The humble Memorial of Henry McCulloh [to the Board of Trade] sheweth
That your Lordships were pleased by your order dated 4th July 1749, to direct Gabriel Johnston, Esqre Governour of North Carolina, to give to your Memorialist or any other person on his behalf, full liberty to examine Evidences before any Judge or other Magistrate concerning the subject matter of your Memorialist's complaint and that the said Judge or Magistrate should be empowered to summon all such persons as the complainant or any other Person on his behalf would name and further that the Secretary should be enjoined to give Copies from the Records of any Papers or Entries which may be required by the Complainant, or any person concerned for him. And that in case the Records are defective that the Secretary should also be enjoined to give Evidence on Oath concerning those defects.
That although the said Governour was duly served with a Copy of your Lordships said Order, yet he prevented your Memorialist, and others in his behalf from acting pursuant to the said order in the manner thereby directed. And when your Memorialist sent a letter of Attorneyre) although the said Hasell never was bred to the Law nor hath the least knowledge therein, and except the examination of Thomas Ryan taken before Joseph Anderson Esqre Judge of the Admiralty and by obliging the witnesses to travel from the places of their residence to Newbern (distant one hundred miles and upwards) the said Governour hath in that particular and every other matter used his utmost endeavours to prevent and silence all enquiry into his conduct and nevertheless when this matter is complained of the Governour will endeavour to draw advantages from his own arbitrary proceedings although he refused to let your Memorialist enjoy the common priviledge or Right of proceeding according to the rules of Office yet he in his own case would claim all advantages therefrom, however truth and justice are distinguishable from falsehood and acts of injustice or violence, for Truth is always uniform and falsehood is known by its characters.
If the said Governour had permitted your Lordships Order in relation to the above matters to operate in the manner thereby directed he would have observed your Lordships directions relative to the Records in the examination of the Secretery. But in considering this matter it will appear that he acted in direct opposition to the said order, and it will also appear that the Evidence given by the Secretary is as evasive and that no stress is to be laid or any dependance had on the records.
Eight Interrogatories were exhibited to Mr. Nathaniel Rice and John Rice who acts as Secretary for Nathaniel Rice seldom or never intermeddles in the Business of the Office wherefore Nathaniel Rice is made to give a General answer to seven of the said Interrogatories but he refused to give any answer to the Eighth Interrogatory which was so closely worded as to put him under a necessity of contradicting himself in the former part of his Evidence touching the Records, and the said
That the Records are defective and not to be relied upon, will appear from the great number of blank Warrants and Grants which have been issued by the said Governour, as it is impossible for him to act that part without the Priority and consent of the Secretary, and it is very observable that although the said Nathaniel Rice in his answer to the 4th Interrogatory deposeth that your Memorialist made objections to the Records touching the dispute with Captain Rowan, and that although the said Nathaniel Rice admits there were some defects therein which he did not then remember, yet he hath transmitted the said Records certified under the seal of the Colony without making any amendment thereto. It will also appear that what he deposed on that point is foreign to the Truth provided your Lordships will be pleased to permit your Memorialist to read the Copy of the objections then made and afterwards signed by the said Nathaniel Rice whose hand writing can be proved. In the Entry of a Record a few words may be omitted by mistake but it is not to be conceived that all the Material Points in the Debate should be omitted without some design and it is conceived to be impossible to prosecute any petition of Complaint so as to have its full effect while the said Governour acts in that arbitrary manner first in keeping up the Records without transmitting them to your Lordships for Eight or Ten years together and then after modelling them to his own liking to stiffle or obstruct the necessary Proofs on that Point.
Having shewn in what manner your Lordships just and laudable Intentions under the said Commission of Enquiry, have been frustrated or defeated. I shall with your leave proceed to consider the Evidences transmitted under the seal of the Colony vizt
Marmaduke Kimbrough proves that the said Governor hath often encroached upon the Rights of the Planters particularly in the Exchange he made of sixty thousand acres of Land within Earl Granvilles Division with the Crown.
John Wynns late Deputy Surveyor proves that he by orders from the Surveyor General often surveyed Lands previous to any Warrant that he received several Warrants for Lands dated in April 1745 and afterwards Patents for the same of a prior date, and that he often had Warrants and Grants in his Custody without any Rights having been proved thereon so as to intitle the Parties to the said Warrants and Grants.
