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Report by John Morgan concerning the regulation of fees for public officials in North Carolina and the indictment against Edmund Fanning
Morgan, John
May 01, 1769 - August 04, 1770
Volume 08, Pages 33-36

-------------------- page 33 --------------------
[From MS. Records in Office of Secretary of State.]
CASE.

In 1748 an Act of Assembly was pass'd in the province of No Carolina for regulating the several Officers Fees within that province.

The 2d Sect. runs in these words—Be it Enacted &c.

“That it shall be lawful for the several Officers within this province to take & receive in proclamn money or bills of Credit such Fees only as is appointed by this Act for such service to wit,

Then follows the Enumeration of the particular Fees, of which the Fees of the public Register are set down thus

£
s.
d.
For registering every Birth, Burial or Marriage
0
0
7
For registering a Conveyance or any other writing, or giving a Copy therof
0
2
8
For every Certificate of Birth, Burial or Marriage
0
0
7

The following Sect. relates to particulars foreign to this Case,

The 7th runs thus—

“That if any Officer shall Demand, Extort, Exact or receive under Colour of his Office any other or larger Fees than what is particularly mentioned in this Act, or shall refuse to do the particular service in his Office for the Fees in this act expressed, such Officer, shall for every such offence or default, forfeit the sum of five pounds.”

(which penalty by the 9th Sect. is declared recoverable in the same manner as other Debts one half to ye Informer, ye other to the parish.)

Under the words, other writing, it had been long customary among the Registers to charge 2s. 8d. for each writing of receipt or certificate Indorsed on any Deed.

On an Indictment in Hillsborough Supr Court of Justice for sd province in Septr last Edmund Fanning Register of Orange County duly appointed & qualified, was found guilty of Extortion in his office as Register for taking 6s. on ye Deed No 13.

On the Tryal it was given in evidence & declared from the Bench that the taking did not by any means appear to be a tortious taking, as the sd Register had previous to his entering on the sd office requested of the Justices of the County Court (the supreme jurisdictn of the County) to consider on the Fee Bill, who after so doing in open Court, instructed the sd Register that he was legally intitled to 6s. and odd pence at least for every Deed whatever, with probate,

-------------------- page 34 --------------------
order for Registering, and Registers certificate of the due Registering, & in case of other instrumt: more, as by Bill drawn up by the Court & delivered to the sd Register. The opinion of the late Atty Genl of No Carolina was likewise taken on this matter, who declared that the Register was intitled to demand Fees to the amount of 8s. 7d. on any Deed.

On application sevl other Registers furnished him with Bills under their hands, for Fees taken for the same services for considerably more than 6s.

The sd Register however to be within the Law as he conceived, demanded & took upon all Deeds 6s. only.

The questions upon which Mr Morgan's opinion is desired, are

1st What Fees may within the meaning & intendments of the expression in the Act pass'd in 1748 for regulating of Officers Fees, be legally taken by the Register on ye Deed No 13 & 14 severally?

2dly Whether an Indictment for Extortion will lie at common Law for taking more or other Fees than allowed by Act of Assembly in the execution of an office created by Act of Assembly, & if so, whether a heavier sentence may be passed by the Court, than the penalty in the sd Act prescribed for the offence charged in such Indictment?

3dly Whether a Register may be prosecuted by way of Indictmt for taking other or larger Fees than that are particularly mentioned in the aforsd Act for regulating of Officers Fees.—The 7th Sect of sd Act which relates to Regtrs being not prohibitory, but only if he does, that then he shall be liable to a Forfeiture of £5 which in the 9th Sect. of the same act is said to be recoverable as other Debts.

4thly Whether a Register may be Indicted & punished as an Extortioner for taking more by colour of his office than he is legally intitled to, such taking happening thro' mistake either of the sum taken, or the sum which might lawfully be taken.

1. On the Deed No 13 & Indorsements, I am of opinion the Registr is intitled to four Fees, viz. 1 for the Deed, 2 for the certificate of the examination of the Feme Coverte & certificate of the persons examining being Justices, & 4 the oath of execution & order to Register.

As to the three former I think there is scarce room for a doubt, with respect to the last my opinion is nearly the same. I do not consider the oath or order as part of the Deed. The instrument was in itself before complete. The oath & order are additional, i. e. farther securities

-------------------- page 35 --------------------
to the purchaser. There is some time limited for registering such a Deed, consequently the party is not bound to register before the last day of that time. I take it for granted if it was requisite in the intermediate time to produce the Deed in evidence, it would be accepted as such tho' not Registered. If so I think it beyond a doubt that the Register is entitled to such fourth Fee.

As to No 14 for the above reasons I think him intitled to two Fees.

2. At Common Law the taking more than is due by Colour of Office is Extortion 1. Inst. 368-6. 10. Rep. 102 Plou. Com. 68. This being a maxim of our Law, is universally true, And I conceive is not confined to antient offices only, but extends to every one newly created. An Indictment will, therefore, in my opinion lie, for an actual offence tho' in a new office, viz. Sets a limit to the Fees to be taken by the word only. As to the penalty given by Sec. 7. I consider it only as an additional security to ye subject; and rather (if I may so express it) in aid than in restraint of the Common Law, & that a prosecutor hath his election, either to proceed for the penalty by action of Debt or by Indictment for criminal punishment, which by the Common Law is Fine & Imprisonment.

3. This Question is already answered.

4. I think in the present case the Register was not liable to be Indicted for two reasons. 1. I am clearly of opinion he was legally intitled to more than he took as to No 13. 2. Suppose he was not, we should then enquire quo animo he took the 6s., the answer is, not with intent to extort, but thro' an involuntary mistake—under a supposition of right, consequently he is not criminal. In this case Mr Fanning did actually intend to take less than he conceived himself intitled to. And on entering into his Office, acted in the most prudent manner, by requesting the Justices of the County Court to ascertain his Fees. I should think that very allowance of a Court of Justice would be sufficient to exculpate Mr Fanning at Common Law, Had he taken more than he was intitled to by the act of Assembly And, that in such a case there would not have been any mode of proceeding, but by action of Debt. He may be said to have acted with the approbation of the Justices, & therefore, for their honour it is incumbent on the Judges, before whom this matter is depending, to give all the relief they can to Mr Fanning, which brings me to the last question viz

Circumstanced as Mr Fanning is, what may be proper for him to do?

-------------------- page 36 --------------------

I would advise him to move for a new Tryal. I scarce need mention authorities. Litt. 606-613. Or that he must appear in person. 2 Stra. 968.

Should that be overruled (which I can't easily perceive) he may then move in arrest of Judgment. 2 Salk. 649.

The Indictment may be bad, if not, the whole matter, I take it for granted, appears on the Record.

But there must be a positive allegation that the person charged took so much extorsive or colour officii, which words are as essential as proditorii or Felonia for Treason or Felony. 2 Salk. 680. On the Law only, I should think a good argument might be made in arrest of Judgmt (supposing the Indictment states the facts fully) for the act of Assembly is of itself Evidence of the Fees Mr Fanning was intitled to: and I think all the Indorsements on the Deed ought in substance to appear in the Indictment, otherwise it should be void for the incertainty. If fully stated then it appears evidently to be a verdict contrary to Law.

Should both motions fail Mr Fanning must &c.

JOHN MORGAN

Inner Temple 1st May 1769.

Query added 4th August 1770. Whether upon the whole matter as stated, the Defendant Fanning ought to be exculpated or not?