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Memorandum by Richard Henderson concerning the case against the Regulators
Henderson, Richard, 1735-1785
August 24, 1772
Volume 09, Pages 334-335

Copy of Judge Henderson's Opinion.

To his Majesty's Chief Justice and to the Associate Justices
of the Province of North Carolina.

Gentlemen,

Having received overtures from certain of the outlawed Insurgents to surrender themselves to justice I recommend to your consideration the following questions on which you will be pleased severally to give me your opinions in writing.

1st. Whether upon their surrender the outlawry may be perfected that I am informed is now incompleat so as to bring the Offenders under the Royal Pleasure?

Answer. As the Act of Assembly referred to in your Excellency's second question is totally expired it is my opinion that no further prosecution in virtue of that Act can legally be supported against any offenders whatever therefore if anything is wanting to perfect any proceedings commenced by authority of said Act it is now too late to effect such completion and consequently those proceedings must remain imperfect.

2d. Whether these Insurgents are subject to indictment and Trial under the lately expired Riot Act of this Province of the year 1771, or otherwise for the subsequent and most capital crime of taking

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Arms against his Majesty's Government of which I have recently discovered that no legal cognizance hath been taken heretofore believing the outlawry consequential of that Treason and the proceedings at Law compleat and final and that the Criminals were depending solely on his Majesty's Pleasure, the general received opinion on which was formed my assurance that it was out of my power to grant the pardon to them that the late Assembly proposed to me.

Answer. For the reason given in my answer to your Excellency's first question it is my opinion these Insurgents are not subject to indictments under the lately expired Riot Act of this Province of the year 1771, but if guilty of any offence against the laws now in force they may be prosecuted in any Court having cognizance of such offence due respect being had to the district or County where such offence was committed.

3d. Whether (if liable to arraignment for such act of high Treason) their criminality will appear with proper dignity before the Legislature until it be fully and judicially established when in consequence of his Majesty's Royal commands it shall be offered to the consideration of the General Assembly at the next Session to pass an Act of Pardon and Oblivion with such exceptions as may be judged proper?

Answer. Whether their criminality will appear with proper dignity before the Legislature until fully and judicially established is what I am at a loss to determine but give it as my humble opinion that the Legislature may with great [propriety] (first having obtained the Royal permission) pass an Act of Pardon and Oblivion extending to all or any number of those Insurgents without any further or other prosecution against them.

Lastly. In what state will these criminals be if any of them be excepted in the Act of Grace the proceedings at Law against them being incompleat and they consequently no depending upon the Royal Pleasure as his Majesty hath been informed and as hath been generally and erroneously believed?

Answer. This question is fully answered by my answer to your Excellency's first question, but with the utmost deference think the Legislature may insert a clause in their Act of Grace against such excepted persons thereby in my humble opinion answer every desireable purpose with respect to them.

RICHd HENDERSON.

Hillsborough 24th August 1772.