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Minutes of the Upper House of the North Carolina General Assembly
North Carolina. General Assembly
December 04, 1773 - December 21, 1773
Volume 09, Pages 706-733

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

North Carolina—Ss.

At an Assembly began and held at New Bern the fourth day of December in the fourteenth year of His Majesty's reign and in the year of Our Lord one thousand seven hundred and seventy three, being the first session of this Assembly.

In the upper House.
Present.
The Honble James Hasell Esquire
The Honble Alex. McCulloch Esquire
The Honble John Rutherford Esquire
The Honble Samuel Strudwick Esquire
The Honble Lewis Hy DeRosset Esquire
The Honble Martin Howard Esquire
The Honble John Sampson Esquire
The Honble Samuel Cornell Esquire

His Excellency the Governor was pleased to command the immediate attendance of the Members of the Upper and lower House of Assembly in the Council Chamber where they accordingly attended and thereupon His Excellency made to both Houses the following Speech, Vizt,

-------------------- page 707 --------------------

Gentlemen of His Majestys Honble Council Mr Speaker and Gentlemen of the House of Assembly,

The state of this Country that I have long beheld with the deepest concern, would have engaged me to meet you, much sooner in General Assembly, if I had consulted only my own wishes to rescue it from the great mischiefs to which it has been exposed, for want of a regular administration of justice, but the difficulties which occurred in framing the Court Acts at the last Session that I had not power to remove, obliged me to wait the determinations of Government which I have received as soon as could be reasonably expected but too late to make an earlier appointment for your meeting.

The Royal disallowance of the Act of the last Session of the General Assembly, for establishing Superior and Inferior Courts of Justice, leaves those fundamental Constitutions, to be modelled again by you, at this Session; the expediency of making them permanent and the good policy of assigning ample and honorable salaries to the Judges, are points I conceive so obvious and essential, that I need not again press them to your consideration. I hope Gentlemen the great importance of such establishments will recommend them to your first attention; that your deliberations upon them, will be guided by that calm temper, which is due to the dissension of matters of so great moment, and concern to the public, and that becomes the dignity of legislative proceedings on all occasions.

With respect to the Law of Attachments that was unhappily the source of so much embarrassment at the last Session of the General Assembly, His Majesty having the most tender and paternal solicitude, for the welfare and happiness of all his people continues disposed to indulge the desires of His Subjects in this Colony, as far as it may be done without violation of the constitution, and is graciously pleased to allow that provision be made here by Law for attachments in cases where the cause of action arises within the Colony; due proof being made upon oath, before such attachment issues, whether original or judicial, that the defendant in the suit has absconded to avoid payment of his debt, and that the ordinary process of Law cannot be served upon him. These, Gentlemen, I am warranted to say, are the Rules governing attachments in the commercial Cities of England and in other parts of Europe and that they do go farther. I trust too Gentlemen they will be found on experience adequate to every good purpose in this Colony.

-------------------- page 708 --------------------

The limitation of the original Jurisdiction of the Superior Courts, and the extension of that of the Inferior Courts of Justice, designed by the Act of the last Session are deemed totally inadmissible, but the Inferior Courts will be allowed power to Judge and determine in all cases to the amount of twenty pounds proclamation money; and their Judgments to be final and without appeal as far as five pounds proclamation money, where Titles to Land, or the rights of the Crown shall not be involved in the question. I hope Gentlemen I need not urge to you the justice and expediency of guarding against the injurious opperation of the Act of Limitations during the suspense of the Courts of Law, which might still highly aggravate the evils of that unfortunate period.

I have thought it proper Gentlemen in order to obviate as much as lies in my power any difficulty upon the important business which is to come before you, to communicate to you freely at the opening of the Session the restrictions by which my conduct must be regulated; that you may take your measures in the first instance accordingly and avoid those delays that are so inconvenient to the Members of the Legislature and which tend only to swell the public expence by protracting your Session to a needless length.

The great number of Criminals found in the various Gaols of this Country immediately after the expiration of the late Court Act evinced but too soon the miseries and the dishonor incident to a people without the restraints of a regular administration of Laws, and obliged me to exercise the power vested in me by His Majestys Royal Commission of appointing Courts of Oyer and Terminer and Gaol delivery for the immediate dispensation of Justice. This measure Gentlemen I have the satisfaction to see has had the most salutary influence towards maintaining the public peace and giving security to individuals when of late licentiousness and disorder under a sense of impunity began to triumph in the misfortunes of this country and to bid defiance to its dormant Laws, alarming His Majestys Subjects for their Dearest rights and threatening the Colony with all the horrors and all the disgrace of uncivilized barbarism. The zeal, uprightness and ability with which the Judges of those Courts have served their Country give them just claim to the best and most public testimonials of my approbation, and I persuade myself cannot fail to recommend them to your particular regard.

It is my duty to remind you Gentlemen that it still remains for you to make effectual His Majestys most Gracious intentions towards

-------------------- page 709 --------------------
the people concerned in the late Insurrection, by passing an Act of pardon and Oblivion with such exceptions as to your wisdom shall seem meet and proper.

The policy of the Legislature of Virginia in the measures it has taken to prevent that most baneful crime of counterfeiting the paper currency circulating in the Colonies of America is so perfectly wise and good that I cannot but earnestly recommend it to your imitation.

Mr Speaker and Gentlemen of the House of Assembly. The long acknowledged utility of Fort Johnston for the protection of a principal and most important port of this province, will I hope render it unnecessary for me to dwell upon the expediency of supporting the establishment of that Garrison and of repairing the Works and Barracks, an estimate of the expence of which I shall lay before you in the course of the Session.

It becomes my duty to recommend to you in the most particular manner to provide for defraying the charges incident to the Courts of Oyer and Terminer that have been held in this province and especially to make provision for the Judges suitable to their eminent services.

