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Letter from William Legge, Earl of Dartmouth to Josiah Martin
Dartmouth, William Legge, Earl of, 1731 - 1801
December 09, 1772
Volume 09, Pages 361-363

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[B. P. R. O. Am. & W. Ind.: No. Carolina. No. 219.]
Lord Dartmouth to Governor Martin.

Whitehall, 9th December 1772.

Sir,

By the Swallow Packet which arrived a few days since I received your Dispatches to Lord Hillsborough Nos 19, 20, & 21, and have laid them before the King.

The laying an Embargo upon Wheat, Rye & Flour until the future Crops of Indian Corn could be ascertained appears to have been a provident Measure in case the Representations made of the failure of the preceding Harvest were well founded; but I should be glad to know upon what ground it was that the Council advised the Embargo for if there is no express Law that gives authority to the Governor in this case I should very much doubt whether the general powers of Government contained in the King's commission would warrant such a step unless in time of War and not even then without express Instructions from the King, I am to presume tho' you do not say so that this Embargo was accompanied with an Exception in the case of grain and flour exported to Great Britain and I mention this to you for the greater caution in the future as the supply of those Articles from the Colonies is in the present Moment of great importance to this Kingdom and has been one of the first objects of attention in the present session of Parliament.

With regard to what you say of the necessity you was under on this occasion of acting with only three Members of the Council, I will not take upon me to assert that no case can exist in which it may not be necessary to act with the advice of a smaller number of the Council than the King's Instruction has prescribed but I think it my duty to observe to you that nothing but unavoidable necessity can justify such a Deviation from the Constitution.

I am not without apprehension that the Instructions given by his Majesty to his Governors in America respecting the execution of the Laws for the regulation of the Plantation Trade may in other cases as well as in that which you mention be incompatible with the present Establishment of a Board of Customs in America and therefore I will not fail at a proper opportunity to use my endeavours

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that a matter upon which I am not at present prepared to give an opinion may have a due consideration in the proper department.

I have not failed to give attention to the remarks you make upon the state of the Back settlements the Temper and Character of the Inhabitants and your own opinion of the origin of those discontents which produce such very disagreeble consequences and I must confess to you that I see but too much reason to believe that those deluded people would not have been induced to involve themselves in the guilt of Rebellion without provocation, but it is neither fit nor necessary for me to recur to transactions of so disagreeable a Complexion not doubting that the measures the late Governor pursued were in his Judgment absolutely necessary and were not adopted without the fullest examination into the Grievances complained of and that all proper endeavours were used to redress them.

Your caution in taking the opinion of the Law servants of the Crown upon the case of the Outlaws of Guilford County is very much to be commended, and I presume from what you state of the situation in which they stand at present so different from what was at first proposed they will not be considered by the Legislature as objects of exception in the Act of Indemnity you are authorized to pass.

With regard to the question that has arisen between yourself and the Chief Justice, how far he is bound to give his opinion in cases where you may think fit to call upon him for it, it appears to me that the practice in this Kingdom is the only proper rule by which it can be decided according to which practice if I rightly understand it the Chief Justice as being a Member of the Privy Council is bound to give his opinion upon Matters coming under the deliberation of that Board but that any special reference to him in his character of Chief Justice would be irregular in almost any case whatever and highly improper in any light if it was meant to draw from him an extra judicial opinion upon a matter that was likely to come before him in his own Court.

I am persuaded Sir that if you had reverted to what passed in the year 1751 respecting the Revisal and Confirmation by the then Legislature of the Laws of North Carolina you would have had no doubt of the force and validity of the act passed in the year 1715 concerning Titles of Lands which act together with many others passed in the same period were then adopted and made a part of the Constitution of the Colony but even had that not been the case

-------------------- page 363 --------------------
I do not see that there would have been any ground to have doubted of the validity of any Law passed in the time of the Proprietors and which has not since been disallowed by the Crown or repealed by some subsequent act.

The Propriety or Impropriety of allowing Inferior Jurisdictions in Matters of Property is a question that depends so much upon the nature and circumstances of the Country in which such judicature is to operate that it must of necessity be left to the discretion of the Legislature and what I have said to you upon this subject in a former dispatch was founded upon an opinion which I see no reason to alter that the greatest caution ought to be used in vesting persons ignorant of the Laws with a decision in matters of property that in general ought to be cognizable only in the regular Courts of Judicature. If the Act for impowering the Freeholders in the New Parishes to elect Vestries makes a Regulation with regard to the Presbyterians in those Parishes which has not taken place in the other Parishes of the Province it is certainly an improper distinction but I hope you will not take any steps for extending that regulation or making it universal until you shall have received his Majesty's further pleasure thereupon in consequence of a consideration of the Law lately passed.

I am &c
DARTMOUTH.