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Colonial and State Records of North Carolina
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Minutes of the North Carolina Council of State
North Carolina. Council of State
July 23, 1781 - December 20, 1781
Volume 19, Pages 855-878

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COUNCIL JOURNAL---1781.


Granville County, Williamsborough, 23 July, 1781.

John Penn, John Butler, Benjamin Seawell and Willie Jones, Esquires, appeared and were qualified agreeably to Law, as Councillors of State.

At the same time the Council elected Pleasant Henderson Clerk, who took the oath of allegiance to the State, and an Oath of Office, to-wit: That he shall keep secret all such matters as shall come to his knowledge as Clerk of the Council except what he shall be permitted to divulge.

The Governor will always lay before the Council of State the matters on which they are to deliberate and advise, and for the more methodical and expeditious despatch of business, he expects they will conclude on each question or proposition in the order in which they shall be proposed, without suffering any other business to interrupt them:

The time assigned for the consideration of the business shall not be broken in upon by applications, but applications shall be received by the Governor’s Private Secretary, which the Governor will lay before the Council in due order.

Where it may be proper to hear any person on an application, a time shall be assigned not interrupting the business of general concern.

The Governor will at all times, when the Council is not in deliberation on matters proposed, be happy to receive the ideas of an of the members on public affairs and he will pay the greatest attention to their respective hints and suggestions.

This mode it is to be hoped will render the Executive business clear and expeditious.


23 July, 1781.

The Governor informs the Council that General Butler, the Brigadier of the District of Hillsborough, reports, that there is no Major for the Militia of the County of Chatham. The Governor therefore proposes that William Cage and Roger Griffith be appointed first and second Majors to fill up the vacancies in that County.

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23 July.

Advice and Opinion of the Council:

The Council unanimously approve of the appointments proposed.


24 July, 1781.

The Governor has the honor to lay before the Council of State the following idea of our public situation, in order the better to evince the utility of the measures he intends to propose and to fix their attention in a proper direction.

The Country is every where unprepared for defence, without arms, without discipline, without arrangements; even the Habits of civil order and obedience of Laws changed into a licentious contempt of authority and a disorderly indulgence of violent propensities; Industry is intermitted, agriculture much decayed, and commerce struggling feebly with almost insuperable difficulties.

The public money is accounted for, the Taxes uncollected or unproductive, the Individuals Creditors to the public unpaid for the produce of their industry for years past, and the Treasury utterly unable to make payment.

This prospect, though very alarming, would still with justice, admit of much high coloring, and in order to apply remedies as in as is in the power of the Executive department, the Governor will lay before the Council some propositions under the following general heads:

1st. Military Arrangements.
2nd. Civil Arrangements.
3rd. Revenue Arrangements.
4th. Abuses and Remedies.
5th. Execution of laws passed in the Assembly.

And when the Council have considered such propositions and entered their opinion thereon, he will be happy if any gentlemen will add any others which may appear to him for public utility under the respective heads here laid down. The Governor will take the same into attentive consideration and propose them for the consideration of Council if he should not evidently perceive them to be improper.

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QUESTIONS AND PROPOSITIONS BY THE GOVERNOR.

24 July.

Military Arrangements.

1. The Governor proposes that general musters be immediately ordered of every Battalion of the Militia of this State, except where the presence of the enemy may prevent it.

2. That exact returns be made of all the fensible men in the State.

3. That all vacancies in the offices of the Militia be filled up.

4. That the Brigades, Battalions and Companies be arranged as nearly as may be in the same manner with the Continental Army and the companies divided into convenient squads.

5. That the officers and non-commissioned officers be taught the new discipline, which they are afterwards to teach to their men.

6. That the non-commisioned officers be so disposed in the settlements that the squads can in general be disciplined every morning.

7. That the Companies be mustered and disciplined every week and the Battalions every month.

8. That an exact return of all the Arms and Cartouch Boxes in the State be procured as soon as possible, distinguishing their kind and dimensions.

9. That as soon as possible every man not already provided, be furnished with a compleat stand of arms, for which he is to pay the prime cost, including all charges, and the arms always to be kept in the best order. Every person refusing to pay to be fined at every muster for not bringing arms and the produce to be applied towards paying for his stand, which when thus paid for shall be delivered to him.

10. That an Armory and Elaboratory be established without delay, to be supplied with workmen from the Militia as much as may be, with tools and materials by purchase if practicable, and that fixed ammunition be prepared and in readiness in such places as may be thought convenient.

