A Reply to Governour Johnston's Answer to the Complaint of the Inhabitants of the Counties of Chowan, Perquimons Pasquotank, Currotuck &c.
Most Humbly Submitted. To the Rt Honble the Lords Commissrs for Trade & Plantation.
In Order to Explain the Subject Matter of the said Complaint, It is necessary (as humbly Conceived) to give a Brief State of the several Matters therein complained of, Vizt
That the late Lords Proprietors of Carolina being Impowered by His Majesty King Charles the Second to Grant Letters of Incorporation with distinct powers and Priviledges to the several Counties or Precincts within their Territories or Dominions, did by their Instructions dated 31st August and 17th October 1694 Authorize and Impower John Archdale Esqr Governour of Carolina to Constitute and appoint such Rules, Institutions and Orders for the Government of the said Provinces as he should think most proper for their Lordships Service.
That in pursuance thereof Govr Archdale allowed the Precincts of Chowan Perquimons, Pasquotank and Currotuck severally to have the Privilege of Electing five Members to represent them in the General Assembly (which Privilege they enjoyed when they were under the Government of Virginia) Yet at the same time directed that such Inhabitants as were settled in the County of Bath (which contained a vast Tract of Land not less than 200 Miles in length and 300 Miles in breadth) should
Now the Question humbly conceived to arise is, Whether a Government so Constituted by the Royal Prerogative can be annulled or Dissolved by the Govr Council and Assembly even admitting that instead of the Eight Members (who were present at first) a full Assembly had met.
2dly By the Charter Granted to the late Lords Proprietors of Carolina, it is Expressly directed that all Laws to be passed by them shall be with the Advice and Consent of a Majority of the Freemen of the said Province or their Delegates. And in pursuance thereof the constant and uninterrupted practice of that Colony until 1746, was to have a Majority of the Burgesses present before the Assembly should proceed to do any Business, and by this constant Rule they Acted.
A Question now arises how far a Sixth or Seventh part of that Assembly was Intituled or Authorized to break in upon the Constant and uninterrupted Rule and Practice of all Assemblys in the said Colony during Sixty Years and upwards, or Whether an appeal to the Crown only did lye?
It is humbly conceived that another Question arises under the two foregoing Queries, Vizt Whether the Governour having Acted contrary to his Powers lodged in him by His Majestys Commission and the Instructions thereunto relating, and moreover Assumed a very illegal Power or Authority to barr the Inhabitants from having all their Representatives present together in Assembly, And by acting contrary to the Prerogative of the Crown in allowing the Assembly to take Cognizance of a Matter which did not of Right belong to it,
The Subjects be bound or liable to pay Obedience to such Acts as are made by the Govrs and a small part of the Assembly, contrary both to the Established Rules of Government and the Prerogative of the Crown?
The Govr in the Preamble to his Answer Endeavours to make the matter of Complaint Appear relative only to the six persons who were Chose as Agents or Nominees of the several Counties of Chowan, Pasquotank, Currotuck, And in the whole of his answer Endeavours to Represent the subject matter of Complaint as only depending between himself and the Members who represented the Northern Counties in 1746. Whereas in truth the case is quite otherwise For although the Inhabitants of the Northern Counties really believe that their Members
In the 1st Sheet No 1 the Govr Complains that the Agents for the Northern Counties refused to permit his Agents to be present at any Examination taken on their parts or to be present themselves at such as were produced on the part of the said Govr
That the said Govr was thereby compelled to enter a protest before the said Commissioners but the Judge of the Admiralty refused to set his name thereto.
That although some Interrogatories were Exhibited on the part of the Petitioners yet their Agents refused to give copies thereof to the said Govrs Agents, and abruptly left the place where the Commission was to be Executed, after giving Notice to the Chief Justice to attend at other places in Order to take further Examinations on their parts. To which is Replied
That neither the Govr or any other Person on his behalf was hindered from attending when any Person gave evidence on the part of the Petitioners, but in relation to such Persons as were Examined upon Interrogatories they Objected against the Govrs Agents being present thereat, nor were the Agents for the Petitioners present at those Examinations but did in pursuance of His Majesty's Orders in Council Deliver a Copy of the said Interrogatories to the Govr Wherefore he hath not any Colour of reason to complain that his Agents were not served with the same.
