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Colonial and State Records of North Carolina
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Minutes of the North Carolina Governor's Council
North Carolina. Council
June 04, 1740 - June 05, 1740
Volume 04, Pages 453-460


At a Council held at Wilmington the 4th day of June 1740
Present His Excellency the Governour
The Honoble Wm Smith Esqr Member of Council
The Honoble Math Rowan Esqr Member of Council
The Honoble Nath Rice Esqr Member of Council
The Honoble Edwd Moseley Esqr Member of Council
The Honoble Robt Halton Esqr Member of Council
The Honoble James Murray Esqr Member of Council

Read Sundry Petitions for Patents, Vizt

Thos Clarks 320 N. Hanover, James McLachlen 160 Bladen, Rich Lovett 855 Tyrrel, Hector McNeil 300 Bladen, Duncan Campbel 150 Do, James McAlister 640 Do, James McDugald 640 Do, Duncan Campbel 75 Do, Rd Earl 108 N. Hanover, Hugh McCraine 500 Bladen, Duncan Campbel 320 Do, Gilbert Pattison 640 Do, Jno McFerson 320 Do, Duncan Campbel 300 Do, Neil McNeil 150 Do, Duncan Campbel 140 Do, Jno Clark 320 Do, Malcolm McNeil 320 Do, Neil McNeil 400 Do, Arch Bug 320 Do, Duncan Campbel 640 Do, Jas McLachlen 320 Do, Murdock McBraine 320 Do, Jas Campbel 640 Do, Patric Stewart 320 Do, Arch Campely 320 Do, Dan McNeil 105 Do, Do (400) 400 Do, Neil McNeil 400 Do, Duncan Campbel 320 Do, Jno Martileer 160 Do, Daniel

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McNeil 320 Do, Wm Stevens 300 Do, Dan McNeil 400 Do, Jas McLachlen 320 Do, Wm Speir 160 Edgcombe, Jno Clayton 100 Bladen, Sam Portevint 640 N. Hanover, Do 640 Do, Charles Harrison 320 Do, Robt Walker 640 Do, Jas Smalwood 640 Do, Wm Faris 400 Do, Do 640 Do, Do 640 Do, Richd Carlton 180 Craven, Duncan Campbel 150 Bladen, Neil McNeil 321 Do, Alex McKey 320 Do, Henry Skibley 320 Do, Jno Owen 200 Do, Duncan Campel 400 Do, Dougal Stewart 640 Do, Arch Douglass 200 N. Hanover, James Murray 320 Do, Robt Clark 200 Do, Duncan Campbel 148 Bladen, James McLachlen 320 Do, Arch McGill 500 Do, Jno Speir 100 Edgcombe, James Fergus 640 N. Hanover, Do 640 Do, Jno Gardiner Squire 320 Do, James Hasel 640 Do, Rufus Marsden 640 Do, Hugh Blaning for Surplus Land 320 Bladen, Robt Hardy 400 Beaufort, Wm Jones 354 Do, Do 350 Do

Read the Petition of James Bell against John Smeal his obtaining a Grant for certain Lands on Harlow's Creek Carteret County he alledging he had possest and improved the said Land before the Date of the said Smeals Warrant

Ordered that James Bell have time till next Court to approve his Allegations.

Read the Petition of Col William Wilson for a Resurvey of his Lands opposite to Newbern town on the South side of Trent River Granted


At a Council held at the 5th of June 1740
Present His Excellency the Governour
The Honoble Nath Rice Esqr Member of Council
The Honoble Math Rowan Esqr Member of Council
The Honoble Robt Halton Esqr Member of Council
The Honoble Roger Moore Esqr Member of Council
The Honoble Eleazr Allen Esqr Member of Council

Read Sundry Petitions for Patents Vizt

Thos Armstrong 300 Bladen, Do a Resurvey of 300 Do, Alex Autray 110 Beaufort, James Brown 320 N. Hanover, Arthur Blackman 400 Craven, Owen Brady 200 Bladen, Chas Cogdale for a resurvey Onslow, Thos Clarke 400 N. Hanover, Do 320 Do, Edwd Conner 640 Bladen, Arch Douglass 640 Do, Frans Davis 640 Do, Math Flood 200 Bertie, Wm Faris 200 N. Hanover, Do 400 Do, Jno Griffins 250 Edgcombe, Thos Hart 320 N. Hanover, Wm Herritage 208 Craven, Edwd Jones 400 N. Hanover, James John 400 Do, James Innes 180 Do, Do 100 Do, Wm Jones 150 Edgcombe, Frans Irwin 320 N. Hanover, Godfrey Lee 640 Edgcombe, Thos. Merrick 640 N. Hanover, Thos Merrick 640 N. Hanover, Edwd Moseley 300 Do, Do Do Do, Col McAlister 320 Bladen, Edwd Moseley 400 N. Hanover, Joseph Plumer 17 Bladen, Wm Speir 160 Edgcombe, Math Smylie 120 Bladen, Do 320 Do, Math Smylie 320 Do, Do 193 Do, Jno Sampson 640 N. Hanover, James Turner 500 Bertie,