Gentlemen of His Majesty's Honble Council, Mr Speaker and Gentlemen of the House of Assembly, As I have nothing more at heart than the honor and welfare of this Colony, it will afford me the highest satisfaction to see the business of the Session conducted with a Spirit of union and dispatch, and conclude with the utmost possible advantage to the Public. Nothing that I can do to promote it shall be wanting, and let me assure you Gentlemen that as I always have been willing, so I shall be ever happy to meet your wishes and to concur in your measures as far as may be consistent with my duty.


New Bern.
JO. MARTIN.

Then the House adjourned till Monday morning 10 oClock.


Monday December 6th 1773.

The House met according to adjournment.

Present.
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis Hy DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alex. McCulloch Esquire
The Honble William Dry Esquire
The Honble Samuel Strudwick Esquire
The Honble Martin Howard Esquire
and
The Honble Samuel Cornell Esquire
-------------------- page 710 --------------------

On motion, ordered that His Excellencys speech be read. The same was accordingly read and taken under consideration and there upon ordered that the Honorable Samuel Strudwick and Martin Howard Esquires be appointed a Committee of this House to draw up an Address in answer to the Governors speech.

Then the House adjourned 'til tomorrow morning 10 oCclock.


Tuesday Morning 7th December 1773.

The House met according to adjournment.

Present.
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alex. McCulloch Esquire
The Honble William Dry Esquire
The Honble Martin Howard Esquire
The Honble Samuel Cornell Esquire

Then the House adjourned 'til tomorrow morning 10 oClock.


Wednesday Morning 8th December 1773.

The House met according to adjournment.

Present.
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alex McCulloch Esquire
The Honble William Dry Esquire
The Honble Martin Howard Esquire
The Honble Samuel Cornell Esquire

The Committee appointed to draw up an address in answer to his Excellencys speech Reported they had prepared the same, which was ordered to be read. The same was read and approved of and that it be entered on the Journals of the House as follows, Vizt,

To His Excellency Josiah Martin Esquire, His Majestys Captain General, Governor and Commander in Chief of the Province of North Carolina,

May it please your Excellency,

We the Members of His Majestys Council of this province, return your Excellency our thanks for your Speech at opening this Session.

We assure your Excellency that we will concur in any Law for establishing the Courts of Justice upon such a plan as may, with His Majestys approbation, be at the same time suitable to the condition and circumstances of this community. To make the establishment of the Courts permanent and so render the salaries of the Judges respectable, are points we sincerely wish to see accomplished.

-------------------- page 711 --------------------

We thank your Excellency for the free and candid communication of those terms upon which the Law for regulating attachments can be made, and we earnestly hope they may be so far reconcilable as not to impede the passing of a Court Law upon which the very being of this province depends.

We bear the fullest testimony to the Wisdom and prudence of the measure your Excellency has taken, in the exercise of His Majesty's prerogative, vested in you by His royal Commission. The necessity of issuing Commissions of Oyer and Terminer was indispensible.

The occasion so justly described in your Excellencys Speech called loudly for that protection which the English Constitution teaches every dutiful subject to look up for and expect from the King, the fountain and distributor of Justice to all; and permit us Sir to add that when we cease to owe allegiance to our Sovereign, then and not till then shall we presume to question the legality of his Commissions of Oyer and Terminer in this province.

We will pay all due attention to the other matters recommended to us by your Excellency and laying aside all useless professions endeavor to pursue the true interest of our Country

JAMES HASELL, P. C.

In the upper House 9th Dec 1773.
By order.
J Hawks Clk.

Received from the Assembly by Mr Oldham and Mr John Johnston the following Message, Vizt.

Gentlemen of His Majestys Honble Council.

This House have appointed Mr Harnett, Mr Knox, Mr Cray, Mr Hewes, Mr Samuel Johnston, Mr Hunt, Mr Lanier, Mr Jarvis, Mr Edwards, Mr Howe, Mr John Campbell, Mr Hooper and Mr Hatch on the public accounts And Mr Martin, Mr Gray, Mr Ashe, Mr Vail, Mr Oldham, Mr John Johnston, Mr Rowan, Mr Allen Jones, Mr Perkins, Mr Hart, Mr Thomas Jones, Mr Field and Mr Simpson, a Committee of this House to settle and allow public claims in Conjunction with such of your Honours as you shall think fit to appoint.

JOHN HARVEY Speaker

In the Assembly 8th December 1773.
By Order
James Green Jr. Clk.

Then the House adjourned 'til tomorrow morning 10 oClock.

-------------------- page 712 --------------------

Thursday Morning 9th December 1773.

The House met according to adjournment.

Present
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alexr McCulloch Esquire
The Honble William Dry Esquire
The Honble Samuel Strudwick Esquire
The Honble Martin Howard Esquire
and
The Honble Samuel Cornell Esquire

On motion ordered the following Message be sent to the Assembly,

Mr Speaker and Gentlemen of the Assembly,

In answer to your Message relative to the Committees this House have appointed the Honorable John Rutherford, Alexr McCulloch, William Dry, Samuel Strudwick and Samuel Cornell Esquires, on the public Accounts, And the Honorable Lewis Hy DeRosset, John Sampson and Martin Howard Esquires a Committee of this House to settle and Allow public claims.

In the upper House 9th Dec. 1773.

By order
John Hawks, Clk.

Then the President attended by the House, waited on His Excellency at the palace and presented him with their address to which His Excellency was pleased to return the following answer Viz

Mr President and Gentlemen of His Majestys Honorable Council,

I return you my thanks for this address. Your approbation of my conduct, is highly acceptable to me, and adds to the satisfaction I derive from conciousness of the rectitude of my own intentions, the firmest confidence of the legality and expediency of the measures I have taken for the public good, and the fullest evidence that they have afforded that protection to His Majestys Subjects in this province for which they were calculated and that it was my indispensible duty to extend to them.