That as the Petitioners humbly conceive the Govr deviated from his Duty by Delaying to serve the Commissioners with a Copy of His Majesties Order in Council for One Month and more after he received the same Although there were only Three Months allowed for taking the said Examinations and Moreover the Govr was not impowered to Order the Commissioners to meet at any particular place, especially above One hundred Miles distance from the residence of most of the Petitioners Witnesses, So that the Govrs Assuming to himself to be a Judge of what Evidence was proper to be taken, and his refusing to the Complainants the Common Right of taken Copies of the Currency Act and
That the Commissrs before their Meeting in Nubern Granted Summons to several Witnesses on the part of the Petitioners to attend in Edenton above Eighty Miles distance from Nubern where the Agents for the Petitioners said as long as they could so as not wholy to prevent the Examination of the Witnesses Examined in Edenton where on their Arrival the Chief Justice gave all the Obstruction in his Power.
That as neither the Petitioners or any other Person on their behalf have been served with a Copy of the Govrs Protest, so they have been rendered incapable of giving any Answer thereto, which might have been easily done, if it contained any matter different from what is above stated, which is much to be doubted, since the Judge of the Admiralty refused to set his name thereto.
In the Second Sheet No 2. The Govr after reciting part of the Biennial Law which was repealed in 1737, Although by him said to have been repealed in 1747, Sets forth that the said Law was the only Grounds whereon the Inhabitants of Albemarle County could Claim the Right now in Contest, And conceives that he would have been justified had he then put the Repeal of that Law in its full force by issuing Writs for Two Members only, throughout the whole Province But he in Consideration of the great Confusion then subsisting in the Province thought it more prudent to be silent on that subject. only with this caution that as before the Repeal of that Law the Writs of Election for those Counties Directed Five Members to be chosen—they were now altered, and the words to Chuse Representatives leaving the number indefinite have since that time been always the Stile of those Writs.
That he by such connivances hoped to bring the Assembly in time to their Duty but therein found himself mistaken, the Members sent from Albemarle County making too great a Majority for the rest of the Counties in the Province for which reason every Proposal made for the settlement of the Province and for the Utility was rejected. To which is replied
That on the repeal of the Biennial Law, His Majesty Commands and Enjoyns the Govr in all things to conform to His Majesty's pleasure then signified on that head, And that if the Govr really thought that the Precincts in Albemarle County had no other Tittle to Elect Five Burgesses than what was Grounded on that Law, he (as humbly Conceived) would scarce have taken upon him to dispense with His Majesties Orders in a Matter of that great Importance. That although some Alteration wast to choose Representatives duly Qualified (which last words duly Qualified are Omitted by the Govr in his Answer) Yet the Sheriffs always returned Five Members for each of the said Counties or precincts. And the Govr at all times approved thereof. So that if the Govr is to be judged of by his own Actions he could not be of opinion that the Northern Counties were not after the Repeal of the Biennial Law, still Intitled to have Five Members to represent them in the General Assembly.
That if the Govr had really found that the Representatives of the Northern Counties had Obstructed him in his Duty and prevented every proposal made for the good of the Province from being carried into Execution, it is not easy to Conceive for what cause he was Silent on that head, during Nine years and upwards Vizt from 1737 to Novr 1746 and that he did not agreable to his Instructions Submit his difficulties to the Crown to which only (as is also Conceived) an Appeal lay—But that he instead of pursuing his Instructions on that head should after so long a Silence bring the matter in Contest under the Consideration of a Sixth or Seventh part of the Assembly which (as is also Conceived) had not any Right to take Cognizance thereof—is a Conduct of a very Extraordinary nature and (as humbly Apprehended) destroys the very Essence of His Majesties Government in that Colony, And in lieu thereof Sets up a Jurisdiction of his own Contrivance.
By His Majesties Commission the Govr is directed to Issue Writts and Summons for calling Assemblies Agreable to the Laws and Usage of the colony so that on this head the Govrs power is thereby restrained and the very Assemblies themselves are not competent Judges of any Alteration which ought to be made in the Constitution of the colony.
It is further to be observed that if the Govrs Plea had been founded on Truth, Vizt that the Precincts in Albemarle County had no other Claim or Right to have Five Members to represent them in the General Assembly than what was founded on the Biennial Law, Yet that Law being Repealed he was rendered inexcusable in applying to the Assembly to pass the Law Complained of.
Having thus Endeavoured to Demonstrate the Inconsistency of the Govrs first Plea on which he principally Grounds all the rest of his Defence, It is humbly Conceived that it may be very proper to observe That the Biennial Law gave to the Northern Counties or Precincts no new or additional Title to Elect Five Members but only Intituled them and also the Southern Counties to Elect their Members at certain Seasons of the Year, and likewise to meet in Assembly without any Writs or Summons being first issued by the Governour, and as this was contraryr says in his Answer that the said Law was repealed in 1747 as above remarked in page 3.
