he saw four or five Blank pattents in Mr George Pollocks hands & that Mr Pollock would have sold two of them but Mr Castellaw perswaded him against it this is the whole of this Deposition only on hear Say and not to the purpose which being only hear say & is no Evidence nor worth answering

Mr Cullen Pollock swears that he had a Blank Pattent in his Hands of his Brother George Pollocks for one Thousand acres of Land and that it is so Endorsed on the back by his brother which confirms what your Remonstrant before related about it & there was no design of fraud in it which the Gent Intrusted with them was above being Guilty of Mr Thomas Jones Swears he had an Imaginary Survey (as he calls it) wch he gave the said Lovick in August or September Last and got a pattent Dated in the year 1728 all the said Lovick remembers of this matter is that Mr Jones brought him one of the pattents Mr George Pollock had with a Letter from the said Pollock to fill it up for Mr Jones but there being some name or something in that pattent which made it impractiable the same was Destroyed and another pattent made of the same date filled up which was what had been frequently done to other and if the survey was not as it ought to be the said Lovick declares he was not privy to it nor had he any fee or Reward for it nor in any manner one farthing gainer so that all the account of that is that Mr Jones he Imposed a Sham Survey upon the Secretary which the present Surveyor Genll will Enquire into & see that no Damage Accrue to his Majesty therefrom

The Next is Doctor Allyn who swear he saw blank pattent in Mr Pollocks hands & heard a bargain between the sd Pollock & Mr Jones for two Thousand acres all is but Consistant with all that is already said he Swears too that he has Seen a great number of Blank pattents with a Reciept on the back for the purchase Money but the not Expressd which Seldom is but says the Consideration money within mentioned & Excepting about five of which mention is made he knew any to go out Blank nor beleives it & is satisfied If Doctor Allyn saw any it must be as they Lay in the Secty Office or Recr office and he dare to put the whole Cause upon & is very sure where so much pains are taken if one single Instance

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more could have been found it would by no means have bee Omitted Mr Nairn swears only to his beleif which if true the remonstrant averrs was one of those pattents Left with Mr Pollock and all but amounts that he beleives he saw a blank pattent as is very likely & and agree with what the Said Lovick has before observed

Mr Downing Swears he saw a blank pattent in Cullen Pollocks hands & has heard of several others by report but can say nothing about it himself

As to Mr Pollock pattent it has been mentioned already as to what heard by report its two uncertain to answer and therefore concieves it ought not to have been Incerted

The Last is Mr Russell who swears that Mr John Galland brought a pattent down to Core sound to be filled up but that it was sent back again & filled up in the office the truth of this Matter was there being a pattent to be made out for Mr Russell the Survey Could not be found in the Office & to save the man Coming one hundred and fifty miles the Secty gave the pattant blank to Mr Galland his Clerk to get the survey from the Surveyor and to fill it up and to return it to the Office & that Mr Galland geting the survey returned that and the pattent to the Secty to Copleat which was done in the offices as he Swears. Having now gone there with the Evidence the said Lovick cannot help taking notice how many were produced to the same thing Vizt that they had seen blank pattents which plainly with a Design to have it beleived they were Different and if it had been an offence it might have swelled the bulk of the charge and looked the greater when in truth there was never only the aforementioned and that done in the manner aforesaid which is humbly Submitted to your Excelly if there was fraud or ill intention in the said Lovick there in but the said Lovick now beg leave to give his Reason why he Conceives the Evidences ought not to have been on the Enquiry that was ordered to be made on the Complaint of Sir Richard Everard for—

First they were all of matters since the Complaint and so ought not to have been admitted to have made it good as your Excelly and the Council have allowed 2d because is not one one Evidence that Evidence that pretends to prove the least corruption or foul practice in the said Lovick unless the bare signing of pattents blank be an offence & if it shall be thought a Crime Sir Richard Everard who was then Govr and without whose name no pattent could have Issued was not capable and ought to have been the principal person in the Complaint Instead of Complainer & one thing further as to Sir Richard the said Lovick begs

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leave to remark upon the Complaint the Order from Sir Richard to the said Lovick about warrents and pattents bears date in Janry 1728 and his Letter to His Grace the Duke of New Castle soon followed & both seem'd founded on a double Mistake the first was that His Majesty was then in possession of the Government which did not happen till July following the Other was that the said Lovick had great numbers of old warrents in the Office which had been forbid by the proprietors to pass all which is without the least foundation the said Lovick never being possessed with such warrents in his office nor was there ever such an order from the Proprs about them as he knows of nor any grounds for any & upon such mistakes it was that Sir Richard refused to sign pattent the apparent Injury of such as had Lands due to them but at the Assembly in November 1729 after the Surrender to the Crown by the Lords Proprs at the Instance of the Assembly in hopes of the five Hundred pound they gave him he again Signed pattents Contrary to the oppinion of some Members of the Council and particularly of the said Lovick who then told him he Conceived the stopping of the pattents when they were Stopped was irregular and erect Injury but the granting of them after we were assured of the Sale were irregular but wither Sir Richard did it for his Majesties Service or for private gain will be Easily Judged Especially when it is known that besides the aforesaid Five Hundred Pounds the Extraordinary fees he took upon pattents beyond Law brought him in very great sums but the said Lovick would now conclude begging pardon for being so Tedious and with great Gratitude acknowledging your Excellys patience Cander & Exemplary Impartiallity in this and indeed in all others debates before you the said Lovick thinks himself happy the Enquiry was made it being no small Satisfaction to him that having been so many years Secty of this province on such a this was all that Could be produced against him and he was the more desirous that his Charecter might be Cleared Seeing he has for near a Dozen years been a member of Council & had the head of the Board & by his Enemies said to be at the head of most affairs here till your Excelly arived to take the Government for his Majesty

All which is humbly Submitted
Sr your Excellys most faithfull most Obedt Huble Servt
J LOVICK

And the Complainant producing no Evidence to support the Complaint agreeable to the Determination of the Board yesterday it is the oppinion of His Excellys the Govr & Council that the Complaint of Sir Richard

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Everard hath not been Supported & that the said Lovick be Discharged from that Enquiry

Ordered that the several Depositions and Complaint of Sir Richard Everard against John Lovick Esqr late Secty with his answer thereon be delivered in the hands of his Magesties attorney General of this Province for his Report to be made thereon to His Excelly the Governor

Then this Board adjourned by order
ROBERT FORSTER Dep Secty