11. That places of Arms be chosen and fortified, to be posts of outfits and to cover retreats.

12. The magazines of stores, provision and forage be procured

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and kept in constant readiness, for at least six thousand men, and for this purpose that contributions be levied in proportion to the last list of taxables, to-wit: of the following articles, Grain, flour, flesh, meat, Spirits, Salt, Leather, and Tent Cloth, and that long forage be provided by purchase if practicable, certificates to be given for all the articles levied, and to be discounted in the Specific Taxes as far as they may extend, the residue to be a debt against the public.

13. That one hundred and fifty waggons, with teams and sufficient eqipments, be procured by a contribution similar to that in the above proposition to be always kept in the State service for necessary transportation in order that impressments may be rendered unnecessary.

14. That a force of three thousand men, effective rank and file, be embodied and kept in constant readiness during the time the Enemy shall remain in the Southern States, the draughts to be made in the following order, to-wit:

One thousand to rendezvous in one month.
One thousand in two months.
One thousand in three months.

And to be kept up by a succession of draughts in the like order.

15. That for the future no officer above the rank of a Lt. Col. shall be ordered into actual service with a Battalion of the Militia.


25 July, 1781.

Advice and opinions of the Council.

1. Approved.

2. Approved.

3. The Council was divided in opinion on the point of filling up vacancies of Colonels of Militia, but advise unanimously that all other vacancies be filled up.

4. The Council are of opinion that the Militia Law now in existence sufficiently provides for this proposition.

5. Approved.

6. Not approved of.

7. Not approved.

8. Approved.

9. Approved.

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10. Approved.

11. Approved.

12. Approved.

13. Approved.

14. Approved.

15. Approved.

QUESTIONS AND PROPOSITIONS BY THE GOVERNOR.

Civil Arrangements.

1. The Governor proposes that the Judges of the Superior Courts and Justices of the County Courts and all the civil officers of Justice be enjoined to proceed on their respective duties with diligence and vigor on pain of being punished agreeably to law, and reported as delinquents to the next General Assembly.

2. That they be assured of support and protection in the discharge of their respective duties and required to convene and report to the Governor, in the recess of the Council, their apprehensions of danger or molestation if any they have.

3. That the several Counties be divided into Districts under the Inspection of a Justice of the Peace who shall cause the Constables to make report to him weekly of all new settlers, of all sojourners, and all persons other than the Inhabitants who shall be seen therein remaining or visiting at any house or habitation, to the end that wherever any idle persons shall be harboured, where any outlying or disorderly persons shall be found, or wherever any violences or disorders shall be committed if the offenders be not secured the Governor may have an opportunity of stationing troops there.

4. That sheriffs and all other necessary public officers be appointed.

Advice and Opinion of the Council.

1. Approved.

2. Approved.

3. Approved.

4. Approved.

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QUESTIONS AND PROPOSITIONS BY THE GOVERNOR.

25 July.

Revenue Arrangements.

1. The Governor proposes that all officers concerned in the Collection of the public Revenues be immediately required to make returns of the State of their Collections, to render accounts of all the receipts and payments of their respective offices, to make final settlements with the Treasurer and Auditors respectively, and on failure that the penalties provided by law be severely inflicted, and moreover that the offenders be represented to the next General Assembly and published throughout the United States.

2. That similar measures be taken with all persons who have had public money put into their hands to be expended or paid away for public purposes.

3. That the balances, if any shall appear due, be immediately insisted on, upon pain of the aforesaid penalties.

4. That similar measures be taken with the Collectors and dispensers of public stores and supplies, whether obtained by specific tax, purchase, impressment or otherwise.

5. That an exact account be made of the debts due to and from the State, of advances made by the State, on account of the United States or any particular State, and of advances for the account of the State made by the United States, or any particular States, as far the same can respectively be known and that transcripts thereof be prepared to be laid before the next General Assembly.

6. That the accounts against the United States be transmitted regularly to the office of the Auditor General of the United States and the public vouchers carefully preserved.

7. That all public Commissioners who are authorized to issue certificates for supplies be required to return an exact list of all such as shall be issued in every month, keeping duly entries of all such and making up the return to the last day of each month respectively, in order that the executive power may be enabled to check abuses in this department and to lay before the next General Assembly an accurate state of the public expenditures and resources.

8. That an account be taken of all the families in the State, particularizing the number of free persons, their ages and sexes, and

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their professional employments, to the end, that the political faculties of the State may be ascertained, in order to prevent the State from being subjected to burdens above her proper proportion and abilities.

Advice and opinion of the Council.

All these sections were approved.

QUESTIONS AND PROPOSITIONS BY THE GOVERNOR.

25 July.

Abuses.

The Governor has observed the following abuses to prevail almost universally throughout the State.

1st. Reciprocal violence, plunder and assassinations by Whigs and Tories.

2nd. Arbitrary and violent proceedings by officers and individuals.

