Narrative upon oath of Edmond Porter Esqre relating to his Complaints against Captain Burrington Governour of North Carolina.
[Recd with Mr Porter's letter of 15 Aug. 1733.]
In pursuance of the Directions of the Right Honble the Lords Commissioners for Trade and Plantations in a Letter dated August the 16. 1732. directed to me Edmond Porter of the aforesaid Province and Signed by Secretary Popple touching complaints and Representations of Governour George Burrington against me and my Complaints and Representations against him wherein their Lordships are pleased to give me leave or any other person concerned to make affidavits before any Judge or other Magistrate concerning the subject matter of the said complaints. I have therefore examined Several papers and memorandums now by me, and to the best of my knowledge beliefe and observations have here under written given a True and genuine narrative respecting the said complaints Vizt: The Governor in his charge against me on my suspersionst of January 1731. as member of Council intermixed matters which related to my suspension as Judge of the Vice Admiralty the day before moves me at this time to relate some few particular passages of the Governor's conduct and usuage to me with relation with that office since his arrival.
On or about the 24th day of February 1731. Mr Burrington (I was told) caused his Commission as Governor of this Province to be published at Edenton I was then gon a voyage after admiralty perquisites near two hundred miles by water, and when I returned home on the 7th of March my wife shewed me a letter she had received from the Governor dated the 26th of February for the lent of her chaise which She told me She readily granted, and a Servant with it, to fetch his big belled wife (as he termed her) out of Virginia.
On the 8th of March I waited on the Governor at Edenton where after some previous discourse in the Council chamber that evening before Chief Justice Smith relating to the affairs of the Admiralty, the Governor told me the Court of Admiralty here was his Court I replyed that I thought it was the Kings Court as all Courts were that was under his Majesties Government no he said it was his Court or words of near that purport whereupon I dropt the discourse finding it did not please: At this time and before there was a suit depending in the Court of Vice Admiralty on a Libel and Complaint of Sir Richard Everard when Governor against one Miles Gale and Chamberlaine for presuming to hoist an Union Flag on four several dayes in Defiance (as it was given out) to Sir Everard on the Court of Admiralty and when the Marshall of Admiralty was going on board the sloope two brothers to serve a citation on Gale and Chamberlaine thereupon presented a gun at his brest and used other violence (as set forth to me by the said Marshal on oath) which compelled him to retreat on shore and for this contempt he the said Chamberlaine was cited to appear at a Cort of Vice Admiralty.
On the 9th of March after my being Qualifyed a Member of Council by his Majesties appointment) the Governor repeated his former discourse, that the Court of Admiralty here was his Court ading withall that I must not hold Courts without his leave. I was surprized to hear him talk after that Manner because my commission did impower me to hold Courts &c: in any part of this Province, wherefore I was resolved to do my Duty and according to the appointment I had made to hold a Court and take cognizance of the Offences committed by the said Gale and Chamberlaine (which Court to the best of my memory was on the 10th of March aforesaid) when the Court was opened the Governor cameth of the said month the Court met according to adjournment and for further Deliberation (but more to prevent those extreams which I found was like to be the consequence if I proceeded to judgment on the offenders) I ordered the Court to be adjourned to Friday following and then I returned to my Plantation. On the 14th of said March Mr Chief Justice Smith and Coll: Jones made me a visit: Coll: Jones then delivered me a message, by order he said of the Governor, not to hold Courts of Admiralty without his leave, and that the Governor said he doubted I should be ruined for what I had don already he also told me he heard that the Governor did intend at my next sitting if I offered to persist in that affair to come into Court thrust me out of the seat and resume the seat as Judge himselfe; and this account I had likewise from others which gave me reason to beleive it was true, wherefore to prevent the mischiefs that might attend such violence as well as a contempt of the Court of Admiralty which I expected would afterwards be made by the Populace I forebore sitting in Judgment again on those offenders Gale and Chamberlaine, who as well as several other masters of vessels (I have been told) the Governor gave leave that they might hoist a flag at mast head when they pleased: and this indulgence I beleive is true and found my beleife on the observations I made the first year of the Governors arrival, when Flags at the mast heads of vessells seem to me to be more commonly wore than any other colours, don often in the harbour of Edenton in sight of the Governor for several days together, especially by Miles Gale who not only appeared as Admiral of the Sea but also a sort of Lord paramount at land he being permitted to display a flagg on the top of his house at many times and for days together in sight of the Governor. This Illegal use of the flagg and other forbidden colours hath given great offence and vexation to the Commander of his Majesties th or that 93rd Instruction or how well I have deserved for endeavouring to prevent a breach thereof and supporting the Jurisdiction of Admiralty here (as in the case recited of Gale and Chamberlaine) I shall humbly submit to your consideration of my Lords Commissioners of Admiralty and to my Lords for Trade and Plantations.