It will give me the truest pleasure Gentlemen, to see provisions made by the Legislature for the lasting establishment of peace and happiness in this Country; and I want no assurance of your good dispositions, to promote His Majestys most Gracious intentions,

-------------------- page 713 --------------------
ever directed to the advancement of the true interests and prosperity of his people.

JO. MARTIN.

New Bern December 9th 1773.

Then the House adjourned till tomorrow morning 10 oClock


Friday Morning 10th December 1773.

The House met agreeable to adjournment

Present
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alexander McCulloch Esquire
The Honble William Dry Esquire
The Honble Samuel Strudwick Esquire
The Honble Martin Howard Esquire
and
The Honble Samuel Cornell Esquire

Then the House adjourned till to-morrow morning 10 oClock.


Saturday Morning 11th December 1773.

The House met agreeable to adjournment

Present
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alex McCulloch Esquire
The Honble William Dry Esquire
The Honble Samuel Strudwick Esquire
The Honble Martin Howard Esquire
and
The Honble Samuel Cornell Esquire

Received from the Assembly by Mr Knox and Mr Benbury

A Bill for dividing this province into six several districts and for establishing a Superior Court of Justice in each of the said Districts. Read the first time and passed

Received from the Assembly by Mr Thompson and Mr Bryan

A Bill for establishing Inferior Courts of pleas and quarter Sessions in the several Counties in this province and for regulating the proceedings therein.

On motion read the first time and passed

Received from the Assembly by Mr Lanier and Mr Person,

A Bill to discontinue the poll Tax of one shilling and duty of four pence per gallon on rum, wine and other spiritous Liquors

Received from the Assembly by Mr Rowan and Mr John Johnston,

A Bill for establishing Triennial Assemblies.

Then the House adjourned till Monday Morning 10 oClock.

-------------------- page 714 --------------------

Monday Morning 13th December 1773.

The House met agreeable to adjournment

Present
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alex McCulloch Esquire
The Honble William Dry Esquire
The Honble Samuel Strudwick Esquire
The Honble Martin Howard Esquire
and
The Honble Samuel Cornell Esquire

Received from the Assembly by Mr Lanier and Mr William Moore,

A Bill of pardon and oblivion to the persons concerned in the late insurrection except such persons as are therein excepted. Read the first time and passed.

Received from the Assembly by Mr Person and Mr Alston the following Bills, Vizt,

A Bill for further continuing an Act entituled an Act for appointing a printer to this province. Read the first time and passed.

A Bill to oblige the prosecutors of offences not capital to pay the costs of prosecution where the defendant shall be acquitted. Read the first time and passed.

A Bill to amend the Staple of Tobacco and prevent frauds in His Majestys Customs. On motion read the first time and passed.

On motion ordered the following Bills to be read, vizt

A Bill for establishing Triennial Assemblies. Read the first time and passed.

A Bill to discontinue the Poll Tax of one shilling and duty of four pence per gallon on rum, wine and other spiritous liquors. Read the first time and passed.

Received from the Assembly by Mr Kenan and Mr Spicer,

A Bill to explain an Act for erecting a Parish in Chatham County by the name of St. Bartholomew. On motion read the first time and passed.

Then the House adjourned 'til tomorrow morning 10 oClock.


Tuesday Morning 14th December 1773.

The House met agreeable to adjournment.

Present.
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alex. McCulloch Esquire
The Honble William Dry Esquire
The Honble Samuel Strudwick Esquire
The Honble Martin Howard Esquire
The Honble Samuel Cornell Esquire
-------------------- page 715 --------------------

Received from the Assembly by Mr Martin and Mr McNair,

A Bill for dividing this province into six several districts and for establishing a Superior Court of Justice in each of the said districts.

On motion read the second time, amended and passed.

Received from the Assembly by Mr Moore and Mr William Person the following Bills, Vizt,

A Bill for appointing Commissioners for building a Court House, prison and stocks for the County of Tryon.

On motion read the first time and passed.

A Bill for the further continuing an Act for the more speedy recovery of all debts and demands under five pounds proclamation money within this province.

On motion read the first time and passed.

Received from the Assembly by Mr Field and Mr Roberson,

A Bill for laying out a public road from William Dents in Guilford County on the trading road to Salisbury.

On motion read the first time and passed.

Received from the Assembly by Mr Nash and Mr Benbury,

A Bill to amend the Staple of Tobacco and prevent frauds in His Majestys Customs.

Received from the Assembly by Mr Rowan and Mr Thomson,

A Bill for establishing Triennial Assemblies.

Received from the Assembly by Mr Rowan and Mr Murfree the following Resolve, Vizt,

Gentlemen of His Majestys Honble Council,

This House have resolved that Henry Castin a soldier who served in the artillery Company in the late expedition against the insurgents, and who received a wound which in all probability will render him a cripple for life, be allowed the sum of ten pounds proc money per annum during his life; and that the Treasurers or either of them pay him the same, and be allowed in their accounts with the Public, and desire your Honours Concurrence thereto.

JOHN HARVEY, Speaker.

In the Assembly 14th December 1773. By order
James Green, jun, Clk.

In the upper House 15th Dec. 1773. Concurred with.
JAS. HASELL, P. C.
By order
John Hawks, Clk.
-------------------- page 716 --------------------

Received from the Assembly by Mr Lanier and Mr Ferq. Campbell

A Bill for establishing Inferior Courts of pleas and quarter Sessions in the several Counties in this Province and for regulating the proceedings therein.

On motion read the second time, amended and passed.

Received from the Assembly by Mr Hunt and Mr Frazier

A Bill to oblige the prosecutors of offences not capital to pay the costs of prosecution where the defendant shall be acquited.

Then the House adjourned 'til to-morrow morning 10 oClock.


Wednesday morning 15th December 1773.

The House met according to adjournment.

Present
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alex McCulloch Esquire
The Honble William Dry Esquire
The Honble Samuel Strudwick Esquire
The Honble Martin Howard Esquire
and
The Honble Samuel Cornell Esquire

Received from the Assembly by Mr Kenan and Mr Reading the following Bills, Vizt

A Bill to amend an Act intituled an Act for repairing the Gaol for the District of Halifax in the Town of Halifax. Read the first time and passed.

