To his Excellency Gabriel Johnston Esqre Governour of North Carolina in Council.
Having received by Direction of your Excellency a Copy of several Resolutions and Orders of this Honble Board dated the 28th day of June last setting forth—
That his Excellency having informed the Honble the Council that the Attorney General in behalf of the Commissioner of the Quit Rents had applied to his Excellency for a Copy of Eleazar Allen's Bond and Security for the faithfull Execution of his Office as receiver General of this Province and having demanded their opinion and advise—The Receiver General desired first to be heard. And thereupon represented that Henry McCulloh had not only given out Speeches injurious to his Reputation with regard to the discharge of his said Office but had wrote him a letter wherein he charged him with defrauding his Majesty which as the said accompts were proved before his Excellency upon Oath was indirectly accusing him of Perjury and at the same time observed that upon the like complaint in a Memorial by him exhibited to this Board in April 1745 the said Henry McCulloh was cited to appear before his Excellency and the Council at their next meeting to make good this charge in the aforesaid letter or speaking as aforesaid. And that he had hitherto failed in such appearance And therefore prayed that the said Henry McCulloh might be summoned again to appear before this Board to shew cause as aforesaid.
Whereupon his Excellency in Council was pleased to direct that the said Henry McCulloh do lay his Commission before this Board or an attested Copy thereof at their next meeting as also his Instructions (if any such he has) whereon to found a pretention of this extraordinary Nature. And that he fail not then to appear to give in his answer to the aforesaid memorial and Representation of the Receiver General.
To all which the Commissioner of the Quit Rents begs leave to represent. That the Receiver General by the Duty of his Office is not only obliged to swear to the truth of his accounts before his Excellency But previous to that it his duty to deliver into the Deputy Auditor a specifick account of the Receipts of his Majestys Quit rents and when the Acts are laid before the Deputy Auditor for his Examination the Receiver General is to produce to him Vouchers for the several sums said to be paid to such persons as are upon the Establishment of the Quit RentscCulloh not only permit him or such as he shall appoint to inspect any accounts entrys or other papers in their respective Custodys touching or concerning the premises or any of them but that they do also from time to time deliver or cause to be delivered to him or such as he shall appoint such attested Copies Notes or Extracts thereof or any of them as he shall desire by any Writing or Writings under his hand without any charge for the same and agreeable to the Powers granted to the said Commissioner by his Commission he is further directed. By his Majjesty's third Instruction to inspeck and examine into the accounts of the Receivers of his Majesty's Revenues in South and North Carolina and to order and direct them to lay before him an Account of all the Quit Rents they have received at what time and from whom distinguishing such accounts as have been audited from those that have not And in order to prove the truth of those Accounts the Commissioner of the Quit Rents is commanded to direct the Deputy Auditors in the said Provinces to give him the particulars of such Accounts as they have audited And that the said Henry McCulloh may be better able to inform himself what persons have paid their Quit Rents and which of them have not he is to order the said Receivers to lay before him Copies or Extracts of all Receipts that have been given for the payment of Quit Rents since 1716. and likewise to exhibit to him all Books and Vouchers in their possession that belonged to any former Receivers And by his Majesty's 17th Instruction the Commissioner of the Quit Rents he is directed to make strict Enquiry into the Methods used in the said Provinces in collecting, receiving and accompting for the Quit rents and other Revenues And in case the Commissioner of the Quit rents finds any fraud, concealment irregularity or neglect therein He is to use his utmost endeavours for redressing the same and to establish a proper Method whereby the same may be prevented for the future and whereby his Majesty's Auditor or his Deputy may be enabled more effectually to check and control the accounts exhibited by the Receiver.
