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Memorandum by Nathaniel Rice and John Baptista Ashe concerning new precincts
Ashe, John Baptista, d. 1734; Rice, Nathaniel, d. 1753
1733
Volume 03, Pages 449-457


North Carolina—ss.

To His Excellency the Governor and the Honble the Members of His Majesty's Council

His Excellency the Governor has by way of answer to some reasons and objections, which we put in against the dividing old Precincts and erecting new ones, by the Governor and Council only, without the concurrence and assent of Assembly; put in a long writing, wherein besides bestowing on us much opprobious language, he has made several invidious reflections & insinuations as if (it should seem) we affected to be thought Patriots & Advocates of the People, ill becoming His Majesty's Councillours: His Excellency in the same Paper makes also a kind of historical narrative of the Constitution of the Legislature of this Province.

We shall pass over the language without other resentment than to say, we think we merit it not; that we ought as Members of His Majesty's Council to be exempt from such freedom as his Excellency often takes with us that way in Council, both in writing and by word of mouth: And we humbly conceive such his treatment of us cannot be approved of by his and our superiors in Great Britain, when they shall be made sensible thereof. His Excellency's unjust reflections and insinuations as to the motives induceing us to offer those objections, we shall obviate by shewing some true motives; we shall vindicate ourselves from such

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aspersions as we think designed to blemish our characters as Members of His Majesty's Council in this Province; And then we shall proceed to give a just history, as briefly as we can, of the Constitution of our Legislature, & of it's form from it's original to this day; in which (with due submission be it said) we doubt not of making His Excellency sensible of some mistakes in his.

We shall now proceed to shew some of the reasons which moved us to object as we did.

1. We observed that the Governor (notwithstanding former Assemblys had strenuously insisted on and asserted the People's right in this particular, and had had it allowed them, as we shall shew hereafter) proceeded to divide old and erect new Precincts with a very small number of the Council consenting thereunto; as at the dividing Hanover, erecting Bladen Precinct out of it; at the dividing Bertie adding part thereof to Edgcombe Precinct, there were only three Councillors consenting thereunto, vizt Mr Halton Mr Lovick and Mr Gale one of which it is well known was introduced into Council contrary to His Majesty's Instructions to His Excellency there being seven others then in the Government.

2. We observe that before the aforementioned Division, Bertie and Hanover Precincts had been divided by the Governor and Council in the same manner. We could not see any reason or necessity for such Divisions for (for instance,) in Bladen Precinct there are not (we think) above three Freeholders vizt Mr Nal Moor, Mr Tho. Jones and Mr Richd Singletery inhabiting, and not above perhaps thirty Families, including the Freeholders; Now as his Excellency pursuant to His Majesty's Instructions, has directed the writs to issue for Freeholders only to elect, then of those three, two are to stand candidates and the third to elect them. The case is much the same as to Onslow Precinct in which (we are pretty confident) there are very few more Freeholders, (and those chiefly taken from Carteret Precinct,) inhabiting: where then is the necessity of these divisions? these new appointments?

3. These Divisions and Subdivisions, as they would make a great alteration of the Representation in the House of Burgesses; and as there was not, (as we could perceive) any visible & apparent necessity for such new Precincts, We concluded the Assembly whenever they should meet (as these remarks are very obvious) would look upon them as an innovation and violation of the Privileges, and so might prove such a stumbling Block as might prevent their proceeding to busyness, which has been long desired, as is very requisite both for His Majesty's service and the publick Utility. We could give several other reasons which moved

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us, but that we would contract this paper as much as may be and some of them might perhaps offend the Governor. We shall therefore decline reciting them here, and content ourselves with representing them elsewhere.

