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Colonial and State Records of North Carolina
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Petition from Henry McCulloh concerning land grants in North Carolina
McCulloh, Henry, ca. 1700-1779
June 08, 1749
Volume 04, Pages 1076-1081

[B. P. R. O. North Carolina. B. T. Vol. 11. B. 89.]
McCULLOH vs. GOV. JOHNSTON—LAND GRANTS, &c.

The Humble Memorial of Henry McCulloh. [to the Board of Trade] Sheweth,

That His Majesty by his Commission bearing date 10th May 1739, was graciously pleased to appoint your Memorialist Commissioner for supervising, Inspecting and Comptrolling the Revenues and Grants of Lands, in the Provinces of South and North Carolina, with full power and authority to Inspect into the Registers and Records and upon all occasions to send to your Lordships a particular Account of your Memorialist's proceedings, together with such Informations and Observations as your Memorialist should judge necessary for his Majesty's service, and in Obedience thereto your Memorialist begs leave most humbly to represent

That His Majesty by his order in Council bearing Date 14th August 1740. Signified his Royal Will and Pleasure to the Governor of North Carolina, that all Persons petitioning for Lands should previous to their obtaining a Warrant, prove their Rights before the Governor in Council, that if the Lands so petitioned for are allowed, the warrants be thereupon drawn up, and signed by the Governor in Council, & made returnable in Twelve months from the date thereof, that a particular description of the Lands so petitioned for, be incerted in the Warrants, that before the Warrants should be delivered to the Surveyor, a Docket

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thereof be entered in the Auditors Office, and that in Default of any of the said Particulars being observed, the said Warrants should be void.

And further that when Grants should be made out agreable to the Directions given in the foregoing Instruction, the Terms and Conditions of which the Warrants issued, and the Lands were surveyed should be particularly and expressly mentioned in the respective Grants, or that in Default thereof such Grants should be void.

That Governor Johnston did not conform to the Directions given by His Majestys said Order, but in most Instances issued Warrants in the same irregular and loose manner which he had formerly practised And as it often happened that there were no Dockets or Copies of the Warrants entred with the Deputy Auditor so it could not appear whether the Warrants had not been originally issued with Blanks, to be filled up at the pleasure of the Warrantee, or that any particular Description of the Lands had been incerted in the Warrants previous to the survey for preventing Encroachments upon others.

And in issuing Grants, the Governor did not take care to have the Terms and Conditions on which the Warrants issued, and the Lands were surveyed particularly and expressly mentioned in the Respective Grants, which wholly broke in upon all those necessary Gards and Provisions, which the Crown had wisely Constituted for preserving Order and regularity in the Records.

That your Memorialist being instructed by His Majesty to take the most Effectual Measure for carrying into Execution all His Majesties Instructions relating to the Revenue of the Quit Rents, Thought it his Duty to represent to the Governor the many ill Consequences which would attend his continuing to issue Warrants and Grants in the said loose manner, and therefore prayed him not to issue Warrants for the Future to any Person who did not bring Vouchers from the Receiver General, of having paid all the Quit Rents due upon such Lands as they held by Grant from the Crown, and if this good method had been observed, it is humbly conceived that it would have had the desired Effect by regulating the Records and improving the Revenue of the Quit Rents.

That your Memorialist finding the Governor did not alter his former Method of issuing Warrants and Grants, directed the Deputy Auditor carefully to observe whether any Blank Warrants and Grants were signed by the Governor and afterwards disposed of, and accordingly the Deputy Auditor having seen in Mr. Griffiths room several Blank Grants signed by the Governor gave notice thereof to your Memorialist, who being much surprised at so extraordinary Proceeding in the Governor which

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must be attended with many fatal Consequences particularly by unhinging the property of the Subject, and also introducing an infinite number of Disputes, told the same to the Governor who did not censure the said Griffith nor alter his former Method of issuing Warrants & Grants.

That your Memorialist having likewise observed that the Receiver had not regularly accompted for the Quit Rents nor produced Vouchers for the payments said to have been made by him, did after often expostulating with him on that head without any satisfaction or effect in pursuance of his Majesties Instructions, order the Attorney General to apply to the Governor for the Bond; which was given by the Receiver for the faithful execution of his office, in order to prosecute the same.

That the Governor delayed to give any answer until he met his Council in June 1746, when having asked the Advice of four Members of the Council (three of whom were parties to the said Bond) they publickly censured the Attorney General for so demanding the said Bond.

That the Receiver General at the same time moved the Council that your Memorialist should be called upon to Answer to that Board for charging him with not having done his Duty, by regularly accompting for the Quit Rents, and insisted that as he had sworn to the truth of his Accounts, so any such charge from the Commissioner of the Quit Rents was accusing him of Perjury.

That your Memorialist finding that the Intention of the Receiver and likewise of the Governor in so calling him before the Council, and in taking Cognizance of a matter which did not properly lye before the Board, was with a view first to censure him and afterwards to declare it as their opinion, that the said Charge against the Receiver was indirectly or consequentially accusing him of perjury upon which the Receiver was to take out an Action of Defamation for £10,000 Sterl: against your Memorialist in order to prevent him from returning to England, did thereupon to defeat their said Intentions put in a Plea to the jurisdiction of the Board, humbly insisting that he had acted agreable to the Duty of his office as Commissioner, And that the Receiver ought not only to swear to the Truth of his Accounts, but also to give in a specifick Account of the Receipt of the Quit Rents, and to produce vouchers for the Payments said to be made by him, and therefore prayed the Governor in Council, to enter the said Plea, in order that their Proceedings might be brought before his Majesty in Council, which (as your Memorialist is informed) was not hitherto done.

