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Report by James Abercromby concerning Matthew Lamb's report concerning an act of the North Carolina General Assembly on quit rents
Abercromby, James, 1707-1775
1755
Volume 05, Pages 449-456

Reasons humbly offered to the Consideration of the Lords Commissioners for Trade and Plantations, in support of the Quit Rent Bill of North Carolina, in answer to the Objections taken to the said Bill by Sir Mathew Lambs Report to their Lordships, on the said Bill.

The first Objection taken by Sir Mathew Lamb is, that the penalty of £10 Proclamation money is not by any means sufficient to inforce the Act it being apprehended that persons may rather pay such penalty, than discover their Grants, as the proofs of their Grants, must lie upon the prosecutor, for which reason he recommends the provission, made by the Law in 1748, whereby the lands are to be forfeited, preferable to that of this Bill.

To this Objection it may be answered.

That a pecuniary Penalty, is so far preferable to that of the Lands

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in as much that it is more easily recovered, and carried into Execution.

2ndly It has this furthur advantage, that it inforces the intention of the Act, which is a registration of Title Deeds, in order to ascertain the Rents, without reducing the Rents, which that, of the Forfeiture of the Lands does, for, by reducing and vacating the Grants, the issuing Rents cease, till such time as the Land is taken up de novo, and in some Cases, the Rents will thereby become totally extinguished, for instance where Lands have been long made use of, by planting, or by pitch, Tar, or Turpentine being made thereon, or where the Lands from the beginning were little worth, in all which Cases, the Lands being resumed by the King upon the Forfeiture, the Rents from thence become forever lost, for it cannot be supposed that Lands so circumstanced, will be again taken up. In such Cases then, the Forfeiture of the Lands, instead of a penalty to the Defaulter, would prove a very great favour done to him, by ridding him of his Lands, after the substance thereof is gone, and it is to be presumed that the Legislature foresaw this by Enacting a Pecuniary Penalty in place of that of Lands. And with regard to the Proof of the offence, it is alike in both penaltys, and from the nature of the Case, must lie on the prosecution, the objection then will rest solely, as to the Quantuum of the pecuniary Penalty, and in this Respect, the Bill may be amended, according to your Lordships Judgment (if the present penalty is deemed too small) not only as to the Enlargement of the sum, but likewise as to the Repetition of such penalty for every subsequent offence, in not registering their Title Deeds.

The Second Objection is. That the Grantee has it in his power, to set off the surplus Land, in any part of the Lands he shall direct, which the legislature of the Province have no right to direct, and therefore he Concludes that, the power over such surplus Lands, should remain as it did before.

To this it is replyed, that had this Bill been absolute and without a suspending Clause, the objection of its having encroached on the Kings and the Earl Granville's right & property, had held good, as to the surplus Lands, but as it now stands, it is no more than a proposition, made to the King and Earl Granville, subject to his Majesty's approbation or Disallowance thereof. And with regard to the Proposition itself, the Bill in this respect is much better calculated, to enforce the Payment of Quit rents for overplus Lands, than any former Law, & had Sir Mathew Lamb attended, how the Case of overplus Lands stood by the Laws now in force more particularly that of 1715, Intituled an Act for preventing Disputes concerning Lands already surveyed, it is conceived he must

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have preferred the provision made by this Bill, to that of the Law 1715, in so far as that by this Bill, all arrears of Quit rents are to be paid for such surplus Land, as if the same had been so specified in the Original Grants, by the Act of 1715, no provision at all is made, for payment of arrears of Quit rents. By this Bill twelve months are limited, for the possessor of such overplus Land, to ascertain his right to such Land by that of 1715, §5. he is left at his discretion, in point of time by this Bill, the informer of such overplus Land, who desires to have the same, may at the Expiration of the Twelve months, resurvey the same, and take out a Patent for the Land in his own name, in any part of the Land, he thinks proper, but by that of 1715. §4. and 5. no manner of encouragement is given, for the Discovery of overplus Land on the contrary it is at the option and the Discretion of the persons holding overplus Lands, when and in what part of his Land, he shall think fit to take up such overplus, and no penalty if he never shall take it up, from the state of the case then as it stood before the passing of this Bill, it is conceived that the second objection on the part of Sir Mathew Lamb is ill grounded, so far as that the present Bill in this respect is much more favourable to the King and the Earl Granville than any former Law.

The 3rd Objection Vizt That the Bill makes a Variation from the Express Terms of the Grant, both as to the manner and to the time of payment of Quit rents. To the manner of payment by Commoditys in place of money, no better answer can be offered than this, vizt the necessity of the Case arising from the Circumstances of the Province, for want of Proclamation money, Gold or silver and from the Depreciation of their Paper Currency, substituted in the room of gold and silver and till such times as your Lordships shall become more particularly informed, I shall lay before your Lordships how the Case of money comes represented to me from that Province Vizt That having little or no money more especially in the Southward parts of the Province their Paper Currency as it now stands, will neither purchase indigo, cash, (if such can occasionally be had) nor Bills of exchange, Indigo is the best money to be had, though but little of it, to the Northward parts of the Province, Forty Currency is given, for what cost no more originally than sixteen, so that the Paper Currency is depreciated from Proclamation money, ninety per. cent. below Proclamation money, at which it was originally issued and Established in Payments, admiting this to be the true state of the case, and the circumstances of the Province, such, at the time of passing the Bill, the Legislature of the Province, not without good reason, have proposed, the only expedient left, for payment of Quit rent, vizt that, of such Commodities as are most valuable, and the least liable