From all which I humbly apprehend it will appear evident that althō the Receiver General has complyed in part in swearing to his accounts,
The Letter that the Receiver General refers to is not in the words nor to the effect he has set forth in his last Memorial but is as follows, vizt
In looking over your last account of Quit rents I find you have only credited the Crown for £412: 3: 3½ sterling for the need proceeds of Tobacco Deer-skins and Beeswax received in the several precincts in Albemarle County in pursuance of the late Quit rent Law as I apprehend you have passed receipts upon the Receipt of those Commodities for near double the sum which is brought to the Credit of his Majestys account current. I am to desire that you will transmit to me a particular account of the different species of goods that you received in payment of Quit rents and in what manner the loss arose thereupon.
The inferrences which the Receiver General is pleased to draw from my writing him this letter is not to deter or freighten me from acting in my duty agreeable to his Majesty's commands. And I apprehend it to be my duty to persist in his laying a state of those accounts before me and also in producing vouchers for the £700 sterling said to be paid to the Auditor General and for the £279: 15: 9 sterling said to be paid to William Maxwell as Deputy Auditor and £204: 10: 7½ sterling said to be paid to Mr. Maxwell as Assistant Receiver and £306: 7: 9¾ sterling said to be paid to the Deputy Auditors since Mr. Maxwell's decease. And that the Receiver General informs me by virtue of what power or authority it is that he has charged the Crown with £200 Procl money as an allowance for a Clark And as the Receiver General has absolutely denied to lay a state of his accounts before me I apprehend it to be my duty agreeable to the Directions given in my commission to order the Attorney General to prosecute the Receiver General in order to bring him to an account and without I am permitted this Liberty it is in fact suspending me from the Exercise of the Duty of my Commission as it would be impossible for me to detect any Irregularity or other errors in his accounts (when at the same time the Receiver General will not comply in laying them before me) other than proceedings by due course of Law.
The Memorial said to be exhibited by the Receiver General to this Honourable Board in April 1745 I never have been served with any Copy of it nor was I ever informed until this last order of the 28th of June That your Excellency had given any orders thereupon And I beg leave further to observe that in this last order of the 28th June wherein there is mention made of six Members of his Majesties Council being present. That three of the said Members are parties to the bond in question.
That my Commission has been on Record in the Secretary's Office ever since I was sworn into my Office and that the Secretary's Office being the Office of this Board is to be deemed as proper Notice for this Honble Board of the Powers vested in me by his Majesty's said Commission. That the Secretary had it also in charge from me to record his Majesty's 2. 3. 15. 16. and 17 Instructions to the Commissioner of the Quit rents and that Mr. Fox by the Secretary's order took them out of the original Instructions accordingly. And that the Receiver General has read those original Instructions Yet nevertheless as the Secretary keeps his Office in differents parts of this Province. And that the Copy of my Commission may not be at hand in order therefore to give all due satisfaction to this Honble Board my commission and Instructions shall be laid before you.
That althō the Commissioner of the Quit rents would upon all occasions pay the greatest Deference and Respect to the Resolutions and Orders of the Honble Board in any matter that was cognizable by the Board, Yet having considered the Tendency of your last Resolution in calling upon me to answer to the Receiver General's Memorial and that such a proceeding as I humbly apprehend will in a great measure defeat his Majesty's Intentions declared in his Royal Commission and Instructions and that it is not consistent with my duty to his Majesty Nor with the Trusts reposed in me by my Commission to bring a Precedent of this Nature into Practice.
I humbly conceive that in Duty to his Majesty and support of my own Powers I am under an indispensable necessity to decline the Jurisdiction of this Honble Board and I do hereby humbly insist that the Commissioner of the Quit Rents is not ameanable to the Honble Board for anything he has done or shall do agreeable to or in pursuance of his Majesty's said Commission in the Execution of his said Office but is only ameanable and accountable for the same before his Majesty. The Right Honble the Lords Commissioners of his Majesty's Treasury and the Right Honble the Lords Commissioners for Trade and Plantation.
All which Matters and things the said Commissioner insists upon by way of Plea in Bar to the Jurisdiction of this Honble Board—And further humbly insists that this Representation and the Proceedings had thereupon be entered at large in the Minuet of Council.