3rdly. Negligence of duty, and of orders in every department.

Lastly. Prisons neglected, and many full of prisoners who have had no trial or chance of releasement.

QUESTIONS AND PROPOSITIONS OF THE GOVERNOR.

25 July.

The Governor proposes the following remedies.

1. When a sufficient force shall be assembled and properly disposed, then that a Proclamation issue to the settlements where the disaffected have inhabited or may inhabit, and where they have assembled or may assemble, requiring all persons except such as may be employed in the service of this State or the United States or any of them, to repair within ten days of the date of the Proclamation to their respective homes, in Peace, or to the head quarters of such detachment of Troops as shall be nearest to them, or to the head quarters of some detachment of Troops and declaring that all such as shall obey the said Proclamation shall be pardoned for all past offences and protected from any violences on their persons and properties, excepting such as have been the heads and leaders of parties who have at any time assembled to make opposition to the

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Government of this State, or to the arms of this State, or of the United States; and such as have been guilty of wilful and deliberate murder, of rapes or house burnings, and such as have committed offences not immediately connected with the War, all such to be left to the Laws of the State in the ordinary course of Justice and the ordinary mode of suing for money. And that such as shall neglect or refuse the said Proclamation shall be considered as enemies and treated with all the rigor of the martial Law. That their families and connections shall be immediately sent out of the State and all their property confiscated. And providing that the said Proclamation shall not effect the Civil Remedy of any person who may have suffered by depredation; that when this business shall be effected the civil regulations and arrangements be established and maintained in the settlements of the disaffected and such settlements afterwards attentively watched.

2. The remedy for the second is the exact and rigorous execution of the Laws against such officers and other persons as offend, and after the above measures no excuse could remain for their arbitrary violence.

3. The third is only to be remedied by vigilance and vigour in the execution of adequate Laws.

4. For the fourth, the Courts must be enjoined to repair the Goals and Commissions of Oyer and Terminer and General Gaol delivery ought to be issued immediately to such districts as the circumstances of the State admit and require.

Advice and Opinions of the Council:

All four sections approved.

QUESTIONS AND PROPOSITIONS BY THE GOVERNOR.

25 July, 1781.

Execution of Acts Passed by the General Assembly.

The first Act of the General Assembly is “An Act for the more speedy trial of all persons charged with Treason or misprision of Treason.”

If this Act shall be executed in its full extent, a Judiciary power will be enacted, composed of persons chosen at the Will and Pleasure

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of the Governor and altogether dependent on him and the General Assembly.

This Judicatory will have the Supreme power of life and death and the consequences of attainder, and will be a precedent for erecting courts of justice, the Judges of which must be entirely dependent on the Legislature, and may be made the instrument for executing tyrannical laws if ever the Legislature should become so corrupt and wicked as to enact them, and thus civil liberty would be deprived of its surest defences against the most dangerous usurpations, that is the independency of the Judiciary power and its capacity of protecting Individuals from the operation of Laws unconstitutional and tyrannical.

The fourth section of the declaration of rights declares “that the Legislative, Executive and Supreme Judicial powers of Government ought to be forever separate and distinct from each other.”

The thirteenth section of the Constitution or form of Government requires “that the General Assembly shall by joint ballot of both Houses appoint Judges of the Supreme Courts of Law and Equity Judges of Admiralty, and Attorney General, who shall be commissioned by the Governor and hold their offices during good behaviour.”

The Judiciary power which this Act attempts to set up is limited to a temporary existence, and its creation by act of the Legislature which may, even was it not limited, be repealed at pleasure, therefore it is dependent upon the Legislative power and not separate and distinct as the declaration of rights specifies.

The Judges are to be appointed by the Governor at his discretion consequently he may choose persons who may be prepared to condemn any individual whom he shall suggest. Therefore they are dependent on the Executive power, and not separate and distinct as the declaration of rights says the Supreme Judicial power ought to be.

This Judicatory having the ultimate power of life and death is in effect supreme, for no control can operate in time to prevent the execution of its sentences. A sentence which subjects the individual to capital punishment and his property to confiscation.

The Judges in this Judicatory are not chosen by joint ballot of both Houses nor do they hold their Commission during good behaviour; they therefore cannot be such as are constitutionally qualified

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to exercise supreme Judicial powers. In short if such Courts, with powers of Life and Death, can be erected by Act of Assembly nothing can at any time hinder the Assembly from voting itself perpetual and making it high treason to dispute such usurped authority, and then instituting such Courts as these under consideration to condemn and execute all who might oppose their Tyrrany.

