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Letter from Josiah Martin to William Legge, Earl of Dartmouth
Martin, Josiah, 1737-1786
May 30, 1773
Volume 09, Pages 655-664

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

North Carolina, New Bern, May 30th 1773.

My Lord,

I have the honor to transmit to your Lordship the Acts passed at the last Session of the General Assembly of this Province being 34 in number.

1st The first and of greatest Consequence is Intituled “An Act for dividing the Province into six several Districts, and for establishing a Superior Court of Justice in each, and for establishing Inferior Courts of Pleas and Quarter Sessions in the several Counties of this Province and regulating the Proceedings therein.” I have already had the honor to observe to yonr Lordship, that this Act is in my opinion liable to objections on the ground of its regulating the proceedings by Attachment in all the Courts inconsistently with His Majesty's Royal Instruction as making Lands subject to it Contrary to the Laws of England and on Account of its extension of the Jurisdiction of the County Courts, under a Constitution by no means corresponding with my wishes and little conclusive to

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their reformation. I was induced to pass it under a clause of suspension as it contained the only plan for the constitution and regulation of Courts of Justice that this people could be brought to adopt, that if contrary to my belief it should meet with His Majesty's Allowance, it might immediately lay open the Courts of Justice which are now only remedial of Criminal Wrongs and offences by virtue of Commissions of Oyer and Terminer and Gaol delivery that I have lately issued to try the Prisoners in the several Gaols, and as means to preserve the peace of the Country. The Doctrine of Attachments is little understood here, the Advocates for the mode of proceeding established by this Act, maintain that it corresponds as nearly as may be with the practice of the Trading Towns in England, since the time for European Debtors to appear to attachment is enlarged to twelve months, which is the only essential alteration made in this point, considering the Circumstances of the Country, the doubtfulness of the subject of Attachments and the expediency of some plan for the regular Administration of the Laws, together with His Majesty's allowance to me, by His Royal Instruction, to pass a Law of a Tenor Contrary to its description, with a suspending clause. I hope your Lordship will think I am justified in giving my assent to this Act, in a shape so ineffectual.

2nd Intituled An Act for regulating the Town of Hertford and other purposes Is calculated for enlarging the time limited for saving Lots taken up in the said Town by sundry Acts passed in the years 1758, 1762, and 1768, for regulating its police, and encourageing its growth, and for taxing the County of Perquimans for the support of a Ferry to the said Town over Perquimans River, which seems well designed to answer the ends proposed.

3rd Intituled An Act to regulate and ascertain the Fees of the Clerks of the Pleas in the Superior and Inferior Courts in this Colony, directing the method of paying the same and for taxing Law Suits, which is an exact Copy of the Act of the same Title passed in the year 1770 that is now expired, and which it is calculated to continue for six months, it was made of so short duration to correspond with the Acts for Constituting Superior and Inferior Courts that were rejected.

4th Intituled An Act for the relief of Insolvent Debtors with respect to the Imprisonment of their persons, repeals an Act passed in the year 1749 Intituled An Act for the relief of poor Debtors as to the

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Imprisonment of their persons, and an amendatory Act of the year 1762, & is introductory of some good regulations for doing justice to creditors and preventing frauds.

5th Intituled An Act for appointing Public Treasurers and directing their duty in office. The Act of 1768 for this purpose expiring at this time, This Act containing some new and useful arrangements with respect to the keeping regular Accounts, and obliging Sheriffs to account for public Monies was passed.

6th Intituled An Act for annexing the North part of Rowan to the county of Surry, and the further Establishing and erecting the Parish of Dobbs into a separate and distinct parish, which passed with my sincere approbation as it is calculated for relieving the settlement of Moravians, who are a sober, orderly and good people from many inconveniences to which they were exposed by the division of their lands between the two counties of Rowan and Surry.

7th Intituled An Act for building a Gaol in Beaufort county. This Title fully explains the designs of the Act, the plan for defraying the charge of carrying it into Execution is by a County Tax, the common mode in such cases.

8th Intituled An Act to exonerate John Tygart and Francis Adams, late Sheriffs of Tryon County from being chargeable with the collection of Taxes taken into South Carolina. A great part of the county of Tryon by the late established Boundary Line being included in South Carolina, An Act of this nature for the indemnification of the Sheriffs, who have not authority to levy the Taxes on the Inhabitants now of another Province, became just and necessary.

9th Intituled An Act for laying out and Establishing a Public Road from Charlotte Town in Mecklenburg County to Bladen Court House. The utility of such communications as is designed by this Act and their tendency to civilize and improve this Country are apparent and the mode of executing the work is such as hath been adopted in all similar Cases, and is both equal and easy in point of Expence.