By the Copy transmitted to me by from Mr Secretary Popple of Mr Burrington's letter without date to the Board of Trade he hath thus expressed a complaint “was made to me also by Edmond Porter Esqre “Judge of the Admiralty against several persons for an intended Riot “and Combination of a great number of persons intending to assassinate “him or obstruct him in the execution of his office upon which I promised “him if he would draw up the Complaint in form that the persons “might be served with Copies, I would appoint a day for hearing but “the Judge having offered nothing further upon his Complaints, I conclude “he has dropt it, by what I can learn there was no Riot intended “nor any design to hurt him.”
What the Governor means by intended Riot I know not but I should think when a great number of people (some of them privately armed) mete on an unlawfull design and assemble themselves into the Court House the very hour a Court of Admiralty was to sit and then and there, revel, drink, sing and dance stamp shout and alternately set up in the seat of Justice two mock Judges in dirission of the Admiralty and declare they would continue them Judges; by which means and other bloudy designs as was apprehended they gave a Rout to the Court of Admiralty on the 7th of January 1730 (that was in pursuit of Admiralty perquisites belonging to the Crown) as appears by several original depositions now by me: whether those were riotous proceedings I leave to others to judge—I did often complain to the Governor on his first coming as well as afterwards, concerning that abuse, desiring it might be examined in Council, and he did as often make light of it, and advised me to make matters up with those who I had so accused, he did also at his first coming and several times afterwards offer his service to interpose in my behalfe to prevent those suits which he sayd would otherwise be brought against me for some former proceedings of mine as Judge of Admiralty, I told him that I knew nothing that I had committed inst because it would have fixed and imployed a guilt in me to desire his Excellency to screen or protect me from Justice 2ndly I did expect during the Governors Administration that I must become after that a mear puple or a tool to him both in and out of Council Courts of Chancery and Admiralty and perhaps be constrained to vote Judge and Act very often against the light of my own conscience.
After this Digression I must beg leave to go back to the subject matter of the aforesaid Riot and my application to the Governor as before observed I found it was in vaine to say any more to him in private and therefore I drew up a Memorial concerning that affair dated May the 7th 1731, and delivered it the same day at the Council Board praying that proper Subpœnas might be issued out for my Witness and a day assigned me to maintain my charge; the Governor I remember took up the said Memorial and peruised it afterwards in a slight manner, he told me I must apply to the Chief Justice; and this Memorial or petition was not so much as read out by the Clark of the Council, whereupon I was obliged to take it again without the least prospect of having a hearing in Council before the Governor though he hath asserted to the Board of Trade “that he offered me to appoint a time for hearing”! The Governors extrarodinary behavor in that affair and his interfering with my proceedings in the Admiralty Courts against Miles Gale and Chamberlaine as before recited, is by Mr Smith (I hear) complained of to his Majestie, and is made two Articles of his charge against his Excellency, therefore I shall at this time forbear inlarging as I could do in many other perticulars of the Governors conduct since respecting that business—Mr Joseph Jenoure Mr John Lovick and Edmund Gale being three of the persons accused with the Riot aforesaid on the 7th of January 1730 (as appears by several depositions now by me) and giving a Rout to the Court of Admiralty here: and as I did apprehend Mr Lovick and Gale not being appointed members of Council agreable to the Kings 7th & 9th Royal Instructions was therefore the foundation of my 2d and 3d Exceptions dated the 19th of Febry 1731. Humbly offered to the consideration of my Lordsr Gale in my stead who had been so judiciously accused by me and had lent a hand to vote me from that office without obliging him to give me Security as is directed by his Majesties 69. Instruction. I leave to my superiours to Judge. It is very probable if Mr Gale had no prejudice to me at that time (as I am very well assured to the contrary) it was an inducement to him to vote me out of an office, that himself might have a promise of or did at least expect to enjoy: against this Choice of Edmd Gale to be Judge of Admiralty I did hear that Mr Ashe, Mr Rowan and Mr Harnet did dissent, thō I doubt not but it is represented in the transmitted Copies of the Council books to be the unanimous opinion and choice of the Council.
