Observations in relation to His Majesty's Order of Council, dated the 19th of May 1737.
Most humbly submitted to the Right Honourable the Lords Commissioners for Trade and Plantations.
It is Humbly Conceived that the recital of your Lordships report in the said Order of Council makes it appear evident that the Petitioners only engaged to undertake the settlement of the Lands prayed for, upon condition that they should have the liberty of taking up one million two hundred thousand acres of land upon the heads of Pedee, Cape Fear, and Nues rivers, which liberty could only consist in their having a right to determine what proportion of land they would have (under the limitations herein after mentioned) upon the heads of those rivers respectively; And also in pointing out to the surveyor in what places the said surveys were to be made, and in what proportion the lines of the Survey were to be run within the bounds limitted in the said Order of Council. The constant practise of all Surveyors not only in this Province but in all His Majestie's other Provinces on the Continent of America, is to have notice from the parties in what place they are to begin the Survey of any Land, by virtue of warrants delivered to them; And in the present instance there is much stronger reasons for it; As it is made a condition not only in the Petition of Murray Crymble James Huey and their Associates, but also expressly directed by His Majesty's Order of Council; That the Parties shall be admitted to take up the said Lands subject to the limitations therein contained.
Murray Crymble James Huey and their Associates in their Petition, after first praying for the liberty of taking up the Lands, That is to say in pointing out where the Survey was to begin; in what proportion their separate shares were to be run out; And in what quantity the lands were
By the aforegoing Article recited in His Majesty's Order of Council, it appears, that in running out the Lands the Parties were to be at Liberty to take them up in separate Parcells of one hundred thousand acres each, Provided that no Survey was at greater distance than ten miles from some or other of them, But Captain Rowan having obtained His Majesty's order of Council, by fraud, went hastily on the Survey without any orders from Murray Crymble & James Huey or any person authorized by them, and surveyed a million of acres in one district upon the Branches of Pedee and Wattree Rivers and insists contrary to common sense, and to the plain meaning and intents of His Majesty's order of Council, that as he has made several lines through the said Survey, that the Lands surveyed by him, is agreeable to the said Order, & is to be deemed and taken as ten different parcells of Land; Captain Rowan has also acted contrary to the above recited Article, in leaving a greater space than ten miles between the million of acres surveyed on Pedee and the Lands surveyed by him on the heads of Cape Fear and Nues Rivers.
By the next recited Article, His Majesty is pleased to direct, that the Lands shall be granted by the Governor to the Petitioners and their Associates in such Proportions as shall be required by them; but no Grant to contain less than twelve thousand acres. By which I humbly conceive it appears evident, that the Surveyor General had no right to make the Survey without first having notice from the parties; as in that case he could not make the return of the survey in such Proportions, nor in such Places as might be required by them; And in consequence the Grants could not issue in pursuance of his Survey; And it may be remarked further, that what Captain Rowan contends for is inconsistenttie's said Order of Council; in preventing them from having their Grants made out separate and independent of each other; And it would throw a power into the Surveyor's hands of exacting what Fees he pleased, or otherways of running out their lands in such manner that it would make it impracticable for the Petitioners to settle them; And in the present Instance, he has really done so; As he has taken into the Survey upon Pedee River near three hundred thousand acres of Land; which is claimed by the Catauboe Indians And which they will by no means permit any white Settlers thereon; without at least purchasing the same from them.
By the fourth Article recited in His Majesty's Order of Council, His Majesty is pleased to direct, that the Petitioners and their Associates do pay the usual fees for surveying, and passing the Grants of the said Tracts; It is conceived, that it appears evident from the above recited Article, that the Petitioners were only to pay the usual fees for surveying and passing the Grants of the Lands that were to be made out to them in separate divisions of twelve thousand acre Tracts, if they so required them; Therefore His Majesty's Order cannot be understood in the sense that Captain Rowan contends for it; Namely that he had a right to survey one million two hundred thousand acres of Land without any directions had from the Petitioners in what manner to run out their separate shares, and that they were afterwards at liberty to have a New Survey made, and to form it into as many divisions as they thought proper; Provided that no Grant issued for less than twelve thousand acres; upon which I beg leave to observe that this might be very prejudicial to the Gentlemen concerned, as it would lay them under a necessity to take up the Lands in their several divisions, within the Bounds that Captain Rowan described for them; altho at the same time no Grant could issue in pursuance to the return made upon said Survey; But a second Survey in this Case must be made, Plotting out their several divisions, which would put them to the same expense and subject them to the same fees as if no Survey had been made before;
Captain Rowan was only seventy eight days out in the Survey he has made, for which he demands no less a sum than one thousand five hundreds pounds Proclamation, if he had done his duty in waiting for proper Orders from the Petitioners and in plotting out the several divisions belonging to the Associates, he would have been intitled to near twelve hundred Pounds proclamation, (and he might have performed his duty in this respect in less than four months) and even in that case it