The Govr in the 3d Paragraph of the 3d Sheet No 3 Insinuates that the Representatives of the Northern Counties obstructed him in passing a Law for regulating the Courts of Justice.
If those Representatives really had been wanting in their Duty on that head or in any other particular as a Collective Body in the House of Burgesses, the Govr might easily point out the obstructions given by them—But as in Truth they never gave to the Govr any opposition in relation to the passing of the said Law, but only to some different matters or Conditions tacked to it. So he could only have recourse to a General charge which cannot have any weight in an Appeal to the Crown.
And it is also to be observed that although the Govr brings the said Matter as a charge against the Representatives of the Northern Counties Yet he (as humbly apprehended) is much more to be Censured for his bringing any Law about regulating His Majesties Courts of Justice, before the Assembly in regard the Crown only could (as is humbly) take Cognizance thereof, and if any Laws were in force which obstructed the Courts of Justice—The Govr ought to have applied to the Crown for repealing the same without bringing that Matter before the Assembly.
In the Two last Paragraphs of the 3d Sheet the Govr Represents,
That it would be Endless to Enumerate the many Artifices which the Representatives of the Northern Counties made use of to Obstruct and impede the Business of the Assembly, and particularly that Benjamin Hill and some other Members in 1739, by Absenting themselves prevented the House from sitting and proceeding on Business, And further that One or more of their Members dropped a Paper at the Door of the Council Chamber, Containing threats, that if certain favourite Bills were not passed they would obstruct the Council in their Affairs.
To which is Replied That if Benjn Hill and One or two more of the Members of the Northern Counties, Acted against their Duty in so absenting themselves, the same was also done by some of the Southern Members, And as the Wrong Conduct of Two or three Members cannot in Justice be Charged upon all the Members in a Collective Body much less can it be Charged on the Counties which were not privy thereto.
But the Truth of the Fact appears to be very different from what the Govr would Represent it. In 1739 several Charges were brought against the late Chief Justice Smith in the House of Assembly and Seconded by several Members of the Council. Whereupon the Chief Justice whor as to devise to him the Bulk of his Fortune—Applied not only to the Govr but also to Benjn Hill and other Members of the Northern and Southern Division to Absent themselves in Order to prevent the House from proceeding on business, that the Chief Justice might thereby evade the Prosecution he was then under. All which will evidently appear by the affidavits taken in that affair and that the Govr far from discouraging that Conduct gave all the Countenance in his power, which Misbehaviour is humbly Conceived to be a Crime of a much higher Nature in the Govr than that of the Members of the Assembly withdrawing from their Duty. As to the other part of the Govr's charge Vizt that James Castellow One of the Members dropped Papers at the door of the Council Chamber, it is well known that the said Castellow was commonly Mad or Drunk, so that his conduct cannot with any Colour of Justice be imputed to the rest of the Northern Members.
In the Three first Paragraphs of the 4th Sheet, the Govr Represents
That the Council being tired with frequent Obstructions and Convinced from what Source that Evil arose, Resolved to Enquire upon what grounds the Northern Counties Claimed the Privilege of Sending Five Members to the Assembly.
That two Gentlemen of the Council being Examined the Records—Reported the Matter as it appeared to them which is contained in a Memorial presented to the Govr in July 1744, And is (as he Conceives) a full Answer to the Matter Complained of.
In the 1st part of the Govrs Answer, he is pleased to Ground his Defence wholy on the Repeal of the Biennial Law, But in the above Paragraphs he seems to be in doubt as to the Claim of the Northern Counties and Submits the Consideration thereof to Two Members of his Council If this had been done in Order to bring the matter in Dispute by way of Appeal before the Crown no reason could have been given for Objecting to it.
But as it was Calculated with other very different Views, And that in consequence thereof the Govr and Council found Means by the Prorogation of the Assembly to Wilmington to free themselves from the Northern Members and prevent their Attendance they brought the whole matter in dispute before a few of the Southern Members, who assumed an Arbitrary Power of New Modelling or Altering the Established Constitution of the Colony.
Therefore in Order to Explain this Matter rightly it is necessary to give a true State of the different Affairs and Circumstances of the Colony.