That his Majesty having by his 43rd Instruction to the Governor of South Carolina directed that several Townships amounting to 1,600,000 Acres & upwards in the Province of South Carolina, should be wholly

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set apart for the reception of Foreign Protestants & others inclined to settle on the back parts of said Colony, and that they should be Intituled to an Exemption of Quit Rents for Ten Years from the date of their respective Settlements. Murray Crymble, Js. Huey, and several other Persons Associates with them did by their Petition to His Majty humbly pray that several Tracts of Land, amounting to 1,200,000 Acres might be set apart for the reception of Foreign Protestants and others, upon the heads of Pedee, Cape Fear and Nues Rivers in North Carolina, and that if his Majesty would be graciously pleased to permit them to have Grants of the said Lands with an Exemption of Quit Rents for Ten Years from the Date of their Respective Grants, that the said Petitioners would in consideration thereof not only pay the Legal Fees for surveying the said Lands and passing the Grants, but also settle thereon at their own Charge six Thousand white Persons within the space of Ten years from the date of their Grants, or that on failure thereof such Proportions of the Lands as were not so settled should revert to the Crown.

That His Majesty being graciously pleased to grant the request of the said Petitioners, ordered surveys to be made out, and Grants to be issued Accordingly.

That when His Majesty's order in Council was transmitted to the said Governor he made an Agreement with the Surveyor General, that one half of his Fees should be paid into the hands of Captain Samuel Woodard, upon which the Surveyor went and run the outlines of the survey & demanded the same Fees as if he had run out the inner Lines of the said survey, and set apart the respective Shares of the said Associates, And the Governor likewise insisted that if the Surveyors Demands were not satisfied, he would not issue the Grants, & further that the Grantees should pay the Governours and Secretarys Fees in the same proportion, as the poorer sort of people paid for small Tracts, which according to the Secretary's Calculation would amount to many Thousand Pounds Sterling.

That the Grantees having absolutely refused to comply with the said unreasonable demands, and the Surveyor finding that your Memorialist was an Associate did at the Instance of teh said Govr and other officers take out an Action against your Memorialist for £1500 sterlg and upwards for running the out Lines of the Survey only, to which Action your Memorialist could not procure any Bail, and therefore was forced to remain in the hands of the Sheriff for Fifteen Months and upwards.

That when the said Action came to be Tryed before Enoch Hall the Chief Justice he not only acted in a manner very unbecoming his station & Character (as he did in many other Cases) but would not permit your

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Memorialist to read in Court any of the Governours Letters which would fully clear up the matter in Dispute, and moreover although he denied to the Defendant that Act of Justice yet he allowed to Samuel Johnston the Governor's brother to give Evidence to the Postscript of a Letter said to be written by your Memorialist to the Governor without producing the Letter in Court or even alledging that it was lost, but notwithstanding the great partiality of that Judge, and that your Memorialist had been particularly marked out as a sacrifice intended by the Governor, it pleased God so to dispose and move the Hearts of the Jury as to find a Verdict for your Memorialist.

That after the said Trial was over the Surveyor offered to take less than one Third part of his former Demand and the other officers also moderated their Demands in proportion, so that there was no longer any obstacle to the issuing of the Grants, wherefore your Memorialist applying to the Governour, and having paid the Fees the Grants were made out agreable to the Directions given by his Majesty on that head.

That the Governor hath not only exerted himself to oppress your Memorialist, but in a very Illegal and arbitrary manner, proceeded against several others who were obnoxious to him, or any of his Dependants by often granting Letters of Administration Illegally, and revoking other Letters of Administration without issuing any Legal Process previous thereto as by Law required, And also by frequently granting Injunctions contrary to all Rules and Forms of Law, and then by not holding Courts of Chancery for several years, he hath debarred the Parties from all Remedies at Law or in Equity.

That the Governor not only acted so arbitrarily in relation to the Granting of Injunctions, but in the Case of Capt Lethgow interposed his authority by preventing him from having Nathaniel Rice & Roger Moore Esqrs tried upon an Indictment for their forcibly taking the said Lethgow out of a ship, and afterwards confining him, without any Legal Warrant for so doing.

That altho' the Governor had repeated Orders not to pass any Act for Emitting Paper Bills of Credit without first incerting a suspending Clause, yet he in contempt of said Orders gave his Assent to an Act of Assembly for Emitting Twenty One Thousand Pounds proclamation and upwards, one Thousand Pounds whereof are to be applyed to his own private use, and although the Governor & Council plead the necessity of their Affairs for so doing, yet it is very Evident that they neither had proper Judges to direct the Building of Forts, nor when built any Ordnance to put into them.

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That although the Governor by His Instructions ought not to pass any Quit Rent Law wherein the property of the Crown is so much concerned without inserting a suspending Clause therein, yet he lately gave his Assent to a Quit Rent Law, contrary to his said Instructions.

That your Memorialist begs leave further to Represent, that Governor Johnston often exerted his Authority by preventing such matters as came before the Council from being regularly entered on the Records, and that for many years past he did not transmitt the Records to your Lordships, and also granted Commissions to several officers of the Militia without ordering the usual Oaths to be tendered to them, and moreover was much wanting in his Duty by not ordering Publick rejoicings upon Advice of the most happy Defeat of the Rebels at Culloden.

Wherefore your Memorialist most humbly prays your Lordships that, as the said several Matters complained of are of great Importance, and nearly relate as well to the Crown as to the Property and safety of His Majesties Subjects in the said Colony, the same may be examined and Considered, and that your Lordships will be pleased out of your great Wisdom and Justice to Grant such relief therein as the Nature and Circumstances of the Case may require.

And your Memorialist shall ever pray. etc.
HENRY McCULLOH.

Recd: June 8th 1749.