General Remarks on such Clauses of the Quit rent & Cultivation Acts passed in North Carolina in 1738, as are conceived to be Inconsistant with His Majesty's Instructions, the Constitution and Laws of England, & the Rights of His Majestys Subjects in America.
Most humbly submitted.
1st. The Quit rent Law directs the Justices of the Peace in each County on Albemarle sound, to erect or hire store houses, for the Recept of such Commodities as shall be paid in discharge of Quit rents, & at the same time empowers them to levy money by was of Poll Tax, in order to defray the Charge of the Collection, or Reception of the Commodities so paid in.
The Legality of this Clause in the Act is submitted; But as it regards the Rights of the People, it will appear evident that the poor (who ought to meet with the greatest Encouragement in New Settlements) will
2nd. The Receiver General is impowered to appoint a Person in each County for the Reception of Comoditys in lieu of Quit Rents at the rates & prices, and subject to the Regulations in the Act prescribed.
To ascertain or rate Comoditys, the value of which are in their Nature fluctuating & incertain, & which must & will vary & differ, notwithstanding any such nominal price as may be put upon them, according to the Demand that may be for them, is conceived to be unjust & illegal as it may in many instances occasion the subjects being obliged to deliver to the Crown their Comoditys at a lower price than they would produce in the Market, & must in almost every instance, be the Occasion of the Crowns receiving more or less in real value, than the amount of the Quit rents.
3rdly. All Quit rents reserved & made payable on any Grants or Patents for Lands, if paid or Tendered to be paid in Gold or Silver, shall be paid at Proclamation standard, peny for peny Current money of any other Denomination, Anything in such Patents or Grants to the contrary notwithstanding.
The Quit rents reserved on the Grants issued in the time of the late Lords Proprs were to be paid in sterling money. By this Clause in the Act, they are to be paid in Proclamation money which makes 33⅓ per ct difference in the Exchange And therefore ought not to have been assented to by the Governor without the particular licence of the Crown; And the doing it without was a direct breach of his Instruction, besides as my Lord Carteret is concerned in Interest with the Crown. It is submitted whether this may be agreable to the Saving Clause, in the Act of Surrender.
4thly. The Exchange between Publick Bills of Credit & Sterling money shall be Regulated on or befor the 6th of March yearly, By the Governor Council and an Equal Number of the House of Burgesses.
This Clause in the Act renders everything uncertain & precarious for as Commodities fluctuate, so they must regulate the Exchange of their Bills of Credit, or otherwise they will soon have no credit at all, and the whole Trade and Commerce of the Province be lost For what they may Tender or pay to day, an Equivalent for one Hundred Pounds sterling may in Ten days after not be worth Fifty Pounds Sterling, so that what this Clause requires is impracticable to be done without endangering the
5thly. The Records or Abstracts of Patents recorded or the Exemplification of such Records where the Original Patent is lost or destroyed, shall be as good as if the Original Patents were produced & if the Quit rent on such Patents cannot be discovered by the record, then & in such Case the Grantee shall be Chargeable with the highest Quit Rent reserved to the Lords Proprs in the Respective Countys where such Lands lye.
This seems to be a Clause of a very extraordinary Nature and greatly to Effect the Rights of the Crown as well as to be against all Notions & Rules of Law. For to make an imperfect Abstract of a Patt as good as if the Original Patent was produced, can tend to nothing but to open a door for frauds upon the Crown. And tho' nothing be recorded but these words Vizt A Grant from the Lords Proprs to A. B. of 100,000 Acres of land in County under a Quit rent of for every hundred Acres. And which anyone may have entered, who never had a Grant. Yet this is by this Act, against all the Rules of Law made good Evidence against the Crown, & A. B. would hold the land under this low Quit rent of per hundd Acres, for the Grantee is only to be subject to the Highest Quit rent, where the rent reserved cannot be discovered by the Record which is a Case will never exist for as all these Entrys of Abstracts only was founded in Fraud, so the lowest Quit rent will appear in every one of them.
