To the Committee of the Privy Council for Plantation-Affairs.
We have had under our consideration your Lordships Order dated the 15 of June last referring to us a Copy of a letter from John Rutherford Esqre to the Lord President of his Majesty's Council relative to the suspension of him the said John Rutherford and James Murray Esqre from their seats in the Council of North Carolina and directing us to hear Mr. Rutherford in what he had to offer in support of his conduct and to report Our Opinion thereupon to your Lordships, We beg leave therefore to acquaint your Lordships,
That the arbitrary Removal of Councillors without just occasion and without giving them an Opportunity of answering to the Charges made against them where the Nature of the Case will admit of it ought not and we beg leave to say never has since we have sat at this Board been countenanced in any instance But we are of Opinion that Cases may exist in which it may be proper to make such Removal without communicating the Reasons to the Councillor so removed and that without the least colour of Injury or Injustice to such Councillor, whose Appointment is of the sole will and favour of the Crown and during pleasure only We are justified in this Opinion by the Tenor of his Majesty's Instructions to all His Governors in America, by which they are impowered to suspend any Councillor without the consent of the Council and without communicating to them their reasons for so doing, when they shall judge those Reasons improper to be communicated. The instruction by giving this Power presupposes an occasional necessity of exerting it and constitutes the Legality of such a suspension when the case occurs.
The Cases of this kind which may exist are too many and too obvious to be enumerated to your Lordships and therefore we will only mention one which has too frequently occurred namely where a Member of his Majesty's Council has for self interested or worse purposes made use of that influence which he derives from his Station to form Cabals and factious parties in the Council or Assembly to oppose and obstruct the measures of his Majesty's Governor. This is a Charge, which however just and well founded it may be would be very improper to be avowed and exhibited as a publick accusation and is in its nature hardly capable of legal Proof on either side But when ever this Case has happened and His Majesty has been well satisfied with the Governor's conduct in his administration such a suspension has always been confirmed here without any reason given to the person suspended.
There are a variety of instances of this kind upon our Books but we will only mention to your Lordships the very recent one in the case of Mr. Wragg a Councillor in South Carolina, suspended by Mr. Lyttelton for the reasons above mentioned and we beg leave to say that unless this was done it would be impossible to support and maintain his Majesty's just Rights and prerogatives in America, already too much weakened by the undue influence of factious parties in the Assemblies which eagerly embrace every opportunity of embarrassing the measures of a Governor, who steadily adheres to his instructions and to the true principles of the constitution. The Case now under consideration is exactly similar to that which we have mentioned as well with respect to the Reasons for suspending Mr. Rutherford as to the character and conduct of the Governor of North Carolina which have ever been as far as comes within our knowledge such as deserve countenance and Protection.
With regard to the other part of Mr. Rutherford's Case his suspension from the Office of Receiver of his Majesty's Quit-rents, we must observe to your Lordship's that it is under the cognizance of the Commissioners of his Majesty's Treasury, had the matter lain within our Department we should have been ready to hear whatever Mr. Rutherford has thought proper to offer in his defence But as to the suspension of him and Mr. Murray from their Seats in Council, We are humbly of Opinion that the Case does not admit of the indulgence which he desires And we must further beg leave to say that his taking upon to arraign in so extraordinary manner the Justice of this Board is in our opinion such a proceeding as deserves censure.