To His Grace the Duke of New Castle one of His Majesty's Principal Secretarys of State.
The most humble Memorial and Remonstrance of Nathaniel Rice and John Baptista Ashe two of the Members of Council and John Montgomery Attorney General and Deputy Inspector and Controller General of his Majesty's Province of North Carolina.
May it please your Grace
We beg your Grace to permit us (by way of Apology for thus addressing you) to shew the reasons induceing us to this Method of representing to your Grace the State of this Province. George Burrington Esqrs Governor being conscious that his proceedings in the administration of the Government have been most arbitrary and illegal has used his utmost endeavours to prevent a true State of this Colony being exhibited to his Majesty not only by refusing to call Assemblys whereby the people might be enabled to remonstrate in a Parliamentary way, but also by his arbitrary acting and artfull management in Council in concert with a few Members of his own apointment and by means of a Deputy Secretary a creature of his and by him imposed in a manner upon his principal, he has so mutilated altered perverted and misrepresented things in the Journals of the Council that scarce any affair transacted at the Board appears in a true light. We therefore finding it improbable thrō these and many other artifices of the Governor that his most excellent Majesty will receive any true information of the affairs of this Province, think we cannot faithfully discharge a trust reposed in us by our most gracious King as officers of this Government unless we truly represent to your Grace the deplorable State of this Country; the many breaches of his Majesty's Royal Instructions and the greivances and oppressions Suffered by the people, humbly praying your Grace will represent them to his Majesty in Such manner as your Grace in your great wisdom Shall think fitt. What we shall represent to your Grace will be contained under these General heads.
1. His arbitrary exercise of power respecting proceedings in Council
2dly. His Arbitrary exercise of power relating to the Courts of Justice.
3dly. His arbitrary proceedings relating to the disposition of the Kings Lands
4thly. His disrespect to and insulting and abusing the Kings officers and others.
5thly. His illigal and arbitrary actions relating to the Extorting moneys from the Kings Subjects.
We proceed on the first General head.
1st. During a Session of Assembly after his arrival (the only one he has suffered to be since he has been in the Province) he assumed to himself and affirmed he had a power of acting and of voting as a member of Council and of the upper House of Assembly distinct from his power of Governor or of his Negative willed and ordained him by the King, and he thereupon proceeded to alter and rase Bills on their readings in the upper house without consulting the Council particularly a Bill relating to the appointment of Circular General Courts and when some of the Council in the most humble manner objected to such a proceeding, he flew into a passion, particularly in this case with John Baptista Ashe, alledging that from him of all men he expected not to have heard such an objection or to have received such usuage, expressing himself in an angry tone Sufficiently denoting his displeasure, thō the objection was made of the said Ashe in the most mild and respectfull terms
2dly. When by an order in full Council several Gentlemen of the best fortune, ability and character in the Country were nominated and appointed Justices in the General Commission of the Peace, the Governor afterwards believeing those Gentlemen would not be obsequious to his arbitrary dictates, or subservient to his ends, the said order by his artifice was left out of and not entered in the Journal of the Council and a commission was by him ordered to be made out by assent of Council wherein three Members only were present (and those three Such as are always conformable to his pleasure be it what it will) in which those Gentlemen were omitted.
3dly. The Governor being desirous of introducing Mr Lovick and Mr Gale into the Council pretends a very great emergency vizt: the appointment of a Chief Justice and assistants Mr Smith having withdrawn himself out of the Government without leave as is represented in the Journal of the Council the 27th of August 1731 when those Councellours were introduced. Now it is notorious and was publickly known that Mr Smith left the Province the beginning of the month of June so that there were six or seven weeks interveening his departure and this pretended Emergency Certainly this was time enough to summon the other
4thly. To cast a slurr on the characters of some particular Gentlemen and to give them needless vexation and trouble He has exhibited charges against them in Council causing them in the depth of Winter (not at the usual times of Courts or meetings of Assemblys of Councils) at their very great Expence and fatigue to travel two hundred miles to answer, and when they have appeared and in writing made answer to such charges and defended themselves and have prayed that as their charges were their defences might be entered in the Journal also, he by his sole power has refused and prevented the entry of such written defences and only enters short inferences from them of his own making (made out of and after such Councils are over) as their answers: whereby things are misrepresented in the Council Journal and the true state of such cases disguised, and several illegal and arbitrary proceedings of his, in such answers set forth prevented from coming to the notice of our most Gracious King and his Ministry. Such were the cases of Maurice Moore John Porter Edward Moseley John Baptista Ashe and several others whose answers thō they humbly requested they might be entered he has forbidden to be entered, the reason is plain; they contain matters which he would conceal, as reference being had to such answers will appear. These two last Articles out of a multitude of others which we could give (were we not afraid of trespassing on your Graces patience) will serve as well as instances of his misrepresenting things in the Council Journal as for his arbitrary exercise of power in it.