6thly. The Quit rent law directs that all Patents which have passed the Seal of the Province before the 25th of July 1739, which are registered in the Secretary's office, or in the Auditor's office, or which shall be tendered to be registered in the office of the said Auditor, within 8 months after the Ratification of this Act, or for which the Quit rents on such Patents have been paid, shall be and they are thereby declared to be good & valid, to all Intents & Purposes whatsoever, provided always that no such Grant which shall hereafter be tendered to be registered within 8 months shall be good & Valid so as to defeat the Title of any Person Claiming under the Crown; unless the Party shall prove before the Gover & Council to their satisfaction, that such Grant was compleat, before the time of issuing the Warrant on which His Matys Grant was founded. And provided that the whole number of acres granted from January 1727 to July 1729, mentioned or intended to be secured by this Act, do not exceed the number of one Hundred & fifty Thousand
The late Lords Proprs Granted Patents for many Hundred Thousand Acres of land, which are not till this day surveyed or admisured out. By the Act of Surrender to the Crown, all those who had surveyed & taken up their lands before the Year 1727 were to be confirmed in their Possessions but such as had to that time Neglected it, were with great Justice precluded from any right of doing it afterwards. Whereas this Clause in the present Act breaks in upon & quite overturns the wholesome provision, & at once removes the strong & prudent Guard, & lets in all those Frauds & Impositions on the Crown, which the Act of Surrender was intended to prevent. And in direct opposition to the Act of Surrender, this present Act is to secure all such who have taken up Lands since 1727, tho' by virtue of old Rights, & not only so, but in a most Extravagant & barefaced manner, & to the obvious Injury of the Crown impowers the holders of Proprietory Patents, to take up Land under old Proprietory Grants, even now, & for the future, till within 8 Months after the Ratification of this Act, by which means the Frauds intended to be remedied by the Act of Surrender, will be revised & let in upon the Crown, & the Rights of many of His Majestys Grantees overturned & sett aside, & the state of the Grants, & Quit rents of the Crown be all thrown into the utmost disorder & Confusion; & by the very Extraordinary Powers, given to the Govr & Council to pull down & sett up what Grants they please, a most astonishing Inlett is opened to all manner of Frauds & Perjuries, with regard to Grants of Lands & the Restrictions provided by this Clause when considered, must appear to be of no weight to guard or prevent, any of the many mischiefs that must unavoidably arise from such a Clause as this is,—The Limitation of 8 months is from the time that His Majesty may be pleased to ratify this Law instead of a Restriction gives the largest Latitude possible to introduce all the inconveniences that are apprehended to arise from a Clause of this Nature—the Title of the Grantees under the Crown, not being to be defeated unless the Person claiming under the Proprietors grant shall prove before the Governor & Council to their Satisfaction, that such grant was complete before the issuing the Warrant under which His Majestys Grant was founded, will still leave the Grant under the Crown very precarious, as it will depend wholly upon the will & pleasure of the Governor & Council. And tho' the Grantees under the Crown, should have been at a great Expense in improving theirr & Council may yet permit a Dorment Title to be sett up against them & disposes them at pleasure, the Quantity of Acres limited by this Act, does not preclude others who have Patents dated before 1727 or since 1729 to claim Lands in right of them, Besides if before the 8 months expired, Grants should be tendered to be registered for more than 150000 Acres which shall be preferred & which rejected, & what injustice & Confusion must be the Consequence of this Provision. But there are still other objections, & if possible still stronger against this Clause, which is apprehended to make one of the greatest & most violent Breaches, that has been ever attempted since the Restoration, on the Laws & Constitution of this Kingdom, As it draws matters of Property & Title to be originally examined into & Determined by the Govr & Council which is against all the most Fundamental Principles of Law. The Grants of the Crown are of the most sacred nature, and ought not nay by Law, cannot be rescinded & sett aside, but by due course of Law, in the fair com̄on ordinary Method of Tryal by a Jury. And the Governor & Council can have no Cognizance of it, but on an appeal by way of Writt of Error, & therefore this Act, by giving them a power to Determine & Defeat the Title of the Grantees under the Crown in the first Instance, by way of original Jurisdiction, & that too, in a sum̄ary way, & without being held to legal proof, or any other proof, than what may be to the satisfaction of the Govr & Council, is against the first principles of Law, Destructive of ye undoubted Rights & Libertys of the subject, breaks in on Magna Charta, & all the Laws of Great Britain, Securatative of the rights of the subjects, takes away & Confounds the Jurisdictions of Courts & is wholly unprecedented, no Law of this kind Existing in any of our Plantations.
And it is apprehended that the subjects too have no remedy by way of appeal from any Determination of the Govr & Council under this Law to His Majesty in Council. For it is conceived the Lords of the Council, would not receive an Appeal from a Determination made by the Govr & Council, in the first instance where the Case had not before undergone a Legal Tryal in the Comon Ordinary Courts of Justice, and which yields another strong objection against this part of the Act.
7thly. All Persons who are in possession of Lands by virtue of Patents under the late Lord Proprs seal bearing date on or since the 25th day of July, 1729, shall not be disturbed or called in Question concerning their right to such Lands, until His Majestys Pleasure concerning the same shall be made known; And if His Majesty shall disapprove of the said Grants that then & in such Case the persons claiming under them shall be intituted to hold the same subject to & under the Quit rents reserved made payable by His Matys Grants.