Nathaniel Cooper deposeth that he hath seen a great many blank Patents in the office of Forster (who acted as Deputy Secretary) with the seal of the Colony affixed thereto, that he hath filled up severall of the said Patents and believes the same were signed by the said Governour particularly that he filled up the Patent to Benjamin Holliman which was blank when sealed and signed by the said Governour.
John Campbell deposeth that on the 28th day of September 1745 he saw several blank Patents and Warrants in Mr. Griffiths room which were signed by the said Governour.
Alexander McCulloh Deputy Auditor deposeth that the said Governour contrary to his Majesties Instructions granted many Warrants and Patents out of Council, that several of those Warrants were not audited and that in such case it was in the said Governour and Surveyor Generals power to Grant Blank Warrants, or act in any other loose manner as they thought proper, and he further deposeth that he hath seen several blank Patents in Mr. Griffiths room signed by the said Governour.
The Depositions of Benjamin Wynns and Thomas Ryan further corroborate the Truth of all the Matters aforesaid.
The several Evidences above referred to will (as humbly conceived) fully demonstrate the Truth of every thing charged by your Memorialist in the six or seven first paragraphs of his Petition of complaint and plainly shew that the Governour by acting so contrary to his Majesties Instructions must from the very nature of the thing introduce the utmost confusion in the Colony for when blank Patents or Grants and Warrants are issued it is in the Power of such persons as hold them by antedating the same to claim the property of others and to occasion such mixed Claims and confusion in property as to put it out of the power of any Court of Law to Judge of and determine the Right and property of the subject and then of course every thing must be arbitrarily decided by act of violence and this is the cause why the disputes now subsisting in the East and West Jerseys are come to so great a heighth and as the same cause will always produce the same effect so it is much to be feared that the said Governours late measures may have a fatal Tendency particularly since the time of the Right Honble Earl Granville's division with the Crown from which Period the said Governor hath acted a double part first in issueing Warrants and Grants within his Lordships Division and afterwards extending his Lordships Lines one hundred and thirty miles and upwards, since the time his Lordships Grant issued from the Crown, but how far this should or should not have been done is a matter of different Enquiry although (as humbly conceived) it is evident that the said Governour ought not to proceed in that extraordinary manner at least without consulting your Lordships on that head.
Before his Majesty appointed your Memorialist Commissioner for supervising, inspecting and comptrolling his Majesty's revenues and grants of Lands the said Governour did loudly complain against Sir Richard Everard on account of his having issued blank Patents and Warrants for Land and so caused the whole concerns of the said Colony to be thrown into the utmost confusion which partly gave rise to your Memorialists Commission as it was then thought by the Right Honble the Lords of the Privy Council and also by the Right Honble the Lords Commissioners for Trade and Plantation to be not only prudent but necessary to appoint an Officer for regulating the records and yet since your Memorialist's return to England the said Governour and those who act for him have represented the said Commission as illegal and unwarrantable. This is indeed an attack on the Wisdom of the Lords of the Privy Council and your Lordships Board in advising his Majesty to appoint the said Commission and is chiefly levelled at your Memorialist in order to prevent or obstruct him from receiving the Benefit of his Salary. If the said Commission be considered singly and without any reference to the motives of granting it and the good intentions of the Crown under his Majesty's Instructions in quieting the Planters in their Possessions it is admitted that several things exceptionable will appear in the said Commission, but when the motives and end of the Crown are duly considered it will fully clear up the said objections and shew the Wisdom of those who advised his Majesty to appoint the said Commission. It may be dangerous or improper for your Memorialist to predict or even to point at the consequences of such a charge in now making (what seemed wise and proper Ten or Eleven years ago) a matter of doubt and controversy wherefore I shall be silent on that head.
