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Memorandum from Couchet Jouvencel to the Board of Trade of Great Britain concerning the behavior of the North Carolina General Assembly
Jouvencel, Couchet, d. 1786
May 16, 1763
Volume 06, Pages 983-989

[B. P. R. O. North Carolina. B. T. Vol. 14. E. 75.]
The humble Representation of Couchet Jouvencal Agent for the Province of North Carolina to the Board of Trade

16th May 1763

The underwritten Agent for His Majesty's Province of North Carolina, having in Consequence of your Lordships Commands, transmitted to his Constituents the Proceedings of the Board of May 28th and June 2nd 1762 in regard to Governor Dobbs' three Articles of Complaint against the Lower House of Assembly, is directed humbly to represent to your Lordships in Answer to the—

1st—That by the Charter of the said Province, granted by King Charles the Second to the late Lords Proprietors of Carolina, they humbly conceive the Laws and Constitutions passed for the good and happy Government of the said Province, or to the private utility of particular Persons, are to be passed by, and with the advice,

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assent and approbation of the Freemen of the said Province, or the greater part of them, or of their delegates or deputies, as by the said Charter (to which they beg leave to refer your Lordships) doth at large appear, and that no Assembly from the first settlement of the Province, ever proceeded to the passing of Laws, or any other business without such majority until the year 1746, when a Law was passed by a minority of the Representatives of the People, whereby it was enacted that fourteen Members of the House of Assembly and the Speaker should be a sufficient Quorum to pass Laws or do any other Act or Acts that any Assembly in the Province had been before accustomed to do by a larger number, which gave great dissatisfaction and caused much disturbance and Confusion in the Province during the few Years it was in force, that upon the said Act being afterwards repealed by His late Majesty's Order in Council the Assembly returned to their Ancient and approved Constitution settled by the said Charter and have never since deviated from it, except in one instance which happened in June 1760, An Assembly being then suddenly called on a very pressing occasion to meet at Cape Fear (almost immediately after the Members had attended a very long Session in April and a short one in May before) when upwards of thirty Members about three or four less than a Majority met and after making a resolve that it should not be thereafter drawn into precedent passed a Law for granting an Aid of £12,000 Proclamation money to His Majesty for Augmenting the Forces in the pay of the Province to 300 effective men, exclusive of officers for the defence thereof against the Cherokees and other Indians, who were then committing depredations and murders on the Frontiers Inhabitants, and for other purposes in the said Act mentioned, and one other Law for appointing a Militia—and that should fifteen Members be constituted a Quorum to proceed upon Business, it might afford an opportunity to eight evil designed Persons, the Majority of that Quorum, to pass Bills which might be carried into Laws, destructive of the Rights, Liberties, and Properties of His Majesty's good Subjects in the Province.

The House therefore humbly hope, after the many instances of the loyalty and dutiful behaviour of the Assembly of the said Province, and their sincere and firm Attachment to His most sacred Majesty and His illustrious House, and of their zeal for the service of the Crown. They will not justly incurr the severe sensure of disobedience & undutifulness, in adhering to their ancient Constitution settled by Charter, until it is altered by Law, which it might speedily be, if His Majesty would be graciously pleased to instruct His Govr

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to give His Assent to a Law for constituting a certain number, which the House humbly propose might not be less than one third part of the present whole representatives of the several Counties and Towns in the Province, a Quorum to proceed on Business, and pass Laws, and that eight of them may have power to adjourn the House from day to day, and to send for the absent members, until the said number appeared, this they humbly conceive might be for His Majesty's service, and would not give uneasiness and dissatisfaction to their Constituents.