10th Intituled An Act to continue an Act passed the fifteenth day of January in the year of our Lord 1771, intituled an Act to alter the method of working upon the Roads in the County therein mentioned, which Title so fully explains it, that no room is left for observation upon it.

11th Intituled An Act to prevent making Hedges across great Contentnea Creek, little River of Pee Dee, Rocky and Uhara Rivers. The design of this Act is to lay a penalty of Twenty pounds on any

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person who shall raise an hedge for the stopping of Fish, or to interrupt the navigation of the Creek and Rivers therein mentioned.

12th Intituled An Act to alter the method of working upon the Public Roads in the County of New Hanover. This Act makes a more proper division of the County into districts than is made by the general Act recited therein and has allotted proper Commissioners to superintend each of them, it repeals the said recited Act so far as it relates to the County for which this is particularly calculated.

13th Intituled An Act to regulate the attendance of the Minister of Christ Church Parish, at the parish Church in New Bern and at the several Chappels in the said parish. This Act is calculated to relieve the Minister of the parish therein mentioned, of insupportable toil and labour, and to make his attendance more constant at the parish Church in New Bern, which was heretofore more than half the year without a Clergyman.

14th Intituled An Act for directing the method of appointing Jurors in all Causes Civil and Criminal. The Design of this Act is fully explained by its Title, and seems well calculated to answer its end, its duration was made so short as six months, to correspond with the Temporary Court Acts that were rejected.

15th Intituled An Act to render more useful and advantageous the navigation of Trent River. This Act is calculated to execute a design of great public utility; the proprietor of the Land, through which it is designed to cut a Canal to shorten and facilitate the Navigation of the river, is unknown, but as it tends manifestly to his advantage I did not conceive that an Act of such nature should be rejected on that consideration.

16th Intituled An Act to encourage the destroying of Vermin in the several Counties therein mentioned. This Act is of the same nature of those that obtain in other Counties for the same purpose; the destruction of the nuisance is purchased by rewarding the destroyer at the Common expence of the County, that is taxed by the Inferior Court to raise money for this purpose.

17th Intituled An additional Act to an Act Intituled an Act for Establishing a School House in the Town of New Bern. This Act is designed to declare certain Lots reserved to the School by the Act to which this is supplemental for a place of exercise for the Students, without any buildings thereon that are required by an Act of the year 1756, Intituled An Act for the better regulation of the Town of

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New Bern for securing the titles of persons who hold Lots in the said Town.

18th. Intituled An Act to prevent hunting with a Gun by firelight. This Act is designed to prevent the destruction of Cattle that has been made on pretence of hunting for Deer. It lays a penalty on persons guilty of this practice of five pounds Proc. Money for every offence and Slaves it subjects to a Corporal punishment and the forfeiture of their Guns. It also repeals an Act intituled, An Act to prevent hunting for and killing Deer in the manner therein mentioned passed in the year 1770.

19th. Intituled An additional Act to an Act intituled An Act for Amending an Act for the better regulation of the Town of New Bern, and for securing the Titles of persons who hold lots in the said Town. This Act is supplemental to several Acts passed in the year 1757, 1760, and 1771, for amending the Act recited in the Title hereof passed in the year 1756 and is introductory of many new and good regulations, for the improvement, security and good government of the Town, that have been much wanted.

20th. Intituled An Act for laying out a Public Road from Dan River through the Counties of Guilford, Chatham and Cumberland to Campbelton, and for a Public road from the Shallow Ford in Surry County to join. This Act is calculated to open communications at the charge of the several Counties through which they pass to Campbeltown on the Northwest Branch of Cape Fear River, which is growing fast into consideration, and promises to be the greatest Mart of the Western Parts of this Province.

21st. Intituled An Act to amend an Act passed at Newbern in the year 1771, intituled an Act for laying out a Public Road from the frontiers of this Province through the Counties of Mecklenburg, Anson, Rowan, and Cumberland. This Act repeals so much of the Act recited in the Title thereof as appointed Commissioners for carrying it into execution who having been delinquent in their duty it appoints others in their room.

22nd. Intituled An Act for Establishing a Town on the Lands of Isaac Jones lying on the North West Branch of Cape Fear River in Bladen County. This Act is calculated for Establishing an Entree port between Wilmington and Campbeltown that will be advantageous to the Commerce and Navigation of the North West Branch of Cape Fear River, and is designed at the request and with the approbation of the Proprietor of the soil, wherefore it was conceived

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not to be of the nature of Acts alluded to in His Majesty's Instruction Artle 21.

