To the Honourable the Lords Commissioners of Trade & Plantation.
The humble Representation and address of Edmund Porter, late Member of his Majesties Council and Judge of the Vice Admiralty Court of the said Province.
That his Excellency George Burrington Esqre by and with the consent advice of Joseph Jenour and Rob: Halton Esqrs Members of Councilr John Lovick and Edmund Gale of the Governors appointment) hath thought fit to suspend me from the aforesaid offices with black and infamous caracters. In as much therefore as his Majesty is graciously pleased by the 9th article of his Royal Instruction to direct our Governor not to suspend any of the Members of Council without good and sufficient cause nor without the consent of the Majority of the said Council (unless in matters not fit to be communicated to the Council) and in case of suspention of any of them his Excellency is required to cause his reasons for so doing together with the charges & proofs against the said members and their answers thereunto to be duly entered upon the Council Books and forthwith to transmit Copys thereof to your Lordships &c: Least therefore the Clerk of the Council (from whom I can procure no Copy) should be induced to attest the proceedings relating to my suspention otherwise than in a genuine manner I humbly ask leave in my defence to inclose to yours Lordships his Excellencies original charge consisting of five general articles Signed under his own hand & given me the morning of the Same day I was suspended annexed to which is my answer and a certification under the hands of Mr Ashe and Mr Harnet Members of Council by which your Lordships will perceive that three Members of Council appointed by his Majesty did dissent from my Suspention (thō I believe it will be represented otherwise and in what manner the Governor vaunted and sported with my misfortunes after he had Suspended me from the office of Judge of Admiralty the day before and the next day from the Council Board not giving me one hours time in the former office to defend myself and threw a paper which I told him relating to my defence into the fire without reading it or suffering any one member of the Council to peruse it. During which Trials (if I may so call them) permit me to assure your Lordships that the lerned have not described Malice on the furies halfe so terrible to my apprehension as this Gentleman appeared, thō he was at the Same time my Judge! In the two first General Articles the Governor accuses me with Obstructing all proceedings in Council by raising unnecessary disputes and cavils &c: As his Excellency might not think it Policy to desend to the particulars of the first and second charge I beg leave to observe to your Lordships from whence I apprehend they are founded
1th In faithfullness to his Majesty and the Trust reposed in me whilst a Member of Council I was often under necessity to differ in Sentiments and opinion with the Governor more especially in matters which related to Lands wherein I did repeatedly advise him in private not to accept,
2dly I gave an opinion in Council that the best expedient to find the frauds that had been Transacted by means of Mr Lovicks emitting blank pattents &c: was (if his Excellency thought fit) to issue forth Proclamation to call in all pattents that had been made out from a certain time, that thereby compareing the povity of hands, quantity of acres, Situation of Land and record of the Same &c: the fraud and injury don his Majesty might be discovered.
3rdly I gave an opinion in Council that it was improper for His Excellency (who negative power was distinct and Separate in the making Laws) to come into the Council Chamber and by himself alter such Bills that were by the Upper House preparing or amending for his assent.
4thly I gave an opinion in Council that Mr Wm Little receiver general under the Lords Proprietors for the Quit Rents and purchase money of lands ought to produce a regular Rent Role by which he and his Deputies did collect the Same that thereby it might appear obvious to the Council what the amount thereof was annually before his Accounts could be admitted or he discharged Moreover the Said Little I observed (to a Committy of Council) that in one article of purchase money paid by Martin Franks he had given credit but thirty Shillings to his Majesty whereas in Truth the Sum paid by Mr Franks was above three hundred pounds, as appears by a Memorandum here inclosed.
5ly I gave an opinion in Council that the Governor could not appoint Mr John Lovick and Edmund Gale Members of Council in Derroga to his Majesty's 7th and 9th Instruction when seven in the Province did subsist and finding these Royal directions were like to be no guide, I drew up the enclosed Dissent and prayed it might be entered in the Council Books, but it was refused me which I looked on as a breach of priviledge and of evil consequence for by that means the different opinion and reasoning of Governors and Council would be unknown to his Majesty the Secretary of State or your Lordships and such matters perhaps only inserted in the transmitted Records of Council which the Governor and a few members thought proper.
6ly I often gave an opinion in Council that the Governor of himself is not sole Chancellor (as he hath repeatedly insisted) and this my opinion is founded from the 66 & 67 articles of His Majesty's Instruction whereby it appears that appeals in cases of Error from the Courts in this Province in Civil causes, are directed to be made to Governor and Council.
7ly I gave an opinion in Council that his Excellency and a less number than five of the Council could not hold Courts of Chancery, that the Judicial proceeding of such corts were fixed to three certain Termes in the year, vizt: March, July and October therefore could not be deemed an emergency, so as to tolerate a Quorum of three or four (thō his Excellency hath made a practice with that number) to proceed in matters of equity—I will not trouble your Lordships to insert any further particulars wherein my conscience or opinion led me to assent or dissent from the Governor I hope what I have said will be sufficient to convince you that I have behaved in Council as became my station, neither hath any man in this Government according to my capacity demonstrated a greater regard for his Majesty's service, for as soon as it was reported that this Province was a purchase to the Crown, I was the first person (let who will attribute to themselves) that did by three several Memorials advice my Lord Duke of Newcastle concerning such Frauds in Land which I apprehended were carried on as well before as since the said purchase all which I doubt not have been fully made appear 'ere now to his Grace and your Lordships by Sir Richard Everard Mr Smith and others.