The Proofs to support your Memorialist's charge against the said Governour in not delivering up the Bond of Four Thousand Pounds sterling entered into by the Receiver General Nathaniel Rice and Roger Moore Esqrs (three Members of the Council) for the faithfull discharge of the Receiver's Duty and in preventing your Memorialist from acting agreeable to his Majesty's Instructions on that head are as follows. vizt
That the said Governour and Council by their Proceedings at Newbern on the 28th day of June 1746 (as may more fully appear by the Records transmitted to your Lordships) did not only refuse to deliver the said Receiver's Bond but censured the Attorney General for demanding the same.
That the said Governour and Council (six in Number) whereof three were parties to the said Bond did deny or call in Question your Memorialist's
That the said Council gave it as their opinion that the Attorney General could not regularly apply to the said Governour for the said Bond or a Copy thereof unless the same had been refused at the Secretarie's Office. Yet the truth is and as the said Secretary now affirms on Oath in answer to the first Interrogatory that he had not either the said Original to the said Governour and now the said Receiver General being dead the said Original cannot be found or any Copy thereof with the said Governour or Secretary.
The Memorial delivered by your Memorialist to the said Governour in relation to the said Proceedings and in answer to Mr. Allen's Memorial to the said Governour which now certified under the seal of the Colony doth fully represent the several defects which then appeared in the said Receiver Generals accompts. And the said John Campbell's Deposition in answer to the fourth Interrogatory shews that although he bought large quantities of Tobacco from Mr. Allen's Deputies at nine shillings per hundred yet the Receiver General gave credit to the Crown for the same at the rate of five shillings and nine pence only.
The said Governour's whole proceedings in this matter have been of a very extraordinary nature he claims an arrear of no less than Ten or Twelve thousand pounds sterling as due to him and yet he hath prevented the Receiver from being called to an account although the said Receiver never had (in the course of Twelve or Thirteen years) given in a full and true account of the receipts and issues of his Majesties Quit Rents, nor during that time ever had one account regularly audited and passed notwithstanding a great arrear was due to the Officers and that his Majesties Rent Roll amounted to Two Hundred and Twenty pounds sterling per annum and upwards more than the established Salarys of the Officers such conduct must have proceeded from some motives of Interest and particular connections with the Receiver and also from the said Governour's imagining that he might afterwards obtain the arrears of the Salary pretended to be due to him either out of the Quit Rents of Virginia or of South Carolina.
Your Memorialist's Petition of Complaint humbly represents that in several Instances it was thought agreable to the wisdom of the Crown to permit private undertakers to settle large districts of Land in America under certain conditions and restrictions and that although it may tend much to the benefit or advantage of the Colonies, the Crown in all events could not be a looser thereby in regard that the parts of the said lands not settled were to revert to the Crown and that in fact it was doing no
This really is the case now under your Lordships consideration the said Governour and other Officers were by the Laws referred to by the Secretary in answer to the second Interrogatory intituled only to Two Thousand one hundred and sixty two pounds eight shillings proclamation money for surveying passing and issuing Grants for Twelve hundred thousand acres of land, but as it appears by the list of Fees certified by the Secretary and transmitted to your Lordships under the seal of the Colony the said Governour and other Officers demanded no less a sum than seven thousand one hundred and twenty two pounds two shillings proclamation money and delayed to issue the said Grants until some litigious troublesome and expensive suits were carried on against your Memorialist as an associate or person concerned in the said undertaking and when the said Governour and other officers were disappointed in their said views of compelling your Memorialist to pay the exhorbitant Fees demanded by them then the said Governour agreed to issue the Grants upon your Memorialists delivering into the Chief Justices hands the said Governour's Bonds payable to your Memorialist for Two thousand four hundred pounds and upwards advanced to the said Governour when he was under the greatest necessities or difficulties which said Bonds he was to receive in full payment of his own Fees and also of the Secretaries and surveyors leaving your Memorialist still liable to pay the Attorney General and Auditors Fees and although it was on the Third day of March 174⅚ that the said Grants issued yet on the seventeenth day of that month commissioners were by him appointed for extending Earl Granville's line which includes or takes in most of the land belonging to your Memorialist so that he doth not know whether the said land ought to be deemed in his Majestie's or Earl Granville's division and if within Earl Granville's division the said Governours so taking the said Bonds is tantamount to his robbing or defrauding your Memorialist of the said two thousand four hundred pounds due by the said Bonds.
