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Memorial from Nathaniel Rice, John Baptista Ashe, and John Montgomery concerning their dispute with George Burrington
Ashe, John Baptista, d. 1734; Rice, Nathaniel, d. 1753; Montgomery, John, d. 1744
November 17, 1732
Volume 03, Pages 375-382

[B. P. R. O. B. T. North Carolina. Vol. 9. A. 26, 27 and 28]
RICE, MONTGOMERY AND ASHE vs. BURRINGTON.

To the Right Honourable the Lords Com̄issioners for Trade & Plantations.

The Humble Memorial of Nathaniel Rice Secry & John Baptiste Ashe Esqrs Two of His Majesty's Council and John Montgomery Esqre Attorney Genl and Deputy Inspector and Comptroller Genl of the aforsd Province.

May it please Yor Lordships

We sometime since sent to your Lordships a Memorial, or Remonstrance against several illegal and unwarrantable Actions of George Burrington Esqre, Governor of this Province, which we thought it our duty to do, for that we plainly perceived the Governor used many Arts to

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prevent a true state of the Case of the Province being exhibited to yor Lordships. The same reasons still continueing, and the Governor proceeding on to still more extravagant Actions, we beg we may not offend your Lordships, in presenting this Additional Memorial; & we hope we shall be more readily excused, in that we are now forced to fly to your Lordships for Protection, for so great is the wrath and malice, which he has conceived against us, for opposing him in what we thought Arbitrary, Illegal & destructive to the King's Interest, that he sticks at nothing to crush & ruin Us, as well as others who submit not to his violent & arbitrary Acts & Measures.

1st In our last we observed to yor Lordships that the then Chief Justice and the rest of the Judges of the General Court, had fallen under the Governor's high displeasure for acting pursuant to the King's Instructions concerning the Habeas Corpus Act, as became them in relation to his illegal Commitment of Mr Moseley, (tho' they were scarce ever before known to oppose his Will:) the Consequence of which has been: the Chief Justice has been so threatened that he has resigned, and the Assistants without any such Ceremony or indeed so much as a Charge or Accusation being exhibited against them, have been Arbitrarily removed; directly contrary to His Majesty's 44th Instruction to the Govr, which expressly forbids the displacing or arbitrary removal of Justices without cause: and this he proceeded to do with only two of the Council, vizt Mr Lovick & Mr Gale (one of which had been introduced into the Council contrary to His Majesty's 7th Instruction, there having been then seven in the Governmt,) except the Surveyor General of the Customs, a Stranger and just arrived in the Province when a full Council was at the same time sum̄on'd, and did meet Time enough to have appointed a Chief Justice & Assistant to have Transacted the Business of the Court: But the Govr revolving in his mind what Designs he had to execute found it necessary to displace them, to make room for Instruments more proper for his purpose, as well as to be Examples of his Vengeance on Judges not entirely subservient to his will. Accordingly displacing them he put others fitter for his Designs in their Places; vizt William Little Esqre, Ch: Justice Roger Moor, Mr Owen Jno Worley, Mcroro, Scarboro', all these (except Rog. Moor, who he was sure would never qualify or attend, and Mr Owen a very weak & ignorant man) of bad (not to say infamous) Character. The Chief Justice is a Person against whom the whole Province (as it were) has exclaimed for his unjust, illegal and Fraudulent Practices. He has been publickly accused by Assemblys of this Province of Bribery, Extortion and other great Crimes, of which he

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has never acquitted himself. He is now under accusations of Fraud and Injuries done both to the King & Subject. Many are the Complts of Multitudes of People against him for many illegal Acts and violent Oppressions both in his private Capacity, and when he has acted as an Officer. It is no wonder that a Person so obnoxious to Justice in hopes of being sheltered by the Govr therefrom (as indeed he is) should become entirely subservient to him, and obedient to his Dictates and Com̄ands.

Of a Court consisting of Persons so entirely devoted to him, most People dread the Consequences; and the next Article (which is Mr Ashe's Case) will be an instance how much reason they have so to do.