I am extremely sensible of the Confidence placed in me by the General Assembly in vesting such a Trust in me, but I am certain I should not merit that confidence, was I to execute a power which enables me to be a Tyrant, and lays a broad foundation for a Structure from whence Civil Liberty may be demolished.

The great weight and urgency of the public affairs, which pressed their attention prevented their seeing it in the light in which to me it is most clearly evident. Had it appeared in the same to them, I am persuaded they would not have entrusted it to any human being, nor would have required me to violate a Constitution from whence only they and I derive any powers among our fellow citizens, and which they so solemnly enjoined me to support and defend, when they invested me with the Goverment.

Convinced as I am that the execution of this power would afford a most dangerous precedent, and that the General Assembly had no Constitutional authority to invest me with it, and if they had, sensible as I am of the Imperfections of human nature, I dare not undertake it. I feel myself under the necessity of declining the execution of a power so repugnant to my principles as a Citizen of a free Republic and so contrary to my Ideas of the duty I owe the people as their Chief Magistrate.

But in order that the purposes of the Act may be answered as nearly as my powers will admit I propose issuing Commissions of Oyer and Terminer to the Judges of the Land agreeably to the Laws already promulgated, and committing to them the trial of offenders, and the further execution of this Act.

Advice and Opinions of the Council:

The Council are of the opinion that the fifty-third section of an Act passed at New Bern in the year 1777 entitled “an Act for establishing Courts of Law and regulating proceedings therein,” is sufficient to answer the designs of the General Assembly.

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Resolved, That the Governor be advised to carry the same into execution agreeably to his proposition.

QUESTIONS AND PROPOSITIONS BY THE GOVERNOR.

Execution of Acts, &c.

The next Act requiring the special consideration of Council is an Act to enable the Governor, with the advice of the Council, to purchase Tobacco for the purpose of obtaining Arms.

The Governor is of opinion that the necessity of procuring Arms and warlike Stores is evident, and therefore proposes that this Act be carried into execution without delay.

He therefore asks the Council, if it is their advice, that he purchase, borrow, or if absolutely necessary, impress so much Tobacco or other Exportable produce as may be sufficient for carrying into effect the purposes of the said Act.

Advice and opinion of the Council:

Approved.

QUESTIONS AND PROPOSITIONS BY THE GOVERNOR.

25 July.

Execution of Acts, &c.

The next is an Act directing the duty of Naval Officers and preventing the exportation of provisions for a limited time, &c.

This Act prohibits the Exportation of Provisions except by permissions from the Governor with the advice of the Council.

Exclusive of the bad policy of restraining the exportation of productions which are the fruit of industry, there are many reasons in some degree peculiar to our Country which prove the restraining of exportations of provisions to be ineligible.

They are in much greater abundance in the Maritime part of the State than is necessary for our own consumption. Those parts are so remote from the most probable theatre of war that no transportation by land could convey them thereto. The surplus must therefore be useless to the public and must perish in the hands of the

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proprietor who nevertheless has heavy burdens to bear. If they remain in the State the enemy can, if they want them, come and take them, & either consume them in our Country or export them on their own account. This may prove an allurement to the Enemy and be a means of bringing the War into our Country, and in our State it will not be very soon possible to give them any opposition.

The Council are requested to give their opinion, whether it be advisable to permit the free exportation of provisions.

Whether any peculiar species of provisions ought to be excepted.

If any, what should be excepted.

Advice and Opinions of the Council:

The Council are of opinion and advise that Corn and Peas may be exported, but Beef, Pork, Wheat, or Flour be not exported but by particular agreement with the Governor, for the purpose of importing Stores for the use of the Army and Salt for the good people of the State.

QUESTIONS AND PROPOSITIONS BY THE GOVERNOR.

25 July, 1781.

Execution of Acts, &c.

The next Act is an Act for drafting the Militia of this State to reinforce the Southern Army.

All but the last section is in train for execution.

As the rapid movements of the enemy, and other pressing exigencies of the War may render it necessary to march such as may be in actual service out of the State at the times when the Council may not be sitting nor can be convened, the Governor asks the advice of the Council on the expediency of marching such Militia as are or may be in actual service to any part of the Southern Department, comprehending the States of Virginia, North Carolina, South Carolina, and Georgia whenever the circumstances of war shall make it prudent or necessary.

Advice and Opinions of the Council:

The Council think it inexpedient to advise the marching of the Troops in the extensive manner proposed.

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QUESTIONS AND PROPOSITIONS BY THE GOVERNOR.

26 July, 1781.

The Governor requested the Council to take into consideration the following particulars.

The enemy have forces in each of the States to the Northward and Southward of this and are in capacity, from their numerous cavalry, to make rapid approaches and to enter it on either side.