5thly. On the receipt of a private copy (not attested by any officer) of Mr Smith's complaint to his Majesty against him the Governor: he has proceeded to bring people before him in Council to declare whether they imployed Mr Smith to complain against him. In the choice of such to be brought before him he has generally hitherto taken such as he was pretty sure would either thrō fear or for other cause purge themselves for a denial, on so doing such have been complimented and had his thanksr Smith's memorial to his Majesty to which we refer, moved to it on the report of a lead mine being on them; The lands are known to be some of the most fertile in America and the Governor has (it seems) of them about forty thousand acres; but as to the report of the lead mine being on them we are confident it was never heard of till these solemn Declarations were thought necessary: and if true we cannot conceive that the mines should render those lands less valuable. There are many other (we forebear saying falsities) absurdities and irregularities in these his proceedings which we could point out to your Grace but forebear of being too tedious we shall at present decline it: If his Majesty shall think fit to direct a full and impartial enquiry; they will then appear.
We could give many other Instances under this General Head but least we be too tiresome to your Grace we shall proceed to the second general head respecting his arbitrary exercise of power relating to the Courts and administration of Justice.
1st. With respect to the Courts and his own administration of Justice, his proceedings are without example. He has appointed a Man Chief Justice of this Province whom he has often declared to be the greatest rogue in this Country and we can truly say is unskilled in the Law and in all respects unqualified to execute that post; and four assistant Justices of the Supreme Court; one of whom can neither read nor write and all very weak persons and unskilled in the Law but Such as he imagined fitt for his purpose and the event has to the grief of this Province shewn that he was not mistaken.
He frequently appears in the Courts either to influence them, in favour of his friends or to the prejudice of those he is displeased with; and this not by his bare presence only, but by openly speaking to and directing the Courts according as he is inclined to the party. So intent is he to crush those he has conceived a prejudice against that he has forbidden the General Court to admit any person to plead there but Such as Shall obtain his licence, athō there is no law requireing Such licence. By whichr Moseley the oldest practioner of the Law in this Province (who was licenced and practiced near twenty year past) appeared and made a defence for some persons who were indicted by the Governors means for supposed facts said to be done before his arrival in this Government and which the party said to be injured in open Court declared was not of his promoting The Governor after the Jury were gone out on that Trial came down out of the Gallery (where he and his Lady appeared to influence the Court and Jury) to the Court table where Mr Moseley stood with his hand on the Bible being about to take the Oaths: and notwithstanding the said Moseley prayed the protection of the Court he ordered the Marshall to take the said Moseley out of the Court and to bring him before him; and in Court commanded all his Majesty's subjects to assist the Marshall, and when Mr Moseley was brought before him he treated him with great scorn and contempt offering him many indignities; and commanded the Marshall verbally to commit him to prison. At another time viz. at the General Court held in July last some debate arising in Court about the granting time to the Deft after oyer prayed of certain writings mentioned in a Declaration where the Governor was plaintiff and on which occasion the Governor and his Lawyers pressed for the Defendant to plead immediately, the Defendant having no Lawyer Mr Moseley told the Court that during the many years he formerly practiced as a Lawyer he never knew it refused. The Governor went out of Court and immediately after commanded the Marshall to take the said Moseley into to custody and carry him to Goal for what he had spoken in Court, althō the Court declared they were no ways offended at what he had spoken: accordingly by the Governor's verbal order he was carryed to the common Goal and there confined, untill by motion to the General Court for a Habeas Corpus he was brought before the Court and discharged by the unanimous Judgment of the Court, consisting of the Chief Justice and three assistants; for which they have (as its said) fallen under the Governours high displeasure, who declares he has power to commit any person to prison without cause shewn for twelve hours, and indeed he has exercised this his assumed power in another case vizt: in that of Doctor George Allen a Physician whom he committed and confined in the common Goal ten hours without shewing any cause, and before a Warrant or Mittimus was delivered to the Goaler. The severe usuage of Mr Moseley is the more to be taken notice of in as much as for near twenty eight years past he has been an Inhabitant