As to those insinuations His Excellency is pleased to make of our affecting popularity, they touch us not, nor give us any uneasyness, because we are conscious we have had no such view: what we have said in asserting the Privileges of our fellow subjects against what we esteemed incroachments of Governors and Councils on them, has been with great caution; we have a true sense of our duty & loyalty to His Majesty, and the strictest regard to his interest, not pretending in the least to deny or even dispute the royal Prerogative, which (totidem terbis) in our said Paper we have declared our most gracious King as He is tender of his Prerogatives (which tend always to his peoples good) so is he of the rights and privileges of his subjects; and of this we are made sensible by the Instructions to the Governor, wherein cautioning him against suffering Assemblies to assume uncommon Privileges, to which they are not entitled, the rule he gives or prescribes for their limitation, is that of the Priviledges of the Parliament of Great Brittain. And can we desire more? No: Thus good & thus gracious is our most gracious King to us his subjects far remov'd from his royal Person; therefore we cannot think our asserting such rights as he admits us graciously, to enjoy, will be offensive to him or his Ministry; nor that the love of our Country, or the spirit of Patriotism, (if his Excellency is pleased so to call it,) is inconsistent with our places in Council, for we assure His Excellency we shall always consult His Majesty's interest and have the tenderest regard to his prerogatives, whether we are in or out of His Council, and indeed we cannot conceive how the contending for a just and equal representation of the People will interfere with them or obstruct his interest, or how an unequal one will advance it.

We shall now endeavour to give an account of the Constitution of our Legislature & of it's Original.

It will (we believe) be acknowledged the birthright of British subjects, to be governed by no Laws but what are of their own making; that is, such as they have assented to: on the first planting or settling of this Colony this right was confirmed to the Inhabitants by Charters from King Charles the Second, in which, such as should remove hither, and their Descendants or Posterity born in the Colony were declared free Denizens and liege People of the Crown of England, and as it was necessary (the Laws of England not being in all Cases and Circumstances

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suitable to so remote a Country) that there should be Laws enacted and made for the due Government thereof, that King of his royal authority granted to the Proprietors, together with the People (their advice, assent and approbation being requisite and necessary) a power of making Laws, reserving allegiance to the Crown, and a due subjection or subordination to our Mother Country. In this Grant the manner of the People's assenting to such Laws, or if it shall be requisite the appointment of Deputies or Delegates to represent them, is left entirely to the People, and not to the Direction of the Proprietors. The words, (after a recital of the words empowering the Proprietors) are these vizt “by and with the advice, assent and approbation of the Freemen of the said Province or Territory, or of the Freemen of the County, Barony or Colony for which such Law or Constitution shall be made, or the greatest part of them, or of their Delegates or Deputies; so that in the infancy of the Colony, when the People were few, the whole might have met, advised, assented to and approved such Laws as should be made; but that King foreseeing the Inconveniencies which in Process of Time, when the Colony should abound with People, might arise from such numerous Assemblies, seems to have provided against it, by inserting an Alternative in these words, vizt: “or their Delegates or Deputies” impowering hereby the whole to choose a less number to represent them and this we think without any dependency on the Proprietors for Directions of Representation: and indeed it's absured to think when the whole People, one part of the Legislature, have had a right of advising and assenting to Laws, that the Proprietors the other part, (much less their Deputies should have the power of transfering such right from the whole people to (we will say) one eight or any less part, as by directing and altering at their pleasure the Representation, they might. Pursuant to the Charters aforesaid, Fundamental Constitutions were formed in the year 1669, which in the Province of North Carolina, (tho' not in South) the People received: In these as his Excellency observes Albemarle County (then the whole of this Governmt) was divided into four Precincts, which were to send twenty members; that the People's assent to the receiving these Constitutions was requisite, is evident. Why else were their delegates required to sign them? why were they not imposed on the People of South Carolina, who refused to receive them? Again after these, in the year 1698, there was another set of Constitutions formed which were signed & sealed by the Proprietors.

These Constitutions are evidences of the Compact and agreement in those times as to the formation of the Legislature between the Proprietors

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and the People of North Carolina; (for as we have said the People of South Carolina would not agree to receive them, tho' they were equally designed for both Provinces) and that the Proprietors did not think themselves solely invested with a power of directing the Representation of the People, is evident from these Constitutions themselves.

The 10th section of the 2d sett are in these words vizt “The present “number of the Representatives of the Commons shall be

“who (as the County shall increase,) shall also proportionably be “increased, if the Commons do so desire, but shall in no future time be “increased beyond one hundred.

The 19th Section are in these words, vizt “the whole Provinces shall “be divided into Counties by the Parliament.

