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Memorandum from the Board of Trade of Great Britain to George III, King of Great Britain concerning acts of the North Carolina General Assembly concerning courts
Great Britain. Board of Trade
December 03, 1761
Volume 06, Pages 587-591

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[From MSS. Records in Office of Secretary of State.]

Whitehall 3rd Decr 1761

To the King's most Excellent Majesty

May it please your Majesty

We have had under our consideratson three Acts passed in your Majesty's Province of North Carolina in May 1760, entituled,

An Act for establishing Superior Courts of Pleas and Grand Sessions, and regulating the Proceedings therein.

An Act to establish Inferior Courts of Pleas and Quarter Sessions in the several Counties in this Province.

An Act for the better care of Orphans and Security and Management of their Estates.

By these Acts the Courts of Judicature constituted, and the Regulation made for the Administration of Justice in the Province by certain Laws enacted there in the Years 1754 & 1755, (which laws were repealed by his late Majesty) are re-established with some alterations and additions in respect to the Qualifications of the Judges of the Superior Court, the Duration of their commissions and the Jurisdiction of the Inferior or County Courts.

The first of these Laws divides the Province into five Districts, and appoints Courts to be held in each of them at stated times by the Chief Justice and three Associate Judges to whom full Jurisdiction is given in all civil actions real personal and mixed where the value of the action exceeds £10. and also in all Cases of a criminal nature respecting Treason, Felony, Breaches of the Peace and other Crimes.

The Second Act establishes Inferior Courts of Pleas or Quarter Sessions in each County composed of the Justices of the County, to whom Jurisdiction is given in all Causes at Common Law where the cause of Action is above 40 shillings and does not exceed £50. and in all cases of Petty Larceny, assaults Batteries, Trespasses and Breaches of the Peace and of filial Portions, Legacies and Distribution of Intestate's Estate for any sums whatever.

The General System of Judicature established by these Laws is not only regular and uniform in itself, but is also consonant to the principles and Constitution of the Mother Country, the Laws and Usage of other Colonies, and properly adapted to the situation and circumstances of that Province for by the Establishment of the Superior Court which is in the nature of a Circuit Court, the Inhabitants

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who live in scattered, wide extended Settlements will have Justice brought to their own Doors and by the Establishment of the Inferior or County Courts will be freed from the Inconvenience of going through a tedious uncertain and expensive Process of Law upon every trivial Dispute.

As to the Rules of Proceeding in the several Courts established by these Acts the Propriety of them depends upon Questions of Law of which we are not competent Judges, but as Sr Mathew Lamb one of your Majesty's Counsel at Law appointed for the Service of this Board, to whom the Acts have been referr'd, has made no Objection thereto, We presume they are consonant and agreeable to the Rules of Proceeding in like Cases in the Courts here.

In this general View and Consideration of these Laws therefore they do not appear to Us liable to objection and when We consider of how great Importance they are to the Welfare and Interests of the Province in general, to the Liberties and Properties of its Inhabitants and other your Majesty's Subjects trading to it We cannot but lament that they should in some particular Provisions be so exceptionable, that We are compelled in Duty to your Majesty to lay them before you for your Royal Disapprobation.

The Points in which these Laws appear to Us exceptionable are,

First. In what regards the Qualification of the associate Judges of the Supreme Court and the Duration of their Commissions.

2ly The Jurisdiction and Power given to the Inferior or County Courts in particular Cases.

For it is enacted by the first of these Laws that no Person shall be appointed a Justice or Judge of the Supreme Court who shall not have been regularly called to the Degree of an outer Barrister in some one of the Inns of Court in England, and is not of five Years standing there or shall not have practiced the Law in the principal Courts of Judicature of that or some adjacent Province, and it is further enacted that they shall hold their Offices Quam diu se bene gesserint and by the second and third of these Laws it is declared that the Justices who compose the County Courts shall not only have Jurisdiction in all civil Actions to the extent of £50, but shall also have concurrent Jurisdiction with the Supreme Court in all cases of filial Portions Legacies Distribution of Intestates Estates Guardianship and care of Orphans and their Estates without any Limitation at all.

The Consequence and Effect of that Clause in the first Act, which ascertains the Qualification of the Judges, is so obvious and apparent,

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that it is almost unnecessary for Us to observe upon it, further than that it will not only necessarily operate to preclude your Majesty in the appointment of any Person from hence to be an Associate Judge in that Province, but is also We humbly apprehend an unconstitutional Restraint upon the Power of appointing Judges which Your Majesty has thought fit to Delegate to Your Governor under the Great Seal and it is our Duty to observe that Mr. Dobbs does Assert in a Letter to the Members of this Board constituted under His late Majestys Commission that this Clause was framed with a View to Compell him to appoint three particular Persons to whom the Qualification was peculiarly adapted.

As to the Clause by which the Associate Judges are to hold their Offices Quam diu se bene gesserint, We have had so lately occasion to lay our humble Sentiments before your Majesty upon that point that We shall only add that the Irregularity of such a Constitution is the more striking in this particular case, as the Chief Justice appointed by your Majesty, and who is to preside in the Supreme Court holds his Office by your Majesty's appointment during Pleasure only.

