At a Meeting of His Majesty's Commissrs for Trade & Plantations
The Secretary laid before the Board the following paper received from Mr. Abercromby Agent for the Province of North Carolina, viz:
Paragraph of Gov. Johnston's letter about the Spanish ships cast away in North America 18 Aug. 1750.
Read a Memorial of James Abercromby Esq Agent for North Carolina to the Board dated Janry 22d 1750/1 praying their Lordships to take into consideration the Act passed in that Province for the better ascertaining the number of Members to be chosen for several Counties &c.
Ordered that the Secretary do give notice to Mr. Abercromby and to Mr. John Sharpe Solicitor to Mr. McCulloh to attend the Board on Friday next at 11 o'clock.
Mr. Abercromby Agent for the Province of North Carolina and Mr. Sharpe Solicitor for Mr. McCulloh attending as desired their Lordships appointed Thursday next for taking into consideration the petition of the inhabitants of the five Northern Countys against the Act for ascertaining the number of Assemblymen.
Mr. McCulloh Agent for the inhabitants of the five Northern Countys attending with Mr. John Sharpe his Solicitor and Mr. Abercromby
Mr. Abercromby Agent for the Governor of North Carolina attending acquainted their Lordships that he could not be prepared to be heard before their Lordships upon the petition of the inhabitants of the five Northern Countys on the day appointed by their Lordships Whereupon their Lordships fixed Fryday next for taking that affair into consideration.
Mr. Abercromby Agent for Govr Johnston attending as desired with Mr. Joshua Sharpe his Solicitor and Mr. Hume Campbell his Council as also Mr. McCulloh agent for the inhabitants of the five Northern Countys in North Carolina with Mr. John Sharpe his Solicitor on the subject of the Petition of the said inhabitants of the five Northern Countys relative to the Act for ascertaining the number of the Assembly. Mr. Hume Campbell acquainted their Lordships that altho' every person had a right to make out his plea in the best manner he could, yet decency and a regard to his profession would not allow him to plead in this case when the other Party appeared only by his Solicitor Whereupon Mr. McCulloh acquainted their Lordships that he would apply to Mr. Joddrell who had been his Council upon this affair before the Attorney & Solicitor Genl to appear at their Lordships Board in his behalf.
Their Lordships then recommended to them to agree upon a further day for hearing this and give them notice thereof.
Read a petition of Mr. Abercromby Agent for North Carolina to the Board praying to be heard against the Attorney & Solicitor General's Report on the Act passed in North Carolina in 1746 for the better ascertaining the number of members to be chosen for the several Counties &c.
The Secretary at the same time acquainted their Lordships that he was desired by Mr. Abercromby to inform them that Wednesday next was agreed upon by both parties to be heard upon the petition of the Northern Countys Whereupon their Lordships ordered him to write to them to desire their attendance at ten o'clock.
Read a Memorial of Mr. McCulloh relating to his complaints against Mr. Johnston Governor of North Carolina.
The Secretary laid before the Board a Bundle of papers delivered in by Mr. McCulloh relative to his said Complaint and in support thereof
The Secretary also laid before the Board a Book entitled: The handwriting & usual seals of the Lord Advocate & other Bishops & Pastors of the Unitas Fratrum for the use of the Rt. Honble the Lords Comrs for Trade and Plantations pursuant to an act passed in the 22d year of his present Majesty.
Mr. Abercromby with his Council Mr. Hume Campbell and his Solicitor Mr. Joshua Sharpe in support of the Act for ascertaining the number of Members to be chosen in North Carolina and Mr. McCulloh with his Council Mr. Joddrell and his Solicitor Mr. John Sharpe in support of the petition against the said Act attending as desired by the Minutes of the 13th inst. the following papers were read Viz:
Order in Council dated 15th Janry 1747 referring the petition of certain persons inhabitants of several precincts and Counties in North Carolina against the above mentioned Act.
The Petition annexed thereto.
Mr. Attorney and Solicitor General's Report dated the 1st Dec. 1750 upon two Acts passed in the Province of North Carolina in 176  referred to them in April and May last.
The Petition of the Agent of North Carolina praying to be heard against the said Report—read the 13th inst.