A Bill to prevent the crime of Horse stealing.

On motion read the first time and passed.

A Bill to prevent the wilful and malicious killing of slaves.

On motion read the first time and passed.

Received from the Assembly by Mr Picket and Mr Robinson,

A Bill to impower the Justices of Anson County to establish free ferries and lay a tax for defraying the charges thereof.

On motion read the first time and passed.

Received from the Assembly by Mr Field and Mr F. Jones,

A Bill to facilitate the passage of fish in Deep River in Guilford County.

On motion read the first time and passed.

Received from the Assembly by Mr Respess and Mr Salter,

A Bill to repeal an Act made at a General Assembly held at Edenton the twenty first day of August 1740, intituled an Act for the more effectual establishing a Ferry from Bath Town to Core point and from Core point to Bath Town, and for preventing any

-------------------- page 717 --------------------
other Ferry within ten miles of the said Town of Bath, and Core point on the same side of the River.

On motion read the first time and passed.

Received from the Assembly by Mr Knox and Mr Benbury,

A Bill directing the boundary line between the Counties of Perquimons and Chowan and appointing Commissioners to see the same run.

On motion read the first time and passed.

Received from the Assembly by Mr Stewart and Mr Frazier,

A Bill for erecting part of the Counties of Halifax and Tyrell into one distinct County and parish.

On motion read the first time and passed.

Received from the Assembly by Mr Edwards and Mr Martin the following Bills Vizt

A Bill for dividing the parish of Edgecomb in the County of Halifax into two distinct parishes.

On motion read the first time and passed.

A Bill to discontinue the poll Tax of one shilling and duty of four pence per gallon on rum, wine and other spiritous liquors.

Received from the Assembly by Mr Hunt and Mr Robinson Junr, the following Resolve Vizt

Gentlemen of His Majestys Honble Council,

This House have resolved that Mensucan Hunt and Zachariah Bullock who acted as Sergeants at Arms to this House in summoning a number of Witnesses to attend the House at December Session 1770 to give evidence on a charge of perjury, extortion &ca, against Mr Thomas Person one of their Members, be allowed the sum of nineteen pounds ten shillings each. And also that the several Witnesses who attended the House on that occasion be allowed the several sums mentioned against their respective names, Vizt

£ s. d.
William Moore
3
15
James Hester
4
10
Robert Lewis
4
10
William Johnston
3
15
John Willingham
4
Joseph Glover
4
David Mitchell
4
John Williams (son of Danl)
4
-------------------- page 718 --------------------
Harris Gilliam
4
William Potter
4
James Yancey
4
10
William Bullock
4
Pinkethman Hawkins
3
15
Philemon Hawkins
3
15
Lend Henry Bullock
4
Reuben Searcey
4
Nathaniel Henderson
3
15

And that the public Treasurer or either of them pay the same to the said several persons above mentioned and be allowed in their Accounts, to which we desire your Honors Concurrence.

JOHN HARVEY, Speaker.

In the Assembly 14th December 1773.
By order
James Green junr Clk.

In the upper House 15th December 1773. Concurred with.

JAMES HASELL, P. C.
By order
John Hawks Clk.

Received from the Assembly by Mr Rowan and Mr Spicer

A Bill to impower certain Commissioners therein named to dispose of the pews in the Church in the Town of Brunswick and to appropriate the money arising therefrom to the purposes therein mentioned.

On motion read the first time and passed.

Received from the Assembly by Mr Coor and Mr Hatch

A Bill directing the Duty of Sheriffs with respect to insolvent Taxables.

On motion read the first time and passed.

Then the House adjourned till tomorrow morning 10 oClock.


Thursday Morning 16th December 1773.

The House met agreeable to adjournment.

Present
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alex McCulloch Esquire
The Honble William Dry Esquire
The Honble Samuel Strudwick Esquire
The Honble Martin Howard Esquire
-------------------- page 719 --------------------

Received from the Assembly by Mr Moore and Mr Renhart

A Bill for appointing Commissioners for building a Court House prison and Stocks for the County of Tryon

On motion read the first time and passed.

Received from the Assembly by Mr Person and Mr Alston

A Bill to amend an Act intituled an Act for repairing the Gaol for the district of Halifax in the Town of Halifax.

On motion read the second time and passed.

Received from the Assembly by Mr Stewart and Mr Frazier,

A Bill for erecting part of the Counties of Halifax and Tyrrel into one distinct County and Parish.

On motion read the second time and passed.

Received from the Assembly by Mr Coor and Mr Hatch,

A Bill to impower the Commissioners therein named to build a bridge over Trent River on the main road leading from New Bern to Wilmington.

On motion read the first time and passed

Received from the Assembly by Mr. Spicer and Mr Rowan.

A Bill to prevent the pernicious practice of hunting with a gun in the night by fire light and other purposes

On motion read the first time and passed

Then the House adjourned till tomorrow Morning 10 oClock.


Friday Morning 17th December 1773.

The House met agreeable to adjournment

Present
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alex McCulloch Esquire
The Honble William Dry Esquire
The Honble Samuel Strudwick Esquire
The Honble Martin Howard Esquire
and
The Honble Samuel Cornell Esquire

Received from the Assembly by Mr Spicer and Mr Person the following Bills, Vizt.

A Bill for further continuing an Act intituled an Act concerning Vestries.

Read the first time and passed.

A bill to restrain Fishing with seins in New River in Onslow County.

On motion read the first time and passed.

A Bill for further continuing an Act intituled an Act for appointing a printer to this province.

-------------------- page 720 --------------------

On motion read the first time amended and passed

Received from the Assembly by Mr Field and Mr Robinson.