It may be proper in this place to inform your Lordships, of the true cause of Captain Rowan's conduct. Mr Wardroper the late Surveyor died the beginning of 1737; and upon his demise Captain Rowan was appointed Surveyor by the Governor. When His Majesty's Order issued for taking up the Lands in question, it was thought advisable by all the Gentlemen concerned; that as there was a special direction, in His Majesty's order of Council to take care of the rights of such only who had Grants made out to them, previous to the Governor's being informed of His Majesty's intention in the said Order of Council; To advertise the Governor thereof, least the Gentlemen in this Province, and those that live upon the line of Virginia should follow the same methods that were practised in relation to the Township Lands in South Carolina; and take up several Tracts of the most valuable of the Lands described in the said Order of Council, and afterwards surprise the Governor into the issuing of Grants for the same, to the prejudice of the Gentlemen concerned; When the duplicate was sent to the Governor by me, I wrote him, that as soon as possible Murray Crymble and the rest of the Associates would fix a time for their meeting; and that they would then agree what proportion of Lands they would have run out upon Pedee and they would likewise distinguish to him what proportion they would have run out upon Cape Fear, and what proportion upon Nues Rivers; and further that they would let him know where their respective share were to lye; that the Surveys might be made agreable thereto, in pursuance of which the Grants were to issue; the Governor owns the receipt of this letter by his letter dated to me the 5th of October 1737. and says that he is sorry, I had tied up his hands in not sending the necessary Orders; In about five months after the first letter giving the Governor this notice, several of the Associates mett together & agreed, in what manner they would have their shares run out, and having appointed me Trustee for the whole, directed me to write to the Governor to order the Survey to be made in pursuance to what was then agreed to by the Associates, and accordingly I wrote the Governor and transmitted him an Account in what manner the Survey was to be made; But the Governor and Rowan being informed that a Surveyor was soon to be appointed from home, did not wait for the arrival of these orders but came to an agreement, that in consideration of Captain Rowan's paying into the hands of Samuel Woodward, half his Salary and half his fees as Surveyor that the Governor would deliverr McCulloh was to become his paymaster, but that he would have nothing to do with the said Gentleman; but insisted upon their paying of him the said Fees; Yet what is still surprising he has taken out an action against me at Law for three thousand pounds Proclamation with a view only to distress me; and by acts of Power to compel me to condescend to anything they will please to direct; Most of the Gentlemen of this Province are of opinion that by acts of violence; I shall be obliged to comply with their terms; If His Majesty does not interpose in my behalf; And from this opinion prevailing I have not been able to give in Bail to Captain Rowan's suit; but have remained a prisoner since the beginning of June last.
In the fifth Article inserted in his Majesty's Order of Council; His Majesty is pleased to direct; that all the Grants be made by the Governor immediately upon the return of the Surveys to him, and that they do bear equal date with each other; This Article as well as the aforegoing fully proves that the intention of the said Order, was, that the Surveyor should have notice how to lay out the several divisions or shares of Murray Crymble James Huey and their Associates, or otherways upon the return of his Survey, the Grants could not issue, & bear equal dates with each other; And indeed in the manner that Captain Rowan would have it understood, no Grant could issue until there was a second Survey; therefore his first Survey neither could expediate the issue of the Grants, nor be of the least service to the parties concerned; In all Grants of this nature there is a reasonable time allowed for the parties
In the sixth Article His Majesty is pleased to direct that the commencement of the Quitt rents be computed from the expiration of ten years from the date of such Grants, while Quitt rents is to be four shillings Proclamation money for every hundred acres included in said Grant; As it has been observed I apprehend it would be extreamly faulty in the Gentlemen concerned, and in a more particular manner in me as an Associate; if any unnecessary delay had been given by the Parties concerned in the executing of His Majties Order of Council; the Notice that was given to the Governor with proper directions, how to survey the said lands was transmitted in less than eight months after the date of His Majesty's Order, and upon the very first notice they had of Captain Rowans having made the Survey improperly; they objected to the same; and declared they would never assent thereto; The Governor in answer to this writes that since they were so highly offended thereat; That they might have a new Survey begun as soon as they pleased, and that he would stand to the loss of the former; And yet notwithstanding of this he has upon all occasions denied complying with what he had engaged to do. From all which it will appear evident, upon examination; that the delay that has been given proceeds wholly from the unwarrantable steps that have been taken by the Govr and Captain Rowan; In barring the Petitioners from their just rights: And in making a Survey contrary to the true intent and meaning of His Majesty's said Order of Council.
Observations in relation to His Majesty's Order of Council, dated the 19th of May 1737. Most humbly submitted to the Right honorable the Lords Commrs for Trade and Plantations by Henry McCulloh.
Recd with his letter to the Board dated the 27th of July 1744.