Give us leave to observe that in the time intervening these two setts of Constitutions the Assembly proceeded to direct elections; as for instance, in the year 1696/7 by a biennial Act in which they ordained that every Precinct in new Counties should send but one Member, accordingly in the next ensuing Assembly, vizt in the month of Novr 1697, there came but two Representatives from the whole County of Bath vizt Richd Smith and Nicholas Daw. In the year 1699 there was a Biennial Act passed, in the latter end of which there is a clause wherein are these words, vizt if this Bill be ratifyed and confirmed by the Lords Proprietors under their hands and seals, then the Constitutions shall be void, or otherwise that the section or sections relating to biennial Parliaments shall take place as formerly received amongst us.

This Clause plainly shews that the Delegates of the People thought themselves concerned in the form of Representation, and also that the aforementioned Constitutions were not imposed on them, but assented to and received by them.

After this in Governor Cary's time, Bath County which sent at first but two Members, was by Govr and Council divided into Archdale and Wickham Precincts and sent four members; and again in the Governors Hyde and Eden's times were added Craven and Carteret Precincts by the Governor and Council, and the names of Archdale and Wickham Precincts were changed into those of Beaufort and Hyde. In the year 1715 the Assembly proceeded to fix and establish this form of Representation by what is commonly called the Biennial Act.

We will now allow or suppose that that Assembly did not (perhaps) dispute the Power of the Governor and Council but we cannot therefore grant, that from their assenting to a Law to allow of and establish those Precincts, the inference is necessary that they approved of them as legally

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and regularly appointed the contrary we think may be more naturally inferred, for if they were legally and regularly appointed, what need was there of a Law to establish them? Nor can we be of the opinion that the not disputing the Governr and Council's Power herein gave them any.

We come now with his Excellency to the year 1722, or thereabouts, when this supposed Power of the Governor and Council was contested, and here we think his Excellency gives up the point for he allows that the Governor and Council thought they could not erect Bertie Precinct because it was against Law; therefore they concurred with the Assembly or Delegates of the People to erect that Precinct. If the Power of erecting was in the Governor and Council solely, what need was there of the assent of the People?

If it be said it is by Law they have this Power, where is that Law? and how, in what words is the Power conveyed? how, by whom, and in what words have the People divested themselves of their natural right confirmed to them by a royal Charter and long enjoyed (vizt that of choosing their own Representatives) and resigned it to Governors & Councils solely? It is true some Governors and Councils may have construed these words in some Biennial Acts, (vizt “Precincts to be erected) to convey to them a Power of erecting Precincts for sending new Representatives of the People, and so (tho' the inference is in no wise just,) deeming themselves Trustees of the Legislature, or rather the People, in that point have proceeded to erect four Precincts, the validity of which appointments, (tho' perhaps not disputed) was so far doubted of, as afterwards to require the assent of the People, or their Deputies, by an Act to confirm them.

That the Assembly in 1722 did not allow such Power to be in the Governor and Council, is plain, for being about to erect a Precinct their Power was controverted and given up, and the Precinct erected with the advice and consent of the People or their Delegates by Act of Assembly: Again in the year 1729 there was an attempt by Governor and Council to erect new Hanover into a Precinct, Their Power was contested and denyed by that Assembly, and the new Representatives not admitted to sit and vote in the House till accepted & approv'd of by the Assembly, being confirmed and allowed of by a Clause in the Bill for emitting Money on Loan. The same Assembly erected a Precinct by the name of Tyrrel, which by Act of that Assembly was to send but three Representatives.

By this Account the whole force of his Excellcys argument, will be this: some (two or three) Governors and their Councils, fancying that

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some words vizt (Precincts to be erected) in a Biennial Act, gave the Governor and Council the Power of erecting Precincts to send Representatives of the People, proceeded to appoint four Precincts, the validity of which appointments (tho' perhaps not disputed, the Representation being pretty equal & just) yet was so far doubted of as to require the assent of the People or their Delegates by Act of Assembly to establish them: The Precedents of the erecting these four Precinct are to be opposed to the People's natural rights or privileges, the grant of Confirmation of them in the royal Charter, the Contract between the Proprietors & the People in the Constitution, the Precedents and Practice before the time of erecting those four Precincts, the Precedents since, as well as the denial of such Power by the People or their Deputies in Assembly ever since: We leave His Excellency or any other reader to judge whether they are of sufficient weight.