A Bill of pardon and oblivion to the persons concerned in the late Insurrection except such persons as are therein excepted

On motion read a second time amended and passed

Received from the Assembly by Mr Robinson and Mr Picket

A Bill directing the duty of Sheriffs with respect to insolvent Taxables

On motion read the second time and passed

A Bill to impower the Justices of Anson County to establish free ferries and lay a tax for defraying the charges thereon.

On motion read the second time and passed

Received from the Assembly by Mr Haywood and Mr Battle.

A Bill for dividing the parish of St. Marys in the County of Edgecomb into two district parishes

On motion read the first time and passed.

Received from the Assembly by Mr Moore and Mr Renhart

A Bill for appointing Commissioners to build a Court House prison and Stocks for the County of Tryon.

On motion read the second time and passed.

Received from the Assembly by Mr John Johnston and Mr Stanly

A Bill for enlarging the time of saving lots in the Town of Windsor for erecting a Court House, prison and stocks for the County of Bertie in the said Town and other purposes.

On motion read the first time and passed.

Received from the Assembly by Mr Lock and Mr Rutherford the following Bills, Vizt

A Bill for establishing Inferior Courts of pleas and quarter sessions in the several Counties in this Province and for regulating the proceedings therein.

A Bill directing the mode of appointing the Clerks of the pleas and quarter sessions.

On motion read the first time and passed.

A Bill to oblige Vessels having infectious distempers on Board to perform their quarrentine.

On motion read the first time and passed.

A Bill to continue an Act intituled an Act to amend an Act for the regulation of the Town of Wilmington.

On motion read the first time and passed.

Then the House adjourned till to-morrow morning 10 oClock.

-------------------- page 721 --------------------

Saturday Morning 18th December, 1773.

The House met agreeable to adjournment.

Present
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alex McCulloch Esquire
The Honble William Dry Esquire
The Honble Samuel Strudwick Esquire
The Honble Martin Howard Esquire
and
The Honble Samuel Cornell Esquire

Received from the Assembly by Mr Spicer and Mr Davison

A Bill to restrain fishing with seins in New River in Onslow County.

On motion read the second time and passed.

On motion ordered the following message be sent to the Assembly,

Mr Speaker and Gentlemen of the Assembly,

This House upon the third reading of the Bill for establishing Superior Courts are much concerned that the amendments they inserted upon the second reading of that Bill are not approved by your House. They now acquaint you that they must still adhere to those amendments and desire with candor and moderation to justify their conduct by such reasons as they trust will be satisfactory to the good people of this Province.

Your House are requested to call to mind that an Act for establishing Superior Courts containing the same Clauses now insisted upon, relative to attachments and limiting the Jurisdiction of the Superior Courts, passed last Session of Assembly with a suspending Clause, and was transmitted by His Excellency the Governor to His Majesty for his Royal assent. Your House has this Session been fully informed of His Majestys disallowance of that Act, a disallowance expressly grounded upon the very clauses for which you now so earnestly contend. Under these circumstances we confess ourselves at a loss to know what beneficial end or purpose can be answered by either House persisting to pass a Bill containing clauses which the Governor has so recently and solemnly declared to us in General Assembly he cannot pass.

The Bill as amended by this House is conformable to the plan proposed by His Majesty and we are persuaded contains ample provision for the administration of Justice within this province. Two legal Branches of the Legislature thus far approve the Bill but if unhappily your House shall finally withold its assent we shall soon

-------------------- page 722 --------------------
find by sad experience that the wretchedness of this Country is not yet half complete

The necessity of a Court Law is acknowledged by all. Without one this province must soon be deserted by its inhabitants, and an end put to its name and political existence. This House therefore are grieved to find so inestimable a good as the Bill now offers to the people rejected and refused by their representatives, for the sake only of a comparatively small advantage supposed to lie in a mode of proceeding by attachments, a proceeding unknown both to the Common and the Statute Law of the Mother Country, relative only to the private dealings between subject and subject, and if totally extinguished cannot in the remotest manner be said to affect or endanger the civil or political rights of the people.

With regard to the section granting an allowance to the Chief Justice and Attorney General this House inserted it because it was part of the late expired law, not with any view of multiplying the causes which at present so unfortunately divide the different Branches of the Legislature. We shall therefore not embarrass the present Bill by retaining that Section, but will submit a suitable provision for those officers to the Equity and Justice of the General Assembly, but this House cannot consent to a repeal of the Fee Bill passed in 1748 'till an equally sure and permanent allowance is otherwise provided for the Chief Justice.

Such are the Terms upon which alone this House can consent to pass the important Bill now before them, and if acceded to by your House, the alterations will be made in the presence of such of your members as you will be pleased to send for that purpose.

In the Upper House 18th December 1773.

By order
John Hawks, Clk.

Received from the Assembly by Mr John Johnston and Mr Stanly,

A Bill for enlarging the time of saving lots in the Town of Windsor for erecting a Court House, prison and stocks for the County of Bertie in the said Town and other purposes.

On motion read the second time and passed.

Received from the Assembly by Mr Moore and Mr Picket the following Bills, Vizt,

A Bill to amend an Act intituled an Act for repairing the Gaol for the district of Halifax in the Town of Halifax.

On motion read the third time and passed. Ordered to be engrossed.

-------------------- page 723 --------------------

A Bill for appointing Commissioners for building a Court House, prison and stocks for the County of Tryon.

Received from the Assembly by Mr Benbury and Mr Harvey,

A Bill for directing the boundary line between the Counties of Perquimons and Chowan and appointing Commissioners to see the same run.

On motion read the second time and passed.

Received from the Assembly by Mr Simpson and Mr Salter,

A Bill to amend an Act for the laying out a Town on the Lands of Richard Evans in Pitt County by the name of Martinborough and for removing the Court House, prison and stocks into the said Town,

On motion read the first time and passed.

Received from the Assembly by Mr Stuart and Mr Frazier,

A Bill for erecting part of the Counties of Halifax and Tyrell into one distinct County and Parish.

