Mr Attorney and Solicitor General's Report & Opinion upon several Queries relating to Quit Rents &c: in North Carolina.
George Duke of Albemarle, Master of His Majesty's Horse, Edward Earle of Clarendon, William Earl of Craven, John Lord Berkley, Anthony Lord Ashley Chancellor of the Exchequer, Sr Geo: Cartrett Vice Chamberlaine of his Majesty's Household Sr William Berkley and Sir Peter Colleton Bart The true absolute Lords Proprietors of all the Province of Carolina.
To our Trusty & Welbeloved Samuel Stephens Esqre Govr of the County of Albemarle & the Isle & Islands within 10 Leagues thereof. And to our Trusty & Welbeloved, our Councellors and assistants to the said Govr Greeting.
Whereas we have received a Petition from the Grand Assembly of the County of Albemarle praying that the Inhabitants of the said County may hold their Lands upon the same terms and conditions that the Inhabitants of Virginia hold theirs and forasmuch as the said County doth border upon Virginia and is much of the same nature we are content and do grant that the Inhabitants of the said County do hold their Lands of us the Lords Proprietors, upon the same Terms and Conditions that the Inhabitants of Virginia hold theirs; Wherefore be it Known unto all men by these presents that we the said Lords and absolute Proprietors of the County within the Province aforesaid have given and granted, and by these presents do give and grant full Power and Authority untor for the time being or that shall hereafter be by us appointed, full Power and Authority by and with the Consent of our Council then being or the major part thereof to convey and grant such proportions of Land as by our Instructions and concessions annexed to our Commission bearing Date in October Anno Dom: 1667. We have appointed to such persons as shall come into our said County to plant or inhabit to be held of us our Heirs and assigns, upon the same Terms and Conditions that land is at this present usually granted in Virginia anything in our Instructions and concessions aforesaid to the contrary notwithstanding, and we do hereby declare and consent that the Warrant to the Surveyors for the laying out of the said land and the return thereon being registred and also the Grant of you our said Governour and Council or Governour and Council that shall when such Land is due having the seal of the County affixed to it and signed by yourself, and Major part of our Council for the time being being registered, shall be good and effectual in Law for the enjoyment of the said Land and Plantations and all the Benefits and Profits of and in the same except one half of all Gold and Silver mines to the Party to whom it is granted, his heirs and Assignes for ever, he or they performing the conditions aforesaid, Given under our hands and Great Seal of the Province this
Q. 1st Whether the above Deed be revocable in whole or in part.
We are of opinion that the above Deed was revocable in whole or in part at the pleasure of the Lords Proprietors But not so as to effect Grants made pursuant to such Deed before the Revocation thereof.
Geo: Duke of Albemarle Capt Genl of all his Majestys Forces, Edward Earl of Clarendon, William Earl of Craven John Lord Berkley Anthony Lord Ashley Chancellor of the Exchequer Sr George Carteret vice Chamberlaine of his Majestys household Sr Peter Colleton Bart and Sr William Berkley Knt
To our Trusty and Welbeloved William Sayle Esqre Governour of all that Territory or part of our Province of Carolina that lyes to the Southward and Westward of Cape Carteret and to our Trusty and welbeloved our Councellors and Assistants to our said Governour Greeting
Be it known unto all Men, that we the Lords and absolute Proprietors of the Province aforesaid for divers good Causes and Considerations but more especially out of the Trust and Confidence resposed in you our said Governour and Councellors for the faithful management of the Power and Authority by Us to you given, to the best avail and Improvement of our Interest and Dominion in the Territory aforesaid haved King of England, Scotland France and Ireland Defender of the Faith bearing date at Westminster the 20th day of June in the 17th year of his Reign to be exercised nevertheless according to such Instructions and with such Limitations, Restrictions Conditions and Provizoes as are hereunto annexed and in these Presents are hereafter contained hereby ratifying and confirming and allowing all and every such act and acts, thing and things which our said Governour and our said Councillors in our names shall do in the Premises pursuant to the Authority hereby committed and which is not contrary to our Instructions and our Fundamental Constitutions and form of Government herewith sent under our hands and seals.
Provided also that the Executive part of all the said Powers herein given shall be made and exercised by you our said Governour by and with the advice and consent of the Major part of our Council, and if it shall happen that our said Governour shall depart or be absent at any time from our Territory aforesaid unless other Provision be by us made that then it shall and may be lawfull for our said Governour by the advice and Approbation of the Major part of his Council under his hand and seal to nominate and appoint a Deputy giving and granting unto the Person so appointed as full, large and ample powers as we by these presents unto our said Governour have given anything in this present commission in any wise to the contrary notwithstanding, and if in case our said Governour should happen to dye or depart without nominating any Person to be his Deputy, we do then give and grant unto our said Councilth day of July 1669.