The disaffected who infest this State have their covers and retreats, chiefly on and near the Southern frontier, and may with ease pass over the limits.

Beyond the Southern and Northern limits of the State are Rivers which afford grounds for Posting an Army advantageously either for attack or defence.

The Governor proposes, as soon as the forces already advised by the Council to be raised can be in readiness, to attack the disaffected in their quarters and also if the enemy should attempt to penetrate this State, either from Virginia or South Carolina, to give them what opposition he can at the passes formed by the waters of the above mentioned Rivers, and for such purposes it will be necessary to march or take positions beyond the limits of the State.

It seems to be a prevailing opinion that Militia cannot be marched beyond the limits of the State without an Act of Assembly to authorize it.

The Assembly have authorized by an Act the Governor, with the advice of the Council, to march or order a force not exceeding four thousand to any part of the Southern department which comprehends all to the Southward of Potomac.

It may often be necessary either for pursuing or retreating to manoeuver on a larger scale than the bounds of the State will admit, and it would be inconvenient, nay dangerous, that an Army should be restrained by an Ideal line until Council should be convened from a great distance to permit their passing it. While an enemy might be in sight at liberty to manœuver, make dispositions and attacks at pleasure, and consequently have a manifold advantage; the dilemma in which the commander of the Army, so restrained would be involved, must be extremely distressing. If he passes the line his troops may lawfully disband, if he does not he may be routed or cut to pieces or, at the best, he may be obliged to forego very critical

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and important advantages while he must suffer the Enemy to avail themselves of the most favourable movements and positions.

The Governor abjures the Idea of marching, or ordering the Troops of this State beyong its limits, for any purpose other than the peculiar defence thereof, without particular advice of Council, but he conceives that without a power to pass the limits in order for the taking advantageous positions, the pursuing an enemy, or making a necessary retreat the Army may be endangered and important opportunities may be lost before the Council can be consulted.

The advice of Council is particularly necessary on this subject, because operations are necessary on and near the frontiers, especially the Southern; they will therefore be pleased to give their opinions on the expediency or inexpediency of passing the limits with the Troops already advised to be raised, should the same be found necessary by the Commanding officer, either for the better defending the State or more effectually subduing the disaffected.

Advice and Opinion of the Council:

The Council are sensible of the necessity of the Army’s passing the Limits of the State under certain circumstances, and consent to the measure, provided it be done for the defence of the State, or should become necessary in pursuing or retreating from the Enemy.

QUESTIONS AND PREPOSITIONS BY THE GOVERNOR.

26 July, 1781.

The Governor requests the advice of Council on the Resolution of the General Assembly recommending a Proclamation of Grace to the Militia delinquents.

Upon what conditions is it advisable to issue such proclamation?

Advice and Opinions of the Council:

The Council think it advisable, on condition that the delinquents serve twelve months in the Continental Army, that all other penalties be remitted.

JOHN PENN, President:
WILLIE JONES,
B. SEAWELL,
JOHN BUTLER,
A Copy.
Teste:
P. Henderson, Clk. Cl.

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At a meeting of the Council held at Nutbush, Granville County, September 19th, 1781.

Present:
The Honble. John Penn, President;
Willie Jones,
Whitmill Hill &
Benj. Seawell, Esquires.

Whitmill Hill, Esquire, appeared and took an Oath of Allegiance to the State and an Oath of office.

On the application of John Tillery for an escort to guard a number of waggons loaded with ammunition for General Greene,

Resolved, That Col. Joseph Taylor be informed that the Council are of opinion that he should furnish a Guard of twenty-five men as far as Salisbury for the above purpose.

The Council being informed by John Penn, Esquire, that he had written to the Marquis de Lafayette and the Governor of Virginia, requesting that they would furnish this State with a quantity of Arms, as far as 2,000 if they could possibly be spared, the Council approve of the same.

JOHN PENN, President;
WILLIE JONES,
WHITMILL HILL,
BENJAMIN SEAWELL.
A Copy,
Teste:
P. Henderson, Clk. Cl.


At a meeting of the Council at Col. Williams’, in the County of Granville, October the 5th, 1781.

Present:
The Honorable John Penn, President;
Willie Jones,
Whitmill Hill,
Benjamin Seawell and
Spruce McKay, Esquires.

The Honorable Alexander Martin, Esquire, Speaker of the Senate, appeared and took the Oath of Allegiance as Governor, Captain-General and Commander-in-Chief in and over the State for the time being.1

Spruce McKay, Esquire, appeared and qualified as one of the Councillors of State.

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5 October, 1781. Gentlemen of the Honorable Council:

As the Constitution hath called upon me to take the command of the State as Speaker of the Senate, in the absence of Governor Burke now in the hands of the enemy, until the Legislature make a further provision in the Government I have done myself the honor on this important event to convene you at the earliest notice.

