Then were read several Warrants and Patents for Land which were granted.
Upon Petition of Richard Fenner and reading the affidavit of Sol. Smith, Ordered that said Sol. Smiths Patent for 640 Acres of Land in Craven County dated 18th day of February 1737 be Recorded in the Secretary's Office.
Upon Petition of Samuel Swann Esqr in behalf of William Cannon,
It is Ordered, That the Words up the Creek in a Patent granted by Governor Johnston the 11th of March 1740 be expunged and also that the Record be altered accordingly
Upon Petition of Samuel Swann Esqr It is Ordered, That a Warrant of Resurvey issue to survey the Land Granted by Patent the 2d day of November 1738 to George Moy containing 200 Acres in the County of Beaufort lying upon Grindal Swamp and to make return thereof to the Governor and Council.
Upon Petition of Samuel Swann Esquire It is Ordered, that the Patent granted to William Cannon for 400 Acres in Beaufort County the 6th of April 1745 the first [line] thereof be altered from So 60 Et to No 60 Et agreeable to the Plott, annexed to the Patent
Upon Petition of Samuel Swann Esqr It is Ordered, That a Warrant of Resurvey upon the Lands granted by Patent to George Moy the 22d November 1738 containing four hundred Acres in Beaufort County on the South side of Grindal Creek do issue and that return thereof may be made to the Governor and Council.
Upon a Petition of the Inhabitants of the Town of Halifax Praying that the said Town be incorporated was laid before this Board, which was accordingly granted.
Then was Read and Granted several Warrants for Land.
Upon a Petition of the Inhabitants of Edenton Praying that the said Town be incorporated in the same manner as the Town of Halifax, which was Granted.
Upon a Petition of the Inhabitants of the Town of Newbern Praying that the said Town be Incorporated in the like manner as the Towns of Halifax and Edenton Except that the number of Common
Ordered that a New Commission of the Peace and Dedimus issue to the County of Hertford.
It is ordered that the Queres 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 Charles Berry Esqr His Majesty's Chief Justice and Thomas Child Esqr His Majestys Attorney General.
Abstracts 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 its our Will and Pleasure that all Commissions to be Granted by you to 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 Draught 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 defering 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 virtue 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 Geserint” and also another Clause confining his Majesty in the Appointment of the Associate Justices
Quere, 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
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.
Quere, 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.
Ordered that a new Commission of the Peace and Dedimus for the County of New Hanover issue and that George Meares, John Davis Junr, John Paine, Frederick Jones and Job Howes be added in the Commission, and that the names of Armond De Rossett and James Morris who are both deceased be struck out.
Ordered, That a new Commission of the Peace and Dedimus issue for the County of Northampton and that John Dawson, Henry Dawson, Harwood Jones, Howel Edmons and Joseph Sikes be added in the Commission.
Upon Petition of John Bonners
It is Ordered, That a Warrant of Resurvey issue upon six hundred and forty Acres of Land belonging to Leonard Loftins on the East side of Hancocks Creek agreeable to the Prayer of the above petition
The Honble Charles Berry Esquire laid before this Board his answer to the Queres proposed by the Governor of the 19th Inst and is as follows Vizt
I have considered the several above clauses extracted from his Majesty's Instructions to your Excellencys as likewise the Bill for Establishing Superior Courts of Justice within this Province which having provided Competent Salaries for the Associate Justices so as to make it worth while for Persons of skill and Learning in the Law to accept those offices whereby notwithstanding the expensiveness of the circuit the Suits and Causes depending in the superior Courts may now without delay to the suitors receive proper determinations I conceive the Chief reason for Repealing the Supreme Court Act passed in 1754 is thereby obviated and am of opinion that there cannot be a Bill better framed or more adapted to the peculiar circumstances of this Province than the present Bill
With regard to your Excellency's Quere wherein you desire my opinion whether you should give your Assent to the said Bill on Account of two Clauses in the Bill objected to by your Excellency and here stated, my opinion with Respect to that is as follows—
Considering the present circumstances and situation of affairs in this Province and [the] indispensible necessity there is of an immediate Establishment of Proper and convenient Courts of Justice upon which so greatly depends at this time as well the Interior Peace and wellfare as the support of the Trade and Credit of this province which has greatly suffered from a cessation of the administration of Justice for eight months past owing to there not having been during that time convenient and necessary Courts established; I would advise your Excellency to give your assent to this said Bill—notwithstanding the said two Clauses and the rather as I do not think His Majesty's Royal Prerogative can be in any danger of being lessened or diminished by your Excellency's giving your Assent to the Bill which is not conclusive on the Crown and can only exist during His Majesty's Royal Will and pleasure.CHARLES BERRY Chief Justice
22d May 1760.