Mr. Hume Campbell then observed to their Lordships that the Attorney & Solr General had in their said Report admitted that the Governor had a right to judge of the place of Meeting the Assembly and that a majority of that House is not necessary to make a quorum but had reported the Act to have been passed by management, precipitation & surprize few Members being then present and to be of such a nature & tendency as that the Governor ought not to have assented to it altho' it had been deliberately enacted by the Assembly. In answer to which objections he begged leave to state to their Lordships the manner in which it was passed and the nature & subject matter of it. That as tor and passed on the 25th That if it be objected that but fifteen Members were present at Wilmington and the Governor should have waited for more the Answers which are many are ready That the Attorney & Solicitor General should have given their opinion in point of law that fifteen Members were not a quorum and what number does constitute a quorum That if there were but fifteen the Governor was not in fault he had given proper notice by prorogation and had no compulsory power But the truth is he had no reason to expect a greater number the Petitioners having combined together to make a Secession which they would now make a reason against passing the Act That if this be allowed 'twill be a dangerous precedent to Assemblys in America That the true motive of the petitioners was a contest between some of the Assembly to invest themselves with independence and attain a power superior to that of the Crown. That these men had got a majority and being in a remote Northern Part of the Province insisted that a majority was necessary for the transaction of business and that nothing should be done unless they were present That he should make it appear by evidence that in June there was an attempt in the Lower House to defeat every measure of the Governor and that there being but fifteen Members present was but a consequence of that design That it might have been imprudent in the Governor to have passed this Act had there been hopes of more Members coming but when there were no such Hopes it would be dangerous to say no Act shall pass That fifteen is a larger proportion of 54, the number of the Assembly, than 40 is of 558 the number of the House of Commons and that Secessions have been made in England but no Act is thereby invalidated That the petition r Genl have reported against one of these propositions as not being made out to their satisfaction and have passed over the other in silence That he hoped their Lordships would not be insidiously drawn in to countenance a right which if it takes place will put an end to the subjection of this Colony to the Mother Country That if the Act is found to be prudent & expedient and that it was fitting to take any opportunity of passing it as a means to check an attempt to gain ascendance over the Governor that the Province has enjoyed tranquility and that eighteen good laws have been made since the passing it he was persuaded their Lordps would not countenance such attempts in Assemblies and throw the Colony back into confusion by disapproving this Act That there was nothing in the nature & tendency in this Act which raise an objection Tha the Lords Proprietors of Carolina who had power to make a Constitution did make none and if they had it must have varied as the Colony increased. That this Act establishes such a Constitution as it appears now reasonable to make and if the Petitioners would compare it with the former Constitution of Carolina they must define what that former Constitution was. That to make out such a one as will avail them they must prove it to have been a Constitution binding on the Crown itself and so fixt and certain as to be absolutely unalterable they must prove that by that Constitution the Governor has no power to prorogue that fifteen Members have not power to pass an Act or that if all had concurred they could not have altered the number of Representatives That if a Governor obtains an Act beneficial to His Maj. interest he might justly be blamed for not adhering strictly to his Instructions but such an Act ought not to be repealed That upon the whole if the Act should still appear to their Lordps to be liable to objections he was persuaded they would be cautious how they gave direct advice for the repeal of it that they would consider what directions were proper to be sent to the Govr previous to a declaration against the Act without which a Repeal of it must necessarily involve the Province in confusion.
The following papers were then read in evidence of the several facts stated as above by Mr. Hume Campbel, viz:
Act for ascertaining the number of Members to be chosen for North Carolina.
Minutes of Assembly in North Carolina in June & Novr 1746 relating to the progress of the Act through the Houses.
Mr. Lamb's Report dated 25th Sept. 1747 on the Act for ascertaining the number of Members.
Mr. Johnston's letter of March 9th 1746/7 to the Board on the said Act
Memorial of the Council to Govr Johnston entered in the Minutes of Assembly from 15th March 1742 to Febry 1743.
The Biennial Law passed in 1715.
Report of the Board of Trade dated 21st April 1737 proposing the Repeal of the said Act.
Deposition of Thomas Lovick a Member & Collector for Beaufort setting forth that application had been made to him not to attend but to keep out of the way that no business might be done
Do of George Johnson Bricklayer who heard a consultation amongst certain Members not to attend Session of Assembly.
Do of Benjamin Fordham Messenger of the Assembly held at Newbern who heard certain of the Members agree not to go to the Assembly by which there would not be a House.
