Whitehall Dec. 12th 1770.
Sir,
The Death of our late Counsel Sir Matthew Lamb, and the long interval between that Event and the appointment of Mr Jackson to
that Office has occasioned a delay in the examination of the Laws of North Carolina passed in 1768 and 1769, which is more to be regretted, as they have reference to many important Matters & fundamental Constitutions of Government, & more especially as those, by which the Courts of Judicature are established, & their proceedings regulated, tho' in general well calculated to give stability to Government, and ease and satisfaction to the people, are yet in some particulars liable to material objection.It is a requisite essential to the validity of the Laws of the Plantations, that they should be as nearly as may be conformable to the Laws of England; and no Deviation from their general rule is to be justified, but upon some obvious apparent Necessity arising out of peculiarity in situation and Circumstances, and therefore we were concerned to find, that the Superior Court Act had in the mode of Proceeding upon Attachments in Civil Suits extended its regulations, so far as that the Estate and Effects of a person who never had been in the Colony, were made liable to an attachment at the Suit of any person alleging himself to be a Creditor.
We are sensible that difference of Situation requires greater rigour in cases of persons absconding to avoid payment of their just Debts, than would be allowed of, or is necessary here; but when that rigour is extended to cases not falling within that rule of Distinction, and regulations are unnecessarily adopted, that do not correspond with the Letter and Spirit of the Laws of England, the Interests of this Kingdom become affected, and it is the Duty of Government here to interpose its Authority.
We have no doubt, that the force of this Objection (in which those of this Kingdom, who have dealings with North Carolina in Trade, do concur, and upon which the Agent himself is at least silent,) will weigh with the Legislature to amend that part of the Laws to which it applies, either by an explanatory Act in their next Session, or by omitting the provisions [objected] to, when the present Act comes to be revived after the expiration of the period fixed for its continuance; and We think it fit to observe, that nothing less than the fullest Confidence, that the Amendment will be made, would have justified Our not laying this Act (beneficial as it may be in other respects) before His Majesty for His Royal Disallowance.
Another part of this Act, which we wish to see amended, is that, by which the appointment of the clerk of the Courts is vested in the Chief Justice, contrary, as We conceive, to the practice in most other
Colonies, where such Officers are appointed, either by the King, or by the Governor; and therefore as it is our Duty to take care that His Majesty's Right to such Appointment is not set aside, so will it become you to use your best Endeavours, that this clause be omitted when a new Act is passed.With regard to the Act for the Appointment of Sheriffs, which We consider as part of the general System for the more effectual Administration of Justice, it certainly contains many very useful and proper regulations; but as it does not leave a discretionary Power in the King's Governor of nominating a Sheriff, in case he should think fit to reject those recommended by the Judges, it does improperly, and as We conceive, unnecessarily deviate from the rule and usage in the Kingdom; and therefore unless the Legislature of North Carolina think fit to remove this Objection, it will become proper for us to advise His Majesty to disallow the present Law; for no consideration of general Utility and convenience can justify an Acquiescence in a regulation that does not correspond with the constitution of this Kingdom, in a case where there is no apparent Necessity for a deviation.
The Law for introducing a Circulation of British Copper halfpence seems to have been well intentioned, but besides that it is a regulation, which, in the nature of it ought not to have been made without the King's Consent previously obtained, and does also authorize the passing those halfpence at a rate greatly beyond their intrinsick Value, the Law itself is without any of those Guards necessary to prevent the introduction of that base Copper Coin which has so fraudulently prevailed, and been so much complained of in this Kingdom; and therefore we have thought fit to propose, that it should be disallowed; as also another Act intituled, “An Act for declaring certain Lots in the Town of Newbern, taken up by the Trustees for promoting the Publick School “in said Town, saved and improved according to Law; and to “impower the said Trustees to collect the Subscription due to the “said School,” which Act is very strongly objected to by Mr Jackson as setting aside the Statute of Limitations.
The Act for making provision for the Payment of the Forces raised to suppress the late Insurrections on the Western Frontiers, does certainly, in every light fall under the Description of those to which the 28th Article of your Instructions refers, and is also liable to objections, as containing Matters, which have no proper relation
each to the other; the Reasons however, which you state for having given your Assent to this Law, are very cogent; and while We admit them, as an Excuse for Ourselves in permitting the Operation of a Law, which (independent of the object of it) is certainly liable to objection.