With regard to the 2d The House do not recollect that any Person, chosen a Representative for any Town or County without His Majesty's Writ for that purpose was ever admitted into the Assembly as a member thereof, since His late Majesty was pleased, above thirty years ago by his order in Council, to repeal the Act passed in 1715 relating to the Biennial and other Assemblies except in the case mentioned by the Governor of the Member chosen for the Town of Halifax in the year 1760, which was occasioned by the then Assembly misconstruing a Clause in the Act for erecting the Town of Bath, passed in the same year with the above mentioned Act, which has never since happened, as the Assemblies have considered it, as your Lordships do, unconstitutional, and they are at a loss to find what could be the Governor's motive to trouble your Lordships so long after with a charge against the Assemblies of the Province in general for a mistake, he let pass unnoticed at the time, committed by one of them only in particular, and which it was not likely would ever happen again.

3dly. That the several Assemblies of that Province have been always ready and willing to pass Laws for incorporating any settlement into a County or Town, or for the dividing of Counties, when from the number, abilities, and other circumstances of the Petitioners it appeared reasonable or any ways for their advantage, as may evidently appear by the several Laws that have already from time to time been passed for such purposes.

That the Council indeed for good reasons, as the House suppose, appearing to them, have sometimes refused to pass the Bills for such Laws, and the Governor hath likewise refused his assent to such, after they had passed both Houses, as may appear by their Journals, but they do not recollect that any such Bills have ever been refused or rejected in the Assembly, except one brought into the House on a Petition for dividing of New Hanover County, which must be the refusal the Governor complains of, and which was occasioned

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by it being made appear to the House, that altho' there were upon the list 2670 Taxable persons, 509 only of them were white persons including servants the others being all negro slaves. That the said County was but of a moderate extent, & bounded by the Ocean on one side, and on all other sides by other Counties, and not larger than several other Counties that have double the number of white Inhabitants. That there was already one of the Superior Courts, and the Inferior Court of the said County held within the same, and that by dividing the said county, and Establishing another Court at Brunswick, as directed by the Bill, would be very expensive and oppressive to the Inhabitants in general, the whole number whereof being not more than will necessarily be obliged to attend the one or other of the two Superior and four Inferior Courts, yearly held in the said County, as Justices, Officers, Jurors, Evidences & Suitors, whereupon the Assembly postponed dividing the said County till by an increase of the white Inhabitants it might become less prejudicial to them, and more reasonably necessary to do it, and the Assembly humbly submit it to your Lordships, whether in so doing they justly deserve Censure,

The said Agent is likewise directed to express the great grief and concern with which the Assembly observed by your Lordships report on the Act for Establishing Superior Courts (a Copy whereof Governor Dobbs was pleased to lay before them) that the principal if not the only points in which the said Act appeared exceptionable to your Lordships, and occasioned your laying the same before His Majesty for His Royal Disapprobation were the Provisions made therein regarding the Qualification of the Judges, and the duration of their Commissions, as the Assembly humbly apprehend that without such Provisions, the Lives, Liberties and Properties of His Majesty's Subjects in that Colony will ever be very precarious, and that it is more than probable they will often illegally be deprived of them, either by ignorance in some Judges (before whom they may happen to be brought in question) of the Laws by which they ought to be adjudged & decided, or the want of virtue and sufficient fortitude in others to judge and determine as Right and Justice may require, in Cases where the private Resentment and Interest of an arbitary, Despotick Plantation Governor, his Creatures or Favourites happen to be concerned, Knowing the Consequence thereof will be the loss of their Offices, if held by his appointment, and if by appointment from England, a Suspension, and the great difficulty and expence (if they should be able to undergo it) of a solicitation at the Boards

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in England to get restored, against the powerful Interest, or false and partial Representation of such a Governor.

These Considerations alone induced the Assembly in the first draft of the Bill for the said Act, to make the aforesaid Provisions, and not the view of compelling the Governor to appoint three particular persons, to whom such Qualifications were particularly adapted, as they find has been unjustly affirmed to your Lordships. Neither did the Governor appoint either of the Three Persons they have reason to believe he alluded to, in his Representation against the said Law, but did from amongst others, likewise qualified agreeable to the said Act, Commission three judges, who indeed, together with the present Chief Justice, discharge their Duty with such integrity, uprightness & Ability as gave a dignity and reputation to the several Courts wherein they presided, and a general Satisfaction to the Inhabitants of the Colony and the Merchants and others Trading and Sojourning therein, beyond what had ever been observed there before.