Do of Nicholas Routledge late of Newbern Victualler heard Northern Members talk that if the Assembly was to meet at Wilmington they would not go for nothing could be done without them.
Do of John Berry sweareth that two Members declared to the same effect at a public House kept by him.
Bridget Arthur whose Husband kept a public House to same effect Members would not go because they knew nothing could be done without them.
It being late the parties were desired to attend on Tuesday morning next when their Lordps will hear what Mr. Joddrell has to offer in support of the petition
The Secretary acquainted the Board that Mr. McCulloh attending without had desired him to inform their Lordships that Mr. Joddrell could not possibly attend tomorrow but that he and Mr. Hume Campbell would attend on Friday next if convenient to the Board and their Lordships were pleased to appoint Friday accordingly.
The Parties attending pursuant to the Minutes of Monday last Mr. Joddrell Counsel for the Petitioners against the Act for ascertaining thend to the Lords Proprietors of Carolina power was given them to make and publish any Laws whatsoever either appertaining to the public estate of the Province or to the private utility of particular persons with the advice and approbation of the freemen or the greatest part of them or their Delegates That on the 30th Nov. 1693 the Lords Proprs empowered their Governor Thomas Smith Esq. in case he should find it impracticable for the inhabitants of Albemarle County to send Delegates to the Assembly of South Carolina to issue Writs for electing seven Members for each of the Counties of Berkeley and Colleton and six for Craven County and also to appoint a Deputy Governor of North Carolina That in consequence of this Instruction the Carolinas became distinct Provinces & had distinct Assemblies That John Archdale Esq. who succeeded Mr. Smith was on the 31st August 1694 appointed Governor of both the Carolinas with power to appoint a Deputy Governor of either Province and with the advice and consent of the Council & General Assembly to alter former Laws and enact new ones as should seem most expedient provided they were not repugnant to the Charter but as near as possible agreeable to the Fundamental Constitutions That Mr. Archdale on the 9th Dec. 1696 held a General Palatin Court at Edenton which was the seat of Government That this Court directed Writs to be issued for electing five Members for each of the four Precincts of Albemarle County. That by these Orders the Assembly received its original form and that the number five for each Precinct thus established was not arbitrary but the privilege those Precincts enjoyed before [under] the Charter of King Chas. 2nd That at this Court the rest of North Carolina lying on Pimlico River was erected into a County by the name of Bath County and being a new one was empowered to elect only two Members That out of the four Precincts of Albemarle County two others have been made by the names of Bertie & Tyrrell each of which had power to choose five Members. That these again have been subdivided Northampton having been taken out of Bertie and Edgecumbe out of Tyrrell the two new Counties being empowered to elect two each and the two old ones to elect each three Members. That Bath having been subdivided into eleven Counties each of which sends two Members (besides which the Towns of Edenton Bath Newbern & Wilmington send one each) now returns twenty six Members instead of two the number established by the Palatine Court That before the passing of this Act there was never any doubt about the Constitution or number of Members to be elected the Writs having been constantly issued in conformity with the facts above stated That if the t and surprize as set forth by Mr. Attorney and Solicitor General as people could not expect that such business could be done at such time and place and that they were also precipitately passed as five days cant be called a reasonable time for passing laws and as these are so long they cant be drawn & copied in that time That the Governor had no power to pass such a law he being enjoined by his Instructions to call Assemblies agreeable to laws & usages of the Province and to pass Laws with a majority of the Council & Assembly & forbid to pass Laws of an unusual or extraordinary nature or to repeal Acts in general terms without a suspending clause That this Assembly had no power to pass this Law because the original right founded in the Palatine Court cannot be set aside by any power acting under that Constitution nor had this Assembly power to pass any Act because it is the rule of law that when a charter is given to a fixed number of persons a majority of them is necessary to constitute a legal Assembly That even if they had such a power this Act is illegal That Franchises once given cannot be resumed but upon forfeiture the Assembly therefore acting under the
The following Papers were then read in evidence, Viz:
A clause in the charter granted by King Charles the 2nd to the Lords Proprietors of Carolina relating to the passing of Laws.