To these Instances may be added his eagre desire of Serveing his favourites: So partially favourable is he to Mr William Little (a person whom he consults on all occasions relating to the King's Business tho' there are many notorious complaints against him for injustice and wrong done to the King as well as to the Subject) that lately in a case vizt. Rowell against Jones at his the Said Littles Instance he granted a writ as Chancellour (without any preceeding Suite or Bill brought or filled in Chancery by the Plaintiff and without notice given the Defendant whereby he enjoyned and commanded the Officer to oust or put the defendant who was bona fide a purchasor and actually in peaceable and quiet possession out of possession, and this without any view or inquest of forcible Entry; there being none indeed So much as pretended and to put the Plaintiff (who was only Wife of the Vendor and had not the least Title or interest in the Lands Sold) into possession which by the Officer was accordingly done. And of this when the Attorney General complained to the Governor and Council Setting forth what a dangerous precedent it might prove, and how grievous a practice it might introduce, and praying relief in behalf of the defendant he was denyed it or at least he was delayed being put off as was pretended for want of a full Councill (which for Several reasons he then prevented as tis thought its being full) tho the Act was committed or done by himself Solely, and the Attorney General was insulted and abused having much reproachful language bestowed on him and the lye given him in Council by his Excellency when he had asserted a Truth as was apparent, by the record in the Court of Chancery. Thus he acts in behalf of his favourites: but when the case comes to be his own he Sticks at nothing to gain his purpose, as in the case of Mr Porter, who having obtained a Patent for Some
Some months after the arrival of the Governour in this Province seven Negro Slaves were brought into Cape Fear River and sold to sundry persons soon after it was reported that they were stolen from the Spaniards settled at St Augustin. As soon as the Governour had notice of that report he took those slaves from the persons who had purchased them and sett them to work upon his own Plantation with design as he then declared, that they might be secured for the Spaniards; but (as it plainly appeared afterwards) he sole design was to appropriate them to his own use; for not long after the Governor of St Augustin in conjunction with the owner of those Negroes appointed an Agent to demand and carry them to St Augustin who according to his Instructions, applyed to the Governour and demanded the same: but so was he from complying that he absolutely refused to deliver them, pretending they were the property of those persons who bought them upon their arrival in this Province. Thus when the Purchasors who bought them he insisted they were the property of the Spaniards: but when the Spaniards, his pretence was they were the property of the Purchasors; on such pretext he keep them a long time, till most of them have escaped and are lost to both partys. This proceeding of the Governor the Inhabitants upon Cape Fair River are apprehensive will be highly resented by the Spaniards,
3dly His arbitrary proceedings relating to the disposal of the Kings Lands The Governour by his Majesty's commission is impowered to settle and agree with the Inhabitants for lands &c and to grant them by and with the advise and consent of the Council, and that such their advise and consent is necessary, is also plainly implyed by his Majesties 42 & 43d Instructions to his Excellency: yet so arbitrary are his proceedings herein that he grants Warrants contrary to the Kings Instructions in undue proportion to whom and in what manner he pleases without consulting or requiring the advice and consent of the Council; whilst he refuses others who want Lands and are ready to comply with the Kings Instructions: Thus instead of impartially granting Lands according to the Kings Instructions to such as are capable of improving them he uses his power partially and dispences Warrants for the Kings Lands as acts of favour to such as by complying with the Terms and measures render themselves well pleasing to him: This is not all he exacts two shilling and sixpence for every fifty acres he signs a Warrant for; when nothing like it is expressed or intended by the Kings Instructions and this he requires in Silver or Gold, the scarcity of which is so very great in this Province that many people are forced to procure it (with much trouble too) at double and treble the real value in currency; while others are not able to procure it at all. Thus what his Majesty is graciously pleased freely to give unto the people he extorts and demands a consideration for, to his own use. The consequences of this Method are very prejudicial as well to the Kings revenew as to the subject: To the Kings Revenew in that, there are many Plantations of which people were put into possession by and pursuant to an order of the Governor and Council in the time of the Proprietors (Mr Burrington then being their Governour) till the Proprietors pleasure should be known as to the granting such lands in Fee these persons as they have generally been at great expence at cultivating improving and occupying such Lands, continue in possession; and as Gold or Silver is by the Governor insisted on and is not possibly to be had they cannot take up their lands on the tenure his Majesty proposes and graciously offers, and so the King has already been deprived of near two years Rent of such Plantations; except for some for which as the possessors could not possibly procure gold or silver; Warrants have been granted to others (and those chiefly the Governors creatures) whereby
4thly We shall now proceed to the 4th General Head vizt his disrespect to and insulting the Kings officers and others.