2ndly The Governor when he was last at Cape Fair, it being about the middle of Septr last, sent his servants, & with a violent hand took up and drove away two Mares of Mr Ashe's, branding them with his own Brand. Mr Ashe coming into Court the last of October (there being a great Concourse of People at the Court) declined moving in the Affair, till the last of the Court, when the Multitude were gone, that it might plainly appear he had not the least design to irritate the People; and then in the Council Chamber before the breaking up of the Council (none but the Governor and Council being present) he in the humblest manner addressed himself to the Govr telling him that he was well informed his Excelly's Servants had by his Orders taken up two of his Mares and branded them; that he thought it advisable to apply himself to his Excelly on the Occasion, and to pray him to restore them: The Govr flew into a violent passion, and using much scurrilous & reproachful Language to the sd Ashe, came up with his face close to Mr Ashe's & shaking his head at him in a jeering taunting tone & manner called him (repeating the words often) pretty fellow, very pretty fellow! threatening at the same time to take some of his Negro Slaves. Mr Ashe mildly answered he was Govr and might say what he pleased, that he would not be provoked to return his ill Language; but that he hoped his Excelly would not be offended (since he had refused to restore the Mares) if he sought his right by a Course of Law. The Governor answered No he might go to Law & welcome: Whereupon Mr Ashe the next day filed an Information in the General Court on an Act of Assembly of this Province giving Relief in such cases; and this methodly Information he the rather chose, because it would not touch or effect the Governor's Person, the original leading Process here otherwise being generally by Capias. Some time after this (Mr Ashe being absent) the Governor came into Court and calling for the Information read it & used much reproachful Language to Mr Ash's Council. The next

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day Mr Ashe appeared again and the matter was debated in Court; Whereupon the Court gave it as their opinion that such suits could not be brought against a Govr in the Plantation but must be brought at home in England, agreable (as they alledged) to the Statute of XI and XII W. III. Cap. XII. for such was the Exposition of that statute. We think we may be allowed to assert that this Judgment is most preposterous and extravagant, when we shall have shown how great absurdities attend it. It is plain that law was designed for relief of the Inhabitants of the Plantations against Governrs com̄itting great Crimes & Offences, giving Power to try Causes in England which before with respect to locality or other Circumstances (it might be disputable) were not cognizable in the Courts there; or where it might be thought that a Govr in Consideration of the Great Power wherewith he was invested, should deter or prevent People from seeking their Right. But does it from thence follow that Governrs are exempt from answering for Torts or Injuries done in the Plantations, anywhere but in England. Surely the Lawgivers by that Statute never designed to screen Govrs from Persecutions, or to prevent suits for small Trespasses where the party injured would venture to try his cause in the Plantations: To say so were to say Govrs were to answer in England for great oppressions, but that if they would confine themselves to smaller trespasses or Injuries that Statute was a Dispensation for them; & as in this Case of Mr Ashe, the damages he sues for are not above £15 sterl: it is not worth his while to sue in England to recover them, where he would be perhaps at the Expence of £200 sterl: before he could recover: he had better sit down with the first Loss; and so the Govr may go on to take by violence a horse from one, a cow from another, and as he shall think proper, whatever other small matters or things he wants from others; and this Statute instead of relieving the People would be a bar to it, and support such Governor in his oppressions should he proceed (being warranted by such a judgement) to lay the whole Country under (as it were) a Contribution.

The obtaining such a Judgmt in his favour one would have thought might have contented the Governor for that time, but matters were so concerted between him and his Justices that im̄ediately on Mr Ashe's coming out of Court, he was apprehended by a Warrant (ready prepared) from Judge Owen, for publishing a scurrilous Libel, such was his information stiled; (tho' all manner of Scurrility or even Termes Aggravating the Offence, were carefully avoided therein) and was carryed before the Govr and Judge Owen (tho' Mr Ashe desired to be carryed before the Chief Justice who better understood the Law, but was denyed;) the Govr directing the Judge to demand of him One Thousand Pound sterl: Bail