After the Division which was made between His Majesty and the Earl of Granville in 1744 the Northern Inhabitants were liable to pay their Chief Rents to his Lordships Agents which removed the principal Cause of Dispute generally Subsisting between His Majesties Govrs and the Inhabitants of the Colonies So that nothing could be required from them for His Majesties Service in which they had the least Interest or Motiff to Oppose the Govr.
But with regard to their private Concerns the Inhabitants of the Northern and Southern Division Act upon different Motives particularly in relation to their Currency.
The principal part of the Trade of the said Colony is carried on from Virginia by the Merchants and Traders who reside in the Northern Division And afterwards disposed of to the Inhabitants of the Southern Division, And by their Contracts with the Virginia Merchants they are not to be paid in Bills of Currency, So that if the Northern Inhabitants were liable to be paid their Debts in Bills of Currency, they cannot discharge their Contracts with the Virginia Merchants. Under those Circumstances the Inhabitants of the Northern Counties always opposed the Govr Council and Representatives of the Southern Division in passing a Law for Emitting Paper Bills of Currency.
Therefore in Order to carry their point, And also to Remove the Seat of Government, it became necessary to devise some Method to get rid of the Northern Members, that they might be the more at liberty to carry on their own designs.
That this was their Motiff will (as conceived) evidently appear on considering the Currency and Rent Roll Acts.
The Currency Act, intitles the Govr to £1000. Procl. and gives to him and his Dependants the power of Applying 6 or £7000. for Erecting Forts, although they had neither arms, Ordnance or Ammunition to put into the same, nor any Persons skilled in Fortifications to Erect the said Forts.
The Plea or pretence for so doing was the Exigency of their Affairs, but this could be no just reason for not inserting a Suspending Clause, especially as His Majesties Pleasure might have been known thereon, before they could be supplied with such Arms Ordnance and Ammunition.
The Rent Roll Act is principally Calculated to give a Currency to the paper Bills which were Emitted, For although it is said to be an Act for forming a Rent Roll for His Majesty yet in truth it hath very little (if any) relation to the Crown as it doth not require any person who holds Grants issued under the Crown, to Record the same on the Alteration of
Moreover there is a Clause in the said Act of an Extraordinary and Unusual nature, which makes all Persons liable to the Forfeiture of their Lands who do not Record their Titles within Twelve Months from the date of the said Act. Which Clause was principally intended to compell the Northern Inhabitants to own the Jurisdiction of the Southern Assembly although the Northern Members had not the Liberty of Sitting in the Assembly or otherwise to make them Subject to the Forfeiture of their Lands.
In the Two last paragraphs of the 4th Sheet and 1st Paragraph of the Fifth Sheet the Governour Represents,
That the Month of November is generally the most Temperate throughout the year, That the Biennial Law which was intended to be perpetual fixed the Meeting of the Assembly in that Month,
That neither the Inclemency of the Season nor the length of Ferrys, was the true reason of their disobedience to his Prorogation, but a Combination of all the Members to put in Practice the Old Artifice of Absenting themselves and thereby Obstructing the business of the Assembly. To which is Replyed
That the Season of the year is for the most part very Windy and Intemperate in the Months of November and December, and that the Delay the Govr met with in his return from the Assembly at Wilmington plainly shews how intemperate the Season was.
That when the Biennial Law passed, the Bounds Comprising the Inhabitants were very narrow and Confined to what they are at present so that it could not be any great Inconveniency for the Members to meet at Edenton in that Season of the Year.
That the Trade and Commerce of the said Colony is greatly Altered within these 20 years, and that at present the principal Method they have of Paying their Debts in Virginia in return for Goods received from the said Province, is by disposing of their Beef and Pork in the months of November and December, and that if their Representatives (who are most of them Traders) should be taken off from this Business in this Season of the Year it would in a great measure Ruin them and their Families. And it is to be further Observed that the Northern Inhabitants allow to their Members Three Shillings Sterling during the time of their going to, and attending at the Assembly, And if the Govr will calculate the Sitting of the Assembly at that Season of the Year and at so great a distance as Wilmington, without any just cause for so
What the Govr Charges of their having a fixed Resolution to put in practice their Old Artifice of breaking up the Assembly is conceived to be said without any foundation, as no more than Two or Three of their Members were concerned in the Obstruction given the House of Assembly in 1739. And those acted under the influence of the Govr and the late Chief Justice Smith, which Conduct is very Censurable not only as it relates to the Crown, but to their own Constituents. But when it arises from the Govr it is still a Crime of a much higher Nature, and the Minutes of the Council will shew that the Govr and Council have often put this Method in Practice to prevent the Assembly from Proceeding on business.