Any Person having brought servants to Plant, shall make the same appear to yourself and Council who shall thereupon issue out a Warrant to the Surveyor General to lay him out a parcel of Land according to the Proportions mentioned in these our Instructions and the Surveyor having done the same and the Warrant with the Surveyor General's return thereupon being recorded and the Person to whom this Land is granted having sworn or subscribed allegiance to our Sovereign lord the King and Fidelity and Submission to the Lords Proprietors, and the Fundamental Constitutions and Form of Government, you are under the Seal (for that use provided) to pass this following grant: Geo: Duke of Albemarle Capt Genl of all His Majesty's Forces Edward Earl of Clarendon, William Earl of Craven, John Lord Berkley, Anthony Lord Ashley Chancellor of the Exchequer Sr Geo: Carteret Bart Vice Chamberlaine of [His] Majesty's Household Sr Peter Colleton Bart and Sr William Berkley Knight The true and absolute Lords Proprietors of the Province of Carolina Do hereby Grant unto A. B. of the county of in the Province of a Plantation in the Town of in the county aforesaid containing Acres English measure bounded to have and to hold to himself his heirs and assignes for ever, yielding or paying to the said George Duke of Albemarle, Edward Earl of Clarendon, William Earl of Craven, John Lord Berkley, Anthony Lord Ashley Sr George Carteret, Sr Peter Colleton and Sr William Berkley Lords Proprietors as aforesaid their Heirs and Assigns every 29th Day of September which shall be after the 29th of September 1689, one penny of Lawfull English Money or the value thereof for every of the said acres to be holden in free and common soccage Given under the Great Seal of the Day of in the year of our Lord This grant you and three more of your Council are to sign, and cause the same to be recorded in the Register Office the which shall then be deemed a full and firm conveyance of the Land therein mentioned unto the person unto whom it is Granted and his Heirs and Assignes forever he paying the Rent &c.
Q. 2d If the aforesaid Deed be revocable is the same revoked either in whole or in part by this Instrument. Supposing this last Instrument
Q. 3d If the aforesaid Deed of 1667 be revoked in the whole or in part of this Instrument of 1669 are any Grants made by the Governour under the Lords Proprietors during the time that this last Instrument continued in Force valid in Law, unless the Quit Rents thereby recited have been reserved and the other conditions there specified have been inserted in such Grants.
We are of opinion that the not complying with the directions of this Instrument of 1669 in reserving Quit Rents and the other conditions requisite is such a defect as would render them void in point of Law unless the Grantees have had a long and quiet enjoyment under them, in which case we apprehend the original Defect will be cured.
Q. 4th If the form of a Grant annexed to the aforesaid Order has been duly Whether the Quit Rent ought to be paid in sterling money or if there be a Liberty to be paid in Commodities, is the Crown the proper Judge of the Value of those Commodities, and in either case are the Inhabitants oblidged to carry their Quit Rent to some proper Place appointed to the Crown, within each Precinct for the reception thereof.
We are of opinion that the Quit Rent is not demandable in Specie but may be paid in Commodities at the Election of the Grantees, according to the value of sterling Money there. In which case neither the Crown nor the Grantees are the absolute Judges of the value of those Commodities which must be determined by their Market price. And as to the place of payment, we think it ought to be the place of the Kings General Receipt within the Province, or otherwise upon the Respective Lands out of which the Quit Rent issues, but not at any other places to be appointed by the Crown.
No Act or Order of Parliament shall be of any Force unless it be ratifyed in open Parliament during the same Session by the Palatine or his Deputy and three more of the Lords Proprietors and their Deputies and then not to continue longer in Force but till the next biennial Parliament unless in the mean time it be ratified under the hands and seals of the Palatine himself and three more of the Lords Proprietors themselves and by their order published at the next Biennial Parliament
Q. 5th As many of the Laws of Carolina were never confirmed by the Lords Proprietors according to the above constitution but have always been in use and submitted in the Colony Are such Laws to be deemed Void. Or if not Void are they repealable by the Crown.
As the circumstances and duration of each particular Law may have great Influence on the Question concerning their present force, we cannot give any precise answer to this Question and can only say in General, that as to Old Laws which have been in use amongst the people and acquiesced in by the Proprietors we are of opinion they are not void or now repealable by the Crown notwithstanding the defects mentioned in the Quere