Messrs. Rice & Ashe to Gov. Burrington. 3 April 1733.
To His Excellency the Governor and the Honorable the Members of His Maty's Council.
To a Paper of ours touching the King's Interest in a part (vizt the disposal of Lands), wherein together with the Governor, the Council are intrusted; We are surprized His Excelly should put in an Answer, consisting chiefly of invidious, personal Reflections for wch there are not the least Grounds, and which indeed no ways relate to the matter.
We beg leave to put this matter in a fair light, so as to remove some reproaches, which his Excelly in his anger has cast on us; in order to which we shall take notice of two Remarks of the Governor's; The first is as to the motive, wch, (as he would have it thought) induced us to put in this paper. He says Mr Rice & Mr Ashe sent the Deputy Secretary to him one day in the last Court, with a parcel of Warrts drawn without his knowledge, to be signed for them which he refused: It will be remembered that on reading the Governor's paper in Council, we immediately deny'd this Assertion, & referred ourselves to the Testimony of both the Deputy secretary & the Govrs Secry, who being both called before the Council, the Deputy Secry denyed the matter of fact and the Governrs Secry declared he knew not of the Dep: Secry's bringing any such Warrants, so that that Assertion appears to be without Grounds. His Excelly has indeed on many Occasions declared that he would grant no warrants to persons conveying their Petitions thro' our hands, tho' one of us be the proper Officer for receiving & preferring the same.
The next Remark of the Governor's is; that there was some Design in writing the Paper, by the strange manner it was left in the Secretary's Office: That there was a Design in it is true, and we should be both sorry and ashamed to have put in such a Publick paper without Design;th Novr 1732 was shown to him the 13th of this month (meaning we suppose March last past for his Excellys paper bears no date,) Yet the Deputy Secry being called declared that he gave or offered it to the Governor the day it was filed; but I would not receive it.
This leads us to take notice of that little the Governor has said in this his paper concerning the subject matter of our said Remonstrance. His Excellys words are these vizt “In this Paper I am taxed with not observing my Instructions in granting Lands, which is ridiculous, for there has not one Patent passed the seal since I came into this Province, neither will I sign a Patent for Land before I receive further Orders from England.” We can scarce believe our eyes when we see such a Paper as this under His Excellys own hand: What we objected to in our Paper was His Excellys receiving Right (or Consideration) Money, and issueing Warrants without advice & Consent of Council in undue Quantities, contrary to the King's Instructions, and this too after the unanimous Opinion of the Council to the Contrary: To which His Excelly makes the foregoing Answer, from which if we infer anything to the purpose, it must be, That he may issue Warrants without the advice and consent of the Council, & that tho' he receives moneys (not directed to be received by the King) for Lands, and issues Warrants in undue Quantities putting the People to the Charge of making the Surveys & some to that of settling such Lands; yet he acts not contrary to the King's Instructions (the objection of the injury done the People passing without other notice than his Endeavour to Recriminate) because he signs no Patents: The contrary of which we shall now make evident.
It is plain not only from his Majesties Instructions but also from his Comission to His Excelly, that the Agreements with the People or Inhabitants for Lands are to be made by & with the Advice & consent of the Council, as well as the Grants; before such Agreements the Warrant cannot legally issue, and inded it serves, (or ought to serve) as well for the Certificate in writing of the Contract as for an order to the Surveyor General for the Admeasuremt, & tho' it is not an absolute Right to or Fee in the Lands, yet (where it is legally issued & according to the King's Instructions,) it is a virtuall & initial Right & ought to be obligatory on the Grantor to confirm & convey the Lands (in fee or according to the contract) to the Grantee.
It is certain and well known that all persons taking out Warrts expect to have Patents or Grants for as much Land as is expressed in the Warrant to the Surveyr Genll & they have the greater reason to expect it where they pay Right money or a Consideration; but the Govr says, or rather the necessary Inference from what he says is, that they ought not to expect it, for that he may take monies for more Lands than he is empowered to grant, & issuing Warrants may cause an admeasuremt to the Buyers or takers up in order to their obtaining Grants, but that he has not, nor will give out Grants or Patents for such Lands Supposing a Letter of Attorney to be given to a Person empowering him to agree with and to grant and convey Lands to John or to James, with an express Exception or Limitation that he shall not agree with grant or convey those lands to Thomas; might it not as justly as what is now said be said; It is true the Attorney could not, & should not grant Deed of Conveyance to Thomas for such Lands, but (the Exception notwithstanding) he might contract or agree with Thomas for such Lands, and receive a Consideration, provided he did not Execute Deeds of Conveyance.
We shall leave his Excelly to account for the justice of such a Method of proceeding or acting.