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to Fluctuation, and if the necessity of the Case prevails, so as to admit of a variation from the Grants in this Respect, the other objection with regard to the time of payment, will not avail much, since the time prescribed by this Bill is adapted to the nature of the Payments of such Commodity, for the public Taxes of Government, and also adapted to the Sheriffs Duty, in recovering such Dutys for the use of the Government.

The 4th Objection is. That as by the Laws of the Province, Slaves are Distrainable, it is therefore unnecessary, and improper to make them so, by this Bill, since thereby they are not to be distrained, if any other sufficient distress can be found, under the penalty of an Action against the Sheriff. To this it is answered, that as the Case now stands, there is no express provision, made by any Law, whereby Slaves may be distrained by the additional Quit rent Act of 1749. §6. according to the rule of Law, excepted probat Regulam, slaves might have been distrained but that Law being repealed there does not exist, any Law, declaratory of this matter, by what other Law of the Province then Slaves are distrainable for Quit rents becomes doubtful, for admitting that negros being Slaves are by the Law of the Province deemed Goods and Chattels and personal Estates, & as such, are lyable to Execution upon an Action of Debt, it does not from thence follow conclusively, that as such, they are lyable to distress for rents, upon the principle of the Common or statute Law of this Kingdom, or of the Laws or Customs of the Province, which do in so far agree together in principles as to make a Difference and Distinction, between the payment of Debt, and that of rents, not only as to the manner of recovering Debts but likewise in what is to be recovered, in so far as that, the remedy in the Case of Debt, is by Action in that of rent by Distress, and accordingly many Things are subject to Execution for Debt, that are Exempted expressly by Common and Statute Law, and by the Laws & Customs of the Plantations on the principles of the Law of this Kingdom, from being Distrained Whether or no Slaves are or are not of such a nature, as to admit of a direct Property, therein upon the Principles of the Laws of this Kingdom they are in fact so by the Laws of our Plantations, and are there employed as Tools & Utensils in the Gain and Manure of Lands it is therefore no strained inference, that as such they come within the rules of the Common and Statute Law of this Kingdom so as to be Exempted from being Distrained for rent, even in the Case of the Kings Rent which all Tools, and Utensils, & Implements of Husbandry are expressly so, by the statute of 51. Hen. 3rd de Districtione Seacarry, which confirms the rules of the Common Law in such Case, but how far the principles of Plantation Law, and of this Bill in particular are consonant with, and

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applicable to the Laws of this Kingdom, in this Case will admit of a great deal of Argumentation, the point then admitting of controversy, this Bill becomes necessary, to remove all doubt by expressly declaring that Slaves are lyable to be distrained, nor is the Bill as alledged improper, from the proviso added thereto, that Slaves are not to be distrained, if any other Distress can be found because this Proviso does not defeat the Intention of the Act, since Slaves distrained, according to this Act may be kept in distress, until other sufficient distress is produced upon the principles of the Act of 51. Hen. 3rd. It therefore lies upon the Party distrained to produce other sufficient distress within the time prescribed by this Bill, which if he does not the Slaves distrained may be sold with impunity, upon the whole it is apprehended that in this Respect the Bill is neither improper nor unnecessary as alledged by Sir Mathew Lambs report, to the objection that 20 Years possession is held good against the King, It is answered that however true it is, that this Bill in so far seems repugnant to the rule of the Kings Prorogative, that no prescription restrains the King for nullum Tempus Ocurrit Regi, in point of his Right, Two Distinctions however as to the Kings right and as to the possession of the Party, are to be taken before this Rule can be applyed to this Case, First, Quoad the possession, claimed under the Lords Proprietors grants the Kings right is but a secondary or Derivative Right, from the late Lords Proprietors, the possessors under Grants from the late Proprietors, retain the same legal right of Possession as they had or could have had, as if the Lords Proprietors had not sold their Interest to the King. In such Case then, by the Act of 1715. cap. 27. fo. 7. Intituled an Act for Limitation of Actions, and for avoiding suits at Law Seven Years Possession was a Bar against all manner of Persons whatever, any former Title or Claim to the contrary notwithstanding; by another Act passed under the Lords Proprietors Government Anno 1723. Cap. 4. fo. 54 for setting the Titles, and Bounds of Lands, persons whose lands have been processioned that is, whose Bounds had been twice run round, and the Lines thereof renewed, which was to be done every three Years, such persons were held to be the sole & rightful owners, and the party so in possession may plead the general issue, and give the Law in evidence, with regard then to persons holding under the late Proprietors as the Proprietors were barred by seven years quiet possession, so is the King, in so far as that his right depends on the right Transferred to him, and derived from the late proprietors, with regard to such Possessions. As to the second Distinction, with regard to possessions, since the property became vested in the Crown in Answer to the Objection of 20 Years quiet possession being a barr to the Crown,
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It may be argued that it never was intended by the Crown to molest or disturb bona fide possessors, in either of these Provinces, for from the Tenor and Scope of the Kings Instructions to Governors of the Carolinas, in regard to possessions, it would appear clear that the Intention of Government, was the due payment of Quit rents, and as the Quit rents could not possibly be properly ascertained, without a rent roll, to bring this about, the due Registration of Deeds, became the Capital object of the Crown, more than the nicety of Titles, either as to form or time of possession, nor will the nature of Colony possession, admit of the full extension of the rules of possession to the same degree of longevity, as in the mother Country, neither will it agree with the policy of State, to restrain the Settlement of our Plantations, to the nice Rules and forms, necessary in the mother Country by the strict rules of Law, and accordingly the principles of limitation by this Bill, are by no means new nor unprecedented in other Colonys, besides it is to be observed, and attended to that the provision made by this Bill is in favour of bona fide possessors, who come within the rules of Equity and relief, in so far as that they are ab initio, bona fide possessors but their Title Deeds by accident, incident to New Settlements lost, the proof whereof is left to the Governor & Council, who constitute the Court of Chancery, and as such are proper Judges, in such Cases, in so far then the principles of the Bill for 20 years possession stands forfeited by the rules of Common Justice and Equity.