On motion read the third time and passed. Ordered to be engrossed.

Ordered the following Message be sent to the Assembly vizt

Mr Speaker and Gentlemen of the Assembly,

On reading the third time in this House the Bill for establishing Inferior Courts of pleas &c We propose the following amendments Vizt

That the following Clause relative to the Clerk of the pleas deled by you at your third reading be steted Vizt

“And be it further enacted by the authority aforesaid that the Clerk of the pleas, for the time being shall nominate and appoint skillful and discreet persons to serve as Clerks of the several Courts hereby established, and each of the said Clerks shall give Bond &c.”

That the preamble to the Clause regulating the proceedings in Original or Judicial Attachments be deled, and instead thereof the following inserted Viz

“And whereas Original and Judicial attachments have been found beneficial to this province and its circumstances.”

That before Judicial attachments be granted an Oath be made, agreeable to the Royal Instruction, for which purpose we propose that the clause inserted by us at our second reading and deled by you on your third reading be steted.

That the proviso we had inserted at our second reading and you have deled at your third reading for granting appeals for any sum,

-------------------- page 724 --------------------
even under five pounds, where the titles to Land or the Rights of the Crown are concerned be steted, the same being pursuant to the King's instructions.

That the following Clause be added to the Bill.

“And be it further enacted by the authority aforesaid, that the time elapsed since the expiration of the late Inferior Court Law to the passing of this Act, shall not be allowed of in any plea of limitation, any Law to the contrary notwithstanding.”

To which amendments if your House agree be pleased to send some of your Members to see the same made to the Bill.

In the upper House 18th December 1773.

By order
John Hawks, Clk.

Then the House adjourned till Monday Morning 10 oClock.


Monday Morning 20th December 1773.

The House met agreeable to adjournment.

Present
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alex McCulloch Esquire
The Honble William Dry Esquire
The Honble Samuel Strudwick Esquire
The Honble Martin Howard Esquire
and
The Honble Samuel Cornell Esquire

Received from the Assembly by Mr Polk and Mr Everigin the following Resolves Vizt.

Gentlemen of His Majestys Honble Council,

This House have Resolved that Peter Mallet of Wilmington be allowed the sum of seventy five pounds proc money for a certain negro called Biscuit who was outlawed and afterwards shot and wounded by Mr Thomas Jones of New Hanover County in apprehending, of which wounds he died. That the Public Treasurers or either of them pay him the same and be allowed in their accounts with the public, and desire your Honours concurrence thereto.

JOHN HARVEY Speaker.

In the Assembly 18th December 1773.
By Order.
James Green Junr Clk.

In the upper House 20th December 1773. Concurred with.
JAMES HASELL P. C.
By order.
John Hawks Clk.
-------------------- page 725 --------------------

Gentlemen of His Majestys Honorable Council,

This House have resolved that Joseph Hughes be allowed the sum of one hundred and fifty pounds proc money for pursuing, apprehending, money expended, and conveying under Guard to Hillsborough nine robbers, for pursuing Winslow Driggers, James Johnston and William Hodges who robbed the waggon of the said Hughes of goods to the amount of four hundred and thirty six pounds and for apprehending and conveying Winslow Driggers under Guard to the Cheraws in the year 1771. That the public Treasurers or either of them pay him the same and be allowed in their accounts with the public, and desire your Honours concurrence thereto.

JOHN HARVEY Speaker.

In the Assembly 18th December 1773.
By order.
James Green Junr Clk.

Received from the Assembly by Mr Spruil and Mr Smithwick,

A Bill for dividing the parish of St. Mary's in the County of Edgecomb into two distinct parishes.

On motion read the second time and passed.

Received from the Assembly by Mr Ward and Mr Person,

A Bill to amend the Staple of Tobacco, and prevent frauds in his Majestys Customs.

On motion read the third time and passed. Ordered to be engrossed.

Received from the Assembly by Mr Field and Mr Wm Moore,

A Bill to explain an Act for erecting a parish in Chatham County by the name of Bartholomew.

On motion read the second time and passed.

A Bill for further continuing an Act intitled an Act concerning Vestries.

On motion read the second time and passed.

Received from the Assembly by Mr Jordan and Mr Reding the following Bills Vizt

A Bill directing the duty of Sheriffs with respect to insolvent Taxables.

On motion read the third time and passed. Ordered to be engrossed.

A Bill for regulating the Borough of Campbleton and erecting public buildings therein.

-------------------- page 726 --------------------

A Bill for dividing the parish of Edgecomb in the County of Halifax into two distinct parishes.

On motion read the third time and passed. Ordered to be engrossed.

A Bill for further continuing an Act intituled an Act for appointing a printer to this province.

On motion read the third time and passed. Ordered to be engrossed.

A Bill to amend an Act intituled an Act for establishing a Town on the Lands of John and William Russel, minors, sons of John Russel deceased, on the West side of the North West Branch of the Cape Fear River near the mouth of Cross Creek by the name of Campbleton.

A Bill for laying out a public road from William Dents in Guilford County on the trading road to Salisbury

On motion read the second time and passed

Received from the Assembly by Mr Rowan and Mr. Oldham,

A Bill to amend an Act for encouraging the building of public Mills and directing the duty of Millers.

On motion read the first time and passed

Received from the Assembly by Mr Coor and Mr Hatch.

A Bill to impower the Commissioners therein named to build a bridge over Trent river on the main road leading from New Bern to Wilmington.

On motion read the second time and passed

Received from the Assembly by Mr Harvey and Mr Benbury

A Bill for directing the boundary line between the Counties of Perquimons and Chowan and appointing Commissioners to see the same run.

On motion read the third time and passed

Ordered to be engrossed.

Received from the Assembly by Mr Williamson and Mr Stanly the following Bill and Message Vizt.

A Bill to impower Commissioners therein named to dispose of the pews in the Church in the Town of Brunswick and to appropriate money arising therefrom to the purpose therein mentioned.