With reluctance I enter upon the arduous duties of the Executive, at this critical period, when our affairs are so deranged and the wheels of Government clogged with so many impediments. I can promise myself little satisfaction and honour in the administration; and at least by the malevolent I should be deemed rather an intruder on the Government, appointed to the succession only by the letter and form of the Constitution and not by the choice of the people, who have already fixed their eyes on a Gentlemen chosen by the Legislature, in whom they have placed the highest confidence and from whom derived the most sanguine expectations.

However deprived of the many promised services of that Gentleman by his late misfortune, this Government notwithstanding, must be supported, and the most vigorous and decisive measures taken against so daring an enemy.

And when I find the State hath armed the Executive with so able a Council composed of Gentlemen of your distinguished abilities, however difficult the task, I enter with cheerfulness upon the great duties of my temporary office aided by such great support.

Uninformed of any of the late public measures of Government I am hurried into office to direct armaments and measures, not knowing the particular objects for which they were raised and intended, but by conjecture and the present posture of affairs; I therefore request the perusal of your late Journals, and such information you will please to favour me with by which I may have it in my power to regulate my conduct.

If the following subjects in the meanwhile have not yet employed your deliberations, which I conceive call for the immediate attention of Government, I request your advice thereupon.

1st. As a Cartel hath lately been made and concluded between the Commanding Officers of the American and British Armies in the Southern department by their respective Delegates, what persons

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come under the description of British Militia in said Cartel?

How far the same is obligatory on this State to exchange subjects, whose lives are already forfeited by the penal Laws made against Treason? Whether, from the usage and Laws of Nations, we can strictly comprize under the Idea of Subjects the Scotch emigrants, and others who have uniformly persisted in their refusal to take the Oath of Allegiance to this State, tho’ the Act of Assembly declares all in allegiance who live in the Government? This will lead to a farther explanation who of these people now in arms against this State are to be considered when taken prisoners of War or prisoners of State?

2nd. As a respectable body of Militia are now in the field, they in all human probability will chastise the present disaffection, long prevailing in some of the Counties of this State, by destroying, dispersing and capturing the ring-leaders and some of their adherents, but may not finally subdue and extirpate it from the Country while the families of these armed villains are suffered to remain among us uninterrupted, thereby nursing up serpents in our own bosoms for our own destruction.

Tho’ humanity feels for the distressed, and pleads the cause of poor women and children, yet does not policy suggest and point out this measure, tho’ rigorous, that they be banished from among us into the British lines which thereby will draw away from us a set of men who so long have eluded Justice, and disturb the public Peace with impunity? In times of Peace such a measure may be violative of the Constitution which deprives no Person of Liberty or Property but by the law of the land; yet in the tumult of War, the Civil operations of Law then too feeble in its coersions, must cease for a moment till the Government be restored to calmness. During the public Commotions and Rebellions in Britain, the favorite privilege of the Habeas Corpus hath generally been suspended for the better security of that Kingdom.

3rd. As General Greene hath requested the remaining Draughts of the Continental Battalions of this State may be sent forward to join him and there being few of these persons to be found at the several places of rendezvous for them appointed.

Your advice is prayed whether, in lieu thereof, the Militia be drafted under the restrictions of an Act of Assembly passed last

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Session and marched out of the State for a further aid to the General when he shall request the same.

There are many other important matters which may occur to you, Gentlemen, in which I shall consider myself honoured with your advice and which you will please to communicate at your pleasure.

Advice and Opinion of the Council:

1st. The Council are ofopinion that this is an improper time to give a formal answer in such cases, and refer it to the Governor to exercise his own discretion.

2nd. The Council having advised Governor Burke on this Head, beg leave to refer his Excellency thereto, and advise that the same may be carried into effect.

3rd. The Council are of opinion that it is not necessary to draught the Militia at this time.

QUESTIONS AND PROPOSITIONS BY THE GOVERNOR.

5 October, 1781.

1st. Col. Long, the Deputy Continental Quarter-Master-General of this State, informs me he is in great want of Iron and Lead in his Department and requests an order from me to dismantle the palace of those articles, which he conceives useless there to the public.

The palace hath cost this Country much money, and in future may be sold to reimburse the Great expenditures made upon it, and to deprive it of those articles at this time will reduce it to almost a wreck and a pile of brick.

The Iron palisades, which are ornamental only, may be taken without injuring the Building. This however is submitted to your advice.