My Lords I was apprehensive when I attempted the several Informations and matters before mentioned that (considering the policy prejudice and strenth of those who such injuries did effect) it was a very hazadous and dangerous undertaking for one of my fortune and ability but my confidence and dependance lay in finding protection from his Majesty and those great officers who are intrusted with his affairs. Wherefore I do most earnestly beseech your Lordships to take my distressed case under your consideration that others hereafter in these distinguished Countrys may be encouraged for their faithfull endeavours to serve his Majesty
On the twentyth day of Janry 1731 at the House of Mrs Dunstons in Edenton before Col. Moore and Edmond Porter, Mr Martin Franks oft that he was ready to swere that Mr Wm Little the late Receiver Genl of the purchase money and quit rents of Land under the late Lords Proprs had received of him £302.57 purchase money for 10175 acres of land for which he had Mr Little's receipts and that at the time he paid it to Mr Little he desired Mr Franks not to acquaint the then Govr Sir Richd Everard with the sum that he had so paid And he the said Franks further said that Mr Little told him at the same time that if he would not let him have half of some lands he had on Nuce river it should be the worse for him Mr Franks soon after meeting with Mr Lovick the then Secry he told him what Mr Little desired about the paymt of the money aforesd vizt not to discover the same to Sir Rich. Everard at which Mr Lovick (he saith) smiled & walked off So far the conversation passed before Col. Moore & Ed. Porter.
On the 22d Janry Mr Franks I met in Edenton who further said to me Viz: You thought I was afraid to let the relac of ye money be known least those people follow me to destroy me “but you are mistaken I acquainted Govr Burrington therewith this morng & he says it is very well. All which when called on I am ready to make oath to
To the Right Honble the Lords Commissioners of Trade and Plantation
Exceptions humbly offered by Edmund Porter Esqre against the Legality of his Excellency George Burrington Esqre Governor &c: Suspending me from the Council Board the 21th day of Febry 173½.
1st Because on the 20th of January aforesaid the Governor put the question (before I was called on to answer any charge made against me) immediately on his Declaration of my suspention as Judge of the Vice admiralty, whether I ought not to be suspended from Council, thereupon for of the Members vizt Mr Jenoure, Mr Halton, Deputy Provost Marshl Mr Lovick and Edward Gale (to shew their willingness to oblige his Excellency) voted me unfit to sit in Council and therein prejudged me.
2dly Because three of those four assenting members vizt: Mr Jenoure, Mr Lovick and Edmund Gale were at the same time themselves under an accusation of a Murther they intended on me the 7th of Janry 1730 and giving a Rout to the Court of Admiralty of this Province, whereupon my Lords of Admiralty on my representation of the same hath given directions to our present Governor (by a publick Letter wrote by Mr Secretary Burchett, bearing date the 17th of last May) to make strict inquiry therein &c: which publick Letter Governor Burrington received about fifteen days before my suspension, and notwithstanding the said directions permitted those three Gentlemen before they were acquitted of the facts to sit as judicial members not only to give Judgement on me as a Member of Council but also to Judge of my proceedings in the Courts of Admiralty which Court and all the Officers thereof they had put to the Rout as aforesaid.
3dly That the Governors nomination and appointment of Mr John Lovick and Edmund Gale was as I do apprehend in Derogation of his Majesties 7th & 9th Instructions when seven did subsist in the Province wherefore such votes Extrajudicial.
4ly That the Governor by his general charge hath prejudged me himself and the next day brought on my Trial for a further Judgment.
5thly And lastly, because the Governors charge is a compound of ill nature containing nothing but general accusations without a proof of any one particular matter.
From the severall foregoing recited Observations, I beg leave to make this conclusion
That admitting the reasons contained in my 2d & 3d Exceptions to be grounds sufficient for excluding Mr Jenoure, the Lovick and Ed: Gale as Legal Judges on these Trials, that then and in Such case the Members Dissenting (vizt: Mr Ashe, Mr Rowan and Mr Harnet) was a Majority of two against my Suspension and therefore contrary to his Majesties 9th Instruction who is graciously pleased to direct our Governor not to suspend any of the Members of his Council without good and sufficient cause, nor without consent of the Majority of the said Council &c:
All which is dutifully submitted to your Lordships consideration, beseaching you if you should be of opinion that I have not merited this suspention, to grant me your favourable Report or Recommendation to his Majesty so that I may be restored to my place in Council thereby to wipe off from me and my posterity, that undeserved Loade of infamous
This mark of your Indulgence and goodness to me, will ever be Acknowledged as becomes