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for himself, and five hundred each of his securities, to appear at March Court then next following, to Answer. The Judge took the words from the Governor's mouth, and repeating them, demanded the same Bail, without ever examining into the Cause of Com̄itmt: Mr Ashe refused to comply with so unreasonable a Demand; whereupon he was ordered away, and im̄ediately carryed to the Comon stinking Goal, and thrust in among the comon Criminals, by virtue of a Mittimus (ready prepared too,) from the sd Judge Owen, there to continue till he complyed with that Demand, it being a Condition in the Precept and what rendered it illegal. Mr Ashe petitioned the Chief Justice for a Habeas Corpus, and after lying sometime in Prison, (vizt about four hours, during which time the Chief Justice had been with the Governor) he was brought before the Chief Justice, who refused to examine into the legality of the Cause of Com̄itment, (altho' the King by his Instructions, and the Habeas Corpus Act itself directed it;) for he well knew no person was punishable for seeking a Remedy by Law for any Injury he conceived done him; and indeed there is great reason to believe that it was purposely contrived, that Mr Owen should do this drudgery (which could not well have been done by one that knew better) with a view of engaging Comr Walker (whose nephew Mr Owen is) to use his Interest for his Nephew's sake to support so illegal and arbitrary an Act Mr Little therefore denyed enquiring into the Cause of Com̄itmt alledging it was already done by One of the Judges and only mitigated the Bail, taking the one half of what was before demanded. As it is plain (having Justice so devoted to him) he design's Mr Ashe's ruin, and as it is very notorious that Mr Ashe has incurr'd all this his hatred and Malice, for only opposing him in his many illegal Acts; More especially in his Breach and Contempt of the King's Instructions relating to his Arbitrary and undue disposal of the King's Lands; he begs leave to throw himself under yor Lordships protection; desiring nevertheless no favour if it shall appear upon a due and impartial Examination, that he has acted otherwise than as he was, (being one of his Majesty's Council,) in duty bound; or than according to Law; or than as became an honest man. And what necessitates him in this manner to beg yor Lordships protection is, that the Governor, (notwithstanding the Judgmt of Court refers him to Great Britain for relief) has taken an Effectual method by holding him so long a time (& no doubt it will be continued, if thought necessary,) under such Bail to prevent his prosecuting that Affair, as well as appearing as an Agent for the Country, most of the principal Inhabitants (for want of an Assembly,) having desired and Impowered him so to do, and to Represent their Grievances.

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The Govr having Exhibited a Charge in Council, against Mr Montgomery Attorney Genll of this Province, he was com̄anded to answer by the 31st day of October last; in obedience thereto he filed his answer upon the day appointed. The Council thereupon proceeded to a hearing of that Affair; and the charge and answer thereto being read, a witness was examined, and an Affidavit read in support of the charge; and the next day appointed for Mr Montgomery to produce his witnesses, and for reading several Depositions, (sworn before the Governor,) in his Defence. But his Excelly perceiving his innocence upon every Article would plainly appear, and that the Council, (tho' that the Majority were his creatures,) would not be prevailed upon to do so manifest an Act of Injustice, as to suspend him; he drop'd the Prosecution and abruptly broke up the Council, by which means the Attorney Genll had no opportunity of having his witnesses examined, or Proofs read in Council. And his Excelly being resolved to make use of every method, he thinks may either ruin or injure Mr Montgomery, has caused the Charge with the Depositions taken against him to be inserted in the Council Journal to be sent home, (without inserting the Answer thereto,) in hopes that a Charge being seen therein by His Majesties Ministers, and no Answer thereto, they would believe he had submitted, or could make no Defence to the Charge.

We are sorry to say this is his Method of proceeding in almost every Case that comes before the Council; & so far is he from being ashamed of such Practices, that he values himself upon them, as instances of his great abilities in Politicks, and the Arts of Governmt

4thly The Governr has, (on pretext of some former old Precedents in this Province, of the Governor & Council appointing Precincts, where no Precincts before were, (the legality of which, more especially of late years, has been by the Assemblys deny'd;) proceeded with the advice & consent of such of the Council as are of his own Appointment, & never oppose his schemes, be they ever so absurd, to divide old Precincts established by Law, & to enact new Ones in Places, whereby his Arts he has endeavoured to prepossess People in a future election according to his desire, his Designs herein being (as we verily believe) either to endeavour by his means to get a Majority of his creatures in the Lower House, to support him in his arbitrary measures; or if he should fail therein, (as it is more than probable he will) that this should be a stumbling Block, to prevent the Assembly's proceeding to busyness he being well assured from what has passed in former Assemblies, that the Assembly would object against such an invasion of their Priviledges, in so momentous a point as that of their Constitution, the first thing they

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should do after their meeting; and so perhaps break up without proceeding so far as to move in Matters which (it is to be thought) he is willing should not be heard of or represented elsewhere. For we are well assured that he has ernestly promoted such Petitions, (even forming and writing some of them himself,) where there was no Necessity for such Precincts on the contrary some have not above thirty families inhabiting them, and can scarce make out a sufficient number of People for Justices and Jury. These Considerations moved Mr Rice & Mr Ashe to offer in Council Objections and Reasons against this Method, which (as we have much reason to suspect,) he will not suffer to be entered in the Council Journal, to be transmitted to your Lordships; We beg leave (having enclosed a Copy thereof,) to offer the same to your Lordships Consideration.

