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Memorandum from Gabriel Johnston to the Privy Council Committee on Plantation Affairs concerning the petition from inhabitants of the northern counties of North Carolina concerning the election of General Assembly representatives
Johnston, Gabriel, ca. 1698-1752
1749
Volume 04, Pages 1183-1188

[B. P. R. O. North Carolina. B. T. Vol. 11. B. 96.]

Answer of Gabriel Johnston Esqre Governor of North Carolina to the Petition of Peter Payne and others.

To the Right Honourable the Lords of the Committee of His Majestie's Council for Plantation Affairs.

The Answer of Gabriel Johnston Esqre of the Province of North Carolina to the Petition of the Complaint of Peter Payne McRoro Scarborough Simon Bryan, Caleb Wilson, Benjamin Hill and Stevins Lee against the passing an Act entituled an Act for the better ascertaining the Number of Members to be chosen for the several Counties within this Province to sit in General Assembly, and for establishing a more equal representation of all His Majestie's Subjects in the House of Burgesses.

My Lords,

In Obedience to your Lordships Order of the 14th July 1748 delivered him by one of the Petitioners the 21st day of January last, The said Governor did accordingly on the 22d day of February following serve the Chief Justice, and Judge of the Admiralty with a Copy thereof, and at the same time signified to them under his hand that your Lordships said Order was to be executed on the 28th of March next, The day immediately after the General Court, for the ease and conveniency of the Commissioners therein mentioned, And at Newbern as being most central for the Parties concerned, to the intent that the Petitioners might have timely notice and Accordingly Two Agents did appear in behalf of the Petitioners at the time and place appointed, But they refusing to permit the Agents of the said Governor to be present at any examinations

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taken on their parts, or to be present themselves at such as were produced on the part of the said Governor, altho' often summoned and invited thereto, & in all things acting in the most secret and clandestine manner, contrary (as the said Governor apprehends) to the true intent and meaning of your Lordships said Order; and the said Governor being sensible of the consequence that might attend such hidden practises and examinations Ex Parte; was compelled to enter a protest before the said Commissioners, a Copy of which is hereunto annexed, attested by the Chief Justice only the Judge of the Admiralty refusing at this time to set his name thereto. And although some Interrogatories were then and there taken on the part of the Petitioners yet the said Agents also refused copies of them to the said Governors Agents and abruptly left the Place when your Lordships Commission was appointed to be executed. Giving the Chief Justice notice to attend at other times and places for other examinations on their part; A Copy of which is hereunto annexed, And for which no plea has been made or reason given, In as much as the said Governor had produced evidences on his part at Newbern from the same Places, to which the Commission is desired to be adjourned; A conduct the said Governor will not remark upon, but submit to your Lordship's Judgment.

For answer to the said Petition the said Governor humbly begs leave to say, that he apprehends he has not in passing the said Law now in contest broke through any of the constitutions of the late Lords Proprietors or violated any of the Priviledges the Inhabitants of North Carolina were entitled to, as is insinuated by the said Petition which he humbly hopes will appear to your Lordships from the following considerations.

1st. That upon the arrival of the said Governor in this Province in October 1734 he found the people in possession of an Act of Assembly of this Province, Intitled an Act relating to the Biennial and other Assemblies, and regulating Elections, and Members, commonly called the Biennial Law, Whereby it was among other things enacted that the several precincts in Albemarle County which were at that time Four, should send five Members out of each Precinct to the General Assembly, and those to the Southward in Bath County but two, These Precincts being of large extent have been since erected into Counties by their several names, and Sheriffs appointed, more agreable to the Constitution of Great Brittain.

By this Law it was also enacted that the Freeholders of each Precinct should meet in September Biennially at such places as were therein appointed, to choose their Representatives, which Representatives were

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accordingly to convene in November following and this without any Writt or Precept for that Purpose from the Governor or Palatine Court, which proceedings as they seemed to clash with the Royal Prerogative were the reasons for which (it is humbly apprehended) His Majesty in His Great Wisdom thought proper to repeal the said Act; and which repeal was signified to the said Governor.

2d. Although it plainly appeared to the said Govr that the above mentioned Law, while it subsisted was the only Ground upon which the Inhabitants of Albemarle County (then so called) could claim the right now in contest before your Lordships, and that the said Governor (as he conceives) would have been justified had he then put the repeal of the said Law in its full force by issuing Writts for two Members only, throughout the whole Province

Yet in consideration that the affairs of the Province were at that time in great confusion occasioned by the said Governor's ardent endeavours to provide a rent roll to his Majesty and to recover a large arrear of Quit rents then due to the Crown; Both which points were chiefly obstructed by these very Inhabitants of Albemarle County, and in which two of the Petitioners were deeply concerned. He thought it the most prudent step to be silent on that subject for some time, at least till these affairs were got over in the Assembly; Only with this caution, that as before the Repeal of the said Law, the Writts of Election for those Countys directed five Members to be chosen, they were now altered and the words to choose Representatives, leaving the number indefinite, have always since been the stile of them as will appear to your Lordships by Copys of some of them hereunto annexed; although the Petitioners have ventured to assert the contrary.

Such a Conduct the said Governor hopes will not be thought blameable while the ends proposed by it were His Majesty's Interest & Service and the welfare of this Province. As he had some hopes by such a connivance, the Assembly might in some time be brought to consider those two points as their duty and act agreable thereto, But herein My Lords the said Governr had the mortification to find himself mistaken The number of Members sent to the Assembly from Albemarle County were too great a majority for the rest of the Countys in the Province; And that majority consisting for the most part of weak and ignorant persons, conducted & governed by two or three designing men, whose custom it was to perplex and confound the business of the Assembly in such a manner as to render abortive almost every proposal that could be introduced for the settlement of the Province and the Publick Utility, unless they might reap some private advantage from it.