And although the said Governour hath affirmed that your Memorialist was wholy and soly concerned in the said Grants yet his own order and
The said Governour hath also endeavoured to prevent or silence all informations to your Lordships on this head as the Deputy Secretary did not duly answer to the Interrogatories exhibited to him which if he had done would discover the truth of all the Facts above charged, and the Memorial presented by your Memorialist to the said Governour would likewise have been brought to light and transmitted to your Lordships however as this matter is of great importance and (as humbly conceived) worthy of your Lordships consideration it is therefore most humbly hoped from your Lordships known goodness and justice that you will be pleased to receive such evidence as the nature of the case will admit of by permitting your Memorialist to produce the Memorials herein referred to which are counter signed by the said Governour and that Enoch Hall the Chief Justice be called upon to declare whether he did receive the aforesaid Bonds amounting to Two Thousand four hundred pounds sterling and upwards for the Goverour's use and that he shall further declare whether in less than one month after the delivery of the said Bonds the said Governour did appoint any and what Commissioners for extending Earl Granville's said line after the date of his said Grant.
An Inquiry or Examination of the said several matters will consequently bring many other things to light and shew the Governour's motives for passing the Quit Rent Law which hath very little (if any) relation to the Crown.
The said Governour and his friends have at some times represented your Memorialist as the sole Proprietor of the said Grants and at other times as only an Agent and the Secretary hath added words in the said Memorial delivered to the said Governour at Edenton in November 1745, Whereby he makes your Memorialist say that the Gentlemen concerned in the said Grants intended to send him over as agent although as your Memorialist solemnly declares no such words were in his said Memorial when delivered to the said Governor so that the same are untruly inserted in the Copy transmitted to your Lordships but the truth is that your Memorialist was concerned in the said Grants and that by agreement with the other Associates 200,000 acres were to be his share or proportion in the said Grants and his being so concerned therein was well known to the Right Honble the Lords of the Committee of Council and to the Right Honble the Lords Commissioners for Trade and Plantation
An other argument hath been urged against your Memorialist of a most extraordinary nature viz: That as he is so largely concerned in the said Grants the Quit Rents which will become payable thereon in the year 1756 and 1757 &c: will be sufficient to pay all arrears of salary due to him from the Crown this would indeed be a new method of determining property to allow the said Governour to throw insurmountable difficulties in the way of compleating the said Settlement and afterwards to withdraw or obstruct the means of carrying it on for how in that case could your Memorialist receive any benefit either from the Lands or from his salary.
The nature and duty of your Memorialist's Office hath evidently procured to him so many enemies that every thing which can afford the least pretext or colour of a charge is greatly magnified or aggravated by malicious misrepresentations.
If there is anything in your Memorialists case relative to the said Grants which in your Lordships opinion may require an amendment or alteration your Memorialist will on signifying your Lordships pleasure on that head readily acquiesce therein.
As the fees of the said Grants which accrewed in settling part thereof amount to a great sum and although part of the Baronies which are fully settled have been disposed of (as the parties were intituled to do by the conditions of the Grant) in order to raise money to carry on the other part of the settlement yet the Parties concerned are still in advance Four Thousand Pounds sterling and upwards.
Your Lordships are so well apprized of the charges of new settlements as to know whatever is done therein (little or much) is for the service of the Crown although often ruinous to the undertakers.
Alexander McCulloh Deputy Auditor deposeth that he was present at the Trials between Captain Rowan and your Memorialist And that Enoch Hall Esqre the Chief Justice would would not permit your Memorialist to have any of the said Governour Johnston's letters read in Court notwithstanding that they were very material in the cause then depending,
The Revd James Moir deposeth that Enoch Hall the Chief Justice of the said Trial insisted upon the said James Moir's being examined as to some discourses passed in private conversation between the said deponent and your Memorialist although the said deponent declared to the Court that he did not think himself obliged to give evidence of any such discourse or to betray private conversation. And the said James Moir further deposeth that the said Samuel Johnston was permitted to give evidence of a paragraph in a letter said to be written by your Memorialist by [to] Gabriel Johnston Esqre
The said several facts speak so strongly that your Memorialist need not take up any more of your Lordships time by inlarging on that subject, as he humbly conceives that there never was any other instance of a Court of common Law (or any other Court except the Inquisition) requiring any person to betray the private conversation of his friends or that any Judge ever permitted a postcript in a letter to be given in evidence without producing that Letter in court or alledging that the said letter was lost for if that was to be practised or permitted no man would be safe in writing a letter to another as a paragraph in a letter taken seperately from the rest may have or bear a very different signification or meaning from what it would have or bear if the whole letter had at once been read.
