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Colonial and State Records of North Carolina
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Minutes of the North Carolina Governor's Council
North Carolina. Council
December 20, 1765 - December 21, 1765
Volume 07, Pages 133-137

[From MS. Records in Office of the Secretary of State.]

At a Council held at the Council Chamber at Wilmington December 20th 1765.
His Honour Col. Wm Tryon Lieut. Governor
The Honble James Hasell Esquire
The Honble John Rutherfurd Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alexander McCulloh Esquire
The Honble Charles Berry Esquire
The Honble William Dry Esquire
The Honble Robert Palmer Esquire
The Honble Benjamin Heron Esquire

The Lieutenant Governor then produced His most sacred Majesty's Commission or Letters patent, bearing date at Westminister the 19th day of July in the fifth Year of his said Majestys reign constituting and appointing him the said Lieut Governor, His said Majestys Captain General and Commander in Chief in and over the province of North Carolina, Which said Commission was read and duely published in the presence of the Gentlemen of the Council above named.

Then His Excellency took all the Oaths appointed by law declared and subscribed the Test, also took the Oath for administring the Government and for securing the Acts of Trade and Navigation heretofore made and now in force.

Then the Council above named took the Oaths by Law appointed for the qualifying Officers, declared and subscribed the Test and took the Oaths of Office and Secrecy.—Ordered That His Excellency the Governor's Commission be recorded &c.

Also Ordered That the following proclamation be made forthwith publick property throughout this Province Vizt,

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North Carolina—ss.
By His Excellency William Tryon Esq, Captain General Governor and Commander in Chief &c. A Proclamation.

Whereas it is necessary for the peace and good government of this province that all Officers therein both civil and Military should hold themselves continued in their several Offices places and employments until my pleasure be further known;—I have therefore thought fit to issue this proclamation by and with the advice and consent of His Majesty's Council, And do hereby order signify and declare that all persons who now are or at the time of the promulgation of my Commission as Governor and Commander in Chief of this Province duly and lawfully possessed of or invested in any office, place or employment civil or military in this province shall be and hold themselves continued in the same Offices places or employments as formerly they held and enjoyed the same until my pleasure be further known; And that the said persons do not fail, every one severally according to his place, Office or charge to proceed, In the performance and execution of all duties thereunto belonging, And, further I do hereby Will and Command all and singular, His Majesty's Subjects in this province to be aiding and assisting at the Commandment of the said Officers in the performance and execution of the said Offices, as they will answer the contrary at their Perils.

Given under my hand and to which I have caused to be affixed the Great Seal &c at Wilmington 20th December, In the sixth year of his Majestys Reign 1765

Ordered, That Fountain Elwin Esq the Governors private Secy and Mr John London one of the Clerks of the Secretarys Office take the Oaths of Secrecy appointed for the Council and were sworn accordingly

At a Council held at Wilmington 21st December 1765
His Excellency the Governor.
The Honble James Hasell Esquire
The Honble John Rutherfurd Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alex McCulloh Esquire
The Honble William Dry Esquire
The Honble Robert Palmer Esquire &
The Honble Benj Heron Esquire

Ordered a proclamation for dissolving the Assembly issue in the following words, Viz—

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North Carolina—ss.
By His Excellency Wm Tryon Esquire &c. A Proclamation.

Whereas I have qualified my commission as Captain General Governor and Commander in Chief in and for this Province. It is necessary that the present Assembly should be dissolved. I therefore with the advice and consent of His Majesty's Council have issued this proclamation for dissolving the said Assembly, and the same is accordingly dissolved.

Given under my hand and the Great Seal &c at Wilmington 21st Decr 1765 In the sixth year of His Majesty's Reign

God save the King.