Our second Argument vizt, that it is absurd to think or say that a Power of part should be greater than that of the whole, and that 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; His Excellency charges with absurdity, and leaves us to explain ourselves: For by this Argument says His Excellency, Acts of Assembly would not erect new Precincts; we acknowledge there seems to be an absurdity; but it proceeds from this: From giving the Title of Acts of Assembly or of Laws to such as may more properly be stiled Fundamental Constitutions. When the several parts or persons out of which a legislative Body is to be formed & consist, meet together and mutually agree on the manner of Formation of such body, or of part, and cause such contract as to such formation to be committed to writing; such instruments of writing containing such contracts are properly the Fundamental Constitutions of such Legislature, (or evidence, or Records thereof,) but not Acts of it; this is evident from this invincible reason, vizt no corporation or body can act before it is formed, or has a being. To make this more plain, We will suppose in the Infancy of this Colony the Proprietors and the People to have met, and to have mutually agreed that the Proprietors should chuse a Governor and Council as their Deputies, which should represent them, and that twenty persons in a certain manner to be chosen by the People should be delegates of and represent the People, That these united should constitute or be the form of the Legislature of the Province; the Charters containing such mutual contracts and agreements would be evidences of the Form or Constitution of the Legislature and may properly be stiled Fundamental Constitutions. Let

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us now reduce these mutual contracts and agreements into the form of an Act or Law and use an enacting style; will it not run thus? “Be it enacted by the Governor & Council & Representatives of the People in General Assembly the Legislature of this Province, and it is hereby enacted by the Governor & Council and Representatives of the People in General Assembly the Legislature of this Province, that the Governor and Council and Representatives of the People in General Assembly shall be the Legislature of this Province, does not this seem absurd? In short such instruments tho' they may run in an enacting stile, are properly records or evidences of the Formation or Constitution of the Legislature and not Acts of it.

Does it not savour of absurdity to say that the People have a part in making their Laws, for that their Representatives are to advise, assent and approve of them before they are made, but that the Governor and Council are entirely of themselves to say and direct what shall be the Representatives to give and declare such advice, assent and approbation; as if they may divide old & erect new Precincts at their pleasure, in effect they will do. Will such be the Delegates of the People? Will the People have any part in enacting such laws? Will they not be the Laws of the Governor and Council?

It is plain that our most gracious King is desirous that the form or Constitution of Governmt of this his Province should as near as may be (allowing for some unavoidable differences wch must and will be between a Mother Country & it's subject infant Colony) resemble that of Great Britain: We cannot therefore think we greatly erred in instancing the caution used by the Parliament of Great Britain of avoiding to touch on what they thought a constitutional point: Neither can we think our instancing the practice & privileges of Virginia amiss, because we cannot believe that our most gracious Sovereign will be willing to deprive the poor People of North Carolina of Privileges allowed to and enjoyed by those of the neighbouring Colonies.

If we have mistaken the sense of His Majesty's Instruction forbidding the erecting new Courts, & that by the words in that Instruction vizt “Court of Judicature” are not intended a Court of Judicature as we construed it but a sort of judicature agreable to His Excellency's Construction; we can only say humanum est errare: our's as it was a liberal one, was to us most obvious.

If by proposing to us to recommend to the Assembly some laudable examples of Virginia, His Excellency would insinuate that we have opposed such: we may truly say that we are not conscious of it, nor can

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accuse ourselves on that score; particularly as to not encouraging the Clergy, we believe we have not, and hope shall not, incur any censure, especially as so good an example is set us by our Governor, whose zeal for the church is on all occasions so conspicuous. Let us conclude on the point in hand, and expostulating with all due submission with his Excellency, let us have leave to ask; why, supposing the People of North Carolina in its infant state, had suffered their Privileges to be encroach'd on, and had neglected to assert them; why we say should this be pleaded to deprive them of them entirely? Why should they only lose them, when the neighbouring Colonies without any contest enjoy them? But as we have (we think shewn that they have always or for the most part, enjoyed them; as they are privileges which have been granted and confirmed to them by the Crown; as it does not appear that His Majesty has revoked such Grants, or directed his Governor to alter the Constitution, as infringing on his royal Prerogatives, which we shall never presume to deny, or in any wise derogate from, we hope our most indulgent and gracious Sovereign will suffer his poor subjects of North Carolina to continue in the enjoyment of them.

NATH. RICE
JNO. BAPTa ASHE