With regard to 7 years quiet possession in Cases where the Crown is not Concerned, it is no more than a repetition of the Acts of 1715, and agrees therewith, and with the like Laws, in other Colonys, and so does the Clause for making recorded Copys of Deeds, or Copys duely Testified, where Originals are lost, good evidence, agree with the Laws of this Kingdom, in the like Cases, & no part of the King's Dominions, does require such Provision, more than North Carolina from the irregularity of Public Offices heretofore.

The objections to the Bill being thus answered the particular advantages thereof, come now to be pointed out to your Lordships.

First then, this Bill provides for the Registration of all Title Deeds whatsoever, as well original Deeds, as all Mesne Conveyances of whatever Nature, whether derived from the late Lords Proprietors, or from the King. Whereas former Quit rent Acts went no farther than Deeds, under the Lords Proprietors, without the aid of this or of such like Bill from the notorious neglect in the Public Offices of Government the Kings Grants, have not been recorded, so as to bring them into the Rent Roll, without the interposition then of the legislature the Kings rents cannot

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be duely ascertained nor former, nor future neglects, amended or prevented.

2ndly This Bill provides that all Persons who are thereby confirmed in their Lands, by Virtue of 20 years quiet possession shall pay at the rate of four shillings proclamation money being the Kings Quit rents. Whereas by Act of 1748 they were only to pay, the Lords proprietors Quit Rents at most two shillings & in some Cases none at all.

3rdly This Bill with regard to the Provision for taking up the overplus Land & paying Quit rent for the same, as has already been observed, in the reply to Sir Mathew Lamb's report, in this Respect, is by far more advantageous to the Crown than any former Law relative to Lands or otherwise.

4thly The Commodity of Indigo, rated at a much lower value by this Bill than by former Quit rent Acts, vizt from 4 shillings, it is now rated at 3 shillings proclamation money, far under the real merchantile value thereof.

5thly This Bill has not only made better provision for Forming a Rent roll, but has moreover provided for advancing the Quit Rents by preventing a practise very detrimental to the Kings and Earl Granville's Revenue, that of peoples selling their Land, and other Effects, and so removing from the Province, without payment of their arrears of Quit rents due upon the Lands sold, in such cases this Bill provides that the person who shall purchase such Lands, that are subject to arrears of rents, shall become lyable to the payment of all arrears of Quit rent due thereon.

6thly It makes Negro Slaves distrainable, as has been before observed altho' such slaves, are under mortgage for other and prior Debts, & in so far, this Bill is extremely advantageous to the Earl Granville, giving to him the like benefit, as the King by his prerogative has, in respect of priority of payment, & furthur that he may distrain for his Rent in or out of the premises, charged with such arrears of Rent.

7thly By this Bill is provided that Sheriffs who collect or recover Quit rents, shall pay the same over to the Receiver, within a month, no such provision by any former Law. Upon the whole as this Bill is in many Respects more advantageous to the King, and to Earl Granville, than any former Law heretofore passed relative to the Quit Rents. As the inconveniency and mischiefs that have arisen from the want of such a Law, are daily becoming greater, & greater, and in so far as that thereon depend not only the advancement of the Kings Revenue, but also in great measure the peace & tranquility of the Province, long agitated and distracted by discord and dissention, in their Publick Measures, from these

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reasons, and weighty consideration, it is humbly hoped, that your Lordships will not reject the Bill, in Terminis, but in so far as that, the same may appear in your Lordships Judgment, defective in some particular points, as to the good purposes thereby intended, by the Legislature, that if it shall so appear to your Lordships that your Lordps will in such case be pleased to remit the same for Amendment.

All which is most humbly submitted to your Lordships consideration by,
JA. ABERCROMBY.