What the Governor says as to fixing falsities on Us will appear to have very little weight. It is plain that in our Paper when we say two shillings & sixpence for every fifty acres, we mean it for the rule of proportion by which his Excellency takes the Gold and Silver; if so, then the first particular of falsity vanishes; even tho' his Excellency should have bestowed this Right Money on many Persons, tho' we have been altogether ignorant of such his Bounty, till he himself has now informed Us.
2. It concerns not us, nor is it to the purpose, what his Excellency takes in lieu of Gold and Silver. We suppose his Excellency in taking Provisions or grain has had his pennyworth for his Penny, however we can truely say that till now, we have never heard or understood that he would take anything in lieu; except Cows & Calves to be delivered at Cape Fair, at the rate of 25 shillings for a Cow and Calf, which is esteemed there an exceeding small price; and as to the Currency of the Country, it has been refused, (we have heard) at 6, 7 & 8 for 1, tho' the Governor has taken a great many of his Fees in Currency.
3. The disparity between Virginia and Proclamation Money is so small, that such a Mistake is not worth contending about and we believe still his Excellency for some time might have taken Virginia money, tho' he has since altered his practice, and takes Proclamac̄on; this if we are guilty of a Mistake has lead us into it. If we have erred we acknowledge ourr Ashe says that he is sorry that the doing what he thought his Duty, in an Affair wherein, with and among others, he is (as it were) a Trustee of His Majesty, should so provoke his Excellency, as to throw on him (tho' foreign to the purpose) so many groundless and unjust Calumnies, which were they calculated for this Province only where he is known, as they would have no effect, he should pass them over without any Notice; but as they seemed signed to asperse his Character with Gentlemen who are Strangers to him, he thinks himself obliged and begs leave to say that His Excellency has been very unsuccessful in all his attempts to fix a blemish on him. Last January was twelve months Mr Ashe was brought 200 miles to answer a General Charge among others, wherein was no particular Person named as his accuser and in which he was not accused, he complained of the hardships he was laid under thereby, and made an Answer or Defence, (if it may be properly so called, where he was not named as accused,) to it. The General Charge was incerted into and remains on the Council Journal but his Excellency would not suffer that Answer, which set the matter in a clear Light to be incerted. But his Excellency did Mr Ashe so much justice as at that time to declare he had never heard any Complaints of him: as to what he is now charged with it would be too tedious to descend to every particular, he therefore in the General says, that he knows what small Estate he has to be so justly acquired that he will not only (as his Excellency advises and desires) restore, but if any person complains and makes it appear that he has injured him, he will restore him four fold. If his Excellency of his great Justice had condescended to have particularized & named the persons complaining with the Matters complained of, he should have known how to have answered; till he so does, he can only say generally That he was formerly a Deputy Surveyor and laid out Lands pursuant to an order of Governor and Council, part which his Excellency was formerly Governor of which Lands as the Law and Custom always was, he gave the takers up Plots, which Plots they may have transferred to others (as he supposes they well might,) and in no way concerns him whether they did or did not, or whether they could so do. As to the Governor's bringing Mr Moseley's name into his paper, he cannot imagine it was for any other purpose than to tack these two hard words, Craft and Knavery, to Mr Moseley's name and his with an etc; because Mr Moseley had no Concern, nor was any ways mentioned in the Matter in dispute, which was the Granting Warrants for Land contrary to the King's Instructions. He thinks he need say nothing concerning Mr Moseley's Character, because r Moseley never sold any Lands to Mr Roger Moor on Cape Fair River; he confesses he has sold him Rights which he had to take up Land from the Proprietors, with and by which he believes Mr Moor has himself taken up Lands very much to his profit and Advantage.
But Mr Ashe avers he never had a Negro, or one penny either stirling or other Money for Land or for Rights to hand from Mr Roger Moor, so that he knows not how to account for this Charge and accusation exhibited against him in the name of Mr Moor. If Mr Moor has made any Complaint to his Excellency of any Injury of this nature which Mr Ashe has done him, he has done Mr Ashe much Injustice; if not the Governor has done Mr Moor much injustice in reporting him as the author of a scandal or Calumny, (if it may be so called) so groundless.
If Mr Moor will show that Mr Ashe ever had a Negro or one shilling stirling Money of him either for lands sold him or for his Rights to any Land, Mr Ashe will deliver to him not only the twenty two Negroes, but all the Sterling Money he has expended that way, if what small Estate he has, will raise it or amount to it.
If Mr Moor shall deny his making any such Charge or Complaint of or against Mr Ashe, (as it is no doubt he will,) the Governor will certainly do Mr Ashe the justice to acknowledge, that tho' he has used much Art to caluminate him, yet he has not been able to fix any scandal on him.