Quære's on the following abstracts of his Majesty's Instructions and Clauses in two several Bills for Establishing Courts in the Province of North Carolina Proposed by his Excellency the Governor for the consideration of Thomas Child Esqre his Majesty's Attorney General.
Abstract of his Majesty's Instructions.
You shall not appoint any person to be a Judge or Justice of the Peace without the advice and consent of at least three of our Council signified in Council nor shall you execute yourself or by Deputy any of the said Offices and it is our further Will and Pleasure that in all Commissions to be granted to you by any person or persons to be Judges Justices of the Peace or other necessary Officers be granted during pleasure only.
We do hereby will and require you not to pass or give your assent hereafter to any Bill or Bills in the Assembly of our said Province of unusual and extraordinary Nature and importance wherein our Prerogative or the Property of our Subjects may be prejudiced until you have first transmitted unto our Commissioners of Trade and Plantations in order to be laid before us the Draughts of such Bill or Bills and shall have received our Royal pleasure thereupon unless you take care in the passing any Bill or Bills that there be a Clause inserted suspending and deferring the Execution thereof until our Pleasure be known concerning the same.
It is our further Will and pleasure that you do not for the future upon any pretence whatsoever give your assent to any Law or Laws to be passed in our said Province inconsistant with our said Instructions to you or prejudicial to that Right or Authority which you derive from us in Vertue of our Commission and Instructions.
A Bill having passed both Houses of Assembly for establishing Superior Courts of Justice &c: in which there is a Clause directing that the Justices to be appointed by the said Act should hold their Commissions “Quam diu se bene Gesserint” And also another Clause
Quære as the above Clauses are repugnant to my Instructions Ought I consistant with my Duty to pass this Bill and do you give it as your opinion and advice that I ought to lessen his Majesty's Prerogative by passing this Bill.
With respect to the first Clause in this state of a case upon the Bill which has passed both Houses of Assembly for establishing Superior Courts of Judicature namely “that the Justices pursuantly to be appointed should hold their Commissions—quam diu se bene Gesserint;” I am of opinion that the present desperate situation of affairs in this Province requires your Excellencys assent to be given thereto notwithstanding the Terms of that Clause which seem to be exceptionable On viewing the Surface only of your Instructions; And the rather as there are not wanting precedents of this nature in his Majesty's other Provinces, occasioned no doubt by the Spirit of particular times which had discerned the same reasons for having the Justices Commissions in America to depend upon good behaviour as had occasioned those of the Judges to be so framed at home. Moreover I am confident that no Gentleman who comes within the Qualifications provided by that Bill would quit an established practice at the Bar for an Office to be held on so precarious a Tenure as the pleasure of a Governor: And so a good Court Act could never be properly executed.
And as to the 2nd Clause which confines Governors to the appointment of fit persons to be such Justices, I am clearly of Opinion that this no more than the other Clause forms an indispensable objection to the giving your Excellency's assent as aforesaid On the Contrary late experience of many successive appointments of persons to those Offices who were devoid of every legal Qualification at the least necessitates the insertion of some such cautionary clause; in order that the Rights of the Crown and the dignity of judicial offices may be maintained, and the Rights of the people better secured for the future. To which Clause likewise were it an argument of any decisive Weight a parallel Instance may be produced.
But with relation to the extraordinary Query subjoined to the above mentioned state, that is to say “whether I would advise your Excellency to lessen his Majesty's Prerogative” &c: My answer is that happily for the Constitution of Great Britain It is not in the Power of Governors by any Act whatsoever to diminish the just Rights and Powers of the Crown which are inherent and inseperable
A Bill having passed both Houses for establishing Inferior Courts of Pleas and Quarter Sessions in which they have given the said Courts a Jurisdiction of Fifty Pounds. Quære As the late Law was repealed by his Majesty in Council principally on account that the Jurisdiction was too extensive when at forty pounds. Ought I to pass the present Bill as it now stands and do you give it as your opinion and advice that I ought to pass it—
As to this Query relating to the Inferior Court Bill it is necessary for me previously to observe that I have already given your Excellency my Opinion on that head, founded upon the precedent of an Act passed in the neighbouring Colony of Virginia which has actually as I have since heard been confirmed by his Majesty in Council the subsistance of this Precedent expressly answers one of the Chief Objections made to the late County Court Act and the Competency of many Gentlemen now resident in the several Counties to constitute those Inferior Benches (were such only to be sought for and commissioned) would remove that other which perhaps was thought the most material objection of all.
Upon the whole, considering the unhappy circumstances of the Province which has already been for near 8 months deprived of any Courts of Judicature and must without your Excellency's assent to this Bill continue in its present state of Anarchy interior Tumult and dangerous Insurrection and considering also that such a deviation from the letters of your Instructions can only tend to bring the Constitution of this Province to a nearer degree of Affinity with its mother Country and to dispence to his Majesty's Loyal Subjects here those Rights and Privileges which they claim by Birth-right as the unalienable Inheritance of their Ancestors; It is my advice and recommendation to your Excellency that you would give your immediate assent to these two Bills Remembering that the Act of restoring Life and Energy to Government and to the subject Protection of his Liberty and Property is a primary Civil Duty; which at all times and in all circumstances is obligatory and indispensable.