The Assembly humbly presume, that had your Lordships adverted to the Statute of the 11th and 12th of William the Third Chapter 2nd, which doth not appear to be confined to His Majesty's Subjects in Great Britain alone, but to extend to His Subjects in general, and the Statute of the 13th of His late Majesty George the Second of glorious memory, Chapter 7th which is a plain declaration of every branch of the Legislature in England, that the Subjects in His Majesty's Colonys are entitled to all the Privileges of the People of Great Britain, and also to the early and important instance of His present Majesty's gracious regard for the Rights and Liberties of His Subjects, in recommending to His Parliament from the Throne in the first year of His Reign, to supply a defect in the former of the said Statutes, by passing an Act to prevent the Judges Commissions ceasing & determining even on the demise of the Sovereign your Lordships would not have considered the aforesaid Provision as subversive of the Constitution and Restrictive of His Majesty's just Rights and Prerogatives.

It likewise appears to the Assembly that your Lordships have been misinformed in regard to the Jurisdiction of the Inferior Courts in His Majesty's Colonys in North America, as it is evident there are few of them but have power to adjudge and determine in Civil Actions to the value of Twenty five Pounds Sterling, & that the inferior Courts in the next adjoining Colony of Virginia, as well as those of some other Colonies, have in such Actions, an unlimited Jurisdiction,

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with a right of appeal only to the Superior Court; and as no inconvenience appeared from the Inferior Courts in the said Colony of North Carolina having power to try and determine in Civil Actions as far as fifty Pounds Proclamation money equal in value to Twenty five Pounds Sterling only, but on the contrary His Majesty's Subjects found great benefit and advantage from it in the easy and speedy recovery of such small debts, Filial Portions, Legacies etc without much trouble and expence, the Assembly were sensibly grieved and concerned to find one principal exception your Lordships took to the late Act for Establishing those Courts, was the power given them to try and determine even to so small a value as the aforementioned Sum.

The said Agent has it also in Charge humbly to request that your Lordships will be pleased to direct the Governor to Assent to a Law for applying the Money, (formerly allotted to the Province of North Carolina out of one of the Parliamentary grants to the Colonies,) in aid of the Tax for defraying the Contingent Charges of Government as the Assembly find that the said money, together with that arising by the above Tax, will scarcely be sufficient to pay off the large Debt due from the Public and payable out of the Contingent Fund, which has been occasioned by the extraordinary Expences of the Government during the Course of the War, as they cannot possibly at present lay a further Tax for the payment thereof, those already laid for Contingencies of Government, sinking the large Sums that from time to time have been granted by the several Assemblies in aid to His Majesty for his Service, in carrying on the War against the common Enemy, together with the several necessary county and Parish Taxes payable to [by] their Constituents, being as much as their Circumstances can bear, they, therefore humbly desire that the said money may be applied to the purposes above mentioned, and not to any other, nor be, in any manner disposed of without the consent and concurrence of the whole Legislature, as it was originally ordered to be.

The Assembly likewise humbly pray, that the monies allotted for Schools, Glebes, and Public Buildings, by a Law passed in November 1754, and which has long laid under a suspending Clause may by His Majesty's Royal allowance be applied to the pious purposes originally intended, for altho' part of the said money has, upon an extraordinary exigency during the War, been borrowed and employed for His Majesty's Service, a Tax was laid for replacing it, so

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that it still remains to be applied for the purposes intended by the said Act, as soon as His Majesty shall be graciously pleased to signify his Approbation thereof.

COUCHET JOUVENCAL.