As this affair hath a publick and general tendency therefore your Memorialist must humbly hope that it will be so considered.
John Wynn in answer to the fourth Interrogatory deposeth that the said Governour hath often acted in a very arbitrary manner by displacing Justices of the Peace, and that he by his own authority (without any previous proceedings in the Courts of Law) discharged an Orphan who was bound by the Justices of the County to Thomas Jones Esqre
And in order to shew that the Justices were by Law impowered to bind out Orphans there are two attested Copies of Commissions signed by the said Governour and transmitted to your Lordships.
Captain John Campbell in answer to the third Interrogatory also deposeth that the said Governour hath acted in a very illegal and arbitrary manner by seizing and delaying ships which were consigned to the said Deponent who sustained great loss and detriment as well as other persons concerned therein.
The Attorneys and Lawyers of the Courts are under such dread of having their Licenses recalled and consequently deprived from getting their Livelyhood that they are not willing to give their evidence in any matter which hath prevented proof being made of what was charged in relation to the Governours arbitrary manner of proceeding in Injunctions. Yet the following evidence will fully prove what the said Governour is capable of doing on that head.
The Revd James Moir in answer to the second Interrogatory deposeth that on the 28th day of July 1745 Captain William Lithgow was arrested on board a vessell wherein he had taken his passage for Boston and that the said Deponent having afterwards asked Mr. Rice the Secretary the cause of that arrest the said Rice shewed a Precept by him given on the day before in the words following vizt
“Whereas the Honourable Roger Moore Esqre has made application to me and intends to bring an Indictment against Mr. William Lithgow These are therefore to command you to apprehend Capt William Lithgow and bring him before me that he may enter into Recognizance. Signed Rice and directed to George Richardson Constable.
That Robert Walker and the said Deponent made some remarks to the said Nathaniel Rice upon the illegality of the said Precept, particularly that Oath had not been made of the breach of any Law whereupon the said Nathaniel Rice and Roger Moor went into another room, and having speedily returned, brought another Precept with them in the words following. vizt
“Whereas the Honble Roger Moor Esqre had made Oath that Captain Lithgow had commenced a tedious suit against the said Moor for burning Lightwood on Lands said Lithgow had bought of Mr. John Gray. These therefore is to command you to apprehend the said Lithgow and bring him before me that he may enter into a Recognizance for his appearance at the next Court of Assize, the said Moor intending to indict the said Lithgow at said Court, signed Nath: Rice directed to George Richardson Constable.”
The Sheriff having accordingly executed the said Precept the said William Lithgow gave in Bail whereupon the said Deponent having asked the said Roger Moor whether Captain Lithgow might appear by his Attorney received for answer that the crime was of such a nature that the said William Lithgow must appear in Person. (The said Roger Moor hath at other times represented that Capt Lithgow bought the Lands from Mr. Gray in order to sue him for a Trespass in burning Lightwood and making Pitch and Tar on the said Lands and therefore insisted that it was Barretry and that the said Lithgow was Indictable
But Although that the said William Lithgow at the then next Court of assize got the said Nathaniel Rice Secretary and the said Roger Moore to be indicted by the Grand Jury yet in a short time after his Excellency Gabriel Johnston Esqre as Governour [caused] a Noli prosequi to be entered on the said Indictment in a very arbitrary and illegal manner.
The said proceeding appeared to your Lordships so extraordinary that at the first mention thereof the Truth of the fact seemed much to be doubted, Roger Moore was a leading man in that Country and being countenanced by the said Governour in all his illegal acts did in return support or second the said Governor in all his arbitrary proceedings, and although the said William Lithgow was a man of good credit and fortune and used his utmost endeavours to get a copy of the proceedings against him yet he never could obtain any but was continually harrassed by acts of power and violence until the day of his death.