5thly He takes occasion at Publick Meetings of People, as at Courts, or the like, before great Audiences, of reflecting on, abusing, reviling, detracting and defaming Gentlemen without any regard to Truth; sometimes when they are present, at others when they are absent and cannot speak in their own Vindication, on purpose to injure them in the opinion of the People. Such is the Case of Mr Moseley, Mr Ashe, Mr Montgomery, Mr Swan etc. Tho' this Matter otherwise than as it is inconsistant with good-manners, ill becoming the Governor of a Province, and very ungrateful and provoking to the Parties, is scarce worth the Representing. For we assure your Lordships he is now so notoriously known to have no respect to Truth, that no man suffers in his character from any defamatory Report of his, let it relate either to Gentlemen in Great Britain, or in this Province.

6thly Since our last Remonstrance to your Lordships, notwithstanding our frequent Applications to him, and objections against his arbitrary Disposal of the Kings Lands, he has solely proceeded to issue many hundred Warrants in undue Proportions, taking to himself two and sixpence in silver or gold Virginia Currency, for every 50 Acres. And this last Genll Court tho' the Council unanimously gave it as their opinion that Warrants ought to be issued pursuant to his Matys Instructions, & not otherwise; yet he declared his Resolution notwithstanding to pursue his usual Method which he perceiving Mr Rice and Mr Ashe designed to protest against, abruptly broke up the Council, not meeting them afterwards during that Court or Term; so that they were obliged to file the enclosed Protest by way of Caveat in the Secretary's office, to prevent (if possible) any more warrants issuing in such an arbitrary manner, and so the Consequences which would attend or ensue on such a Practice; vizt either the defeating the King's Intent of seating the uninhabited

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parts of this Province, or very great injuries to the Purchasers of such warrants, if His Majesty should not approve of them.

This so highly provoked him that it is believed to be one of the Principal motives of his violent Proceedings against Mr Ashe, purposing it is to be feared, (if possible) to crush and ruin him, before he can be relieved by, or shelter himself under yor Ldps (and by yor Ldps means His Matie's) Protection: As also of his grossly abusing Mr Rice, he having used to him very scurrilous Language. A Copy of the aforsd Protest & Caveat, we send herewith to your Ldps, wch he would not receive when offered to be given him by the Dep: Secy, who informed him of the contents but he proceeds still to issue warrants in the same manner to the Purchasers, let the quality be ever so large, or disproportionate to the Rule prescribed by His Maty He uses many Wiles & Artifices to asperse Gentlemen & to blacken their Characters, at the same time endeavouring to impose by his Misrepresentations on the Ministry, particularly by exhibiting charges agt them in the Council Journal, & when they answer, stifling their answers, or making answers for them, as best suits his purposes; as will be apparent from some inclosed Answers of Mr Montgomery, Col. Moseley, & Col: Moore; which are true & genuine answers by them made, tho' by him either wholly suppressed or altered; which will be evident by comparing them with the Council Journals, a very vile & wicked Practice. We give those Instances which now occur, as a specimen, out of many of the same Nature which (but that it would be too tedious) might be added. Now we have great room to believe (Nay in some cases we are assured) that he has used us in the same manner, and has endeavoured to blacken our Characters to the utmost of his Power. We therefore (after having assured yor Ldps that we have acted in our several stations as we were bound by the Ties of Duty to our Sovereign Lord the King, & the dictates of honour & conscience, beg your Lordships before you shall give ear to any false suggestions of his to our discredit or Prejudice, that we may be informed of them; so as to have an opportunity of vindicating ourselves from such aspersions; And we doubt not but your Lordships will pronounce us quite other men, than (it is highly probable) he has represented us to be.

We are with the most profound respect,
May it please Your Lordships,
Your Lordships most obedient humble servants.
NATH: RICE.
JNo BAPT: ASHE.
JOHN MONTGOMERY.

November the 17th 1732.