By this Clause in the Act, if His Majesty should wholly disapprove of the Patents passed since 1729 Yet the Patentees are intituled to hold the Lands they are in possession of, and if they are not in possession of any Lands, they may yet by the favor and protection of the Govr Disposses His Majestys Grantees, which is giving too great a countenance to these Exhorbitant Grants, obtained in a manner that deserves no such marks of the Royal Favour, more especially as this confirms them in possession of all the Lands that are in their Exhorbitant Grants, thō not one Acre of it should be improved, and thō the Crown should disapprove these Grants and thō they should Contain Tracts of land ever so large and unreasonable. Yet by this Act the Grants themselves are Established and Confirmed, and the Grantees of the Crown, tyed up from disputing the Validity thereof, subject to the Quit rents reserved by His Majestys Grants and disabling His Majesty from preferring and supporting His own Grantees to whom he may have made Grants of these Lands. All which are humbly represented as very extraordinary powers Prejudicial to the just Rights and Perrogative of the Crown, and such as the Govr by his Instructions was restrained from assenting to, and as powers unreasonable & improper in themselves, and no ways fitting to be enacted into a Law.
8thly. The Act runs thus, And whereas it may so happen that divers of the Grants issued by His Majestys Govr & Council, may interfere with those passed under the Lords Proprietors Seal, since the 25th of July 1729. Be it Enacted that all such His Majestys Grants, shall be deemed good & valid unless it shall appear that such Grants were surreptitiously obtained (that is to say) That the Kings Grantee obtained his Grant, when at the same time the same bears date, the proprs Patent, was actually recorded in the Secretarys office, and such land had been improved by himself or others. Or when the Lords Proprs Patent or Grant was at the time His Majestys Grant bears date, recorded in the Secretarys office, and the land was then generally reputed to be held by the Proprs Patent or Grant, or where the Lords Proprs Patent or Grant at the time the Kings Grant bears Date was actually recorded in the Secretarys Office and the Kings Grantee was told of such Grant, & provided also that His Majestys Grant shall not affect the Lands of any Person who claims under the Lords Proprs Patent and were Minors at the time His Majestys Grant bears date. And the Govr and Council are hereby authorized to decide all Questions relating thereto, provided the Persons claiming under the Lord Proprs Grant, Exhibit Petitions in the Secrys office within 12 Months after the Ratification of this Act.
The Conditions required of such as hold patents under the Lords Proprs since the year 1729 are so worded, that it is impossible to know what is intended by them, But it may have this Effect, that it will leave all matters in Dispute wholly to the Determination of the Govr & Council, in such manner as they shall see proper. By the observations already made, it appears that the limitation of One Hundred & fifty Thousand Acres is only between the years 1727 & 1729. So that all the Patents either before 1727 or since 1729. (of which I am persuaded there are to the amount of One Million five hundred thousand Acres subsisting) may without any Limitation as to the Quantity of Land, at a small Quit rent be confirmed by the Govr & Council at pleasure, & that even to the prejudice of His Majestys Grantees, the Powers here given to the Govr & Council, are of a most extraordinary nature, & lyable to all the same objections offered against the preceeding 6th Clause & the subjecting the Grants of the Crown to be sett aside at all by the Govr & Council in an Original Sum̄ary way on Petition to be lodged in the Secretary's Office, but more Especially under the uncertain & precarious terms mentioned in the Act Vizt if the land was generally reputed to be held by the Proprs Patent or if there was a prior Grant from the Proprs & the Kings Grantee was told of such Grant, is something of so very extraordinary & surprizing a nature, & lyable upon the face of it to so many objections that it is matter of wonder how the Govr could be prevailed on to assent to such a Law, without at least incerting a suspending Clause in it, and as the proving what was the general repute, And what might be told the Crowns Grantee, must all depend on Paroll Evidence, it requires no great skill to point out what a wide door is by this Act opened to Perjury; and all those many dreadfull Mischiefs & Inconveniences which our statute of Frauds & Perjurys was Calculated to prevent.
That all Persons possessed of Lands, by any Titles under the late Lords Proprietors shall Register their Original Grants (if they are not Registered at present) as well as their Mesne Conveyances, in the Auditors Office, within 8 months from the Ratification of this Act, and that all Grants under the late Lords Proprietors or under the Crown, & all Mesne Conveyances which shall not be registered or tendered to be registered, either with the Auditor or Clerk of the County Court, where the land lyes shall be null & void. Except pertaining to Orphans or Minors, who are to be exempted from any forfeiture till 12 months after they are of age and the Act further Directs, that for the better ascertaining a rent roll, the Publick Register in each County, shall before thet of all the lands, bequeathed by Wills.