His Excellency laid before the Council for their opinion whether upon the present dissolution of the Assembly of this province, writs can issue for the election of a new Assembly, as the circulation the Stamps are obstructed. The Council desired the Attorney Generals opinion might be taken, and he Mr Attorney General was accordingly called into Council, and the Question being proposed to him, gave it his Opinion, “That issuing Writs for Electing, Members of Assembly is exercising the undoubted prerogative of the Crown and therefore such writs are not Subject to any duty by virtue of the Stampt Act and of course may legally be issued on common paper”—And then the Council gave their Opinion that Writs may issue, conformable to the Attorney Generals opinion

Then His Excellency proposed the 22d of April next for holding the Assembly at Newbern, and Ordered that Writs be forthwith issued to the proper Officers of the several Countys and Towns Qualified to send members to the Assembly,—Also Ordered that the Answers to the Questions propounded by the Honble John Rutherford Esq Recver General of His Majestys Quit Rents, and by Order of His Excellency the Governor in Council referred for the Opinion of Robert Jones Jun Attorney General, be entered upon the Journals of this Board, Viz.

Q—1st Can persons holding by old patents bodies of Surplus Land be compelled to pay Quit Rents for the same, and if any what Quit Rents ought to be demanded for such surplus Lands

Answer—I am of opinion that the Grantee is chargeable with Quit Rents on the true Number of Acres contained within the

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Bounds of his Grant from the date thereof, whether the patent be of Ancient or Modern date after the rate specified in his Grant.

Q—2nd If necessary for the occupants to take new patents for such surplus Lands or are the marks and bounds of the Land described in the old patents to be deemed a good Title to such surplus Lands

Answer—The Patent if regularly obtained will be a legal Title to the Lands contained within the bounds specified therein, as it is a sufficient proof that the Grantee intended to purchase the whole, and the error in respect to the Number of Acres is a wrong computation of the Surveyor, who is appointed by the Crown; However if there was any fraud in procuring such patent, the same may be rendered void in the whole.

Q—3d What is the proper method to be taken to discover and to obtain payment for surplus Lands whether held by Proprietary Grants or Grants from the Crown, and if by Resurvey at who's expence?

Answer—If a Patentee on a amicable application refuses to have his land resurveyed, and the true Number of acres ascertained, he may be compelled thereto by a decree in Chancery, as also to pay the Quit Rents, in which Case I should think the Court will subject him to the whole Costs occasioned by his obstanacey—But if the Patentee submits to have his Land resurveyed on a friendly application, the Expence ought to be defrayed by the Crown as the Error in the first Surveyor's Computation is not to be imputed to such Patentee.

Q—4th Whether the occupants are liable to pay Quit Rents for their Surplus Lands from the date of their Grants?

Answer—The Answer to this Question is comprized in the answer to the first Query.

Q—5th What is the proper method to be taken to recover payment of Bonds or Notes. and for disposing of Lands escheated to the Crown by Persons tried and found guilty of Felony—those Bonds, Notes and Lands having been previously conveyed away to others after office found?

Answer—When a person is attainted of Felony, except for Petit Larceny and some particular Cases of felonies created by Act of Parliament, all the Lands he was seized of in Fee, at the time of committing such Felony are forfeited to the Crown and an Office being found are at the intire disposal of His Majesty immediately,

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notwithstanding any conveyance thereof made after the Commission of such Felony; it not being necessary for his Majesty or any of His Officers to make an Actual Entry on such Land to perfect his Title; as it would be in the Case of a subject when his Title accrues by forfeiture or the Breach of a Condition Debts and Duties of every kind due to such Felon except such as are due to him as a Trustee, are in like manner forfeited to the Crown, and if the Bonds or other Writings given for securing the Payment of the same can be had, they may be recovered by Action at Law in the name of the Attorney General; but if they are assigned over and in possession of the Assignee or any other for his use, they cannot be recovered but by the aid of a Court of Chancery.

All of which is humbly submitted to His Excellency and the Members of His Majestys Honble Council

By Their most Obedt and very humble Servant

Occanechy Dec 2nd 1765