The next thing I beg leave to observe upon is that part of the Governor's Letter to the Board of Trade wherein he hath thus expressed “Complaint was also made to me against the Judge of the Admiralty “for many illegal and arbitrary proceedings in that Court against all “law and common right” I presume the complaint he means was that which was introduced by the Council Board on or about the 10th of May 1731. by Mr William Little in behalfe of himselfe and others amongst which Number of complainants (of whose names Mr advocate Little hath made bold to make use of) he mentions Robert Foster Esqre and William Makey Esqre those Epithetts of Esqre I suppose Little thought proper to bestow on the complainants that they might be thought by their Representations to the Board of Admiralty as men of Rank and Consequence though one of them Clerk of a precinct &c: and the other a Tanner by Trade and Deputy Marshall under Halton In those complaints Little has likewise appeared as well for the dead as the living and accuses me in the 6 and 7 articles of his charge for proceedings in the Admiralty at Port Beaufort (which were three several proceedings against thee Sloops) and also one other proceeding at Bath Town against one West, all which four proceedings I do in the presence of God declare (how right or wrong so ever they were transacted) they were Courts of Admirality held by my Deputy Mr Patrick Maule in the County of Bath, whilst I was in the County of Albemarle, above a hundred miles distant from the three first Trials as near sixty miles from that of Wests Tryal, whether such Jesuitical and false blending of things were not calculated for an other Meridian and using me very ill. I refer to my Lords of Admiralty to whom those complaints I hear have been transmitted in order no doubt to prejudice my conduct, by inducing their
Mr Maule my Deputy is a man of lerning and has a plentiful fortune, if he hath don amiss, am I to answer for it) and ought not he to have been called on to answer his own proceedings instead of me No, that Method I suppose the Governor and Little thought would not be so well it was best to sadle me not only with my own failings (as was pretended by that of other men too—I must further observe that this long complaint of Mr Littles was brought into the Council Chamber, to the best of my Memory in two or three days after I had prefered my Memorial to the Governor on the 7th of May as aforesaid, together with a List of those accused with a Riot and design of murthering me the 7th of Janry 1730. &c: by which black list it appeared that Mr Little himself was the second man accused; but that my Memorial was rejected by the Governor as before observed, and Mr Littles complaint (though for matters of less consequence) the Governor caused to be received or ordered it to be read out by the Clerk, and I do believe it was afterwards by his order only entered in the Council book as a matter of record against me, tho the Majority of Council then present did argue that complaints against a Judge of Admiralty lay more properly before his Excellency as Vice Admiral or words to that purpose, and I presume that Mr Little thought so to because his complaint is directed to no other person than the Governor: after all which to cause that complaint to be entered in the Council Book as I hear it was, is in direct breach (as I conceive) to his Majesties 50th Instruction, who is graciously pleased to direct, that all orders made in Council be first read and approved in Council, before they are entered upon the Council book. I must beg leave also to observe that this complaint of Mr Littles which I believe in the beginning was no otherwise designed than as a scare-crow, the better to secure or at least to deter my vote in Council when matters relating to the Kings lands and the vast sums of money received by Little as purchase money for Lands &c: during his being several years Receiver came to be inquired into) lay as it were like a rod over me from May til the 4th day of November following, until after I had so repeatedly given such seeming offence in Council to the Governor by giving an opinion squaring with my conscience thō opposite often to the Judgment of his Excellency as set forth in my Memorial to the Lords Commissioners for Trade and Plantations dated February 19th 1731. I desire it may also in a most perticular manner be Remembered that this Complaint which had laid