Gentlemen of His Majestys Honorable Council.

In answer to your message of Saturday last received this day respecting the Bill for Establishing Inferior Courts &c

-------------------- page 727 --------------------

We cannot agree to stet the clause by you proposed relative to the Clerk of the pleas.

We agree that instead of the preamble to the clause regulating attachments the following be inserted Vizt.

“Whereas original and judicial attachments have been found beneficial to the Inhabitants and a right essentially necessary to their Commercial Interests.” but cannot agree to the insertion of any other regulations with regard to the issuing Attachments.

We agree that there be an appeal in all cases above forty shillings.

We agree to the Clause you propose regarding the operation of the Act of limitation and would propose the following addition to that Clause after the limitation Vizt. “or in the computation of time by law allowed for proving Accounts under the Act ascertaining the method of proving Book-debts.”

If you think proper to pass the Bill thus altered we will send two of our members to see the amendments inserted.

JOHN HARVEY, Speaker.

In the Assembly 20th December 1773.
By order
James Green jun, Clk.

Received from the Assembly by Mr Nash and Mr Lanier

A Bill to prevent the willful and malicious killing of Slaves Then the House adjourned till tomorrow morning 10 oClock.


Tuesday Morning 21st December 1773.

The House met agreeable to adjournment.

Present
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Alex McCulloch Esquire
The Honble William Dry Esquire
The Honble Samuel Strudwick Esquire
The Honble Martin Howard Esquire
and
The Honble Samuel Cornell Esquire

On motion ordered the following message be sent to the Assembly, Vizt

Mr Speaker and Gentlemen of the Assembly,

This House taking into consideration your answer to our message respecting the bill for establishing Inferior Courts &c.

We agree to the amendment you propose instead of the preamble to the clause regulating attachments, you will consent to strike out the following words, vizt, “a right essentially.”

-------------------- page 728 --------------------

We agree to your proposed amendment to the clause regarding the operation of the Act of limitation.

If you think proper to amend the Bill agreeable to this message, be pleased to send some of your members to see the same inserted.

Received from the Assembly by Mr Spicer and Mr Smith the following Bills, Vizt

A Bill to impower the Justices of Anson County to establish free ferries and lay a tax for defraying the charges thereof.

On motion read the third time and passed. Ordered to be engrossed.

A Bill to restrain fishing with seins in New River in Onslow County.

On motion read the third time and passed. Ordered to be engrossed.

A Bill for enlarging the time of saving Lots in the Town of Windsor, for erecting a Court House, prison and stocks for the County of Bertie in the said Town and for other purposes.

On motion read the third time and passed. Ordered to be engrossed.

A Bill to prevent Counterfeiting the paper money of this and the other British Colonies and to prevent Counterfeiting the gold and silver coin circulating in this province.

On motion read the first time and passed.

A Bill for the more effectual obtaining an exact list of Taxables for the Town of New Bern, for compelling the Inhabitants of the said Town to pay their Taxes and for other purposes therein mentioned.

On motion read the first time and passed.

Received from the Assembly by Mr Martin and Mr Kenan,

A Bill to continue the several Acts therein mentioned.

On motion read the first time and passed.

Received from the Assembly by Mr Battle and Mr Murfree the following Bills Vizt

A Bill for laying out a public road from William Dents in Guilford County on the trading road to Salisbury.

On motion read the third time and passed. Ordered to be engrossed.

A Bill to continue an Act intituled an Act to amend an Act intituled an Act for the regulation of the Town of Wilmington.

-------------------- page 729 --------------------

On motion read the second time and passed.

A Bill for dividing the Parish of St Marys in the County of Edgecomb into two distinct parishes.

On motion read the second time and passed.

Received from the Assembly by Mr Simpson and Mr Salter,

A Bill to amend an Act for the laying out a Town on the Lands of Richard Evans in Pitt County by the name of Martinborough and for removing the Court House prison and stocks into the said town.

Received from the Assembly by Mr Davison and Mr Moore,

A Bill for altering the dividing line between the Counties of Rowan, Mecklenburg and Tryon.

On motion read the first time and passed.

Received from the Assembly by Mr Polk and Mr Davison,

A Bill for establishing the Court House in the Town of Charlotte in Mecklenburg County and for regulating the said Town.

On motion read the first time and passed.

Received from the Assembly by Mr Person and Mr Hatch,

A Bill for further continuing an Act intituled an Act concerning Vestries.

On motion read the third time and passed. Ordered to be engrossed.

Received from the Assembly by Mr Nash and Mr T. Jones the following Message vizt

Gentlemen of His Majestys Honorable Council,

In answer to your Message of the eighteenth Instant upon the third reading in your House of the Bill for establishing a Superior Court &c,

This House ever attentive to the faithful discharge of the important trust reposed in them by the Inhabitants of this province have in the conduct of every public measure which during this Session hath been subject to our deliberations, had in view the interests and happiness of our Constituents, as the grand object that ought to Govern all our determinations. Appointed by the people to watch over their rights and priviledges, and to guard them from every encroachment of a private and public nature, it becomes our duty and will be our constant endeavour to preserve them secure and inviolate to the present age and to transmit them unimpaired to posterity.

-------------------- page 730 --------------------

We have given to the Bill for establishing a Superior Court the attention it merits and without suffering private Interest, passion or prejudice to intrude themselves upon our enquiries, conscious from our late melancholy experience of the unhappy consequences that attend the extinguishment of the Civil and Criminal Jurisdiction in this province we dread the consequence of the calamity, and submit still to suffer, only to avoid a greater misfortune. We look back upon past grievances without reproaching ourselves for being the cause of them, for an impartial world will do us the Justice to own that we contend for nothing more than what we have 'till lately enjoyed in common with the rest of His Majesty's Subjects in America.