23rd. Intituled An Act to empower the Executors of John McKildo late Sheriff of Tyrrell County to collect the Arrears of Taxes due for the said County in the years therein mentioned. This Act is designed to empower the Securities of the deceased Sheriff to collect the Taxes that became due in this County during his Sheriffalty towards their indemnification.

24th. Intituled an Act for granting a Bounty on the exportation of Pot and Pearl Ash. This Act has a tendency to encourage the manufacture of those valuable commodities by granting a Bounty of eight pounds [???] ton on the former and fifteen pounds on the latter, and it may be hoped will induce the People of this Country to make these Articles that will enable them to make remittances to Britain, for means of doing which they are in great need.

25th. Intituled An Act to amend An Act for settling the Bounds of Lands. This Act is designed to amend an Act of utility recited in its Title passed in the Year 1723.

26th. Intituled an Act to amend an Act intituled an Act for the regulation of the Town of Hillsborough. This Act regulates the mode of repairing the Streets in the said Town and empowers the Commissioners to lay a limited Tax for defraying thereof.

The Title of this Act recites that of a Law that has no existence. The Act to which it alludes is intituled An Act to amend an Act Intituled an Act for Establishing a Town on the Land formerly granted to William Churton, Gentleman, lying on the North side of Enoe River in the County of Orange.

27th. Intituled an Act to amend an Act for appointing Commissioners to build a prison, pillory and stocks on the lot whereon the Court House now stands in Duplin County. The Commissioners appointed to execute the above recited Act, having neglected their Duty, this Act is intended to appoint other Commissioners to see the same compleated.

28th. Intituled an Act to continue an Act for the more speedy recovery of all Debts and Demands under five pounds proclamation money within this Province. This Act continues only the Act recited in the Title for six months, being made commensurate to the Court Acts rejected.

29th. Intituled an Act for the relief of Persons who have or may suffer by their deeds and mesne conveyances not being proved and

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registered within the time heretofore appointed by Law. This Act is apparently well designed, but since I passed it, I find that under a specious Title it is calculated to indemnify Persons who are desirous to defraud His Majesty's Revenue, by withholding their Quit Rents by keeping the Receiver General in ignorance of the Lands they hold; it is an old stratagem that has been successfully practised from time to time.

30th Intituled an Act for repairing the Gaol for the District of Halifax in the Town of Halifax. The intention of this Act is fully set forth in its Title, and it is to be executed in the usual manner by Commissioners therein named and the charge defrayed by a Poll Tax in the several Counties composing the District.

31st Intituled an Act to continue the Tax imposed by an Act intituled an Act for building a Court House in the Town of Salisbury for the District of Salisbury. The Tax imposed by the afore recited Act passed in 1771 having been insufficient for the purpose intended, the same is hereby continued for one year longer.

32nd. Intitled an Act to dissolve the Vestry in Unity Parish in Guilford County. This Act was passed in consequence of an illegal election made of the Vestry to the great disquiet of the Presbyterians in the said Parish.

33d Intitled an Act for erecting a public Gaol and gaoler's House in the Town of Wilmington for the district of Wilmington. The Design of this Act is obvious and it is to be executed like others of the same nature by Commissioners and the expence of the buildings paid by a Poll tax on the Counties of the District.

34th Intitled an Additional Act to an Act for erecting a Court and Prison, for the use of the District of Edenton. The Tax imposed for these purposes by the above recited Act being inadequate it is hereby further continued for three years, and the surplusage thereof if any is directed to be paid back in just proportions to the Counties where it was levied.

I now submit to your Lordship's Consideration, the several Bills which I rejected at the last session of the General Assembly with the reasons I assigned for so doing, which I flatter myself will justify my conduct therein.

The First is intituled an Act to amend an Act for the regulation of the Town of Salisbury, securing the Inhabitants in their Possession and to encourage the Settlement of the said Town which I

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rejected as derogatory to His Majesty's Instruction inasmuch as it gives power to Commissioners to appoint Fairs and Markets.

2nd Intituled an Act for cutting a navigable Canal from Mattamuskeet Lake to the head of Wesokin Creek in Hyde County, Which I rejected as affecting private property, and containing matter of a new and extraordinary nature by giving power to Commissioners to lay a land Tax, it being contrary to His Majesty's Instructions to me to pass such a Bill without a suspending clause.

3rd Intituled an Act for Establishing the Court House of the County of Mecklenburgh in the Town of Charlotte, and other purposes, which I rejected for its inconsistency with His Majesties Instructions as containing matters foreign to its Title, and that have no relation to each other.