2nd. Iron may be had from Mr. David Ross of Virginia, upon punctual payment as per letter to Governor Burke. Your advice is requested in what articles of produce the payments are to be made, as public Tobacco must be reserved in general to purchase arms, &c., for the State. He requests some confiscated slaves be employed in his works; whether it will not be advisable to send what negroes belonging to McKnight’s estate are now at Wilcox’s works where the public have derived little or no advantage from them, and some others to Mr. Ross for the purpose mentioned in his letter.

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3rd. Governor Burke having ordered all the Tobacco at the several Warehouses and landings in Edenton District to be seized that he may distinguish what belongs to the Speculator and the real Merchant who means to export the same, and that upon proper inquiry had and distinction made, the Tobacco of the Speculator appropriated to public purposes.

Mr. Robert Smith hath addressed me on this subject and informs me that generally the Tobacco seized as aforesaid has been purchased by persons who bona fide intend to export that article, unless prevented by impressment. How at this stage of the purchases shall be distinguished between the Speculator and the real exporting merchant?

4th. Lieut. Col. Williams, Commandant of the State Troops, hath addressed Governor Burke as to the equipment of his Regiment and hath made an estimate thereof, herewith laid before you.

Your advice is prayed whether from the State of your funds and impoverished situation of this Country we can fit up the State troops in the manner proposed, when arms and every necessary for defence are so immediately wanted.

Advice and opinion of the Counci:

1st. It is the opinion of the Council that the Iron may be used, but that no more lead be taken from the palace only in case of emergency.

2nd. It is the opinion of the Council that the Iron taken from the palace may answer the present demand.

3rd. From the particular situation of the Tobacco seized the Council think the same ought to be delivered to the respective owners.

4th. The Council are of opinion that the Governor call upon the Commanding officer of each County to furnish arms and accoutrements for the State troops of their respective Counties, but know of no immediate means of procuring the other necessaries.

QUESTIONS AND PROPOSITIONS BY THE GOVERNOR.

6 October, 1781.

1st. As there is not yet a sufficient quantity of Tobacco provided to purchase arms and military stores agreeably to the Act of Assembly,

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and the staff demanding many necessaries to support their different departments and no funds provided for the purpose, a greater quantity of Tobacco or some other exportable produce will be absolutely necessary to be procured than was first intended. Tho’ the Law invested the Governor with full powers on this business, yet as impressment is so abhorrent to every free mind and ought never to be practiced but in the last resource, the Governor for the time being wishes to relieve himself from this last disagreeable measure, when this great article of commerce cannot be had by purchase or loan; He prays your advice whether contributions levied on the planter having the same, will not, in some certain proportion, that all may feel the burthen alike, be a more eligible mode. Should this meet your approbation, You will please to point out in what proportion the same be collected.

2nd. Governor Nelson, of Virginia, requests Governor Burke in the letter herwith laid before you to lend him assistance in supporting the great American force in that State with Salt and Beef.

Your advice is prayed whether it will be prudent to send provisions to the Virginia Army when the internal force and the Southern Troops expect support from this State. If you think it advisable upon what footing and terms? That this State derive a proper equivalent in money or Continental Credit, and not in certificates.

Advice and Opinions of the Council:

1st. That it be recommended to the Governor to purchase, borrow, or impress such quantity of Tobacco as he may think necessary, making the impressments as nearly equal as possible.

2nd. As the demands for live stock have been and still continue to be very great for the use of this State and of the Southern Army the Council are of opinion that it is not expedient for the public to furnish a supply of this article to the Commonwealth of Virginia at this time, unless with a view to establish a fund for obtaining arms, ammunition and clothing.

They therefore recommend to the Governor to appoint an agent to contract with the Commissary for victualling the Army and Navy in Virginia, for a supply as aforesaid, instructing such agent to receive in payment gold and silver, Bills of exchange on France, or Bills for cash on Mr. Holker, Consul of France at Philadelphia.

If such contract can be obtained then that live stock be purchased

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to the amount required, but if a sufficient quantity cannot be obtained by purchase, that impressment be made, as equally as may be, and not exceeding one twelfth part of any person’s taxable Cattle, and one fifth part of the year old Hogs.

If such contract cannot be had, the Council are of opinion, that permission ought to be granted for sending live stock from this State to Virginia, for supplying the Army and Navy, provided every person who shall drive beef Cattle, or pork as aforesaid, shall first supply the County Commissioner, or the Commissary General of the State, or his Deputy, with Beef Cattle or Pork equal to one fifth part of the number intended for sale in Virginia.

As Governor Burke is now in Captivity, and Mrs. Burke may be in want of necessaries before he can be exchanged;

Resolved, That it be recommended to the Governor for the time being to give her an order for 5,000 lbs of Tobacco to be charged to Governor Burke.