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Such was a Law for regulating the Courts of justice and providing a remedy against the scandalous practise of keeping the honest Creditor out of his right for some years even in the plainest cases; a Law often attempted and as often defeated till at last it was brought to pass at the same time with that which is now become the subject of your Lordships enquiry.

It would be endless my Lords to enumerate the many artifices made use of by these Persons for this purpose and some of them very particular.

It was usual for them in such cases to break the House, as it was called, by such a number absenting themselves from the service of it as not to leave sufficient to proceed on business; When after the said Governor & His Majtie's Council had waited some days for their return he was compelled either to Prorogue or dissolve them.

This was put in practice by Benj: Hill, one of the Petitioners with some others in November 1739, as appears by an Affidavit hereunto annexed.

On some occasions they would influence the House of representatives to send very indecent Messages to His Majesty's Council while sitting as an Upper House of Assembly, and contrive Papers to be dropped at the door of the Council Chamber signed by some one or more of their Members containing threats if certain favourite Bills of theirs were not dispatched; An instance of which among many others is now laid before your Lordships properly attested.

His Majesty's Council being tired with so many frequent & repeated Obstructions to the Business for which they were convened, and being well convinced from what source this evil arose, as well as of the necessity of putting a stop (if possible) to the progress of it, at length resolved to enquire in the strictest manner they were capable of, upon what Grounds a Priviledge of sending five Members to the Assembly for the Countys in Albemarle was founded, besides that of the Biennial Law which was repealed, It having been asserted that they were in possession of that right before the said Law was passed, by the Lords Proprietors Charters & Constitutions and consequently that they could not be divested of it.

Accordingly, two Gentlemen of that Board were desired to make this inquisition, who after examining into such records as could be found, as well as some old standers in the Province who had been in business here for thirty or forty years past, reported the facts (as they apprehended) to be as contained in a Memorial which the majority of them presented to the said Governor under their hands the      day of July 1744, An attested

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Copy of which is hereunto annexed, And humbly submitted to your Lordships judgment.

As the said Governor conceives it to be as full an Answer as can be given to the charge of breaking in upon the Constitutions of this Government mentioned in the Petition, without spending your Lordships time in a dispute whether the Charter of the late Lords Proprietors or the Order of 1696 to their Governor Archdale (if such a thing there be) will be of sufficient weight with your Lordships to make good the said charge

What remains of the said Petition to be answered, is that Paragraph of it wherein the said Governor is charged with a design to ensnare and entrap the several representatives of the Northern Countys by summoning the Assembly to meet at Wilmington the 20th of November 1746, (which summoning as they call it) was a regular Prorogation in June preceding from Newbern to that place, as by the royal Prerogative he might well do, and this at a Season of the year extreamly intemperate, many broad ferrys to pass, and those ill provided with boats, whereby they were laid under a disability of attending &c. To all which as well as to the succeeding parts of the said Paragraph he begs leave to reply

That as to the inclemency of the season, it is notorious that the month of November is in this climate generally one of the most temperate throughout the year; and it is to be observed that by the Biennial Law before mentioned which was intended to be perpetual That month was fixed for the meeting of Assembly nor can it be supposed that the said Governor whose residence is in the same part of the Province with the Petitioners would subject himself to the rigours of so intemperate a season and the danger of such Ferrys while he was at liberty to choose a more favourable.

But my Lords the truth of this matter will appear by the Interrogatories & Affidavits hereunto annexed, That the Inclemency of the season and the length of the Ferrys were not the true reasons for their disobedience to the said Governors Prorogation, but a fixed and determined resolution and combination of all the members concerned in the Petition to put in practice the old artifice which had been so often successful of absenting themselves, & thereby breaking the house as they call'd it. That this resolution was taken immediately after the Prorogation before mentioned. And it is observable that in some of their consultations they made use of such language as does not seem consistent with the character of dutyfull & loyall subjects nor with that submission to His Majesty's Orders, and Instructions which is pretended to and set forth in the Petition.

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To the last part of this Paragraph of the Petition the said Governor begs leave to referr to the Journals of both Houses hereunto annexed, which will plainly evince to your Lordships how unfairly the Petitioners have represented that fact, and upon the whole how ill grounded this part of the Petition is.

From this short state of the case the said Governor humbly hopes it will appear to your Lordships that the Inhabitants of the Northern Countys in this Province had no other right of sending five Members to the Assembly than the Biennial Law before mentioned. That if any such right may be claimed before the passing of that Law in 1715, it must be included in the said Law Since a right by Prescription is not pretended to be pleaded.

That the Law now complained of was passed not only by and with the advice & consent of His Majesty's Council but at their Instance, as the only remedy against the many evils, which from long experience they had found to attend such an inequality in the representative Body of this Province as before subsisted.

Lastly the said Governor begs leave to say that he esteems himself happy in that after fourteen years administration in this Government, amidst the tumults and disorders of a rude and undisciplined people, no charge of disobedience to His Majesty, No act of extortion, oppression or violence, has been the subject of any complaint against him; And that however your Lordships in your wisdom shall judge of this matter, it is plain that the passing this Law has produced all the effects, that were expected or desired from it here; since which time many wholesome and beneficial laws have passed which the Petitioners themselves and their Adherents do not deny to be such.

The due and speedy administration of justice provided for A rent roll given to His Majesty and Lord Granville, and the method of recovering Quit rents ascertained. The Laws of the Province, before a dead letter, now ordered to be revised, printed & published; Harmony and Concord seem to be established among the several Branches of the Legislature. The Publick Business is carried on with order & decency, and the whole Province begins to emerge out of that confusion it had so long laboured under.

All which is humbly submitted.
GAB. JOHNSTON.