4th Intituled an Act to continue an Act to direct Sheriffs in levying Executions, and the disposal of Lands, goods and chattles taken thereon, Which I rejected as prejudicial to commerce, and injurious to the Credit of this Colony, as it enables the unjust Debtor to pay his Creditors with Commodities of imaginary, but no real value.

5th Intitled an Act to Establish Inferior Courts of Pleas and Quarter Sessions in the several Counties of this Province. This Act was calculated for six months duration, and contained the exceptionable Regulation relative to Attachments, I therefore rejected it and because it was nugatory in itself as referring to and depending on the Superior Court Law, that had no existence.

6th Intituled An Act to prevent malignant and infectious distempers being spread by shipping importing distempered Persons into this Province, I rejected because the fines and penalties imposed by it are not reserved pursuant to the Royal Instructions to His Majesty, His Heirs and Successors for the public uses of the Province, or the support of the Government thereof.

7th Intituled An Act to empower Commissioners therein named to build a Bridge over Trent River, Which I rejected as injurious to private property by giving power to Commissioners arbitrarily to take timber from the adjacent Lands without consent of the Proprietors and without allowing them any consideration for it.

8th Intituled An Act to amend the Staple of Tobacco and to prevent frauds in His Majesty's Customs, I rejected because it subjects the officers of His Majesty's Customs to so large a fine as five hundred pounds Proclamation money, for neglecting an extra service for the performance of which it allots them no Fee or reward.

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9th Intituled An Act for Establishing a public Seminary of learning in the Western part of this Province, which I rejected as repugnant to His Majesty's Instructions by vesting the Trustees of the Institution with the power of appointing Masters without the licence or participation of His Majesty's Governor.

10th Intituled An Act for erecting part of the Counties of Halifax and Tyrrel into one distinct County and Parish and for other purposes, Which I rejected as introductory of Regulations relating to Members of Assembly inconsistent with His Majesty's Instructions, which I have already stated to your Lordship in my dispatch No 8.

11th Intituled An Act to prevent the crime of horse stealing, which I rejected as contrary to the Laws of England, and founded in my opinion on mistaken policy, as by the seeming mitigation of the Laws rigour to offenders on the first conviction in mercy designed and which is always in the power of the King's Prerogative, the Criminals marked out to reproach by the punishments allotted in this Act and rejected on all hands would loose every sense of shame, become desperate and abandon themselves to the perpetration of every kind of enormity, dreading death (the Law's utmost penalty) less than existence held at the expence of everything that can make life desirable.

12th Intituled an Act directing the Punishment of those Persons who shall counterfeit the Gold and Silver Coin and Debenture Bills circulating in this Province, I rejected for the same reasons as the former.

13th Intituled An Act for preventing Persons who by Devise or otherwise are invested with a Life Estate in any Slave or Slaves or other Goods and Chattels from doing injury to the person or persons in reversion, I rejected because it gives a power over the property of the Subject to the County Court unknown to the Laws of England, and that is beyond those inherent in the Court of Chancery.

14th Intituled An Act to prevent burning woods at unseasonable times of the year in the several counties therein mentioned, I rejected, because it gives power to any man being a Freeholder to burn within certain periods the King's vacant waste or other woods to the manifest injury of His Majesty's property.

15th Intituled An Act to prevent the wilful and malicious killing of slaves, I rejected as I declared with concern, its general scope and design being in my opinion good, but it was inconsistent with

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His Majesty's Instructions to pass it, as it does not reserve the fines imposed by it pursuant to their direction.

16th Intituled An Act directing the Boundary Line between the Counties of Perquimans and Chowan and appointing commissioners to see the same done, I rejected because it does not ascertain the consideration to be paid to the commissioners appointed to carry the Act into Execution, as in other cases of like nature.

17th Intituled an Act for vesting in certain persons therein named two acres of land at the Indian Town in Currituck County, as Trustees for building a Chappel thereon and enclosing a Burying Ground, I rejected with real regret, as it appeared to me to have the laudable design, but it wanted I conceived the forms requisite by His Majesty's Instructions to an Act of that particular nature.

How far in this important part of my Duty I may have acted properly your Lordship will determine, and I trust to your goodness, my Lord, for viewing my conduct with a generous allowance for my short experience in Legislature business. I can only assure your Lordship that I have paid to the best of my judgment and discernment the most fixed attention to His Majesty's Royal Instructions, with such indulgence to the wishes of the other Branches of the Legislature as I thought consistent therewith.

I have the honor to be &c
JO. MARTIN,