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John Watson 100 N. Hanover, Robt Walker 400 Do, Do 200 Do, Reuben —— 320 Bladen, James Wyat 320 Edgcombe, Robert Halton a resurvey of 360 joining Colonel Moore's lines on the Sound in N. Hanover


P. M. Present His Excellency
The Honoble Wm Smith Esqr Member of Council
The Honoble Math Rowan Esqr Member of Council
The Honoble Nath Rice Esqr Member of Council
The Honoble Edward Moseley Esqr Member of Council
The Honoble Robt Halton Esqr Member of Council
The Honoble Roger Moore Esqr Member of Council
The Honoble Eleazr Allen Esqr Member of Council
The Honoble Jas Murray Esqr Member of Council

Read the answer of the Honoble William Smith Robert Halton, Mathew Rowan and James Murray to the representation of Nath Rice Esqr and others delivered them by an order of Council last Court which answer is in the following words vizt

To His Excellency Gabriel Johnston Esqr Governour Captain General and Commander in Chief in and over his Majesty's Province of North Carolina

The Humble Representation of William Smith Robt Halton Mathew Rowan and James Murray Esqrs four of His Majestys Council Sheweth,

That in a paper Signed by Nathaniel Rice, Eleazer Allen, Edward Moseley and Roger Moor Esqrs four of the Members of his Majestys Council and presented to Your Excellency on the 22d of May last. We find our own conduct and the Proceedings of the last sessions of Assembly so grossly misrepresented and at the same time such arbitrary and illegal measures prescribed by these Gentlemen with an air of Authority to your Excellency that Injustice to ourselves to the whole Assembly and to the rights and liberties of his Majestys Subjects in this province. We beg leave to lay our sentiments of that representation and of the conduct of the Gentlemen sign it for these several months past before your Excellency.

As their tedious account of the casting vote is but a second edition of their Protest given in at Newbern a little improved in Stile and virulence since their arrival at Cape Fear a few words will serve for an answer to it. We were then and are still of Opinion that in case of an equality of Votes there must be a decisive Vote in the first Person in the Commission and this we take to be warranted by the practice of several corporations and Societys at Home and if ever it was necessary or allowable, We do conceive it to be so in this case for as the Council has seldom or never consisted of above eight Persons with such a Vote it would be in the power of four persons to stop all manner of business and put a negative upon Governours Council and House of Burgesses

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and this we look upon as an absurdity which can never take place in any constitution founded on that of Great Britain the Laws passed in this manner will be soon sent home and the minutes of Council along with them where these Gentlemens protests are fairly inserted and if there be any essential defect or any error in form no doubt proper notice of them will be taken by our Superiours at home who are the only proper Judges of this Affair and to whose decision We most willingly submit it and in our opinion these Gentlemen had acted more decently if they had followed this method than by endeavouring to raise a mighty noise and violent clamour on this Subject tho' all their Attempts that may have hitherto met with General Contempt except from a few of their dependents.

In what follows they endeavour indirectly and by innuendoes to fix the charges of partiality upon your Excellencys conduct during last Assembly and because they have used a good deal of artifice in this Matter We beg leave with great brevity to State this fact in its true light. when the first question was carried in the upper House by the casting vote of the Chairman these four Gentlemen and their adherents took great pains to insinuate that all these transactions were null and void and that your Excellency could not give your Assent to any Bills passed in this Manner and that if things were not carried according to their will and pleasure no business should be done at that Session when these reports had made considerable impressions on many Members of the lower House and very much discourged them in their endeavours to serve their Country your Excellency was pleased to come to Council (after giving Notice to the Speaker and other Members to attend which they did accordingly) and in a written paper to prevent mistakes declared by what rules you intended to regulate your conduct in passing of Laws and ordered this your declaration to be inserted in the Council Journal that if anything contained in it was either unjust or illegal it might meet with proper censure at the Offices to which these Journals are regularly sent this was in our opinion fair and open dealing and as your Excellency declared you had no intention nor pretended any right to interfere in our dispute as in Upper House We cannot see what occasion there was for hearing one or both parties as your Excellency never took upon you to judge in our affair at all so that their insinuation of your Excellency's refusing to hear both parties is very unjust this Seasonable Interposition however quieted the minds of the Burgesses and they heartily proceeded to dispatch as much business as the restless and factious intrigues of the representers and their friends would give them leave to overtake these Gentlemen seem to be highly offended with your Excellency for guarding