dormant for near six months, untill I had been at a very great Expence in going from placer Burrington, that that lurking false and artfull complaint of Littles was a fresh roused up on the fourth day of November 1731. It was on that day also that the Governor layd the foundation for my Suspention as Member of Council, alledging as appears by the Council book that I had asserted a falsehood in my paper called my dissent against the choice of Mr Lovick and Gale to be Members of Council: This single article of falsehood was all that his Excellency charged me with on the 4th of November between which time until the 20th of Janry the day of my Tryall and suspention as Judge of Admiralty, I was gon to Core sound and Cape Fair and at no Council with the Governor Consequently could give no offence in Council as set forth in the Governor's 1st 2d and 3d charges yet I have afterwards experienced that his Excellency was so fertile in his Invention or rather so full of prejudice to me that he hath tacked to his first former charge, four other charges.
The usuage which I received on the Tryal and suspension of me as Judge of the Admiralty and Member of Council vizt the Governor's refusing to grant me time that day to put in an answer to the complaint of Mr Littles as prayed for, his throwing a paper into the fire after I told him it related to my defence, saying he would serve a bushel of them in the same manner, and the great passion and prejudice which he discovered to me during those Tryals are truly and justly set forth in the deposition of Coll: Moseley Mr Ashe and Mr Montgomery the Attorney General to which I refer. Only I beg leave in support of my Exceptions against the legality of those Mr Burrington's suspentions to make this further observation, that by the attested copy of a paragraph from the Council book, it appears on the 20th of Janry vizt “His Excellency the Governor “further asked the advice and opinion of the Council, whether so bad a “man as Mr Porter was proved to be should be continued a member of “Council within this Province. Thereupon the Council (it says) were unanimously of opinion that the said Edmond Porter was not fit to sit at this Board &c: Is not this a plain prejudging both in the Governor and such of the Council who did so vote? And when they had so prejudged me they brought on my Tryal the next day for a further judgment.t “that they (the Council) were unanimously of opin-“ion that the said E. Porter was not fit to sit at this Board” I believe there is no man so hardened a Sinner as to say, that either Mr Ashe, Mr Rowan or Mr Harnet did vote for my suspention as Member of Council, how comes it to pass than, that the records of that Tryal sets forth on the 20th of Janry “that the Council were unanimously of opinion that the “said Edmond Porter was not fit to sit at this Board” And that after such their unanimous opinion, that three of them the next day voted against my suspention as member of Council? When those absurditys come to fall under the consideration of my Lords of Admiralty and the Board of Trade, I hope their Lordships will see plainly what dependance they can have on the Truth of those Copys transmitted them from the Council book I can say much on this head, and where the sence of things have been basely perverted and made nonsence in the Council book (as observed by Mr Ashe's deposition a Member of his Majestys Council) As also entrys in the Council book that had never been Transacted in Council and other very substantial Matters intirely left out perticularly what relate to the proceedings against Colonel Moseley Coll: Moore and other persons in Council about lands in Janry 1731, after Coll: Moore had come near two hundred mile to answer the same which copious answers of Coll: Moseley's and Coll: Moore I could not find in the Council Book but left out as I sopose by reason it contained matter about Land which related to the Governor himself. Indeed It bears the name of the Council book and that is all but in my opinion It may more properly be called the Governors Political Diary—I do further assert that I was present in March General Court 1732, when the Governor came within the Bar of the Court about a quarter of an hour before the Court was adjourned, and in great passion demanded the Deputy Marshal Makey to take hold of Coll: Moseley and bring him out of the Court before him when Mr Moseleys hand was on the book going to take the