Additional Instruction from the Lords Proprietors to Govr Smith dated 30th November 1690
Instruction given by the Lords Proprietors to John Archdale Esq. Govr of Carolina dated 31st Aug. 1694
Act for erecting the upper part of Bertie County into a County by the name of Northampton County passed in 1741.
An Act to appoint part of Albemarle County to be a Precinct by the name of Tyrrel Precinct passed by the Lords Proprietors
Order of Lords Proprietors in 1705 for dividing the County of Bath into three Precincts.
Proclamation by Govr Johnston dated 8 March 1742 for proroguing the Assembly for want of a sufficient number of the Council.
Another do dated 9th March 1742.
Another do dated 11th June 1746 for proroguing the Assembly for want of a majority being assembled.
Deposition of Francis Foster dated at Edenton 14th April 1749.
Do of John Wynns dated at Edenton 13th April 1749.
Do of Luke Sumner dated at Edenton 15th April 1749.
Do of Abraham Blackhall dated at Edenton 13th April 1749.
Do of William Herritage dated at Newburn 5th April 1749.
Do of Richard Loveit dated at Newburn 5 April 1749.
Do of James Craven dated at Edenton 12 April 1749.
List of the Members present at the Assembly held at Wilmington on the 21st November 1746.
Deposition of Joseph Blunt dated at Edenton 19 May 1749.
Do of Benjamin Hill of the same date
Do of John Benbury of 20 May 1749.
Part of the Commission given to Gabriel Johnston Esq. dated And the 15th 20th 22nd & 24th Articles of his Instructions
Mr. Hume Campbell in reply to what had been offered by Mr. Joddrell observed to their Lordships that the matter to be considered seemed reducible to three heads 1st the right of sending Members as claimed by the Petitioners or in other words the existence of the Constitution they contend for 2nd The necessity of a majority to constitute a quorum of the Assembly 3rd The expedience & propriety of the Act That as to the first the power given by the charter to the Lords Proprietors could not be delegated to other men nor is any Law valid under the charter unless it be under the Hands and seals of the Lords Proprietors. That the number of members to be chosen as settled in the instruction to Mr. Smith could not be intended for a fixed rule but was only a temporary Order proportioned to the then present state of the Colony. That the instruction to Mr. Archdale is not a legal delegation of the powers contained in the Charter and the Charter itself contains no power to pass Acts under the seal of the Province That the Palatine Court could have no authority to make Laws because the Lords Proprietors could not delegate that authority That notwithstanding the order of that Court for the election of five Members the Lords Proprietors might have passed a Law that those Counties should send only two Members to the next General Assembly That as to usage of sending five Members as mentioned upon the Writs if none of the Acts under which it began were legal the usage must be void 2ndly That as to the necessity of a majority of the Assembly to constitute a quorum the foundation of it should be found in the Charter but no number of Delegates is there mentioned. That altho' all records have been ransacked not the least colour has been made out for the Constitution or pretended right 3rdly That as to the objections to the Act the Instructions to the Governor have not indeed been punctually obeyed but as they were not intended to hinder him from doing a beneficial thing for his Master this should be no objection That as the pretended Constitution is without law the recital is not false and if the Constitution does not exist the Assembly had power to pass it. That if with regard to the Instructions it should be thought improper to confirm this Act he hoped their Lordships would give such directions as may put an end to this arrogated right this pretended Constitution.
Mr. Abercromby and Mr. McCulloh attending Mr. McCulloh moved the Board for a copy of Governor Johnston's Answer to his Complaint against him which was agreed to by the Board and ordered to be delivered
The Secretary having acquainted the Board that Mr. McCulloh had given notice of his being ready to be heard in support of his Complaints against Mr. Johnston Governor of North Carolina whenever their Lordships should appoint a Day for that purpose their Lordships agreed upon Wednesday sen'night the 12th inst. for taking this affair into consideration and ordered the Secretary to desire the attendance of Mr. McCulloh and also of Mr. Abercromby Agent for the Governor on that day.
Mr. McCulloh and Mr. Abercromby attending as appointed by the Minutes of the 4th inst. were called in and the following papers were read
Memorial of Mr. Henry McCulloh to the Lords Commissrs for Trade and Plantations complaining of several Hardships and injustices done to him by the Governor and other Officers of the Province of North Carolina
Letter from the Secretary to the Govr of North Carolina dated 14th July 1749 inclosing a copy of the above-mentioned Memorial and containing their Lordships Orders concerning the method to be observed in taking & interchanging Proofs and Depositions.