This Clause in the Act is drawn up with all the Art they were Masters of, in order to colour over their Designs, & to make the Law in some particulars appear to be for the service of the Crown, tho' in fact it is otherwise.
In the time of the late Lords Proprs no Patents or Grants were deemed perfect till the survey was returned, & a regular Entry made thereof, in the Secretarys Books, which rule or order was always comply'd with by the fair purchasers, & such as have taken up Lands by Virtue of Patents fradulently obtained, have likewise comply'd with this Rule, the Grants under the Crown may likewise be discovered by the records of the Countys the Secretarys Books, & the Minnets of Council, so that all that is necessary to discover the Rights of the Patentees under the late Lords Proprs and the Grantees under the Crown, is a fair Examination of the Registers, which may be had without an Act of this kind, but under this Disguise it is, that they intend to Confirme all those Patents, who at present lye Dorment, of which (I am informed) there are in this City to the Amount of one Million of Acres, besides infinite Numbers of blank patents in several planters hands abroad, which may be fill'd up at pleasure, so as to exempt the holders of them, from the Payment of Quit rents and also from their being lyable to settle & cultivate their Lands, & by the Direction of this Act, they may by the favour & protection of the Govr & Council, Dispossesses His Majestys Grantees, even tho' they should have Cultivated & improved their Lands. These few observations, amongst many others, which might be offered are humbly submitted, with regard to the Particular Clauses, & parts of the Act, pointed out in the opposite Margent. To which I shall only beg leave to add the following General one, which goes to the whole Act, Vizt That there is no suspending Clause in the Act, as there ought to have been, & is expressly requir'd in a Law of this nature by several of the Govrs Instructions & for want whereof this Law is passed in breach & open defiance & Contempt of the Royal Instructions, which ought to be observed with the strictest regard & Obedience.
By an Act intituled the Cultivation Act, all persons who hold Lands by Virtue of Grants under the Crown, are only required to clear one acred Chancellor, when Attorney General, In obedience to Directions given him for that purpose, prepared the form of a patent to be observed in South & North Carolina which was to this Effect, Namely, That it should be incerted in the body of the Grant that every Grantee should Clear & Cultivate Six Acres in the Hundred in three Years, or that in failure thereof the Lands granted should revert to the Crown.
Governor Johnston in North Carolina complyed but in part with this Order and made the Grantees only lyable to Clear & Cultivate 3 acres in the hundred in 3 years, from the date of their Patents. However this being found inconvenient to many of his friends, who had engrossed large Tracts of Land, not with a view to Cultivate & improve, but to sell to others, he has passed the above mentioned Law, in order to release them from the cultivating Restriction laid on them by the Grant, & to give them 3 years more to clear but one acre in the hundred, so that if this Law is not repealed, the Crown will have no security for the payment of the Quit rents which wholly depends on the improved Land, nor will the Possessors of the Grants promote the settlement of Lands in the manner that other ways they might find it their Interest to do, and the Royal Intention of putting the Grantees under an obligation of improving the Land be wholly defeated & disappointed, and the land be wholly uncultivated, the Royal intention was that 6 Acres in the hundred should be cultivated in 3 years. The Governor in the first instance went half way to defeat this, by holding the Grantee to improve but three Acres in the hundred in 3 years under the Conditions of his Grant and this tho' so reasonable in itself, & so easy to be complyed with, and which most certainly would have been complyed with, had there been any intention in the Grantee of cultivating the Land at all, was still to be further released, and an Act passed to dispence with the Terms and Restrictions of the Grants, and to give 3 years more to improve only one acre in the 100, so that instead of six Acres in the hundred being improved in 3 Years, the Govr has thought fit to give the Grantees 6 years to improve only 1 acre in the hundred, and when these New 3 years are expired, it will be as little a stretch to discharge the Grantees from the cultivating Clause quite, but how an Act of this kind can be considered as a Cultivation Act, is something difficult to account for the Enacting part of this Act being of a quite different Nature from what the Title of the Act would lead one to Expect. And if this Law should receive the Royal assent it is no difficult matter to foresee that the further Cultivation of this Province is at an end, and such a Wound will be thereby given to the Quit rents of the Crown as they will not easily be able to recover, and all the Forfeitures,
And notwithstanding all these ill Consequences arising from this Act to the Rights and Revenues of the Crown, the Govr has in manifest contempt of his Instructions thought fit to pass this Law, without any suspending Clause in it.
For all which amongst many other reasons, It is humbly proposed, that this Act shall likewise receive the Royall Disallowance.
Recd: from Mr McCulloh.