What hath been above said in relation to the conduct of the Chief Justice on your Memorialists Trial and the proceedings which hath been had by the said Governour and two Members of the Council in relation to Captain Lithgow represent the affairs of the said Colony in a true light.
The charge which your Memorialist has made against the said Governour for passing the currency and Quit Rent Laws contrary to his Majesties Instructions by not incerting a suspending clause therein will appear evident from the said Laws as transmitted to your Lordships.
And what is charged in relation to the said Governours preventing matters from being regularly entered in the Journals of the Council there, and his not transmitting the same will evidently appear from the Memorial delivered by your Memorialist to the said Governour in council in November 1746 which was not entered although earnestly requested in order to bring the said Governour's Proceedings before your Lordships, and it will likewise appear from the several remarks made in the first part of this Memorial that very little (if any) credit is to be given to the Records.
Mr. John Campbell's Deposition proves what was charged in relation to the said Governour's being wanting in his Duty by not ordering Publick
If any thing criminal of faulty had appeared in your Memorialist's conduct during his stay in America his Enemies there did not want inclination or power to represent him in the most odious or disadvantageous light, wherefore your Memorialist hath undergone a kind of ordeal Trial but notwithstanding all the difficulties and Obstructions industriously thrown in his way yet he hath been able to procure a Rent Roll for North Carolina in which province there never was any such before his time as may appear by the Auditor General's report to the House of Commons in 1740. And your Memorialist hath improved the Rent Roll in South Carolina One Thousand Two hundred pounds sterling per ann: and upwards as may also appear from the Rent Roll transmitted to the Auditor General in May 1743.
The facts stated by your Memorialist in his Petition of complaint are so full and strong that the said Governour could not have any recourse but to acts of Power to evade the same and he hath not only attempted to defeat the intention of your Lordship's order by his preventing your Memorialist from having his Evidences examined in the manner directed by your Lordships but hath also designedly omitted to serve your Memorialist or any other Person in his behalf with a true copy of his Proofs as directed by your Lordships so that if the said Proofs were allowed to be read in Evidence it would break in upon all forms of proceeding both in the Courts of Law and in the Offices.
And it is further observable that what the said Governour hath transmitted to your Lordships as an answer to your Memorialist's Petition of Complaint is not properly an answer but really a Complaint arising from the violence of his resentment in regard he charges your Memorialist with several matters of a very extraordinary (if not incredible) nature without any proof (except of his own framing) to support the same, yet as his Agent declared at your Lordship's Board Memorials have been thereupon preferred to the Right Honble the Lords Commissioners of the
Those private Transactions plainly shew that the said Governour's answer is to be considered as a new complaint against your Memorialist and that although the said Governour cannot support his charge therein yet he hath taken this method to wound or asperse your Memorialist in his character and injure him in his property without giving him any opportunity of justifying himself and demonstrating his innocense as he could and still can when required.
The several matters charged by your Memorialist are of a Publick nature and nearly concern the Crown the Offices and the safety of his Majesties subjects from which cause the said Governour hath endeavoured to throw the said complaint into a different shape Wherefore it is humbly hoped that your Lordships will be pleased to order the said Governour's Agent to serve your Memorialist with a Copy of the said Complaint or answer as complicated together, and also with Copies of all Memorials or other papers in relation to your Memorialist's Salary which hath been presented to the said Governour or his Agents to the Right Honble the Chancellor of the Exchequer or to the Right Honble the Lords Commissioners of the Treasury That your Memorialist may be thereby enabled to give a full and true answer to several groundless and malicious suggestions which have been artfully raised and propogated to his great prejudice.
And therefore your Memorialist most humbly conceives that the nature of the present case requires this method of proceeding more especially for that payment of his Salary doth in a great measure depend on your Lordships report, and for that he ought in common Justice to have an opportunity of vindicating himself, which he will do with the utmost speed as he really hath the strongest motives to prompt him thereto.
Your Memorialist therefore most humbly prays that your Lordships will condescend to take the said Premises into your consideration and grant such relief therein as to Your Lordships in your great Equity and regard for the injured shall seem meet.
And your Memorialist (as in Duty bound) shall ever pray &c: