Governor Burrington's Paper in Relation to the Erecting of Precincts.
Mr Rice and Mr Ashe delivered a paper at the last Council containing reasons and objections &c against erecting new Precincts, by Governor & Council without the concurrence and assent of the Assembly: in this my Answer I shall endeavour to refute their pretended reasons and objections. But first it may be proper to give some account of the Precincts lately erected, and then to relate in what manner it has been customary, to make Precincts in this Government.
Some time after I came into this Country with His Majesty's Commission, the People inhabiting on white Oak river and Onslow river and parts adjacent presented a Petition to me and the Council, praying they might be erected into, and made a new Precinct, the reasons the Petitioners sett forth appeared so fair and just that what they desired, was granted, vizt they were made a new Precinct by the name of Onslow, which Precinct contains a square of above fifty miles, and will soon be (in all likelihood) one of the most considerable in this Province.
The people on the south side Roanoak River and those on Tar River petitioned about a year since to be erected into a new Precinct, which was also granted; and is known by the name of Edgecombe Precinct, and contains so much land that I hope in a few years to see two or three grow out of it.
Another Precinct was established on the N. W. River above Cape Fear by the name of Bladen, on the Petition of the Inhabitants, this last in process of time will be divided.
I omit setting down the reasons contained in the forementioned Petitions because they are in the Council Office, and may be read by any man.
Mr Rice and Mr Ashe have by way of Discent given reasons and objections in writing, against making new Precincts, by a Governour and Council without the concurrence of the General Assembly as if it was ar Rice and Mr Ashe present and insinuate that the erecting new Precincts by a Governor & Council is an innovation and a breach in the Constitution of this Government. I shall prove the same has been usual, and the constant custom from almost the first settlement of this Province, and sure I am, that the Inhabitants have enjoyed the fullness of Liberty, under this form of Government, without apprehension or suspicion of being deprived of so valuable a Blessing; but now it seems, Mr Ashe has made a discovery and let Mr Rice into the secret (vizt) that the present Governor and Council have for the ease of the people in several parts of this Province acted in like manner, as former Governors and Councils did upon the very same occasions (I think to their just praise) And it came to pass that a paper was wrote and signed by Mr Rice and Mr Ashe, and by them produced at the last Council, to which I promised an Answer, when we met again, and doubt not of giving full satisfaction to all unprejudiced Auditors, and Readers of the justice and regularity of my proceedings, and the Councils also in relation to this affair.
Nevertheless it is my opinion the motives that induced Mr Rice and Mr Ashe to publish their paper, were to disquiet and amuse the People, and to shew their zeal for the support and augmentation of the Power and privileges of the House of Burgesses, nay further to carry them to a [point] hitherto unknown and unthought of even in North Carolina, how well it becomes them to behave in this manner I leave to the consideration of the other Members of His Majesty's Council of this Province, and proceed to recount the methods used of erecting Precincts in this Government as I find them in the Council Books.
After the Charter was obtained from King Charles the second by the Lords Proprietors, their Lordships agreed upon a form of Government which was called the Constitutions of Carolina, which every Officer in their service, every Magistrate and every Member of Assembly was sworn to maintain. By these Constitutions made by the Proprietors, without any Assembly, the Province was designed to be divided into eight Countys, and each of these Countys was to contain four Precincts and each of those Precincts was to send five Representatives to the General Assembly, accordingly the County of Albemarle was settled on this plan, and twenty Members sent from the four Precincts (there being no more at the first Appointment in that County) The twenty Representatives
Had these Constitutions contained, as Countys were settled and laid out (which the Proprietors were then the only appointers of) the same number of Precincts, must have been made in each County and the like number of Representatives, must have been sent to the Generall Assembly till all the Countys had been settled, and no disputes of this kind could have happened. But the Lords Proprietors having thought fit to abrogate those Constitutions and no other Precincts being erected besides those in the County of Albemarle, the method from that time has been for the Governor and Council as the settlements increased to erect new Precincts, which has always been done upon the Petition of the Inhabitants, and by this Authority only, four Precincts were at different times formerly erected, in Bath County, and one more four years since; These continue by the same authority, Precincts to this day, nor was the validity or regularity of such appointment ever doubt'd till very lately. In the year 1715 the Generall Assembly were so far from questioning the Power of the Governour and Council in that Affair, that by a Law then made they did allow those Precincts erected by the Governour and Council to be regularly appointed and in that Law took great care to prevent any unequal Representation. It being then enacted that for the future every new Precinct which should be made after that time was to send but two Members to the Generall Assembly, which must certainly mean and intend Precincts made by the Governour and Council, as former Precincts had been made, otherwise it should have directed in what manner Precincts should be made for the future, as well as what number of Members should be sent from such Precincts. This makes it clearly appear that the Assembly allowed, nay did not dispute at that time the Power of the Governour and Council in erecting new Precincts without their concurrence otherwise they would certainly have made some Provision on the occasion, as they did to prevent five Members, going to each of the new Precincts But they well knew that the manner of appointing Precincts by the Governour and Council had always been the practice, and seemed satisfied with the Provision they made for lessening the number of Representatives, to be chosen in the new Precincts; and thought what was then done sufficient to prevent the consequences now charged upon myself and the Council and the absurdity of the method in making new Precincts by the Governour and Council.