The Answer of Gabriel Johnston Esq. Governor of North Carolina to Mr. McCulloh's said Memorial of Complaint
Mr. McCulloh then desired leave to read a paper entitled Mr. McCulloh's reply to the Answer given by Governor Johnston to the several Articles of Complaint contained in Mr. McCulloh's Memorial which when read he presented to the Board.
The Parties were desired to withdraw and to attend again on Friday morng next the 14th inst.
Mr. McCulloh and Mr. Abercromby attending as desired by the Minutes of Wednesday last their Lordships proceeded to hear what Mr. McCulloh had to offer in support of his complaint against Gov. Johnston and the following papers being part of the bundle of Proofs & Depositions taken in North Carolina by Mr. McCulloh's Agents pursuant to the Board's Orders transmitted under the Hand of the Governor and seal of the Province and lodged in this Office by Mr. McCulloh were read:
The interrogatories and Depositions of John Wynn of Bertie County of Nathaniel Cooper Deputy Secretary of John Campbell of Bertie County Merchant of Alex. McCulloh Deputy Auditor of the Rev. Mr. James Moir and of Nathaniel Rice Secretary of North Carolina
Mr. McCulloh then produced three patents for land that had been signed blank by the Governor and filled up afterwards And the following papers were read, Viz: The Act to ascertain officers fees passed in North Carolina in 1715 or 1716. Declaration of Mr. Nathaniel Rice showing that the Minutes of Council relating to Mr. McCulloh's Memorial were not truly entered
Mr. McCulloh's Commission Interrogatories and Deposition of Dr. Houston being part of the abovementioned Bundle under the seal of the Province.
Mr. McCulloh being asked what Proof he could produce of the Governor having granted Injunctions in the manner set forth in his Memorial of Complaint answered that as his agents had not been able to obtain the Governor's summons for the appearance of any one evidence, he had no proof of that fact to produce but referred to that part of the Governor's answer relating to this matter which was accordingly read.
Ordered that Mr. McCulloh do produce such letters from his Agents in North Carolina as may prove they could not obtain the Governor's summons for evidences in the Memorialist's behalf
Mr. McCulloh further observed to their Lordships that the Minutes of Council of those times in which these affairs were transacted (which would have been of great service to him on this occasion) had not been transmitted to this office which he conceived to have been purposely omitted.
It being late the Parties were ordered to attend again next Tuesday morning at eleven o'clock when their Lordships will hear the proofs of that part of Mr. McCulloh's Memorial which relates to the obstructions he met with in the execution of his Commission and the abuses in the management of the Quit Rents and Grants of Land.
Ordered that Mr. Pownall do wait on the Right Hon. Horatio Walpole and desire the favour of his attendance at the Board on Tuesday next.
Mr. Pownall acquainted their Lordships that pursuant to their directions he had waited upon Mr. Walpole to desire his attendance at the Board this day upon the subject of Mr. McCulloh's Complaint against Mr. Johnston Governor of North Carolina relating to the obstructions he has met with in the execution of his office and that Mr. Walpole had desired
The Right Honble Horatio Walpole Esq. attending their Lordships took into consideration the Memorial of Mr. McCulloh complaining of Mr. Johnston and after some time spent therein agreed further to consider of this affair at another opportunity.
Mr. McCulloh and Mr. Abercromby attending upon the Complaints of Mr. McCulloh against Mr. Johnston Governor of North Carolina Mr. McCulloh in obedience to their Lordships Directions laid before the Board a letter from Benjamin Hill his Agent in North Carolina dated 23rd July 1750 in order to show that he could not obtain the Governor's summons for evidence in his behalf which letter having been read and authenticated by the declaration of a person who affirmed the same to be the handwriting of Benjamin Hill both parties requested their Lordships that the further consideration of this affair might be postponed for a further time which was acquiesced in by their Lordships and the further consideration thereof was accordingly put off till another opportunity.
Read a letter from Mr. Johnston, Govr of North Carolina dated 15th February 1750/1, in answer to one from Mr. Hill dated 19 July 1750 for an account of the Boundaries of that Province and transmitting
A Plan of the line between Virginia and North Carolina from Peters' Creek to Steep Rock Creek run in the year 1749.