In the 2d Paragraph of the 5th Sheet the Govr referrs to the Journals of the Council and Assembly adding that they will plainly Evince how unfairly the Petitioners have represented that Fact.
To which is Replied that (as it is humbly Conceived) the Journals of the Council and Assembly at Wilmington will fully Evince the Truth of what is alledged in that part of the said Petition of Complaint Vizt that Eight Members only were present at their first Meeting, that they afterwards swore in Six New Members and proceeded to Business. And further that it Appears on the face of the Law, that several things therein represented are contradictory and not grounded on Truth.
In the Three following Paragraphs of the 5th Sheet, the Governour Represents
That he humbly hopes it will appear that the Northern Counties had not any other Right to Five Members than what arose from the Biennial Law.
That if they had any Prior Right it must be included in the said Law, since they do not plead or pretend to any Right by Prescription.
That the Law now Complained of was passed not only with the advice of His Majesties Council but at the Instance thereof as the only remedy against the Evils they found attending such an Inequality in the Representative Body of the Province.
To which is Replied
If the Northern Counties had no other Right but what arose from the Biennial Law, it is not Easy to Conceive from what Motiff or Authority the Govr allowed them after the Repeal of the said Law Vizt in 1737 until 1746 to have five Members to represent them in the General Assembly,r bring the Matter in Complaint under the Consideration of the Assembly for had what he alledges been true there could not be any necessity for passing the Law Complained of.
That although that Law was passed with the Advice and at the Instance of His Majesties Council Yet (as it is humbly conceived) that could not Authorize the Govr to act contrary to the powers lodged in him by His Majesties Commission or the Instructions thereunto relating, And that in no Event whatsoever the Assembly was impowered to take Cognizance thereof.
The Northern Counties (as above Observed) were Considered as a Nursery for the more Southern Settlements and therefore had particular privileges granted to them, and under their present Circumstances it is conceived there is not the least reason to doubt that they will take any Measures to Obstruct or Impede any matter which may be Offered for His Majestys Service and on the whole it is humbly Conceived that the present disputes will evidently appear to arise from the Govrs attempting to Introduce the Currency Act, and several other Acts contrary to his said Instructions, and not from any opposition given to him in Matters relating only to the Service of the Crown.
In the last Paragraph of the Governour's Answer, He is pleased to Represent
That he Esteems himself happy that after Fourteen Years Administration no Acts of Oppression or Violence, have been the subject of any Complaint against him, And that however your Lordships in your great wisdom shall judge of this Matter, it is plain that the passing of the Law Complained of has produced all the Effects expected or desired from it. Since which time many beneficial Laws have been passed, the due and speedy Administration of Justice provided for,—A Rent Roll given to His Majesty and Lord Granville and the Recovery of the Quit Rents Ascertained. The Laws of the Province before a dead letter now Ordered to be revised and Printed and Harmony and Concord Established among the several Branches of the Legislature.
To which is Replied
That in 1738 no less than three different Petitions of complaint were presented against the Govr signed by a great number of the Council and Assembly complaining of the many Acts of Violence and Exertion of Power in him, and that even the Members of the Council have made frequent complaints on that subject. And it further appears by the evidence of Doctr Abraham Blackall that the Governour hath been guilty of very Extraordinary Exertion of Power in the manner of his granting Administrations. The Merit which the Govr attributes to himself
What the Govr asserts in relation to the Harmony Established among the several branches of the Legislature, seems very ill to suit with the present situation of affairs and with the opposition which is given by almost one third part of the Colony and it is very remarkable that altho' the Govr says that the Laws of the Province were before a dead letter but are now Ordered to be revised and Printed, That in the Proceedings before the Commissioners the Govr refused to the Agents of the Northern Counties the Privilege of obtaining a copy of such Laws as immediately related to their Petition of Complaint.
Having so Endeavoured to explain the several Matters contained in the Governour's Answer, It is in the most humble manner submitted, Whether the Governour hath not in all respects acted contrary to his Duty in not Appealing to the Crown, Provided any such Difficulties or Obstructions had really been given by the Representatives for the Northern Counties. And Whether the Govrs bringing the said Matter of complaint before the Assembly in the manner it was then introduced and afterwards passing several Acts contrary to His Majesties Instructions, do not evidently shew that he acted from private Motives, And that the pretence of Acting for His Majesties Service was in truth only a colourable Excuse for his so doing.
And whether such Arbitrary and illegal Proceedings are not incompatible with, and in all respects contrary to the Prerogative of the Crown and the Rights of the Subject.