In the first general Assembly after his arrival he frequently in Council, or the Upper House used menaceing speeches and insulted Mr Chief Justice Smith particularly on a complaint of contempt offered to Mr Porter then one of the Council, by one Mackey. The Chief Justice Saying the said Mackey might be committed for the contempt: The Governor asked him where he had learnt that law. told him he knew nothing of the Law; explained in a contemptuous manner, Saying, a pretty Chief Justice! repeating the words several times; bade him give an Instance of any one committed for such contempt several Instances were given of commitments of contempts to persons of a Lower House of Assembly, a fortiori of an upper house: Mr Smith much agitated and disturbed with such treatment rose from his Chair and was about to withdraw from Council the Governor obliged him to sit down again, again used reviling language and scoffed at him. During the same sessionsr James Castlelaw to whom it is notorious he bears implacable malice. The Attorney General is the Subject of his repeated Scoffs and jests: he is frequently bestowing on him and that publickly Nick-names and terms of reproach: He forewarns people from keeping him company, and lets them know, if they are seen in it, they will incurr his displeasure; nay he will openly call to persons in the Street, in company with Mr Montgomery and tell them they are in badd company, and letts them know, if they are seen in it, they will incurr his displeasure nay so great is his hatred to him, that he never consults him in the Business of the Crown, no not even when he is the proper Officer to be consulted, but Mr Little (in his representation before mentioned) a person notoriously disaffected to the illustrious House of Hanover) is in all such cases applyed to and by that means executes a large share of the Office of Attorney General, and enjoys the greatest part of the perquisites.
To Mr Harnet one of the Council (after having Signed a paper together with Mr Ashe in answer to one of the Governors put to them by the way of query) he writes a letter to let him know that he was no longer his friend but had conceived a resentment against him equal to the baseness and ingratitude (such are his expressions) of him and his conceited scribler. He, and Mr Harnets own House called him Fool, Blockhead, Puppy, Ashes, Tool, and this without any provocation or any thing then Said by Mr Harnet. We could give you Instances of many most abusive and scurrilous letters written to Several gentlemen of the Province without any provocation but we shall not trouble your Grace with such Trifles but proceed to the 5th and last General head vizt:
5thly His illegal and arbitrary Actions relating to the extorting moneys from the Kings subjects.
By the ancient laws of this Province, there was a fee of twenty two shilling and sixpence in silver money or 180 weight of Pork payable to to the Governour by every foreign Deckt vessell trading to this Province; on the revisal of the Laws in 1718 the same fee was again established, some of the Governours little regarding that Establishment (and fresh Pork or Silver not always to be had) took of the Masters of Vessells a
Another Instance of his Extortion is the case of a poor old Man, one Lewis Johns, who before Mr Burrington's departure last out of this Province had for a Bill of Exchange sold him twenty cows and calves to be delivered in the fall and the cows to be big with calf again. The Man after Mr Burrington was gone being given to understand the Bill would be protested for that reason before forbore delivering the cows and calves till the spring was twelve months after, then (the Bill being paid) instead of twenty he brought and delivered to Mr Burringtons overseer thirty cows & calves: by which (in the opinion of all indifferentr Sir Richard Everard's Government this Lewis John's being assaulted by a drunken man with a naked knife in his hand, Lewis John's unfortunately struck the man after which stroke, in a little time he dyed thō it was the opinion of most people present that his death was not occasioned by the stroke there being no mark or sign of hurt, and the man very sickly of a weak constitution and on opening of his body by a doctor found to be much disordered and decayed in his liver and other internal parts. However Lewis John's imediately surrendered himself to Justice and in order to his Tryal he was conveyed in from Cape Fair to Edenton to the General Court and so were the Evidences The Grand Jury found the Bill Ignoramous and he was discharged: Since Governour Burrington's arrival he went to this poor mans house demanded of him forty or fifty cows and calves more: the man denyed paying him any more alledging he had made ample satisfaction, whereupon the Governour called him old Rogue, Rascall, Villain and many other hard names, threatened to ruine him, told him he would have him tryed by a Jury of honest men, alluding to his formal Tryal concerning the death of the Man; and at last by his threats (an attendant and creature of his at the same time coaxing and persuading) he extorted from the poor man his bill obligatory for the payment of twelve cows and calves more and then he no longer insisted to bring him to tryal.
The Governour had formerly a fee of ten shillings in silver for marriage Licences, but such Governors exacting largely of persons seeking Licences (as silver was not to be had) that fee was established by Act of Assembly at twenty shillings in Bills: For which the Governor extorts five pounds and such is his practice of disposing of such Licences that their end vizt: (the preventing of clandestine marriages) is entirely defeated. for without consulting who takes them or directing any security to be taken on delivering them out he makes Merchandizes of them, exposing them to sale to any purchasor at Ordinarys ale houses or Publick Taverns, employing people keeping such houses as his Brokers to dispose of them through the Province; by which means any young persons may and many actually are married without and even contrary to the consent of their Parents or Guardians.
These of many more instances of the like nature which we could give, we have presumed to lay before your Grace that you may judge how consistent his Actions are with justice his duty to the King, regard to his Majesty's Interest, and the Liberty and Privileges of British subjects. We again most humbly intreat your Grace so to represent this Matters to