After the passing this Law to prevent the new Precincts from sending five members, as those appointed, by the Constitutions did. The Governour & Council as the settlements enlarged appointed other Precincts which still remain by that appointment, nor did the Assembly ever interfere in this matter till it was referred to them by the Governour and Council for the following reasons. About the year 1722 the settlements in the Precinct of Chowan, one of the four Precincts in Albemarle County, erected by the Lords Proprietors Constitutions were so much extended, that the Inhabitants settled on Morattuck River petitioned to be erected into a Precinct, separate from Chowan, with the same Preveledges as the other Precincts of Albemarle County enjoyed; to which many objections were made by reason of the Act of Assembly before mentioned, which it was thought the Petition was not conformable too, therefore it was laid before the Generall Assembly and a Law passed for making them a Precinct with the same Preveledges, as the other Precincts in Albemarle County had and enjoyed (vizt) of sending five Representatives to the Generall Assembly. This is the only instance, one of thirteen Precincts, now established in the Province, was erected by an Act of Assembly, all the rest were made either by the Lords Proprietors or their Deputys (the Governour & Council) or the Governour & Council appointed by the King. After this will it not be thought strange that two Members of His Majesty's Council should make so many objections to the Governour and Councils using an authority always exercised by them, And as it has been the constant practice, they have a right to do, before His Majesty's royall commands forbid the same or a Law is made to the contrary.
This plain account of the Precincts that are now in North Carolina, and the manner of their being erected, I have fairly and truly deduced & stated, am certain Mr Ashe knew the same, as well as any man in this Province. Yet so it is that he and Mr Rice with their usual modesty and veracity term the proceedings of the Governour and Council, in making new Precincts at the request and on the humble Petitions of the Inhabitants, altering the form of the Representation destructive of the Government, illegal, unwarrantable, and subverting the Constitution. These men ought to have strong reasons to support so weighty a charge those they assign will fall far short, as will be proved in the following part of this paper.
Messrs Rice and Ashe make one thing very plain by their writing (vizt) that they desire to be thought Advocates for the People and insinuater Rice and Mr Ashe are sworn Members of His Majesty's Council in this Province & have read my Instructions; one of which is a Command not to suffer Assemblys exceed their due bounds; should the Assembly claim it as their sole right to erect Precincts, in the new settlements, and declare that it ought not to be done, by an Act or order of Government Mr Rice and Mr Ashe would ill comply with or observe the oath they took as Councellors, if they advised me to give up a right of Government, always made use of by the Governours & Councils in this Province.
If there is any strength or validity in the Arguments urged on the subject now controverted by Mr Rice and Mr Ashe it may well be suspected there had been a design on foot in this Government of long continuance to subvert the Constitution, Laws and Libertys of the People liveing in Albemarle County; and that the former Governours and myself have been in a plott with the Inhabitants of eight Precincts to effect the said Design, there having been so many Precincts erected on the Petitions of the People in Bath County, without the concurrence of the Assemblys since the Proprietors Constitutions were laid aside.
I come now to examine their reasons, and objections as they have sett them down.
1st They say this method alters the form of Representation, makes the lower House dependent on, & it's being to the upper House by which means the upper House will be solely (as it were) the whole Legislature, with submission to these wise men, I deny that by this method the form of the Representation is altered; The number of the Representatives are indeed increased. It is strange there should be imminent danger of subverting the Constitution by a method always used and which has not hitherto made the Upper House solely the whole Legislature Nor (as it were) the whole Legislature. It is true there are many things that might be amiss; if all bounds were exceeded, which is not a sufficient argument against the matter treating off; regard the Instance they wisely bring to shew in what manner this destruction can be brought about, they alledge that for particular ends a Governour & Council may split a Precinct into tenn parts and so get a majority of Representatives chosen at the Governour & Council's devotion, this is put for arguments sake, Our Writers say they might as well have supposed that the Governour and all the Council of North Carolina were run mad (two Members excepted) who
2nd They say it is absurd to think a power of part greater than the power of the whole. By this Argument Acts of Assembly could not make new Precincts. They add as the Constitution of the Legislature must be antecedent, to any part of it, it cannot be dependent on any Act thereof, much less on an Act of part. How this will enforce their Arguments I know not, therefore will let it rest until such a time as they think fit to explain themselves on this head: And only observe that if these two men give themselves the Liberty to write and Publish anything that comes into their heads for Argument sake, and put what constructions they please thereon afterwards such proceedings may produce very ill consequences in this Government.
