To his Majesty's Chief Justice and to the Associate Justices
of the Province of North Carolina:
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 incompleat, so as to bring the Offenders under the Royal Pleasure?
Answer: These People are not regularly Outlaws, such of them as were indicted for inferior offences and did not surrender themselves within the time limited by the Riot Act are to be held guilty of the offence with which they were respectively charged, but no judgment can pass against them without Trial and Conviction. That act prescribes a certain mode of notification to accuse offenders: if that has not been strictly pursued the Penalties of the Act cannot have been incurred. This is a fact which can only be enquired of and determined by a Jury. The Outlawries (as they are called) taken at the Court of Oyer and Terminer at New Bern in the year 1771 can only have relation to inferior offences; all proceedings against those who were capitally charged are ab initio void.
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 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. I think at present they are not liable to be indicted; the eleventh section of the Riot Act is the only one under which Treason is in any wise imputable to the Insurgents and that section does not declare any persons unlawfully assembled &c., (Traitors) it only
3d. Whether (if liable for 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?
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 not depending on the Royal Pleasure as His Majesty hath been informed and as hath been generally and erroneously believed?
Answer. My Answer to the second question renders an answer to the third and last unnecessary.