With regard to the other Query I beg leave to observe to your Excellency that there were other Reasons for the Repeal of the late County Court Act more cogent in my opinion than that stated in the above Query as will appear in the Reports from the Lords of Trade to His Majesty
There is another circumstance which I would also beg leave to observe to your Excellency, and that is, that at the time I had under my consideration in England, the late County Court Act I wasCHARLES BERRY, C. J.
22d May 1760.
Thomas Child Esqr Attorney General this Day laid before this Board his Answer to the Queres proposed by the Governor of the 19th Instant which is as follows
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 Court of Judicature namely that the Justices pursuantly to be appointed should hold their Commissions “Quam diu se bene Gesserint,” I am Opinion that the present desperate situation of Affairs in this Province requires your Excellency's 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 too of this Nature in His Majesty's other provinces occasioned no doubt by the Spirit of particular times, which had devised the same measures 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 Bill could never be properly executed
And as the second 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 power of the Crown, which are inherent and inseparable and upon the preservation of which depends the very Constitution itself. They may indeed disgrace the Delagation of a particular trust to them by an abuse or unworthy Execution of it, but no Act of theirs, no not such as is even done within the express Terms of their Commissions can ultimately bind the Crown in Case his Majesty should afterwards think fit to give his Royal disallowance thereofT. C—A. G.
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 substance 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 Branches (were such only to be sought for and Commissioned) would remove that other, which was thought perhaps the most material objection of all.
Upon the whole considering the unhappy circumstances of the Province which has already been for near Eight months deprived of any Courts of Judicature, and must without your Excellencys assent to these Bills continue in its present State of Anarchy, interior
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 indispensableTHO. CHILD, A. G.
New Bern 20th May 1760.
Whereas it appears that the two Tracts of Land belonging to George Moy in Beaufort County are in this District belonging to Earl Granville on which Tracts Warrants of Resurvey was Granted the 13th Inst
It is therefore Ordered that the Warrants of Resurvey do not issue and that the said Orders be void.
Mr. Fenner having proved the Service of the Order of Council of the 1st of September 1759 on Valentine Wade Esqr and he having not appeared according to that Order or since to vindicate his character
It is Ordered that the said Valentine Wade be struck out of the Commission of the Peace.
It is Ordered that Richard Fenner, William Coole, Ross Bell and Thomas Shaw be added to the Commission of the Peace for the County of Carteret.
It is Ordered that John Frohock and John Oliphant be added to the Commission of the Peace for Rowan County.
Ordered that Tyre Harris, David Hart, Joseph Barbee and Nathaniel Kimbrough be added to the Commission of the Peace for the County of Orange.
Ordered that Benjamin Johnson, Joseph Wilson, Thomas Routledge and Daniel Herring be added to the Commission of the Peace for the County of Duplin.
Ordered that John Simpson, Edward Shufford and John Alderson be added to the Commission of the Peace for Beaufort County.
Ordered That Montford Elbech, John Bradford and James Smith be added to the Commission of the Peace for the County of Halifax.
Ordered That William Haywood and Micajah Thomas be added to the Commission of the Peace for Edgecomb County.
Ordered That Samuel Swift, Benjamin Allison, Robert Eyre and Robert Hardy be added in the Commission of the Peace for the County of Chowan.
Ordered that New Commissions of the Peace issue for the several Counties in the Province not before mentioned.
Then was Read and Granted Several Warrants and Patents for Land as per Warrant and Patent Books.