The Council are of opinion that a Copy of their proceedings with Governor Burke should be delivered to the Governor, and it is recommended to him to carry the designs of the late Governor and Council into effect as soon as he can.

JOHN PENN, President;
WILLIE JONES,
BENJ. SEAWELL and
SPRUCE McKAY.
A Copy,
Teste:
P. Henderson, Clk. Cl.


At at meeting of the Council in pursuance of the order of His Excellency, Governor Martin, at Halifax Town, on Thursday the 20th of December, 1781.

Present:
John Penn, Esquire,
Whitmill Hill, Esquire,
Benj. Seawell, Esquire,
Willie Jones, Esquire.

Gentlemen:

Since I had the honor of seeing you last in Council, the most signal and Brilliant success that ever crowned the American measures during the War with Britain, hath intervened by the surrender

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of the Earl Cornwallis and the army under his command prisoners of War to the allied arms of America and France, under the command of General Washington; an event glorious as it is important to these United States. I beg leave to congratulate you upon.

I have also the pleasure to add, that in consequence of this great occurrence, the enemy with precipitation have evacuated their post at Wilmington, surrendering thereby a peaceable possession of and quitting claim in every part of the Dominion of the State.

The disaffected settlements abandoned to their own fate, are chiefly now reduced to subjection, and I flatter myself by prudence and good conduct, civil government will be restored to its former power and luster therein.

These Prospects, Gentlemen, are truly flattering and seem to presage a Peace with our last restless Enemy, but they should not put us off our guard and lull us into security and langour, too often consequential of success, that may prove fatal. It is necessary to be armed, and prepared for their utmost machinations. British pride, progressive in its rise, must have time to be humiliated.

To effect a sure and honourable peace to which a negotiation may lead from proper exertions, General Washington and Major General Greene urge in the most pressing manner, the immediate necessity of completing our Continental Battalions on this occasion; whose letters I have the honor to lay before you. But I find the act of Assembly already passed on that subject not fully adequate without the interposition of the Legislature.

The Honourable the Congress have required a state of our public accounts against the Continent, that the same may be liquidated, which by delay, are daily plunging this State into difficulties from whence it may never be extricated, unless timely attention be paid thereto.

The representation of this State in Congress is an object of the first consequence at this crisis, which at present it is deprived of by the death of Mr. Brevard and the resignation of Messrs. Johnson and Sharpe, Mr. Hawkins attending alone without an assistant.

The provision made by Law for the Executive and Judicial officers of Government, together with the Delegates in Congress and Attorney General, is far from being equal to their support. To require services with the sacrifice of Health and Fortune without

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compensation is more than what a State hath a right to demand of a Citizen, or any society of a member.

As the power of the Executive now vested in the Speaker of the Senate will sleep after the annual election on the tenth day of March, it is necessary that the Legislature in that case make provision in the Government from the time aforesaid until the annual meeting.

These, with other important objects, induce me to convene an Assembly previous to the General Election, but as some of the members met at Salem recommended and urged with some warmth the convening the next Assembly at that place, which recommendation was supported by the majority, I have declined taking any measure therein until I shall consult you on that subject; having no local predilection for any part of the State that may interfere with the General Good, the first object of my administration. You will therefore be pleased to signify to me where to convene the next Assembly.

The Gaols being filled with the Traitors and other Criminals in every district of this State it is necessary that Commissions of Oyer and Terminer, Gaol Delivery, and General Sessions of the Peace issue for the trial of the same agreeable to the fifty-third section of “an Act for establishing Courts of Law and regulating proceedings therein,” as recommended by your advice to Governor Burke; but previous thereto by Directions of said Act your advice on that subject is to be had occasionally.

I therefore request the same on the present Emission.

ALEX. MARTIN.

Halifax, 20 December, 1782.

His Excellency having informed the Council of his intention to convene the General Assembly prior to the annual meeting in April next and requested the advice as to the place of convening them;

Resolved, That his Excellency be advised to convene the General Assembly at Salem.

His Excellency informed the Council that the Gaols in the several Districts of the State were filled with Traitors and other Criminals and suggested the necessity of issuing Commissions of Oyer and Terminer, &c., for the Tryal of such offenders.

Resolved, That His Excellency be advised to issue Commissions of Oyer and Terminer, &c., for the purpose aforesaid, agreeable to

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the fifty-third section of the “Act for establishing Courts of Law and regulating the Proceedings therein.”

JOHN PENN, President;
WILLIE JONES,
BENJ. SEAWELL and
WHITMILL HILL,

The Proceedings of the Council held at Halifax were taken and copied by J. Penn.


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1 This was because of the recent capture of Governer Burke who was carried to Charleston.—Ed.