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your expressions and so cautiously avoiding giving offence to either party. It would be extremely kind in your Excellency to do or say some thing which may afford these Gentlemen a real Subject of complaint or of writing for it seems plain to us that rather than be without any they are willing to create a Subject to themselves tho' we are very confident the whole Province will be in the opinion that it had been greatly more becoming in some of these Gentlemen especially if your Excellency had made any slip or fallen into any mistake to excuse and alleviate it rather than to rack their inventions to render criminal an action not only innocent but laudable what they assert about the irregular sending down of the Bills which were first passed is equally false and unjust when a Bill takes its rise in the House of Burgesses and is thrice read in both Houses it ought of course to be sent to the House where it took its rise and after it has been thus sent Your Excellency as Governour has undoubted right to command the Attendance of both Houses and to pass such Bills as are ready for your Assent after these three readings they can neither be altered nor detained by any set of men under pretence of forcing the Legislature to pass at the same time any other Law particularly such a righteous one as that for rating the Commoditys of this province as was intended last Sessions by these Gentlemen.

But the most shocking part of their Humble Representation is their Petition at the latter end in which they very modestly desire your Excellency to repeal the Wilmington Law by Proclamation to declare it no law and to forbid all persons to look upon it as such this is such an Insolent demand and discovers such a violent, restless and arbitrary Spirit that We are sure it will not admit of a parallel in any Province of America from the first Settlement thereof to this day. It belongs to His Majesty in Council and to him alone if there is any thing amiss in this or any other Law to declare it Null and void

What a misserable scituation would the Inhabitants of this Colony be in if Laws Read and ratifyed in open Assembly were to be declared no Laws whenever four Gentlemen shall obstenately Persist that they dont like the manner of passing them or how little must these Gentlemen be acquainted with your Excellency's great regard to his Majestys Perogative to the good of his Subjects and how much must they have forgot the remarkable Steadiness of Your Conduct but thereto to flatter themselves that to gratify the little Spleen [malice] and private Interest of a few people in the neighbourhood of Brunswick you would so far forget your self as to declare that Law null and void in Council which you have solemnly given your Assent to but three months before The very Supposing such a trifle is so great an Insult to your Excellency's Character

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that We are sorry any Persons who has the Honour to Sit in his Majestys Council should be guilty of it and We are sure your Excellency has never deserved such treatment from them. We think ourselves obliged in answer to some parts of their Representation to declare unto your Excellency that We knew it to be the universal opinion of the People that the Law for making Wilmington a Town is one of the best ever passed in this Province the Depth of Water which admitts Ships of considerable Burthen the easy access to it from all parts of the Goverment except a little inconsiderable part about Brunswick its healthful Scituation and fine Springs must in a Short time make it a very considerable Town to the great advantage of the whole Province We allow indeed that the Platte below Brunswick may have two foot more water than the Banks below Wilmington, But to balance that it is notorious that Brunswick is the most sickly unhealthy place in the whole Colony. In the Short time your Excellency has been in the Government no less than three Collectors of the Customs have dyed there in that space. We cant recollect above three House Keepers who lived there at your Excellency's Arrival who are remaining in it at present some few of them indeed removed by reason (as we Suppose) of its Sickleness but the rest as far as we can Judge have been actually killed by the unwholesome Water and the Pernicious Vapours rising from the Ponds and Marshes with which it is almost Surrounded so that if there realy was anything amiss in the manner of passing this Law which we are far from admitting yet still the reason of the thing is on our side and after all the pains they have taken to place our conduct in an odious light the worst can be said of it amounts only to this that we have been guilty of a mistake a mere error in judgement which if it is reckoned such at home (as we hope will not) can be easily set rights

But as these Gentlemen have been pleased to take such Liberties with us. We hope your Excellency will excuse us if we endeavour to remind them of their own behaviour ever since the famous Period of passing the quit rent Laws when the whole province might have remained in quiet and repose if their assuming turbulent proceedings had not prevented it.

