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Colonial and State Records of North Carolina
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Minutes of the North Carolina Governor's Council
North Carolina. Council
March 13, 1773 - March 16, 1773
Volume 09, Pages 601-607

[From MS. Records in Office of Secretary of State.]
COUNCIL JOURNALS.


At a Council held at New Bern 13th March 1773.

Present
His Excellency the Governor.
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Samuel Strudwick Esquire
The Honble Martin Howard Esquire
and
The Honble Samuel Cornell Esquire

The Receiver General having applied to His Excellency for an Order to the Secretary of the Province to attend by himself or Deputy at the next Superior Court to be held at Wilmington with such Records as are necessary in the tryals there to be had in behalf of the Crown.

His Excellency directed the Secretary to attend by himself or

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Deputy accordingly with such records as the Receiver General shall particularly apply for.

John Rutherford Esquire Receiver General of His Majestys Quitrents presented the following Memorial.

Additional Memorial humbly offered to His Excellency the Governor and to the Members of His Majestys Council in behalf of the Receiver General.

This Memorialist hath considered with proper attention the answer of His Majesty's Attorney General, to the Memorial humbly offered by the Receiver General and from that answer it seems to be the Attorney General's opinion, That the most eligible method to compel a more regular payment of the Quitrents is by actions of debt against the Tenants, So far indeed he agrees with Robert Jones Esqr his predecessor in Office but there is one paragraph in the Attorney Generals Memorials, which if true, amounts to a direct charge against this Memorialist of the most unjustifiable negligence.

The Paragraph alluded to is the following—“But in those where the parties appeared I have never to this day received from the Receiver General even the amount of each particular demand, so as to enable me to form a single declaration.”

This Memorialist affirms that to the account and name of each particular defendant was drawn out in the same line in figures the amount of each particular demand, how far this enabled the Attorney General to form a Declaration in debt the Memorialist doth not know.

Again he says that, “though I have long since frequently informed him, that where the original Patents were in the possession of the defendant, the Record of those Patents, and the dates of the last receipts would be sufficient proof, the former to be found in the Secretary's Office the latter in the General Receivers own power to furnish, yet he has never thought proper to furnish me with a single document or proof so as to enable me to bring on a single tryal and I am informed that the other suits for Quitrents and which were brought before I came into Office, remain under the same Predicament.” This Paragraph requires explanation.

Not only the King's Attorney but likewise all the Counsel employed in behalf of the Crown were furnished with the dates of the several patents from the Receivers Rent Roll. It was surely the

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business of that Council to obtain what Lawyers call a subpœna Duces Tecum, to the proper Officer to bring the Record into Court because the Original patent must ever be supposed to be in the hands of the Defendants. The Attorney ought to know that the Receiver cannot compel in a Court of Law the Defendant to produce evidence against himself nor can he without process of the Court (which is the Attorney's proper business to apply for) compel the production of the Record.

His Majesty's Attorney General of this Province doth know or ought to know, that from the nature of these demands it is impracticable if not impossible to bring any other proofs or documents to ascertain the demand other than the public Records. If there is any His Majesty's Attorney or the Council for the Crown ought to suggest the nature of such proofs.

When the Attorney asserts that the dates of the last receipts would be sufficient Proof of a demand for Quitrents against the Tenant, he surely asserts without Book. These receipts are in the hands of the Tenants, and if ever produced must be brought in as evidence by the defendant either to diminish or extinguish the demand. In fact it is not once in a 100 times that he can furnish such dates, since he is informed only from his own Books, which tho' kept with the utmost exactness can give no information where the lands continue in the patent consisting perhaps of 100 Acres has been sold in separate parcels or by the will of the Patentees divided amongst his children and transmitted to a variety of purchasers in separate parcels. When he receives Quit rents from such a person for 200 or 300 Acres of Land he cannot bring evidence from what particular patent that parcel has been extracted. However the Attorney General must be convinced that the Receivers Books of Accounts mentioning the day such a sum for Quitrents was received cannot be evidence of the date of the receipt, and if it was such evidence it might serve the Defendant but by no means the Complainant.

Upon the whole the Receiver whenever he gave directions to bring suit against any of the Kings Tenants always gave the date of the patent and the amount of the particular demand along with the name of the Defendant either to the Kings Council or into the Office of the Clerk of the Court where the suit was brought.

Quit rents issuing from lands are created from the grant which the Tenant has of his Lands. This Grant is as much the proof of the Quitrent as a lease for years is of the Rent or Farm. The

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patent seems to be the only evidence of the one as the lease for years is for the other. The lessor and the lessee have each a duplicate of the lease. The patentee has one duplicate of the Grant the Records serve for the other. The Courts of Law cannot compel production of the evidence in the Defendants hands. They can and probably will on motion of the Kings Council compel exhibition of the Records. It is believed that from the very circumstances of the case, this is all the evidence can be brought in a Court of Law in behalf of the Crown. If any other occurs to the Attorney General, he will serve the Crown more effectually by suggesting it, than by preferring vague and unjust accusations against this Memorialist who hath an evident interest in forwarding every measure that can serve to have the Quit rents regularly paid, and therefore will cheerfully furnish every document or proof in his power to that end.

JOHN RUTHERFORD.

The Answer of the Attorney General to the Additional Memorial.

To His Excellency the Governor and the Members of His Majesty's Council.

In answer to the additional Memorial of the Receiver General, I must observe that if any of the many suits now depending for the recovery of Quit rents against the Tenants of the Crown, I know of but three that are committed to my care. In these the dates of the Patents or Deeds and the number of Acres on which the rents accrued are circumstances, I conceive necessary to be inserted in the declaration; and this material information the Receiver General has never thought proper to furnish me with. If this fact therefore is established the charges of ignorance or neglect in not obtaining the proper proofs fall to the ground, unless the Receiver is pleased to point out how I could move a Court to compel the bringing in of Records, when I was totally ignorant what the records were.

