powered by google
Documenting the American South Logo
Colonial and State Records of North Carolina
Advanced Search Options
Memorandum from Nathaniel Rice and John Baptista Ashe to George Burrington concerning land grants
Ashe, John Baptista, d. 1734; Rice, Nathaniel, d. 1753
1732
Volume 03, Pages 383-385

-------------------- page 383 --------------------

To His Excellency the Governr in Council

Nathaniel Rice and John Bapta Ashe Esqrs Two of His Majesty's Council humbly shew

That His Excy the Governor hath issued out and given a very great Number of Warrants for Lands to sundry Persons, in undue and large Quantities, not observing the Rule of Proportion prescribed by His Majestys, of granting Lands by and with the Advice and Consent of the Council, vizt of fifty Acres only for every Person in the Grantee's Family. For all wch Lands mentioned in those Warrants the Governr hath taken for every fifty Acres the Sum of two shills and six Pence Virginia Currency in Silver or Gold: Wherefore We think Our Selves obliged, out of a due Sense of our Duty to his Most sacred Majesty to object against the same; And We do hereby humbly pray his Excellency that he would be pleased strictly to pursue his Majesty's Instructions to him in that behalf given; And that no Warrants may issue but to such Persons & in such Proportions as shall be agreeable to His Majestys said Instructions

We conceive Ourselves the more under a Necessity of thus humbly remonstrating this Matter to Your Excy for that (if this Method should be disallowed by the King) it may hereafter very much injure such People as have paid their Moneys for such Lands; but more especially for that it is not agreeable, but contrary to his Majesty's Instruction to Your Excy on that behalf which to his Majestys Council has by Yor Excelly been exhibited and shown

Reasons and Objections made and humbly offer'd in Council by Nath Rice and Jno Bapta Ashe two of His Maty's Council to the Governr & Council against the dividing Precincts and erecting New Ones by the Govr & Council alone without the Concurrence and Assent of the Assembly.

1st As every Precinct is to send a certain Number of Representatives to the lower House of Assembly, such a Method may be destructive of and subvert the present Constitution of the Legislature; which as it consists of an upper & lower House whose Powers and Privileges are separate & distinct they ought in such Points to be independent either of the other; more especially in so fundamental a one as is this of Representation For it stands to Reason that if a Power of altering the Form of Representation either by adding to, or diminishing the Number of Representatives, or by causing an unequal Representation be lodged in the Persons of whom the upper House consists; that then the Lower

-------------------- page 384 --------------------
House is dependent on and owes it's being, at least the form thereof (which is in effect the same) to the upper House; by which means the upper will be solely, (as it were) the whole Legislature. As for instance suppose the Govr and three of the Council on an Emergency to meet (We speak this by way of Supposition and for Argumt sake) and think it proper to divide a Precinct, whose Inhabitants for some particular Ends may be at such Governour's & Council Devotion) into ten Precincts; will not by this mean a Majority be obtained in the Lower House.

2. It is absurd to suppose that a Power of the part should be greater than or indeed equal to that of the whole Now as the Constitution of the Legislature must be antecedent to any Act thereof, it cannot be dependent on any such Act, much less on an Act of part; as indeed by this Method it would, in that the whole Legislature would owe its Being (at least the form thereof wch as We observ'd before is in effect the same) to the upper House; And this amongst others, We take to be the Reason, that the Legislature of Great Britain avoid (tho' many are there the Inconveniences ensuing from unequal Representation) endeavouring to remedy them, or touching on so tender and constitutional a Point.

3. Another Consequence of such a Method extremely absurd will be this: An Order of Govr & Council only will have force to supersede repeal and annull a Law: For if by Law a Precinct is limited & circumscribed by certain Bounds and by an Order of Govr and Council those Bounds are altered or taken away and new ones prescribed, is not this in effect repealing such Law?

4. We conceive such Busyness, as it relates to the Constitution of the Legislature, most properly to lie before the Governour Council and Representatives of the People in General Assembly; and as it is to be presumed they are the most competent Judges when such Precincts shall be necessary so it is that they will readily concur in erecting new ones, when they shall be so judged to be for the good of the public and Benefit of a competent number of Inhabitants

5. We are of opinion that this method of erecting Precincts, is not only illegal and may be attended with many evil consequences; but is also not warranted by his Majesty's Royal Instructions which forbids erecting new Judicatories without His Majestys Licence. Now by this Method new Judicatories will be erected. But if it were done by an Act of Assembly at the Prayer of the Representatives of the People the same would regularly come before His Majesty for His Allowance or Dissent.

-------------------- page 385 --------------------

6. We are the more Confirmed in this Our Opinion of the Illegality of doing it without the Consent of the Representatives of the People in General Assembly, from the General Practice of the Neighbouring Governments more particularly Virginia where many Precedents appear in their printed Laws of such Busyness being done by their Govr Council and Assembly And We are apt to believe our Gracious King (for we pretend not in the least to deny or even so much as to dispute the Royal Prerogative has given as full Powers to the Governr and Council of Virginia as to the Governr & Council of this Province Nor can We think it the pleasure of Our most gracious Sovereign (who on all Occasions has shown so tender a Regard to us his People that the Constitution of the Legislature of the Province should be on a more precarious establishmt than that of others.

On Argument in the last Council His Excellency the Governr seeming to have taken a Resolution to pass Warrants as before he had done which Method We humbly objected against in Council and prepared the foregoing Paper designing to have preferr'd it in Council; but the Council breaking up unexpectedly We were prevented putting it in But now finding that his Excelly still continues to issue Warrants for Lands in undue Proportions & contrary (as we conceive) to the Kings Instructions We think it our Duty to file this by way of Caution to the Secretary's Office; requiring and desireing the Deputy Secretary to prefer the same to his Excelly before he (the Dep Secry) subsign or make out any more Warrants Humbly praying his Excelly that if he shall think wt we object reasonable he would be pleased to have Respect thereunto.

(Endorsed)

North Carolina

Complt of Mr Rice and Mr Ashe against the Govr for granting too large Tracts of Land and dividing of Precincts.