oaths to his Majesty; accordingly the said Marshall did take him out of Court and afterwards carried him prisoner to the Governor's house. I was also present with Colonel Moseley at July General Court following before the Cort house dore when Mr Mackey came up to us and took Mr Moseley prisoner a second time (as he the Marshal sayd by the Governor's order for speaking in a cause which was brought by the Governor against me) whereupon Col: Moseley went into Court again and applyed himselfe to the Judges and they declared they were not displeased with any thing he had said in that r Moseley was afterwards on a Habeas Corpus discharged from his confinement. In October Court following Mr Little superceed Mr Paylin as Chief Justice and all the Assistant Judges were removed and a new set commissioned in their Room! And I heard that all this choping and changing was don and consented too, by the Governor and Council of three only present vizt Lovick Gale and Mr Phenny. How far such a conduct corresponds with his Majesties 5th and 44 Royal Instructions or the safety and security of his poore subjects in this Province is most humbly submitted. The Governor in his Letter to the Board of Trade dated Sepber 4th 1731. represents me to their Lordships to be under many prosecutions and actions in those perticulars and at that time he hath vouch-safed to say right for all which prosecutions and Indictments I shall ever have cause to remember Governor George Burrington and the Grand Jury that found those Indictments, many of the said Jurors having been accused in the Plot of the 7th of Janry against my life and giving a Rout to the Court of Admiralty and therefore it could not be supposed that they would do otherwise; for those who would endeavour to take away my life no doubt but would destroy my reputation or fortune, neither were they a qualified Grand Jury according to the Laws of this Province but on the contrary I am very well assured they were packt for that Extra purpose. Also what the Governor hath related as to my objections in writing (or rather my opinion as set forth in the preamble of my assent) against the choice of Mr Lovick and Gale is True, the title of which said objections begin in these words “The opinion of Edmond Porter in Humble manner to his Excellency” the sense of which as but an opinion was a just and necessary application throughout the whole of those objections; wherefore then could I give such offence to his Excellency or wherein was the unfare reasoning or great falsity; the point seems to be given up by the Governor that there was six qualified Members of Council at that time in the Province vizt: Messrs Rice, Jenoure, Halton, Ashe, Harnett and myself, this if I understand numbers is six, wherefore then did his Excellency appoint Mr Lovick and Edmond Gale when he knew it exceeded the number seven (so strictly limmitted by his Majesty's 7th and 9th Instructions) If his Excellency thinks he had a Power to appoint as many members of Council as he pleased why did he put that previous question to me the 27th of July 1731. and afterwards make that opinion (which perhaps he would have termed a contempt if I did not give) a charge r Burrington's several charges and his two Letters to my Lords) If his Excellency would exercise more moderation and less sander and enquire narrowly into the Titles of the Stagpark, How old feilds the Burger and other Lands and the many thousand pounds purchas money for Lands received by Mr Little it might prove of greater advantage to his Majesty's Revenue in this Province than to pursue my ruin, or to reduce me to that great poverty mentioned in his Letter to my Lords Commissioners for Trade and Plantations; and however contemptable his Excellency would represent my circumstance to be I should be loth to exchange interest with him in this Province, (set aside about fifty or sixty thousand acres of land which he holds at Cape Fair whereof not one acre in my opinion is legally acquired) and notwithstanding Mr Burrington hath treated me in his representation as ble the Lords Commissioners for Trade and Plantations.
The foregoing Narrative of Edmond Porter Esqre he saith is founded partly on his own knowledge and other parts on his beleife and observation as set forth in the preamble and contents of the said Narrative to the Truth whereof the said Edmond Porter made Oath on the Holy Evangelists the fifteenth day of May 1733. before me