3d They say another consequence extreamly absurd will be that an Order of Governour & Council should alter the limits, or bounds of a Precinct made by a Law, and infer it would be repealing the Law itself, but this is without Foundation for of all the Precincts in North Carolina, one only was made by Act of Assembly (as before observed) and that for particular Persons, When a Precinct extends its settlement so much that a new Division is necessary, and made, that doth not repeal the former Law; for example when Edgcombe was taken out of Bertie, the Law that made Bertie a Precinct subsists; and that Precinct is still very large and contains more Inhabitants than any other in the whole Government.
4th As it relates to the Constitution of the Legislature it should lye before the Governour, Council and Assembly In their second reason they advanced, that the whole Assembly could or ought not to alter the Representation and mention the Parlement of Great Britain, which is not to the matter in hand; Great Britain is an ancient Kingdom but North Carolina a young Colony belonging to and dependent thereon. I believe Mr Rice and Mr Ashe are the only Persons, that ever doubted of or questioned the Power the Governour & Council of this Province had of erecting Precincts by themselves, or in conjunction with the General Assembly. When any real inconveniencys arise from the method and Practice hitherto followed in erecting new Precincts; and when it is found to be for the Interest, and Good of the People to have the same settled by a Law, no doubt but the same will be effected, before that time I think such matter may and ought to be transacted in the usual & accustomed manner.
5th In this they suggest it is not warranted by His Majesty's Instructions, because they forbid the erecting any new Judicatures, but this isr Rice and Mr Ashe excepted) will say that when a new Precinct is erected the appointing a Precinct Court therein as in other Precincts, is erecting a new sort of Judicature, nor can I think it possible for any man but those two Members of Council to put so uncommon a construction upon one of His Majesty's Instructions or so lightly play with it.
6th They are the more confirmed in their Opinion (as is wrote) of the illegality of making new Precincts, without the consent of the Representatives of the People in General Assembly from the Practice of the neighbouring Governments, more particularly of Virginia &c. I own myself unacquainted with the Laws of Virginia and therefore will not pretend to write about them but having been several times in that Province, am sure that the Precincts in this Country are much larger than the Countys in Virginia more especially that made in the time Sir Richard Everard was Governour of this Province, and the three new ones, since erected; and I am the more confirmed by the weak arguments produced by Mr Rice and Mr Ashe that there is nothing illegal in making new Precincts by the Governour & Council of this Province, neither is it a new but an old Custom as I have proved out of the Council Books.
I take this opportunity to joyn with Messrs Rice and Ashe in recommending some Precedents of Virginia, to be followed by the good People of this Province of which I will mention a few. In Virginia there is a noble House for the Governour to live in, built at the publick expence, there are handsome Fees allowed by Acts of Assembly towards his maintenance, the Inhabitants pay a very great respect to their Governour, more especially those in the Council of which I have been a witness. In Virginia there are also large taxes raised to keep up the honour, and support the Government, and the Clergy have competent allowances by Acts of Assembly annually paid them, as these precedents are laudable Messrs Rice & Ashe would do well to recommend them as Examples worthy to be followed by all the People of this Province on whom they have an influence.
I never saw the King's Instructions to the Governor of Virginia, therefore should be guilty of a great absurdity, if I took upon me to write upon a subject I know nothing off, nor have nothing to do with; The instructions I receive I obey to the best of my knowledge, and understanding. That our sovereign Lord the King has a most tender regardr Rice & Mr Ashe (if he ever heard of such men) to be on a more precarious establishment, than those of others. As Mr Rice and Mr Ashe are well read in my Commission and Instructions they must do me the Justice to own, I have hitherto made a very moderate use of the Power therein given particularly in respect to them.
If Mr Ashe continues his custom of writing from one Council to another, he ought to studdy the subject he takes in hand better than he has these about Precinct Courts, now answered, and reputed, and for Mr Rice I am of opinion it would be more to his advantage (being secretary) to learn the business belonging to his Imployment than to take upon him to censure or instruct me.