The right of Foreign Attachments is exercised by our Sister Colonies with every latitude requisite to promote their Commercial Interests and to secure the property of their Inhabitants. It is a right essential to every well regulated System of police, and is a security inseparable from Trafick in a province situated as this is, where Trade is the vital principal of its Constitution. Every Circumstance that places us on a more unfavorable footing than our neighbors is to enrich them at our expence, and build the increase of their Trade upon the ruin of our own. You are well aware that we need but look to the Colonies next adjoining us, to discover the invidious distinction, and to find cause to regret that with equal merit we have been less the favourites of Government.

We are fully sensible that the application to His Majesty that an Act passed at the last Session of Assembly for establishing Superior and Inferior Courts in this province with a suspending Clause 'til his Majesty's pleasure was known, with the rights of Attachment reserved to this province in its due extent, has failed to obtain his Majesty's Concurrence. We lament the ill success of our endeavours, but still flatter ourselves that our Sovereign is not inexorable and that he will ever lend an ear to the just complaints of his Subjects. To despair of obtaining redress from the grievances we now complain of would be to impeach the Justice of the British Government and to distrust the virtues of our King and Father.

To sit patiently down in an humble acquiescence under this denial of a security by attachment would render us unworthy His Royal interposition. It would be an implied resignation of the rights of Subjects and a violation of the duty we owe to him as the protector of them. We shall in the most humble manner address his Majesty

-------------------- page 731 --------------------
upon this interesting occasion, and doubt not but that you, equally zealous for the happiness of this Colony, will heartily concur with us in a measure that promises the greatest probability of being accompanied with success; altho' your opinions are different from what this House maintain we shall be happy to find that no passion nor private motives influence your consultations, but that with candor and moderation you pursue the same object tho' by different means.

We doubt not but that in altering the Bill for a Superior Court &c, a most faithful and strict attention has been paid to the plan proposed by his Majesty to his Governor, but this House the most important Branch of the Legislature cannot cenceive that the attachment clauses as proposed by the Council give a remedy equal to the evil they are intended to obviate. The limits within which an attachment so restrained can only operate, are too confined to render that process beneficial. The Oath prescribed as a necessary previous step to obtain it renders it unattainable by every one who is not a stranger to the pleasing influence of truth and horror of perjury.

To swear that a man absconds to avoid payment of his debt, is to pry into the secret movements of the human heart and to assume a province not short of Inspiration.

That you approve the Bill is by no means obligatory upon our Assent, and whatever may ensue from this difference of opinion it will not be difficult to decide whether the calamity is to be charged on this House, contending for a right which the Inhabitants of this Province have for a long time exercised beneficially or to those who urge an Innovation in the Constitution of this province which must deprive its Inhabitants of what it has so long enjoyed unimpeached.

This House for themselves and their Constituents heartily acknowledge the necessity of Court Laws and without anticipating the horrors of a desertion of the Inhabitants of this Colony, and the extinguishment of its name and political existence, they experience in the present unhappy state of this province, sufficient to induce them to wish a change upon legal constitutional principals. The rules of right and wrong, the limits of the Prerogative of the Crown and the privileges of the people are in the present refined Age well known and ascertained, to exceed either of them is highly unjustifiable. Were the attachment Law as formerly enjoyed by us as small an advantage compared with that of having Court Laws as you contend it is, the right we possess to that is equal to the right to a more important object. In the smallest it is bartering the right of a people

-------------------- page 732 --------------------
for a present convenience, in a greater it will be the same crime aggravated only by its circumstances. We observe with surprise that a doctrine maintained by a former House of Assembly is now adopted by you, and that you disclose as your opinion that attachments are not known to the Common or Statute Law of England. What then did Government tender to this people in lieu of their former mode when it proffered to the last Assembly a mode of attachment agreeable to the Laws of England?

This House upon all occasions will avow the necessity of attachments in the manner we lately enjoyed it in point of expedience as well as right. And viewed upon the Scale of Relation to the private dealings between Subject and Subject it has every advantage that can be reasonably sought, as the Trade of this Colony and “its neighbours” is principally confined to that mutual intercourse which you mention.

With respect to the allowance to the Chief Justice and Attorney General inserted by you in the Bill for constituting a Superior Court &c and referred to in your Message, in answer that it is the undoubted privilege of the people and of their Representatives to make a disposition of their own monies. The interposition of the Council with respect to such disposition, is an infringement upon the rights of the people, and an open infraction of a fundamental principle in our Constitution. Sensible of the importance of the Judicial Character, and desirous to provide for those to whom Government may think fit to intrust that department, in a manner worthy the acceptance of Men of Integrity and Eminence.

We conceive the Bill for regulating the Fees of the Chief Justice to be a mode of provision not adapted to the circumstances of this province or to the dignity of that Office; a dependance upon the precarious increase or diminution of Suits, and the uncertainty which attends the collection of the Fees accruing from them, excite an inconvenience which this House are desirous to obviate. And when his Majesty shall be pleased to appoint the Judges during good behaviour, we will shew the most sincere gratitude for such an acquisition both in our profession and practice, and will give a perpetual Salary to such Officers that will do ample Honor to the appointment. In the mean time this House will by a Temporary Law make such provision for the Chief Justice and Associate Judges and Attorney General as shall be suitable to the circumstances of this province.

-------------------- page 733 --------------------

These are the motives which have ruled the conduct of this House, they are submitted to you as circumstances which if they do not induce you to alter your determinations will to you and to the world afford the fullest conviction that we are sincere and determined in the measures we have adopted, and that we are convinced that we cannot in the smallest degree depart from them without a breach of faith to the public, and without debasing our Legislative character. Of course we cannot consent to the alterations you propose in the Bill.

JOHN HARVEY Speaker

In the Assembly 21st December 1773.
By order.
James Green Junr Clk.

On motion the Bill for dividing this province into six several Districts and for establishing a Superior Court of Justice in each of the said districts was

Read the third time and rejected.

Then His Excellency the Governor was pleased to prorogue the General Assembly until Tuesday the first day of March next.