With respect to those parts of the Second and third of these Acts, which ascertain the Jurisdiction of the Inferior or County Courts We have already set forth the Nature and extent of this Jurisdiction, and We humbly apprehend that the bare state of the Fact sufficiently marks out the Impropriety of this Regulation, For by these Laws Actions to the Amount of £50 value is greatly beyond what is allowed in most if not all other Colonys are made cognizable in the Inferior Courts which are causes We humbly apprehend of too great Consequence and Importance to be adjudged and determined in these Courts, considering what must be the Qualification and Abilities of those who compose them; But there is a still greater Absurdity in restraining the Jurisdiction of these Courts in common Actions at Law to a limitted value and giving them an unlimitted Jurisdiction in other Causes of a more important and delicate Concern which is upon the face of it altogether inconsistent with reason and Justice, and we must further add that their having a concurrent Jurisdiction in these Matters with the Superior Court must in Our opinion necessarily introduce such Confusion, as cannot fail of operating to the Obstruction of Justice and the Prejudice of private Property.

For these reasons we humbly beg leave to lay these Acts before Your Majesty for Your Royal Disapprobation and Disallowance; trusting that when the Repeal Shall have been Promulged, the

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Legislature of the Province of North Carolina will in dutifull Obedience to your Majesty and from a just regard to your Majesty's Rights and the Interest and Welfare of their Constituents, make speedy Provision for the Re-establishment of these Courts of Justice by Laws, which shall not be liable to the particular Objections above stated.

Having thus Humbly laid before Your Majesty Our Sentiments upon the Laws themselves, it is our indispensible Duty in Obedience to the Direction of Our Commission to State to Your Majesty what appears to Us in reference to the particular Conduct of Your Majestys Governor in the passing of these Laws.

By Your Majesty's Instructions to all Your Governors of the American Colonies they are directed not to assent to any Bills of an extraordinary Nature affecting the Properties of Your Majesty's Subjects or the Trade and Commerce of the said Colonies without having first transmitted Copies of such Bills to Your Majesty, unless Clauses be inserted in them Suspending their Execution untill Your Majesty's Pleasure be Known, The Acts now under Consideration do in Our humble Opinion answer fully to every Description contained in those Instructions for they certainly affect not only the Property but the Life and Liberty of Your Majesty's Subjects and have a very material Connection with the Trade and Commerce of the Province and therefore in that respect alone ought not to have been passed without such Clauses of Suspension, but when We consider that these Laws are in effect only a Revival of Laws already Repealed by his late Majesty and are subject to every Objection upon which those Laws were Repealed, but that they contain Clauses Subversive of the Constitution and restrictive of Your Majesty's just Rights and Prerogative, We are at a loss to Account for the Governor's Conduct in suffering them by his Assent to have immediate Operation before Your Majesty's Pleasure could have been known, and thereby setting aside the Effect of one fundamental Principle of the Constitution of the British Colonies.

Mr. Dobbs does indeed in his Letter to the late Commissioners of this Board allege in his Justification that he had assented to these Laws upon the Advice of the Chief Justice and Attorney General of the Province and that he had procured a Clause to be inserted in the Act for establishing a Supreme Court (and in that only) declaring that if Your Majesty did not confirm this Act in two Years from the 10th of Novr 1760, it should from thenceforth be Null and void.

Upon this occasion We think it our Duty humbly to lay before

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your Majesty the annexed Copy of the Questions proposed by the Governor upon this Occasion to the Chief Justice and Attorney General and their answers thereto which are of themselves of so extraordinary a nature as not to require any Comment upon them. But We cannot but observe that the measure itself, independent of the mode of it, is in Our humble opinion so far from alleviating the Governor's improper Conduct, that it is a heavy Aggravation of it; In Cases of this Nature it is the Duty of every Governor, to act upon his own Judgment, and if it were ever to be admitted that he could be dissolved by the Opinions of others from the Obligation of Obedience to those Instructions of the Crown, by which the Negative Voice in the passing of Laws is regulated and restrained the Interests of the Crown and the Mother Country must depend solely for Security upon the uncertain Wills Interests and Instructions of any Person whose Advice & opinion the Governor might think proper to ask.

As to the Clause in the Supreme Court Act referred to by Mr. Dobbs, it is no restraint upon the immediate operation and Effect of the Law and therefore it is so far from answering the Intention of the Suspending Clause, that it is both in Construction & Effect the very reverse.

Upon the whole, if the Governors of your Majesty's Colonies are suffered to go on in such repeated Acts of Disobedience to Your Majesty's Instructions, upon points so essential to the Constitution, the Dependence of those Colonies upon the Authority of the Crown and the just Government of the Mother Country already too much relaxed, will stand upon a very precarious foot.

All which is most humbly submitted.

SANDYS.
JOHN YORKE.
SOAME JENYNS.
Ed BACON.
GEO. RICE.


Additional Notes for Electronic Version: This memorandum enclosed related reports by Charles Berry and Thomas Child - See Related Documents.