They began by issuing out their positive orders to the Naval Officer and Collector to officiate at Brunswick althō they had no more Power to direct those Officers where to keep their offices than the meanest planter in the Government has and it only belongs to your Excellency and the Surveyor General of the Customs to appoint the place of their Residence

When they found their ridiculous commands entirely disregarded and contemned they sent their Emissaries abroad to threaten that by their

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mighty Interest at Home they would turn out these Officers for their contamacious behaviour it is indeed no wonder they take upon them to displace such officers as these when it is well known that it is become the jest of the whole Colony that when they meet at their little Cabals they sometimes even take the Libertys to depose Your Excellency and the Chief Justice and such Members of Council as fall under their displeasure they make short work with and this they very gravely go about with all the solemnity of Sovereign rule except the power of putting their Sentences in Execution

Their next attempt was to remove the Chief Justice appointed by His Majesty and to send for one of their own from South Carolina whose character there especially amongst those of his own profession is far from such as would recomend him to honest men after such incredible industry and art aspersed His Majestys Chief Justice by the most horrid and vile Calumnies all over the province they very confidently brought their new Judge to Newbern where the Assembly was to meet and along with him a tedious Libel of his own composing not in the least doubting but upon their signifying their Pleasure the House of Burgesses would impeach the Council condemn and in consequence of all this your Excellency suspend the Chief Justice of the Province appointed by the King to make room for one of their nomination but here again they found themselves Most miserably disappointed for the House of Burgesses of this province thō perhaps the most Jealous of all Officers and the most impatient of the least oppression of any Assembly of men in his Majestys Dominions were so sensible of that Gentlemen's Integrity and faithfulness in the discharge of his Office were so fully convinced of what was at the bottom their design to put in a tool of a Chief Justice in order to get the Supreme Court of Justice and consequently the whole property of the province under their own management that after nine hours debate in the fullest House that ever was known they Rejected with great Indignation by a great Majority their infamous accusation.

Their last attempt was to pass a Bill by which all even the most cumbersome and Inconsiderable Commoditys of this Country were to [be] rated at almost double their value and delivered at such places where most of them by reason of the distance from Water Carriage could not have fetched the fourth part of their real value with these Commoditys so delivered were all past and future Debts all Publick and Parish Taxes and all Officers Fees to be paid a Law that would for ever have discouraged Strangers from trusting their effects in this province rendered the carrying on of the Government absolutely Impracticable certainly

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prevented any regular Clergy from ever being Established here made the posts of every Officer good for nothing and reduced the whole Province into Anarchy and confusion and yet this unjust this wicked law so big with mischief was most strenuously voted for by three of these Gentlemen the fourth indeed as his own fees were considerably affected by it thought fit to join us in rejecting it

Upon the whole we are we are extreamly willing to submit our whole behavour to the Judgement of our Superiours at home to Your Excellency or to the Judgement of all the People and do not at all question that when it comes to [be] enquired into it will be found to be at least equally Loyal to His Majesty Dutiful to your Excellency and tender of the Rights and privileges of our fellow subjects as that of the Gentlemens who endeavoured to cast such intolerable reflections on the Conduct of the whole Legislature because they wont make and repeal Laws according to their Will and pleasure.

WILL SMITH
ROBt HALTON
MATH ROWAN
JAMES MURRAY

Ordered that the name of John Swann and Jehu Davis be struck out of his Majestys Commission of the peace for New Hanover County for a refusing to act upon the tryal of a Negro and that John Sampson Esqr be added to the Justices in the said Commission

Read the Petition of Cornelius Harnet Sheriff setting forth that in February last it was Ordered in Council that the sum of twelve pounds ten Shillings sterling be paid to the Sheriff of New Hanover and Chowan severally for their attendance and expences upon the Courts of Oyer and Terminer but that the said order was omitted to be entered on the Journals. He therefore prayed renewal of the said order which was Granted

Ordered that the Colony Seal be affixed to the Representation of Nathaniel Rice Esqr and others in order to be sent Home.

Ordered that the Colony Seal be affixed to the Answer of William Smith Esqr and others in order to be sent Home.

A Motion being made at the Council Board by Eleaze Allen Esqr setting forth that Richard Lovet Clerk of the upper House refused to deliver Copies to the Members of Council of the proceedings in the upper House of Assembly

Ordered that the said Lovet for the future deliver Copys of the proceedings of the said upper House to any Members of his Majestys Council when they demand the same and attest the same under his hand.