Documenting the American South Logo
Colonial and State Records of North Carolina
Advanced Search Options
Letter from Josiah Martin to William Legge, Earl of Dartmouth
Martin, Josiah, 1737-1786
March 12, 1773
Volume 09, Pages 598-601

[B. P. R. O. Am. & W. Ind.: No. Carolina. No. 220.]
Governor Martin to Earl Dartmouth.

North Carolina, New Bern, March 12th 1773.

My Lord,

The last letter I had the honor to write to your Lordship (No 3) bearing date the 26th of Febry related the Transactions of the General Assembly of this Province to that time, and implied my apprehensions that little public advantage would result from its deliberations, which I am concerned to inform your Lordships proved but too just and prophetic of the Event.

Another Bill “To continue the Superior Court Act six months, and to the end of the next Session” containing the same exceptionable clause as that I had before rejected passed very hastily through the House of Assembly, but being sent to the Council, was there again rejected.

On the 6th instant I received a Message from the Assembly, importing that the House had sundry Bills prepared, and desiring to know when I would receive them, I appointed that afternoon. The Speaker and near seventy Members of that House accordingly attended me and presented for my Assent, fifty two Bills, of which I rejected seventeen, for reasons I shall lay before your Lordship,

-------------------- page 599 --------------------
together with the Bills I refused, when I transmit the Acts that I passed, which I shall not fail to do, as soon as I can procure fair transcripts of them.

Having executed this duty My Lord, to the best of my judgment and understanding, I addressed the General Assembly in a speech (of which I have the honor to send your Lordship a copy herewith) and prorogued it to the 9th instant. On the morning of that day when I was preparing to open a new Session, I received information by the Clerk of the Assembly, with great surprise that there was not remaining in Town a sufficient number of Members to make a House, to which I replied I should expect such as were present, to convene at their House at 12 o'clock, when I would send a message. Accordingly my Lord at that hour, I sent to the Speaker from the Council Board, where I was sitting the Message No. 1, of which and of his Answer, and of my second Message and the Speaker's reply, your Lordship will receive Copies herewith. On receipt of the Speaker's second answer, which I thought definitive, I desired advice of the Council, as will appear to your Lordship by the Minutes of that day on the measures proper to be taken in the very extraordinary case that presented itself, upon which the Board concurred with me in Opinion that the conduct of the Assembly had left me no alternative but to dissolve it, which I therefore did immediately by Proclamation, and on the same day I issued Writs for calling a New Assembly, retainable the 1st day of May next. Your Lordship will be pleased to observe that in all these proceedings I have acted with the Council's concurrence, as I did in rejecting the Bill presented to me on the 24th of February (of which there is no minute or Journals) notwithstanding the rule of my conduct was so plain and clear.

In this whole transaction my Lord, which I am persuaded, must appear to you very irregular, although it is not altogether unprecedented in this Colony, I have the satisfaction to find, and to assure your Lordship, no ill humour or disposition, has been discovered towards me, on the contrary I am informed, the Assembly confessed with one accord, that I had acted in every part of this business, with uniform and becoming firmness. An effort of candour that I will acknowledge to your Lordship I did not expect, but that is not therefore the less pleasing to me. To evince their regard to me the Speaker and the other Members, who remained in Town, at the dissolution of the Assembly, paid me a visit on the evening of that day, and complimented me in the most respectful manner. In justice to these

-------------------- page 600 --------------------
gentlemen my Lord, it behoves me to remark to your Lordship that they were the flower of that very hetrogeneous Body; which the ill policy of this people and the compliance of former Governors hath enlarged to a bulk, that renders it to the last degree unwieldy, embarrassing & impracticable.

Your Lordship will perceive that the Members of Assembly, who continue here, to the time of my Prorogation being Twenty seven in number, declined to enter upon business, and would not consider themselves capable of making a House, because there was not present a majority of the representatives of the People, whose whole number amounts at this day to ninety three. This conduct I learn was founded upon a direction of the Charter granted by King Charles the second to the Lords Proprietors of this Province “that laws shall be enacted by them, with a majority of the Freemen or their Delegates,” and a subsequent declaration of the Proprietors to the same purpose. Such are the terms of the Charter most certainly, but the principle that the Charter is still binding upon the Crown, and the people is not too well established, and involves questions not for me to answer. It should seem however that it is not, in this particular at least, not only because a formal surrender was made by the Lords Proprietors, of all the Royalties granted in the said Charter, (and especially of the power of making Laws and calling Assemblies) to the Crown, under the sanction of an Act of Parliament of the second year of His late Majesty's Reign, but that I see the Lords Commissioners of Trade and Plantations, after taking the opinions of His Majesty's Attorney, and Solicitor General upon a part of this very question, (on a complaint exhibited against Mr Johnston, a former Governor of this Province, and referred to their Lordship's consideration) advised the King in the year 1754 to give an Instruction to the then Governor, appointing fifteen members to be a Quorum of the Assembly, at that time consisting of sixty, which Instruction has been continued to succeeding Governors to this day. But these are nice and important points that I shall humbly beg leave to submit to your Lordship's consideration.

When your Lordship shall see the Journals of the Assembly's last Session, you will observe that the House, in its Message to the Council, of the 2d day of March, relating to the last Bill for Establishing Superior Courts, etc., dwells much upon the futility of the clause, touching attachments, from the short limitation of the intended Law, arguments that might have been urged with equal force against

-------------------- page 601 --------------------
them. It was pressed to me upon the same principles, but I resisted firmly believing that in giving my assent to a Law of that tendency, without a suspending clause, for one day; I should offend against the letter and spirit of His Majesty's Royal Instruction, as much as if I passed an Act of more permanency. The truth is, My Lord, they wanted a concession of the Privilege of Attachment as they call it, at all events, and more especially, pro re nata, for I have reason to think it was the more strenuously insisted upon to serve the interests of some persons who had attachments actually depending.

At a future opportunity I shall do myself the honor to write to your Lordship at large, upon the doctrine that is held by the people of this Country, upon the subject of attachments, and of the abuses that have been practiced under that mode of Proceeding.

In the mean time my Lord, I have nothing so much at heart, as, that my part in this late and extraordinary scene may meet with His Majesty's, and your Lordship's approbation. I hope I have acquitted myself properly, but if it shall be found otherwise it must be my consolation, that my conscience assures me, I have pursued with my best discernment, the dictates of honor, and of duty to my Royal Master.

I have the honor to be &c,