In one part of the Memorial indeed the Receiver General Asserts “that he furnished me and likewise all the Council employed by the Crown with the dates of the several patents” but on recollection he begins himself to doubt the truth of this assertion, as in the last paragraph but one he says “he gave them to the Kings Council or into the Office of the Clerk of the Court where the suits were brought.” The inconsistency of his assertions is too obvious to need a comment; I shall therefore only say upon this point, that the Receiver

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has never yet given me the date of a patent or deed in any one instance; and upon inquiry in the Office I found no such information could be obtained there.

I shall give no answer to that part of the Memorial where the Receiver says “I assert that the dates of the last Receipts would be sufficient proof of a demand for Quit rents against the Tenants,” but refer to the paragraph which he alludes to, and which is on the first side of his Memorial, to show the unfairness of the question.

As to the nature of proof though in all cases the Records of the patents or deeds are necessary; Yet in many instances the date of the last Receipts or the time of the last payment, and which I still think the Receiver ought to be able to ascertain, would be of real use, as this species of information would fix the sum really in arrear, and though the Receiver General contends this evidence would only operate in favor of the Defendant, yet I am not able to foresee the injury that would arise from the admission of it; as I conceive the Crown neither wishes or intends to recover a greater sum than what is really due, but I forgot that the Receiver needs no information upon this head; as the law learning disclosed in the last part of his Memorial manifestly discover that he can be at no loss to know what process are necessary to be produced on tryal.

As to the exactness of the Receiver's Books I shall say nothing but with respect to their utility, if, when he receives Quit rents for Lands separated from the patent either by sale or devise, he cannot tell where and what those lands are, and in whose possession, or at what time such payment was made, and which information he says he cannot furnish once in 100 times. His books if intended as a Rent roll are insufficient to that end, and will in most cases prove altogether useless.

When the Receiver General reflects that he has not paid me one shilling of salary since I have been in office, he may perhaps think that I have as well as himself an evident interest in forwarding every measure that can serve to have the Quit rents regularly paid; and he may be assured that if I had it in my power as much as he ought to have it in his, I should cheerfully furnish every document or proof that might contribute to that end, and I therefore wish the Receiver General had made known whence arises the delay that attends the many other suits brought before I came into office by Lawyers of his own choosing, and in which there has not been to this day a single tryal.

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As to the Receivers charging me with preferring vague and unjust accusations against him, I am sure I have given him no cause to entertain so ungenerous an opinion: I have no such intention. I should now have been silent as to his conduct had not his Memorials thus publickly forced me to appeal to facts in vindication of my own.

What the Receiver General intends by his present Application I know not nor is it material. And as assertions without proofs are of little weight should the Receiver think proper to prefer another Memorial upon this Occasion, I should wish to decline, (unless directed otherwise) trespassing again upon the patience of your Excellency and Honors, concious that I have ever been, as I still am, ready to give the Receiver General all the aid of my Office to facilitate the collecting of his Majestys Quit Rents in this Province.

All which is humbly submitted,

THOS. McGUIRE.

———


At a Council held at New Bern 16th March 1773.

Present.
His Excellency the Governor.
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Samuel Strudwick Esquire
The Honble Martin Howard Esquire
and
The Honble Samuel Cornell Esquire

John Rutherford Esquire Receiver General of the Province having complained to His Excellency in Council of the great difficulty he meets with in the Collection of His Majestys Quit Rents arising partly from an opinion which prevailed amongst the people that His Majesty intended to remit the arrears: It was recommended to His Excellency to issue a proclamation to undeceive the people in this respect, and to require them to pay up what is due on pain of being proceeded against according to Law. And the Receiver General was enjoined to exert himself in this behalf.

A Proclamation,

North Carolina—Ss.

Whereas the Receiver General of His Majestys Quit Rents in this Province hath represented the great difficulty he meets with in his collection and the backwardness of some people in general to pay the same grounded chiefly on a report that hath been propagated that His Majesty intended to remit the Arrears for which report

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there is not the least foundation. I have therefore thought fit by and with the consent of His Majestys Council to issue this proclamation to require all persons who are indebted to His Majesty for Quit Rents immediately to pay the same on pain of being proceeded against according to Law for their Default.

Given under my hand &c, dated 16th March 1773.

JO. MARTIN.
God save the King.

His Excellency acquainted the Board that in all probability it would become necessary during the suspention of the Court Laws to issue Commissions of Oyer and Terminer. He proposes to appoint Maurice Moore and Richard Caswell Esquires Commissioners together with the Chief Justice to hold the said Courts which the Board approved.

The Governor desired the advice of the Council in regard to the expediency of issuing a proclamation to enforce the collection of the duty on spiritous liquors brought into the Province by land, which the Board thought highly necessary and that such a proclamation should issue accordingly.

A Proclamation.

North Carolina—Ss.

Whereas by an Act passed in the General Assembly of this Province in the Year 1754 a duty of 4d was imposed on every gallon of rum, wine or distilled liquor brought into this province by land the payment of which duty hath too frequently been evaded I have therefore thought fit by and with the consent and advice of his Majestys Council to issue this Proclamation strictly requiring the payment of the duties imposed by the said Act of Assembly to the Collectors appointed to receive the same and all persons neglecting or refusing to pay the said duties as they accrue will be prosecuted with the utmost rigour.

JO. MARTIN.
God save the King.